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2023
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[2023] ZAFSHC 308
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Mothobi v S (A25/2023) [2023] ZAFSHC 308 (8 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case
no: A25/2023
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES: NO
In
the matter between:
T
A MOTHOBI
Appellant
and
THE
STATE
Respondent
CORAM:
DANISO, J
et
MTHIMUNYE, AJ
HEARD
ON:
24 July 2023
REASONS
BY:
MTHIMUNYE,
A
DELIVERED
ON
:
Delivered
by email to the parties’ legal representatives and by release
on SAFLII. The reasons shall be deemed to have been
handed down at
11:00 on 08 August 2023
[1]
Judgment on this matter was handed down
ex-tempore
on 24 July 2023 with reasons to follow and these are the reasons.
[2]
The appellant was arraigned in the Regional
Court of Welkom on charges of theft a motor vehicle to wit a Toyota
Etios with registration
number FYF[…] (“the Etios”)
and for possession of suspected stolen property, to wit a Toyota
Hilux bakkie with
registration number HHC[…] (“the
Hilux”), in contravention of Section 36 of the General Law
Amendment Act 62
of 1955. He was convicted on both counts by the
learned Magistrate Ramdeyal on 27 September 2022 and sentenced to
five years’
imprisonment in respect of the theft and two years’
imprisonment in respect of possession of suspected stole property.
Both
these vehicles were found parked inside the garage in his place
of residence in Thabong township, Welkom, on 23 October 2021 after
being reported stolen on the 21
st
and 22
nd
October 2021 respectively. This is an appeal against both
convictions.
[3]
The appellant assails the convictions
on the following grounds:
(a)
That the court
a
quo
erred in finding that the State had
proved the appellant’s guilt beyond a reasonable doubt.
(b)
That the court
a
quo
erred in accepting that there was
sufficient evidence against the appellant that he participated in the
stealing of the vehicle
in Count 1 when there was no video footage
from the mall where the car was reportedly stolen, neither was there
footage from the
Tollgate from Bloemfontein to Welkom and no
fingerprints lifted from the vehicle and no cell phone records
indicating that the
appellant was part of the commission of the crime
were obtained.
(c)
That the court further erred in not
applying the doctrine of recent possession correctly and gave no
consideration to the possibility
of the appellant’s version
being reasonably possibly true.
Ad Conviction 1
[4] In
proving its case against the appellant, the State called three
witnesses namely Ms Elizabeth
Strydom (the complainant in Count 1),
Constable Moshoaliba and Sergeant Aubrey Harmse. Ms Strydom testified
that on 21
st
October 2020 she parked her car (the Toyota
Etios) on the first floor of the Waterfront shopping centre in
Bloemfontein and went
into the shopping centre. On her return her car
was no longer there. She reported the matter to the police and the
vehicle was
recovered two days later (23
rd
October 2020)
in Welkom, whereupon she was called to identify it and she positively
did.
[5]
Constable Moshoaliba testified that on 23 October 2020, whilst
working in Welkom, his unit received
information that led them to
house 1108 Tladi Street in Thabong township, which is the appellant’s
home. As he was driving
towards the house, he saw the appellant jump
a fence at the back of his house towards the street where he was
driving and ran past
his car. He did not make anything of it but only
realised when he arrived at the given address that it was in fact the
appellant’s
home they were led to. He knew the appellant as he
once visited his house with a colleague and the appellant also used
to visit
the police station for assistance when one of his vehicles
was reported stolen.
[6] On
arrival at the house, they were met with high walls on the front side
of the house but were
able to gain access as the gate was not locked.
In the garage they discovered the Etios and the Hilux, both of which
were reported
stolen a day and two days earlier respectively. They
recovered the vehicles and only came back a month later to arrest the
appellant.
[7]
Sergeant Harmse testified that on 23 October 2020 he also received
information that a white Hilux
bakkie had been stolen in the Welkom
area that morning. The tracking device on the vehicle alerted them of
its whereabouts and
the track signal led them to the appellant’s
house where the vehicle was discovered and recovered.
[8] The
complainant on the Hilux theft did not testify as he was said to have
travelled or relocated
to Dubai.
[9] The
appellant’s version was that he did not steal the cars and had
no knowledge of how they
ended up in his garage. On the day that the
vehicles were discovered in his garage, he was in Carletonville where
he works. Although
the house in Thabong is his family home, he is not
always there as he sometimes stays with his wife and children in
Klerksdorp
and other times he is Carletonville. To prove his
alib
i,
he produced a bank statement that showed that he had made some
transactions in Carletonville on the date of the discovery of
the
vehicles. He testified that during his absence, the house in Thabong
is usually looked after by his nephew, Kamohelo. He only
got to know
about the vehicles when Kamohelo called him on the day the police
came and discovered the vehicles. He came back to
Welkom a month
later to perform a traditional ceremony and in that week, the police
came and arrested him.
[10] In convicting
the appellant, the learned Magistrate relied on the evidence of Mr
Moshoaliba, who was a single
witness in respect of the appellant’s
identification. Mr Moshoaliba’s evidence faces two impediments;
first he was
a single witness and secondly his evidence in respect of
the identification of the appellant was not uncorroborated, but faced
destruction at the production of the Bank statements by the
appellant. Cautionary rules apply to evidence of a single witness.
In
R v Mokoena
1982 OPD 79
at para
80 the court held:
"The
uncorroborated evidence of a single competent and credible witness is
no doubt declared to be sufficient for a conviction
by
section 284 of Act 31 of 1917, but in my opinion that section should
only be relied on where the evidence of the single witness
is clear
and satisfactory in every material aspect."
[11] In respect of
the identification of the appellant by Mr Moshoaliba on the day the
vehicles were discovered,
the Appellate Division, as it then was, in
S v Mthethwa
1972 (3) SA 766
(A)
, set out the following
approach:
“
Because
of the fallibility of human observation, evidence of identification
is approached by the courts with some caution.
It
is not enough for the identifying witness to be honest.
The
reliability of his observation must also be tested. This depends on
various factors such as lighting, visibility and eyesight,
the
proximity of the witness, his opportunity for observation, both as to
time and situation; the extent of his prior knowledge
of the
appellant,
the mobility of the scene
;
corroboration;
suggestibility; the appellant’s face, voice, built gait and
dress; the result of identification parades; if any, and
of
course evidence by or on behalf of the appellant.
The list is not exhaustive, these factors or such of them as are
applicable in a particular case, are not individually decisive,
but
must be weighed one against the other,
in the light of the totality of evidence and the probabilities”
[12] The factors
listed in the above paragraph have to be considered in the light of
the totality of evidence
and the probabilities and they are not
individually decisive, see
R v Dladla and Others,
1962 (1) SA
307(AD).
In
casu
, although the second state witness stated
that he knew the Appellant well, and it was in the morning when he
saw him jumping the
wall, his evidence in this respect was not
corroborated by anyone. The appellant’s alibi on one hand was
corroborated by
the Bank statement that depicted transactions in
Carletonville on that particular day. Although it is trite that the
accused bears
no onus to prove his alibi, the appellant went further
and prove it, yet the learned Magistrate rejected it. In
R v
Hlongwane
(1959) 3 All SA 308
(A),
the Appellate Division, as it
then was, gave the following instruction in evaluating the defence of
an alibi:
“
At the
conclusion of the whole case the issues were: (a) whether the alibi
might reasonably be true and (b) whether the denial of
complicity
might reasonably be true. An affirmative answer to either (a) od (b)
would mean that the Crown failed to prove beyond
reasonable doubt
that the accused was one of the robbers.”
[13] Despite the
contrary version by the appellant that he was in Carletonville on the
date in question, the learned
Magistrate rejected the appellant’s
version and accepted Mr Moshoaliba’s version that he had seen
the appellant jump
a fence and running on the day of the discovery of
the vehicles. In his rejection of the appellant’s version, the
learned
Magistrate stated that the Bank Statement depicts
transactions in Carletonville only on 26
th
October 2010
and this was an error as the transaction in Carletonville were made
on 23
October 2020, very same day the cars were
discovered. Also, during cross-examination when asked why he did not
arrest the appellant
on the date of the discovery of the vehicles
since he had seen him, Mr Moshoaliba said he had to go back to his
base station in
Kokstad but he had given information to his
colleagues on the day that the cars were discovered that he had seen
the appellant
jump the fence. This does not make sense and in my
view, the production by the appellant of the Bank Statements
depicting that
the Appellant had made a transaction in Carletonville
on the same day casts doubts on whether the person said to have been
seen
by Mr Moshoaliba jumping a fence from the back of the
appellant’s house into the street was indeed the appellant.
[14] The only link
that the learned Magistrate relied on in convicting the appellant was
that the cars were found
in his home and that Constable Moshoaliba
had seen him run. The appellant’s version and the bank
statement indeed casted
doubt on Constable Moshoaliba’s version
of having seem him in Welkom on 23
rd
October 2020. Further
in the absence of a footage from the mall and the toll gates from
Bloemfontein to Welkom and lack of fingerprints
showing that the
appellant had touched the cars, there was no direct evidence linking
the appellant to the theft with which he
was convicted of in respect
of Count 1.
[15] It is trite
that the State must prove its case beyond reasonable doubt and that
no onus rests on the accused
person to prove his innocence. Further
that where there is doubt, the benefit thereof must be given to the
accused person.
In view of all these factors, it cannot be said
that the State proved its case beyond a reasonable doubt. It follows
then that
this conviction cannot stand.
Ad Conviction 2
[16] In convicting
the appellant on this count, the learned Magistrate relied on the
doctrine of recent possession.
In terms of this doctrine, “…the
court is permitted to make an inference that the possessor of the
property was obtained
in the commission of an offence and in certain
instances was also a party to the initial offence” –
Motwa v S 124/2015 ZA SCA 143
para 8. No evidence by the
complainant was given to the court in respect of the Hilux. The only
link to the appellant was that
it was found in his garage. It was not
proven before the court a quo that the appellant had come into
contact with the vehicle.
No finger prints were lifted from the
vehicle to make this link. When looked against his version i.e. that
he was not in his house
on that day and was not even aware that the
cars were at his garage, the court’s application of this
doctrine was indeed
amiss.
Order
Consequently, I make the
following Order:
1.
The appellant’s
appeal against both convictions is upheld.
2.
Both the appellants’
convictions are set aside.
D.P. MTHIMUNYE, AJ
I concur.
N.S. DANISO, J
Appearances:
For
the Appellant:
Mr JD
Reyneke
Legal
Aid SA
Bloemfontein
Justice Centre
For
the Respondent:
Adv S
Giorgi
Office
of the Director of Public
Prosecutions,
Free State