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[2015] ZASCA 143
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Mothwa v The State (124/15) [2015] ZASCA 143; 2016 (2) SACR 489 (SCA) (1 October 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 124/2015
In the
matter between:
TSUBAKWANE
ELIAS MOTHWA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Mothwa
v The State
(124/15)
[2015] ZASCA 143
(1 October 2015)
Coram:
Maya DP, Theron and
Mathopo JJA
Heard:
9 September 2015
Delivered:
1 October 2015
Summary:
Criminal Law ─
robbery with aggravating circumstances ─ inadequacy of proof ─
doctrine of recent possession restated
─ State failed to prove
appellant’s guilt on charge of robbery with aggravating
circumstances and competent verdict
─ appeal upheld ─
sentence and conviction set aside.
ORDER
On
appeal from:
North
West Division of the High Court, Mahikeng (Djaje and Matlapeng AJJ
sitting as court of appeal and Gutta J dissenting):
1. The appeal is upheld.
2. The conviction and
sentence is set aside.
JUDGMENT
Mathopo
JA (Maya DP and Theron JA concurring):
[1] The
appellant was convicted by the Regional Court sitting at Lehurutshe
in the North West Province for the crime of robbery
with aggravating
circumstances as defined in
section 1
of the
Criminal Procedure Act
51 of 1977
read with the provisions of 52(2), 52(A) and 52(B) of the
Criminal Law Amendment Act 105 of 1997 (the Act). He was sentenced to
ten years’ imprisonment. He appealed to the North West Division
of the High Court. The high court, per Djaje AJ and Matlapeng
AJ
concurring and Gutta J dissenting, dismissed his appeal. This appeal
is with the special leave of this Court.
[2] The
circumstances giving rise to the conviction and sentence may be
summarised as follows: Mr Derick Manganye (the complainant)
was
robbed at gunpoint of a motor vehicle, a Toyota Corolla belonging to
Budget Rent A Car, in Soshanguve on 14 September 2012
by two
unidentified male persons. The motor vehicle was found in the
possession of the appellant on 17 September 2012, three days
after
the incident, at the Botswana border of Skilpadhek. It was common
cause that the appellant had in his possession a registration
certificate indicating that the motor vehicle was registered in the
name of L P Molamudi (Molamudi).
[3] The
State called three witnesses, the complainant, Mr Greyling
(Greyling), an employee of Budget Rent A Car who identified the
vehicle upon its recovery and Warrant Officer Du Plessis (Du
Plessis). The evidence of the latter was pivotal to the conviction
of
the appellant. Du Plessis testified that there was a syndicate
operating which transported stolen motor vehicles from South
Africa
across its borders. During the course of his investigations he
identified the appellant as being involved in the syndicate
and
therefore a suspect. His suspicion was based on the appellant's
regular movements across South African borders with vehicles
and
returning on foot. Based on this, the appellant was blacklisted at
all border posts and his pictures were circulated in these
areas.
[4] On 17
September 2012 Du Plessis received information that the appellant was
at the Skilpadhek border post attempting to cross
the border to
Botswana with a Toyota motor vehicle. He went to the border and
questioned the appellant concerning the ownership
of the motor
vehicle. The appellant informed him that the motor vehicle belonged
to one Adam, a Malawian national who had asked
him to take it to
Botswana. The appellant could neither provide the contact details of
the said Adam nor any information to facilitate
any further
investigations. He was in possession of a document called
‘Arrival/Departure’ indicating that he was in
transit to
Bulawayo, Zimbabwe. Under cross-examination Du Plessis disputed the
appellant’s version that this vehicle belonged
to a certain
Charles and testified that the appellant at some stage was arrested
for possession of a stolen Mercedes Benz.
[5] In
his defence the appellant stuck to his version that he was asked by
one Charles to transport his nephew’s motor vehicle
to
Botswana. In short his version is that he met Charles who was living
in a flat at Church Street in Pretoria through friends
who were
gambling and betting racing horses. Charles gave him the registration
documents of the said motor vehicle together with
an affidavit
permitting him to drive the motor vehicle. When Du Plessis asked him
to explain his possession of the vehicle, he
told Du Plessis that he
received it from Charles and further that he also gave him, Charles’
cell phone numbers. Du Plessis
conceded that he did in fact take the
appellant's cellular phone. I will return to this aspect later when
evaluating the evidence
of Du Plessis and that of the appellant.
[6] The
trial court convicted the appellant on the basis of circumstantial
evidence after applying the doctrine of recent possession.
The high
court dismissed the appeal on the same basis. They found that the
appellant’s explanation was false and riddled
with numerous
inconsistencies. It also placed reliance on his failure to provide Du
Plessis with Charles’ details and his
failure to explain how
the particulars of the registration certificate in the name of
Molamudi was found in the motor vehicle.
Furthermore, they relied on
the evidence of Du Plessis to the effect that the appellant was
profiled and blacklisted for transporting
vehicles across the border
of South Africa. Based, on these facts the high court concluded that
because the appellant failed to
rebut the evidence of Du Plessis, no
reasonable inference could be drawn other than that the appellant was
one of the perpetrators
of the robbery. The minority differed with
this reasoning and, relying on
S
v Madonsela
,
[1]
held that a motor vehicle is in today’s times capable of
exchanging hands literally within minutes and hours and thus the
appellant could not have been one of the perpetrators of the robbery.
[7]
Before us counsel for the appellant contended that the three day
interval between the robbery and the possession of the motor
vehicle
by the appellant was a sufficient period for the vehicle to exchange
hands. Counsel for the appellant contended that the
fact that, within
three days of the theft, the motor vehicle already had different
registration numbers and was registered in the
name of L P Molamudi
was sufficient basis for the argument that the vehicle could have
exchanged hands. It was argued that the
inference of guilt was not
the only inference to be drawn and we were urged to accept the
appellant’s explanation regarding
his possession of the motor
vehicle as reasonably possibly true.
[8] The
doctrine of recent possession permits the court to make the inference
that the possessor of the property had knowledge that
the property
was obtained in the commission of an offence and in certain instances
was also a party to the initial offence.
[2]
The court must be satisfied that (a)
the accused was found in possession of the property; (b) the item was
recently stolen. When
considering whether to draw such an inference,
the court must have regard to factors such as the length of time that
passed between
the possession and the actual offence, the rareness of
the property, the readiness with which the property can or is likely
to
pass to another person.
[3]
[9] There is
no rule about what length of time qualifies as recent. It depends on
the circumstances generally and, more particularly,
on the nature of
the property stolen. If the property stolen is commonplace the time
might be very short as it is always easy to
trade it. It can thus
change hands easily and much quicker. Property such as money and
motor vehicles are easily circulated.
[10]
Courts have repeatedly emphasised that the doctrine of recent
possession must not be used to undermine the onus of proof which
always remains with the State. It is not for the accused to rebut an
inference of guilt by providing an explanation. All that the
law
requires is that having being found in possession of property that
has been recently stolen, he gives the court a reasonable
explanation
for such possession.
[4]
[11] The
fact that the appellant was arrested three days after the robbery and
immediately gave an explanation of his possession
to Du Plessis which
was supported by other documents makes his version more probable. One
cannot ignore the fact that when he was
arrested, the appellant was
in possession of the registration documents in the names of Molamudi.
As to why no investigation was
conducted to verify the information
provided by the appellant and the identity of Molamudi is not
explained at all by Du Plessis.
It would have been easy for Du
Plessis to follow up on the appellant’s explanation to test its
veracity. The appellant cannot
be blamed for Du Plessis’s
dereliction of duty. The State had the opportunity and the means to
verify it. It failed to do
so. That the registration was effected
within three days is clear evidence of how easy it is for a motor
vehicle to exchange hands.
The evidence of the appellant at the trial
was clear consistent and straightforward. It could not be rejected as
not being reasonably
possibly true. The State failed to prove his
guilt beyond reasonable doubt. It follows that the appeal against the
conviction of
robbery must succeed.
[12] The
question that now remains is whether the appellant can be convicted
of s 36 of the General Law Amendment Act 62 of 1955
or theft. Relying
on the case of
De
Vries v The State
,
[5]
where, the appellant was convicted of two counts of theft arising
from the robberies in the Western Cape even though he had not
participated in the robberies, the court held that, the fact that, he
purchased stolen cigarettes at the time when he must have
been aware
that they were stolen, made him guilty of theft. Counsel for the
State submitted that by a parity of reasoning the appellant
in this
case should be convicted of theft because he must have known or at
least been aware that the motor vehicle he was transporting
across
the border must have been stolen. I do not agree. The evidence of Du
Plessis is based on suspicion and speculation. The
appellant provided
a reasonable explanation which was supported by documents for his
possession of the vehicle. It follows that
the conviction on any
competent verdict cannot be sustained.
[13] In the
circumstances the following order is made:
1. The appeal is upheld.
2. The conviction and
sentence is set aside.
______________
R
S Mathopo
Judge
of Appeal
Appearances
For
Appellan
t:
N L Skibi
Instructed by:
Mahikeng Justice Centre, Mahikeng
Bloemfontein Justice Centre, Bloemfontein
For
Respondent: D P Rantsane
Instructed by:
The Director of Public Prosecutions,
Mmabatho
The Director of Public Prosecutions, Bloemfontein
[1]
S
v Madonsela
2012
(2) SACR 456 (GSJ).
[2]
S
v Skweyiya
[1984] ZASCA 96
;
1984
(4) SA 712
(A);
R
v Bharolu
1945 AD 813
at 822-823;
R
v Nxumalo
1939 AD 580
at 587.
[3]
Skweyiya
above.
[4]
Zwane
and another v The State
(426/13)
[2013] ZASCA 165
(27 November 2013 para 12).
[5]
De
Vries v The State
(130/11)
ZASCA 162 (28 September 2011).