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[2016] ZAGPPHC 95
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Eunesh v S (A476/2014) [2016] ZAGPPHC 95 (23 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A476/2014
DATE:
23/2/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
JOHN
EUNESH
Appellant
and
THE
STATE
Respondent
JUDGMENT
POTTERILL
J
[1]
The appellant is appealing against his conviction of theft of one
mini Ryobi grinder pursuant to a petition granting leave to
appeal
against his conviction.
[2]
The grounds of appeal centre around inconsistencies in the state’s
case which the Magistrate ignored and thus erred. The
court
a quo
also misdirected itself in that the circumstantial evidence
presented was open to more than one inference consistent with the
proven
facts.
[3]
The appellant in terms of section 220 admitted that on 15 December
2011 he was at Heidelberg in the hardware store of the complainant.
It was common cause that he had a Ryobi mini-grinder, a sanding
machine and a plainer in his possession at the shop as well as
in the
parking lot of Checkers when confronted by the complainant after
leaving the shop. The appellant was a regular customer
of the
shop and on 15 December 2011 the shop, being a Saturday, was busy.
[4]
The state offered circumstantial evidence that the appellant stole
the grinder, the property of the complainant from the shop.
The
appellant pleaded and testified that he had bought the items from a
male in his late twenties at a taxi rank and he took the
items to the
shop to compare prices.
[5]
The first question to be answered is whether the court’s
credibility finding of the state witnesses were a misdirection
due to
the contradictions between the witnesses. Much is made of the
contradiction between Mr. Jobe who gave evidence that
Ms. De Cruz
told him that the empty grinder box was on the top floor of the store
whereas Ms. Karelse testified that the empty
box was behind the full
grinder boxes. Ms. Karelse testified that the grinder was on
the top floor not the empty box.
Ms. De Cruz testified that the
empty box was behind all the other full grinder boxes. Mr. Jobe
testified that the empty box
was with all the grinders, which he
testified was on the top floor. The inconsistency thus is not
as to where the empty box
was, but as to where the grinders were
kept. This inconsistency is most certainly not a consistency
that can affect the credibility
of the witnesses.
[6]
Ms. De Cruz testified that she saw that the appellant, while with his
back turned to her, was busy doing something to his front.
When
he turned she could see that in his baggy overall there was an
indentation and his top was now tight fitting. Mr. Jobe
demonstrated in court that a mini-grinder can fit in one’s
pants and top. It was argued that Mr. Jobe never testified
that
he saw something in the appellant’s overall and should have
seen him removing it from under his clothing to the appellant’s
top bag. I cannot find that the court
a quo
erred in
finding this proposition to be an inconsistency as Mr. Jobe was never
in evidence in chief or in cross-examination asked
whether he saw
something in the appellant’s overall. There is accordingly no
contradiction. Furthermore he was following
Mr Jobe: i.e.
mostly seeing the appellant’s back.
[7]
It was also submitted that the Magistrate erred in not considering
the contradiction between the evidence of Mr. Jobe and Ms.
Karelse as
to the marking of the grinder; identification of the grinder as
belonging to the complainant. It was submitted
that Ms. Karelse
testified that a sticker is placed on the box and the item itself.
The price is written with the marker
pen on the box. Mr. Jobe
testified that prices are written in a koki pen and there is a
sticker of the company, but that
the item itself is not marked.
He testified that he and
BUILD IT
are the only agents for
Ryobi in town (page 8 of the record of the evidence of Ms. Karelse).
Ms. Karelse’s evidence
is certainly confusing but does not
conform to the submission that there is a mark on the grinder itself:
“…
Maar
nou waar presies word hierdie sticker met die naam geheg? Waar
word dit geheg? -- Op die grinder self.
Op die grinder self?
-- Ja.
Op die boks? -- Op die
boks. Dit is die boks sit ons dit op die boks en in die, op die
elektriese ware.
Is die sticker op
beide die boks en die voorraad self? -- Ja.
Behalwe daardie hoe
word dit gemerk as die ding miskien te oud raak? -- Hoe word dit
gemerk?
Behalwe die sticker?
-- Ons skryf gewoonlik die pryse met ‘n marking pen.
Op die? -- Op die
bokse.
Op die item self of
op die elektriese ware self -- Nee.”
This
last question most definitely does not confirm that the price is
written on the grinder and on the box.
[8]
The identification of the item as the property of the complainant is
the essence of the appeal. I cannot find that the
Magistrate
erred in finding that the grinder found in possession of the
appellant is indeed the property of the complainant.
A grinder
was missing from a box lying in an unusual place in the shop.
The appellant was seen on the top floor where this
grinder was lying
out of its usual place. He was seen with a bulge under his
jacket and the grinder was missing. The
appellant was stopped
minutes after he left the store and the grinder was found in his
possession. The complainant persisted
that the grinder was his
property. The only other inference argued on the papers was
that the grinder belonged to
BUILD IT,
as the sander did, with
Mr. Jobe returning the sander to
BUILD IT
. This
inference effectively confirms that the appellant stole the grinder
because it was never the appellant’s version
that the sander
belonged to
BUILD IT
but that it belonged to a male from which
the appellant bought the sander. The mere fact that the
appellant had three items
in his bag does not support an inference
that he did not steal the grinder from the complainant.
[9]
The court correctly rejected the appellant’s version as not
being reasonably possibly true. If he wanted to compare prices
why go
to the complainant’s store when he in fact had a
BUILD IT
sticker on the sander; it would be reasonable to compare the price
then at
BUILD IT
. The Magistrate is correct to find the
appellant’s version improbable as it would make sense if one
went to check prices
before one decided to buy and not to acquaint
yourself with the prices after you had already bought items. It was
never put to
Mr. Jobe that the appellant had not run away after he
was confronted by Mr. Jobe. The accused later inflated his version by
stating
that he wanted to compare prices not to see whether he had
bought a bargain but for reselling the items. This version was never
put to any of the state witnesses.
[10]
I am satisfied that the state witnesses were credible witnesses and
were correctly found to be so by the court
a quo
. I am
also satisfied that the state proved its case against the appellant
beyond a reasonable doubt.
[11]
I accordingly make the following order:
The appeal against
conviction is dismissed.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________
L.
VUKEYA
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A476/2014
HEARD
ON: 18 February 2016
FOR
THE APPELLANT: ADV. F.J. VAN DER MERWE
INSTRUCTED
BY: CJ Liebenberg Attorneys
FOR
THE RESPONDENT: ADV. S. SCHEEPERS
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 23 February 2016