Stock theft appeal reveals opinion gap between Parliament, High Court

A FOREWARNING of the rough reception that may await the heavy prison sentences prescribed in Namibia’s proposed new stock theft law may be contained in an appeal judgement handed down in the High Court.

In terms of the Stock Theft Amendment Bill that was passed by Parliament this year, but has not come into operation yet, people convicted of stealing livestock will be severely punished. Whether the High Court will agree with the legality of the sentences prescribed by the Bill appears to be in doubt, however, judging by an appeal judgement in the High Court last week.Once the Stock Theft Amendment Bill becomes law, courts will be obliged to sentence a stock thief convicted of stealing livestock valued at less than N$500 to no less than two years’ imprisonment without the option of a fine for a first offence.Someone found guilty of stealing stock valued at more than N$500 must be sentenced to no less than 20 years in jail, also without the option of a fine, upon a first conviction for stock theft.Repeat offenders can expect even more severe punishment, in the form of imprisonment of no less than 30 years, without the option of a fine.A court will only be able to impose lesser sentences if there are “substantial and compelling circumstances”.If the Bill had already been part of Namibian law, convicted goat thieves Waldericks Dirks, Daniel Bietz and Godfried Williams would have been sentenced to a 20-year prison term.But the Bill is not yet the law in Namibia, so Dirks, Bietz and Williams will only have to serve a three-year term for the theft of 13 goats, valued at about N$3 250, at Aranos in May last year.They were initially sentenced to four years in jail.On appeal, though, High Court Judges Petrus Damaseb and Kato van Niekerk agreed that such a sentence for first-time offenders who had admitted their guilt in a case where the stolen animals were recovered, was not only inappropriate, but “shockingly” so.The result was that the Judges decided to suspend one year of the four-year term for five years, on condition that the three men not be found guilty of stock theft again during those five years.Judge Damaseb wrote the court’s judgement.In one section, he stated:”I am satisfied that the sentences are shockingly inappropriate in the circumstances and there is a striking disparity between that which the Court a quo (the trial court) meted out and that which this Court would have imposed if it sat as a court of first instance.”Ordinarily there would have been little that would have been considered noteworthy in a judgement such as this.But not so in the aftermath of the passing of the Stock Theft Amendment Bill, after parliamentary debates in which one opposition Member of Parliament described the Bill’s prescribed sentences as “draconian” and after Legal Assistance Centre Director Norman Tjombe had also warned that the Bill may well be unconstitutional.With last week’s judgement – written by a Judge who will be playing a leading role in the High Court from December, when he is set to take up the post of Judge President – the High Court may have given an indication that the sentences dictated by the Bill may just fail to pass the High Court’s test for justice and constitutionality if they are challenged in that court.The High Court made its views on this sort of topic clear in 1996.In a case that went on to serve as guidance even for courts beyond Namibia’s borders, three Judges ruled unanimously that a minimum sentence that the 1990 Stock Theft Act prescribed for a second or subsequent conviction for stock theft was unconstitutional, since it was in conflict with the Constitution’s prohibition of cruel, inhumane or degrading punishment.That minimum sentence was a far cry from the 30 years’ imprisonment that the new Stock Theft Amendment Bill would write into law.It was a minimum prescribed term of three years in prison – and even that was judged to be excessive, unconstitutional punishment.Whether the High Court will agree with the legality of the sentences prescribed by the Bill appears to be in doubt, however, judging by an appeal judgement in the High Court last week.Once the Stock Theft Amendment Bill becomes law, courts will be obliged to sentence a stock thief convicted of stealing livestock valued at less than N$500 to no less than two years’ imprisonment without the option of a fine for a first offence.Someone found guilty of stealing stock valued at more than N$500 must be sentenced to no less than 20 years in jail, also without the option of a fine, upon a first conviction for stock theft.Repeat offenders can expect even more severe punishment, in the form of imprisonment of no less than 30 years, without the option of a fine.A court will only be able to impose lesser sentences if there are “substantial and compelling circumstances”.If the Bill had already been part of Namibian law, convicted goat thieves Waldericks Dirks, Daniel Bietz and Godfried Williams would have been sentenced to a 20-year prison term.But the Bill is not yet the law in Namibia, so Dirks, Bietz and Williams will only have to serve a three-year term for the theft of 13 goats, valued at about N$3 250, at Aranos in May last year.They were initially sentenced to four years in jail.On appeal, though, High Court Judges Petrus Damaseb and Kato van Niekerk agreed that such a sentence for first-time offenders who had admitted their guilt in a case where the stolen animals were recovered, was not only inappropriate, but “shockingly” so.The result was that the Judges decided to suspend one year of the four-year term for five years, on condition that the three men not be found guilty of stock theft again during those five years.Judge Damaseb wrote the court’s judgement.In one section, he stated:”I am satisfied that the sentences are shockingly inappropriate in the circumstances and there is a striking disparity between that which the Court a quo (the trial court) meted out and that which this Court would have imposed if it sat as a court of first instance.”Ordinarily there would have been little that would have been considered noteworthy in a judgement such as this.But not so in the aftermath of the passing of the Stock Theft Amendment Bill, after parliamentary debates in which one opposition Member of Parliament described the Bill’s prescribed sentences as “draconian” and after Legal Assistance Centre Director Norman Tjombe had also warned that the Bill may well be unconstitutional.With last week’s judgement – written by a Judge who will be playing a leading role in the High Court from December, when he is set to take up the post of Judge President – the High Court may have given an indication that the sentences dictated by the Bill may just fail to pass the High Court’s test for justice and constitutionality if they are challenged in that court.The High Court made its views on this sort of topic clear in 1996.In a case that went on to serve as guidance even for courts beyond Namibia’s borders, three Judges ruled unanimously that a minimum sentence that the 1990 Stock Theft Act prescribed for a second or subsequent conviction for stock theft was unconstitutional, since it was in conflict with the Constitution’s prohibition of cruel, inhumane or degrading punishment.That minimum sentence was a far cry from the 30 years’ imprisonment that the new Stock Theft Amendment Bill would write into law.It was a minimum prescribed term of three years in prison – and even that was judged to be excessive, unconstitutional punishment.