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[2017] ZAGPPHC 123
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Kongolo v S (A101/16) [2017] ZAGPPHC 123 (24 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date:
24/03/2017
Case
Number: A101/16
Reportable:
No
Of
Interest to Other Judges: No
In
the matter between:
JABU
EMELIO
KONGOLO
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
HUGHES
J
et
C SHIRi LELE
JUDGMENT
HUGHES
J
[1]
The appellant in this appeal was charged with theft of a motor
vehicle in the regional court, Benoni. He was convicted on 29
April
2013 and sentenced to eight years imprisonment. He was legally
represented throughout the trial and pleaded not guilty to
the
charge. Leave to appeal was refused by the court a quo but granted
after he petitioned this Honourable Court in respect of
both
conviction and sentence.
[2]
Briefly, the case against the appellant is that two police officers,
Warrant Officers Skhosana and Mkhwanazi, having received
a tip off
from an informant on 14 July 2010 at 10h20, found the appellant at
10h40 in the driver's seat of a Toyota Venture motor
vehicle parked
on the side of the road on Payete Street, in the area of Barcelona.
The police alleged that when they enquired who
the owner of the
Venture was, the appellant proclaimed that it was his vehicle.
[3]
The said vehicle had been parked off on 13 July 2010 at Mr Wagaba's
home, number [...] M. S., Kuma, Stilfontein, Klerksdorp
the night
before. Mr Wagaba is the owner of the Toyota Venture and he alleges
he parked the vehicle off the night before and discovered
in the
morning that the vehicle was no longer where he had parked it.
[4]
He proceeded to Stilfontein police station to report the vehicle
stolen and while he was doing so a call was received that the
vehicle
had been recovered and was at Etwatwa police station. He was also
advised that an arrest had been made of those who were
in possession
of the Toyota Venture.
[5]
The Warrant Officers also testified that earlier at about 7h20 on the
day of the appellant's arrest during a patrol they had
stopped the
appellant who was driving a Toyota Hilux at that time. They have seen
him drive this vehicle on many occasions. At
the back of this Hilux
were 'white wall tyres'. Mr Wagaba alleges that his vehicle had white
wall tyres but when the vehicle was
returned to him they had other
tyres and the white wall tyres had been removed.
[6]
The Warrant officers testified that at the place where the appellant
was apprehended the Hilux was parked in front of the Venture
and the
Hilux had no occupants. There was also a second occupant in the
passenger seat of the Venture with the appellant. This
was Mr
Lingwati who on enquiring what he was doing in the vehicle responded
that he had obtained a lift from the appellant, but
he states that
they were in the Hilux and not the Venture. He states that the
Venture was parked about 30 metres from the Hilux
and it had no
occupants. This was also testified by the appellant however he states
that the Venture was 60 metres away, instead.
[7]
The Warrant Officers testified that they made the necessary enquiries
when they noticed that the registration disc depicted
North West
Province whilst the vehicle licence number of the Venture had a
Gauteng Province registration.
[8]
The appellant's version is that he was driving his Hilux, he offered
Mr Lingwati a lift, whilst doing so he received a call
from a friend
to come to a place, that being the place where he was apprehended.
Whilst at that place and seated in his Hilux with
Mr Lingwati in the
passenger seat the Warrant Officers in plain clothes appeared from
the yard of one of the shacks. They proceeded
towards them with
firearms and enquired whose Venture was behind them which had no
occupants.
[9]
He denies that he was stopped by the warrant officers earlier in the
day and he further denies that he had anything at the back
of his
vehicle. He testified that they just passed each other on the road.
He contends that there was bad blood between him and
the two warrant
officers. He further states that warrant officer Skhosana had said
that
'...he will fight me, meaning he wants to teach me
a
lesson'.
[10]
Adv. More for the appellant argued that the state failed to inform
the court and the appellant that they would rely on the
doctrine of
recent possession and the court a quo did not apply the doctrine
correctly in the circumstances of this case.
[11]
In addressing the issue of failing to inform the court and the
appellant that the doctrine of recent possession would be relied
upon
I must point out that one of the definitions of theft is:
'A
person commits theft if he unlawfully and intentionally appropriates
movable, corporeal properly which
(a)...
(b)
belongs to another but is in the perpetrator's
own
possession;
or
(c)
...
Provided
that
the
intention
to
appropriate the
property includes
an
intention permanently
to deprive
the
person
entitled
to the possession
of the property,
of such property'.
This
definition was accepted in
Von
Elling
1945 AD
234
;
Sibiya
v
The
State
1955 (4)
SA 247
(A) at 250-251;
Kotze
v
The
State
1965 (1) SA 118
(A)125
Also
see
Criminal Law,
fifth edition by C R Snyman at page 483.
[12]
In the appellant's trial he was legally represented and it is evident
from the charge sheet and the definition that the appellant
had
specific particularity of the case that he had to meet. In addressing
the application of the doctrine of recent possession
one must bear in
mind that theft is a
delitcum
continuum,
a
continuing crime. Theft continues as long as the property remains in
the hands or possession of the thief or possessor.
[13]
Turning to the facts of the case, counsel for the appellant's argued
that the court a quo erred when it rejected the appellant's
version
even in the face of his witness corroborating his evidence to some
extent. I am of the view that the court rightfully rejected
the
version of the appellant. There were just too many improbabilities.
Some of these just to mention a few is the fact that white
tyres were
removed from the Venture and replaced with other tyres. The warrant
officers saw the appellant driving his Hilux in
the morning with
white tyre at the back before being advised of the theft. The Venture
that was stolen was blue and the vehicle
of Mr Wagaba from North West
and it just happened to be in the same area where the appellant was
to meet a friend and he was allegedly
parked not far from the
Venture, which according to him had no occupants. The appellant give
Mr Lingwati a lift, even though he
is going in the opposite direction
to Daveyton, being the direction in which the Mr Lingwati was going.
How would Mr Lingwati who
was hiking on the opposite side of the road
and who did not know the appellant accept a lift from the appellant
who was going in
the opposite direction. According to the appellant
after Barcelone he was going back in the direction of Daveyton, how
would Mr
Lingwati know this standing on the opposite side of the
road. The appellant testified that there were only two vehicle at the
place
where he was arrested that being his Hilux and the Venture. The
Warrant Officers approached pointing firearms on foot from a nearby
yard when he parked his Hilux and attempted to alight. When asked how
he was escorted to the police station as his evidence was
that
immediately after his arrest he was taken to the police station, he
now responded that there was in fact another vehicle being
a Toyota
Condor in the vicinity.
[14]
The cherry on the top was that he had bad blood with the Warrant
Officers and they had threatened him for no apparent reason.
He is
not even clear when this threat took place.
[15]
Turning to sentence, the argument advanced on the part of the
appellant is that the personal circumstances of the appellant
were
not considered and the sentence imposed is harsh and shocking.
[16]
For assistance the court a quo even requested a presentencing report
to consider the personal circumstances of the appellant.
I find
no merit in the argument that these were not considered.
[17]
The presiding officer went through all the aspects of the appellant's
personal circumstances mention in the pre-sentencing
report in great
detail. Having gone through the cases on sentencing in theft matters,
the presiding officer emphasis that the appellant
was not candid with
the court a quo and did not show remorse in any way. The sentence in
these circumstance, in my view, balance
the interest of all being the
crime, the criminal and the community.
[18]
Consequently the appeal on both conviction and sentence is dismissed.
[19]
The following order is made:
(a)
The appeal in respect of both conviction and sentence is dismissed.
It
is so ordered
____________________________________
W.
Hughes Judge of the High Court
I
concur
____________________________________
C
Shirilele
Acting
Judge'of the High Court Gauteng, Pretoria
Appearances:
For
the Appellant
: Ms Masete
Instructed
by
: Legal Aid
For
the Defendant
: Adv K Germishuis
Instructed
by
: The State Attorney
Date
heard
: 14 March 2017
Date
delivered :