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2015
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[2015] ZALMPPHC 1
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Makhuvele v S (A05/2015) [2015] ZALMPPHC 1 (7 October 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(Functioning as
Limpopo Division, Polokwane)
CASE NO: A05/2015
DATE: 7 OCTOBER 2015
In the matter between:
CHESTER
MAKHUVELE
...............................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT: Delivered on
7 SEPTEMBER 2015
PHATUDI J
[1]
The Appellant was charged in Giyani Regional
Court with one count of theft of a motor vehicle. He was convicted as
charged and sentenced
to five (5) years imprisonment
[2]
The trial court refused the appellant’s
application for leave to appeal against both conviction and sentence.
He petitioned
the Judge President. Leave against both conviction and
sentence was granted.
[3]
The key witness, Mr Madima Sakoneka (Madima) was
an accomplice. He was turned a state witness and warned in terms of
section 204
of the Criminal Procedure Act 51 of 1977 (CPA).
[4]
The evidence of the state’s key witness’
examination in chief has not been recorded if not missing. The record
only
starts with his cross examination. Both the appellant’s
and state counsel submitted that the matter can be finalised
notwithstanding
the missing portion of the record.
[5]
Both counsel submitted that the key witness’
evidence in chief is summarised in the trial court’s judgment.
They further
submitted that this appeal court should accept the
summarised version as the true reflection of the evidence in chief.
[6]
The summary of Madima’s testimony as set
out by the trial court was that Madima testified that on 29 June 2011
at approximately
02:00 while on his way home from a beer hall, saw
three people pushing a motor vehicle. The appellant was one of the
three people.
He knew the appellant. The three people asked him to
help them push the vehicle. Two of the said three threatened to kill
him should
he refuse. The two had firearms with them. The trial court
recorded:
‘
A
While pushing the car two of the people drove off They had firearms
”
[7]
The appellant’s counsel submitted that the
state failed to prove beyond reasonable doubt that the appellant was
among the
perpetrators who stole the complainant’s motor
vehicle. He submitted that the appellant was not one of the two armed
perpetrators
who drove off. He lastly submitted that the appellant
remained behind with Madima.
[8]
Counsel for the state disputed the factual
submissions forwarded on behalf of the appellant. He submitted that
the appellant “drove
off’ with the other two armed
perpetrators,
[9]
A person commits theft if he/she unlawfully and
intentionally appropriates movable, corporeal property which belongs
to, and is
in possession of, another provided that the intention to
appropriate the property includes an intention permanently to deprive
the person entitled to the possession of the property, of such
property.
[1]
It is trite law that a court of appeal will be hesitant to interfere
with the factual findings and evaluation of the evidence by
a trial
court, and will only interfere where the trial court materially
misdirected itself in so far as it’s factually and
credibility
findings are concerned.
[2]
[10]
It is common cause that both counsel accepted the
trial court’s factual synopsis of events as set out by Madima
in examination
in chief. Counsel for the state disputed the
appellant’s counsel’s submission that the appellant
remained behind when
the other two perpetrators drove off. This
prompted me to scrutinise the record specifically during Madima’s
cross examination.
This is how the evidence unfolded:
“Adv.
Hlungwani: Now were all three pushing the vehicle when you came upon
them
.
Madima: Yes
as I was coming they were pushing the vehicle.
Adv.
Hlungwani: The three of them Madima: Yes the three of them
Adv.
Hlungwani: Was there anybody behind the steering wheel when they were
pushing
.
Madima:
Yes there was one who
was
controlling the steering wheel outside
next to the driver’s door,,,
[11]
It further transpired as follows during cross
examination:
“Adv.
Hlungwani: Now when the two of them get into the vehicle
,
the one who was behind the steering
wheel?
Madima:
The one that was armed with firearms hoarded seat and the other one
at the back
Court:
When you say back, where?
Madima:
At the bukkie Your Worship
.
"
[12]
The state counsel was referred to the cross
examination text outlined above coupled with the trial court’s
wording when it
dealt with Madima
5
s
evidence especially when it recorded Madima to have said that
“
while
pushing the car two of the people drove off. They had firearmsCounsel
could not take the matter further after this court enquired
if there
was any evidence that supported his submissions vis-a-vis
what
had been outlined as transpired during cross examination. He further
conceded that if the appellant did not “drive off
5
with the other “two armed” perpetrators, he (the
appellant) cannot be said to have committed the offence. He further
conceded that there was no other evidence that linked the appellant
to the commission of the offence other than that he was among
those
who pushed the motor vehicle,
[13]
Madima’s evidence was very clear that the
appellant did not leave with the other “two armed”
perpetrators. The
appellant can thus not be said to have had the
intention permanently to deprive the complainant of his motor
vehicle. When dealing
with the appellant’s judgment, the trial
court based its findings of fact arrived at after seeing and hearing
the witnesses
in the case. The trial court’s findings of fact
would have been presumed correct in the absence of misdirection of
fact that
the appellant committed the offence as charged. I am
satisfied from the record of the evidence, the trial court’s
judgment
and the submissions made by both counsel that the trial
court was clearly wrong in finding the appellant guilty as charged
hence
this appeal court’s departure from such findings
[3]
.
The appellant’s conviction and sentence fall to be set aside.
[14]
I, in the result, make the following order.
14.1
The appellant’s appeal is upheld,
14.2
The trial court’s judgment is hereby set
aside. The accused is found not guilty and must be released.
14.3
The Director of the Correctional Service Centre
where the appellant is detained is directed to release the appellant
on receipt
of this order immediately provided the appellant is not
serving any other sentence.
AML
PHATUDI
JUDGE
COURT
I
agree,
K
MAKHAFOLA
JUDGE
OF THE HIGH COURT
APPEARANCES
Heard
on : 11 September 2015
For
Applicant : Mr LM Manzini
Polokwane
Justice Centre
For
Respondents : Adv. WKK Mphahleie
Instructed
by : State Attorney
[1]
Criminal Law, CR Snyman, 4
th
Edition reprinted 2007, page 469
[2]
R v Dhlumayo and Another 1948(2)SA 677(A)
[3]
See R v Dhlumayo 1948(2)SA 677(A) at 705