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[2018] ZANCHC 54
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Sebeela and Others v S (CA&R17/2018) [2018] ZANCHC 54 (24 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO:
CA&R
17/2018
HEARING:
13
AUGUST 2018
REASONS:
24
AUGUST 2018
In
the matter between:
SEBEELA,
ROBERT
1
st
Appellant
MORRIS,
THAPELO
AARON
2
nd
Appellant
MANAKE,
MOSES
MOSHE
3
rd
Appellant
and
THE
STATE
Respondent
Coram:
Olivier ADJP
et
Pakati J
REASONS
Olivier
ADJP:
[1.]
Mr Robert
Sebeela (first appellant), Mr Thapelo Aaron Morris (second appellant)
and Mr Moses Moshe Manake (third appellant) stood
trial in the
Regional Court on charges of the theft of 128 kg copper cables, 43 kg
aluminium and 1,035 kg dagga, alternatively
having been found in
possession of these stolen goods and being unable to give a
satisfactory account of such possession (count
1) and the possession
of 1,035kg dagga, in contravention of the provisions of
The
Drugs and Drug Trafficking Act
[1]
(count 2). All three of them, represented by the attorney Mr
Titus, pleaded not guilty to both charges. They offered
no
explanation of their pleas.
[2.]
In the subsequent trial the evidence of Colonel
DJ De Waal, Mr S Loubser, Captain M I Kekana, Constable S C March,
Warrant Officer
A L Thaisi, Sergeant M J Shamane, Constable L K
Mogoroane and Constable M P Fourie was presented on behalf of the
prosecution.
The first and second appellants both testified in
their own defence, while the third appellant did not testify or
present any evidence.
[3.]
All three
appellants were eventually convicted on both counts
[2]
.
They were all three sentenced to 5 years imprisonment on the count of
theft and 6 months imprisonment on the count of the
unlawful
possession of dagga, and it was ordered that the sentences be served
concurrently. Having unsuccessfully applied
for leave to appeal
all three appellants were granted leave, on petition, to appeal
against their convictions and sentences.
[4.]
At the hearing of the appeal, and after having
heard argument, the convictions and sentences of all three
appellants, as well as
an order declaring them unfit to possess a
firearm, were set aside. What follows are the reasons therefor.
[5.]
It is trite
that a court of appeal will not readily interfere with the factual
and credibility findings of a trial court
[3]
.
It will, however, be done if such findings are clearly incorrect, and
are not borne out by the record
[4]
.
Findings in respect of facts, inferences and probabilities will be
interfered with more readily than findings based on the
general
demeanour of witnesses
[5]
.
[6.]
Unless indicated otherwise what follows was
either common cause or not seriously in dispute.
[7.]
The events that led to the three appellants being
charged, took place during the evening and night of Sunday 9 May 2010
to Monday
10 May 2010 at or near Modder River and Ritchie, two towns
situated very near each other, and not too far from Kimberley.
At that stage the first appellant was a Warrant Officer in the South
African Police Service, and he was was stationed at the police
station in Modder River. He resided in a house in the nearby
township of Ritchie.
[8.]
The second appellant was a student constable and
was stationed at the same police station. He was on duty during
the nightshift,
which began early that Sunday evening and was
supposed to end early the Monday morning.
[9.]
Other members who were supposed to be on the
nightshift with the second appellant were Constables Mogoroane and
Fourie and Warrant
Officer Khantwane. Mogoroane and Fourie did
report for duty, but Khantwane had earlier been booked off sick and
did not report.
March had been one of the members on duty during the
dayshift and who was to be taken home when the nightshift members
took over.
[10.]
Items that had been seized by the police as
exhibits were kept in a so-called SAP13 store, and were supposed to
be marked with tags
containing particulars of the police station and
of the cases concerned.
[11.]
One of the cells at the police station was used
as an additional SAP13 store. It was the case of the
prosecution that the
stolen property described in count 1 was kept in
this cell, which will hereinafter be referred to as the SAP13 store.
The
same key was used to unlock the doors of all the cells, including
that of the SAP13 store.
[12.]
This key was among the items for which a station
commander on duty was responsible, including things like firearms and
vehicles.
When one shift took over from another, the
responsibility for these items was “
handed
over
” to the person in charge of the
members on duty in the next shift.
[13.]
Shortly before March was taken home, the first
appellant visited the police station. He spoke to the second
appellant and
later left.
[14.]
Due to the fact that Khantwane was not there, and
that complaints had to be attended to by two members, it was then
agreed among
Fourie, Mogoroane and the second appellant that, in the
event of a complaint having to be attended to, Fourie and Mogoroane
would
attend to the complaint, and the second appellant would remain
behind at the police station. It appears that they came to
this
arrangement because of the undesirability of leaving Fourie, a woman,
by herself at the police station.
[15.]
At some stage the second appellant then informed
Fourie and Mogoroane that there had been a complaint from 2229
Waterboer Street
in Ritchie.
[16.]
The evidence of Mogoroane and Fourie was that, as
they were leaving the premises of the police station, they saw the
first appellant
arriving at the police station in his vehicle.
According to them the first appellant wanted to know where Khantwane
was,
and was informed by them that Khantwane was not there.
They further testified that the first appellant then said that he was
going to wait there with the second appellant until they returned.
[17.]
When Mogoroane and Fourie arrived at the address
given to them by the second appellant, they found that everything was
dark at the
particular house and that nobody was visible there.
They spoke to someone who apparently resided at 2227 Waterboer
Street,
and who mentioned that there had been a problem with people
who had run through a yard.
[18.]
On their way back to the police station Fourie
reported on the complaint, presumably to the second appellant and by
radio.
Upon their arrival at the police station Fourie asked
the second appellant whether he had registered the complaint on the
computer
and had noted it in the occurrence book. He said that
he had not, and it appears that he was reprimanded for that by
Fourie.
[19.]
The evidence was furthermore that De Waal, the
Provision Commander of the Organised Crime Unit of the South African
Police Services
in the Northern Cape, had received information that
had led to a number of police members going to the Modder River area
in a number
of vehicles. When already there, he received
further information that eventually led them to the house where the
first appellant
resided. At the house, in the kitchen, the
police found bags containing copper cables and aluminium. In
one of the
bedrooms the first appellant was confronted with a plastic
bag containing dagga.
[20.]
The first and third appellants were arrested
there. According to De Waal a lady and two other men were also
found at the house.
According to Loubser only three people were found
at the house, namely the first and third appellants and a lady.
Kekana’s
evidence was that four people were in custody when he
arrived at the police station, namely the first and second appellants
and
“
another two unknown people
”,
one of whom was a lady. In his evidence the first appellant
made mention of only one Motshweri as having also been
arrested at
the house, and this was never disputed. Kekana did not know the
third appellant and the latter would therefore
probably have been the
other male that Kekana had found in custody. The version of the first
appellant about the number of people
found and arrested at the house
would therefore appear to be consistent with Kekana’s evidence
in this regard.
[21.]
It therefore appears that at the very least one
other person was at the house when the police arrived, and in what
follows that
person will be referred to as Motshweri.
[22.]
Outside the house, in the yard, copper or
aluminium was also found in the boot of the first appellant’s
vehicle.
[23.]
The second appellant was arrested at the police
station.
[24.]
Kekana, who was at the time the Station Commander
at the particular police station, was summoned and informed of the
events and
of the arrests of,
inter alia
,
the first and second appellants. Kekana found the first and
second appellants in the back of a police vehicle. It
is in
dispute what exactly the nature of the conversation was, if any,
between Kekana and the first and second appellants.
FIRST
APPELLANT
[25.]
In the judgment the Regional Magistrate placed
store on the fact that the first appellant did not, with the second
visit testified
about by Mogoroane and Fourie, remain at the police
station as he had according to them said he would. The evidence
of the
first appellant was led about a visit by him to the police
station that had according to him taken place between 18:00 and 19:00
that Sunday evening. He did not, in his evidence-in-chief, make
mention of another visit by him to the police station on
that day,
and he was also not asked whether he had gone there more than once.
This issue was also never taken up with him
in cross-examination.
More specifically the first appellant was never asked to explain why
he had left the police station
in the circumstances described by
Mogoroane and Fourie.
[26.]
The first appellant had been off duty from
Wednesday that week, and had been away from his house for a couple of
days from Thursday
until he returned to Ritchie on Sunday 9 May
2010. He had been supposed to resume his duties at the police
station that Monday
morning.
[27.]
It appears that the third appellant had earlier
been a colleague of the first appellant in Johannesburg, where the
third appellant
had at that stage been a police reservist. It
was the undisputed evidence of the first appellant that the third
appellant
had been visiting a girlfriend in Kimberley when the third
appellant called the first appellant and asked to stay at his house
in Ritchie from about the middle of that week, until he could return
to Johannesburg.
[28.]
According to the first appellant the third
appellant and Motshweri were at his house when he left there that
Sunday evening to visit
the police station. He testified that
he returned home and that at a later stage, around 21:00, the three
of them left the
house when Motshweri asked to be taken to a shop.
According to the first appellant they drove to the shop in his
vehicle,
and at the shop Motshweri told him about items that
Motshweri had seen next to the road on their way to the shop.
On their
way back home Motshweri pointed out to the first appellant
the place where the items were, concealed behind bushes, some 5 to 6
meters from the road. The first appellant’s evidence was
that it would not have been possible to see the items from
inside a
vehicle passing by at a high speed.
[29.]
The first appellant’s evidence was that
they then stopped and found 4 or 5 bags, which were open and in which
he could see
copper and iron.
[30.]
He testified that he suspected the items to be
stolen property, mainly because of the fact that they were hidden.
He did not
at that stage, however, realise that they were actually
items from the SAP13 store. According to him he first realised
this
when he was later told, at the police station and after his
arrest, that the police had found so-called SAP13 tags when they had
emptied the bags in the kitchen of his house.
[31.]
According to the first appellant he then decided
to load the items in his vehicle, and to take it to the police
station the next
morning, when he was supposed to resume his duties.
He testified that the three of them then loaded the bags into his
vehicle,
and that at the house they offloaded the bags, as the boot
of his vehicle could not close with the bags in it.
[32.]
The evidence of the first appellant was
furthermore that they then watched television, for about 2 to 3
hours, when they suddenly
saw the lights of vehicles outside the
house. The three of them went outside, where he was then
grabbed by police officers.
[33.]
He testified further that, “
after
some time
”, he was taken back inside
the house by police officials, and into the kitchen. There he
saw that the contents of the
bags had been strewn “
all
over the floor
” and that the kitchen
was generally in disarray.
[34.]
According to the first appellant Mr Loubser, who
had at the time been a Warrant Officer in the South African Police
Services Organised
Crime Unit in Kimberley, then approached him and
asked him whether he stayed at that house, which he confirmed.
His evidence
was furthermore that Loubser then requested his
permission to search the house and took him to the first bedroom.
When they
got there he found that room also to be in total disarray.
According to the first appellant Loubser then showed him the plastic
bag with dagga in it, and asked him whose it was. He testified
that he told Loubser that he did not know whose plastic bag
it was,
and that he had not been home for a few days. First appellant
furthermore testified that Loubser then asked him who
had been
sleeping in that room, and that he had answered that he did not
know.
[35.]
The first appellant’s evidence was
furthermore that he was then taken to his own bedroom, which was also
in the same mess.
There Loubser took his service firearm and
his briefcase.
[36.]
According to the first appellant he was then
taken back to the kitchen by Loubser, where Loubser asked him whose
property the copper
and aluminium from the bags were and where he got
it from. He testified that he told Loubser that it was
“
nobody’s stuff
”
and that he had found it “
from the
street
”.
Was
it proved that the property had been stolen from the Modder River
SAP13 store and, if so, that it had been stolen during the
evening
and night from 9 to 10 May?
[37.]
Mr Van Tonder argued very convincingly that it
was not proved beyond a reasonable doubt that the items listed in
count 1 were from
specifically the Modder River police station’s
SAP13 store. He pointed out,
inter alia
,
that the reference on the so-called tag which De Waal pointed out in
photo’s 20 and 21 of the photo bundle differed from
the
reference which had been entered into the SAP13 register.
[38.]
The position is exacerbated by the fact that no
steps were taken, immediately after the discovery of the goods at the
house, to
compare those items with available records like the
occurrence book.
[39.]
In an apparent attempt to suggest that the items
had indeed been stolen from the SAP13 store that particular night, De
Waal testified
about “
fresh
”
tyre tracks and footprints that were observed in the vicinity of the
cells at the police station. It does not appear
from the record
whether attempts were made to compare the tracks with the tyres on
the vehicle of the first appellant, or to compare
the footprints with
his.
[40.]
As will be seen below there was no evidence at
all that the plastic bag with dagga was ever in any way identified as
having been
an item in the SAP13 store.
[41.]
I will in what follows, mainly in the discussion
of the appeal of the second appellant, point out other problems in
the identification
of the items.
Explanation
for possession of copper and aluminium
[42.]
When considering the probability of the first
appellant’s explanation for being found in possession of the
goods, it would
in my view have been relevant whether the first
appellant had, when he had on his version first seen the goods, not
only suspected
that they had been stolen, but had also in fact
suspected that the goods had been stolen from the SAP13 store.
Had the first
appellant at that stage realised that the goods were in
fact from the SAP13 store at the very same police station where he
was
working, he would in my view have been hard pressed to explain
why he would not immediately have raised the alarm; in my view more
so than would have been the position had he in fact merely suspected
the goods of being “
ordinary
”
stolen goods.
[43.]
There was, however, no evidence at all that the
first appellant had realised or even suspected this when on his
version making the
crucial decision not to take the items to the
police station and to report the discovery immediately, and no
finding to this effect
was made. In fact, it was the evidence of the
first appellant that he only became aware of the fact that the items
were from the
SAP13 store after he had been arrested and taken to the
police station, when “
they took out the
tags
” and when he was told by the
police that the tags were found when the contents of the bags were
thrown out in the house.
[44.]
The prosecutor also did not present evidence to
the effect that the copper and iron referred to by the first
appellant had been
in the same or similar bags in the SAP13 store, or
about whether the bags had been open or sealed while still in the
SAP13 store.
[45.]
The fact that the goods had been taken into the
house, and not left in the vehicle, was explained by the first
appellant, who said
that the boot of his vehicle could not be closed
with the items in it. In cross-examination Loubser conceded
that the first
appellant’s version that they were apprehended
outside the house and taken back inside the house after some time,
and that
the police had by then already turned the kitchen into the
state described by the first appellant, was correct. According
to Loubser he had only arrived there a little bit later. De
Waal had clearly not been personally involved in those events
and no
other evidence was presented to contradict the first appellant’s
version as far as those events, and their sequence,
were concerned.
[46.]
The difference between the versions of Loubser
and the first appellant is about what his response was when he was
taken back to
the kitchen and was confronted with the contents of the
bags, which were lying scattered over the kitchen floor. I have
already
dealt with the first appellant’s version of these
events. His version was put to Loubser in cross-examination.
Loubser denied it and maintained that the first appellant did not
answer him when he asked him where he had found the “
stuff
”,
presumably referring to the copper and the aluminium that were
according to the first appellant in the bags and that at
that stage
was lying on the kitchen floor.
[47.]
In the
cross-examination of Loubser it was put to him that “
It
is the version of accused 1 and no. 3 that they found those items
indeed along the road
as
accused 1 told you
[6]
and accused 1 says that he was supposed to resume, start again
working the next day and he was going to take it first thing in
the
morning to the police station
”.
Loubser’s response to this is significant:
“
Your Worship,
it was strange to me, those articles that belong to the SAP13, that
they were found next to the road during that time
of the evening.
I did not ask him why he did wait to go to his employment the
following day, why did he not call the police
……. or to
take the items in. The police are 24 hours on duty.
”
[48.]
This answer is completely irreconcilable with
Loubser’s denial that the first appellant had said anything
about finding the
items next to the road. It in fact
corroborates the version of the first appellant in this regard, and
it confirms that it
had right from the outset been first appellant’s
version that the bags had been picked up next to the road.
[49.]
The Regional Magistrate’s finding that,
inter alia
, the first
appellant had admitted that the second appellant “
had
the SAP13 store key at all material times
”,
in the sense of physical and exclusive possession, was simply wrong.
The first appellant had admitted nothing of
the kind and had made it
very clear that everybody on duty had access to the key.
Motshweri
[50.]
The further question is why Motshweri was not
also charged, and was not called as a witness by the prosecutor, or
even by the Regional
Magistrate. Motshweri would, even on the
evidence presented by the prosecution, have been able to say whether
the items had
indeed been picked up next to the road.
[51.]
The third appellant appears to have been charged
purely on the basis of having been at the house when the items were
found there.
Why was Motshweri, who appears to have been in the
same position, not also charged?
[52.]
The fact that Motshweri was conspicuously absent,
either as an accused or as a witness, is a source of concern. I
am not satisfied
that, in these circumstances, the reasonable
possibility was excluded that Motshweri had directed the first
appellant’s attention
to the presence of the goods where they
lay concealed. On the first appellant’s version Motshweri
would have had to
explain why Motshweri did not, immediately upon
noticing the goods on the way to the shop, immediately alert the
first appellant
thereof? And how would Motshweri have been able
to see from inside a vehicle that was moving at a normal speed where
the
items lay? These are the kind of questions that could have
been put to Motshweri, had he been called as a witness.
Dagga
[53.]
No evidence was presented of where the plastic
bag with dagga was found. The first appellant and Loubser were
agreed that
the first appellant was confronted with it in the
so-called first bedroom, which had by then also been turned into
disarray by
the police. The evidence that the particular
bedroom was not the first appellant’s, was not challenged.
[54.]
The
evidence of Loubser and of the first appellant differs only on what
the first appellant’s response was when asked about
whose dagga
it was. According to Loubser the first appellant said that it
belonged to two males, whose names Loubser could
apparently not
remember. I have already dealt with the evidence of the first
appellant in this regard
[7]
,
which was to the effect that he had told Loubser that he did not know
whose dagga it was. Taking into account that there
is no
indication that the dagga was found in the first appellant’s
bedroom, and furthermore that he had left Motshweri and
the third
appellant in the house while he was away, it makes sense that the
first appellant would not have known whose dagga it
was. It
could have belonged to either Motshweri or the third appellant, or to
somebody else who had brought the dagga into
the house while
Motshweri and the third appellant were staying there alone.
[55.]
It was not disputed that the first appellant had
been away from his house from the Thursday until that Sunday, and it
appears reasonably
possible that he would indeed not necessarily have
known in what bedroom the third appellant, and even Motshweri, had
slept.
It was the undisputed evidence of the first appellant
that Motshweri and the third appellant stayed in the house while he
was away.
[56.]
Even on Loubser’s version the first
appellant’s response regarding the dagga in the plastic bag
would, however, have
been exculpatory in nature and not in any way
incriminating as far as the first appellant was concerned.
[57.]
There is no
evidence that would suggest that the first appellant had known, or
that he would have known, of the presence of the
dagga in his
house
[8]
.
[58.]
The evidence regarding the dagga was also
unsatisfactory in other respects:
58.1 The prosecutor did
not present evidence of the actual discovery of the dagga.
Loubser only said that he had found dagga
in the house. He did
not say, and was not asked, where exactly it was found. There
was also no evidence that the first
or third appellant was present
when the dagga was allegedly found. It appears that there were
several other police members
present in the house at that stage,
apart from Loubser and De Waal.
58.2 Kekana claimed to
have seen dagga on the back of a police vehicle after the raid,
together with the other stolen goods.
His evidence in this
regard was extremely poor. Whereas he initially referred to
only one bag of dagga observed by him there,
he later said that there
were two bags.
58.3 Kekana initially
testified that the dagga was in a 50 kilogram bag, and later that it
was in a 50 gram bag. The appellants
were, however, charged
with the possession of 1,035 kilogram dagga. This weight is
also visible in photograph 17, as is the
plastic bag referred to by
the first appellant. This is simply impossible to reconcile with
either of these versions of Kekana.
58.4 There was no
evidence at all that the dagga was amongst the exhibits from the
SAP13 store. No marking or SAP13
tag is visible in photograph
17. On the prosecution’s own version the dagga was
apparently also not found with the
copper and aluminium in the
kitchen. The conviction on count 1 is therefore clearly wrong
as far as the dagga is concerned.
Apology
[59.]
The evidence of Kekana was presented that the
appellants had said that “
they
”
(In other words both of them) were sorry when he found them sitting
in the back of a police van. He at first did not
explain what
would have led them to saying this. Later he said that he had
merely greeted them before they said that they
were sorry.
[60.]
Both the first and second appellants denied
having in any way apologised to Kekana.
[61.]
At a later stage Kekana changed his version by
saying that he did not know which one of the two of them had actually
made that utterance,
or whether they may have done so
simultaneously. He refused, however, to concede that on his new
version it was possible
that only one of the two of them may have
uttered the words.
[62.]
The evidence of Kekana in this regard was of poor
quality. It is also significant that he had not mentioned
anything about
an apology by either the first or second appellant in
his written statement. In my view the alleged apology had not
been
proven beyond reasonable doubt and should not have been taken
into account as part of the evidence against the first appellant.
[63.]
It also needs to be pointed out that the first
appellant’s evidence on the exchange between Kekana, on the one
hand, and himself
and the second appellant, on the other hand, left
no room for them having apologised to Kekana, and that the prosecutor
failed
to cross-examine the first appellant on this issue.
Contents
of reports
[64.]
The Regional Magistrate allowed the prosecutor to
cross-examine the first appellant extensively on the contents of the
reports received
by the police, and on the basis that the contents of
the reports were evidence. The transcription of the first
appellant’s
evidence is replete with examples of this.
[65.]
The Regional Magistrate found that the time
periods turned out to fall within the tip-offs and showed that it was
not bogus.
Clearly the Regional Magistrate found that the
contents of the reports were borne out and substantiated by the
subsequent events.
In doing so the Regional Magistrate went
further than just to have regard to the evidence that reports had
been made, but in fact
had regard to the contents of those reports.
[66.]
Mr Titus
had right at the outset made it clear that the “
hearsay
”
evidence of the reports would only be acceptable insofar as it would
be presented “
for
the sake of having the full picture before the Court
”,
“
but
not as the truth of it
”.
The position as regards evidence of the contents of a report made by
a person who is not called to testify was confirmed
in
Maharaj
and Others v Mandag Centre of Investigative Journalism NPC and
Others
[9]
“
Pretorius J
correctly recognised that the various newspaper articles annexed to
the founding affidavit were relied on, not to prove
the truth of
their content, but to demonstrate that the information was already in
the public domain. In The Public Protector
v Mail &
Guardian Ltd and Others Nugent JA explained:
‘
Courts
will generally not rely upon reported statement by persons who do not
give evidence (hearsay) for the truth of their contents.
Because that is not acceptable evidence upon which the court will
rely for factual findings such statements are not admissible
in trial
proceedings and are liable to be struck out from affidavits in
application proceedings. But there are cases in which
the
relevance of the statement lies in the fact that it was made,
irrespective of the truth of the statement. In those cases
the
statement is not hearsay and is admissible to prove the fact that it
was made. In this case many such reported statements,
mainly in
documents, have been placed before us. What is relevant to this
case is that the document exists or that the statement
was made and
for that purpose those documents and statements are admissible
evidence.’
This is an important
nuance that appears not to have been appreciated by the appellants.
”
[67.]
When Mr
Titus objected to the questioning of the first appellant on the basis
of the contents of the reports, and motivated the
objection, the
objection was summarily “
overruled
”,
without any reasons being given for the ruling
[10]
.
[68.]
At a later stage Mr Titus again raised the
objection. The Regional Magistrate then remarked that Mr Titus
was “
anticipating the end of the
question of the Prosecutor, when it has not yet been finalised
”,
and the Regional Magistrate effectively again dismissed the objection
by saying “
Let’s not anticipate
what the Prosecutor expects or wants. Let’s first listen
to him
”. This response of the
Regional Magistrate is, with respect, difficult to understand.
The whole purpose of such
an objection is to prevent unfair
cross-examination, and from what the prosecutor had then again put to
the first appellant, it
was as clear as daylight that the first
appellant was once again being confronted with the contents of the
reports and of the information,
on the basis of it being correct.
[69.]
Thereafter the prosecutor was allowed to persist
with that line of questioning. At one stage the first appellant
was asked
by the prosecutor to explain how it had happened that the
very same goods about which there had been a tip-off, were found at
his
house. He then speculated that it may have been put there
for him to pick up and to be arrested. When he requested
permission to explain this theory, elicited by the prosecutor
himself, the prosecutor was allowed to prevent him from doing so by
saying “
No, I am not going to allow
you
”.
[70.]
In my view
the “
nuance
”
referred to in the
Maharaj
case was not appreciated by the Regional Magistrate in allowing this
line of questioning and in rejecting the evidence of the first
appellant
[11]
. It is
also evident from the following remarks in the judgment in respect of
the evidence of, respectively, the first and
the second appellants:
“
He
(first
appellant)
did not know whether it was a
coincidence that officers Loubser and De Waal got information that
the items will be removed from
the Police Station …, but he
later admitted again it was a coincidence
”
.
“
He
(second
appellant)
could not answer if all as said
happened by the State was a coincidence
”
Cross-examination
[71.]
There are, unfortunately, also a number of other
examples of the prosecutor being allowed to subject the first
appellant to unfair
cross-examination:-
71.1 The prosecutor was
allowed to put the first appellant, as a fact, that the items had
been removed from the SAP13 store that
particular night, as if it had
been proved, while there was no direct evidence to this effect.
The first appellant had by
then already made it clear that, as far as
he was concerned, it was unknown exactly when the items were stolen
from the SAP13 store.
71.2 The prosecutor was
allowed to make the incorrect statement to the first appellant that
the first appellant had earlier testified
that he would have known if
these specific items had been stolen before that night. The
earlier question to the first appellant
had actually been whether he
would in the past, due to his position as Station Commander, have
known if there was a “
complaint
”
that items, in general, had been stolen from the SAP13 store, and it
was to that question that he answered affirmatively.
71.3 When Mr Titus
objected to cross-examination about who would have had access to the
SAP13 store, on the basis that the first
appellant had, contrary to
what was being put to him by the prosecutor, already answered that
question, the Regional Magistrate
made no ruling and simply allowed
the prosecutor to carry on. It is very clear from the record
that the first appellant had
indeed by then already answered that
question and that his attitude was that any official who had access
to the key could have
removed the copper and aluminium from the SAP13
store, and not only one who had physical possession of the key.
71.4 The prosecutor was
allowed to cross-examine the first appellant at length about his
evidence that, before Loubser’s arrival,
other police had
already accessed the house. Loubser’s evidence was indeed
that the Riot Squad was at the house when
he arrived there. He
also testified that many police officials “
burst
into the house
” to search it and that
he was unable to say “
what every
different people (sic) was doing at that specific moment
”.
The first appellant’s evidence that he found the kitchen and
the first two bedrooms in disarray when he was
taken there by
Loubser, has to be seen in this light.
[72.]
The prosecutor appears to have been openly
hostile towards the first appellant. He frequently interrupted the
first appellant and
made sarcastic remarks, and the Regional
Magistrate allowed this. When the Regional magistrate at one
stage intervened and
said “
Just a
minute. You’re not going to laugh at the witness Mr
Thetele
”, the prosecutor was allowed to
get away with the answer “
I am not
laughing Your Worship
”.
[73.]
When the prosecutor had not put any question to
the first appellant, and had made a remark that did not call for an
answer, the
Regional Magistrate interpreted the first appellant’s
silence as a failure to answer and was quick to place this on record.
[74.]
In another instance the first appellant answered
a question, but the record reflects that the answer was never
interpreted.
[75.]
The first appellant’s perception of the
attitude of the prosecutor and of the presiding officer appears
inter
alia
from the following remarks:
“
No the problem
is that you want me to give you answers that will benefit you
”
[12]
“…
the
Court wants me to answer questions as you want to believe that that
is the truth
”
Credibility
[76.]
The finding of the Regional Magistrate that the
first appellant was an untrustworthy witness who had failed to answer
simple questions,
must be considered in the context of all of this.
[77.]
A further finding of the Regional Magistrate to
the effect that
inter alia
the first appellant had failed to answer “
even
direct questions that needed either a yes or a no response
”,
is not borne out by the record. There are numerous examples of
long and complicated questions and statements which
the first
appellant was confronted with, and which must have been difficult to
understand, let alone to deal with in the manner
suggested by the
Regional Magistrate. This is borne out by the fact that the
Regional Magistrate at one stage said to the
prosecutor: ”
Mr
Thetele, try not to – without trying to dictate how you ask
your questions. …. Try not to argue and give a long
question
in the process.
”
Police
operation
[78.]
There other aspects that are also of concern:
78.1 The evidence of De
Waal and Loubser was that the first report was to the effect
that the Modder River police station
was going to be the target of a
robbery, as opposed to just a theft, and in other words that the
members at the police station
were going to be subjected to violence
in some or other form. Yet the members of the task force, which
included members of
the so-called riot squad, were instructed to
remain out of sight. No steps were taken to warn the members on duty
at the police
station about the possibility of a robbery.
Kekana, who was the Station Commander, was apparently also not
informed of the
threat and of the intended actions of the task force
in this regard.
78.2 According to
De Waal this report was received sometime between 19:00 and 21:00
that evening and on all indications the
members of the task force
then immediately left Kimberley for Modder River, which is only a
short drive away, and took up their
positions. It can safely be
assumed that they would have positioned themselves so that they could
observe the police station,
or at the very least the immediate
vicinity thereof. On the evidence of Mogoroane he and Fourie
only arrived at the police
station around 21:30
[13]
.
It must therefore have been some time after 21:30 that Mogoroane and
Fourie left for Waterboer Street and that the theft, on the
version
of the prosecution, took place. Why then was no evidence
presented about what the members of the task force had observed
while
waiting there up until 00:30 the next morning, when the second report
(to the effect that the goods had already been removed
from the SAP13
store and were at the house of the first appellant) was received?
Evidence of the arrival and departure (if
at all) of vehicles at the
police station during that period, and before the second report,
would have been extremely relevant.
Conclusion
[79.]
To sum up the position regarding count 1, and
regarding the presence of the copper and aluminium in the first
appellant’s
house:
79.1 It has to be
accepted that the first appellant had immediately, when confronted
about the goods in the kitchen, furnished an
explanation for the
presence of those goods. He stuck to that version and his
evidence in this regard was in my view not
shaken in
cross-examination.
79.2 Motshweri
would obviously have been able to refute or substantiate the version
of the first appellant. He or she
was arrested with the first
and third appellants, but not prosecuted. The prosecution never
disclosed the reason for this,
or for the absence of Motshweri as a
witness. The Regional Magistrate also never enquired
about this and seems not
to have realised the importance of
Motshweri’s evidence in the absence of any other direct
evidence that the first appellant
had been involved in the theft.
79.3 The
prosecution chose not to disclose the source of the reports that were
allegedly made to De Waal and not to call the
person as a witness.
The fact that the prosecutor was nevertheless allowed to confront the
first appellant with the contents
of the reports, and the fact that
the Regional Magistrate clearly considered the version of the first
appellant in the light of
the contents of the reports, amounted to
irregularities that taint the evidence as a whole against the first
appellant.
79.4 Even if it is
to be assumed, for the moment, that the copper and aluminium found at
the first appellant’s house
had been removed from the SAP13
store the particular night, the only reasonable inference would in my
view not be that the first
appellant had done so. If he had
done so when he went to the police station for a second time, as
contended by Mogoroane
and Fourie
[14]
,
one would have expected the members of the task force to have seen
his white Nissan Almera vehicle arriving and departing and
that
evidence to this effect would then have been presented. The
absence of evidence of a comparison of the tyre tracks in
the
vicinity of the cells with the tyres on that vehicle, raises the
question whether such a comparison was not done because the
police
knew very well that the first appellant’s vehicle was not near
the cells that evening, or whether a comparison was
indeed done and
the result was negative. A third possible explanation for the
absence of evidence in this regard would obviously
be shoddy work by
the police and/or the prosecutor. This was not cleared up in
evidence, neither was the possible presence
of an unidentified person
or persons in black clothing around the police station that
particular night, an issue to which I will
revert.
[80.]
The
Regional Magistrate seems to have found, in the alternative, that the
first appellant would on his own version nevertheless
be guilty of
theft, on the basis that he had realised that the goods had been
stolen by someone and that theft is a continuing
crime. On the
first appellant’s version this could not, with respect, be
correct, because on his version he would not
have had the intention
of furthering or participating in the uncompleted theft
[15]
.
[81.]
As far as count 2 is concerned there is no
evidence at all that links the first appellant to the dagga in the
plastic bag, which
on the prosecution’s own evidence was found
in his absence in a bedroom not occupied by himself and in a house in
which two
other persons had at that stage been staying.
SECOND
APPELLANT
[82.]
The prosecution case was premised on a plot
between, at the very least, the first appellant and the second
appellant. To this
end the following evidence was presented:
82.1 March testified
that, when the first appellant left after his first visit to the
police station, he greeted the second appellant
by saying words to
the effect “
see you later
”.
This evidence was clearly presented to prove that the first and
second appellants had at some time agreed that they
would see one
another again later that specific evening.
82.2 The evidence
Mogoroane and Fourie about the absence of a complainant at 2229
Waterboer Street was clearly presented to make
out a case to the
effect that there had in fact been no such complaint and that the
second appellant had by means of this false
information sent
Mogoroane and Fourie away, which had left him behind as the only
police member at the police station for that
period, which had on all
indications lasted between 30 and 45 minutes.
82.3 During the time that
Constables Mogoroane and Fourie were away the second appellant had
access to the SAP13 store by means
of the key left under his
control. The evidence was that the key had always been kept in
a safe and under the control of
whoever was acting as station
commander during the nightshift.
Conspiracy
[83.]
As regards March’s evidence that the first
appellant, when leaving after his first visit to the police station,
had said to
the second appellant that he would meet or see him
“
later
”,
and the insinuation that the first and second appellants had in fact
at that stage agreed to meet up later in order to
steal from the
SAP13 store, it is of significance that this evidence contradicted
her police statement, according to which the
words had been uttered
by the second appellant, and not by the first appellant.
[84.]
It was put to March that the version of the first
and second appellants was that the first appellant had spoken to the
second appellant
and had merely said “
see
you
”. On the evidence the second
appellant would however not at that stage have had any way of knowing
that he was going
to be alone at the police station when the first
appellant returned and in the circumstances, and whether or not the
greeting was
to the effect that the two appellants would see one
another again “
later
”,
the inference that they were actually agreeing to meet later that
same evening in order to steal from the SAP13 store could
not be
drawn as the only reasonable inference.
False
complaint
[85.]
If the first and second appellants’ plan
had been to get Mogoroane and Fourie out of the way through a false
report, so that
they could then access the SAP13 store, what was
their plan with Khantwane? On the prosecution’s own
evidence the first
appellant clearly did not know that Khantwane was
not going to be on duty that night, and there is no evidence that the
second
appellant knew about this before reporting for duty. As
already mentioned the evidence was that two members had to attend
complaints. There was no evidence that, had Khantwane been
there, the second appellant would have been one of the duty members
to stay behind at the police station, let alone in control of the
keys. How did the plan of the first and second appellants
provide for the presence of Khantwane?
[86.]
The evidence of Mogoroane was that, upon their
arrival at 2229 Waterboer Street, it was “
dark
at that shack
”, that they “
hooted
in front of the yard
” and that “
it
seemed as if there was no one
”.
It is clear from this that they did not knock on the door of the
dwelling. The possibility was therefore not
ruled out that
someone may indeed have been in the dwelling and could have confirmed
the call to the police station.
[87.]
According to Mogoroane a lady “
from
the address of 2227
” then informed them
that children had been running through “
her
”
yard, in other words the premises at 2227 Waterboer Street, but
denied having called the police station about it.
[88.]
The evidence of this person was never presented
and Mogoroane’s evidence that she had denied having called in a
complaint,
remained inadmissible hearsay evidence.
[89.]
Mogoroane’s evidence in this regard was in
any event contradicted by that of Fourie. She testified that
the lady from
2227 Waterboer Street had reported to them that the
people had in fact been running through the yard of 2229 Waterboer
Street.
Fourie testified further that the lady had been under
the impression that the owners of 2229 Waterboer Street may have
called in
the complaint about that.
[90.]
It is in my view too much of a coincidence that
the second appellant would suck from his thumb the address 2229
Waterboer Street
and that, when Mogoroane and Fourie then arrive
there, it appears that there had in fact been an incident, which may
have led to
a complaint, at that very same address.
[91.]
Fourie conceded that someone may indeed have
called from 2229 Waterboer Street, or that it could even have been a
prank call.
[92.]
It is so that the second appellant testified that
Fourie had been present with him at the police station when the
particular call
came in and that she denied this. Fourie conceded,
however, that the call may have come in when she went to the bathroom
at one
stage. It must also be remembered that Fourie testified
long after the events. It is difficult to believe that she
would after almost 5 years still have been able to remember whether
the second appellant had in her presence answered a call.
Fourie conceded that she would not be able to remember how many calls
had been answered by colleagues when she was on duty.
Could her
evidence really be said to have excluded the reasonable possibility
of a call having come in while she was present?
[93.]
Fourie was not even accurate on the time that she
had come on duty. She knew nothing about having first attended
an accident
and arriving at the police station later than they were
supposed to, as testified by Mogoroane. She also could not
remember
Mogoroane telling her and the second appellant that
Khantwane was booked off-sick, as Mogoroane testified.
[94.]
In the judgment the Regional Magistrate dealt
only with what Mogoroane had testified as regards the conversation
with the lady from
2227 Waterboer Street, and found that his version
of that conversation had been confirmed by Fourie. There is no
indication,
in the judgment, that the abovementioned discrepancies
were considered.
[95.]
The prosecutor was allowed to put to the second
appellant that the evidence had been that Fourie had accused him of
sending them
out on a false complaint. This was never the
evidence of either Fourie or Mogoroane.
[96.]
The second appellant testified that he had noted
the complaint in the so-called complaint book, but had forgotten to
enter it into
the occurrence book. It is so that it was never
put to any of the state witnesses that the second appellant had noted
the
complaint in a complaint book, but on the other hand this
evidence was then never challenged in cross-examination.
SAP
13 Register
[97.]
Loubser said that nobody could produce the SAP13
register when they arrived at the police station. He did not
say that he
asked the second appellant for the register, and that it
was the second appellant who could not produce it. He merely
said
that “
they
”
could not find it.
[98.]
The evidence about the missing register was
clearly presented to create the suspicion that the first and second
appellants, or at
least the second appellant, had hidden or destroyed
the register when realising that the theft of the exhibits had been
discovered.
[99.]
However, there was no evidence that the second
appellant would have known that before actually being confronted at
the police station.
[100.]
When Thaisi testified the prosecutor produced a
copy of an entry made into the SAP13 register on a date prior to
these events.
How was this possible at the time of the trial,
if that register had disappeared that particular night? This
was never cleared
up.
[101.]
The Regional Magistrate rejected the possibility
that it may have slipped the second appellant’s mind to enter
the complaint
into the occurrence book and referred to the
“
coincidence
”
that, when the SAP13 register was sought from the second appellant,
it was allegedly missing. As already pointed out,
there was no
evidence that specifically the second appellant was asked to produce
the register.
[102.]
The finding that the SAP13 register “
was
never found
” is also questionable.
The evidence of Mr Loubser was that it was still missing when he
stopped being the investigating
officer. What about thereafter,
and where did the certified copy come from?
Time
of theft
[103.]
The basis of the prosecution case was that the
goods found at the house had been stolen during the course of that
particular night,
during the period when the second appellant was
alone at the police station. Was it proved beyond reasonable doubt
that the goods
were still in the SAP13 store at the time when
Mogoroane and Fourie left the police station?
[104.]
I have already alluded to the absence of evidence
about any attempted comparison of the tyre tracks and the footprints
with the
tyres on the first appellant’s vehicle and his shoes.
The question is also why there was no attempt to substantiate
the
opinion that those tracks and footprints were “
fresh
”.
De Waal could also not say whether people may have been placed in
those cells during that period, which may in any
event have explained
the fresh tyre tracks and footprints.
[105.]
The evidence of Kekana was that it was his duty
to check the contents of the SAP13 store monthly. He could,
however, not say
what the date of his last inspection before the
discovery of the theft was. His evidence was hopelessly vague on what
was there
at the time of his last inspection and on what should have
been there at the time of the theft. When he was asked whether
the stolen goods had still been in the store at the time of his last
inspection he answered “Ja, I would say that, …”
and he was clearly speculating.
[106.]
The evidence of the SAP13 clerk, who was directly
responsible for the daily administration of the SAP13 store, was for
some reason
not led.
[107.]
In an attempt to prove that at least some of the
copper cables found in the house must have been in the SAP13 store
that particular
evening, merely on the basis that they had only been
placed there shortly before then, evidence was presented regarding
the seizure
of five full and one half bag of copper cables that had
been seized and booked into the SAP13 store and about the appearance
of
some of the copper cables from the house.
[108.]
Kekana testified that he had been involved in the
initial seizure and booking of these copper cables, which according
to him had
taken place only two to three days prior to the events of
9 to 10 May. He said that, when he saw the copper cables that
had
been found at the first appellant’s house, he recognised
the particular cables by their “
half
burnt
” appearance.
[109.]
The evidence of Shamane was that copper cables
had been seized on 26 April 2010; and therefore not only two to three
days prior
to the events of 9 to 10 May, as testified by Kekana.
Shamane also testified that it was indeed Thaisi who had made
the entry
in the SAP 13 register on that very same day, in other
words on 26 April. Shamane made no mention of the cables having
appeared
“
half burnt
”.
[110.]
The evidence of Thaisi was, however, that the
copper cables had been seized as long ago as on 6 April 2010, which
obviously contradicted
the evidence of both Kekana and Shamane. A
certified copy of an extract from the SAP13 register with the
relevant entry was, as
already mentioned, then handed in by the
prosecutor as exhibit “
B
”.
In cross-examination Thaisi was confronted with the fact that,
according to the extract from the register, the entry
regarding the
seizure of these cables had been made on 26 April 2010. When
confronted with this, Thaisi remained adamant
that the copper cables
had been seized on 6 April 2010. He was also adamant that the
entry was not in his handwriting, although
he had earlier testified
that he had “
booked (the copper cables)
in in the SAP13
”. The evidence
was that such an entry was supposed to be made immediately when goods
were seized and placed in the
SAP13 store. Thaisi also said
nothing about the particular cables having appeared “
half
burnt
”.
[111.]
I have already alluded to the evidence that the
SAP13 register was missing when the second appellant was arrested.
There is
no evidence that another SAP13 register had for some reason
been opened after 26 April 2010, but before the night of these
events.
The question is then either where and when the
“
missing
”
register was found or where the document that was handed in as
exhibit “B” really came from.
[112.]
The Regional Magistrate, while referring to
Kekana’s evidence that “
of the
items were booked in two or three days earlier
”
(presumably referring to the copper cables), made no mention of the
abovementioned inconsistencies.
Key
to SAP13 store
[113.]
The question mark over the contents of the SAP13
store at the time when Mogoroane and Fourie left, and when the first
appellant
according to them arrived to stay with the second
appellant, becomes even more troublesome when regard is had to the
evidence as
far as the key to the SAP13 cell is concerned.
[114.]
Although Kekana and Fourie created the impression
that the key was always in a safe, it appears that it was not always
the position.
Mogoroane testified that it was sometimes just
kept in a drawer.
[115.]
As already mentioned only one key was used to
unlock all the cells, including the SAP13 store. Every police
official who used
the key to access the cells would therefore have
had access to the SAP13 store.
[116.]
The evidence of March that control of the key was
handed over to the second appellant was contradicted by the evidence
of Mogoroane,
who said that it was handed over to Fourie.
Fourie confirmed this, but said that it was left in the charge office
when she
and Mogoroane went to attend to the complaint.
[117.]
It was not proved that the key was found in the
physical possession of the second appellant when the police arrived,
or in fact
about where the key was at that stage. De Waal did
in his evidence in chief say that “
the
key was in the possession of (the second appellant
)”,
but in cross-examination he adapted his version and said that “
(The
second appellant) was in control of that key. If it was in his
pocket or it was on his desk or in the safe as it is supposed
to be,
I cannot remember that specifically
”.
[118.]
The second appellant in his evidence admitted to
having been in sole possession of the key while Mogoroane and Fourie
was out, but
it is clear that his version actually was that control
of the “
whole police station
”
was left to him in the absence of Fourie and Mogoroane. He was never
asked about where exactly the key had been during that
period, and
particularly after he and March had apparently taken a suspect to the
cells.
[119.]
The Regional Magistrate found that the second
appellant had the key and therefore knew or must have known what had
happened to the
goods from the SAP13 store. There is no
indication that the abovementioned aspects were ever considered by
the Regional Magistrate.
Unexplained
presence of unidentified person/s at police station
[120.]
Both Mogoroane and Fourie testified about a visit
by two police officials at the police station after they had returned
from 2229
Waterboer Street. Mogoroane said that the one was
known to him as Captain Leshaba. Fourie described them as
Captain
Ntshabane and a colonel whom she did not know, but who was
according to her not De Waal.
[121.]
According to them the officials wanted to know
whether they had not noticed someone dressed in black at the police
station earlier.
[122.]
There was no evidence that either of the first or
second appellants had been dressed in black that night, which raises
the question
who it then was that had, according to information that
the officials apparently had, been around or in the vicinity of the
police
station, and therefore also of the SAP13 store, that night.
[123.]
No attempts were made to establish exactly who
these officials were and to find out from them what had led to their
enquiry.
Apology
[124.]
I have already dealt with Kekana’s evidence
of an apology that had allegedly been verbalised to him when he saw
the first
and second appellants in custody in the back of a police
vehicle.
[125.]
Even if it was true that someone had said that he
was sorry, Kekana was clearly not sure who it was. His obvious
attempt to
adapt his version to get around this was in vain.
[126.]
The second appellant denied having spoken to
Kekana while in the police vehicle, and his denial was never
challenged in cross-examination.
[127.]
Loubser testified that, when he confronted the
second appellant at the police station, he said that he knew nothing
about the theft.
The Regional Magistrate put a slightly
different colour to Loubser’s evidence in this regard, and
described it as having
been to the effect that the second appellant
had said that “
he knew nothing or could
not explain what had happened
”.
Be that as it may, both versions are difficult to reconcile with the
second appellant shortly thereafter intending
to admit guilt to
Kekana.
[128.]
What is also strange, and impossible to reconcile
with the version of the prosecution, is the undisputed evidence of
the second
appellant that, when confronted at the police station,
obviously after the raid at the house and immediately before his
arrest,
the police officials enquired about him by his name. On
the versions of Loubser and De Waal they would not have had reason
to
know that the second appellant, by name, was on duty that night, let
alone that he had at one stage been left in charge of the
police
station.
Second
visit to police station by first appellant
[129.]
The second appellant’s evidence was that he
knew nothing of a second visit by the first appellant to the police
station that
night.
[130.]
The first appellant’s evidence was also not
led about a second visit. Possibly this could be held against
the first
appellant, but certainly not against the second appellant,
because the evidence of Fourie and Mogoroane did not go so far as to
say that the first appellant had indeed on that occasion gone inside
the police station and to the second appellant. Their
evidence
was that they had come across the first appellant outside the police
station as they were leaving.
[131.]
The fact that the first appellant was no longer
at the police station when Mogoroane and Fourie returned, could
therefore also not
be seen as incriminating the second appellant.
Contents
of reports
[132.]
As I have already said the Regional Magistrate
clearly relied on the contents of the reports to De Waal in deciding
to reject the
evidence of not only the first appellant, but also that
of the second appellant. My remarks in this regard above apply
with
equal force in the case of the second appellant.
[133.]
Insofar as De Waal and Loubser were allowed to
say anything more than that reports had been received, and that those
reports had
led police to Modder River and eventually to the house of
the first appellant, that part of their evidence constituted hearsay
evidence, because the informant did not testify.
Credibility
[134.]
The Regional Magistrate found that the first and
second appellants were unable to answer “
even
direct logical questions
” and that the
first and second appellants had contradicted themselves, that they
had given unnecessary explanations, and
that they had evaded direct
questions. No reference was, however, made to specific examples
of this in their evidence.
[135.]
The Regional Magistrate rejected the version of
the first and second appellants as “
illogical,
improbable
”, “
far-fetched
”
and “
not reasonably possibly true
”.
I have already alluded to aspects of their versions and of the
evidence in this regard which the Regional Magistrate
failed to deal
with in the judgment and which have on all indications not been
considered properly.
Count
2
[136.]
It does not appear from the judgment on what
basis the second appellant was convicted on count 2. He was
never in possession
of the dagga allegedly found at the house where
the first appellant lived. There was simply no evidence on the
basis of which
the second appellant could have been convicted on
count 2.
THIRD
APPELLANT
[137.]
The third appellant did not testify or present
any evidence on his behalf. As already mentioned, Loubser
conceded that both
the first and the third appellants had been
apprehended outside the house. Was there a shred of independent
evidence to link
the third appellant to the stolen copper and
aluminium or the dagga?
[138.]
There was no evidence, other than the first
appellant’s rejected evidence, that the third appellant had in
fact stayed there.
[139.]
There was also no evidence that the third
appellant had at any stage made incriminating utterances or
admissions.
[140.]
There was no evidence that the third appellant
knew the second appellant, or that he would in any way have been able
to access the
SAP13 store.
[141.]
Insofar as the contents of the reports, and the
truth thereof, played any role in the conviction of the third
appellant, that would
also have been wrong.
[142.]
The judgment of the Regional Magistrate contains
not a single reason for convicting the third appellant on any of the
counts.
CONCLUSION
[143.]
In the circumstances the convictions of all three
appellants on both counts fell to be set aside, which of course
resulted in the
sentences and the order in terms of the
Firearms
Control Act
also being set aside.
______________________
C
J OLIVIER
ACTING
DEPUTY JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
I concur.
______________________________
B
M PAKATI
JUDGE
NORTHERN
CAPE DIVISION
For
the 1st and 3rd appellants: Mr A Van Tonder (Legal Aid South Africa,
Kimberley)
For
the 2nd appellant : Mr Mr M A Fletcher (Fletcher’s Attorneys,
Kimberley)
For
the respondent: Adv A Stellenberg (Office of Director of Public
Prosecutions, Kimberley)
[1]
140 of 1992
[2]
In the case of count 1 they were convicted on the main charge of
theft
[3]
Compare
Kebana v S
[2010] 1 All SA 310
(SCA) para [12]
[4]
Compare
S v M
2006 (1) SACR 135
(SCA) para [40]
[5]
Compare
S v Crossberg
[2008] ZASCA 13
;
2008 (2) SACR 317
(SCA) para [149]
[6]
My emphasis.
[7]
Para [34]
supra
.
[8]
Even if it is assumed, for the moment, that the dagga had in fact
been found inside the house.
[9]
2018 (1) SA 471
(SCA)
(2018 (1) SACR 253
(SCA)) para [16]
[10]
Either then or in the judgment.
[11]
And also that of the second appellant, to whose convictions I will
revert in due course.
[12]
After the Regional Magistrate had clearly allowed the prosecutor to
persist with a question to which Mr Titus had objected, without
even
making a ruling on the objection.
[13]
Their shift had been supposed to start at 19:00, but they attended
the scene of an accident which was reported on their way to
the
police station for their shift.
[14]
I will revert to this issue below.
[15]
See
Criminal Law,
Snyman, 5
th
Edition, p 509