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[2010] ZAWCHC 455
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Mdingi v S (A358/2010) [2010] ZAWCHC 455 (3 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER:
A358/2010
DATE:
3
SEPTEMBER 2010
In
the matter between:
FIKILE
MDINGI
….........................................................................................
Appellant
and
THE
STATE
…..........................................................................................
Respondent
JUDGMENT
DUMINY,
AJ
:
The
appellant was convicted on 26 May 2009 in the Wynberg Regional Court
of theft of a motor vehicle and sentenced to 54 months
imprisonment.
He appeals against both the conviction and sentence.
The
case concerns an event on 14 July 2008 when the appellant was
encountered by one Mr Njaba, while he and apparently two other
persons were pushing a minibus in Fish Hoek with the intention of
trying to start it. According to Mr Njaba's evidence, the alarm
of
the minibus was blaring and its hazard lights were flashing. Mr
Njaba suspected that the vehicle was being stolen and reported
his
observations to the police. He returned to the scene in his own
vehicle and the police followed in theirs.
On
Mr Njaba coming upon the scene, the minibus sped away, but
fortunately not too far. It ended up in a collision with what is
described in the record as a yard, but apparently that is either
with a wall or a fence that surrounded a nearby property. The
evidence of Mr Njaba was that when he returned to the scene, he
found the appellant in the driver's seat of the minibus. After
the
collision with the wall or the fence, the appellant emerged from the
driver's side of the vehicle and fled into a nearby
house. Mr Njaba
followed him and found him hiding under a bed. He hauled him out
from under the bed and in the process apparently
assaulted him with
a flashlight which he obtained from a member of the police service.
It
transpired that the minibus was the property of an organisation that
used it for the transport of handicapped children. It
was confirmed
in the evidence of Mr Luiters, the person in whose charge the
vehicle was left, that it had been locked the previous
night with
its steering lock engaged. On examination it was found that the
electrical wiring of the minibus was disturbed in
such a way that it
would indicate that there was an attempt to start the engine
according to a method, colloquially known as
"hot-wiring".
The
appellant's response to this evidence which
I
have
summarised very briefly, was that he was indeed engaged in pushing
the minibus vehicle in order to get it started, that he
was indeed
an occupant of the vehicle when the police and Mr Njaba returned,
but that he was not in the driver's seat. He also
explained that it
is correct that he emerged from the driver's side of the vehicle
after it came to a standstill and that he
ran away, trying to hide
in the nearby house where he was found. He essentially confirmed the
evidence of Mr Njaba in these respects.
The
appellant's version, however, is that he was involved in this
incident purely by accident. He lives in Khayelitsha, but was
in
Fish Hoek, when he saw that some people were trying to get the
vehicle started. They were pushing it in reverse. He offered
his
assistance in return for a lift to Khayelitsha, and lo and behold,
the next thing is the police arrive and because he is
a man who
smokes dagga and had a knife on him, he thought it best to vacate
the scene as rapidly as possible and to hide under
the nearest bed.
The
essential issue is whether or not Mr Njaba was correct or not in
testifying that the appellant was observed in the driver's
seat of
the vehicle. Before I proceed to deal with that issue, I record that
it is clear from the evidence and the facts that
are common cause,
that the minibus was removed from the lawful possession and control
of Mr Luiters, and that it was stolen.
The only issue in the case is
whether the appellant was a party to the theft of the vehicle or
not. This requires scrutiny of
the appellant's version and the
question whether it satisfies the test of being reasonably possibly
true.
On
behalf of the appellant, the Court was referred to the case of
S
v Van der Mevden
1999(1)
SACR 447 (W) at 449c-450b. The reference is appropriate. In essence
it confirms the approach that the question is not
whether the
appellant's version is true on a speculative basis or is merely
possibly true, but whether it is
reasonably
possibly
true. This is another way of expressing the practical application of
the onus being on the State to prove all the elements
of the charge
beyond a reasonable doubt; not beyond all doubt, but beyond a
reasonable doubt.
The
consideration of this case requires one factual finding to be made,
the circumstantial evidence to be weighed up and the appellant's
version to be considered in the light of that. The factual question,
as I have said, is whether the appellant was in the driver's
seat of
the vehicle. If so, that is a very strong indication that he
associated himself with the theft of the vehicle. If not,
it leaves
the possibility that he was an innocent bystander who was
unwillingly implicated in the crime. To answer that question,
the
evidence of the appellant must be weighed against that of Mr Njaba.
The
magistrate in the regional court found Mr Njaba to be a direct,
accurate and reliable witness. In my view, that evaluation
of Mr
Njaba's evidence is fully justified by the record. His evidence was
clear and logical. There was no disputing his description
of the
events and he clearly understood exactly what he had seen and
relayed that in a way which, on my part, I found convincing.
There
was no doubt in his mind that he had correctly identified the
appellant as the person sitting behind the steering wheel
of the
vehicle when he returned to the scene with the police. He was asked
about his opportunities for observation and he explained
that he was
very close to the driver's side. I am not going to repeat the
estimates of distances, as they are notoriously inaccurate,
but he
did indicate that he was within a vehicle width of the appellant
where he was sitting in the driver's seat and that he
could clearly
identify him.
Weighed
against that, one must take the appellant's version and the
circumstantial evidence, which is common cause. The appellant
contradicted himself in a number of material respects. The one
concerned the number of people who were involved in the incident.
An
important aspect concerns the question whether or not the hazard
lights of the vehicle were on and the alarm was blaring.
When Mr
Njaba gave that evidence, it was not contested; however when the
appellant testified, he said the alarm was silent and
the hazard
lights were off.
The
next issue is what Mr Njaba's explanation was for being in the
vehicle at all. If one tests that against the standard of
reasonableness, much is left to be desired. He was in Fish Hoek,
where he encountered a vehicle that would not start unless it
was
pushed in reverse. Mr Njaba's evidence that the hazard lights were
on and the alarm was blaring, was not contested and it
must be
accepted. The appellant's explanation is that he associated himself
with this effort because he hoped for a lift from
there to
Khayelitsha. The explanation stretches credulity beyond any
reasonable bounds.
The
appellant's explanation for fleeing the scene is equally
incredulous. The excuse he gave was that he was in fact perpetrating
another crime, namely unlawful possession of drugs and a dangerous
weapon and that he was afraid of being caught with them in
his
possession. That is why he ran away. No drugs were found anywhere
near the scene and in my view his conduct is consistent
only with
the fact that he was a guilty participant in the theft of the motor
vehicle.
I
have no hesitation in accepting the evidence of Mr Njaba in
preference to that of the appellant and I find that the learned
magistrate's approach to the evidence and his acceptance of Mr
Njaba's evidence in preference to that of the appellant, was
entirely justified. For these reasons the appeal against the
conviction should, in my opinion, be dismissed.
As
far as the sentence is concerned, the usual well known triad of
considerations was taken into account. The appellant's personal
particulars and circumstances were placed on record. He was 27 years
old at the time of his conviction. He was unmarried with
three minor
children. He had a job and importantly, he had a good standard of
education and no previous convictions. He had been
in custody for 11
months preceding the trial. On the other hand the magistrate took
into account the prevalence of the crime,
the interests of the
community and in this particular case the fact that the vehicle had
been used for the transport of handicapped
children. It was clearly
marked, it bore the logo of the welfare organisation and it was very
clear to anyone seeing it that
this was a vehicle that was used for
special purposes and that stealing it, or putting it out of service
for any time, would
be prejudicial to the neediest of the needy in
our society.
Given
these circumstances, the magistrate imposed a sentence of 54 months
imprisonment. Whilst it may be said that this is a strict
sentence,
in my opinion it is not disturbingly inappropriate and gives
expression to the requirements of the law in respect of
sentencing,
including taking into account the personal circumstances of the
appellant and approaching the matter with a sense
of mercy.
For
these reasons, I would also not interfere with the sentence.
In
my view the appeal against both the conviction and sentence should
fail.
DUMINY,
AJ
DAVIS,
J
:
I agree. It is so ordered.
DAVIS,
J