About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 48
|
|
Zondo and Another v S (AR514/15) [2016] ZAKZPHC 48 (9 June 2016)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO: AR514/15
DATE:
09 JUNE 2016
In
the matter between:
SANDILE
ZONDO
..........................................................................................................
First
Appellant
SANDILE
MAPHISA
..................................................................................................
Second
Appellant
Vs
THE
STATE
...........................................................................................................................
Respondent
APPEAL JUDGMENT
Delivered:
09 June 2016
MBATHA,
J
[1]
The appellants before court were convicted in the Regional Court
sitting at Vryheid on 26 May 2015 of stock theft. They were
sentenced
to 8 years imprisonment of which four (4) years was suspended for a
period of five (5) years on condition that the accused
were not
convicted of stock theft or produce during the period of suspension.
The appeal against conviction is with the leave of
the court
a
quo.
[2]
The charges arose under unusual circumstances, in that the stolen
cattle were recovered before the theft thereof had been discovered
by
the owner or the manager of the farm.
[3]
A call from a community member was received by Constable Ntombizodwa
Princess Ngobese, stationed at Nondweni Police Station
at about 07h30
reporting that two men were seen driving the cattle past Phoqukhalo
area. She together with Constable Amon Dlamini
proceeded to the place
where the cattle were sighted. They travelled in a marked police
motor vehicle. As they approached a mountain
they saw a herd of
cattle driven by two male persons. Upon reaching the place where the
two men were, they alighted from their
motor vehicle and introduced
themselves as police officers to the two males who gave their names
as Sandile Maphisa and Sandile
Zondo. Upon enquiring where they were
headed, appellant 2 informed them that the cattle in their possession
were to be used as
lobolo at his home and that the cattle had gone
missing. The cattle belonged to his brother, Sifiso.
[4]
It was then that Constable Ngobese decided to make a call to Captain
Mbongiseni Elphas Mtshali, a member of the Stock Theft
Unit in Nqutu
to come and investigate as she wanted the Stock Theft Unit to confirm
the allegations that the accused were saying
to her.
[5]
Captain Mtshali arrived and upon interviewing the appellants was
informed by the appellants that the cattle belonged to Sifiso,
who
was in Gauteng. They were taking the cattle back to the Dube family
homestead at Maduladula. Appellant 1 was there merely to
assist
appellant 2. They then left with appellant 2 for the Dube family
homestead. Dube was not available. Upon inspection of the
homestead
Mtshali and his team found that though there was a kraal it was
overgrown with grass and there was no dung in the kraal
indicating
that any cattle were kept in that kraal.
[6]
To further verify the ownership of the cattle Mtshali then proceeded
to appellant 2’s place of residence, where they found
that no
one knew about the cattle. Appellant 1 had informed Mtshali that he
was there to assist appellant 2 to search for the missing
cattle from
his homestead.
[7]
Mtshali’s investigation led him to Sandfontein Farm Gluckstadt,
Vryheid, whereupon he enquired if they had missing cattle.
This was
after he realised that he had seen cattle with a similar branding to
the cattle found in possession of the appellants.
He arrived there
before the discovery of the missing cattle was made by the Manager,
Mr Hlatswayo, as they had just started with
the counting of the
cattle. It was then discovered that ten head of cattle were missing.
Coincidentally the cattle missing from
the farm were the same number
of cattle found in the possession of the appellants. Hlatswayo also
identified the cattle at the
police station by their brand mark “C
L” and the swallow earmark on the earlobe of each cattle. The
appellants who
were already under arrest were charged and arraigned
before the court for stock theft.
[8]
Besides the evidence of Captain Hlatswayo the state had evidence from
all police officers involved in the investigation including
Constable
Ngobese, Constable Dlamini, Sergeant Madela and Mandla Hlatswayo, the
farm manger. The two appellants also gave evidence
in their defence.
[9]
It is submitted on behalf of the appellants that it has not been
proved beyond a reasonable doubt that the appellants were indeed
stealing the cattle on that day; that the cattle removed by the
appellants from the farm on the date alleged on the charge sheet
and
that the trial court erred in rejecting the version of the appellants
as it was reasonably possibly true.
[10]
The respondent is opposing the appeal on the basis that though there
was no direct evidence of the theft of the cattle, the
state was able
to prove its case on the circumstantial evidence of the crime, that
the version given by the appellants is inconceivable
with the proven
facts and not reasonably possibly true and that the state proved the
case beyond a reasonable doubt against the
appellants.
[11]
It is trite that as we sit as the Court of Appeal, we can only
interfere with the trial court’s judgment if there is
a
misdirection either on law or fact as stated in various
dicta
,
including
S
v Bailey
,
[1]
where the court had this to say:
‘
The
powers of the Court of appeal findings of a trial court were strictly
limited. If there had been no misdirection on the
facts, there
is a presumption that the trial Courts’ evaluation of the
factual evidence is correct.’
We
accept that although the court
a quo
has the advantage in seeing, and hearing the witnesses and being
steeped in the atmosphere of the trial process, this court must
be
satisfied that on the evidence before it, that the case has been
proved beyond a reasonable doubt.
[12]
As stated by the respondent’s counsel the crime of theft is the
unlawful appropriation of another person’s movable
corporeal
property with the intention to permanently deprive the owner of the
property. The appellants were charged in terms of
the Stock Theft
Act. Section 2 of the Stock Theft Act
[2]
also states that any person who is found in possession of stock or
produce in regard to which there is a reasonable suspicion that
the
stock or produce was stolen and is unable to give a satisfactory
account of such possession shall be guilty of an offence.
This does
not shift the onus of proof to the accused person, but the state
bears the onus of proof in proving all the elements
of the offence.
[13]
Where there is no direct evidence the circumstantial evidence
tendered by the state will prevail. In
R
v Difford
[3]
the appellate division stated as follows:
‘
The
fundamental rule in considering circumstantial evidence is that, in
order to justify the inference of guilt, the inculpatory
facts must
be incompatible with the innocence of the accused and incapable of
explanation on any other reasonable hypothesis.’
Similarly
the principles laid out in
R
v Blom
[4]
were applicable in this case.
[14]
It is common cause that there is no direct evidence showing how the
cattle were stolen from Sandfontein Farm, save that a spoor
of the
cattle was observed from the main gate which ended up to where the
road to Nondweni starts. The appellants were only spotted
by a
community member as they went past Phoqukhalo area driving a herd of
cattle on a misty morning of 21 November 2013.
[15]
The evidence given by Constables Ngobese and Dlamini indicate that
they found the appellants in the early misty morning on
the mountain
and they were in the presence of the ten head of cattle. They felt
that the explanation given by appellant 2 that
they were his
brother’s missing cattle, which had been missing for a week,
had to be verified. The appellants had also informed
the officers
that they found the missing cattle and were taking them back to a
Dube homestead in Maduladula where they are kept.
This evidence
confirms that the appellants were in possession and control of the
ten head of cattle on that morning.
[16]
The investigations carried out by Captain Mtshali show that at the
Dube homestead there was no evidence that the kraal had
recently been
occupied by such a number of head of cattle. The kraal was overgrown
with grass and there was also no evidence of
the presence of cow dung
inside the kraal. At appellant 2’s homestead no one knew about
the existence of the cattle. The
telephone number of Sifiso given by
the appellants to Captain Hlatswayo was also found to be inaccessible
as it was non-existent
to verify with Sifiso if indeed he had lost
any cattle which he had purchased for lobolo purposes.
[17]
The appellants could not produce any invoices or receipts as proof of
such purchase. The evidence of Hlatswayo confirmed beyond
any
reasonable doubt that the missing cattle were from Sandfontein Farm
as they bore a “C L” branding mark, of which
the “C”
was branded upwards and appeared like a “U” and that the
earlobes had a swallowtail mark. This
is in line with Exhibit “A”,
a photo album showing the ten head of cattle with their
identification marks. This evidence
went unchallenged by any of the
appellants.
[18]
The appellants could not advance any form of identification of the
cattle save that they belonged to appellant 2’s brother,
Sifiso. They could not show how they had identified the cattle as
belonging to Sifiso. In his defence appellants 2 stated that
Sifiso’s
cattle bore an “E M” brand mark and an ear mark which he
could not describe. This evidence was only
mentioned by appellant 2
for the first time when he gave evidence in court. It is clear to
this court that the cattle that were
recovered from the appellants
did not bear the “E M” branding mark but had a different
mark.
[19]
The version of the appellants that at the time of the arrival of
Constable Ngobese and Constable Dlamini they had just started
inspecting the cattle, is unacceptable, as they could not advance
what they were checking them for. This could not be true as the
cross-examination of appellant 1 elicited that he had no knowledge of
what to look for in the lost cattle. Appellant 2 had no reasonable
explanation why he had to wait for a week before searching for the
lost lobolo cattle or reporting to the police. His version is
improbable as it is not reasonably possibly true that at his
homestead no one knew about the existence of the cattle. The
appellants’
version is that they were prompted by the early
morning call from Sifiso who was in Gauteng to go and look for the
missing cattle,
is also improbable as it would mean that had there
been no call form Sifiso, the cattle would have remained missing.
[20]
Appellant 1 lives about 500 meters away from appellant 2’s
homestead, however, he denied that he ever saw the alleged
missing
cattle at appellant 2’s homestead. His version was rightly
rejected as no reasonable person would just proceed to
assist
appellant 2 without enquiring about the basic details of the lost
cattle, like their colours, brand marks and any other
relevant
details.
[21]
Appellant 2’s evidence that he admitted theft because of the
assault upon him by the police officers is without merit.
In all the
statements that were deposed to by the police officers shortly after
their arrest, which form part of the record, there
is not a single
one that states that he admitted to stealing the cattle.
[22]
It is apparent from the evidence before the court
a
quo
that the appellants stole the
cattle which were in possession of Hlatswayo. Hlatswayo’s
evidence was that the cattle
are counted each and every morning. They
had been counted on 20 November 2013 and they were counting them on
21 November 2013 when
Captain Mtshali arrived on the farm. As a
result of the counting Hlatswayo discovered that nine cows and one
bull were missing.
[23]
It must be accepted that the cattle had not strayed as they were
found 16km away from Nondweni in the presence of the two appellants.
The evidence of Constable Ngobese should be accepted as she stated
that it was conclusively clear to her that the cattle were driven
from behind by the two appellants who were in possession of sticks.
[24]
The appellants’ version that Sifiso was the owner of the cattle
is not sustainable as Sifiso was not called as a witness.
If Sifiso
was the owner of the cattle he had a lot to lose, his lobolo cattle
and his bride, but Sifiso was not called as a witness
by the
appellants.
[25]
I accept the submission made by counsel for the respondent that theft
is a continuing crime as there are no accessories to
the fact in the
crime of theft. The theft continues as long as the stolen property
remains in the possession of a thief. Appellant
1, whether he was
present at the time when the cattle were moved away from the farm or
not or whether he rendered his assistance
at the time when the cattle
were already on the mountain is immaterial. He is also guilty of
theft, not as an accessory, as he
had tried to portray in his
evidence.
[26]
In light of the evidence that was presented in the trial court we
accept that the state proved the case against the two appellants
beyond a reasonable doubt.
[27]
I propose that the following order should be made:
(a)
That the appeal be dismissed.
(b)
The conviction by the court
a quo
of accused 1 and 2 is
confirmed.
(c)
The sentences imposed by the trial court are confirmed in respect of
both accused.
(d)
There is a mistake in the way that the sentence was pronounced by the
trial court. It is therefore corrected and must read as
follows:
“
sentenced
to eight (8) years imprisonment of which four (4) years is suspended
for a period of five (5) years on condition that
the accused are not
convicted of stock theft or produce committed during the period of
suspension.”
MBATHA
J
I
agree:
KOEN
J
Date
of Hearing: 02 June 2016
Date
of Judgment: 09 June 2016
Appearances
Counsel for
the Appellant: Adv EX Sindane
Instructed by:
Legal Aid South Africa
Pietermaritzburg
Counsel
for the Respondents: Adv K Radyn
Instructed by:
The
Director of Public Prosecutions
Pietermaritzburg
[1]
2007
(2) SACR 1
(C) para 16.
[2]
Act
57 of 1959.
[3]
1937
AD 370
at 371.
[4]
1939
AD 188.