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[2018] ZAGPJHC 550
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Nemabaka v S (A183/2017) [2018] ZAGPJHC 550 (20 September 2018)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: A183/2017
In
the matter between:
ROBERT
NEMABAKA APPELLANT
and
THE
STATE RESPONDENT
J
U D G M E N T
C
REYNEKE AJ
[1]
The appellant, Robert Nemabaka and Rotshidzwa Netshiavha were
convicted and sentenced in the Regional Court, Johannesburg, on
three
charges of theft. Both were granted leave to appeal against
conviction and sentence. Bail was set pending this appeal against
both conviction and sentence, but was not paid. Only the appellant
proceeded to appeal.
[2]
The appellant and Netshiavha, to whom I will conveniently refer as
“N”, were charged with three counts of theft,
in that on
or about 7 December 2012 and near Belgravia, they unlawfully and
intentionally stole one Toyota Corolla with registration
number […]
GP, one Opel Astra with registration number […] GP and one
cellular phone handset with IMEI number 35258003428509,
all three
items being the property of or in the lawful possession of NZR Motor
City and/or its employees. They were convicted and
sentenced on 29
August 2016. Both were sentenced to six years’ imprisonment,
after the three charges were taken together
for purposes of
sentence.
The
facts
Common
cause
[3]
The common facts given rise to the appeal are the following: Nazier
Mohammed (“Nazier”) was the owner of a motor
dealer
called NZR Motor City, situated at 127 Jules Street, Belgravia. The
main line of business was the buying and selling of
second hand cars.
On Friday, 7 December 2012, Nazier disappeared from the business
premises and was never found again. His father,
Abdul Aziz Seepye
(“Seepye’) used to visit his son often at the premises.
At 18h30 a security officer alerted him telephonically
about Nazier’s
disappearance.
[4]
On his arrival at the premises, at 19h00, he found the gates to the
premises open. Nazier’s locked vehicle was parked
on the
pavement outside the premises. He could not find the car keys or the
keys for the gates. He left the premises in the care
of the security
guard and rushed to the Jeppe Police Station to report that his son
was missing.
[5]
Nazier used to carry two cellular phones on his person. A third
cellular phone was always kept on the business premises. All
three
cellular phones were missing.
[6]
Warrant Officer Malawana Jan Marsha is the investigating officer in
the kidnapping case of Nazier. On 11 January 2013 he went
to Siloam
in Venda, following the signal of one of the stolen cellular phones.
He met with Constable Seswadi. They found the Toyota
Corolla with
registration number […] GP parked under a tree. N was in the
driver’s seat, in the company of a lady.
They also found the
third cellular phone, which is the one that was always kept at the
business premises, in the possession of
N, with another sim card,
belonging to N, inserted.
[7]
N explained that he had borrowed the vehicle from the appellant. He
accompanied the police officers to the appellant, who was
also in
Venda. They found the appellant in possession of the Opel Astra with
registration number […] GP. The appellant explained
that he
had bought the Opel Astra from Nazier but, as he still owed an
amount, Nazier kept the registration documents of the vehicle
until
full payment. He could not produce any receipt to support his claim.
[8]
The appellant admitted that he initially had the Toyota Corolla in
his possession. He had the registration documents of the
Toyota
Corolla and a photo copy of Nazier’s ID.
Evidence
for the State
Abdul
Azis Seepye
[9]
Seepye testified that he visited the business three to four
times a week. He last visited the business two weeks before
Nazier’s
disappearance. He did a few sales in the past. He knew the procedure
and which documents are supposed to be in the
files. There was a
purchase or a stock file, a sold file and an invoice or receipt book.
He only became aware that two vehicles
were missing when the police
informed him about the recovery of the two vehicles. He then
conducted a stock check by comparing
all the vehicles on the floor
with the stock documents.
[10]
When a vehicle is sold, the stock document is transferred from the
stock file to the sold file. The original documents ought
to be given
to the buyer. There should be a copy of the identification of the
buyer, with his name, address and telephone number,
a copy of the
registration documents and proof of payment from the bank. If it was
a cash sale, Nazier would go to the bank together
with the purchaser
and deposit the money into his account.
[11]
Exhibit A is a spread sheet indicating that the Opel Astra was bought
for R19 693,50 and registered on 7 November 2012.
The sheet
shows that it was not sold in October. Exhibit B is a spread sheet
indicating that the Toyota Corolla was purchased for
R27 000 and
registered in NZR’s name on 8 November 2012. There were no
documents in the sold file to indicate that the
Opel Astra or the
Toyota Corolla was sold. The Toyota Corolla’s original
registration document was not in the stock file.
The keys for the two
vehicles were missing from a plastic container in the office, where
all the keys were held. An invoice book
for the relevant period was
also missing.
[12]
On 8 December 2012, that is the day after Nazier’s
disappearance, Seepye had seen the appellant for the first time. He
could not explain the appellant’s presence at the premises. The
appellant assisted in freeing the steering wheel of Nazier’s
vehicle and pushing the vehicle into the premises.
[13]
Simon Sithole was the only employee at the business, working as a
cleaner. Seepye denied that the appellant was
working as
a full-time employee since October 2012. The appellant informed him
on that Saturday, 8 December 2012, that he will
come to the premises
on the Monday to finish the work on a vehicle that he is busy with.
He allowed it. The appellant told him
that he was using his own
tools. He saw that the appellant used oil from the business stock and
also saw when the owner of this
vehicle paid the appellant.
[14]
He had seen many other people on the premises before, working in the
four work bays on the premises on the vehicles that needed
repairs.
It had never happened that a mechanic was allowed to take a vehicle
to his home to be repaired. He had no knowledge about
the Astra, but
for what the police had told him.
[15]
Seepye knew that Nazier had sent a certain BMW away for repairs to
John Mhlanga, where the appellant had been employed. John
Mhlanga
could not fix the BMW and it was taken to somebody else. The
appellant indicated he knew where this BMW was. This BMW was
later
found and kept at his (Seepye’s) house. The engine has been
stripped.
Collin
Seswadi
[16]
He is a Constable in the South African Police Service and is
stationed at the Limpopo Provincial Tracking Team, in Polokwane.
He
investigated a case of a vehicle that was stolen in Gauteng. He saw a
suspicious looking vehicle with a Gauteng number plate,
which was
parked in the street. N was in the driver’s seat. He circulated
the registration number and discovered it belonged
to a business.
[17]
He found a cellular phone in N’s possession. The cell phone’s
number corresponded with the number of the business.
N indicated
freely that he had bought it from the appellant. He took them to a
house, but the appellant was not there. On their
way to the main road
N pointed out a green Opel Astra, and said it belonged to the
appellant. He also pointed out the appellant.
He arrested N and the
appellant.
Malawana
Jan Marsha
[18]
He is a Warrant Officer and was investigating the kidnapping of
Nazier. He went to the business premises on 10 December 2012.
The
appellant was busy working on a vehicle. He spoke to Nazier’s
parents and also to the appellant. The appellant told him
that on the
day of Nazier’s disappearance, Nazier came out of his office
and said that he will be coming back. He then left
in a black
Navara.
[19]
Marsha could only track one of the three cellular phones by way of a
signal. On 10 January 2013 he went to Polokwane from where
other
police officers accompanied him to Venda. He was hoping to find
Nazier. His evidence is the same as that of Seswadi.
He added that N
explained that he had picked the cellular phone up at a taxi rank,
called “MTN,” which is situated
in Johannesburg.
[20]
While he was in Venda he became aware that there were vehicles owned
by NZR Motor City that were suspected to be stolen. They
found the
appellant at his house. When they informed the appellant that N had
explained that he had bought the Toyota Corolla from
him (appellant),
the appellant denied it and said N had borrowed the vehicle from him.
The appellant further explained that he
(the appellant) had bought
the Toyota Corolla from Nazier.
[21]
The appellant had the registration documents of the Toyota Corolla
and a photo copy of Nazier’s ID. The appellant could
not show
documents for the Opel Astra. The Opel Astra was not moving
properly and needed attention.
Johan
Venter
[22]
He testified that he had a workshop in Newlands, working exclusively
on BMW’s. The appellant towed a BMW
to his premises
for repairs. The engine was already in the boot. The owner made
telephonic arrangements with him. Nazier’s
father came to
collect it.
Robert
Nemabaka
[23]
The appellant testified that he was employed full-time by Nazier as a
mechanic since the end of October 2012. He used to do
the work on the
premises, but occasionally took vehicles to his home in Turffontein,
with knowledge of Nazier, to work on it without
potential customers
seeing what they were doing.
[24]
He referred to the BMW in order to show that it was not out of the
ordinary that cars were repaired off-premises. They could
not obtain
the necessary parts for the BMW. He suggested to Nazier to take
the vehicle to Johan Venter who specializes in
repairing BMW’s.
[25]
On the day of Nazier’s disappearance, Nazier locked his office.
He saw Nazier speaking in English to a black male who
was driving a
black Navara. This male was speaking with a Nigerian accent but he
could not hear what was said. Nazier then got
into his (own) vehicle
but did not return. The appellant and Sithole waited a long time
until the security officer arrived and
they were able to leave. The
gates were left slightly ajar. The next morning on his arrival at the
premises, he noticed that Nazier’s
vehicle was parked outside
the gate. Nazier’s parents were present. As Nazier’s
vehicle was locked, he disabled some
parts in order to push the
vehicle into the premises. Sithole and he were later arrested and
they were forbidden to make any contact
with Seepye.
[26]
He used to date N’s sister and the two of them remained good
friends. He borrowed the Toyota Corolla to N, while he was
using and
fixing the Opel Astra. In November he bought the Toyota Corolla for
R40 000 and paid R38 000. He received the
registration
papers. Ownership would have been changed on payment of the balance.
He received a receipt but has lost it.
The price was R38 000.00.
He paid this in cash, which he obtained by selling his own BMW
[1]
.
[27]
He took the Opel Astra from the premises with permission, because he
was fixing it. He then used it, because he could not return
the car
to the business as Nazier was not here. He decided to drive it to
Venda to test it over a long distance.
[28]
N would occasionally pick him up after work. N did not pick him up on
the day of the incident, however he did so the next day.
He did not
know about the particular cellular phone which was found in the
possession of N. When he learned about it, he questioned
N who
explained that he had picked it up at a corner near the business.
Rodziwa
Letjiba
[29]
In the court a quo he was cited as accused 5. He testified that the
appellant is his brother-in-law. In November 2012 he asked
the
appellant to borrow him his bakkie, but the appellant said that he
had just sold it but will lend him his Corolla. He obtained
the
vehicle in November already, although he wanted to use the bakkie in
Venda during December.
[30]
On a certain day the appellant he was a block away from the business
premises when his vehicle ran out of petrol. He called
that appellant
and requested a lift. He alighted and walked around the vehicle to
check that it was properly closed. He then noticed
a phone on the
ground in the grass and picked it up. He called the appellant to come
to the vehicle and he found him there on his
way back after he had
bought the petrol.
Issues
[31]
The question is whether the appellant and N were lawfully and
innocently in possession of the two vehicles and the cellular
phone.
Analysing
the evidence
[32]
It is trite that a trial court’s approach should be holistic.
In
S v
Chabalala,
[2]
Heher J enunciated that a court has to weigh up all the elements
which point towards the guilt of the accused against all those
which
are indicative of his innocence, taking proper account of inherent
strength and weaknesses, probabilities and improbabilities
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the state as to exclude any reasonable
doubt
about the accused’s guilt.
[33]
With this holistic approach in mind, I continue to analyse the
evidence. I find it convenient to do so under sub-headings.
The
cellular phone
[34]
N has two versions about how he came into possession of the cellular
phone. Marsha testified that N said that he had
picked up the
phone near a taxi rank, MTN, in Johannesburg. This evidence by Marsha
was not disputed. N testified, without referring
to a date, that his
Kombi, approximately a block from the premises, ran out of petrol.
When he got out he found the cellular
phone on the ground.
[35]
It was put to Seepye that N went to pick the appellant up on the 8
th
.
The appellant denied any knowledge about the cell phone.
[3]
N picked him up on the Saturday, when he was very aware of the fact
that his employer was probably abducted the previous day and
that
phones were missing.
The
vehicles
[36]
The appellant has various versions about the Astra. He testified that
he was working on the Opel Astra at his home to keep
it away from
preying eyes. Secondly he said that he had kept it because he could
not return it to the premises due to the absence
of his employer. His
third version is that he wanted to test it over a long distance. This
long distance would amount to 470 kilometres
one way and the same on
the return of the vehicle. This was not in accordance with the usual
testing range, which was 100 kilometres.
The fourth version is that
he had an emergency at home and had to rush home.
[4]
His fifth version was that he was done with fixing the vehicle and
decided that he will use the car in the interim and will return
it at
some point.
[5]
[37]
The version put to Seepye, concerning the purchase price of the
Toyota Corolla, differs from the appellant’s testimony.
It was
said that the vehicle was on sale for R25 000
[6]
,
but the appellant paid R30 000
[7]
to Nazier and there was a balance of R5 000 owing.
[8]
These figures do not add up. The appellant testified that the vehicle
was bought for R40 000
[9]
,
he had paid R38 000
[10]
, and
the vehicle would be transferred to his name, once the balance
(R2 000) have been paid. I agree with the court a quo
that these
contradictions in respect to the purchase price went to the very core
of the appellant’s defence.
[38]
The appellant has no proof of purchase. He testified that the receipt
was at his residence under his mattress. On his release
from custody
it was gone, with some of his clothes, as the room which he was
renting, was cleaned out in his absence. He testified
under
cross-examination that the receipt was with the registration
papers.
[11]
It is common
cause that he was able to produce the registration papers. N
testified that the registration papers of the vehicle
were inside the
car.
[12]
The appellant’s
explanation about the missing receipt is not satisfactory, as it is
unlikely that he would have kept the
receipt under his mattress but
the registration papers and copy of Nazier’s ID in two separate
locations. The receipt-book,
for the relevant period, had also
disappeared from the business.
Other
[39]
The appellant testified that he had seen Seepye the very first time
on the 8
th
. It is uncontested that Seepye visited the
business three to four times a week, albeit that the last time was
two weeks before
the disappearance. If the appellant was working in
the business on a full-time basis Seepye at least must have seen
him.
[40]
The appellant testified that Nazier left the business with his own
vehicle, that the appellant and Sithole left on arrival
of the
security guard and that he had only seen Nazier’s vehicle the
following morning where it was parked outside the premises.
Seepye
said that the security guard came on duty at 18h00. Seepye arrived at
19h00 and Nazier’s vehicle was parked outside
the premises. On
the appellant’s version it follows logically that
Nazier’s vehicle must have been
returned between 18h00
and 19h00, while the security officer, who was aware that Nazier had
to return, was guarding the premises.
Although the security
officer did not testify, the appellant’s version is highly
improbable.
[41]
Marsha, who testified that the appellant had explained that Nazier
had left with a black Navara, was never confronted with
the above
mentioned version of the appellant. In regards to the R38 000
cash paid by the appellant, the appellant and N differs
on the type
of vehicle that was sold before the Toyota Corolla was allegedly
bought. The appellant said he sold his BMW, while
N said he could not
borrow the bakkie, as it was sold. These two aspects, individually
considered, may seem trivial, but has a
significant bearing on the
credibility of the appellant, who tended to adapt his version and
evidence as the matter proceeded.
[42]
N had difficulty to explain how it came about that the police
officers were told that he (N) had bought (and not lend) the
Toyota
Corolla from the appellant. The question was posed to him four times
in very direct terms. Eventually, he could only answer
that they were
lying.
[43]
The evidence against appellant and N is closely linked to each other.
The coincidence that N on two different occasions innocently
came in
the possession of a vehicle and later picked up a phone belonging to
Nazier is highly improbable.
The
law
[44]
The state’s case is based on circumstantial evidence. In
R
v Blom
[13]
it was held that: ‘In reasoning by inference there are two
cardinal rules of logic: The inference drawn must be consistent
with
all the proved facts; and (b) The proved facts should be such that
they exclude every reasonable inference from them save
the one sought
to be drawn.’
[45]
The court in
S
v Shabalala
[14]
reminded that circumstantial evidence is not necessarily of less
value or weaker than direct evidence.
[46]
In Rex v
De Villiers
[15]
the
court quoted with approval from Best, Evidence (5
th
ed., sec 298): ‘Not to speak of greater numbers;
even two articles of circumstantial evidence – though
taken by
itself weigh but as a feather – join them together, you will
find them pressing on the delinquent with the weight
of a millstone.
… It is of the utmost importance to bear in mind that, where a
number of
independent
circumstances point to the same conclusion the probability of the
justness of that conclusion is not the sum of the simple
probabilities
of those circumstances, but is the compound result of
them.’
[47]
The circumstantial evidence is overwhelming. In addition, there are
many contradictions and improbabilities contained in the
appellant’s
and N’s versions, so much so, that it can safely be said that
the appellant’s version is not reasonably
possibly true. I
agree with the court a quo, that in the present case there are just
too many circumstances pointing to the same
conclusion, namely that
the appellant and N were jointly involved in the theft of the two
cars and the cellular phone.
Sentence
[48]
The triad of Zinn, as abbreviated
[16]
is repeated as follow by mouth of Heher JA, in
S
v RO
[17]
:
‘
Sentencing is
about achieving the right balance (or, in more high-flown terms,
proportionality). The elements at play are
the crime, the
offender and the interest of society or, with different nuance,
prevention, retribution, reformation and deterrence.
Invariably there
are overlaps that render the process unscientific; even a proper
exercise of the judicial function allows reasonable
people to arrive
at different conclusions.’
[49]
The court a quo considered the appellant’s personal
circumstances. A pre-sentencing report in this regard was presented.
The appellant was born on 4 June 1984. He is married and have four
children, born on 14 November 2006, 20 January 2010, 5 December
2010
and 28 February 2012 respectively. His wife is employed at Shoprite
retail.
[50]
He repeated grade 11 twice and then left school. He has been employed
as a motor mechanic most of his adulthood and managed
to obtain a
Certificate in Motor Mechanics from a college. Prior to his arrest he
had opened his own work shop with three employees.
He made
approximately R11 000 per month. The appellant has no previous
convictions. The probation officer recommended that
the appellant, as
bread winner, should not serve direct imprisonment.
[51]
Mr Seepye was called to give evidence in aggravation of the sentence.
Most of his evidence related to the business falling
apart and
finally being closed due to Nazier’s absence. The court a quo
correctly remarked that the court cannot consider
his kidnapping,
disappearance, or even killing if applicable, in sentencing the two
accused.
[52]
The court a quo concluded that the appellant did not show any true
remorse.
[18]
They have not
provided an answer for “Why did you do it”. The
seriousness of the crimes were considered and that the
value of the
vehicles were R27 000 and R20 000, not being luxurious
vehicles. The court a quo held that these crimes
were not perpetrated
on the spur of the moment as there was obviously some planning
involved. The appellant had misused his position
in order to gain
access the other vehicles and the cellular phone.
[53]
An appeal court should be mindful that the power to interfere with
the trial court’s discretion in imposing a sentence
is limited
unless the trial court’s discretion was exercised wrongly. The
essential enquiry is whether the trial court exercised
its discretion
properly and judicially. Only if the answer is no, will this court
interfere with the sentence imposed. If the sentence
imposed is
disturbingly inappropriate and/or where there is a gross disparity
between the sentence which the appeal court would
have imposed, had
it been the trial court, this court can interfere.
[19]
[54] I
cannot fault the trial court for its approach regarding sentence.
Counsel for the appellant in court conceded that the sentence
imposed
does not induce a sense of shock and that it is not disturbingly
inappropriate.
Therefore I propose not to interfere with the
sentence of the trial court.
ORDER
[55]
I therefore make the following order:
“
The
appeal against both conviction and sentence is dismissed.”
_____________________________
C.
REYNEKE
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I
concur.
___________________________
B. VALLY
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
.
Counsel
for the Appellant: Adv M Nemaunzeni
Instructed
by: Thulo TT Attorneys
Counsel
for the Respondent: Adv PT Mpekana
Instructed
by: Office of the Director of Public Prosecutions
Date
of Hearing: 6 September 2018
Date
of Judgment: 20 September 2018
[1]
Record p 156, line 20.
[2]
2003 (1) SACR 134 (SCA)
[3]
Record p 66 line 23.
[4]
Record p 152, line 17.
[5]
Record p 151 line 20.
[6]
Record p 61, line 12.
[7]
Record p 61, line 13.
[8]
Record, p 62, line 14.
[9]
Record p 127, line 24.
[10]
Record p 127, line 24.
[11]
Record p 144, line 18.
[12]
Record p 162, line 19.
[13]
1939 AD 188
at 202.
[14]
1966 (2) SA 297 (A).
[15]
1944 AD 493
at 508.
[16]
S v
Zinn
1969 (2) SA 537 (A).
[17]
2010 (2) SACR 248
(SCA).
[18]
Record p 298 line 6.
[19]
S v
Nyaki
2014 JDR 0461 (GSJ),
S
v Salzwedel and others
1999 (2) SACR 5
; 86 at 588A-B).