Riba v S (74/2009) [2009] ZASCA 111; [2010] 1 All SA 331 (SCA) (23 September 2009)

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[2009] ZASCA 111
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Riba v S (74/2009) [2009] ZASCA 111; [2010] 1 All SA 331 (SCA) (23 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 74/2009
No precedential significance
HARRY NKWANE RIBA
Appellant
and
THE STATE
Respondent
Neutral citation:
Riba
v State
(74/2009)[2009] ZASCA 111 (23 September 2009)
Coram:
Mthiyane,
Mhlantla JJA and Wallis AJA
Heard:
11
September 2009
Delivered:
23
September 2009
Summary:
Theft
─ a policeman and his colleague allegedly retained suspected stolen
goods ─ failed to enter them in SAP 13 register and
to keep in a
store ─ goods entered in the register two days later after
complaint by suspect ─ whether intention to steal established.
A
ppeal
against sentence dismissed but 4 years imprisonment imposed by High
Court antedated to 1 November 2008, to take into account
the
appellant’s earlier incarceration of ten and a half months prior to
hearing of appeal before High Court.
___________________________________________________________
ORDER
On appeal from:
Transvaal
Provincial Division (Du Plessis J & Davel AJ sitting as court of
appeal.)
1 The appeal against conviction
and sentence is dismissed.
2 The sentence of 4 years
imprisonment is antedated to 1 November 2008.
___________________________________________________________
JUDGMENT
MTHIYANE JA (MHLANTLA JA and
WALLIS AJA concurring):
[1] The appellant, a police
inspector and his colleague, a reserve constable, were arraigned in a
regional court in Mamelodi on
charges of corruption, in contravention
of s 1(b)(ii) of the now repealed Corruption Act 94 of 1992, and
theft. They were convicted
as charged and sentenced to 15 years’
imprisonment, both counts taken as one for purposes of sentence.
[2] Their appeal to the High
Court (Du Plessis J and Davel AJ concurring) succeeded in part.
Consequently the conviction and sentence
on the charge of corruption
was set aside but the conviction for the theft was confirmed and a
sentence of 4 years’ imprisonment
was imposed on both the appellant
and his colleague. The appellant, was granted leave by the High Court
(Botha J and Du Plessis
J) to appeal to this court against both
conviction and sentence. No appeal was lodged by the appellant’s
co-accused.
[3] The facts relevant to the
theft charge are the following. On 8 September 2001 the appellant and
his colleague were on patrol
duty in Mamelodi. In the course of that
morning they went to the residence of the complainant, Mr Johannes
Mapoba, who was renting
a room in Mamelodi. After the complainant had
given them permission to do so, they searched his room and found a
mini hi-fi set
and 80 CD’s (compact audio discs). The police asked
the complainant for receipts for the above goods but he was unable to
produce
them. The CD’s did not belong to him but to a Mr Neville
Shirinda and receipts for the hi-fi set, which was the only item that

belonged to him, had been lost as he had bought it a long time ago.
[4] The goods were then seized by
the police allegedly on the suspicion that they had been stolen and
the complainant was asked
to accompany them. His evidence was that he
understood that he was being arrested, but the evidence of the
appellant and his co-accused
was that they found a firearm in his
possession and no licence was produced so that they decided to arrest
him for possession of
an unlicenced firearm. Be that as it may the
complainant produced his firearm licence whilst in the police van so
any detention
for that reason fell away. What happened immediately
thereafter is relevant to the charge of corruption and is referred to
herein
solely for the sake of completeness. While the complainant was
in the police van an amount of R400 was allegedly demanded from him.

He testified that he had no money on him but indicated that his
uncle, Mr Frank Maleka, might be able to help. He was then taken
to
his uncle in Groenkloof who provided the required cash. Upon their
return the police dropped him off at a certain suburb in
Pretoria,
without being charged. The evidence of the appellant and his
co-accused was that they took the complainant with them
because he
said that he would take them to his uncle who owned the goods, but
the uncle was not at the place where they were taken
so they left the
complainant there and gave the person they found there their contact
details with a message for the uncle to contact
them. The goods
seized from the complainant were then taken to a satellite police
station in Mamelodi where the appellant and his
colleague handed them
over to Inspector Tlobatla, who kept them in a locker where police
officers kept their personal belongings.
[5] On the following day, 9
September 2001, the complainant went to Mamelodi police station to
lay a complaint concerning the seized
items. A docket was duly opened
and the case was assigned to Captain Nwamati Phillenion Morudi (then
an Inspector). His first port
of call was the appellant and his
colleague, as his initial investigation revealed that they were the
officers who had taken the
complainant’s goods and they had failed
to enter them in the SAP 13 register and keep them in the store.
Goods seized from suspects
were, as a standard police procedure,
entered in the SAP 13 register and kept in a store at the main police
station in Mamelodi.
The satellite station did not keep an SAP 13
register and had no store for that purpose.
[6] On the morning of 10
September Captain Morudi tried to contact the appellant and his
colleague, but found that they were doing
night duty. Morudi then
left a message at the station that he was looking for them. They
received the captain’s message at 20h00
and went to his house at
22h00. After they left his house and in the early hours of 11
September they fetched the goods from the
satellite station and took
them to the main station in Mamelodi. They handed them to Inspector
Nkombi who was in charge of the
SAP 13 register and the store. Nkombi
entered the goods in the register and recorded that they had been
found abandoned in the
street. Thereafter, according to Nkombi, the
appellant appended his signature to the note in two places separated
by Nkombi’s
own notes. It bears mention, however, that while the
entry in the Occurrence Book (OB) shows that the goods were booked in
the
early hours (04h50) on 11 September the entry in the SAP 13
register reflects the date as 10 September. This apparent conflict
does not, however, detract from the fact that the goods were only
booked two days after they were taken from the complainant.
[7] The issue for decision in
this appeal is whether the appellant (and his colleague) intended to
steal the goods in question.
The answer to that question depends upon
the assessment of the evidence as a whole, the drawing of inferences
from the proven facts
and the subsequent conduct of the appellant and
his colleague and, more importantly, what was said by the appellant
and his colleague
to Inspector Tlobatla, Captain Morudi and Inspector
Nkombi at the relevant times.
[8] There are strong indications
in the evidence, which point irrefutably to the conclusion that when
the appellant and his colleague
took the complainant’s goods to the
satellite station and left them there, they intended to appropriate
them.
[9] First, there is a complete
absence of any convincing explanation why the goods were taken to the
satellite station and not to
the Mamelodi Police Station, where they
would have been entered in the SAP 13 register and kept in a store
with the other exhibits
and goods seized from suspects. The appellant
and his colleague, who were both experienced members of the police,
must have known
that no SAP 13 register was kept at the satellite
station and that there was no store there to keep such goods. When
they left
them at the satellite station they knew they had not been
booked or placed in an authorised store.
[10] Second, when the goods were
handed to Inspector Tlobatla he was told by the appellant and his
colleague that they belonged
to them. No mention was made of the fact
that the goods were seized from a suspect. In his evidence Tlobatla
was adamant that if
he had known that the goods had been seized from
a suspect he would not have agreed to keep them, but would have asked
the appellant
and his colleague to take them to the main station in
Mamelodi. There, they would have been entered in the SAP 13 register
and
kept in a store, normally reserved for exhibits and goods seized
from suspects. It is significant the Tlobatla was called as a witness

for the defence and yet when he said this no attempt was made to
challenge the evidence or his recollection.
[11] The explanation given by the
appellant and his colleague for not taking the goods to Mamelodi
Police station is far from convincing,
as I have already indicated.
They advance two reasons for their failure to take the goods to the
main police station. The first
is that they were extremely busy on
both the 8
th
and the 9
th
and could not find time to have the goods entered in the SAP 13. As
they were in a hurry to attend to another complaint they dropped
the
goods off at the satellite station. Their intention throughout was to
fetch the goods subsequently and to have them properly
entered into
the SAP 13 register. This sudden spate of complaints, which the
appellant and his colleague found themselves embroiled
in, is not
backed up by any proof. The bald allegation not supported by any note
of such complaints in the occurrence book carries
very little weight,
if any. The appellant and his colleague were using a police van on
that day. There is no reason why they could
not have driven quickly
to the police station to drop off the goods at the main station. The
second excuse, that they were looking
for the owner of the goods whom
they failed to trace at Waterkloof, where the complainant had
directed them, is a weak point. It
is not surprising that it was not
pressed by counsel during argument.
[12] The appellant said that when
they received Captain Morudi’s message on 10 September they were
not told why they had to contact
him. They went to his home but he
did not tell them why he was looking for them. Instead, Morudi asked
them to meet him at the
office the next morning. The appellant said
it is only after they had seen Morudi that they, for the first time,
found time to
fetch the goods from the satellite station and to take
them to the main station. Again, while they were there, the appellant
and
his colleague received an urgent complaint and could not wait for
Nkombi to complete the SAP 13 register. Accordingly, the appellant

says he signed the register in blank and left it to Nkombi to
complete the entry. The appellant and his colleague said that they

told Nkombi that they had seized the goods and were waiting for the
owner to identify them.
[13] The appellant and his
colleague’s version raises more questions than answers. It is not
clear why Nkombi would not record
on the SAP 13 where or from whom
the goods were seized, if he had been told this. There is also no
explanation why he would record
that the goods had been found
abandoned in the street if he was told otherwise and given the name
of the person from whom they
had been seized. Nkombi was adamant that
what he recorded is what he was told by the appellant and his
colleague.
[14] Third, and finally, there is
the question of the night visit to Captain Morudi’s house. Morudi
testified that he left a message
that he was looking for the
appellant and his colleague in connection with the goods they had
seized. So, when they came to his
home during the night of 10
September they knew why he was looking for them and Morudi further
said they told him that they had
registered the goods in the SAP 13
register and that the goods were in the store.
[15] Having regard to the above
salient facts it is difficult to come to any conclusion other than
that the appellant and his colleague
had not intended to enter the
goods in the SAP 13 register. The reason why the goods were
ultimately booked in and registered in
the SAP 13, is probably
because the word had spread to the appellant and his colleague that
Captain Morudi was now investigating
the matter. The game was up. The
goods were eventually booked some two days later to cover up their
failed attempt to appropriate
them. When their scheme went awry they
resorted to concocting a story that the goods had been found
abandoned in the street. The
appellant endeavoured to explain away
the entry and to refute Nkombi’s version by saying that he had left
a piece of paper with
Nkombi in which he gave him the name and
address of the complainant. This was an equally poor effort to
sustain an inherently improbable
tale.
[16] There is, however, one
further aspect the appellant is not able to explain. How did his
signature come to be appended in the
SAP 13 register below a note to
the effect that the goods were found abandoned in the street? The
appellant tried to meet this
hurdle by saying that he had signed the
SAP 13 in blank and left it to Nkombi to complete. This, coming from
a policeman of many
years standing has only to be stated to be
rejected. He was in other words giving Nkombi a
carte
blanche
to write
whatever he liked. In addition he was unable to explain how he
managed to sign his name twice and leave exactly the right
amount of
space between the two for Nkombi to insert whatever he was going to
invent for that purpose. This story, to my mind,
is so bereft of any
truth that it can safely be rejected as false beyond reasonable
doubt.
[17] In my view the conclusion is
inescapable that Nkombi recorded what he was told by the appellant
and his colleague, namely that
the goods were found abandoned on the
side of the road. That story is undoubtedly false and inconsistent
with the appellant and
his co-accused acting honestly in relation to
these goods.
[18] The above factors taken
together point unavoidably to one conclusion, namely that the
appellant and his colleague intended
to appropriate the goods and
that they left them at the satellite police station with the
intention permanently to deprive the
complainant of his rights
therein. This court has held that:
‘
[t]heft, in
substance, consists of the unlawful and intentional appropriation of
the property of another (
S
v Visagie
[1990] ZASCA 124
;
1991 (1) SA 177
(A) at 181I). The intent to steal (
animus
furandi
)
is present where a person (1) intentionally effects an appropriation
(2) intending to deprive the owner permanently of his property
or
control over his property, (3) knowing that the property is capable
of being stolen, (4) knowing that he is acting unlawfully
in taking
it (Milton
South
African Criminal Law and Procedure
vol II 3
rd
ed at 616).’ (
S
v Boesak
[2000] ZASCA 112
;
2000 (1) SACR
633
(SCA) at para 97.)
Having regard to the above
principles, I am satisfied that on the evidence, when the appellant
and his colleague heard that Morudi
was looking for them in
connection with the goods they had seized, they attempted to cover
their tracks by entering them in the
SAP 13 at the main police
station and furnishing Nkombi with a false explanation for the
possession of the goods. Accordingly the
intention to steal was
clearly established and the appellant was correctly convicted of the
theft of the goods seized from the
complainant.
[19] The appeal against sentence
is without merit. The only point advanced in argument in this regard
is that the court below misdirected
itself by failing to have regard
to the fact that the appellant would lose his job if a custodial
sentence were imposed. The argument
is misconceived. This aspect was
fully considered by Du Plessis J. In the course of his judgment the
learned judge says:
‘
He [referring to
the appellant] had served in the police force for a substantial
period and it is important to have regard thereto
that, if he is
sentenced to direct imprisonment he will probably lose his job.’
It surely cannot be clearer than
that.
[20] It is however proper to have
regard to the fact that this matter has been outstanding for a long
time and that the appellant
was at some point in custody for some ten
and a half months (30/11/06 ─ 19/10/07) before he was released on
bail pending the
appeal in the High Court. Through its sentencing
discretion a court is empowered to ameliorate any possible sentencing
anomalies
that may arise in the imposition of punishment. On appeal
this court is empowered under
s 282
of the
Criminal Procedure Act 51
of 1977
, to ameliorate the negative effect of the delay in finalising
the matter and the severity of the ultimate punishment which might

occur, if the appellant’s earlier incarceration of ten and a half
months prior to his appeal in the High Court, were not taken
into
account.
[21] Having regard to all of the
above factors a sentence of 4 years imprisonment antedated to 1
November 2008 would, in my view,
be appropriate.
[22] In the result the following
order is made.
1. The appeal against conviction
and sentence is dismissed.
2. The sentence of 4 years
imprisonment is antedated to 1 November 2008.
________________________
KK MTHIYANE
JUDGE OF APPEAL
Appearances:
For Appellant: L Kok
Instructed by:
Chiloane & Associates
Pretoria
Symington & De Kok
Bloemfontein
For Respondent: CAC Geyser
Instructed by:
Director of Public
Prosecutions Pretoria
Director of Public
Prosecutions Bloemfontein