About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 476
|
|
Marwanqana v S (A216/2010) [2010] ZAWCHC 476 (17 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER:A216/2010
DATE:17
SEPTEMBER 2010
In the matter between:
MLUNGISELELI
MARWANQANA
…..................................................
Appellant
and
THE
STATE
…................................................................................
Respondent
JUDGMENT
BLIGNAULT.
J
:
Appellant, Mr Patrick
Mlungiseleli Marwanqana was convicted on 17 July 2009 in the
Vredendal Magistrate's Court on a charge of
theft, namely that on 17
October 2007 at Jet Stores, Vredendal, he stole three DVD's, the
value of which was R340.00. He was
sentenced on 9 September 2009 to
24 months imprisonment, of which a period of 12 months imprisonment
was suspended for five years.
The magistrate refused his application
for leave to appeal against his conviction and sentence. He then
applied to this Court
for leave to appeal against his conviction and
sentence. He was granted leave to appeal against his conviction, but
not against
his sentence.
Mr Gert Orian was the
only State witness. On Wednesday 17 October 2007 he was employed by
Jet Stores as a security guard. Between
12 o'clock and one o'clock
he was on duty. He was standing on ladder. He saw appellant taking
three DVD's from a shelf and putting
them in the front part of his
trousers. He saw appellant, but appellant could not see him as he
was partly hidden behind rails
of the shop. Appellant was wearing an
orange T-shirt with a jacket and three-quarter blue pants. Appellant
then moved towards
an outside door and he also moved towards that
door.
He waited just outside
the door and then asked appellant to come with him. Appellant walked
with him towards the tills, but halfway
through the shop, he started
to wrestle and he took out the DVD's and threw them at his friends.
Then appellant kicked off his
shoes and ran away through the door to
the outside. He followed appellant, but he could not catch him. He
saw appellant later
near the taxi rank and he reported the matter to
the police. He and his manager worked out that the three DVD's were
worth about
R340.00.
Appellant testified that
he was part of a group of three men that entered Jet Stores that
day. They wanted to look at clothes.
He left his two companions at
the clothes section and walked to the department where the shop sold
DVD's. He was wearing a jacket
with a large pocket on the inside. He
placed the DVD's in the pocket. He moved to the clothes department
and then placed the
DVD's in the pocket of his jacket. He said that
he did this, because he wanted to use both hands to remove a pair of
trousers
from a shelf which was quite high. Whilst looking at the
trousers, the security guard arrived and hit him on the shoulder
with
his hand. The security guard told him to come with him, but he
would not tell him where they were going.
Then a fight broke out.
They were pushing each other he said. The pair of trousers that he
was looking at fell out of his hands.
The DVD's fell out of his
pocket and landed between the clothes where they were pushing each
other. His two friends were present
when this incident happened. He
said that it was his intention to purchase the DVD's and that he had
money available to pay for
them. After the fight, he left the shop
in order to fetch something like a piece of wood to hit Orian with.
When he returned,
the police were there.
Mr Booi testified that
he was in the company of appellant and a friend named Bell in Jet
Stores when the incident happened. They
first went to the clothes
department. Appellant told them that he was going to the DVD
department where he wanted to purchase
DVD's. When appellant
returned, he had the DVD's with him and he put them in his jacket.
The security guard then arrived whilst
appellant had a pair of
trousers in his hands. Appellant and the security guard started
quarrelling. The security guard asked
him to go with him and the two
of them left. He said that appellant had not been arrested outside
the shop. He also said that
appellant did not put the DVD's inside
his trousers, but in his jacket. When they entered the shop, they
saw the security guard
standing on the steps.
In his judgment the
magistrate summarised the evidence in the matter. He then commented
on the witnesses. Mr Orian's conduct,
he found, was normal. He acted
reasonably and the Court cannot say that he did anything wrong that
day. In regard to appellant,
he said the following:
"Nou kyk ons na die
beskuldigde se optrede daardie dag. Indien die beskuldigde nie die
goed wou steel nie, waarom het die
beskuldigde soos 'n dief
aangegaan? Beskuldigde stoei daar met die persoon. Die getuienis van
die Staat is dat hy die gesteelde
goed daar neergooi het. Hy skop sy
skoene uit en hy gooi goed voor die getuie in om nou 'n sekere
jaagtog van die agtervolger
te rem."
Appellant, he said, did
not show the DVD's to Orian when he was confronted by him. His
conduct shows that he had the intention
to steal the DVD's. His
version could not reasonably possibly be true. The magistrate
rejected it and convicted him as charged.
Appellant is not
appealing against his sentence and it is, therefore, not necessary
to consider the sentencing procedures. Counsel
for appellant on
appeal advanced a number of submissions. He submitted that Orian's
evidence deviated in a material respect from
the statement that he
made to the police. The important point of difference is that Orian
said in his statement that he arrested
appellant inside the shop,
whereas in evidence he said that it was outside.
The magistrate
considered this point in his judgment and said that Orian, according
to his evidence, had explained to the policeman
that he had
confronted appellant outside the shop, but that he did not write it
down. The magistrate found that this explanation
was acceptable. I
have no reason to question the magistrate's judgment in this regard.
Counsel also submitted that the magistrate
erred in finding that
there was no reason for Orian to lie and then to use this factor to
reject the version of appellant and
his witness, Booi.
In my view this was but
one of many factors taken into account by the magistrate and he did
not, on the face of it, attach much
weight to it. Counsel for
appellant also submitted that the magistrate erred in not attaching
more weight to the evidence of
appellant's witness, Booi. In my view
the magistrate did not ignore this evidence, but he was obviously
aware that Booi was not
an independent witness. It seems to me that
the magistrate found, on appellant's own evidence, that there were
important reasons
for rejecting his version. The appellant was
unable to explain why, if he was innocent, he did not show the DVD's
to Orian and
explain to him that he was going to pay for them.
Appellant could also not explain why he started to wrestle with
Orian. In my
view the magistrate did not err in this regard.
It
is trite law that a Court of Appeal will not likely interfere with
the factual findings of the trial court. See
S
v Francis
1991(1)
SACR 198 (A) at 204D-E. I have considered the magistrate's judgment
and I am not persuaded that he misdirected himself
or erred in any
material respect. I would accordingly dismiss appellant's appeal
against his conviction.
BLIGNAULT.
J
:
It is then so ordered.
BLIGNAULT, J
WRAGGE.
J
:
I agree.
WRAGGE, J
/bw