Understanding Namibia’s Stock Theft Act: Key provisions and penalties

In addition to the previous article on stock theft and common law, it is important to examine Namibian law as it relates to stock theft and related matters.

The Stock Theft Act, 1990 (Act No. 12 of 1990) consolidates and amends the laws relating to the theft of stock and produce in Namibia.

Stock is defined as to mean any horse, mule, ass, bull, cow, ox, heifer, calf, sheep, goat, pig, poultry, domesticated ostrich, domesticated game or the carcass or portion of the carcass of any such stock, while produce is defined as to mean the whole or any part of any skins, hides or horns of stock, and any wool, mohair or ostrich feathers.

The Act deals with various issues and declares certain actions and conduct to be criminal offences, such as:

- the failure to give satisfactory account of the possession of stock or produce;

- the absence of reasonable cause for believing stock or produce has been properly acquired;

- the entering of an enclosed land or kraal, shed, stable or other walled place with intent to steal stock or produce; and

- the delivery of stock or produce for purposes of trade between sunset and sunrise.

Other requirements set by the Act and provisions are that:

- a document of identification must at the time of delivery be furnished by a person who disposes of stock;

- the obtaining of a certificate giving a description of the stock or produce if stock or produce is acquired from persons whose places of residence are unknown;

- possession of a removal certificate is required if stock or produce is driven, conveyed or transported on or along public roads by a person who is not the owner thereof.

- any person may, without warrant, arrest any other person.

* upon reasonable suspicion that such other person is found in possession of stock or produce in regard to which there is reasonable suspicion that it has been stolen and is unable to give a satisfactory account of such possession;

* who in any manner has entered any land enclosed on all sides with a sufficient fence or any kraal, shed, stable or other walled place with intent to steal any stock or produce on such land or in such kraal, shed, stable or other walled place;

- any wrongful and malicious arrest and search of any other person is an offence; and

- the Act applies in every case where an accused is indicted, summoned or charged in respect of the theft of stock or produce, notwithstanding the fact that the Act is not referred to in the indictment, summons or charge.

A sufficient fence is defined as to mean any wire fence, or any other fence, wall or hedge through which no stock could pass without breaking it, or any natural boundary through or across which no sheep would ordinarily pass.

Penalties

Section 14 of the Act originally provides for penalties in respect of a person who is convicted of:

- the theft of or an attempt to commit the theft of such stock or produce;

- receiving such stock or produce knowing the same to have been stolen;

- inciting, instigating, commanding or conspiring with or procuring another person to steal such stock or produce, or to receive such stock or produce; or

- knowingly disposing of, or knowingly assisting in the disposal of, stock or produce which has been stolen or which has been received with knowledge of it having been stolen, of up to 10 years imprisonment or a fine not exceeding N$20 000 or both the imprisonment and the fine in the case of a first conviction, and in the case of a second or subsequent conviction, to imprisonment for any period not exceeding 20 years.

The 10-year imprisonment term was later increased to 20 years in the case of a first conviction, and the 20-year imprisonment was then increased to 30 years in the case of a second or subsequent conviction.

The minimum sentences of 20 and 30 years imprisonment were challenged in the High Court to be unconstitutional, and eventually the Supreme Court, in the case of Prosecutor-General versus Daniel and Others of 2011, delivered in 2017, held that the minimum sentences concerned were unconstitutional because of their disproportionality and ordered that the words for a period not less than twenty years and for a period not less than thirty years, respectively, be struck from Section 14.

Loss or damage caused

The Act further provides that if a person is convicted of an offence that has caused loss or damage to another person, the court may enquire into, and determine the extent of, the loss or damage suffered and, in addition to any sentence that it may impose on the convicted person in respect of the offence -

- order the convicted person to pay compensation to the person who has suffered such loss or damage; and

- in default of payment of such compensation, impose on the convicted person an additional sentence of imprisonment for a period not exceeding three years.

It remains an open question whether such enquiries are done by the courts and whether orders for compensation are consistently made.

Another relevant provision is Section 18 of the Act, which specifically provides that the Inspector-General of the police may establish, for the better prevention and combat of stock theft, a special stock theft unit consisting of members of the police. It is also an open question whether such a unit in fact exists and is operational.

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