The Namibian (Windhoek)

25 February 2013

Namibia: Cattle Thief's 20-Year Sentence Slashed

THE unpleasant prospect of spending two decades in prison for cattle theft is no longer the lot of two Omusati Region residents who were jailed on a stock-theft charge almost five years ago.

This is after the 20-year jail term of convicted cattle thief Itombua Ndemuhenuka was set aside in an appeal judgement delivered in the High Court at Oshakati and replaced with an effective sentence of eight years' imprisonment.

The appeal judgement was even better news for co-accused Simon Ingashipola, whose conviction was overturned by the appeal court. He, too, had been sent to prison for 20 years.

In the appeal judgement, Judge Marlene Tommasi said the 20-year prison sentence that Ndemuhenuka received in the Opuwo Regional Court on March 31 2008 was disproportionate to the crime, the offender and the legitimate needs of society in the circumstances of his case.

That in itself was a substantial and compelling circumstance which should have made the sentencing court impose a lighter sentence than the 20-year jail term which at the time was the minimum sentence prescribed in the Stock Theft Act for an offence of this kind, Judge Tommasi said.

Ndemuhenuka and two co-accused were alleged to have stolen 12 head of cattle, valued at N$33 500, at Omakange in the Omusati Region during February 2007.

The owner of the cattle recovered one of his animals, bearing his earmark, at another village during July 2007.

Ndemuhenuka and Ingashipola were convicted of the theft of four head of cattle, valued at N$11 000, on the basis of evidence that Ndemuhenuka and a companion had sold four of the stolen animals at another village during April 2007, Judge Tommasi recounted. Both men were sentenced to 20 years' imprisonment.

Ndemuhenuka appealed only against his sentence, while Ingashipola appealed against both his conviction and sentence.

Judge Tommasi found that it had not been proven beyond reasonable doubt that Ingashipola had been the person in the company of Ndemuhenuka when the latter sold the four head of cattle.

Two witnesses who implicated Ingashipola were initially unsure whether they recognised him, and then claimed that they could indeed positively identify him. The magistrate did not approach their evidence with the required caution, the judge said.

She also found that the trial court erred by imposing the prescribed minimum sentence - which has in the meantime been declared unconstitutional by two judges of the High Court, and is the subject of a pending Supreme Court decision.

The parts of the Stock Theft Act that were declared unconstitutional are the section which required that stock thieves convicted of stealing livestock valued at more than N$500 had to be sentenced to not less than 20 years' imprisonment without the option of a fine, and the section which stated that people convicted of stock theft for a second or subsequent time had to be sentenced to not less than 30 years' imprisonment, also without the option of a fine.

As the Act stands now, the only sentence that may be imposed for stock theft, irrespective of whether the value of the stolen animals is more or less than N$500, is still only imprisonment without the option of a fine, it has been pointed out in a criminal review judgement of the High Court earlier this year.

Ndemuhenuka was a first-time offender.

Judge Christie Liebenberg agreed with Judge Tommasi's judgement.

The two appellants were represented by Grace Mugaviri, while Neville Wamambo represented the State.

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