Stock Theft Act sentences present challenge to courts

ONE of Namibia’s more controversial pieces of legislation, the Stock Theft Amendment Act that prescribes minimum jail terms as high as 30 years for stealing livestock, remains the subject of some judicial head-scratching as Namibia’s courts continue to figure out exactly what this law means and how it should be implemented.

This is indicated in a High Court judgement handed down late last week. Demonstrating the difficulties courts frequently experience with the Act is a case in which a 41-year-old first-time offender, Kavii Gawie Katjijora, pleaded guilty to a stock theft charge in the Okakarara Magistrate’s Court some two months ago.That case, involving a single goat valued at N$250, has now resulted in two review judgements being handed down by the High Court in the space of six weeks.With the second judgement, written by Judge Kato van Niekerk, with Acting Judge Elia Shikongo in agreement, the six-month prison sentence that Okakarara Magistrate Lindrowski Tibinyane imposed on Katjijora on June 15 has in effect been restored.Judge Van Niekerk made it clear that while the Act prescribes specific minimum sentences for stock thieves, it by no means leaves courts without any discretion whatsoever to deviate from these prescribed sentences and hand down shorter jail terms where it may be considered appropriate.In the High Court’s first review judgement on Katjijora’s case, the matter was referred back to the Okakarara Magistrate’s Court after Acting Judge Simpson Mtambanengwe and Judge Sylvester Mainga came to the conclusion that the Magistrate had imposed an incompetent sentence, as he appeared not to have applied the 2004 Stock Theft Amendment Act.Judge Van Niekerk and Acting Judge Shikongo disagreed.They noted that before he sentenced Katjijora to six months’ imprisonment, Magistrate Tibinyane had asked Katjijora whether there were any substantial and compelling circumstances which justified imposing a sentence of less than two years’ imprisonment.After the first review judgement, the Magistrate imposed a direct prison term of two years, which he appeared to have thought had been what the High Court had directed him to do.The Stock Theft Amendment Act prescribes a prison term of not less than two years without the option of a fine for any first-time offender convicted of stealing stock valued at less than N$500.If the stock was valued at more than N$500, a first-time offender has to be sentenced to no less than 20 years in prison.Any repeat offender convicted of stock theft, has to be sentenced to at least 30 years’ imprisonment, the Act further states.Only when a court is satisfied that “substantial and compelling circumstances” exist, which justify the imposition of a lesser sentence than those prescribed, can a court impose shorter prison terms than those prescribed by the Act, the law states.When the case returned to the Okakarara Magistrate’s Court after the High Court’s first review judgement, it was still up to the Magistrate to find that there were such substantial and compelling circumstances to justify the imposition of a lesser sentence, Judge Van Niekerk noted.She added that the Amendment Act also left the Magistrate with the discretion to suspend part of the sentence that he imposed.Only when a court dealt with a stock thief who was a repeat offender and 18 or older did the Act leave it without an option to suspend part of the sentence, the Judge pointed out.Then again, in such a scenario a court could still deviate from the minimum prescribed sentence if it came to the conclusion that there were substantial and compelling circumstances that would justify this.In her judgement, Judge Van Niekerk may have given an indication of the views that at least a part of the High Court bench may hold on the sort of sentences that the Stock Theft Amendment Act prescribes.She commented that she was inclined to agree that a two-year prison term was too harsh given the circumstances of Katjijora’s case, even if one took into account the fact that Parliament has laid down a mandatory minimum sentence.That he is a first offender at the age of 41 must weigh heavily with the court, which also had to take into account that he was a family man with three children, of which the youngest was still a baby, that he made a living cutting poles and selling them, that he offered to pay a fine of N$250 and that half the carcass of the goat was recovered, the Judge remarked.On the other hand, she added, stock theft was a serious offence and the complainant had lost her goat.By permitting the suspension of part of the sentence in limited circumstances, the legislature has left some discretion to sentencing courts, she stated.It was this discretion that the Judge used to suspend 18 months of the two-year sentence that she went on to impose.”The accused will hopefully learn from this experience and the suspended sentence which I intend to impose may serve to deter him from committing this crime again,” she remarked.The Stock Theft Amendment Act has been in operation in Namibia since December 20 last year.Demonstrating the difficulties courts frequently experience with the Act is a case in which a 41-year-old first-time offender, Kavii Gawie Katjijora, pleaded guilty to a stock theft charge in the Okakarara Magistrate’s Court some two months ago.That case, involving a single goat valued at N$250, has now resulted in two review judgements being handed down by the High Court in the space of six weeks.With the second judgement, written by Judge Kato van Niekerk, with Acting Judge Elia Shikongo in agreement, the six-month prison sentence that Okakarara Magistrate Lindrowski Tibinyane imposed on Katjijora on June 15 has in effect been restored.Judge Van Niekerk made it clear that while the Act prescribes specific minimum sentences for stock thieves, it by no means leaves courts without any discretion whatsoever to deviate from these prescribed sentences and hand down shorter jail terms where it may be considered appropriate.In the High Court’s first review judgement on Katjijora’s case, the matter was referred back to the Okakarara Magistrate’s Court after Acting Judge Simpson Mtambanengwe and Judge Sylvester Mainga came to the conclusion that the Magistrate had imposed an incompetent sentence, as he appeared not to have applied the 2004 Stock Theft Amendment Act.Judge Van Niekerk and Acting Judge Shikongo disagreed.They noted that before he sentenced Katjijora to six months’ imprisonment, Magistrate Tibinyane had asked Katjijora whether there were any substantial and compelling circumstances which justified imposing a sentence of less than two years’ imprisonment.After the first review judgement, the Magistrate imposed a direct prison term of two years, which he appeared to have thought had been what the High Court had directed him to do.The Stock Theft Amendment Act prescribes a prison term of not less than two years without the option of a fine for any first-time offender convicted of stealing stock valued at less than N$500.If the stock was valued at more than N$500, a first-time offender has to be sentenced to no less than 20 years in prison.Any repeat offender convicted of stock theft, has to be sentenced to at least 30 years’ imprisonment, the Act further states.Only when a court is satisfied that “substantial and compelling circumstances” exist, which justify the imposition of a lesser sentence than those prescribed, can a court impose shorter prison terms than those prescribed by the Act, the law states.When the case returned to the Okakarara Magistrate’s Court after the High Court’s first review judgement, it was still up to the Magistrate to find that there were such substantial and compelling circumstances to justify the imposition of a lesser sentence, Judge Van Niekerk noted.She added that the Amendment Act also left the Magistrate with the discretion to suspend part of the sentence that he imposed.Only when a court dealt with a stock thief who was a repeat offender and 18 or older did the Act leave it without an option to suspend part of the sentence, the Judge pointed out.Then again, in such a scenario a court could still deviate from the minimum prescribed sentence if it came to the conclusion that there were substantial and compelling circumstances that would justify this.In her judgement, Judge Van Niekerk may have given an indication of the views that at least a part of the High Court bench may hold on the sort of sentences that the Stock Theft Amendment Act prescribes.She commented that she was inclined to agree that a two-year prison term was too harsh given the circumstances of Katjijora’s case, even if one took into account the fact that Parliament has laid down a mandatory minimum sentence.That he is a first offender at the age of 41 must weigh heavily with the court, which also had to take into account that he was a family man with three children, of which the youngest was still a baby, that he made a living cutting poles and selling them, that he offered to pay a fine of N$250 and that half the carcass of the goat was recovered, the Judge remarked.On the other hand, she added, stock theft was a serious offence and the complainant had lost her goat.By permitting the suspension of part of the sentence in limited circumstances, the legislature has left some discretion to sentencing courts, she stated.It was this discretion that the Judge used to suspend 18 months of the two-year sentence that she went on to impose.”The accused will hopefully learn from this experience and the suspended sentence which I intend to impose may serve to deter him from committing this crime again,” she remarked.The Stock Theft Amendment Act has been in operation in Namibia since December 20 last year.