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[2018] ZAFSHC 60
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Mgcira v S (A282/2017) [2018] ZAFSHC 60 (10 May 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A282/2017
In
the appeal between:
ELLIOT
ALBERT
MGCIRA
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA, J et VAN RHYN,
AJ
JUDGMENT
BY:
MATHEBULA, J
HEARD
ON:
23 APRIL 2018
DELIVERED
ON:
10 MAY 2018
[1]
This is an appeal against a conviction for fraud and falsification of
documents. The appellant was refused leave to appeal
by the
district magistrate and same was granted by members of this Court.
[2]
On 24 August 2015, the appellant was driving a motor vehicle with
registration letters and number [...] on the N1 freeway near
Warden.
He was ferrying passengers for reward. He was stopped by the traffic
officers who demanded to see the necessary Operating
License.
He duly handed them a document purporting to be a valid Operating
License. On inspection the Traffic Officer
concluded that it
was invalid and the necessary charges were laid, followed by
prosecution thereof. The appellant explained
that he purchased
it from one Mr Khubeka residing at Riverside, Qwa-Qwa. He had
been operating with it and it was accepted
by a Taxi Association in
Gauteng. Also on a number of occasions he had been stopped by
other traffic officers who found it
acceptable. He was unaware
that it was falsified.
[3]
The evidence of the deputy director and secretary of the Free State
Licensing Board was to the effect that the document was
falsified in
that its numbers referred to a Mr Dlamini of Kroonstad.
According to records under his custody and control the
appellant was
not registered as a public transport operator. He explained
that a taxi permit cannot be sold between parties
because it is the
property of the government.
[4]
Counsel for the respondent correctly conceded in the heads of
argument filed on 9 April 2018 that the appeal should be upheld.
Counsel for the appellant did not make further submissions and
referred us to the heads of argument filed of record.
[5]
The appellant was charged with fraud in that he pretended to the law
enforcement officer that he was in possession of a valid
operating
license. Secondly he contravened the provisions of section 68
(3) read with section 69, 73, 89(1) and 89(5) of
Act 93 of 1996.
Section 68 (3) of Act 93 of 1996 reads as follows:-
“
68(3) No person
shall-
(a)
Falsify
or counterfeit or, with intent to deceive, replace, alter, deface or
mutilate or add anything to a certificate, licence
or other document
issued or recognised in terms of
this
Act
;
or
(b)
Be
in possession of such certificate, licence or other document which
has been falsified or counterfeited or so replaced, altered,
defaced
or mutilated or to which anything has been so added.”
[6]
In this matter the Operating License was issued in terms of the
National Land Transport Act of 2009
. The Operating License can
be validly ceded or transferred by the holder to another person in
terms of
section 58
of Act 5 of 2009. In the event that such
transfer does not occur in term of the aforementioned section,
section 77 declares
such a transaction to be invalid and has no legal
force. No offence is created by the same Act.
[7]
It appears that the learned district magistrate was swayed by the
evidence of Mosia who made certain legal submissions which
were
incorrect. Regrettably he did not verify them by studying the
relevant Act before accepting his evidence. In this
regard he
erred.
[8]
It is trite that the accused person does not have to convince the
court of his innocence. He must proffer a version that
is
reasonably possibly true. If his version is reasonably possibly
true, he must be acquitted even though his explanation
is
improbable.
[1]
[9]
In this matter the appellant maintained from the beginning that he
bought the Operating Permit from a Mr Khubeka. Further
that he
has been using it for some time and he has not picked up any trouble
about it. The learned district magistrate adopted
the reasoning
that he ought to have known that the Operating License permit was
falsified because of the time he has been in the
taxi industry.
This reasoning is incorrect. The learned district magistrate
did not state in precise terms what was
inherently untrue to reject
the version of the appellant. The learned district magistrate
should have found that this version
is reasonably possibly true and
acquitted him.
[10]
For the aforegoing reasons, the appeal ought to succeed.
[11]
Accordingly I make the following order:
11.1
The appeal
is upheld.
11.2
Both
convictions and sentences are set aside.
___________________
M. A. MATHEBULA, J
I
concur.
______________
I VAN RHYN, AJ
On
behalf of the appellants:
Adv. S. Kruger
Instructed
by:
Bloemfontein Justice Centre
On
behalf of the respondent:
Adv. S. Giorgi
Instructed
by:
Director: Public Prosecutions
BLOEMFONTEIN
/roosthuizen
[1]
S v V
2000
(1) SACR 453
(SCA) at 455 A – C.