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[2022] ZAKZPHC 75
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Matshoba v S (42/22) [2022] ZAKZPHC 75 (18 November 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
AR
NO: 42/22
In
the matter between:
MZWANDILE
REUBEN
MATSHOBA APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from
:
the Verulam Magistrates' Court:
The
appeal against conviction and sentence is dismissed.
JUDGMENT
Delivered
on: 18 November 2022
Marion
AJ (Ploos Van Amstel J concurring)
[1]
The appellant was convicted of theft and sentenced in the Verulam
Magistrates’
Court to pay a fine of R10 000 or ten months’
imprisonment, wholly suspended for five years on condition that he
was not
convicted of theft or attempted theft committed during the
period of suspension.
[2]
The appellant was granted leave to appeal against his conviction and
sentence by the
court a quo on the 29
th
of October 2021.
[3]
It is trite that the trial court’s evaluation of the evidence
and acceptance
thereof is presumed, in the absence of any material
misdirection, to be correct. As such an appeal court will not lightly
interfere
with those factual findings, particularly where credibility
findings have been made. The trial court has had the advantage of
seeing
the witnesses in person and has had the opportunity to observe
their demeanour.
An
appeal court will only interfere with such findings when it is
evident that there are demonstrable and material misdirection
of the
trial court or where it is satisfied that they are clearly wrong.
[4]
The appellant was a regional court prosecutor with 20 years’
experience.
His rights to legal representation were explained
to him and he elected to represent himself. The appellant was charged
with one
count of theft in that upon or about the period between the
22
nd
and 24
th
of September 2018 at D[....]
Estate he did unlawfully and intentionally steal the following items:
to wit one black vase with orchid,
one glass Mellerware kettle, one
Logic bar fridge and two side lamps valued at approximately R7 500,
the property and in the lawful
possession of Deborah May Mills. The
appellant pleaded not guilty.
[5]
At the outset of the matter the appellant brought an application in
terms of s 106(1)(
h
) of the Criminal Procedure Act 51 of 1977
(‘the CPA’), that the prosecutor had no title to
prosecute. The appellant’s
application was based on averments
regarding an abuse of process, in that certain documents requested by
him were not given to
him. The court a quo correctly found that the
appellant had not made out a case to show that there was any actual
abuse of process
and that the prosecutor was duly authorized to
prosecute in terms of the certificate by the Director of Public
Prosecutions dated
the 11
th
of November 2020. The
application was dismissed and the matter proceeded to trial.
[6]
The evidence of all the witnesses in the trial form part of the
record and I do not
intend repeating it in this judgment. I shall
however deal with the salient features thereof.
[7]
The first State witness who testified was Deborah May Mills
(‘Mills’),
employed as the General Manager of
D[....]Estate Guest House (‘the estate’), at the time of
the alleged incident. She
testified that the appellant booked into
the estate on the weekend of the 22
nd
to 24
th
September 2018 and was allocated the Papillion room. On the 23
rd
of September the appellant called reception and requested that his
breakfast be left outside the room and he refused house- keeping
to
clean his room. He also came later that same day and requested to
check out earlier. Mills advised him that he would not be
entitled to
a refund. The next day he again requested that breakfast be left on
the table outside the room.
[8]
On the 24
th
of September 2018 the appellant handed in his
keys, paid the sum of R1 320 by credit card and checked out. At about
10h10, Mills
was approached by the cleaning staff namely one,
Thandeka Magwaza (‘Magwaza’) who advised her that there
was no fridge
in the Papillion room which was the room the appellant
had occupied. She then went to inspect the room and established that
the
white bar fridge, two side lamps, a kettle and a black vase with
orchids was missing from the room.
[9]
Mills telephoned the private security company and the South African
Police Services.
She thereafter telephoned the appellant to advise
him about the missing items. The appellant asked her “how this
was possible”
but that he was driving and would call back. The
appellant did return her call and advised her that he would pay for
the missing
items. The next morning Mills emailed a list and the
values of the items to the appellant. Mills was aware that the
appellant did
pay the owner of the estate, one Lauren, but she had no
details regarding the date and amount paid. Mills testified that the
items
stolen were under her control and that the policy of the estate
is that no guest is allowed to remove any of these items.
[10]
Mills stated that an hour after the appellant had checked out Magwaza
informed her about the
missing items. Magwaza was the only other
person aside from the appellant who had access to that room after
having taken the keys
from reception to clean the room.
[11]
Under cross-examination by the appellant Mills
confirmed that the bar fridge and tea station in the appellant’s
room was inside the cupboard unlike some of the other rooms. She was
also shown an email by the appellant confirming that the actual
value
of the items was R4 214 and not R7 500 as claimed by the State. The
State thereafter made an application in terms of s 88
of the CPA to
amend the actual loss to reflect as R4 214 on the charge sheet which
application was granted.
[12]
The appellant put to Mills that that upon his departure from the
estate he was stopped by the
security guards at the exit who searched
his car. Mills testified that this was not the usual protocol. The
duties of the security
guards were only to sign guests in and out of
the estate. The appellant showed Mills the control register form and
alleged that
his vehicle was searched however she denied this and
said it was not the company policy. There was no CCTV footage as the
cameras
were not working. The security guard on that day was no
longer employed by the estate. Under cross-examination Mills also
testified
that it could not have been the cleaners who took the items
as Magwaza only accessed the room after the appellant’s
departure
and she also stated that the appellant’s vehicle was
parked right outside the room.
[13]
The second State witness who testified was Thandeka Biyase (referred
to as Magwaza by Mills)
a house keeper employed at the estate. She
was on duty on the weekend of 22
nd
to 24
th
September 2018 and positively identified the appellant as the person
booked into the Papillion room. She testified that she cleaned
the
appellant’s room and ensured that the fridge was stocked with
water and she checked that the kettle was in working order
and the
tea station was stocked with tea and sugar. Magwaza confirmed that
when she cleaned the room, prior to the appellant’s
check- in,
the fridge, lamps, kettle and vase with orchids were there. It is her
duty to inform the manager on duty (Mills) if
they were not there. On
the 23
rd
of September she knocked on the appellant’s
room door to gain access to clean. He refused her access and passed
her the towels.
When she returned with new towels she saw two mugs on
the table outside the room and knocked on the door. She enquired from
the
appellant if the mugs were from his room, and whether she could
wash them, to which he agreed. She returned with the mugs, knocked
on
the appellant’s room door and left the cups on the table inside
the room. She did not open the cupboards where the fridge
or tea
station was kept. The appellant was in the company of a woman.
[14]
On the 24
th
of September 2018 she was instructed to clean
the room. Upon attending on the appellant’s room, she
established that the
bar fridge and kettle were not there. She called
Mills and advised her of the situation. Mills immediately attended at
the room
and discovered that the fridge, kettle, two lamps and the
vase with orchids were missing. Magwaza testified that Pinkie from
reception
was also called and they both confirmed that the missing
items were nowhere to be found in the appellant’s room.
[15]
Thandeka testified that she was employed at the estate for a period
of six years and had never
seen guests’ motor vehicles being
searched when they departed from the estate. She was adamant that it
was not possible for
anyone else to have access to the room as one
key was with the appellant and the other at reception for the cleaner
to access the
room when she was cleaning. She did not need to use the
keys that weekend as the appellant did not allow her to clean his
room.
She confirmed that the appellant’s vehicle was parked
close to the room and he would have been able to take the items
without
anyone seeing. She also confirmed that none of the cleaners
own a vehicle and it would not be possible for them to leave with the
stolen items without being seen. She further testified that the duty
of the check-in manager, who was Pinkie at the time, would
be to take
the appellant to his room and to show him all the amenities including
the fridge, kettle and tea station. Under cross-examination
she
maintained that it was standard procedure for the manager to show the
guests to their rooms and explain where the amenities
were situated.
This witness agreed with the appellant that none of the goods were
found in his possession but reiterated that the
reason for same was
that his vehicle was not searched. She also confirmed that the guests
attending a wedding at the estate would
not have had access to the
appellant’s room.
[16]
Pinkie Ngcongo (‘Pinkie’) testified on behalf of the
State. She was employed at the
estate and was on duty on the 22
nd
to 24
th
September 2018. She works at the main reception
and signs in guests and thereafter takes them to their rooms and
shows them where
the fridge, kettle, tea station, remotes etc are
kept. She confirmed checking in the appellant and taking him to his
room and showing
him where all the amenities were in his room. The
appellant denied this and put it to Pinkie that she had been coached.
[17]
The appellant then applied for a discharge in terms of s 174 of the
CPA. The application was
refused by the court a quo which found that
there was a prima facie case for the appellant to answer.
[18]
The appellant testified in his defence. He testified that he booked
into the estate from the
22
nd
to 24
th
September
2018 and was given the Papillion room. No one showed him to his room
or the amenities. He got the keys and went looking
for the room. He
was telephoned by his tiler Bongani who was doing some work for him
at his home in Verulam and he left the estate
and went home to sort
out some issues. When he got home he realized that he did not have
the keys to his room. He returned to the
estate at 19h00. When he
returned he realized that there were many guests and that a wedding
was to take place. He returned to
his room after walking around the
estate.
[19]
The following day, which was a Saturday, he woke
up and had an English breakfast at reception. After breakfast
he
approached the receptionist and told her that he wished to check out
early as there were too many wedding guests and he was
feeling sick
and uncomfortable. On the Sunday after he ate breakfast, paid and
checked out of the estate. At the exit he was stopped
by security
guards who searched his vehicle and told him this was standard
procedure. He thereafter left the estate. As he drove
off he received
a call from a lady who told him about the missing items and he told
her he could not understand how they went missing.
He advised her
that he would call her back as he was driving to Cape Town. The lady
also informed him that she would call the police
and he told her to
go ahead and allow the police to investigate. The lady also advised
him that he must pay R7 500 for the missing
items. The appellant
responded by informing her that this was a lot of money and he would
wait for the police to investigate. He
was subsequently interviewed
by a few police officers. The summons to appear in court was served
on him in 2019 and as he had promised
the estate he would call them
after the investigation he decided to call them.
[20]
He subsequently went personally to the estate and spoke to one Lauren
who showed him correspondence
from the chief prosecutor as well as
the insurance company. After reading the documents he presented his
card to Lauren to swipe
for the actual loss which was R4 214. He
subsequently received a WhatsApp message from the estate with regards
to the additional
excess amount of R1 000 which was paid by the
estate to the insurance company. He returned to the estate and made
payment of the
additional amount.
[21]
Under cross-examination he testified that he made payment for the
items, which he did not steal,
because his name was on the line. He
made the payment freely and voluntarily and did not inform Lauren
that the payment was made
without prejudice. It was clear from his
cross-examination that various aspects of his evidence were never put
to the State witnesses.
The appellant also testified that he made the
payment because at some stage he left the room unattended. He had no
answer as to
how he would have boiled the water to make a drink if
there was no kettle in the room. This version was also not put to the
witness
Magwaza. He also testified that he could not recall the items
being in the room as it was a long time ago. He also had no response
as to why he did not put his version about leaving the estate and
going back to Verulam to the State witnesses. The appellant stated
that he went to reception and ordered his breakfast to be brought to
his room. This was in contradiction to his evidence in chief
and was
also not put to the witnesses.
[22]
In assessing the evidence the court a quo found that the following
was common cause namely; the
appellant booked into the estate on the
weekend of the 22
nd
to 24
th
September 2018; he
was given keys to the room, he spent two nights in the room, he was
called by a lady after his departure from
the estate regarding
certain stolen items and without hesitation offered to pay what was
due for the loss of the items; he paid
freely and voluntarily the
total amount of R5 214 to the estate; the list of stolen items
as per the charge sheet; and that
the items belonged to the estate.
[23]
The court a quo found that the State witnesses were credible and that
there were no material
contradictions in their evidence. Their
evidence corroborated each other’s evidence in material
aspects. The appellant on
the other hand gave different versions
whilst testifying and under cross-examination. His versions were
never put to the State
witnesses. One clear aspect of his
contradictory version was that he put it to Magwaza that her
colleagues may have stolen the
items and that the wedding guests had
access to his room and may have stolen the items. Both these versions
were disputed by her.
Magwaza confirmed that only the guests had
access to their own rooms and on the appellant’s own admission
his room was not
cleaned by the cleaners. The court a quo in
evaluating the appellant’s evidence found numerous
inconsistencies and contradictions.
The appellant did not dispute
that his vehicle was parked close to his room. The probability that
he would have been able to take
the items and put them in the boot of
the vehicle without anyone seeing him is more than likely.
[24]
Our courts have articulated in many judgments that
once a critical and detailed examination of the evidence
has been
done of all the components, a court should step back and observe the
evidence in totality. The court a quo properly evaluated
all the
evidence before it and analysed the contradictions, discrepancies and
improbabilities.
[25]
It is trite that the onus rests on the State to
prove the appellant’s guilt beyond a reasonable doubt.
Theft
has been defined as the unlawful and intentional appropriation of
another’s property with the intention to permanently
deprive
the person entitled to possession of the property. The appellant’s
version cannot be rejected only on the basis that
it is improbable
but only once the trial court has found on credible evidence that his
explanation is false beyond a reasonable
doubt. If the appellant’s
version is reasonably possibly true he is entitled to an acquittal.
[26]
The State relied on circumstantial evidence to prove its case against
the appellant. The two
cardinal rules in reasoning by inference are
that the inference sought to be drawn must be consistent with all the
proved facts,
and the proved facts should be such that they exclude
every reasonable inference from them save the one sought to be
drawn.
[1]
This court is
cognisant of the fact that the appellant was willing to pay for the
items immediately after receiving the first
call from Mills. Further,
pursuant to receiving the summons he went to the estate and settled
payment for the items and returned
to pay the excess for the
insurance. The trial court found that this action by the appellant is
clearly not indicative of a reasonable
and innocent person.
[27]
The court found that the appellant’s version
could not reasonably possibly be true. It did not misdirect
itself in
any material way, nor am I satisfied that its findings are clearly
wrong. There is therefore no basis for interfering
with them. The
appeal against the conviction can therefore not succeed.
[28]
It
is trite that an appeal court may only interfere with a sentence if
it is of the view that such sentence is vitiated by an irregularity,
misdirection or where there is a striking disparity between the
sentence and that which the appeal court would have imposed
had it been the trial court.
[2]
The trial court took into account the factors as set out in
S
v Zinn
[3]
namely;
the crime, the offender and the interests of society. The court gave
due attention to the appellant’s personal circumstances.
The
appellant’s conduct was contrary to what was expected of a
prosecutor employed by the National Prosecuting Authority
and the
court correctly viewed this as an aggravating factor. The court
considered that the appellant was a first-time offender
and that he
had paid for the stolen items thus mitigating the loss to the
complainant. I am inclined to agree with the State that
the sentence
imposed on the appellant erred on the side of leniency. There is no
appeal by the state against the sentence, and
I see no basis for
interfering with it.
Order
[29]
In the result, I propose the following order:
The
appeal against conviction and sentence is dismissed.
.
Marion
AJ
Ploos
Van Amstel J
Appearances:
For
the Appellant
: Mr Mzwandile
Reuben Matshoba
Instructed
by
: Appeared in person
Durban
For
the Respondent
: Mr Moolman
Instructed
by
: Director of Public
Prosecutions
Durban
Date
of Judgment
: 18 November
2022
[1]
R
v Blom
1939
AD 188
at 202-203.
[2]
S
v Sadler
2000
(1) SACR 331 (SCA).
[3]
S v
Zinn
1969 (2) SA 537
(A) at 540G-H.