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2023
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[2023] ZAFSHC 412
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Siwahla and Another v S - Appeal (A90/2023) [2023] ZAFSHC 412 (23 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: A90/2023
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
LINDANI
ROBERT SIWAHLA
First
Appellant
THABISO
MOKHELE
Second
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, ADJP
et
JORDAAN, AJ
JUDGMENT
BY:
REINDERS, ADJP
HEARD
ON:
2 OCTOBER 2023
DELIVERED
ON:
23 OCTOBER 2023
This
judgment was delivered in open court and subsequently distributed to
the parties by electronic mail communication.
[1]
The two appellants were arraigned in the Regional Court on a main
charge of tampering, damaging
or destroying essential
infrastructure in contravention of the Criminal Matters Amendment
Act
[1]
and in the
alternative thereto a charge of theft of copper cable belonging to
the Dihlabeng Municipality in Bethlehem. Both
appellants were
acquitted on the main count, however they were convicted on the
alternative count of the theft of 265m of copper
cable. Both
appellants were sentenced to six years’ imprisonment in terms
of Sec 276(1)(B) of the Criminal Procedure Act
[2]
.
The magistrate made no order in terms of sec 103 of the Firearms
Control Act.
[3]
[2]
Both appellants applied for leave to appeal against their convictions
and sentences imposed but
such leave was refused. On 17 April 2023
the High Court on petition granted leave to both appellants to appeal
against their respective
convictions and sentences
.
[3]
The evidence tendered by the State revealed that police officers,
acting on information, proceeded
to Loch Athlone Dam where they
observed the appellants digging and removing copper cable. The cable
so found were four m long.
The copper cable belonged to the
municipality. Further evidence indicated a 265m long furrow from
which 261m of copper cable was
missing.
[4]
The learned magistrate considered the evidence by the State to be
reliable and found the state
witnesses to be credible. The
appellants who testified were viewed by the magistrate not to be good
witnesses and he found
that their evidence stood to be rejected as
not reasonably possibly true. It is trite that the power of a court
of appeal to interfere
with credibility findings of a trial court is
limited.
[4]
[5]
Having listened to the arguments, I was satisfied that the magistrate
did not err in this respect
and there is no basis upon which we can
or should interfere with the court’s credibility findings.
[6]
The finding by the learned magistrate that the only conclusion to be
drawn on the evidence before
him was that the appellants had stolen
the remainder of the cable as well is, however, on a different
footing. Only 4 meter of
cable was found and the evidence revealed
that digging had taken place over an extended period. There is no
evidence on when exactly
the remainder of the cable, thus 261m, were
removed. In my view it is not the only conclusion that can be drawn
from the evidence
that the appellants had stolen the cable. It was
the duty of the State to prove or adduce evidence in this respect and
it failed
to do so. Mr Pretorius on behalf of the State responsibly
did not attempt to convince us otherwise. In my view therefore the
conviction
had to be amended to theft of 4 meter of cable only.
[7]
The appellants were sentenced for the theft of 265m of cable instead
of 4m. The sentences therefor
have to be set aside and reconsidered.
There is no doubt, as stated by the magistrate, that the offence is
serious and prevailing
in the jurisdiction of this court. It goes
without saying that the monetary value of 4m of cable is considerably
less than that
of 265m. Having considered the appellants’
personal circumstances and in particular that fact that both
appellants had spent
one year in custody awaiting trial, we
considered an appropriate sentence to be a suspended sentence.
[8]
After hearing the appeal and in view of our intention to set aside
and replace the custodial sentence
of six years with a suspended
sentence, we therefore granted the following order:
ORDER:
1.
The appeal against conviction succeeds to
the extent that the Appellants should only have been convicted of
theft of four (4) and
not two hundred and sixty-five (265) m of
cable.
2.
The conviction is amended and replaced by
the following order:
“
Accused
One and Accused Two are found guilty of theft of four (4) m of
cable.”
3.
The appeal against sentence is upheld and
the sentence imposed by the court a quo is set aside and replaced by
the following order:
“
Accused
One and Accused Two are each sentenced to twenty-four (24) months’
imprisonment wholly suspended for a period of five
(5) years on
condition that the Accused is not convicted of theft committed during
the period of suspension.”
4.
The sentences in paragraph 3 above are
deemed to have been imposed on the 26
th
of April 2022.
5.
The consequential orders in terms of
Sec
103(1)
of the
Firearms Control Act 60 of 2000
are confirmed.
C
REINDERS, ADJP
I
concur.
M
JORDAAN, AJ
On
behalf of the Appellants:
Mr P
van der Merwe
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the Respondent:
Adv D
Pretorius
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
18 of 2015
[2]
51
of 1977.
[3]
60 of 2000.
[4]
See:
S
v Francis
1991 (1) SACR 108(A).