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[2021] ZAGPPHC 362
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Tshabalala v S (A195/2020) [2021] ZAGPPHC 362 (31 May 2021)
I
N
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:
A195/2020
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
FANA
ELIAS
TSHABALALA
Appellant
and
THE
STATE
Respondent
JUDGMENT
THIS
JUDGMENT HAS BEEN HANDED DOWN REMOTELY AND SHALL BE
CIRCULATED
TO THE PARTIES BY WAY OF EMAIL.
I
TS DATE AND TIME
OF HAND DOWN SHALL BE DEEMED TO BE 31 MAY 2021 AT
1
2H00.
Introduction:
1
Originally there were two accused persons
in this matter before the
trial court. Accused 2 was discharged on a Section 174 Application
brought by his legal representative
at the close of the State's case.
2
On 24 May 2018 and in the Pretoria Regional
Court, Accused 1, the
Appellant in this matter was found guilty of 2 charges, namely:
Count
1 - Robbery with aggravating circumstances, to which the Appellant
was sentenced to 15 years imprisonment; and
Count
2 - Possession of property (to the value of R17 000, 00) in
contravention of Section 36 of the General Law Amendment Act,
Act 62
of 1955 (Possession of suspected stolen property), to which he was
sentenced to 5 years imprisonment.
3
The trial court did not order that the
sentences should run
concurrently. The Appellant was also found unfit to possess a
firearm. The Appellant was represented by Legal
aid Counsel at the
stage of conviction and sentencing.
4
On 29 June 2020 leave to appeal was granted
on conviction and
sentence only in respect of the second count.
The
Evidence:
5
I shall give a brief overview of the
evidence in this matter,
concentrating more on the evidence relating to the second charge.
6
On 20 July 2015 a filling station in
Pretoria was robbed. A firearm
was used during the commissioning of the crime. A drop safe was
robbed, which drop safe was found
on the back of a cream-white Nissan
200 LDV bakkie the Appellant was driving shortly before his arrest.
7
The arresting officers testified that
whist on duty in Mamelodi in
the early morning hours, they got a call to look out for a
cream-white Nissan 200 LDV bakkie without
a numberplate that was
driving at a high speed. The bakkie turned off and they followed it.
The Appellant, who was driving, lost
control over the bakkie and it
went into a ditch and collided with a concrete wall. The Appellant
and his accomplice got out and
ran off. The two officers chased them
and the Appellant was caught by one of the officers. His accomplice
got away. The arresting
officers discovered a safe on the back of the
bakkie. The bakkie was later towed away and booked into Pretoria-West
vehicle pound.
8
They later heard on the radio that a
cream-white Nissan LDV 200
bakkie was used in the robbery of the filling station. The next day
the financial manager employed by
the filling station confirmed that
the safe found on the back of the bakkie was the safe robbed from the
filling station.
9
Both the arresting officers testified
that they saw the Appellant
driving the bakkie. On the trial record is noted at pages 50 and 63
that both the arresting officers
saw him getting out of the vehicle
and running away, whereafter he was apprehended by the one of them.
10
The Appellant testified that he was walking back from
a social when
he was approached by the Police, assaulted and arrested. He knows
nothing of the armed robbery or the bakkie. On
being questioned upon
his arrest, he told the police that he was
"only
the
driver'
and knew nothing about the safe or the bakkie.
During trial he testified that he knew nothing about the safe or
bakkie.
He
even goes as far as saying that he cannot drive
Issues
to be decided
by Court:
11
Whether the Court a quo erred in convicting the Appellant
on the
second charge of which the elements are the following:
-
Unlawful possession of the Nissan LDV 200 bakkie by the Appellant;
-
Reasonable suspicion that the Nissan LDV 200 bakkie was stolen;
-
No satisfactory account of such possession given by the Appellant.
12
Whether the Appellant received a fair trial in respect
of the second
charge and whether the sentence which was imposed was appropriate
under the circumstances?
The
applicable l
aw:
13
Section
36 of the General Law Amendment
Act,
Act 62 of
1
955
reads as follow:
"...
any person found in possession of any goods
...
in regard to which there is
a
reasonable suspicion that
they have been stolen and is unable to
give
a
satisfactory account of such possession shall be guilty of an
offenc
e
..."
14
Section
23(a) of Act 51 of
1
977
reads as
follow:
"23.
On
the
arrest
of
a
person, the
person making
the
arrest
may
-
(a)
If he is
a
peace officer, search the
person
arrested and seize any article
referred to in section 20 which
is
found in the
possession
of or in the
custody or under the control of the person arrested
..."
15
In
President of the Republ
i
c of South
Africa
and Others v South
African
Rugby
Football
Union
and
Others
2000
(1)
SA 1
(CC)
(1999
(10)
BCLR
1
059
at
36J
-
37E
and
1089E
-
1
0908
(BCLP):
"[61]
The
institution of cross-examination not only
constitutes
a
right, it
also
imposes
certain
obligations.
As a
general
rule it
is
essential,
when it
is
intended
to suggest
that
a
witness
is
not
speaking
the truth on
a
particular
point
to direct
the
witness'
attention
to the fact by
question put
in
cross-examination
showing that the imputation
is
intended
to be made,
and
to
afford
the
witness
an
opportunity,
while
still in
the
witness
box.
of giving
any
explanation
open
to the
witness
and
of defending
his or her
character.
If
a
point
in dispute
is
left
unchallenged
in
cross-examination, the
party
calling
the
witness
is
entitled
to
assume
that the
unchallenged witness' testimony
is
accepted
as
correct.
This
rule
was
enunciated by the House of Lords in
Browne v Dunn [(1893)] 6 R 67
(HL] and
has
been adopted
and consistently by our Courts.
[62]
The rule
in Browne
v Dunn
is
not
merely
one of professional
practice
but
"is
essential to fair
play and fair dealing with witnesses
..."
[63]
The
precise
nature
of
the imputation
should be made
clear
to the
witness
so
that it
can be met
and destroyed
…
particularly where the imputation
relies
upon
inferences
to
be drawn
from
other
evidence
in
the proceedings.
It should
be
made
clear
not
only
that
the
evidence
is
to
be
challenged
but
also
how
it
is
to
be
challenged.
This
is so
because
the
witness
must
be given
an
opportunity
to
deny the challenge,
to calf
corroborative
evidence,
to qualify
the evidence
given
by
the
witness or others
and to
explain
contradictions
in
which reliance
is
to be
placed."
16
Doma v
S (2012/A447)
[2013] ZAGPJHC
1
1
6 (21 May 2013)
the
learned Judge Sutherland said
the
following:
"36.
Section
36 is
a
quintessential
example
of
what might
be
called
a
'policeman's case'.
The
purpose
of the section
is
to
afford
an alert police
officer the right
to lawfully
stop
and interrogate
a person
who is honestly
and
reasonably
suspected
by
the
police
officer
of
wrongdoing.
It is not
a
device
to circumvent
evidential problems
on
a
charge of theft.
It is
quite
unlike,
for
example,
the crime
of assault
with
the intent
to do grievous
bodily
harm,
where, if
it is unproven
that the accused
had
a requisite
specific
intent,
the scale
of wrongdoing
can be
ratcheted
down
to common
assault.
The
offence
created
in
terms
of
Section
36 is not a logic progression
from
theft.
It is an artifice conceived by
the
legislature
to address
a different
set of circumstances,
and simply
for
policy
reasons
is it,
in
terms
of Section
264 of the
CPA,
declared
to be
a competent
verdict
on a charge
of theft."
17
In
S v
Rabie
[1975] 4 All SA 723 (A) 724; 1975 (1) SA 855 (A) 857 E-F
and
S v Pillay [
1
977] 4 All SA 713 (A) 717;
1
977
(4) SA 531 (A) 535 E-G
,
the
Court
remarked
that
punishment
is pre-eminently
a matter for the discretion
of the trial
Court.
Sentence
should
only
be altered
(by this
Court)
if the trial
Court
did
not exercise
i
ts
discretion judicially
or
properly.
Application
of the Law
to the evidence:
18
The State called the two arresting police officers. Both
testified
that they saw the Appellant driving the Nissan LDV 200 bakkie (pages
50 and 63 of the record). They saw the Appellant
exiting the Nissan
LDV 200 bakkie. The officer who caught the Appellant after chasing
him, says that he did not lose sight of him
whilst chasing him. The
arresting officers and the Appellant testified that the street was
quiet, and the Appellant was the only
one there. It was past 02h00 in
the morning.
19
The Appellant's evidence is that he knows nothing about
the bakkie.
On his arrest he said he was
"only
the driver
and knew nothing of the bakkie".
During cross-examination
the Appellant had the chance to tell the Court where he got the
bakkie and whether he was in lawful possession
thereof. He had a
chance to clarify any ambiguities. instead he chose to deny having
any knowledge of the bakkie that the two officers
saw him driving and
getting out of. During trial he stuck to a bare denial. It is trite
that an offence under section 36 of the
of the General Law Amendment
Act, 1955 (Act 62 of 1955) is a competent verdict to theft. Theft is
an ongoing crime. The thief does
not necessarily need to be caught
red handed.
20
The vehicle was driven at high speed and ran into a ditch
and
ultimately hit a concrete wall. The Nissan 200 LDV did not have any
number plates and was used in an armed robbery. The robbed
safe was
found on the back thereof. The Appellant and his accomplice abandoned
the vehicle.
All
of this goes in against the reasonable behaviour of the legal owner
or possessor of a motor vehicle. The police officers quite
rightly
had a suspicion that the vehicle was stolen.
21
Both officers were asked whether they knew who the owner
of the
Nissan 200 LDV bakkie was and they both replied in the negative.
22
The Magistrate in the Court a quo was under the impression
that the
vehicle spoken about during trial was hi-jacked during the commission
of the armed robbery. The make and description of
the two vehicles
differ. The vehicle that was hi-jacked during the armed robbery was
found abandoned shortly after the robbery.
The Appellant was charged
in terms of Section 36 of Act 62 of 1955 in respect of the Nissan 200
LDV bakkie. The police had a reasonable
suspicion that the bakkie was
stolen. This Court can find no grounds as to why the Appellant should
be acquitted on this charge.
The correct vehicle was properly
identified in the charge sheet.
23
In respect of sentence, this Court has to place on record
that the
Appellant's first transgression was in 1999, at the age of 17 years.
He was thereafter convicted of another 11 charges
of theft between
2000 and 2011. In 2006 he was convicted of robbery and already
declared unfit to possess a firearm. In 2006, and
under a different
name, he was found guilty of malicious damage of property and assault
with the intent to cause grievous bodily
harm. On the same occasion
he was found guilty of possession of an unlicenced firearm and
ammunition. The Appellant is no stranger
to the criminal justice
system.
24
The Appellant is hardly a candidate for rehabilitation.
The Court of
first instance only imposed a sentence of 15 years imprisonment in
respect of the armed robbery with aggravating circumstances.
Having
considered all the factors placed before it, it rightfully decided to
impose another 5 years imprisonment in respect of
charge 2. The
sentences in respect of two charges should not run concurrently.
25
This Court can find no compelling reason to alter the
sentence
imposed by the court a quo.
Conclusion:
26
This Court is satisfied that the Appellant had a fair
trial and the
Court a quo did not err in finding the Appellant guilty, or imposing
sentence on charge 2. The appeal against conviction
and sentence on
charge 2 cannot succeed.
Order:
27
The Appeal on conviction and sentence should be dismissed.
D
PICK
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
I
agree, and it is so ordered.
MALI
N P
JUDGE
OF THE HIGH COURT
PRETORIA