A WINDHOEK resident who has spent the past three years in prison after being found guilty of stock theft regained his freedom on Friday, when his conviction and sentence were set aside by the High Court.
The version that Freddie Diergaardt (56) gave during his trial on charges of stock theft and transporting livestock without a permit could be true, and as a result of that, he should not have been convicted, judge Nate Ndauendapo indicated in the judgement in which Diergaardt's appeal against his conviction was upheld.
Judge Ndauendapo found that Diergaardt believed in good faith that 96 head of cattle that he removed from a farm in the Maltahöhe district in December 2009 belonged to him, and therefore he did not have an intention to steal the livestock.
During Diergaardt's trial, the court was faced with two mutually destructive versions, and there were insufficient grounds to find that the prosecution proved the version of the complainant in the case was true, and that Diergaardt's version had to be rejected as false, judge Ndauendapo said.
Judge Dinnah Usiku agreed with his judgement.
Diergaardt was sentenced to 16 years' imprisonment, of which five years were suspended, at the end of his trial in the Mariental Regional Court in February 2016.
He was arrested in December 2009, and charged with the theft of 96 head of cattle, then valued at about N$600 000. The animals were allegedly stolen from the farm of their owner, Willem Ockhuizen, in the Maltahöhe district between 1 and 5 December 2009.
During his trial, Diergaardt told the court he and Ockhuizen had an agreement in terms of which he was renting grazing from Ockhuizen. He added that Ockhuizen also lent him N$60 000 in 2007.
However, according to Diergaardt, a feud later developed between him and Ockhuizen, and Ockhuizen refused to allow him to remove some of his livestock from the farm when he wanted to sell some of his animals in 2008. Diergaardt said Ockhuizen also refused to hand over the cattle to him when he wanted to remove them from Ockhuizen's farm in 2009.
He said he registered stock theft charges against Ockhuizen with the police, and when that did not help him get his animals back, he went to Ockhuizen's farm and collected his cattle himself. According to Ockhuizen, though, he had bought 33 head of cattle and a trailer from Diergaardt for N$60 000 in 2007, and the 96 head of cattle that Diergaardt took from his farm in December 2009 belonged to him, and not to Diergaardt.
Diergaardt's version was that he reckoned the initial 33 head of cattle for which he rented grazing from Ockhuizen could have grown to number 96 animals by December 2009, and that he collected the animals from a camp that an employee of Ockhuizen pointed out to him as being where his livestock were kept.
Judge Ndauendapo noted that Ockhuizen testified that the transaction in which he said he bought cattle from Diergaardt was concluded in the presence of two other people. However, those two witnesses, who could have corroborated Ockhuizen's version, did not testify during Diergaardt's trial, and that was detrimental to the state's case, the judge remarked.
While finding that Diergaardt should not have been convicted, judge Ndauendapo also stated that Diergaardt's decision to take the law into his own hands by removing the cattle from Ockhuizen's farm without a court order "should be condemned in the strongest terms". Diergaardt should instead have taken legal steps to have his dispute with Ockhuizen adjudicated, the judge said. Defence lawyer Kadhila Amoomo represented Diergaardt in the appeal. The state was represented by Marthino Olivier.