WINDHOEK – The High Court has declared as unconstitutional a section through which people, who have bought stolen goods, without the knowledge that such goods are stolen, are charged with theft.
The law also required people to alternatively prove that they did not buy the stolen items knowingly. Ultimately, the law requires such persons to prove legal ownership of the items in their possession. High Court Judges Nate Ndauendapo and Naomi Shivute found this section of the law unconstitutional, since it goes against the constitutional fundamentals of the Namibian justice system and argued: “The presumption of innocent until proven guilty is clearly infringed.” The two judges found that it is up to the prosecution to prove to the court an individual’s guilt and that the court should be able to acquit such a person found in possession of stolen goods, even if the person’s explanation to the court smells fishy, as long as the explanation is reasonable enough to the court. “If the accused’s version is reasonably possibly true he is entitled to his acquittal even though his explanation is improbable. A court is not entitled to convict, unless it is satisfied not only that the explanation is improbable, but that beyond reasonable doubt it is false,” read the judgment.
The ruling was handed down in the case of 61-year-old Joao Gomes, who lodged an application in the High Court after he was accused of theft in the Swakopmund Regional Court. Gomes was charged with theft for buying three welding machines from the person who stole the machines, and who was his co-accused in the case. The machines were found in Gomes’ possession. He was charged with theft, alternatively possession of stolen goods. Gomes pled not guilty to the charges, but the State proceeded with the charges of theft in terms of Section 264 of the Criminal Procedure Act. This section states: “If the evidence on a charge of theft does not prove the offence of theft, but the offence of receiving stolen property knowing it to have been stolen, such accused may be found guilty of the offence so proved.” Gomes specifically challenged Section 7, which when read with Section 264, categorically says a person found in possession of stolen goods, even if such goods were bought at a public sale, such a person should provide proof why they believed, when buying, that the items were not stolen and were properties of the person who was selling them. Failure to provide such proof would make the person guilty of theft.
Judge Ndauendapo said in a society where the majority of our population is illiterate and engage in informal trading as a way of making a living on a daily basis, the risk of innocent people being convicted and sent to prison is too high if the reverse onus in Section 7 is to be retained. The judges also ordered that the Prosecutor General, who was the only one to oppose the application pay the costs of the suit. Advocate Louis Botes appeared on behalf of Gomes.
Story by Roland Routh