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[2017] ZANCHC 23
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Pieterson v S (CA&R28/13) [2017] ZANCHC 23 (17 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE
HIGHT COURT
KIMBERLEY)
Case
number :
CA&
28/
1
3
Date
heard:
27/02/ 2017
Date
delivered:
1
7/03/
2017
In
the matter of :
STOFFEL
PIETERSON
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
SNYDERS,AJ
1.
The appellant appeared in the Jan Kempdorp Magistrate's Court on a
charge of housebreaking with the intent to steal and theft.
It was
alledged that the appellant stole a grass side cutter to the value of
R3 000.00 on 28 February 2012, being the property
or in the lawful
possession of Ganspan Primary School.
2.
He pleaded not guilty and gave no plea explanation. He was convicted
of housebreaking with the intent to steal and theft and
sentenced to
18 months direct imprisonment.
3.
The appellant applied for leave to appeal against his conviction and
sentence. The court
a quo
granted the application. The
appellant has however abandoned the appeal against the sentence and
only stands before court on his
appeal against his conviction.
4.
The prosecution presented evidence of A Mohagi, being an employee of
Ganspan Primary School. He discovered the burglary and reported
same
to the principal. Upon arrival by the police the following day, he
accompanied them to the home of DJ Jacobs, as Mohagi indicated
that
stolen goods could at times be found at the home of Jacobs. Upon
their arrival at Jacob's house, one of the police officials,
Constable Mashuti feared that said Jacobs would not allow him access
to the premises. He then told Jacobs that he had the appellant
in
custody for stealing the grass side cutter. Jacobs then confirmed
that the appellant brought the item to his home at night to
cut his
grass. Upon Jacobs declining the offer, the appellant left the side
cutter at his house as he was too tired to carry it
home.
5.
Mohagi did not know who broke into the storeroom and stole the grass
side cutter. He testified that after the appellant was arrested,
he
asked the principal for forgiveness. It is common cause that Jacobs
was found in possession of the stolen item as described
above.
6.
It is further common cause that Mashuti lied to Jacobs about having
the appellant in custody, leading to the seizure of the grass
side
cutter. Mashuti further testified that after he arrested the
appellant, he admitted the theft to Mashuti and requested Mashuti
to
apologise to the principal on his behalf.
7.
The principal, Mr Nel also testified and comfirmed that the grass
side cutter was stolen out of the storeroom and that the value
thereof was R3 000.00. The principal testified that Mashuti returned
to the school with the appellant in the vehicle but did not
testify
about any apology.
8.
The appellant testified and denied breaking into the school and
stealing the grass side cutter. He denied having admitted the
offence
to Mashuti and denied apologising to the principal directly or
through Mashuti. The appellant denied the testimony of Jacobs
as
well.
9.
In his judgment the Magistrate repeated the evidence of the state
witnesses and the appellant and found that the state witnesses
had no
reason to lie and that the contradictions were immaterial.
Thereafter, the Magistrate concluded that the state proved its
case
beyond reasonable doubt against the appellant.
10.
I
t
is
trite
that a court of appeal will not readily interfere
with
the factual and credibi
l
ity
findings
of
a
trial
court. It will, however, do so
when
they
are
clearly
wrong,
and
especially
where they are not exclusively based on the demeanour of the witness,
but rather on the evidence which appears on record.
See
in
this
regard
Minister
of Safety and Security and Others v Craig and Others NN
0
[1]
This
view is supported
in
the
unreported
judgment
in
this
division
in
the
matter
of
Gert
De Bruin
v
The
State
[2]
.
11.
The Magistrate's reasoning in unequivocally accepting the evidence of
Jacobs and Mashuti is not clear. There is no critical
analysis of
their testimony and no evaluation is provided in determining that
their contradictions are immaterial.
12.
The Magistrate misdirected himself in failing to make a credibility
finding of the state witnesses in spite of the following
contradictions:
12.1
Mohagi indicated that
Jacobs initially refused entry, whilst this is
denied by Jacobs;
12.2
Jacobs indicated to Mohagi
that he hired the appellant to cut the
grass, but later testified that he already had someone who cut his
grass;
12.3
Mohagi testified that Jacobs
fetched the weed eater to give to the
police, whilst Jacobs indicated that the police entered and seized
the item;
12.4
Mohagi stated what the stolen
item was in Jacobs' bedroom, whilst
Jacobs indicated it was in the outside storeroom.
13.
The principal testified, and the court readily accepted, that Jacobs
was known as a person who was often in a possession of
stolen items.
The Magistrate goes as far as to indicate that Jacobs
should also have been prosecuted. Yet,
the
Magsitrate fails to apply a cautionary rule in evaluating Jacob's
evidence as an accomplice witness. Jacobs has a clear
motive to hide
his unlawful ventures and is presented with an opportunity by Mashuti
to place the blame elsewhere.
14.
This is opportunistic of Jacobs and his explanation for why the grass
side cutter is at his residence is improbable. The witness
does not
enquire why the appellant wishes to cut his grass at night and
accepts possession of an item based on the appellant's
fatigue to
carry the stolen item home. The appellant lives approximately 500 m
from the witness. The magistrate failed to take
this evidence into
account and thus misdirected himself.
15.
The
cautionary
rule
appl
i
cable
to accomplice witnesses
is
set out in S
v
Masuku
[3]
the
Judge held as follows
:
"
Accordingly,
to satisfy
the cautionary
rule, if
corraboration
is sought
it must
be corroboration
directly
implicating
the accused in the commission
of the offence.
Such
corroboration may, however, be found in the
evidence
of another accomplice
provided
that the latter is a reliable witness. Where
there is
no such corroboration,
there
must
be
some
other
assurance
that
the
evidence
of
the
accomplice is reliable ".
16.
Corraboration for Jacobs' testimony must thus be sought. It may be
found in the apology made by, or on behalf of, the appellant
to the
principal. Mohagi's testimony that this apology was made by the
appellant to the principal stands uncontested. Mohagi testified
that
the appellant personally apologised to the principal. This is an
important contradiction to Mashuti's testimony. Mashuti testified
that the appellant requested him to apologise to the principal on his
behalf. During testimony, the principal does not mention
any apology
by the appellant or on behalf of the appellant. Mashuti being a
constable, does not meet the requirements set out in
action 217(1)(a)
of the Criminal Procedure Act, Act of 1997. Mashute is a non
commisioned officer and thus not a Justice of
the Peace. The
confession and apology by the appellant to Mashute is thus
inadmissable. There is thus no satisfactory corraboration
for Jacobs'
testimony taking into account the contradictions between Mohagi and
Mashuti, the inadmissibility of Mashuti's
evidence and the
evidence by Mashuti on aspects that were not in his statement.
17.
The Magistrate failed to evaluate the appellant's testimony regarding
consistency, credibility findings and contradictions.
The Magistrate
made no finding that the appellant's testimony was not reasonably
possible.
18.
No principles are applied by the Magistrate regarding circumstantial
evidence and the evaluation thereof.
19.
The
Magistrate
misdirected
himself
in
not
addressing
the
principle
of
recent
possession.
I
f
an accused is found in possession of recently stolen goods and is
unable to give an account
which
can
reasonably
be
true, the court is entitled to
infer
that
such
accused
stole
the
goods
or
received
them
knowing
them
to
be
stolen.
Evidence that an accused was
in
possession of goods
shortly
after
they were stolen is admissible but places no onus on such accused to
explain his or her
possession
of the
m
.
In
other
words,
the
court is not bound to draw an
i
nference
of guilt
from
the
possession
of
the
stolen
goods
but
may
do
so
if
the
inference
is
justified
(R
v
N
x
umalo
1939
AD
580
at 587).
In
S
v
Parrow
[4]
at
604 E
it
was
stressed
that
the
burden
of
proof
remains
on
the
state
throughout
and
that
the
so-called
"doctrine"
of
recent
possession
is
simply
an
observation
using
common
sense
concerning
the
proof of facts
by
inference. In S
v
Skweyiya
[5]
the Appellate
Division
again
stressed that
it
is no "doctrine" but simply a manner of reasoning
by
means of
i
nference.
The
court
pointed
out
that
the
nature
of
the
goods
is
an
important
factor
in
the
reasoning,
especially
regarding
the
question
of
whether
the
possession
of the accused is "recent".
In
this
matter,
the
storeroom was
locked
in
the
afternoon and the housbreaking
and
theft occured thereafter.
The
police only
arrived
the following day.
The
question is then when the appellant was at Jacobs'
house
with the stolen item and Jacobs' testimony
is
unsatisfactory
in
this
regard.
No
finding on this principle can then be made against the appellant.
20.
S
v
Mokela
[6]
indicates
the importance
of
reasons
for
judicial decisions.
The
Magistrate
clearly misdirected
himself
in failing to provide reasons for his finding.
21.
The
question
arises
whether
the
Magistrate
may
have
misdirected
himself
in
presiding over the trial as he had presided over the earlier bail
application.
The
appellant's
previous
conviction
of
housebreaking
with
the
intent
to
steal
and
theft
[7]
became
known to the Magistrate.
As
I
am
of the view that the conviction should be set
aside,
I
will
not
delve
too
deeply
into
this
issue
aside
to
note
that
it
is
undesirable
for
a Magistrate
who
presided
over
the bail
application
to
preside over
the
trial, as perceived bias is sufficient to disqualify a Magistrate
from hearing a
matter
that
he
was
previously
i
nvolved
in.
[8]
22.
In the premise, I make the following order:
THE
APPEAL SUCCEEDS AND THE CONVICTION AND SENTENCE ARE SET ASIDE.
______________________
J.
A. SNDYERS
ACTING
JUDGE
I
concur
______________________
C.
J OLIVIER
JUDGE
[1]
2011(1)
SACR 469 [SCA]
at
para 58.
[2]
Case number CA&R
135/2014
(Olivier J)
.
[3]
1969
(2) SA 375
(N) at 375-377
[4]
1973
(1) SA 603 (A)
[5]
[1984] ZASCA 96
;
1984
(4) SA
712
(A) at 715C-G
[6]
2012
(1) SACR 431
(SCA)
at
para 12
[7]
Record p 4
[8]
S v
Booysen
2016
(l)
SACR
521
(ECG)
para
16