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[2017] ZAGPPHC 366
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Ndongoma v S (A124/2016) [2017] ZAGPPHC 366 (25 April 2017)
GAUTENG
DIVISION, PRETORIA
Appeal
No. A 124/2016
Date:
25/4/2017
Reportable:
No
Of
interest to other judges: No
In
the matter:
TERENCE
NDONGOMA APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
MIA
AJ:
[1]
The appellant was charged in the District Magistrates Court,
Cullinan with theft of 6 m copper cable valued at approximately R1000
(Count one) and contravening the provisions of
section 49(1)(a)
of
the
Immigration Act 13 of 2002
read further with section
250 of the Criminal Procedure Act 51 of 1977(Count two). He
pleaded guilty on count two only
and was convicted on both
counts. This is an appeal against count one, the conviction of theft
of copper cable. The trial court
granted leave to appeal.
[2]
The trial court considered the plea explanation tendered in
terms of section 115 of the Criminal Procedure Act 51 of 1997 of the
appellant that he was a motor mechanic and was well known i11 the
community. On the day he had been assisting a client and was
on his
way home, in possession of his toolbox and cellphone when
he
arrested
arrested. He tried to communicate this to the police and
requested that they call his client whose number was on his
cellphone,
to no avail. He explained that his work suit was covered
in oil stains from his work earlier in the day on the vehicle. He
denied
stealing or being in possession of copper cables. The state
had led the evidence of three security employees Mr. Werner Smit
(Smit),
Mr. Dimakhatso Mathabe (Mathabe) and Mr. Vincent Baloyi
(Baloyi) regarding the theft.
[3]
Mr. Moeng argued on behalf of the appellant that there were
material contradictions in the State's case which resulted in the
State
not proving its case beyond reasonable doubt. He referred to
the discrepancy between the witness Mathabe and Baloyi regarding the
existence of the pick and argued that it was not possible for the
appellant to have wielded a pick and for it not to be on the
scene.
He highlighted the difference in time between the witnesses Mathabe
and Baloyi, one witness referring to a period of two
hours while the
other referring to a period of 5 minutes that they observed the three
men digging before pursuing and arresting
them.
[4]
He also argued that it was unlikely that the persons digging
the hole would not have heard the witnesses who testified that they
were 7 meters away from the hole whilst there were no
obstructions. Under these circumstances such persons
would
have been alerted to the presence of the security guards
Mathabe and Baloyi and would have fled. He argued that it was thus
unlikely that the evidence of the
Mathabe
and Baloyi was
credible and could be relied on and the trial court ought not to have
accepted this evidence.
[5]
Mr. Molatudi argued on
behalf
of the State that it was
not likely that security officers would blow their cover by making a
call where they could be heard and
it was entirely plausible that
they made the call without being heard. He argued that the toolbox
referred to by the appellant
was never found on the scene to confirm
his version that he was on route home from work. It was also
convenient that his phone
was not available to check his story that
he was assisting a client. The contradiction with regard to
the pick being
used and the time difference were not of such a
nature so as to reject the real evidence of the spade and hacksaw
being found on
the scene. It was also not disputed that the appellant
was on the scene. He argued that the spade was used to dig the hole
and
was found on the scene. The contradictions regarding the
pick and time difference were not material when compared to the
evidence of the
spade,
the hacksaw and the presence of the
appellant.
[6]
The trial court considered the evidence of the persons
effecting the arrest namely Mathabe and Baloyi as well as their
supervisor
Smit. Whilst the trial court noted some contradictions
between the state witness Mathabe and Baloyi, the evidence of Smit
clarified
the time difference and supported Baloyi's version that
they were posted on duty at 19h00 and the call was made at 21h00.
Clearly
Mathabe must have been mistaken about the time he observed
the men and the time they called.
[7]
The second issue related to Mathabe's mention of the pick and
the unlikelihood of someone running off with a heavy pick whilst
attempting
to flee. The pick was not found on the scene. Both Mathabe
and Baloyi were present and observed the persons at the hole and
apprehended
the appellant. The issue relating to the difference in
time was clarified by Mr. Smit who referred to the time of the call
and
corroborated Baloyi's evidence. The court accepted the
identification of the appellant by the witnesses and their
apprehension
of the appellant whilst at the hole. The court also
considered the authorities which held that witnesses are not to be
discredited
due to contradictions
per se
but depending on
their importance and bearing on the evidence. See S
v Makhole
1990(1) SACR 95(A) 98 F-G.
[8]
The trial court considered appellant's evidence and the
probabilities of his version. The appellant put forward a version
that he
was on his way from assisting a client but could not furnish
the name of the petrol attendant who summoned him for assistance or
the client. His phone and toolbox which were allegedly with him were
never booked in with the tools and implements found on the
scene. The
trial court considered that the appellant's version ought only be
accepted if it was reasonably possibly true referring
to the dictum
in S
v Mhlambo
1957(4) SA 727 (A) at 7388-C where the court
noted:
"An accused's claim
to the benefit of a doubt when it may be said to exist must not be
derived from speculation but must rest
upon a reasonable and solid
foundation created either by positive evidence or gathered from
reasonable inferences which are not
in conflict with, or outweighed
by, the proved facts of the case."
[9]
Having regard to the totality of the evidence, the trial court
considered that the appellant failed to place positive evidence
forward
despite making reference to the petrol attendant and a client
who he alleged could support his version. This was in contrast to
the
States witnesses who positively testified that the appellant was at
the hole where cable had been removed, was covered in soil
and had
been found digging at the site of the cable. I
am
not persuaded that the trial court incorrectly accepted that the
State discharged the onus on it to prove the guilt of the appellant
beyond reasonable doubt, in spite of the various contradictions
mentioned above. Such contradictions do not detract from
identification
of the appellant, where he was found and in what
position he was found on the scene. The appellant's version was
correctly rejected
by the Magistrate as not possibly true for the
reasons indicated above.
[9]
In the circumstances, I propose that the following order be made:
1. The appeal
against conviction on count one is dismissed.
______________________
SC
MIA
Acting
Judge of the High Court
I
agree
IT
IS SO ORDERED.
______________________
PM
MABUSE
Judge
of the High Court
On
behalf of the Appellant:
Instructed
by:
On
behalf of the Respondent:
Instructed
by: