About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 215
|
|
Dlamini and Another v S (A225/2016) [2017] ZAGPPHC 215 (20 April 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
LOCAL DIVISION,
PRETORIA
Case
Number: A225/2016
Date:
20/4/2017
In
the matter between:
DLAMINI,
SIBUSISO
First
Appellant
MNISI,
SIBUSISO Second
Appellant
And
THE
STATE Respondent
JUDGMENT
MANYATHI
AJ
Introduction
(1)
Both Appellants were arraigned at Springs Regional Court on
one count of theft and one count of attempted theft. They both
pleaded
not guilty on both counts. Both Appellants were found guilty
of theft of a motor vehicle and count 2, on attempted theft. They
were both sentenced to an effective 8 years imprisonment on both
counts for Appellant 1. Appellant 2 to effective sentence of 11
years
on both counts.
(2)
Leave to appeal on conviction and sentence was refused, both
petitioned the Judge In chambers, as a result, leave to appeal
against
conviction and sentence
on
count 1 was granted and count 2 on sentence only. No appeal launched
on behalf of accused 3.
(3)
Both Appellant's were legally represented during the trial.
The ground of appeal in respect of conviction on count 1, is that the
Court erred in convicting the Appellants on the count of theft
instead of attempted theft. The question on Appeal is whether, on
the
facts of the case, the State did manage to prove theft beyond
reasonable doubt or the facts reveal attempted theft.
Factual
background
(4)
The circumstances that gave rise to the Appellants'
convictions can be summarised as follows:
(4.1)
On the 22 July 2014, Mr and Mrs Le Roux testified that they were at
Bush Rakers pub to participate in a pool competition.
It was around
18h30 when they parked their vehicle outside in a parking lot. They
were travelling in a Mazda Wrestler Bakkie with
registration [Y...].
When· they parked the vehicle everything was in order, the
windows closed and the doors locked.
(4.2)
Mrs Le Roux testified that when she was alerted to the fact that
someone was trying to steal her car, she went to check and
found that
someone tampered with the car, the door locks were
broken and hanging out. The ignition had
been damaged,
wires hanging out and the vehicle had been moved away from the
original parking lot where she parked the car.
The car was standing
skew, moved backwards, and stopped at the pavement. There was an
amount of R900.00 that was in the ashtray
which was stolen and the
radio face was also stolen.
(4.3)
Mr Woest (who was also participating in the pool competition),
testified that he saw a person wearing a reflector jacket
walking to
the vehicle of Mrs Le Roux, he became suspicious since he was aware
of the fact that there are no car guards at the
pub. When he checked
he noticed that there was someone in Mrs Le Roux's car and the guy
with the reflector jacket was
pushing the
vehicle, when he
shouted as to ask what they are doing, Appellant 1, who was
inside the vehicle, jumped out and Appellant 2 ran away and then both
Appellants proceeded to get into a red Mazda with registration
[Z...], in which they drove off. The matter was reported to the
police.
(4.4)
After plus-minus forty-five minutes both Appellants were brought to
Bush Rakers, by Police, where they were positively identified
as the
people who were pushing the vehicle of Mrs Le Roux. The radio face
stolen from Mrs Le Roux's vehicle was found in the Appellants'
vehicle. Constable Mokopodi Mapale testified that while patrolling at
Nigel Road, he was stopped by a white male who informed him
about
what had happened. He informed him that the suspects were driving in
a red Mazda with the registration number [Z...], and
he managed to
locate the said vehicle. He stopped and then saw the two suspects
standing between their car, the red Mazda, and
a Ford Tracer, with
registration [B...].
(4.5)
He testified that as he was approaching
the scene he noticed the two
suspects
tampering with vehicle [B...] and he ordered them to immediately
raise their hands above their heads. They were busy trying
to force
open the door of the vehicle. The constable identified the two
suspects as Appellant 1 and the 3rc1 accused. Further
that at that
stage Appellant 2 was seated in the Red Mazda, he also ordered
Appellant 2 to get out
of the vehicle.
After searching him, he found an Allen key. He noticed a
reflector jacket on the back seat of
the car. The radio
face belonging to Ms Le Rowe's vehicle was also found inside the car.
They were all arrested.
(4.6)
The Appellants denied all the allegations against them. They agree
that they were arrested at Casseldale Spar, they were there
to
collect the 1st Appellant's girlfriend who was knocking off from
work. Both the 1st and 2nd Appellants claim that accused 3
was
wearing a reflector jacket. This aspect is disputed by accused 3, who
testified that the 2nd Appellant was wearing a reflector
jacket on
that day.
The
1st and 2nd Appellants, under cross-examination, testified that they
don't know why accused 3 says the 2nd Appellant was wearing
a
reflector jacket.
(4.7)
On the reading of the record the proceedings I am satisfied that the
State has proved the identity of the Appellants as the
people who
committed the offence. The Appellants also from their heads of
argument, they concede to the identity.
Legal
Principles
(5)
The definition of theft has been discussed by our Author's
and counts as follows:
"Unlawful, appropriation of
another's property
with
the
intention
of
permanently deprive
the
owner
of
his
ownership•
It
is also well established that theft can
be
committed in
various
ways. The
Court is
now concerned only with concept of
"contrectatio".
The
term means the touching or handing of the thing which is the subject
of theft. In terms of the concept, the mere unlawful handling
of the
thing as if you are the owner was sufficient to commit the offence of
the theft. Jonathan Burchel in Principles of Criminal
Law
,
[1]
describes appropriation
as
"Property
is
appropriated
when
the
thief
behaves
as
if
he
or
she
were
the
lawful
owner
of
the
property
and
deals
with the
property
as
the
way
an
owner
would".
To
satisfy
the
concept
of
contrectatio
the
thief
must
assume
control of the
thing,
by
handling or
grasping
it. In
items that
cannot be handled, the
contrectatio
can be
effected constructively. Our Courts recently, due to the definition
of the concept of
contrectatio,
held
that the
term does
not
cover
certain
situations
in
the
modem
world
and
have
preferred
to
use the
term
"appropriation"
instead
of
contrectatio.
(6)
This
means that
theft
is
committed
by
the
assumption
of control
of property
belonging to another. The owner or possessor has also to be deprived
of exercising
the
right
of
ownership.
In
the
case
of
S
v
Tau,
[2]
the
court
held,
that
"the
gold was still under the effective
control of the owners thereof
after
the
appellant's
action. Held that the appellant's conduct had not amounted to the
executory conduct."
(7)
The
judgment
in
Tau's
case
(supra)
serves
to
confirm
that
the
principle
that
mere
assumption
of
control
over
the
property
is
not
sufficient
to
constitute
theft,
but
that it
should further
be required
that the owner is
effectively
excluded from
her
property.
The
principle
has
been
adapted
and
followed
by
our
courts
in
the
recent
decisions.
See
amongst
others,
S
v
Nkosi,
[3]
where
the
cattle
which
were
the subject
of
the
theft,
were
tied
to
the
pole
of
the
farm
of
the
owner,
they
were
not removed
from the
farm,
because the
bakkie
where
the
cattle were
to
be
loaded got
stuck
in
the
mud.
Makogoka
J
stated
that
“the
appellant's
conduct
amounted
to an act of execution or consummation
of the
offence
which
constituted attempted theft”.
In
S
v
Mekula
[4]
,
the
Court agreed that the accused assumed control over the bottle of
brandy that he concealed under his clothes, but concealing
the brandy
did not mean that the owner of the shop no longer exercised control
over it.
(8)
It is now clear from the abovementioned cases that mere
assuming of right of the owner is not sufficient to bring conviction
on
the basis of the principle of
contrectatio.
To satisfy the
principle of "appropriation" there must be an assumption of
the rights of ownership and a concomitant exclusion
of the owner from
the enjoyment of his or her rights to the property of thing. The
thief must deal with the thing in a way
that terminates the
owner's ability to derive benefit from it.
Evaluation
of Evidence
(9)
I now tum to the facts before me. There is undisputed evidence
that the Appellants had pushed the vehicle out of the parking bay
where It was parked by the owner, but could not take it away because
they were disrupted by Mr Woest.
As
to whether appropriation did take place or not is a question of fact.
The Appellants damaged the door locks, ignition of the
vehicle and
some of the items inside the vehicle belonging to the owner
were stolen. Some of the
items,
specifically the radio
face was
found in their
possession. The vehicle was only moved for a short distance.
(10)
I am of the view that the facts in this case are totally
distinguishable from the facts in both Nkosi and Tau's cases. In
these
cases there was insufficient evidence that appropriation in the
full sense of excluding the owner of his/her benefit
to
the property or thing has been proved, while
in
casu,
the analogy would have been appropriate if the Appellants had not
entered into the vehicle of the complainant and started moving
it. The difference between count 1 and count 2, is that in count 2
the Appellants did not move the vehicle, it was still in the
same
place where the owner left it. In count 1 they moved the vehicle. The
distance is totally irrelevant.
(11)
I am satisfied that the Appellants dealt with the vehicle in a
way that terminates the owner's ability to derive benefit from it
and
therefore appropriation has taken place. I am further satisfied that
the court a
quo
correctly convicted them of theft. In the
result the appeal against conviction is dismissed.
Sentence
(12)
Both Appellants were found guilty of serious offences. The
courts view theft in a serious light. On the reading of the record,
the
court
a quo
did take the Appellants personal circumstances
into account. Appellant 1 was sentenced to 5 (five) years of theft of
a motor vehicle
and 3 (three) years on attempted theft. Appellant 2
count 1, theft of a motor vehicle 7 (seven) years, count 2 attempted
theft
4 (four) years imprisonment.
(13)
Leave to appeal was granted on sentence of both counts: the
Appellant's grounds of Appeal are as follows:
(1)
That the learned Magistrate erred in not putting due weight on the
Appellant's personal circumstances.
(2)
That the sentences of 8 and 11 years respectively are shocking and
harsh.
(14)
The
proper approach in an appeal against sentence has been crisply
formulated
by
Holmes
J.A
in
S
v
Rabie
[5]
as
follows:
"1.
In
every'
appeal
against sentence, whether imposed
by
a
Magistrate or
a Judge, the Court hearing the appeal:
a)
should
be
guided by the principle that
punishment is “pre-eminently" a matter
for
the
discretion of
the
trial
court; and
b)
should be careful not to erode such discretion, hence the
further principle that the sentence should only
be
altered
if
the discretion
has not been
"judicially and properly exercised.”
2.
The test under (b)
is whether the sentence is vitiated by irregularity or misdirection
or
is
disturbingly
inappropriate.”
(15)
These
principles have been affirmed by the Constitutional
Court in
S v
Shalk
&
Others,
[6]
it was held
"that
the question is not what sentence the Court of Appeal would have
imposed, but rather whether the sentence is shockingly
inappropriate
or whether an irregularity or misdirection occurred'.
The
Court is fully aware that the sentence pre-eminently falls squarely
within the purview of the trial court's discretion, which
should not
be lightly interfered with. This Court accepts that the Appellant 1
is a first offender, Appellant 2 does have previous
convictions of
theft. The last conviction was in the year 2000 and 6 years
imprisonment was imposed. On a proper reading
of the
record it is
clear that
the court
a
quo
did
take
all
the
Appellant's
personal circumstances into
account.
The Court also
did
not
lose sight of
the
fact that
Appellant 2
has previous convictions
of
both theft and attem
p
ted theft. The last sentence imposed on
him was in the was in the 2000 and sentence was 6 years direct
imprisonment. Clearly one
cannot expect that the same sentence would
be imposed for the same offence 16 years later.
(16)
From the record it is clear that the Appellants planned in
advance to steal a car. The fact that they were chased from the first
scene, did not deter them from going on to try and steal another
vehicle from thereafter. This fact is corroborated by the presence
of
the self-made Allen key in their possession. The only inference to be
drawn is that they were dead set on stealing a motor vehicle
that
evening.
(17)
Taking all the factors as mentioned above and the facts of the
case, I am of the view that the court a quo took everything into
account, there was no misdirection. In the result appeal against
sentence is dismissed.
____________________
MANYATHI
AJ
ACTING
JUDGE OF HIGH COURT
I
concur.
____________________
JANSE
VAN NIEUWENHUIZEN J
JUDGE
OF HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearances:
For
the Appellants:
Advocate LA Van Wyk Legal Aid South Africa
For
the Respondent:
Annalie Coetzee
Director of Public
P
rosecutions Office
[1]
4
th
Edition p678
[2]
1986 (2) SACR 97 (T)
[3]
2012 (1) SACR 87 (GNP)
[4]
2012 (2) SACR 521(ECG)
par 6-7
[5]
1975 (4) SA 855 (A)
[6]
[2007] ZACC 19
;
2008 (2) SA 208
(CC) par 72