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2016
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[2016] ZAFSHC 160
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Leeuw and Another v S (A57/2016) [2016] ZAFSHC 160 (22 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A57/2016
In
the appeal between:
TEBOHO
LEEUW
….................................
.First
Appellant
MOROLE
MOHLAPING
…..................................
Second
Appellant
and
THE
STATE
….................................
Respondent
CORAM:
REINDERS, J
et
MATHEBULA,
AJ
et
MHLAMBI,AJ
JUDGEMENT:
REINDERS, J
HEARD
ON:
29 AUGUST 2016
DELIVERED
ON:
22
SEPTEMBER 2016
[1]
On the 25
th
March 2015 the appellants, who were legally
represented, appeared before the district court at Phuthaditjaba on a
charge of theft
out of a motor vehicle, it being alleged that on or
about 9
th
March 2014 they stole a wallet containing cards,
alternatively that on the date in question they entered or climbed
upon such vehicle.
They pleaded not guilty but were convicted
on 14 May 2015 of theft out of a motor vehicle and sentenced to 18
months imprisonment.
Leave to appeal against both the
conviction and sentence was sought and granted by the trial court.
Bail pending the appeal was
also granted by the learned magistrate.
[2]
It is common cause that a purse containing cards belonging to Ms
Thembesile Radebe was stolen out of her vehicle
on 9 March 2014 and
that one of these cards, a Mr Price card, was found in possession of
the appellants on 10 March 2014.
[3]
The evidence upon which the learned magistrate convicted the
appellants can be gleaned from the record. Ms Radebe
testified that
she left her vehicle unlocked in front of BB Cash store on 9 March
2014. Only after arriving home did she realize
that her wallet went
missing from her handbag that was left on the front seat of the
vehicle. When in Mr Price store to discontinue
her card, the cashier
indicated that the said card was with the appellants who had just
enquired about the balance on the card.
The manager then called upon
security to close the doors when the appellants were about to do a
purchase. Whilst the appellants
were in possession of the cards,
someone else was standing outside the shop with the wallet. Second
appellant made a call to one
Senapi to bring the wallet, but she
refused to take it. During cross examination Ms Radebe conceded that
she did not indicate in
her sworn statement taken on 10 March 2014
(Exhibit A) that appellants had clothes with them and were about to
make a purchase.
She failed to give an answer as to the reason for
the omission of this fact.
[4]
Mr Joseph Ntombela was employed as a store assistant with Mr Price on
10 March 2014. The appellants requested him
to check the balance on
two store cards. They then proceeded to put clothes into a shopping
basket and were in the queue to pay
when he informed security to
close the doors of the shop. During cross examination he testified
that the appellants dropped the
basket on the floor and ran towards
the door when it was discovered that the cards did not belong to
them. They were caught at
the door, arrested and sent to the
storeroom. When confronted with his sworn statement made on 11 March
2014, he could not explain
why he omitted to mention in the statement
that the appellants were taken to a store room, had clothes in their
possession or tried
to flee. He admitted however that it was
indicated to him by appellants that they were sent by one Senapi to
enquire about the
balances on the cards.
[5]
The appellants testified that on 9 March 2014 they were on their way
to Tsetseng to obtain certain documentation
from the municipal
offices relating to school admission. On their way at Ghlatuto School
they met with one Senapi who requested
them to check the balance on
Mr Price store cards on his behalf as he was in a hurry. After the
second appellant, who was in possession
of the two store cards,
enquired about the balances, the doors of the store were closed. They
were arrested and taken to
the store room. The second appellant made
a call to Senapi, requesting him to come and give an explanation on
the cards. Whilst
waiting for his arrival a child arrived handing the
wallet of Ms Radebe to her.
[6]
The learned magistrate appreciated that the state case relied on
circumstantial evidence and that there were no
evidence regarding the
identity of the appellants as thieves. On returning the guilty
verdict the trial court rejected as not reasonably
possibly true the
appellants’ version to the effect that they were given the
cards by Senapi. The court a quo did not make
a finding on the
credibility of the state witnesses.
[7]
In argument on the papers and before us it is contended for the
appellant that the trial court erred in rejecting
the appellants’
versions and accepting that of the complainant as true regard being
had to,
inter alia,
contradictions and shortcomings in the
state case. Mr Reyneke submitted that the appellants could also
not be found guilty
of the competent verdict of being in possession
of the stolen goods as they tendered a reasonable explanation that
Senapi handed
it to them. Neither Ms Radebe nor Mr Ntombela could
dispute this.
[8]
It is trite that the inference that a person found in possession of
recently stolen property is a thief, can only
be drawn as the only
reasonable inference where the nature of the goods stolen and the
time lapse between the theft and the discovery
of goods in that
person’s possession, lend themselves to such a finding. The
onus of proof remains on the prosecution.
See:
S v Parrow
1973 (1) SA 603
(A)
[9]
Mr Mtetwa on behalf of the stay conceded that there was no basis for
a conviction by the trial court. It was submitted
that the learned
magistrate erred by failing to have proper regard to the said
contradictions, the explanation by the appellants
for being in
possession of the cards and the fact that one of the other items that
was stolen from the complainant’s vehicle,
namely the wallet,
was indeed found in the possession of a third party.
[10]
In the circumstances, although I have my grave concerns about the
appellants’ versions, it is reasonably possibly true
that they
were not involved in the breaking into the vehicle and the removal of
the cards, and in view of the state’s concessions
the
conviction of both accused as well as the sentences stand to be set
aside.
ORDER
[11]
In the result the appeal succeeds.
[12]
The conviction and sentence are set aside and replaced with the
following:
“
Both
accused are acquitted.”
______________
C.
REINDERS, J
I
concur.
___________________
M.A.
MATHEBULA, AJ
I
concur.
______________
J.
MHLAMBI, AJ
On
behalf of the appellant: Mr. J.D. Reyneke
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv.S.Mtetwa
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN