S v Hepute (1) (CA 4 of 2001) [2001] NAHC 2 (13 June 2001)

THE STATE v. J O N AS HEPUTE C A SE NO. CA 4 / 2 0 01 2 0 0 1 / 0 6 / 13 Maritz, J et Shivute, J. EVIDENCE Admissibility - behaviour of animals - distinction drawn between evidence b a s ed on the instinctive behaviour of animals uniform to a c l a ss or species and other (including trained or induced) behaviour - evidential b a s is to be laid - no s u ch b a s is laid and inferences simply conjecture - magistrate misdirected himself when relying thereon for conviction Admissibility - customary practice not having s t a t us of customary law - traditional test performed to determine whether disputed cow a s s o c i a t es with one or another herd - result of test no evidentiary value Adequacy of proof - intention to permanently deprive the owner of the whole of h i s / h er benefit of the thing in question - bona fide claim of ownership by a c c u s ed of disputed thing - retention thereof by a c c u s ed not manifestation of intent to steal. C A SE NO. CA 4 / 2 0 01 IN THE HIGH COURT OF NAMIBIA J O N AS H E P U TE A p p e l l a nt v e r s us T HE S T A TE R e s p o n d e nt CORAM: MARITZ, J. et SHIVUTE, J. Heard on: 11 J u ne 2 0 01 Delivered on: 13 J u ne 2 0 01 R E A S O NS F OR J U D G M E NT MARITZ, J. The appellant w as charged with and convicted in the Magistrate's Court, Opuwo of the theft of a cow. This appeal is a g a i n st that conviction and the resultant sentence of 18 months imprisonment of which eight months were s u s p e n d ed for five y e a rs on the u s u al conditions. The central i s s ue on appeal is, as it w as during the trial, the ownership of the cow: The complainant maintained that it w as a gift from his aunt Theresia, whereas the appellant testified that the cow w as born and raised in his herd. Both of them had witnesses corroborating their contradictory claims. Being cousins, both farming in a remote rural area of Namibia, the headman of Otavi a nd his council first endeavoured to resolve the dispute. During that hearing, both the appellant a nd the complainant were invited to present, what they claimed to be, the d a ms of the disputed cow. Those cows were placed together with the disputed cow in a kraal and their interaction and behaviour were observed. They were thereafter released into the veldt a nd again carefully observed. The councilors then mustered their collective experience about the behaviourisms of cattle in an attempt to determine whether the cow w as born to the one or the other herd. There w as apparently much dissent between the councilors about the deductions to be m a de of the disputed cow's behaviour. Unable to resolve it, they, as a last resort, questioned the disputing parties and some of their witnesses. On the b a s is of the answers given they tentatively concluded that the cow belonged to the complainant. That c a u s e d, in the words of the h e a d m a n, "the eruption of a big quarrel" among the councilors who had tried the c a se with him. As the actual purpose of the a s s e m b ly of councilors w as to attend a funeral and the discord w as threatening to detract from the decorum that was s u p p o s ed to prevail at s u ch a solemn occasion, the cow w as returned to the appellant and the proceedings adjourned to another date and place. Continuation never materialized, apparently b e c a u se the appellant raised certain jurisdictional objections and otherwise behaved himself contemptuously towards the headman. Thus, the matter landed before the Magistrate of Opuwo. He patiently received the conflicting evidence, and then, relying heavily on the behaviour of the disputed cow when she w as placed together with the cattle from the two different herds, inferred that the cow recognised her d am a m o n g st that of the complainant. He concluded that the complainant w as the owner of the cow and, b e c a u se the appellant retained the cow notwithstanding the complainant's claim of ownership, that he had acted unlawfully and had exhibited the intention to permanently deprive the complainant of his property. He therefore convicted the appellant of theft. Sitting as a Court of Appeal a nd without the n u m e r o us advantages a trial magistrate enjoys in a s s e s s i ng the credibility of witnesses, this Court is normally reluctant to u p s et the trial magistrate's findings of fact (See: R v Dhlumayo and Another, 1948 (2) SA 6 77 (A) at 7 05 to 706). However, if it is apparent that the magistrate h as misdirected him- or herself a nd that that misdirection materially impacted on the conclusion he or she arrived at on the guilt or innocence of the a c c u s e d, this Court is charged with the duty to r e a s s e ss the evidence and at liberty to m a ke its own findings on the facts. Depending on the nature of the misdirection and the circumstances of the c a s e, the Court of Appeal may" to a greater or lesser extent still rely on the credibility findings of the trial magistrate (See: S v Tshoko, 1988(1) SA 139 (A) at 1 4 2 F - J ). Mr D a m a s e b, appearing on behalf of the appellant, argued that the magistrate's strong reliance on the behaviour of the cattle for his findings, constitutes a serious misdirection on the facts. In the course of his s u b m i s s i o n s, he charged that the magistrate had erred in his approach to the i s s ue when he premised his findings on the a s s u m p t i on that there were "no legal rules laid down with regard to the behaviour of animals". He then compounded the error by making inferences from the behaviour of the cattle and convicting the appellant on the b a s is thereof. Mr D a m a s eb submitted that evidence of animal behaviour was inadmissible in our courts and that the magistrate could not have relied thereon. The admissibility of evidence that a dog h as identified a s u s p e ct by scenting h as been the subject matter of a number of j u d g m e n t s. In R v Trupedo, 1920 AD 58, following R v Kotcho, 1918 EDL 91 and R v Adonis, 1918 TPD 4 1 1, the South African Court of Appeals held it w as not admissible. Innes, CJ reasoned as follows in favour of s u ch exclusion: "But to draw inferences from the actions of a trailing hound as to the identity of a particular individual is ...to enter a region of conjecture a nd uncertainty. We have no scientific or accurate knowledge as to the faculty by which dogs of certain breeds are said to be able to follow the scent of one h u m an being, rejecting the scent of all others. B ut it is not contended that they act merely on instinct; it is admitted even by their optimistic instructors that they m u st be carefully trained before they can be relied upon. The discharge of their t a sk a nd the identification expected of them involve p r o c e s s es closely akin to reasoning. If the dog is to be regarded as the real though not the legal witness announcing by his bark that he h as found the person of whom he w as in search the evidence on the point would be so closely a n a l o g o us to hearsay as to come within the principle of the h e a r s ay rule. B ut even if he is not so regarded there is too much uncertainty as to the constancy of his behaviour and as to the extent of the factor of error involved to justify us in drawing legal inferences therefrom. And therefore it should not be regarded as relevant... B ut I would remark that not only is there the possibility that the dog may fail to distinguish between one scent a nd another, or may desert one for the other; but also there is the possibility of a misunderstanding between the animal a nd his keeper... The whole experiment however contains too great an element of uncertainty to justify us in drawing inferences from it in the course of legal proceedings; and evidence of the behaviour of the dog is therefore inadmissible." As Nestadt, AJA pointed out in S v Shabalala, 1986(4) SA 7 34 (A) at 741 to 7 4 2, the ratio in Trupedo's c a se h as given rise to controversy about whether the Chief J u s t i ce intended to convey that s u ch evidence is per se inadmissible or that it may be admissible if a proper scientific b a s is h as been presented for its reliability in the circumstances of the c a se in question. After a thorough analysis of the Trupedo judgment, he concluded as follows on 7 4 2G - 7 43 C: "The j u d g m e nt of INNES CJ did not rest simply on a factual finding concerning the reliability or otherwise of the particular dog whose activities were in i s s u e. In my view, it decided that, in principle, evidence of the conduct of dogs, in identifying an a c c u s ed person by scenting, is inadmissible. The approval of R v Kotcho [supra) and particularly the mention therein of the need for legislation if this sort of testimony is to be admitted, m a k es this clear. It does not follow that Trupedo's c a se is to be taken as the final pronouncement on the matter in all c i r c u m s t a n c e s. Despite the objection to the evidence b a s ed on its h e a r s ay nature, its exclusion is not absolute. It is still necessary to determine the parameters of the principles to be extracted from the decision. To do this, it is legitimate, and necessary, to look at the reason(s) underlying it [Pretoria City Council v Levinson 1949 (3) SA 3 05 (A) at 317). As already indicated, the principal one w as the (extreme) untrustworthiness of the evidence. Where, therefore, this element is sufficiently reduced, even though it be not removed, the actions of the dog would become relevant a nd evidence thereof admissible. It is not possible to define what would have to be established to achieve this. However, it is apparent from the j u d g m e nt that mere proof that the dog c a me from stock having special powers of discrimination between the scent of one h u m an being and another, that he w as of pure blood and p o s s e s s ed these qualities himself and that he had been specially trained in tracking (being certain 'safeguards' applied by those American Courts which admit this type of evidence), will not suffice (see R v Trupedo at 61 - 2). On the other hand, additional evidence explaining 'the faculty by which (these) dogs... are... able to follow the scent of one h u m an being, rejecting the scent of all others', would suffice." Counsel did not refer me to any authority on the admissibility of evidence regarding the behavioral patterns of cattle and I have not been able to find any. There are material d i s p u t es between the witnesses precisely in which manner the cattle interacted with one another. The behavior on which the magistrate b a s ed his findings is that presented by the headman: The cow in i s s ue w as placed in the kraal together with other cattle, including the other cows that the disputing parties claimed to be her dam. When released the next day, the cow presented by the complainant to be the d am of the disputed cow left the kraal together with other cattle to graze on the far-side of a nearby river. The cow, which the a c c u s ed claimed to be the d am of the disputed cow, went into another direction. The disputed cow followed the other cattle for some distance but stopped short of the river. What, if anything, can be gained of s u ch behaviour? The respondent readily concedes that it did not present any expert evidence to a s s i st the court in evaluating the significance of the evidence or to substantiate the inferences it sought the magistrate to draw. The appellant, referring to the evidential thresholds alluded to in the Shabalala c a se before the evidence of sniffer-dog identification would gain sufficient reliability to become relevant and admissible, argued that, by parity of reasoning, the evidence of cattle behaviour should be excluded in the circumstances of this c a s e. The respondent, seeking to uphold the conviction, countered by inviting the Court to distinguish between trained and untrained animal behaviour: That of sniffer-dogs falls in the former category, whilst instinctive behaviour (for example, the urge of a calf to suckle) under the latter. Whilst evidence is required to establish the reliability of animal behaviour acquired by h u m an intervention, the latter does not. Support for the respondent's contention may be found in the remarks of Innes, CJ in the Trupedo-case {supra) at 6 2 - 6 3: "Now there are c a s es in which, as it s e e ms to me, inferences may be quite properly drawn from the behaviour of animals. A fact in i s s ue in a proceeding may be whether A entered a certain room at night; the fact that a dog belonging to A a nd having no other friend w as in that room and did not bark would be a fact from which it might be inferred that A w as the person who entered there. It would not be a conclusive inference, for there are methods by which a dog may be silenced, or may be induced to refrain from barking at a stranger. B ut the inference would be a legitimate one, and the fact that the dog did not bark would be relevant and might therefore be proved. It would be easy to instance other c a s es in which inferences might properly be drawn from the behaviour of animals. The reason in s u ch c a s es (which do not include instances where special tricks have been taught) will be found to be that the behaviour in question is instinctive and invariable on the part of all animals of the c l a ss concerned; it may therefore safely be acted upon. The habit of a dog to resent the entrance of a stranger at night, is independent of instruction or experience; it is b a s ed upon the instinct of self-preservation; a nd it is patent to our observation." I am in respectful agreement with the distinction drawn by the Chief J u s t i ce between the admissibility of evidence b a s ed on the instinctive behaviour of animals which is uniform of a particular c l a ss or species, and the admissibility of evidence b a s ed on other (including trained or induced) behaviour of animals. Once an evidential b a s is h as been laid that the behaviour of a particular animal is instinctive and that it is invariable on the part of the c l a ss or species to which that animal belong, the evidence becomes admissible (subject, of course, to other considerations s u ch as relevance) and, depending on the nature of the evidence and the circumstances of the c a s e, the Court may attach more or l e ss weight thereto and draw inferences therefrom. It is on that b a s is that the respondent is seeking to justify the magistrate's heavy reliance on the evidence of the disputed cow's behaviour. I confess, having analysed the evidence, I find no s u ch justification. There is no evidential b a s is to s u g g e st that the disputed cow followed the complainant's cow b e c a u se of some instinctive urge. It should be borne in mind that the disputed cow w as weaned some years before the "test" and there is no scientific evidence on record showing what, if any, is the capacity of weaners, or, for that matter, mature cattle, to recognise their d a ms by smell or sight. B ut even if they do, there is no suggestion that there is some residual bond which instinctively and invariably c a u s es a desire of the one to a s s o c i a te or be herded together with the other. As it is, even the h e a d m a n 's councilors, who, presumably have some acquired knowledge about the behaviour of cattle through keen observation as traditional cattle farmers, remained sharply divided on what significance could be attached to the disputed cow's behaviour. For all we know, she might have followed the one group of cattle rather than the other b e c a u se she preferred the grazing oh the one side to that on the other. The r e a s o ns why the disputed cow behaved in that manner fall within the "realms of conjecture" and, in my view, should not have attracted any evidentiary weight. In a last trench defense of the magistrate's approach, counsel for the respondent submitted that the "test" which the cow w as subjected to is a "custom" in the particular traditional community and an acceptable method of settling disputes in that area. According to her, "native law and custom" are recognised by Proclamation 15 of 1928, and having been established during the trial, the magistrate w as entitled to rely on the results of the customary test. I intend no disrespect if I deal with these s u b m i s s i o ns rather briefly. The recognition of indigenous laws under section 9(1) of Proclamation 15 of 1928, typically in virtually all the colonized a r e as of Africa, introduced a rather unequal dualism of legal and judicial s y s t e ms where the colonial powers introduced their own laws as the laws of their occupied territories but permitted "the regulated continuance of traditional African law and judicial institutions except where they ran counter to the d e m a n ds of colonial administration or were thought repugnant to 'civilised' ideas of justice and humanity" (Allot: New Essays in African Law, p 11 - 12). So too, did section 9(1) initially limited the discretionary application of indigenous law to "the courts of native-commissioners in all suits or proceedings involving questions of c u s t o ms followed by Natives, to decide such questions according to the native law applying to s u ch c u s t o ms except in so far as it shall have been repealed or modified: Provided that s u ch native law shall not be opposed to the principles of public policy or natural justice... ". The respondent does not contend that the "test" h as acquired the s t a t us of customary law, but simply that it is a custom recognised in general terms by law. I n a s m u ch as the section recognised indigenous "custom" (See: Kaputuaza and Another v Executive Committee of the Administration for the Hereros and Others, 1984(4) SA 2 95 (SWA) at 298E) it did so for the limited application of indigenous laws to those c u s t o ms in colonial courts established exclusively for indigenous peoples and presided upon by colonial appointees - not for application in any of the other courts of the country. Even before independence, section 9 w as repealed by the provisions of section 5 of Act 27 of 1985 (National Assembly) and, although Proclamation R348 of 1967 conferred limited jurisdiction on chiefs a nd headmen to adjudicate civil and criminal c a s es according to indigenous laws and custom, it remains for the limited purpose of matters pending in those traditional courts. In short: The relevant provisions of Proclamation 15 of 1928 on which the respondent relies for its s u b m i s s i on h as been repealed; the reference to "indigenous "custom" in those provisions in any event does not have the effect respondent is contending for; its application is limited to proceedings in courts other than the ordinary courts and, not having attained the s t a t us of a customary rule of law, it is not enforceable as contemplated in Article 66 of the Constitution. For these r e a s o n s, I am of the view that the magistrate misdirected himself when he admitted a nd relied on the evidence of the disputed cow's behaviour in deciding the i s s ue of ownership. The misdirection is central to the i s s u es in the c a s e. The respondent's attempt to dilute the importance of the misdirection by contending that, in the c a se of theft, it is not incumbent on the State to prove ownership by the complainant before a conviction can be secured, is misplaced in the context of this appeal. Although the proposition is sound in law (See: S v Kariko and Another, 1998(2) SA 531 (Nm) at 535f), the facts in this c a se do not s u g g e st that the cow could have been the property of any other person: it w as either that of the complainant or that of the appellant. If the respondent failed to prove beyond reasonable doubt that it w as the property of the complainant, the appellant w as entitled to his acquittal. Moreover, the nature of the misdirection is s u ch that it also significantly influenced the magistrate's findings on the credibility of the witnesses. This Court is therefore unable to rely on the magistrate's r e m a r ks about the credibility and is therefore at liberty to consider the facts afresh, uninhibited by the trial court's reasoning and findings. As Mr D a m a s eb pointed out on behalf of the appellant, the description of the disputed cow is general in nature ("red with a white stripe on her stomach"). None of the witnesses referred to any unique characteristics which would have allow them to distinguish her from others with a similar colour or pattern. The e a r m a r ks she h ad were those of the appellant. Complainant alleged that she initially h ad his e a r m a r ks but that those were altered and that the alterations were still fresh when the cow w as first observed in the appellant's herd. The appellant took i s s ue with that and, in support called two of his herdsmen who testified that the cow w as born in the appellant's herd during March 1996; that it w as earmarked during February 1998 and that it had no fresh e a r m a r ks on when it w as seen by the complainant's witnesses during A u g u st 1998. By the time the dispute came before the h e a d m an during December 1999, he could evidently no longer j u d ge when the e a r m a r ks were made. In the a b s e n ce of any distinguishing identification m a r ks on the cow which could have made the identification thereof by the prosecution's witnesses more reliable, there m u s t, in my view, be a reasonable doubt whether they could not have mistakenly, albeit bona fide, identified the cow as that of the complainant. As the respondent h ad to discharge the burden of proving beyond reasonable doubt that the cow belonged to the complainant to secure a conviction in the circumstances of this c a se and h as failed to discharge it, it follows that the appellant should have been acquitted. There is a further reason why the appellant should succeed in this appeal and, given the possibility that the appellant may still be stigmatized if he is simply found "not proven guilty", it is perhaps appropriate to mention it in this judgment. The evidence s u g g e s ts and the magistrate accepted that the appellant did not exercise direct control over his herd but that he did so through his herdsmen. When he first heard about the complainant's claim he indicated that he would investigate the matter. The cow w as then, as the magistrate found, "pointed out to him by his herd boys". In his r e a s o n s, the magistrate sought to justify the appellant's conviction by reasoning as follows: "(a) Accused's attention w as drawn to the fact that a cow not belonging to him w as found among his" cattle...the fact that he kept it and exercised control over it is indicative of his intention to appropriate the cow and to permanently deprive the owner of his property. See R v Sibiya, 1955(4) SA 247 at page 2 50 par B - F. (b) Appellant's continued p o s s e s s i on and control of the cow despite being m a de aware of the fact that it does not belong to him w as unlawful. (c) (a) and (b) above is indicative of the intention to steal." It is trite law that theft is committed where the a c c u s e d 's continued p o s s e s s i on of the thing in question is accompanied by an intention to deprive the owner permanently of the whole benefit of his or her ownership of the thing in question. That much is clear from Sibiya's c a se and a plethora of other c a s es to the s a me effect. Implicit in this proposition, however, it the a b s e n ce of any bona fide belief on the part of the a c c u s ed that the thing in question belongs to him or her to the exclusion of any other person. If the a c c u s ed so believes and does so bona fide (albeit later proven to be erroneous), he or she does not manifest an intention to steal. The appellant acted on the a s s u r a n c es given to him by his herdsmen that the cow w as born by one of his cows in his herd. There is no suggestion that, in acting on the information a nd claiming ownership thereof, he did not do so bona fide. To the extent that the complainant maintained the contrary, the appellant w as entitled to a s s e rt his claimed rights and leave it to the complainant to vindicate his claim through recourse in an appropriate court. I n a s m u ch as the appellant w as doing j u st that, the magistrate w as not entitled to infer from his persistence that he h ad the intention to steal the cow from the complainant. The magistrate's reasoning, with respect, lacks cogency and logic a nd was premised on the incorrect application of the law to the facts. It is for these r e a s o ns that the following order w as made: 1. The appeal s u c c e e d s. 2. The appellant's conviction by the magistrate, Opuwo, on 8 November 2 0 00 on a charge of theft and the resultant sentence of 18 months imprisonment of which 8 months were conditionally s u s p e n d ed for five y e a rs are set a s i de and substituted for the following order: " The a c c u s ed is found not-guilty and discharged." S h i v u t e, J.