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[2019] ZAGPPHC 196
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Sebaka v S (A82/2018) [2019] ZAGPPHC 196 (22 May 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO.
(2)
OF
INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
Case Number: A82/2018
22/5/2019
In the matter between:
CLIVE
SEBAKA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
RANGATA, AJ
[1]
On 16 October 2017 in the Pretoria
Regional Court, the appellant, Mr Clive Sebaka, was convicted by
Regional Magistrate Ms Labuschagne
for an offence contravening the
provisions of section 36 of the General Law Amendment Act
62 of 1955, having
been found in possession of stolen
property. The appellant was legally represented throughout the trial.
[2]
The appellant was charged with having
been found in the unlawful possession of goods other than stock or
produce as defined in section
1 of the Stock Theft Act 57 of 1959, in
that, on 28 August 2015, at or near Wierdabrug, Gauteng, the
appellant was found in possession
of the following stolen goods:
Plasma TV, 2 Laptops, Samsung tablet, computer wires, black laptop
bags, Nokia Cell phone, Sony
TV remote control, black box containing
jewellery and a small jewellery box containing a gold chain with a
cross.
[3]
The appellant pleaded guilty to the
offence and submitted a statement in terms of
section 112(2)
of the
Criminal Procedure Act, 51 of 1977
: He admitted to having been found
in possession of the aforementioned stolen goods. He could not give
an explanation for being
in possession of such goods and stated that
he had a reasonable suspicion that the items were stolen.
[4]
The appellant was convicted and
sentenced to eight years' imprisonment, half of which was suspended
for five years on condition
that he is not convicted of theft or
attempted theft or contravention of
section 36
or section 37 of the
General Law Amendment Act 62 of 1955, committed during the period of
suspension. The appeal is against conviction
only.
[5]
It was submitted on behalf of the
appellant that the admission to the effect that he had a reasonable
suspicion that the goods were
stolen, is defective in that the
appellant could not have admitted that he had a reasonable suspicion
that the goods were stolen.
It was therefore contended that the
learned Magistrate erred in convicting the appellant and that the
matter should be remitted
back to the trial court.
[6]
The respondent argued that the appellant
had voluntarily and freely pleaded guilty to having been found in
possession of stolen
goods. He further admitted that, at the time
when the goods were found in his possession, he knew that they were
stolen and had
no reasonable explanation for their possession. It was
therefore submitted that the appellant admitted the necessary
elements of
the offence.
[7]
The principle issue is whether the
appellant's plea of guilty complied with the elements required for
conviction under section 36
of the General Law Amendment Act. This
section reads as follows:
"Any person who is found in
possession of any goods, other than stock or produce as defined in
section 1 of the Stock Theft
Act, 1959 (Act 57 of 1959), in regard to
which there is reasonable suspicion that they have been stolen and is
unable to give a
satisfactory account of such possession, shall be
guilty of an offence and liable on conviction to the penalties which
may be imposed
on a conviction of theft."
[8]
In
Osman
and Another v Attorney-General,
Transvaal
1998(4) SA 1224 (CC), Madala J made reference to the following
comment by the Court a
quo
(
S
v Osman and Another v Attorney-General, Transvaal
1998(1)
SACR 28 (T) wherein McCreath J stated that :
"The circumstances of a
particular case may of course be such that an explanation will be
required of the person's possession
of the goods in order to avoid a
conviction under the section and that explanation can only be given
by that person himself or
herself. Such person still has an election
whether to give an explanation or risk the consequences. The
necessity to give a satisfactory
account to avoid conviction is
in that event not created by section 36 itself but by the
circumstances of the particular
case. Section 36 compels nothing. It
is a misfortune inherent in the case. So also if the account required
to be given involves
an admission or confession to a crime on the
part of that person. The situation is analogous to that which may
arise in any criminal
case at the end of the state case. Sufficient
evidence may have been advanced by the prosecution at that stage to
require a satisfactory
explanation from the accused, which is
reasonably possibly true, if he is to avoid conviction. His right to
remain silent has not
been impinged upon by any statutory provision
in conflict with the Constitution. The circumstances of the case
against him are
such that he exercises his right to silence at his
peril."
[9]
In terms of section 36 of the General
Law Amendment Act, for an accused to be convicted, he must have been
found in unlawful possession
of the goods; there must have existed a
reasonable suspicion in the mind of the finder that the goods were
stolen and the accused
must have been unable to give a satisfactory
account for the possession of such stolen goods. The requirement for
the reasonable
suspicion in the mind of the finder that the goods are
stolen is subjective as the assumption could be made given the
conduct of
the accused.
[10]
The submission on behalf of the appellant that his plea is defective
because of the inclusion
in his statement that he had a reasonable
suspicion that the goods were stolen, has no merit, particular in
light of his own admission
that the goods found in his possession
were stolen.
[11]
I have considered the statement of the
appellant in totality. He could not explain his possession of the
stolen goods and admitted
that when the goods were found in his
possession, he knew that they were stolen goods. This much is clear
from his statement:
"[9] I admit in that I knew
that my actions were wrong, and I intentionally possessed these
goods with the intention
of depriving its owners the right to
ownership for good.... [10] I do not have any defence for being found
in possession of stolen
property, and that I could be
criminally prosecuted and convicted as a result of my
conduct".
[12]
I am therefore satisfied that the
admission by the appellant satisfies the necessary elements for
conviction under section 36. The
admission was made freely and
voluntarily, appreciating the consequences of his actions and is
sufficient for a conviction. The
learned Magistrate therefore
correctly convicted the appellant.
[13]
In the circumstances I propose the
following order:
The appeal against conviction is
dismissed.
B
RANGATA, AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree
AC BASSON, J
JUDGE OF THE HIGH COURT