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[2016] ZAGPPHC 1198
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Mahlelebe v S (A293/15) [2016] ZAGPPHC 1198 (15 November 2016)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A293/15
15/11/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
PAULOS
MAHLELEBE APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
MOLEFE
J
1.
This is an appeal against both conviction and sentence imposed by the
regional court Klerksdorp. The appellant was convicted
of theft of a
motor vehicle and was sentenced to 10 years imprisonment and was
declared unfit to possess a firearm in terms of
section 103
of the
Firearms Control Act 60 of 2000
. Leave to appeal was granted by the
Court a
quo.
2.
The charge against the appellant was that on or about 16 August 2016
at or near Delareyville, North-West Province, the appellant
did
unlawfully and intentionally steal a Mazda 323 motor vehicle
registration numbers H[...] NW which was the property of Themba
Twala
Ad Conviction
3. The evidence on which
the appellant was convicted was of three State witnesses.
3.1
Constable Johannes Gumede
and
Constable Mathews Poloholo
testified that on 18 August 2012 they were patrolling the area
around Lime Night Club in a marked police vehicle when they saw a
Mazda 323 vehicle driving from the direction of the night club, but
driving on their lane of travel, facing the oncoming traffic.
They
stopped the vehicle by putting on the siren and the appellant was the
driver of the vehicle. They inspected the said vehicle
and noticed
that the vehicle had no license disc and no registration numbers in
the front but only at the back. They sent the registration
numbers
through to radio control for investigation and were informed that the
registration numbers did not match the Mazda vehicle.
Whilst the
inspection of the vehicle was being conducted, the appellant ran away
but the two police officers apprehended him. The
vehicle chassis
numbers were also circulated to radio control and it was established
that the Mazda vehicle was reported stolen
at Delareyville on 18
August 2012. The appellant informed them that the vehicle belonged to
his friend who was in the club but
when they went to look for the
"friend" inside the club, they did not find him.
3.2
Themba Twala
testified that he was the owner of the Mazda 323
vehicle with registration numbers H[...] NW. He confirmed that the
vehicle was
stolen on 16 August 2012 and was recovered on 18 August
2012. The vehicle was damaged when it was recovered; the ignition,
starter
and safety belts had to be replaced at a cost of R1200.00.
3.3
Appellant testified in his own case and denied that he was the driver
of the vehicle when he was arrested. He testified that
the vehicle
belonged to his friend Thabiso and that on the night in question he
was just standing next to the vehicle waiting for
Thabiso who had
offered him a lift.
4.
Although appellant's
counsel
[1]
submitted in her
heads of argument that the trial court erred in convicting the
appellant due to the contradictions in the State
witnesses' evidence
and that the court
a
quo
should
have accepted the appellant's version as being reasonably possibly
true, she conceded at the hearing of the appeal that the
conviction
should stand.
5.
The Court's powers to interfere on appeal with the findings of fact
of a trial court are limited. The Court of appeal will be
very
reluctant to upset the factual findings and evaluation of the
evidence by a trial court, and will interfere where the trial
court
materially misdirects itself insofar as its factual and credibility
findings are concerned (See
R v Dlumayo and Another
1948 (2) SA
677
(A) at 705- 706).
6.
While there is no
onus
on the appellant to prove his
innocence, it is necessary to examine his version against the
possibilities of the case in order to
ascertain whether his version
is reasonably possibly true. Although there are contradictions in the
evidence of the two State witnesses,
they are not material. In
my view the appellant's version was so highly improbable that it
could simply not be reasonably
possibly true.
7.
Based on the conspectus of the evidence, I cannot find any fault with
the reasoning and the conclusion of the court a
quo.
Consequently,
I am satisfied that the appellant's guilt was proved beyond
reasonable doubt and that the conviction must stand.
Ad
Sentence
8. It was submitted by
appellant's counsel that the trial court misdirected itself in
imposing a sentence of 10 years' imprisonment
as the sentence is
shockingly inappropriate and harsh. Ms Moloi further submitted that
the trial court failed to take into consideration
or attached
insufficient weight to the appellant's personal circumstances. The
appellant was 39 years, was a first offender, has
three children, was
the sole breadwinner and that the complainant's vehicle was recovered
with minimal damages.
9.
Respondent's counsel
[2]
conceded at the hearing of the matter that the 10 years sentence is
shockingly inappropriate and harsh.
10.
A
court sitting on appeal cannot interfere with the discretionary
function of the lower court unless the sentence imposed is unjust
or
unless there has been a gross misdirection. Having given proper and
due consideration to all the circumstances in this case,
and having
made a comparison with similar cases
[3]
,
I am of the view that an appropriate sentence is 4 (four) years'
imprisonment. This reflects an appropriate balance between giving
due
regard to the seriousness of the offence, while at the same time
ensuring that the appellant does not serve unjustifiably long
period
of imprisonment. The appellant is not a hardened criminal, does not
have previous convictions and in my view can be rehabilitated.
11. In the circumstances,
I make the following order:
1.
The appeal against conviction is dismissed;
2.
The appeal against sentence is upheld and the sentence imposed by
the court a quo is set aside and substituted with the sentence
of 4
years' imprisonment;
3.
In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
,
the substituted sentence is antedated to 11 August 2013, date of
sentencing;
4.
The appellant is declared unfit to possess a firearm in terms of
section 103
of the
Firearms Control Act 60 of 2000
.
________________________
D S MOLEFE
JUDGE OF THE HIGH COURT
________________________
T
J RAULINGA
JUDGE
OF THE HIGH COURT
I
AGREE. AND IT IS SO ORDERED.
APPEARANCES:
Counsel
on behalf of Appellant : Ms. M Moloi
Instructed
by : Legal-aid SA
Counsel
on behalf of Respondent : Mr. J Fourie
Instructed
by : State Attorneys
Date
Heard : 07 November 2016
Date
Delivered: 15 November 2016
[1]
Ms M B Moloi
[2]
Advocated AJ Fourie.
[3]
See S v Gerber
[2006] ZASCA 27
;
2006 (1) SACR 618
(SCA)