About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 722
|
|
Matsalo and Another v S (A42/2017) [2018] ZAGPPHC 722 (19 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED.
Case No. A42/2017
19/3/2018
In
the matter between:
MANDLA
MATSALO
1
ST
APPELLANT
JOHANNES
MEBEKA
2
ND
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MILLAR
AJ
1.
This
is an appeal by the appellants against conviction and sentence. Leave
to appeal was granted on petition to this court on 27
February 2017.
The appellants' heads of argument were filed late and an application
for condonation was brought at the commencement
of the hearing of
this appeal.
2.
The
appellants were charged and subsequently convicted in the Regional
Court of Ekurhuleni East, Springs on 23 August 2016 on the
sole count
of theft of a motor vehicle and they were each sentenced to seven
years imprisonment. They were also charged in the
alternative with
contravening section 36 of the General Law Amendment Act 62 of 1955,
being in possession of stolen property and
"wrongfully
and unlawfully unable to give
a
satisfactory account of such
possession".
3.
The
respondent called three witnesses - the complainant, the arresting
officer and the investigating officer. Theirs was the only
evidence
led at the trial. Neither of the appellants testified although they
made admissions and gave an explanation of plea given
in terms of
sections 220 and 115(2)(b) of the
Criminal Procedure Act 51 of 1977
respectively. The convictions and sentences were premised solely on
the evidence presented by the respondent.
4.
The
facts giving rise to the conviction and sentence are briefly as
follows. The appellants had been found to be in possession of
a VW
Golf motor vehicle ("the vehicle") on 10 April 2016, which
had also been stolen two days before from the home of
the
complainant. The vehicle had been parked outside, overnight in a
fenced yard. Besides the vehicle, a computer, cash, the spare
wheel
and jack, all of which were in the vehicle had also been stolen. The
complainant testified that the value of the vehicle
was R 15 000,00,
the value of the laptop R3 500,00 and R7 000,00 was the amount of the
cash stolen.
5.
The
vehicle was uninsured but had a tracker, which had activated two days
after the theft and this is what had led the police to
the
appellants.
6.
The
appellants were found at a Sasol garage in the Springs area. The
vehicle was being towed, having run out of fuel.
7.
The
appellants when asked by the police how they had come into possession
of the vehicle informed them that the first appellant
had bought the
vehicle from a person called Vusi Makhubela for R15 000,00 and had
paid him a deposit of R5 000,00. The balance
was to be paid once Vusi
Makhubela ("Vusi") furnished the first appellant with the
papers for the vehicle.
8.
Although
the complainant had testified that the ignition of the vehicle had
been visibly tampered with and that it had two ignition
switches when
he had gone to collect the it on 11 April 2016, none of the other
state witnesses who had seen the vehicle corroborated
this.
9.
The
evidence of the investigating officer was that:
".
.Ja, the day the
complainant brought the vehicle I went to investigate the condition
of the ignition, then on my arrival on the
vehicle I found the
ignition still intact."
and
"No,
as
I
am
saying, it was
intact and then I asked the complainant which key you are using and
he said no, I
am
using the key
that I have got in the pound with the vehicle.”
10.
The
evidence for the respondent was to the effect that the ignition did
not appear to have been tamper d with and that the key for
the
vehicle had been impounded along with it. The only damage that was
corroborated was that the petrol cap was missing.
11.
Evidence
was led that the police had investigated what the appellants had told
them and through an unnamed informer confirmed the
existence of a
person by the name of Vusi who sold stolen vehicles in the area where
the vehicle was stolen. Attempts by the investigating
officer to
trace him had been unsuccessful as he had not returned to his
residence since the night of the theft.
12.
There
was no evidence that the appellants were the persons who stole the
vehicle from the home of the complainant. The elapse of
two days
between the theft and the recovery of the vehicle , without the
computer , cash, spare wheel and jack is sufficient to
distance the
appellants from the theft itself.
[1]
13.
In
regard to the alternative charge of being in possession of stolen
property and
"wrongfully and
unlawfully unable to give
a
satisfactory account of such
possession",
the learned
Magistrate relied on the evidence of the complainant which he stated
to be:
“
Court
could not find any reason why he would lie before court and
say
cables were
removed from the original ignition to the other ignition"
14.
The
Magistrate did not rely on the fact that the vehicle had two
ignitions when the complainant fetched it from the pound as this
evidence by the complainant was neither supported nor corroborated by
that of the investigating officer and on the face of it,
the
appellants, being furnished with the key, are unlikely to have had
any reason to suspect that Vusi was neither the owner nor
entitled to
sell the vehicle to them. The evidence of the investigating officer
corroborated the existence of Vusi although he
could not be found.
15.
The
price for which the vehicle was alleged to have been purchased, from
Vusi (being the market value) together with the furnishing
of the
key, militates against a finding that the appellants knew or ought
reasonably to have known that the vehicle was stolen.
16.
The
test to be applied in the present matter is stated in Burchell's
South African Criminal Law & Procedure
[2]
as follows:
" The prosecution h s the
burden of proving, beyond reasonable doubt, that the accused
perpetrated the requisite unlawful conduct.
The prosecution bears the
burden of proving unlawful conduct beyond reasonable doubt. No burden
of proof rests on the accused to
establish
a
defence. It is
enough that the accused 'raises'
a
defence. This the
accused can do in explanation of plea.
If, however, the prosecution
proves a prima facie case against the accused, then if the accused
exercises his or her right to remain
silent and does not testify then
the accused takes the risk that, in the light of all the evidence
led, a court might find the
prosecution to have established its
case."
17.
The
appellants 'raised" their defence in the plea explanation that
was put before the court and this was dealt with in the
evidence that
was led by the respondent.
18.
Did
the respondent establish a
prima
facie
case? For the respondent to
have established such a case, there must be "evidence calling
for an answer".
[3]
19.
There
was no evidence whatsoever linking the appellants to the theft of the
vehicle from the property of the complainant. Furthermore,
from the
respondent's own evidence it appears that the appellants had a
reasonable explanation for possession of the vehicle.
20.
Since
the respondent bore the onus to prove the guilt of the appellants
beyond a reasonable doubt, I find that for the reasons set
out above,
it failed to do so on either the main charge or the alternative
charge. The appellants having been improperly convicted,
there is no
need to address sentence.
21.
In
the result, I propose the following order:
21.1
The
late filing of the heads of argument on behalf of the Appellants are
condoned.
21.2
The
appeal against conviction and sentence for both the First and Second
appellants are upheld.
21.3
The
conviction and sentence in respect of the First and Second Appellant
are set aside.
21.4
The
First and Second Appellants are to be released from custody with
immediate effect.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I
AGREE, AND IT IS SO ORDERED
H. FABRICIUS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
19 MARCH 2018
JUDGMENT
DELIVERED ON:
19 MARCH 2018
COUNSEL
FOR THE APPELLANTS: ADV. AC KLOPPER
INSTRUCTED
BY:
MKHABELA ATTORNEYS
COUNSEL
FOR THE RESPONDENT: ADV. FW VAN DER MERWE
INSTRUCTED
BY:
THE STATE ATTORNEY
[1]
S v Madonsela
2012 (2) SACR 456
at 458 E-G
[2]
Volume 1: General principles of Criminal Law Fourth Edition.
[3]
S v Boesak
[2000] ZACC 25
;
2001 (1)
SACR
1
CC at paragraph 24.