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[2010] ZAWCHC 454
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Mkande v S (A222/2010) [2010] ZAWCHC 454 (3 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER:
A222/2010
DATE:
3
SEPTEMBER 2010
In
the matter between:
VICTOR
RALPH MKANDE
…................................................................
Appellant
and
THE
STATE
…..................................................................................
Respondent
J
U D G M E N T
ROUX,
AJ
:
The
appellant was convicted in the Regional Magistrate's Court in Cape
Town on a count of theft of a motor vehicle and sentenced
to five
years imprisonment. Leave to appeal against the conviction and
sentence was sought and granted.
The
appellant was legaly represented during the proceedings. He pleaded
not guilty to the aforestated charge. He was also charged
with
negligent driving and he initially pleaded guilty to that charge.
However, it later transpired that he had already been convicted
of
driving under the influence of alcohol arising from the same set of
facts and the charge was accordingly not proceeded with.
One
Peter Palkimitno was charged together with the appellant on the same
charge of theft. He was acquitted by the magistrate at
the end of the
proceedings.
The
first witness called on behalf of the State was Constable Gerald
Koopman of the Metro Police. Constable Koopman testified that
on 4
February 2005 he was on duty with Officers Meyer and Estcourt. They
patrolled the Observatory area. At approximately nine/ten
o'clock
that evening they saw a vehicle travelling in the wrong direction in
a one-way street. They followed the vehicle and pulled
the vehicle
over in Lower Main Road, Observatory. On approaching the vehicle
Constable Koopman saw two men in the vehicle, one
of whom was the
appellant. They contacted radio control and were notified that the
vehicle had been reported stolen. On further
investigation they also
discovered that the appellant, who had been driving the vehicle, was
under the influence of alcohol. Constable
Koopman testified that
Officer Estcourt made the arrest. Constable Estcourt has since
resigned from the Metro Police.
In
cross-examination, Constable Koopman testified that Officer Estcourt
had interviewed the appellant and that he was accordingly
unable to
relate what was spoken between Officer Estcourt and the appellant.
When it was put to Constable
Koopman
that the appellant would testify that when the police stopped them
there was in fact another passenger in the vehicle, besides
the
co-accused, namely one Patrick, who must have left as soon as they
were stopped, he could not dispute that, commenting that
it was in
fact very busy that night in Lower Main Road. He could also not
dispute that the appellant may have explained to Officer
Estcourt
that he and his co-accused were unaware of the fact that it was a
stolen vehicle, since they had been invited by the said
Patrick, who
was driving the vehicle, to accompany him from a party in Milnerton,
and that at some stage he, the appellant, took
over the driving
because Patrick was too intoxicated to drive safely.
The
State handed in two formal statements from the owner of the vehicle
without any objection from the appellant's legal representative.
Copies of the statements handed in are not included in the record,
but the essential parts thereof are quoted in the judgment.
According
thereto the owner had left the vehicle in Arnold Street in
Observatory earlier that day and had discovered at about 10
p.m. that
the vehicle was missing. Later on in that month he identified his
motor vehicle at Stikland. The bumper and the ignition
were damaged.
The
State also called Constable Matholla of the South African Police
Service. Constable Matholla was not present when the appellant
was
stopped and arrested on the night in question. He only became
involved later as the appointed investigating officer. He confirmed
that one of the accused had told him that they were innocent inasmuch
as they had not known that it was a stolen vehicle. The explanation
given to him was that they were given a lift by a friend in a vehicle
from a party and that one of them had later taken over the
driving,
because the driver was too intoxicated. According to Constable
Matholla he was, however, not provided with that person's
name or
address. That was the end of the State's case.
According
to the appellant's testimony he had attended a party in Summer
Greens, Milnerton, earlier that day. His friend and co-accused,
Palkimitno was with him and the party was hosted by one Anwar. Later
that evening an acquaintance of theirs, one Patrick, suggested
that
they accompany him to a nightclub in Observatory. He and Palkimitno
were at the time standing outside the party venue smoking
and Patrick
was already sitting in the vehicle which later turned out to be
stolen. Patrick asked them to push-start the vehicle.
On
the way to Observatory it became apparent that Patrick was too
intoxicated to drive, so he, the appellant, asked Patrick to stop
and
he took over the driving. The vehicle was never switched off. He
further testified that he, too, was intoxicated at the time.
In
Observatory the police stopped them for failing to observe a one-way
sign. He was then arrested for drunken driving and also
for the theft
of the motor vehicle. Only he and his co-accused were arrested. He
could not say what had happened to Patrick, inasmuch
as he was kept
busy by the police and was thereafter taken to the Milnerton Police
Station. According to the appellant the investigating
officer was not
interested when he gave him his version of events in order to prove
his innocence. When testifying, the appellant
gave the address where
Patrick was staying at the time.
The
appellant's co-accused, Palkimitno, also testified. He confirmed the
appellant's version in all material respects. He testified
that
Patrick had in fact run away when they were stopped by the police.
According to his testimony there were a lot of people and
a lot of
activity where they were stopped in front of a pub. He testified that
the police were forced to stop some 30 metres in
front of them,
because there was no other place to stop.
The
magistrate correctly pointed out that since there was no direct
evidence that the appellant had stolen the vehicle, it had to
be
determined whether the only reasonable inference which could be drawn
from the proven facts was that the appellant had stolen
the vehicle.
See
S
v Masweni
1985(1)
SA 590 (E). The magistrate then went on to refer to inconsistencies
in the appellant's evidence and concluded that the appellant's
version cannot be reasonably possibly true.
In
my view the magistrate misdirected himself in this regard. The
inconsistencies referred to by the regional magistrate are not,
in my
view, material and do not detract from the essence of the appellant's
version. The magistrate himself found that the evidence
of the
appellant's co-accused was almost similar to that of the appellant It
cannot, in the circumstances, be said that the version
put up by the
appellant and his co-accused, namely that they had been invited that
evening by Patrick to accompany him to Observatory
in the vehicle,
not knowing that it was a stolen vehicle, that the appellant had
en-route taken over the driving, and that Patrick
had fled from the
scene as soon as they were stopped, cannot reasonably possibly be
true. Especially where the arresting officer
was not called to
testify and the only other policeman who was on the scene at the time
of the arrest conceded in evidence that
there may have been a second
passenger in the vehicle.
In
S
v Shackell
2001(4)
SA 1 (SCA) at 12I-13B, the Supreme Court of Appeal stated the test to
be as follows:
"It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that
the mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof
in a criminal
case, a court does not have to be convinced that every detail of an
accused's version is true. If the accused's version
is reasonably
possibly true in substance, the court must decide the matter on
acceptance of that version."
On
this inquiry, I consider the answer to be that, notwithstanding
certain improbabilities in the appellant's version, the reasonable
possibility remains that the substance thereof may be true. I would
accordingly allow the appeal and set aside the conviction and
the
sentence.
ROUX, AJ
FOURIE.
J
:
I agree and it is ordered accordingly.
FOURIE.
J