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[2010] ZAWCHC 184
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Cassiem v S (A445/2009) [2010] ZAWCHC 184 (13 August 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NUMBER
:
A445/2009
DATE
:
13
AUGUST 2010
In the matter between:
NAZEEM
CASSIEM
Appellant
and
THE
STATE
Respondent
JUDGMENT
SANER. AJ
In this matter the
appellant was charged in the Wynberg Regional Court with the theft of
a motor vehicle. In the charge sheet it
was alleged that during
January 2006 at Athlone, the appellant stole a Nissan Maxima motor
vehicle with registration number CA
227146 from Gadija Cronje and
Adrian Cronje. The appellant pleaded not guilty to the charge at the
start of February 2009. At the
plea proceedings, he declined to
outline his defence to the court and exercised his right to remain
silent. At the conclusion
of the trial the appellant was
convicted in late
February 2009. The State proved no previous convictions and the
appellant was then sentenced on the same day
to four years direct
imprisonment.
During April 2009, the
appellant applied for leave to appeal against his conviction and
sentence. The court a
quo
granted
leave to appeal against both conviction and sentence. The appellant
now comes before this appeal court with regard to
both his
conviction and sentence. During the trial the State called four
witnesses and the appellant testified on his own behalf.
As far as
the conviction is concerned, I do not intend to analyse the evidence
in any great detail, since it is my opinion that
the magistrate, in
his competent and thorough judgment, correctly summarised the
evidence given on behalf of the State and the
appellant. Suffice to
say that it is clear from the State's evidence that the complainant,
one Adrian Cronje (Adrian) left his
car with an auto electrician,
one Faik Groenewald (Faik), for repairs during 2005. Adrian was
thereafter sentenced to a period
of imprisonment The vehicle
remained at the auto electrician's premises for approximately a
year, as Adrian did not have the
financial wherewithal to effect the
necessary repairs. Adrian left all of the registration papers of the
vehicle in the boot
and the appellant was aware of this fact.
Whilst Adrian was still
in prison, the appellant formulated what he thought was a clever
plan to get his hands on Adrian's vehicle.
Consequently, he appeared
one day at Faik's premises, where he introduced himself as Faizel,
the brother of Adrian. He told Faik
that he had authority from
Adrian to sell the vehicle and subsequent thereto he removed the
registration papers from the boot.
Incidentally, he also removed a
tape, speakers, tools and a jack sometime prior to removing the
papers. The appellant then approached
one Mogamat Anthony (Mogamat),
with a view to selling the vehicle to Mogamat. The appellant had
been referred to Mogamat by Faik.
who was keen to get the vehicle
off his premises, which were too small to provide a garaging
facility for a vehicle such as the
one in question for an
indeterminate period.
When the appellant
introduced himself to Mogamat, he gave his name as Anwar and said he
was the brother of Adrian. After negotiations,
Mogamat paid R7
500,00 for the vehicle and took possession of the necessary papers
from the appellant. It was the appellant who
conducted the
negotiations and received the money. Sometime thereafter, and before
Mogamat was able to sell the vehicle, Adrian
asked his wife, Gadija,
to recover the vehicle for him from the premises of Faik, as he felt
it would be safer at his house whilst
he was in prison. Gadija
tracked the vehicle down eventually to the premises of Mogamat, who
ran a garage and had wanted the
car for resale. She claimed the
vehicle back from Mogamat and after intervention by the South
African Police Services, the vehicle
was taken to the Stikland
stolen vehicle facility.
Mogamat was
understandably put out by this turn of events and he and Faik later
took the appellant to the police station, where
he protested his
innocence. Later the appellant said he lived in a house at
Gardendale, but when he and Faik and Mogamat arrived
there, it
turned out that it was not his house at all and that the dog that
was there clearly did not know him and acted aggressively
towards
the three of them. The appellant then ran away. The upshot of all of
this was that the vehicle was ultimately returned
to Adrian's house
and Mogamat was left out of pocket to the tune of R7 500.00. After
Adrian was freed from prison, he sold the
vehicle. He had not been
insured at the time of the alleged theft.
The appellant's evidence
may be very briefly summarised. He testified that he was asked by
Hilary, who was the sister of Adrian,
but who died before the trial,
to take the papers of the vehicle to Multi-Fitment Centre where
Mogamat worked and to receive
R7 000,00. He says he handed this
amount to Hilary. He said that he obtained the papers for the
vehicle one evening from Hilary
and the next morning he went to
Anthony and they in turn went to Faik to get the vehicle. He said
that he never went back, but
did see Faik and Anthony a few months
later at the Athlone Police Station. The appellant furthermore
confirmed, under cross-examination,
that he knew that the car did
not belong to Hilary, but rather to Adrian and that he knew that
Adrian was in prison. He told
the Court that Hilary had died in
February 2002. It is worth noting that Hilary's date of death was a
considerable period after
the appellant was first arrested for the
theft in question.
In my view the
magistrate did not misdirect himself either in his evaluation of the
evidence nor in his rejection of te appellant's
version. The
evidence of the State witnesses fitted together in a satisfactory
manner and they corroborated each other on all
of the important
points. For example:
a) It was established by
the State that the appellant handed the papers over, that he was
present during the negotiations to sell
the vehicle to Mogamat and
that he received the money
b) Mogamat and Faik both
supported each other in testifying that the appellant had said he
was the brother of Adrian, that he
gave different names to each of
them and that he had authority from Adrian to sell the vehicle.
c) The appellant and
Faik arrived together at Mogamat's premises for the purposes of
negotiating the sale of the vehicle.
d) The appellant
concluded the transaction and received the money.
e) The appellant, off
his own bat, took Faik to Mogamat and all went to Gardendale, There
the appellant was confronted by a dog
which clearly did not know him
and he then ran away.
On the other hand the
version of the appellant was fraught with inconsistencies and
problems. For example, it was put to Mogamat
that the appellant's
instructions were that they first went to inspect the car, the next
day the appellant handed the papers
over and on the following day he
received the money. However, when the appellant testified he said
that he received the papers
on a certain evening from Hilary and the
next morning he went to Anthony and then he went to Mogamat and they
then went to Faik.
He had then left the papers with Mogamat and had
collected the money the next morning. This is but one example of
where the version
put to State witnesses did not accord with the
appellant's evidence. There were numerous others.
A further glaring
example of this aspect is the fact that both the complainant.
Adrian, and Faik Groenewald testified that the
papers of the vehicle
were left in the boot and that the appellant retrieved them from
that place. When this evidence was given,
it was never put to either
of them that the appellant would say that he obtained the papers
from Hilary. The inference from this
is inescapable that the Hilary
story was a recent fabrication. The magistrate also, in my opinion,
correctly concluded that the
story of the appellant regarding
receiving the papers from Hilary, was a fabrication. This appears to
me to be undoubtedly correct
in view of the fact that firstly, the
entire Hilary story was never put in outline, as I have noted, to
any of the State witnesses
when they were cross-examined on their
version.
Secondly, the fact that
appellant did not at any stage prior to the trial mention to the
investigation officer the fact that he
had received the papers from
Hilary and that he returned whatever money he received from Mogamat
to her, shows that the story
was a recent fabrication.
On
this second point, I agree entirely with the magistrate in his
approach to the question of the appellant's constitutional right
to
remain silent and the fact that no adverse inference could be drawn
from that. In my opinion the magistrate quite correctly
found that
the reason why the appellant did not come out with his story about
Hilary before, was purely because there was no
truth in it. His
remaining silent (indistinct) had nothing whatsoever to do with his
constitutional right to remain silent.
In the premises I am
driven to the ineluctable conclusion that the magistrate in the
court a
quo
did
not misdirect himself in his approach to the evidence, nor in any
other material aspect as far as the conviction is concerned.
He
correctly rejected the versions of the appellant as not being
reasonably possibly true. I would, therefore, dismiss the appeal
against the conviction for the reasons set out above and for the
reasons given by the magistrate in the court a
quo
As far as sentence is
concerned, since I am sitting as a court of appeal as regards the
sentence in this matter, I am aware that
I must approach the
question according to the well established principles set out by
appeal courts which have become before this
one. So it is
established law that the sentence in the present matter cannot be
altered unless I can come to the conclusion that
no reasonable man
ought to have imposed such a sentence, or that the sentence is
totally out of proportion to the gravity or
magnitude of the
offence, or that the sentence evokes a feeling of shock or outrage,
or that the sentence is grossly excessive
or insufficient, or that
the trial magistrate did not exercise his discretion properly, or
that it is simply in the interests
of justice to alter the sentence.
In this regard see
S
v Fhetani
2007(2) SACR 590 (SCA) at paragraph 5. Also
Director
of Public Prosecutions KwaZulu Natal v P
2006(1)
SACR 243 (SCA) 254c-f and
S
v Anderson
1964(3) SA 494 (A) at 495D-E.
Sufficient cause might
also exist to intervene where I could come to the conclusion that
the sentence imposed was disturbingly
inappropriate or sufficiently
disparate from that which this Court would otherwise have imposed.
See
S v
Mothibe
1977(3) SA 23 (A) at 830D and
S
v Naiker
1975(1) SA 583 (A) at 585D and 590A In assessing whether the
sentence imposed is appropriate in all the circumstances, I must
bear in mind that the assessment of this Court cannot ever be based
on some kind of exact standard. There will always be an area
of
uncertainty within which a particular court's view about a suitable
term of imprisonment may validly differ. See
S
v Pieters
1987(3) SA 717 (A) and
S
v Brand
1998(1) SACR 296 (C) 303i.
Consequently even should
this Court come to the conclusion that it would have imposed a
different sentence, provided the difference
between the sentence
which this Court might have imposed and which the court a
quo
imposed
is not striking, as it has been punt, this Court is not entitled to
interfere. In fact to warrant interference in such
a case, I would
have to find that the trial court did not exercise its sentencing
discretion reasonably. See
S
v Matlala
2003(1) SACR 80 (SCA) 83b-f. The approach to sentence on appeal is
perhaps best summed up by
Rumpff
.
JA, as he then was, in
S
v Anderson
above at 495G-H, where he said the following:
"A court of appeal
will not alter a determination arrived at by the exercise of a
discretionary power, merely because it
would exercise that
discretion differently. There must be more than that. The court of
appeal, after careful consideration of
all the relevant
circumstances as to the nature of the offence committed and the
person of the accused, will determine what it
thinks the proper
sentence ought to be and if the difference between that sentence and
the sentence actually imposed is so great
that the inference can be
made that the trial court acted unreasonably and, therefore,
improperly, the court of appeal
will alter the
sentence. If there is not that degree of difference, the sentence
will not be interfered with."
In the present matter I
am of the opinion that, taking into account all of the relevant
factors, I would have imposed a sentence
somewhat more lenient than
the four years of direct imprisonment actually imposed by the court
a
quo.
However,
as the difference in the sentence I would have imposed and that
imposed by the magistrate, is one of degree only, it
is not
sufficient to warrant interference. I am firmly of the view that the
sentence indeed imposed by the magistrate in the
court a
quo
fell
well within the range of sentences which could be described
as
emanating from the proper exercise of the magistrate's discretion
Whilst it might be
postulated that to imprison a first offender for the theft of one
motor vehicle is harsh, I think it should
be borne in mind that the
theft was perpetrated against a background of a veritable plague of
car thefts, not only in Cape Town
but throughout the country. In
addition, the appellant cynically took advantage of a friend's
misfortune and carefully planned
and executed the theft. He showed
no remorse whatsoever at the trial and never made good on his
undertaking to repay the money
he had received from Mogamat.
There is the further
aspect that the Supreme Court of Appeal has, on a number of
occasions, seen fit to confirm direct imprisonment
for the theft of
a motor vehicle by a first offender, thereby sending a clear message
as to the reprehensibility of this particular
offence. See
S
v Sassman
2006
JDR 0702 (SCA) and
S
v Gerber
2006(1) SACR 618 (SCA). I conclude, therefore, as regards the
sentence, that no grounds exist for interference by this Court
in
the sentence imposed. In the premises, I would dismiss the appeal
against the sentence as well.
In conclusion, as set
out above, I would, therefore, dismiss both the appeal against the
conviction and against that sentence.
SANER.
AJ
DLODLO....J: I
agree
It is so ordered.
DLODLO,J