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[2016] ZAFSHC 190
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Mnguni v S (A152/2016) [2016] ZAFSHC 190 (3 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A152/2016
In
the matter between:
NXAKGANE
JAMES
MNGUNI
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE,
J
et
TSATSI, AJ
JUDGMENT
BY:
DAFFUE,
J
HEARD
ON:
24
OCTOBER 2016
DELIVERED
ON:
3
NOVEMBER 2016
I
INTRODUCTION
[1]
The appellant together with the co-accused were arraigned in the
regional court on two counts of stock theft in accordance with
the
provisions of Act 57 of 1959. Appellant’s three
co-accused successfully applied for this charge in accordance with
the provisions of section 174 of the Criminal Procedure Act 51 of
1977 (“the CPA”). On 16 March 2015 appellant
was
acquitted on count 1 but convicted on count 2 and sentenced to 5
years imprisonment in terms of section 276(1)(i) of the CPA.
[2]
Appellant unsuccessfully applied to the court
a
quo
for leave to appeal against conviction and sentence, but on 12 May
2016 Mocumie J (as she ten was) and Nicholson AJ granted
leave to
appeal. It must be stated at this stage that notwithstanding
the uncertain wording of the notice of motion the legal
representatives of appellant and the state were
ad
idem
that appellant applied for leave to appeal as the founding affidavit
does not contain any submissions pertaining to the sentence
imposed
upon appellant.
II
GROUNDS
OF APPEAL
[3] The following is a
summary appellant’s grounds of appeal.
1. When
complainant testify that 7 cattle were missing, but when she was
taken to accused 3’s farm she identified
9 cattle as those
belonging to her and were in her possession and under her control.
2. The
V-marks on the ears of the cattle were exactly the same as those of a
certain Mr Maduna.
3.
Complainant was uncertain about the identity of the cattle and she
and warrant officer Opperman contradicted
each other pertaining to
the pointing out of the cattle and the presence of other owners.
4.
Complainant did not observe any holes on the ears of her cattle where
the ear tags had been removed.
5.
Messrs Johannes Mofokeng and Joseph Dlamini contradicted each other
pertaining to the branding of the cattle
on instructions of
appellant.
6.
There was a conspiracy between warrant officer Opperman and Messrs
Mofokeng and Dlamini in order to falsely
testify against appellant.
7.
The photos contained in the buddle handed in as exhibit “A”
were incorrect photos and this influenced
the court
a
quo
in
arriving at his decision and he therefore misdirected himself by
relying on incorrect evidential material.
III
EVALUATION
OF THE JUDGMENT OF THE COURT
A
QUO
TOGETHER WITH SUBMISSIONS OF LEGAL REPRESENTATIVES
[4]
Mr Van der Merwe of Legal Aid South African who prepared the heads of
argument on behalf of appellant summarised the evidence
in detail and
although he pointed out certain aspects that concerned him, he
eventually conceded by necessary implication that
he could not submit
that the court
a
quo
erred in considering the totality of the evidence. If his heads
of argument are considered there is no doubt that he effectively
conceded that the appeal could not succeed.
[5]
The court
a quo
was satisfied that complainant and warrant
officer Opperman were credible and reliable witnesses.
Complainant testified that
one black cow and six Angus cross-bread
heifers (females) were missing. The black cow was marked with
the letters of her
late husband JVR whilst the heifers were too young
to be marked although they had the same earmarks than the cow, to wit
2 triangular
marks in the left ear and 1 triangular mark in the right
ear. Upon inspection she found another black cow and her calf
amongst
her other cattle on the farm of accused 3. This cow was
also marked as the others in her ears. Upon been questioned
during cross-examination it was indicated to her that the cattle on
accused three’s farm were fries cattle, but she was steadfast
in her approach that she knew her cattle and properly identified
them. Warrant officer Opperman also testified that after
the
cattle had been pointed out, he was involved in driving them back to
complainant’s farm. These cattle passed several
open
gates on the way to complainant’s farm without trying to enter
but immediately entered the open gate leading to complainant’s
farm. It is significant that warrant officer Opperman testified
upon arrival on the farm of accused three that the cattle
did not
belong to him but to a certain James who turned out to be the
appellant. It was put to him on behalf of the accused
three
that that was not his precise words, but that James would be able to
give more information about the cattle. Furthermore,
significant from warrant officer Opperman’s evidence is the
fact that he searched for evidential material and eventually
found
metal pins in the ash of the coal stove in accused three’s
house, these pins being used to fasten ear tags to cattle’s
ears. Warrant officer Opperman testified further that it was
clear on these inspections that complainant’s cattle as
well as
that of a Mr Tesner, the complainant in count 1 referred to
supra
were lightly branded with a different brand mark. This version
going insides with the version Messrs Mofokeng and Dlamini
referred
to
infra
.
[6]
It appears from the evidence as if there is a contradiction between
the version of complainant and warrant officer Opperman
pertaining to
the timing of the identification of the cattle by complainant.
According to complainant she pointed out her
cattle amongst other
cattle and she was unaware of other cattle owners that pointed out
their cattle as well. According to
warrant officer Opperman
three cattle owners of Reitz were called upon by him to identify
their cattle where after the remainder
of the cattle to wit 10 in
total was left. Complainant identified 9 of these as her
property but could not possibly identify
the one small calf as hers
which they left on the property of accused 3. However if the
evidence of warrant officer Opperman
is read in proper context it is
apparent that complainant’s cattle were not remove from the
camp after she had identified
them as her property and the same
applied to the cattle of the three Reitz cattle owners.
Complainant’s cattle were
only removed and driven her farm
after the cattle owners identified their cattle.
[7]
In my view the court
a
quo
was correct in concluding that complainant’s cattle were found
on accused three’s farm and that the cattle were properly
identified by her. There is also no reason to doubt
complainant’s version that the cattle had ear tags and that
these
were removed prior to her identifying her cattle. This is
in line with the evidence of Messrs Mofokeng and Dlamini.
[8]
Messrs Mofokeng and Dlamini know appellant well and they even
attended the church service on the farm of accused three at a
particular Sunday soon after complainant become aware that cattle
were missing from her farm. They corroborated each other
in all
material respects although they also contradicted each other on
smaller issues such as how many people attended the church
service.
They were asked to help with appellant with the branding of the
cattle and they testified as to what their jobs
were, how the iron
rod was heated up on the stove within accused three’s house and
thereafter used to brand mark several
head of cattle. There is
no reason to doubt the version of these two witnesses and the court
a
quo
correctly accepted that.
[9]
Appellant testified in his defence. It needs to be pointed out
at this stage that he never at any stage, either during
the plea
explanation or during the cross-examination of any of the state
witnesses put it to them that they, that is complainant
(her deceased
husband was apparently involved in a certain killing), warrant
officer Opperman and Messrs Moffokeng and Dlamini
conspired to
falsely accused appellant of the theft of complainant’s
cattle. However when he testified, the court heard
for the
first time that appellant was the victim of a conspiracy. In my
view this is clearly an afterthought and the court
a
quo
was correct to reject his version as false.
[10]
Appellant came with a different version in respect of the cattle.
According to him the owner of the cattle was a Mr Madoena
who by a
written agreement transported his cattle to appellant, he being a
co-owner of the farm where the cattle were found by
complainant and
warrant officer Opperman. At a later stage he indicated that
the cattle were in truth his grandfather’s
cattle and that he
inherited them. None of the cattle belonging to him were brand
marked. Although Mr Madoena’s
cattle were brand marked
with the letters PPR .
[11]
The stage version which were conveyed to the court for the first time
during appellant’s testimony is the fact that after
he had
heard rumours about _____ cattle found on his farm, he went to the
investigating officer, Mr Ntenyana where after the investigating
officer accompanied him to QwaQwa to obtain the iron rod with which
Mr Madoena’s cattle were marked EPR, that Mr Ntenyana
observed
the cattle and noticed the brand marks where after he showed the iron
rod to warrant officer Opperman who denied that
it was the same iron
rod use to mark the cattle on accused three’s farm. Later
Mr Ntenyana informed appellant that
complainant had identified cattle
on accused three’s farm but he has never sent his cattle.
This version was never
put to any of the state witnesses and warrant
officer Opperman in particular, especially in so far as appellant
wanted the court
a
quo
to believe that Mr Ntenyana accepted his version that he was not
involved in the theft of either the complainant or Mr Tesner’s
cattle.
[12]
I am satisfied that the court
a
quo
did not make any misdirection of fact and that it, being in a more
favourable position and the court of appeal a form a judgment,
came
to a correct conclusion pertaining to the inference _____ from the
proven facts and that is that appellant was guilty of stock
theft and
that he was correctly convicted as charged in respect of count 1.
I refer to
Rex
v
Dhlumayo
1948
(2) SA 677
(AD) at 705 to 706 and
S
v Monyane and Others
2008 (1) SACR 543
(SCA) para [15] for the test to be applied by a
court of appeal.
[13]
I am also satisfied that the court
a
quo
considered the evidence holistically, considered the inherent
probabilities and improbabilities – see
S
v Chabalala
2003 (1) SACR 134
SCA at para [15] and that it correctly rejected
appellant’s version as so improbable that it could not be
reasonably possibly
true. It is also significant to point out
that it was put to complainant on behalf of the appellant that he
would testify
that the cattle identified by her belonged to him and
contained his brand mark. However, as indicated, this is
indirect contrast
with appellant’s eventual version in that the
cattle actually to Mr Madoena who was the registered owner of the BPR
brand
mark. It appears from the record as if Mr Madoena
to which appellant’s legal representative referred to, was in
fact accused four. See
S
v Chakel
2001 (2) SACR 185
SCA at para [30]. A perusal of the record
indicates quite clearly that the photo album shown to complainant
during her testimony
was not handed in as exhibit at that stage and
at the evidence pertaining to cattle depicted in the photographs also
do no correspond
with the photographs forming part of exhibit “A”
eventually accepted by the court
a
quo
.
Although there is no indication when the court
a
quo
accepted exhibit “A” as such, the probabilities are
overwhelming that the photographs depicted in exhibit “A”
referred to the cattle of Mr Tesner pertaining to count 1. As
the court
a
quo
correctly pointed out, he did not rely on these photographs in order
to come to the conclusion that the appellant was guilty of
stock
theft. There is therefore no merit in the appeal and it should
be dismissed.
IV
SENTENCE
[14]
As indicated there is some doubt as to whether appellant intended to
apply to the High Court to appeal against his sentence
as well.
No submissions were made by any of the legal representatives in the
heads of argument pertaining to sentence and
as mentioned, appellant
did not make any averments and/or submission in his founding
affidavit in this regard. When I indicated
to advocate Bester
on behalf of the state that this court might consider the sentence
based on our inherent jurisdiction, she submitted
that the sentence
was not excessive and that we should not interfere, therewith even on
review. At this stage when the matter
was argued before us, I
was under the impression that the sentence was imposed in terms of
276(1)(b) but in preparation of this
judgment, I notice for the first
time that sentence was actually imposed in terms of section
276(1)(i), the effect being that the
appellant may be placed under
correctional supervision in the discretion of the Commissioner or
parole board on condition that
he has served at least 1/6 of the
effective sentence before being considered of placement under
correctional supervision.
See
section 73(7)
of the
Correctional
Services Act 111 of 1998
. This being the case, appellant can
count himself extremely lucky in so far as a very lenient sentence
has been imposed upon
him. There is therefore no reason to
interfere with the sentence ______, notwithstanding the fact that the
court
a
quo
misdirected itself by taking into account four offences of
stock theft and violet crime dating back as far as 1990 and therefore
not ______ appellant as a first offender.
V
ORDERS
[15]
Consequently the following orders are made.
1.
The
appeal is dismissed.
2.
The
conviction of stock theft and sentence imposed by the court
a
quo
are confirmed.
_____________
J.
P. DAFFUE, J
I concur.
_______________
E.
K. TSATSI, AJ
On
behalf of the appellant: Adv. Tshabala
Instructed
by:
Legal
Aid
BLOEMFONTEIN
On
behalf of the respondent: Adv. A. Bester
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb