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[2016] ZAFSHC 191
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Van Heerden v S (A160/2016) [2016] ZAFSHC 191 (27 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal number:
A160/2016
In the matter between:
PIETER
VAN
HEERDEN
Appellant
and
THE STATE
CORAM:
DAFFUE,
J
et
GELA, AJ
HEARD
ON:
10
OCTOBER 2016
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
27
OCTOBER 2016
I
INTRODUCTION
[1]
Appellant was arraigned in the regional court held at
Hertzogville
on a charge of stock theft in that on or about 5-7 June 2013 he
unlawfully and intentionally stole sixty cattle valued at R450 000,
the property of, or in the lawful possession of Pauline De Bruyn.
[2]
Notwithstanding his plea of not guilty, he was convicted on 1 April
2016 as charged and eventually sentenced on 21 April 2016
to 6 years’
imprisonment.
[3] He
unsuccessfully applied to the court
a
quo
for
leave to appeal against conviction and sentence, but on 21 June 2016
leave to appeal was granted by Van Zyl J and Gela AJ.
II
APPELLANT’S PLEA EXPLANATION AND ESSENCE OF HIS DEFENCE
[4] A
plea explanation was tendered on behalf of appellant indicating his
defence in no uncertain terms. He relied on two
stock removal
certificates issued in terms of the Stock Theft Act, 57/1959 and duly
signed by the complainant, Mrs De Bruyn.
These certificates
were handed in with the consent of the prosecutor as Exhibit A.
In fact, it is apparent that the State
was at all relevant times in
possession of the original certificates and knew all along that
appellant would tender these certificates
in support of his defence
that the sixty cattle, the property of Mrs De Bruyn or which were in
her possession, were removed from
her farm with her consent.
One of the elements of the offence of theft, to wit unlawfulness, was
therefore placed in contention.
Appellant’s attorney
informed the court
a
quo
during
the plea explanation that in the event of the court finding that the
cattle were removed without consent, it would justify
a conviction.
III
CONCLUSIONS OF THE COURT
A
QUO
[5]
After the leading of evidence and oral arguments presented by the
State and the defence, the court
a
quo
made serious comments regarding the unethical and fraudulent
behaviour of appellant and eventually found as follows:
“
Daar
is dus geen vereiste vir diefstal dat beskuldigde sonder toestemming
die vee uit Me De Bruyn se sorg moes verwyder het nie.
Die feit
of die blote feit dat beskuldigde homself hier ooglopend hier ook aan
bedrog skuldig gemaak het waarvan hy nie aangekla
is nie doen geen
afbreek (sic) daarvan dat hy onder slinkse en valse voorwendsels Me
De Bruyn se beeste by haar verwyder het en
glad nie voornemens was om
met hulle te handel soos wat hy met haar ooreengekom het nie en
alreeds voor hy daardie
BEWYSSTUK
“A”
of vervoer- of die verwyderingsertifikaat voltooi het reeds geweet
het dat daardie beeste hoegenaamd nie na Philipstown gaan nie,
maar
direk na Mnr Laas se plaas op pad was, maar (sic) my mening is die
feite vanselfsprekend en het beskuldigde hier duidelik
ooglopend die
klaagster van haar eiendom ontneem en is dit totaal onwaarskynlik dat
indien hy enigsins vir daardie beeste hetsy
in totaal of gedeeltelik
betaal het aan haar of aan haar seun dat hy dit nooit teenoor hulle
sou geopper het nie en aanhoudend
verskillende verskonings gehad het
oor wat die toedrag van sake was voordat hy erken het dat hy die geld
inderdaad gebruik het,
daardie getuienis was op geen stadium
in die
geringste mate betwis nie.”
[6]
The court
a
quo
found that appellant removed Mrs De Bruyn’s cattle from her
farm under false pretences and in doing so he intended to permanently
deprive her of her property. It appears from the court
a
quo’s
reasoning as if unlawfulness was not regarded as an element of the
crime of theft. I quote the following passage:
“
Daar
is namens beskuldigde klem daarop gelê dat hy toestemming gehad
het om die beeste te verwyder, of daar toestemming daartoe
was is
natuurlik nie in geskil nie,
dat dit ‘n vereiste is dat hy die beeste uit haar
(sic)
wederregtelik
moes verwyder is net so min ‘n vereiste vir diefstal.”
The
court
a
quo
then referred to the definition of theft provided by CR Snyman in the
fourth edition of Strafreg which definition also appears
in Snyman
CR,
Criminal
Law
,
5th ed, 483 and reads as follows:
“
A
person commits theft if he unlawfully and intentionally appropriates
moveable, corporeal property which
(a)
belongs
to, and is in the possession of, another;
(b)
belongs
to another but is in the perpetrator’s own possession; or
(c)
belongs
to the perpetrator but is in another’s possession and such
other person has a right to possess it which legally prevails
against
the perpetrator’s own right of possession
provided
that the intention to appropriate the property includes an intention
permanently to deprive the person entitled to the
possession of the
property, of such property.”
The
author reminds us at 484 that the elements of the crime of theft are
the following:
“
(a)
an act of appropriation; (b) in respect of a certain type of
property; (c) which takes place
unlawfully
(wederregtelik
)
and (d) intentionally (including an intention to appropriate).”
(my
emphasis and translation.)
The
court
a
quo
proceeded
and made the further unfortunate remark:
“
Daar
is dus geen vereiste vir diefstal dat beskuldigde sonder toestemming
die vee uit Me De Bruyn se sorg moes verwyder het nie.”
I
shall deal with this
infra.
IV
THE UNCONTESTED
EVIDENCE
[7]
The following evidence is either uncontested and/or common cause
and/or is corroborated by objective facts and must be accepted
as
proven:
1.
Appellant
attended complainant’s farm on about 5 June 2013 and a
discussion ensued pertaining to the possible selling of complainant’s
cattle which were not in a good condition at the time.
2.
Appellant,
alleging that he was a representative of Karan Beef, indicated that
he could arrange for the cattle to be transported
to a feedlot in
Phillipstown and once the cattle had been fed for a month they could
be taken to the local abattoir to be slaughtered
where after
complainant would receive the proceeds due to her. No price was
discussed although complainant mentioned to appellant
that the value
of the cattle was about R500 000. Appellant indicated that
he would arrange vehicles to transport the
cattle.
3.
The
next day appellant arrived unannounced at the kraal on complainant’s
farm where the cattle were kept. He was accompanied
by Mr Laas,
(“Laas”) the second State witness, the owner of a feedlot
and abattoir in Bloemhof. When complainant
arrived at the kraal
and showed her dissatisfaction pertaining to Laas’ attendance,
appellant indicated that he was merely
brought along to establish how
many trucks would be required to transport the cattle.
4.
Later
that day two trucks arrived and the cattle were loaded and removed
from the farm after appellant had filled out two stock
removal
certificates indicating the required details such as the name and
address of the owner, particulars of the trucks and cattle
to be
transported, the identity of the new owner and the destination of the
cattle. Appellant was merely required to sign
the documents
which she did on 6 June 2013.
5.
By
the time the stock removal certificates were signed, appellant had
already sold complainant’s sixty cattle to Laas and
obtained
payment in the amount of R220 000, being the agreed selling
price, by way of a cash cheque issued and cashed at the
bank
whereupon the cash was handed by Laas to appellant.
6.
Laas
was informed by appellant that he acted as agent for complainant who
would not consent to the removal of the cattle unless
the selling
price of the cattle was paid in cash.
7.
Contrary
to the agreement entered into between appellant and complainant,
appellant indicated in the stock removal certificates
that he had
become the new owner of the cattle and his residential address was
given as Phillipstown. The cattle were to
be transported from
Hertzogville to Phillipstown.
8.
Contrary
to the oral agreement as well as the “consent” given in
the stock removal certificates, the cattle were never
taken to
Phillipstown, but to Laas who have them slaughtered for his own
account.
9.
After
a month complainant started to make enquiries about the whereabouts
of her cattle and appellant directed her to a certain
person at the
abattoir who informed her that the abattoir was not in business due
to faulty machinery. She contacted Karan
Beef who told her that
appellant did not work for them and that they did not have a feedlot
in Phillipstown.
10.
She
confronted appellant hereafter who proffered several versions, but
eventually admitted that he sold the cattle to Laas and that
he had
spent the money received. Notwithstanding several undertakings
by appellant, even with the assistance of an attorney,
Mr Jacques le
Grange of Warrenton, appellant failed to pay the amount of R403 000
which he admitted was due to her and even
offered to pay in two
instalments, to wit R250 000 on 23 October 2013 and R163 000
on or before 28 November 2013.
11.
Although
in dispute, I am prepared to accept the evaluation of the evidence by
the court
a
quo
to the effect that appellant never paid complainant or her son any
amount in respect of the cattle which he had sold to Laas.
Appellant’s version about payment in cash in the amount of
R190 000 to complainant’s son was never put to
complainant,
but in any event appellant contradicted himself in so
many instances that his version cannot, even on its own be accepted
as reasonably
possibly true. No purchase price was ever agreed
upon between appellant and complainant and the sale to Laas was not
communicated
to complainant until much later after appellant had
painted himself into a corner.
Notwithstanding
the undisputed facts tabulated
supra
,
it is necessary to consider certain legal principles where after an
evaluation of the court
a
quo’s
judgment will be undertaken. It needs to be said at this stage
that Mr Strauss, appearing for the State, did not support
the
judgment and submitted that the appeal against conviction should
succeed. However, he did not present authorities for
the
conclusion arrived at, neither in his written heads of argument, nor
in oral argument.
V
APPLICABLE LEGAL PRINCIPLES
[8]
It is an established principle that where an appeal is lodged against
a trial court’s findings of fact the court of appeal
must take
into account that that court was in a more favourable position than
itself to form a judgment. Even when inferences
from proven
facts are in issue the court
a
quo
may also be in a more favourable position than the court of appeal,
because it is better able to judge what is probable or improbable
in
the light of its observations of witnesses who have appeared before
it. Therefore if there are no misdirections on the
facts a
court of appeal assumes that the court
a
quo
’s
findings are correct and will accept these findings, unless it is
convinced that these are wrong. See
R
v Dhlumayo and Another
1948 (2) SA 677
(AD) at 705-6. Therefore in order to interfere
with the court
a
quo
’s
judgment it has to be established that there were misdirections of
fact, either where reasons on their face are unsatisfactory
or where
the record shows them to be such. See also
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at para [15] where the SCA stated that it is
only in exceptional cases that it would be entitled to interfere with
the trial
court’s evaluation of oral evidence.
[9]
It is acceptable in evaluating the evidence in totality to consider
the inherent probabilities and the following
dictum
by Heher AJA, as he then was, in
S
v Chabalala
2003 (1) SACR 134
(SCA) at para [15] is apposite:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
[10]
An accused’s version cannot be rejected merely because it is
improbable. It can only be rejected on the basis of
the
inherent probabilities if it can be said to be so improbable that it
cannot reasonably possibly be true. See
S
v Shackell
2001 (2) SACR 185
(SCA) at para [30] which I quote:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough. Equally trite is
the observation that, in view of this standard of proof in
a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s
version
is reasonably possibly true in substance the court must decide the
matter on the acceptance of that version. Of course
it is
permissible to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely
because it is
improbable; it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable
that it cannot
reasonably possibly be true
.”
See
also
Olawale
v The State
[2010] 1 All SA 451
(SCA) at para [13].
[11]
Section 208
of the
Criminal Procedure Act, 51 of 1977
provides that
an accused may be convicted of any offence on the single evidence of
any competent witness. When it comes to
the consideration of
the credibility of a single witness a trial court should weigh the
evidence of the single witness and consider
its merits and demerits
and having done so, should decide whether it is satisfied that the
truth has been told, despite any shortcomings,
contradictions or
defects in the evidence. See
S
v Sauls and Others
1981 (3) SA 172
(AD) at 180E-G.
[12]
The failure to call an available witness may not be without
consequences, especially where the State relies on the evidence
of a
single witness. The failure by the State to call such further
witness may in particular circumstances justify the inference
that,
in the prosecutor’s opinion, such evidence might possibly give
rise to contradictions which could reflect adversely
on the
credibility and reliability of the single State witness. See
S
v Teixeira
1980 (3) SA 755
(AD) at 764A - B. This aspect will be
considered
infra
insofar
as complainant’s son was not called to testify.
[13] I
referred to the definition of theft advanced by Snyman
supra
and
do not intend to repeat same. The same applies to the elements
of the crime of theft. If the court
a
quo
really wanted to indicate that unlawfulness is not an element of the
crime of theft, there can be no doubt that he committed a
serious
misdirection and an error in law. Consent by a person who would
otherwise be regarded as the victim of an accused’s
conduct may
in certain cases render the accused’s otherwise unlawful
conduct lawful. As Snyman clearly indicates at
127, theft is
one of those crimes in respect of which consent may operate as a
ground of justification excluding unlawfulness.
[14]
It is one thing to rely on consent as a defence excluding
unlawfulness, but another to succeed with such defence. I
indicated in the previous paragraph that consent may operate as a
ground for justification in a crime such as theft. It is
important to note that the consenting person must be aware of the
true and material facts regarding the act to which he or she
consents. It was stated as follows in
Waring
and Gillow Ltd v Sherborne
1904
TS 340
at 344 and I quote:
“
It
must be clearly shown that the risk was known, that it was realised,
and that it was voluntary undertaken. Knowledge, appreciation,
consent - these are the essential elements.”
Jonathan
Burchell holds the following view in
South
African Criminal Law and Procedure,
4
th
ed, vol 1 at ch 14, 237:
“
In
the case of theft it is contended that a taking is
invito
domino
(without
the owner’s consent) unless the consent is real and that
consent is not real for the purpose of the criminal law
if it is
induced by fraud whether or not intention to pass ownership is
nullified. Where X induces Y to hand to him R200
on the pretext
that he will bank it for him and X makes off with the money, it is
theft (even though it is also theft by false
pretences and fraud)
because, although Y consents to hand over the money, he does not
consent to X stealing it.”
[15]
Fraud is defined by Snyman at 531 as follows:
“
Fraud
is the unlawful and intentional making of a misrepresentation which
causes actual prejudice or which is potentially prejudicial
to
another.”
Appellant
was not arraigned for fraud and it is also not a competent verdict in
respect of a charge of theft, but I shall briefly
deal therewith in
evaluating the evidence as the court
a
quo
opined
that appellant’s conduct fell within the definition of fraud.
[16]
Notwithstanding criticism our law still acknowledges the offence of
theft by false pretences which is defined by Snyman at
543 as
follows:
“
A
person commits theft by false pretences if she unlawfully and
intentionally obtains movable, corporal property belonging to another
with the consent of the person from whom she obtains it, such consent
being given as a result of a misrepresentation by the person
committing the crime, and appropriates it.”
The
author describes the elements of the crime to be the following:
“
(a)
a misrepresentation (b) actual prejudice (c) a
causal link between the misrepresentation and the prejudice
(d) an
appropriation of the property (e) unlawfulness and (f) intention.”
[17]
Kruger A,
Hiemstra’s
Criminal Procedure,
issue 9, summarises the differences of opinion of our courts and
authors pertaining to the crime of theft by means of false pretences
as follows at 26-23:
“
There
is a difference of opinion on whether finding of “theft by
means of false pretences” is competent on a charge
of theft.
The concept was correctly described by Van den Heever J in S v
Mofoking
1939 OPD 117
as a deformed legal concept and by De Wet in
Strafreg
4
th
ed at 416 as a monstrosity. The offence is nothing other than
fraud. Hunt
Criminal
Law II
at 754 calls this a “shadowy and ambiguous crime.” He
says it is fraud, although not called such. The Free
State High
Court in S v Kudjiwane
1975 (3) SA 335
(0) unambiguously decided that
on a charge of theft no finding of theft by false pretences is
possible. One consideration
in coming to that conclusion was
that theft by false pretences is a more serious crime than theft
simpliciter
because false representations are added. The prosecutor should
simply see to it that theft is charged according to the facts
or
that, if there was misrepresentation, fraud is charged.
In the
Transvaal Provincial Division the origin of the view that such
finding is possible is in R v Hyland
1924 TPD 336.
The
correctness of this view was doubted in several cases discussed in R
v Levitan
1958 (1) SA 639
(T) where the Hyland principle was
grudgingly accepted. In S v Stevenson
1976 (1) SA 636
(T) the
designation of the offence was rejected
obiter.
The
Natal High Court has not rejected the offence, as either an
eo
nomine
offence or as a competent verdict (R v Teichert
1958 (3) SA 747
(N);
S v Nkomo
1975 (3) SA 598
(N)). The view in the Natal
Provincial Division is that the particulars of the false pretences
must be given otherwise the
accused would be prejudiced.
It is
submitted that the offence
eo
nomine
is unnecessary and that it is not a competent verdict on a charge of
theft because
section 264
does not authorise it, nor does
section 270
because it is a wider offence than theft. The charge should
simply be fraud.”
[18]
Snyman at 544 states that the “
(C)riminal
law would be none the poorer if this crime were discarded.”
The author submitted that it
would
not be satisfactory to treat all cases of theft by false pretences
simply as cases of fraud and that the best way of treating
such cases
would be to charge the accused with ordinary theft, but to include a
specific allegation in the charge sheet to the
effect that the
accused obtained the property as a result of false pretences.
For this submission the author relies on
Levitan
and
Teichert
supra
as
well as
S
v Knox
1963
(3) SA 431
(N) and
S
v Salemane
1967 (3) SA 691
(O).
Snyman’s
approach is supported by Du Toit
et
al,
Commentary
on the
Criminal Procedure Act,
service
56, vol 1 at 26-17.
[19]
Having referred to the views of Kruger, Snyman and Du Toit
et
al supra
,
it is necessary to consider the Free State judgments of
Salemane
and
Kudjiwane
supra
in more detail. In
Salemane
the
court accepted at 692C-F and 694A-E that theft by false pretences as
a crime
eo
nomine
existed, but stated that theft
simpliciter
was
sufficiently wide to include theft by false pretences and that
accused persons could be successfully charged with theft even
where
the State relies on false pretences. Where evidence of false
pretences is available, the prosecutor may choose in a
judicious
manner whether to charge in respect of theft or theft by false
pretences. If the prosecutor decides to proceed
with a charge
of theft, the court must consider with a view to prejudice whether
the accused is entitled to further particulars,
even if he does not
ask therefore.
[20]
In
Kudjiwane
the Free State High Court accepted the correctness of the reasoning
and conclusions in
Salemane
at 336E-G, but concluded that insofar as theft by false pretences
includes an element of falseness, it is a more serious crime
than
theft and therefore a conviction of theft by false pretences is not
permissible on a charge of ordinary theft.
[21] I
could not find any judgment on the relevant topic, save for the old
authorities quoted, but for the recent judgment of the
Supreme Court
of Appeal in
S
v Mia and Another
[2008] ZASCA 117
;
2009 (1) SACR 330
(SCA). In this judgment the SCA found that
theft was a generic offence that encompasses theft by false
pretences. The
court found that although fraud was not a
competent verdict on a charge of robbery, it was competent for a
court to convict an
accused on the competent verdict of theft where
the charge is one of robbery. It is apposite to quote the
relevant passage
of the judgment in full which reads as follows:
“
[16]
That is not what happened here. No sooner had Ebrahim voluntarily put
the money on the table than the unexpected happened.
The
transformation of Peter Lehman, the German investor, into a policeman
was not what Ebrahim had bargained for and he immediately
made good
his escape. He was not induced to hand over the money by
the representation; rather he abandoned control of it when
the
representation was made and thus enabled Howell to take it at his
leisure, knowing that he had not yet received the consent
of Ebrahim
to do so. That the trap was not a genuine police trap did not turn
Howell's conduct into fraud.
It
is also incorrect to suggest, as Howell's counsel attempted to
do, that there can be no conviction for theft by false pretences
where the charge-sheet does not specifically mention this offence.
Counsel referred in this regard to an unreported judgment of Stafford
J (in which Strydom J concurred) in which it was found that
'fraud in
the form of theft by false pretences was not the type of theft
contemplated by the legislator as a competent verdict
in
s 260
(d)
'
[on a robbery charge]. I disagree. No such distinction is implicit in
the section. Clearly it is competent for a court to convict
on the
competent verdict of theft where the charge is one of robbery.
Theft
is a generic offence that encompasses theft by false pretences
.
See
Ex
parte Minister of Justice: In re R v Gesa; R v De Jongh
1959
(1) SA 234
(A) at 239E - H where it was stated:
If
there was deception so fundamental that the will of the victim did
not go with the act, there could be a taking and therefore
larceny,
called larceny by a trick. But if the deception was not so
fundamental as wholly to nullify the voluntariness of the act,
there
was no room for larceny. Yet the deceiver's conduct had to be
punished and so the crime of obtaining goods by false pretences
was
devised. As was pointed out by RAMSBOTTOM J., in
Dalrymple,
Frank and Feinstein
v.
Friedman
and Another
,
1954 (4) S.A. 649
(W) at p. 664, it is not correct to say that our
law's treatment of both types of fraudulent acquisition of another's
goods - the
larceny by a trick type and the obtaining by false
pretences type - as theft by false pretences owes its origin to
English practice.
On the
contrary in 1895 in
R.
v.
Swart
,
12 S.C. 421
, De Villiers, C.J., stated that our law differs from the
English law and has always treated facts covered by the English crime
of obtaining by false pretences as theft. Ten years later
in
Rex
v.
Collins
,
19 E.D.C. 163
, Kotze, J.P., said that theft in our law has a much
wider scope than the corresponding term in English law and that our
crime of
theft is wide enough to include the obtaining of goods by
false pretences.
The
belief that our law of theft incorporated theft by false pretences
under the influence of English law, a belief expressed, for
instance,
in
Rex
v.
Mofoking
,
1939 O.P.D. 117
, may have been encouraged by the mistaken notion that
there is in English law a crime of theft by false pretences
(
cf
.
Rex
v.
Hyland
,
1924 T.P.D. 336
). It is true that the name of the English crime of
obtaining by false pretences may well have suggested the use of the
expression
'theft by false pretences' (cf. Transkeian Penal Code,
secs. 191 to 193), but our law successfully resisted any tendency
that there
may have been to confine theft within the narrow limits of
larceny.
Howell
was in my view correctly convicted of theft and his appeal must
fail.”
(emphasis
added.)
[22]
Notwithstanding some of the old authorities it appears as if the
Mia
judgment is authority for the usefulness of the crime of theft by
false pretences. More importantly, when on a charge of
theft
the evidence shows that the accused committed theft by false
pretences, there is no reason why he/she should not be convicted
of
theft as charged.
[23]
An accused person’s right to a fair trial, which rights
includes the right to be informed of the charge with sufficient
detail to answer it and to have adequate time and facilities to
prepare his/her defence as set out in s 35(3) (a) and (b) of the
Constitution has not been considered in
Mia
and bearing in mind the constitutional era in which we find
ourselves, it is required to consider the rights of accused persons
in more depth as was the case in some of the older authorities.
The issue of prejudice must be scrutinised in order to come
to a just
conclusion, bearing in mind the particular facts in
casu
.
Criminal trials have to be conducted in accordance with notions of
basic fairness and justice. The nature of the right
to a fair
trial as a comprehensive and integrated right has been emphasised in
several judgments. Fairness is obviously not
a one way street
and the right to a fair trial requires fairness to the accused as
well as the public as represented by the State.
See
S
v Basson
2007 (1) SACR 566
CC at para 26 and authorities quoted.
VI
EVALUATION OF THE COURT
A
QUO’S
JUDGMENT
AND SUBMISSIONS OF THE PARTIES
[24]
As indicated
supra
Mr Strauss on behalf of the State does not support the conviction.
Although he did not refer us to any legal principles and/or
authority, his conclusion is based on the following two factors:
1.
Appellant
was in possession of stock removal certificates signed by the
complainant.
2.
Appellant’s
version that he paid complainant’s son could not be refuted by
the complainant.
[25]
Appellant’s legal representative relied heavily on the signing
of the two stock removal certificates and that the State
failed to
prove beyond reasonable doubt that no payment was made as alleged by
appellant, i.e. that appellant’s version that
he paid the
proceeds of the cattle to complainant’s son could reasonably
possibly be true.
[26]
I already alluded to the information contained in the two stock
removal certificates. Contrary to the oral agreement
entered
into between appellant and complainant that the cattle be taken to a
feedlot in Phillipstown to be fed and slaughtered
once their
condition improved, the documents filled out by appellant and signed
by complainant indicate quite clearly that appellant
immediately
became the owner of the cattle which were to be transported to
Phillipstown. Complainant’s consent was
given on the
basis that she would remain owner of the cattle which would be fed
for a month at the feedlot of Karan Beef, where
after they would be
slaughtered and she be paid the proceeds once the costs of feeding
have been deducted. There can be no
doubt that she would never
have signed the stock removal certificates if she knew that appellant
had already sold the cattle to
the second State witness who had paid
him cash in the amount of R220 000 and which information (and
payment) appellant withheld
from her.
[27]
Consent must be real and informed. Fraud vitiates consent.
It does not matter whether there was active disclosure
or a
fraudulent non-disclosure. The example given by Burchell quoted
supra
is apposite, and so also the factual basis on which the one appellant
was convicted in
Mia
supra.
It
is highly unlikely and unthinkable that any reasonable person and
owner of cattle would sign stock removal certificates indicating
that
they were to be transported to Phillipstown on the other side of the
Gariep River and in a totally different direction than
Bloemhof, an
aspect that I may take judicial notice of, in order to be fed in a
feedlot for a month, if such owner had been informed
that the cattle
were already sold by the person responsible for their transport, and
that they were on their way to an abattoir
owner of Bloemhof to be
slaughtered and who had already settled the purchase price by paying
the person responsible for the transport
in cash.
[28]
The charge sheet does not reflect a specific allegation to the effect
that appellant obtained the cattle as a result of false
pretences as
suggested by
inter
alia
Snyman.
However and notwithstanding the views of the author as well as some
of the other views referred to
supra
,
I am convinced that appellant had a fair trial and cannot claim that
any of his constitutional rights have been infringed.
He was
represented by an experienced attorney who also argued the appeal
before us. Appellant was clearly fully prepared
for the case,
well-knowing what the complainant’s testimony would be.
Her witness statement was even put to her during
cross-examination.
If her version wasn’t known before the trial started, which is
highly unlikely, it would have become
known immediately when the
complainant started to give her testimony. There was no
objection to her testimony; she was not
confronted for providing a
different version as that contained in her witness statement and
there was at no stage a request for
a postponement to consider
appellant’s rights.
[29]
Appellant’s version that he paid R190 000 in cash for the
cattle to complainant’s son is clearly false if
his
contradictory versions are considered in conjunction with the
totality of the evidence. This version was never put to
complainant. He made a poor impression on the court
a
quo
and as far as I’m concerned, a reading of the record confirms
that the court
a
quo
was correct. Appellant was a bad witness who changed his
version several times and his own version indicates the fraudulent
nature of his actions.
[30]
Although it might have been prudent in a different situation to make
a negative deduction in respect of the State’s failure
to call
the complainant’s son to testify pertaining to the alleged
payment, I’m satisfied that this was not such a
case. The
appellant’s version is a concoction and his testimony (of which
there are several versions) that he paid
complainant’s son is
so improbable, considered with the totality of the facts that it
could not be found to be reasonably
possibly true. He is
clearly a fraudster who relied on religion and even insisted on
praying for complainant’s unhealthy
son to soft-soap her, a
widow faced with a severe drought, a bad harvest and sub-standard
cattle as a result, in order to do fraudulent
business with her and
thereby dispossessing her of sixty cattle to a value in excess of
R400 000 which he sold for the meagre
price of R220 000,
keeping the money for himself.
[31]
Having considered the uncontested evidence, appellant’s defence
of consent never stood any chance to succeed. Although
complainant was in many aspects a single witness, the material
aspects of her version was not contested and there was no reason
why
the court
a
quo
should
not have accepted it. The element of unlawfulness and all other
elements of the crime have indeed been proven by the
State beyond
reasonable doubt. I say this notwithstanding the difficulty I
have with the court
a
quo’s
dicta
mentioned
supra
.
The allegation that payment has been effected to complainant’s
son at a later stage is really irrelevant in respect
of the offence
of theft and the accepted evidence, but in any event the court
a
quo
was
correct in rejecting appellant’s version as false and not
reasonably possibly true. It was not necessary to call
complainant’s son and no negative deduction is called for.
Consequently the court
a
quo
was correct in convicting appellant of theft as charged.
[32]
I have considered the court
a
quo
reasons for the sentence of six years’ imprisonment, the
personal circumstances of appellant as well as the evidence in
aggravation of sentence. I have also considered that appellant
prayed for a wholly suspended sentence and informed the court
a
quo
that
he was prepared to judgment being granted against him in terms of
s
300
of the
Criminal Procedure Act, 51 of 1977
for R220 000,
being complainant’s alleged damages, the debt to be paid off
with the help of his family in an initial
amount of R20 000 and
monthly instalments of R2 000 each. The amount offered is
wholly inadequate. Complainant
did not ask for an order in
terms of
s 300
and she was also unaware of the offer and did not
consent thereto. Furthermore appellant’s financial
position was such
that his expenditure exceeded his income at the
time and in all likelihood he would not be able to keep up his
undertaking.
Finally, it would take a diligent debtor more than
eight years to settle the capital of the debt, whilst no provision
was made
for payment of any interest.
[33]
Stock theft is prevalent in the Free State and Northern Cape.
Farmers suffer thousands of Rands of damages annually and
these kinds
of crimes have a major negative impact on the economy of our country
as a whole and the farming community in particular.
Notwithstanding the imposition of heavy sentences, there is little or
no evidence of a decrease in crime statistics.
[34]
In
S
v Oosthuisen en ‘n ander
1996
(1) SACR 475
(O) at 476f-j the court remarked that stock theft had
reached epidemic proportions and that the tide would not be stemmed
unless
more severe sentences were to be imposed. Also, in the
Northern Cape there was during the same year a plea for more severe
sentences. See:
S
v Seiphoro
1996
(2) SACR 513
(NC) at 518-9. In
S
v Oosthuizen
1993
(1) SACR 10
(AD) stock theft was committed on three occasions and a
total of sixteen ewes were stolen. The Appeal Court found the
effective
sentence of 4 years’ imprisonment to be in order. In
S
v Tyres
1997
(1) SACR 261
(NC) the appellant’s sentences were increased on
appeal to 24 months each for theft of 15 and 18 sheep respectively.
In
S
v Velebhayi
2015
(1) SACR 7
(ECG) sentences of 14 years’ imprisonment for two
appellants and 16 years’ imprisonment for the third appellant
were
imposed on appeal. A total of 168 sheep were stolen over a
period of two months from four farms. Bearing in mind the
above
sentences and others from our lower courts normally found to be in
order on review and appeal, the sentence imposed is not
out of kilter
with those imposed in this Province, especially if the quantity of
the cattle and their value as well as the manner
in which the crime
has been committed are taken into consideration.
[35]
I could not find any misdirections committed by the magistrate and
I’m also not convinced that the sentence is disproportionate
with the loss suffered by complainant. Therefore the appeal
against the sentence should be dismissed as well.
VII
CONCLUSION
[36]
In conclusion it is my view that the state has proven its case beyond
reasonable doubt and that the sentenced imposed cannot
successfully
be attacked on any grounds. Therefore the appeal against
conviction and sentence should be dismissed.
VIII
ORDERS
[37]
Consequently the following orders are made:
1.
The
appeal against conviction and sentence is dismissed.
2.
The
conviction and sentence imposed by the court
a
quo
are confirmed.
____________
JP
DAFFUE, J
I
concur
___________
N
GELA, AJ
On
behalf of appellant:
M
Coetzee
Instructed
by:
Mario Coetzee Attorneys
Pretoria
On
behalf of the respondent:
M Strauss
Instructed
by:
Director of Public Prosecutions
Bloemfontein