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[2019] ZAFSHC 259
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Madonsela v S (A168/2019) [2019] ZAFSHC 259 (27 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No: A168/2019
In the matter
between:
MBANGISENSI
JOHANNES
MADONSELA
Appellant
a
nd
THE
STATE
Respondent
Coram:
Mbhele,
J
et
Opperman,
J
Heard:
18
November
2019
Delivered:
27
December
2019
Summary:
Appeal
- theft - conviction - evaluation of evidence
JUDGMENT
[1]
The
appeal lies before this court against conviction only and with leave
of the court
a
quo
.
The appellant was sentenced to six years imprisonment.
[2]
The
appellant was convicted of theft of eighteen head of cattle. He was
not charged of theft in terms of the Stock Theft Act 57
of 1959.
Section 12 of the said Act will however take effect in that all cases
where the charge is one of theft of stock or produce
the provisions
of this Act shall apply where “an accused is indicted, summoned
or charged in respect of the theft of stock
or produce,
notwithstanding the fact that this act is not referred to in the
indictment, summons or charge.”
[3]
The
grounds for appeal are:
1.
The
court erred in not accepting the version of the appellant and not
making a credibility finding in favour of his testimony;
2.
The
court erred in finding that the State had proved its case beyond
reasonable doubt;
3.
The
court erred in finding the appellant lied when he testified that he
could not read;
4.
The
court erred in convicting the appellant for failure to ascertain the
legitimacy of the cattle that was brought to him.
[4]
The
crux of the appeal is based on the evaluation of the version of the
appellant as it stands within the totality of evidence adduced.
The
onus is on the State to prove its case beyond a reasonable doubt. If
the subjective version of the accused is reasonably possibly
true
after the evaluation of the evidence as a whole, the accused must
receive the benefit of the doubt and go free. Probabilities
or
improbabilities inferred must comply with the dictum in
R
v Blom
1939
AD 188
and follow the cardinal principles of logic:
1. The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
2. The proved
facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn.
If they do not exclude
other reasonable inferences, there must be doubt whether the
inference sought to be drawn is correct.
[5]
The
general principles according to which a court of appeal should
consider a case are set out in
R
v Dhlumayo
1948
(2) SA 677
(A). The court of appeal must bear in mind that the
trial court saw the witnesses in person and could assess their
demeanour.
That was stated seventy years ago and it is still true. If
there was no misdirection of facts by the trial court, the point of
departure is that its conclusion was correct. In
S
v Hadebe
1997
(2) SACR 641
(SCA) at 645 G – H it was held that the
credibility findings and findings of fact of the trial court cannot
be disturbed
unless the recorded evidence shows them to be clearly
wrong.
[6]
It is
common cause that sixteen head of cattle belonging to the complainant
were delivered by accused two in the court
a
quo
and the state witness Fana Khubeka at the appellant’s farm. The
said cattle were loaded in a truck that was hired by accused
two from
one Mrs Mbatha in Newcastle. The appellant sold some of the cattle to
various people. It is, further, not in dispute that
the cattle were
stolen. What has to be answered is whether the trial court was
correct in finding that the appellant was part of
a conspiracy to
steal the said cattle.
[7]
The
evidence that led to the conviction of the appellant was mainly
through the testimony of Khubeka, a co-accused who pleaded guilty
in
terms of
section 112(2)
of the
Criminal Procedure Act 51 of 1977
. He
testified, inter alia, that he was approached by accused two who made
him an irresistible offer to join a syndicate of people
who were
stealing cattle that she was part of. On the date on which the
relevant cattle were stolen accused two arrived in a truck
with
certain individuals. Eighteen cattle belonging to the complainants
were loaded into the truck and transported to the appellant’s
farm. On their arrival at the farm the cattle were offloaded and
accused three handed over some documents to the appellant which
documents he was convinced to sign as proof that he will be paid
R47 000 as profit for the sale of the cattle. Later
in
December the appellant called him to his place whereafter he informed
him that there were many people interested in the cattle
and he was
running short of removal certificates (Certificates in terms of
section 8(1) of The Stock Theft Act). He told him to
go to the police
station and ask for the relevant forms which forms he signed and
completed as required. The appellant gave him
R5000 before he left.
[8]
The
appellant testified that accused two phoned him to inquire whether
she can leave some livestock with him. He indicated that
he cannot
accommodate the goats but only cattle. That was before the day of the
theft. On the Sunday of the theft accused three
phoned and requested,
on behalf of accused two, if they can keep some cattle at his place.
He agreed and immediately on their arrival
he inspected the cattle
and demanded the documentation prescribed by law.
[9]
Accused
two and Khubeka noticed his suspicion and instantly put him at ease
that the cattle belong to the two of them; Bongani Khubeka
and
accused two. The cattle were branded KB and this correlated with the
name Bongani Khubeka. The agreement was that the cattle
would be
collected the next day. Monday came and went and the cattle were not
collected.
[10]
On
their departure the Sunday both Khubeka and accused two said that the
cattle are for sale. Late on the Monday Khubeka phoned.
The appellant
complained to him that he does not have the space to keep the cattle.
He also informed that there are some buyers
interested and inquired
about the price. Khubeka was willing to sell for between R4000 and
R5000.
[11]
Appellant
again demanded that the prescribed documentation be completed before
he can sell the cattle. Khubeka delivered it the
subsequent Sunday
and also collected R37 000. Appellant was careful to count the
money in the presence of witnesses and issue
a receipt that his son
drafted and had Khubeka sign.
[12]
On the
third Sunday after the theft Khubeka again fetched money from his
place but appellant was not present. His sons handed the
money over.
Appellant made it clear that at that stage he had not received any
compensation for the sale of the cattle because
the buyers did not
pay in full as yet. He again drafted a receipt but this time Khubeka
did not sign. He does not know why Khubeka
neglected to sign.
[13]
The
police arrived at his place and inquired about the cattle. He handed
all the documentation to them and gave them the particulars
of the
second accused and Khubeka. Only accused two was known to him before
the incident. He assisted the police with the investigation.
[14]
Appellant
again confirmed that he did inquire about the origin of the cattle
and was convinced by accused two and Khubeka that it
belonged to them
and are from Vrede.
[15]
Appellant
was cross examined extensively. It came to light that accused two is
related to him and that she was known to possess
cattle. There was
nothing suspicious about the cattle being brought to him.
[16]
The
rejection of the evidence of the appellant by the trial court is
based on inferred improbabilities in his evidence. The
improbabilities
are however not the only inferences available to the
court on the proved facts.
[17]
To the
contrary; the investigating officer testified that accused two
explained that they took the cattle to the appellant’s
farm
because the owner of the truck was complaining about the distance
they were to travel. She confirmed the explanation of the
appellant.
His testimony was as follows:
Attorney: When you
arrested Ntate Madonsela were you given the same explanation?
Investigating
Officer: That is correct the same explanation.
Attorney: The
question remains why were you arresting him?
Investigating
officer: I found cattle in his possession.
Attorney: Will I be
correct to say that it is not that he gave you an explanation that
does not make sense you were arresting him
because he was found in
possession of life stock.
Investigating
officer: That is correct.
Attorney: But did
you believe the explanation he gave you and then confirmed by accused
2?
Investigating
officer: Yes.
(Accentuation
added)
[18]
The
presiding magistrate gave a well-reasoned and detailed judgment. We
had to, however, revisit the conviction of the appellant.
It often
happens that there is a strong suspicion of the guilt of the
perpetrator but that the evidence does not prove so beyond
a
reasonable doubt. The doubt was raised by the poor quality of the
testimony of Khubeka. The magistrate was correct when she found
that
Khubeka’s evidence was exaggerated and there were discrepancies
in his testimony. Khubeka is an accomplice whose evidence
must be
approached with caution.
[19]
The
bottom line is; and trite in law, that:
When the evidence of
an accomplice is lead, the question is not so much whether a crime
has been committed as who committed it.
In order to bridge this
problem, the courts developed the cautionary rule which had the
correct emphasis. In terms of this rule
corroborating evidential
material had to link the accused with the crime, or the court had to
satisfy itself that the evidence
of the accomplice was reliable.
[1]
[20]
The
evidence of the appellant could not be criticised by the court
a
quo
.
Reading of his testimony shows that he maintained his version and
never deviated. His testimony is corroborated by Bheki Jele,
the
driver of the truck and accused two in that the appellant was just an
incidental participant in the events of the day.
[21]
There
is not any evidence that negates the version of the appellant to such
an extent that it can be rejected as not reasonably
possibly true if
measured against the evidence as a whole. His evidence is
corroborated by the real facts and other witnesses.
It ought to be
accepted.
[22]
ORDER
The
appeal is upheld and the conviction and sentence of the appellant is
set aside.
______________________________
M.
OPPERMAN, J
I
concur
______________________________
N.M
MBHELE, J
Appearances
For
appellant:
ADV V.C. ABRAHAMS
Legal Aid SA
Bloemfontein
For
respondent:
ADV A.M. FERREIRA
Office of the
Director of Public Prosecutions: Free State
Bloemfontein
[1]
Schmidt & Rademeyer,
The
Law of Evidence,
Lexis
Nexis, Updated July 2018, at 4-14.