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[2010] ZAGPPHC 298
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S v Masha (3214/07) [2010] ZAGPPHC 298 (5 January 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
Magistrate
Case No: 3214/07
High
Court Ref No 1283
DATE:
05 JANUARY 2010
THE STATE
v
FRANS SEKODIMOTO
MASHA
REVIEW
JUDGMENT
DU PLESSIS. J:
This is an automatic
review case the magistrates' court In Middelburg convicted the
accused of theft and sentenced him to three
years imprisonment. The
matter initially came before my brother Bertelsmann J who, by way of
a query to the learned magistrate,
raised certain concerns about the
conviction On receipt of the magistrate's comments, the matter was
referred to the Director of
Public Prosecutions. Mr Baloyi and Mr
Roberts of that office prepared a helpful memorandum. On a number of
grounds they do not
support the conviction.
The charge against
the accused was that he had stolen 58kg of stainless steel, worth
R168.00. from a business called Columbus Stainless
Steel (Columbus).
For the state Mr J C Nkomo testified that he is a gate supervisor at
Columbus. At about 19h40 on 23 October 2007
while patrolling, he
heard a noise and saw someone inside Columbus's premises. He called
for assistance. When another security
officer arrived, they
investigated and found the accused hiding in the grass on the
premises. When the accused saw them, he tried
to run away, but was
apprehended. The accused had nothing in his possession but on further
investigation the security officers
found a bag lying in the vicinity
where they had first seen the accused There were also pieces of
stainless steel lying around
there. When asked for an explanation,
the accused told Nkomo that he “did not know that he was not
supposed to take the"
stainless steel. The accused also said the
he thought that... this items ... were dumped there or being thrown
away" Nkomo
later said that the relevant pieces of stainless
steel were off-cuts destined for recycling The evidence shows that
these off-cuts
were not stacked but were lying around on the ground
where the accused was found.
Mr AK Malope
testified for the state that he responded to Mr Nkomo’s call
for assistance. He confirmed the evidence that they
found the accused
hiding in the grass, that he ran away and was caught. Mr Malope also
confirmed that they later found a bag containing
pieces of stainless
steel in the vicinity where they had first seen the accused. Mr
Malope described the pieces as 'steel scrap
metals that Columbus uses
to recycle". According to Mr Malope the accused did not say
anything when he was apprehended.
The evidence of the
two state witnesses shows that, in order to gain access to the
premises, the accused must have defied several
security arrangements
and that he probably entered through a hole in the fence.
The accused
testified that he had gone to Columbus's premises at about 18h00 to
look for work. He confirmed that he was arrested
at about 19h40 but
said that he was outside the premises at the time. He denied that he
had hidden in the grass and ran away when
the security officers
arrived.
The iearned
magistrate, in my view, rightly rejected the evidence of the accused
as false beyond doubt. The state's evidence proves
beyond reasonable
doubt that the accused had unlawfully gained access to the premises
and. when the security officers came, hid
in the grass and then tried
to run away. I am in respectful agreement with the learned magistrate
that the only reasonable inference
from all the evidence is that the
accused was on the premises to gather stainless steel and that he was
in the process of putting
the steel in a bag in order permanently to
remove it from the premises I also agree that the stale has proved
that the stainless
steel was the property of Columbus Despite the
above, I agree with Messrs Baloyi and Roberts that the conviction is
not in accordance
with justice. The evidence shows that the stainless
steel in question were off-cuts or scrap lying around on the
premises. It must
be accepted that Columbus had not abandoned its
propriety rights in the steel as the intention was to recycle it. It
is reasonably
possible, however, that the accused did not realise
that: He told Nkomo that he thought the steel had been thrown away
and that
he could take it. On that basis the accused was not proved
to have had the subjective intention to steal, he lacked
’wederregtelikheidsbewussyn"
Against such a possibility
the accused actions on the night in question and his false evidence
in court must be weighed As for
his hiding and running away, it must
be borne in mind that he was on the premises unlawfully and that fact
could reasonably account
for his conduct As for his false evidence,
it cannot be said beyond reasonable doubt that he lied in court
because his initial
explanation to Nkomo was false.
It is concluded that
the state did not prove the guilt of the accused beyond reasonable
doubt. In arriving at that conclusion. I
am mindful thereof that the
state is not called upon to disprove every possible defence an
accused person might have In this case,
however, the evidence for the
state raised doubt as to
The following order
is made
1. The conviction
and sentence is set aside
2. To the extent
that the accused is in prison in respect of the conviction in this
case, his immediate release is ordered.
B.R du Plessis
Judge of the High
Court
I agree,
C. Botha Judge of
the High Court