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[2016] ZAGPPHC 976
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Molapisi and Another v S (A642/2014) [2016] ZAGPPHC 976 (28 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
CASE
NO: A642/2014
28/11/2016
In
the matter between:
SIMON
SERANTE MOLAPISI
First
Appellant
JOHANNES
DOCKY MOSHODI
Second
Appellant
And
THE
STATE
Respondent
JUDGMENT
DAVIS,
AJ:
[1]
INTRODUCTION AND JURISDICTION
:
The
appellants were as co-accused convicted of theft and sentenced to 3
years imprisonment each. The District Court in Vereeniging,
as court
a
quo,
granted leave to appeal to each of the appellants to
appeal their respective convictions and sentences. The appellants
have been
granted bail pending their appeals.
[2]
THE COMMON CAUSE FACTS
:
On
a
conspectus
of the uncontested evidence of the State and
those portions of the versions of the appellants which are not in
dispute, the following
facts are then common cause:
2.1
The second appellant was, at the day in question, being 29 April
2013, an employee at the Game store in Three Rivers Mall. He
was at
the time employed as a salesperson responsible for the selling of
bicycles.
2.2
The bicycles sold were packed into sealed boxes and labelled
accordingly.
2.3
The purchase of bicycles took place by taking the relevant box to the
cashier and paying for it there and then leaving the store.
This is
contrary to the position when a customer wishes to purchase a flat
screen television set. In such an instance the customer
has to pay
for the purchase at the television section/electronics section of the
store, then take the till slip to the salesperson
who had assisted
him who would then fetch the requisite television set from the
storeroom and accompany the customer to the cashier/check-out
point.
2.4
The first appellant, then working at Checkers, entered the Game store
on the day in question and went to the bicycle section.
He was there
attended to by the second appellant. Hereafter the first appellant
proceeded to the cashier with a box labelled for
a specified bicycle
in a supermarket trolley. He paid the purchase price of the bicycle
depicted and labelled on the box in an
amount of R1 199,00 and
proceeded to exit.
2.5
At the exit, the first appellant was stopped by a female security
guard (the first State witness) and the box was opened. Inside
the
box two flat screen television sets were discovered priced at R5
499,00 and R6 999,00 respectively.
2.6
It is common cause that the television sets belonged to the Game
store and were not paid for either at all or in the fashion
described
above for the purchases of television sets.
2.7
It is common cause that the first appellant could not have had access
to the storeroom where the television sets were kept.
2.8
The first appellant was taken by the said security guard to the
senior manager on duty at the time (the second State witness).
2.9
The first appellant after some time made an oral statement to the
senior manager (and possibly also another manager who was
present)
and then later (apparently in the presence of his own employer and
branch manager who had been called) gave a written
statement written
out in manuscript in two parts on a Game stores
"STATEMENT
FORM'
which he signed and dated and which read as follows:
"I
was
on my way from Musica using my lunch time. Then
a
guy
came
to me and if I culd (sic) pay there for him then I
said no problem only to find out there is his stuff in that box of
bicycles,
so apparently the security asked me to wait for searching
only to find out there is two plasma in the box of bicycles. That is
where we found the problem there so there is nothing to do up to so
far
...
Then the guy give me money round about 1200 to pay for
him for that box automatically he knows what is inside there for he
said
I'll find you outside my store that's what he said to me. The
guy's name is (docky)."
2.10
The senior manager thereafter inspected the storeroom only to find
five empty boxes in which television sets were customarily
kept in
the ceiling of the storeroom.
[3]
It is clear from the above facts that someone had acted unlawfully by
extracting two flat screen television sets from the boxes
in which
they were kept in the storeroom and placed them into a box in which a
bicycle is normally packed and thereafter again
sealed the box. The
witnesses confirmed that this could not have happened by accident as
the television sets and the bicycles are
sourced from different
suppliers. The only plausible inference to be drawn is that the
television sets were placed in a
"bicycle box"
to
thereby conceal a theft or unlawful removal of the boxes from the
storeroom and ultimately from the Game store without paying
the full
purchase price for them. The only question is whether it had been
proven beyond reasonable doubt as to whether either
or both of the
appellants were part of this scheme.
[4]
THE
APPELLANTS' VERSIONS
:
4.1
The first appellant maintained that his version in his written
statement quoted above was the correct one. He sought to corroborate
this by suggesting that if he had wanted to purchase a bicycle, he
would not have purchased the specific ladies' model depicted
on the
box but would have purchased a smaller male model for a family member
of his. He further elaborated that R1 200,00 was given
to him by the
second appellant in the store in R100,00 notes.
The
second appellant on the other hand denied the first appellant's
version and denied any complicity in the crime. He conceded
that he
met the first appellant at the bicycle section in the store on the
day but left the first appellant there whilst he
attended another
lady customer and escorted her to the toy section as she was
looking for a bicycle of such a smaller size
that it was not
stocked in the section where the second appellant was stationed. He
says another casual employee was with him
in the bicycle section at
all relevant times. He later saw the first appellant being escorted
by security staff. He was later
called by the management and found
the first appellant in their presence together with two police
officers. The first appellant
was asked whether the second
appellant was
"Docki"
which the first appellant
confirmed.
[5] THE FINDING OF THE
COURT
A QUO
:
The
finding of the court a
quo
is that"...
the court
is
of the opinion that ... the version the accused
[1]
gave
that he
was
approached in the
...
mall, asked to
assist
somebody
is
rejected
as
false. It could not be
reasonably possibly true. That he and accused no. 2 worked together.
He knew that there were two TVs in that
box. One for him and one for
accused no.
2. As
the court
has
already stated the way
they got it out of the storeroom
is
still under investigation
but they have the
means
and the
ways
to get into that
storeroom accused no. 2 and to get those items out of the storeroom.
The court
is
of the opinion that the version that both the
accused gave
is
rejected
as
false and that it
is
not reasonably possibly true. The court
is
of the opinion
that the State
has
proved its
case
beyond
a
reasonable doubt and that both the two accused are found guilty
as
charged."
[6]
EVALUATION
:
6.1
Much was made in argument, particularly on behalf of the second
appellant that, if the learned magistrate rejected the version
of the
first appellant, then his version cannot at the same time be used to
link the second appellant to the crime or at least
not to such an
extent that his complicity has been proven beyond reasonable doubt.
The argument was that, absent the version of
the first appellant, the
version of the second appellant should be accepted as being
reasonably possibly true.
6.2
It is trite that the evidence of co-accused are admissible against
each other. See
S v Radloff
1978
(4)
SA 66
(A)
at 74A and
R v Zawels
1937 AD 342
at 348 quoted with
approval in
S v Mahlangu
1995 (2) SACR 425
(T)
at 4331-J. Such evidence is however subject to the cautionary rule
relating to the acceptance thereof and weight to be attached
thereto.
In the present instance both the appellants want their versions to be
accepted as being reasonably possibly true whilst
the State wants the
common cause facts and the absence of a reasonably possibly true
version on behalf of the first appellant to
lead to his conviction
and to also lead to proof beyond reasonable doubt of the second
appellant's complicity along the lines found
by the court
a
quo.
6.3
Neither the two tests, namely proof beyond reasonable doubt on the
one hand and the reasonable possibility that the accused
might be
innocent on the other hand nor the dissection of the evidence, be it
that of the State or the co-accused should be utilised
or conducted
as independent and unrelated enquiries. The position has, with the
necessary respect, succinctly been summarised by
Nugent J (as he then
was) in
S v Van der Mevden
1999 (2) SA 79
(WLD)
as follows:
"The
onus of proof in a criminal
case is
discharged by the State if
the evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary
is
that he
is
entitled to be
acquitted if it
is
reasonably possible that he might be
innocent
(see
for example
R v Difford
1937
AD 370
especially at 373, 383). These are not separate and
independent
tests
but the expression of the
same
test
when viewed from opposite perspectives. In order to convict, the
evidence must establish the guilt of the accused beyond reasonable
doubt which will be
so
only if there
is
at the
same
time no reasonable possibility that an innocent explanation which
has
been put forward might be true. The two are inseparable,
each being the logical corollary of the other. In whichever form the
test
is
expressed, it must be satisfied upon a consideration
of all the evidence. A court
does
not look at the evidence
implicating the accused in isolation in order to determine whether
there
is
proof beyond reasonable doubt and
so
too
does
it not look at the exculpatory evidence in isolation in order to
determine whether it
is
reasonably possible that it might be
true."
(at 80H-81B)
and
"Purely
as
a
matter of logic, the
prosecution evidence
does
not need to be rejected in order to conclude that there
is
a reasonable possibility that
the accused might be
innocent.
But what
is
required in order to
reach
that conclusion
is
at least the equivalent possibility that
the incriminating evidence might
not be true. Evidence which
incriminates the accused and evidence which exculpates him cannot
both be true
-
there
is
not even a possibility that
both might be true
-
the one
is
possibly true only if
there
is
an equivalent possibility that the other
is
untrue. There will be
cases
where the State evidence
is
so
convincing and conclusive
as
to exclude the reasonable
possibility that the accused might be innocent, no matter that his
evidence might suggest the contrary
when viewed in isolation."
(at 81E-G)
6.4
In evaluating the first appellant's exculpatory version, namely that
of being an innocent participant, the reasonable possibility
must be
adjudicated in view of the common cause facts and general human
nature. In my view, the learned magistrate raised and debated
the
following aspects extensively in the judgment in the court a
quo,
to which the first appellant had not given any satisfactory
answer or explanation:
6.4.1
Why would an innocent person, which is what the first appellant wants
the Court to believe him to be, readily and without
any question
accede to the extraordinary request from the second appellant, being
a person whom he barely knew, to purchase a bicycle
on his behalf?
6.4.2
Why would the second appellant, working at the Game store where
bicycles are sold, not purchase the bicycle himself but require
the
first appellant to do so?
6.4.3
Why was the basis of the strange transaction, namely the advance of
the R1 200,00 to the first appellant to enable him to
pay for the
bicycle at the Game cashier not questioned by him?
6.4.4
Why would the first appellant, without question or quibble agree to
take the purchased bicycle box through security and out
of the Game
store only with the purpose to then meet up with the second appellant
as suggested by the latter? There is also an
absence of detail as to
where or when this alleged meeting would have taken place.
6.4.5
Why, if the first appellant was as innocent as he maintained, did he
not express shock and surprise when the security guard
opened the box
and found, not a bicycle, but two flat screen TV's?
6.4.6
Why did the first appellant not there and then immediately and
vehemently protest his innocence and tender the version which
he
later produced and wants a court to accept as being reasonably
possibly true?
6.4.7
Why did the first appellant not immediately upon being accosted,
indicate that he was acting on instructions of the person
standing at
the bicycle section being the second appellant?
6.4.8
Why, even after having been taken from the security check-point to
the manager's office, did he not immediately tender his
version and
why did it take interrogation and/or coercion and/or a length of time
to extract it from him?
[7]
The first appellant's position was not dissimilar from an accused
caught in possession of stolen goods and called upon to give
a
satisfactory account of his possession. Even though the test in those
circumstances or in the cases dealing with contravention
of Section
36 of the General Law Amendment Act, No. 62 of 1955, is more
subjective in nature (see
S v Aube
2007 (1) SACR 655
(WLD)) the lack of answers or any reasonable explanation for the
questions referred to above leads one to the conclusion that the
first appellant's explanation was
"unsatisfactory''
to
the point that it should be rejected as being false and therefore not
reasonably possibly true. To all intents and purposes the
first
appellant was knowingly an accessory to the stealing of the
television sets from Game by assisting in removing the items
concealed in a bicycle box in an attempt to get past security. To my
mind he was rightly convicted.
[8]
Once the first appellant's exculpatory version is rejected (as it
should be) then there is nothing left to link the second appellant
to
the crime. The only evidence placing the second appellant at the
scene were those facts summarised above at paragraphs 2.1 and
2.4.
These facts, namely the presence of the second appellant at the date
and time in question in the bicycle section, were common
cause but
beyond that, there was no evidence controverting the second
appellant's version of events as summarised in paragraph
4.2 above
which corresponds with these common cause facts. Neither the security
staff nor the management of Game nor any state
witness contributed
any evidence which placed the second appellant's version in doubt.
Moreover, the casual worker who also worked
at the bicycle section
was not called as a witness nor was he apparently questioned by the
security staff or management. No evidence
was tendered as to the
video footage (the existence of security cameras had been conceded by
the state witnesses). There is also
nothing inherently improbable or
palpably false in the second appellant's version (contrary to that of
the first appellant as already
illustrated above).
[9]
Accordingly, applying the tests referred to in paragraphs 6.2
and 6.3 above, the second appellant's exculpatory version is
reasonably
possibly true and accordingly there exists reasonable
doubt as to his complicity in the crime.
[10]
SENTENCE
:
In
respect of the sentence of the first appellant, on the one hand the
learned Magistrate correctly took into account that the first
appellant assisted employees of the Game store to steal from their
employer. He did so not alone but clearly in concert with others
and
after some prior planning. On the other hand, the goods of which the
first appellant were accused of stealing in the resent
instance had
been recovered, he was a first offender and was at the time 29 years
old. He was employed at Checkers working for
at least 7 years earning
R645,00 per week. His high school qualification is Grade 11 and he
has a 4 year old child who stays with
the mother and in respect of
which he pays RS00,00 maintenance per month. The learned Magistrate
quoted
S v Kriegling and Another
1993(2) SACR
495 (AD) in his judgment but, to my mind, paid insufficient regard to
the statements regarding the direct imprisonment
of first offenders.
One should also not over-emphasise the fact that the first appellant
was the only one of a group of co-perpetrators
who got caught but it
does offend against one's sense of fairness and justice if an overly
harsh sentence is imposed on one while
others go scot free. Having
said that, to completely suspend the sentence would also strike an
equally improper imbalance. In my
view, the length of the
imprisonment imposed does not in itself impose a sense of shock but
the lack of giving a first offender
a second chance or imposing a
proverbial sword hanging over his head requires that a substantial
portion thereof be suspended.
[11]
ORDER:
Taking
all the above into account I am of the view that the result of the
appeal should be the following:
10.1
The first appellant's appeal against conviction is dismissed.
10.2 The first
appellant's appeal against sentence is upheld to the effect that the
sentence is altered to read as follows:
"The
first accused
is
sentenced to 3 years imprisonment of which 2
years are suspended for
a
period of 5 years on condition that
the first accused not be found guilty of theft committed within the
period of
suspension."
10.3 The second
appellant's appeal against his conviction and sentence is upheld and
his conviction and sentence are set aside.
___________________________________________
N DAVIS
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered.
___________________________________________
JUDGE
C PRETORIUS
Case
no: A642/2014
Matter
heard on: 3 November 2016
For
First Appellant: Adv F van As
Instructed
by: Pretoria Justice Centre
For
Second Appellant: Adv J de Beer
Instructed
by: BMH Incorporated Attorneys
For
Respondent: Adv Maritz
Instructed
by: The National Director of Public Prosecutions
Date
of judgment: 28 November 2016