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2017
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[2017] ZAFSHC 43
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Lamprecht v S (A141/2013) [2017] ZAFSHC 43 (16 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal No.: A141/2013
In the appeal between:-
LEON
LAMPRECHT
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI, AJP
et
RAMPAI, J
HEARD
ON:
13 MARCH 2017
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
16 MARCH 2017
[1]
The appellant, who was accused number 2 in the Bloemfontein regional
court, was convicted of theft (count 1), defeating the
ends of
justice (count 2) and 4 counts of fraud (counts 3 to 6). The
appellant was sentenced as follows:
Counts 1, 3 and 6 three
years’ imprisonment on each count.
Count 2 two years’
imprisonment.
Counts 4 and 5 one years’
imprisonment on each count.
The regional magistrate
ordered that all the above sentences should run concurrently to such
an extent that the appellant should
serve 6 years’
imprisonment. The appeal is only against the conviction on
count one. This judgment is therefore limited
to the facts and
findings with regard to count one only.
[2] On 11 July 2001 a
Mazda 4x4 pickup (vehicle) belonging to Mr Willem Hendrik Kruger was
stolen at Generaal De Wet Drive, Bloemfontein.
The value
thereof was plus minus R 50,000. During 2001 Mr Carl Dominique
Darow (Darow) accompanied accused 1 to Lesotho.
Accused 1
communicated via cellular phone with an un-known male in that
country. They later met with a male person
who was driving the
vehicle. Accused 1 gave the unknown male and amount of money in
exchange for the vehicle. Darow
drove the vehicle to South
Africa.
[3] Mr Dirk Cornelius
Heymans (Heymans) was the appellant’s friend. Unbeknown
to the appellant he was also a police
informer. During 2001 the
appellant approached him and asked him to make a hot car, cold. This
means to unlawfully
legalize a stolen car. He informed his
handler, Captain Aldrich, about the appellant’s request. They
decided
to adhere to the request. He informed the appellant
that he would be able to execute the request. The appellant
informed
him that the vehicle is standing in front of Standard Bank,
Ladybrand. Captain Aldrich went to Ladybrand to fetch the
vehicle.
A few days later he was contacted by his handler and
informed that South African Police Vehicle Identification Numbers
(SAPVIN)
have been engraved on the vehicle’s engine. Captain
Gerber changed the information on the police’s computer system
to indicate that the vehicle was stolen and recovered.
[4] He met Aldrich
outside Ladybrand where he took possession of the vehicle. He
informed the appellant that the vehicle is
back. The appellant
was unfortunately not available, but requested him to park the
vehicle in his (appellant’s) garage.
He obliged and
handed the keys to the appellant’s domestic worker.
[5] Mr Johan Jagga
(Jagga) testified that, during 2001, he was attached to the motor
vehicle theft branch at Ladybrand. Accused
1 approached him
with a vehicle’s engine and chassis number. Accused 1
requested him to check whether the vehicle was
a stolen vehicle. He
complied and ascertained that the vehicle, a Mazda 4x4, was indeed
reported as stolen. He communicated
this information to accused
1. Accused 1 later approached him again with the particulars of
the same vehicle. He again
informed accused 1 that the vehicle
is a stolen vehicle. He informed accused1 that he can arrange for
accused 1 to receive informer’s
fees should he give the police
information as to the whereabouts of the Mazda 4x4. Accused 1
did not give him any further
information about the vehicle. On
1 October 2001 he saw one of accused 1’s employees changing a
wheel of the vehicle,
in Prinsloo Street Ladybrand.
[6] Accused 1’s
son, Thomas, explained that the vehicle belongs to his father. He
requested Thomas to accompany him
to the police station. He
checked the vehicle and ascertained that it had a SAPVIN. He
checked behind the rear light
for the secret chassis numbers. He
ascertained that it was indeed the same numbers that accused 1
enquired about. The
information on the computer, this time
around, showed that the vehicle was recovered by its owner. He
contacted Kruger who
informed him that his vehicle was uninsured and
never recovered. He arrested accused 1.
[7] The appellant
testified that accused 1 bought the vehicle with the assistance of
Darow. The appellant was at that stage
in the business of
registering cars in both South Africa and Lesotho. He
befriended Heymans in Bethlehem after the latter
was released from
prison. He moved to Ladybrand for business reasons. Heymans
followed him and he got Heymans a job
at a Pub in Ladybrand. He
initially did some of the vehicle registrations with Heymans. He
thereafter requested Heymans
to do registrations on his behalf. He
would then give Heymans the full fee which he charged the client. He
has done
this on approximately 6 to 8 occasions.
[8] Accused 1 approached
him and requested him to register the vehicle on his behalf. He
went to Lesotho where he checked
in their registers whether the
vehicle was ever registered in Lesotho. He also checked whether
the vehicle was a stolen and
recovered vehicle in that country and
sold on auction. He could not find any trace of the vehicle in
that country’s
books. He requested Heymans to take the
vehicle for engine clearance as the first step towards the
registration of the vehicle.
He had no papers for the vehicle.
He also did not have a receipt to prove that accused 1 bought
the vehicle. Heymans
agreed. He arranged for accused 1 to
park the vehicle opposite Standard Bank where it was collected by
Heymans. After
Heymans was done with the police clearance, the
appellant called accused 1 and made arrangements for the vehicle to
be returned
to accused 1. Accused 1 was subsequently arrested
for theft of the vehicle. He arranged with Heymans to have
accused
1 released from prison. They paid Heymans R500 to
arrange his release.
[9] The regional
magistrate found that the state proved beyond reasonable doubt that
accused 1 was guilty of theft of the vehicle
on the basis that he was
in possession thereof, shortly after it was stolen and he could not
give a reasonable explanation for
his possession. He found that
the appellant new that the vehicle was stolen and that he assisted
accused 1 in order to register
the vehicle in his name.
[10] Mr Van der Merwe
contended that the appellant was not properly convicted because the
doctrine of possession of recently stolen
property was not applicable
to him. It was pointed out to him that the basis on which the
appellant was convicted was that
he was an accessory to theft and
therefore as guilty of theft as the thief himself. Having
realized the fallacious basis
on which he based his argument he
conceded that the appellant was indeed guilty of theft.
[11] It is clear from the
totality of the evidence that the appellant is guilty of theft on two
bases. Firstly the testimony
of Heymans, which was accepted by
the regional magistrate, directly implicated the appellant in the
commission of the offence.
We are bound by the regional
magistrate’s factual finding. Courts of appeal are
generally reluctant to interfere
with the factual findings made by
the trial court unless the trial court’s findings were clearly
wrong. See
R
v Dhlumayo
1948 (2) SA 677
(A) at 702;
S
v Naidoo
2003 (1) SACR 347
(SCA) at para 26. The regional magistrate’s
finding in relation to Heymans’ testimony has not been
challenged. I
could also not find any basis upon which to doubt
the regional magistrate’s finding. It was not a wrong
finding.
[12] Secondly, on the
appellant’s own version it is clear that he is guilty of theft.
According to him, he wanted Heymans
to register the vehicle and
earn money for the registration. He was however centrally
involved in arranging with accused
1 to drop the car off outside
Standard Bank and to go and fetch the car there. There is no
rational explanation why he could
not let Heymans do all the work.
He enquired in Lesotho about the status of the car. He did not
do so here in South
Africa. No explanation is given as to why
he did not inquire about the status of the vehicle in South Africa.
The manner
in which the car was dealt with speaks volumes. The
appellant did not have a single document relating to the registration
past or present of the vehicle. It can only be because the car
was a hot car or at the very least he should have suspected
that it
is a stolen car and he did not care; he wanted to assist accused 1 by
all means necessary. Even his actions after
accused 1 was
arrested clearly shows that he wanted to assist accused 1 in
connection with this vehicle. His evidence was
a weak attempt
at putting distance between him and this vehicle. Unfortunately for
him the surrounding circumstances and direct
evidence points
incriminatingly at him being instrumental in having the stolen
vehicle registered. It is improbable that
Heymans would engrave
SAPVIN on the engine without permission or without informing his
principal.
[13] Theft is a
continuing crime. CR Snyman in Criminal Law 5
th
Ed at 509 to 510 sets out the two important effects of the rule that
theft is a continuing crime. The second manifestation
of the
rule is on point in this case. He says:
“
The second effect
of the rule that theft is a continuing crime is that, generally
speaking, our law draws no distinction between
perpetrators and
accessories after the fact. As pointed out above, an accessory after
the fact is somebody who helps the perpetrator
at a stage when the
original crime has already been completed. Since theft is a
continuing crime, the person who after the commission
of the theft
assists the thief (who is still in possession of the property) to
conceal the property does not qualify as an accessory
after the fact,
because his assistance is rendered at a time when the original crime
(theft) is still uncompleted. The person rendering
the assistance is
therefore guilty of theft, and not merely of being an accessory after
the fact.”
[14] In an endeavor to
assist accused 1 to conceal the theft by registering the vehicle with
SAPVIN the appellant committed theft.
The regional magistrate’s
finding is therefore unassailable. The appeal ought to be
dismissed.
[15] I accordingly make
the following order:
The appeal, against the
conviction of theft, is dismissed.
______________
C.J. MUSI, AJP
I agree.
______________
M.H
RAMPAI, J
On behalf of
Applicant:
Mr.
P van der Merwe
Instructed by
Legal Aid SA
BLOEMFONTEIN
On behalf of Respondent:
Adv. A. van Wyk
Instructed by
Director Public
Prosecutions
BLOEMFONTEIN