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[2015] ZAGPPHC 15
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Musini v S (A388/2014) [2015] ZAGPPHC 15 (28 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number:
A388/2014
Date: 28 January
2015
Not reportable
Not of interest to
other judges
In the matter
between:
SELLO ABRAN
MUSINI
...............................................................................................
APPELLANT
and
THE
STATE
.................................................................................................................
RESPONDENT
Coram:
Prinsloo
J
et
Hughes
J
JUDGMENT
Delivered on: 26
January 2015
Heard on: 28 January
2015
HUGHES J
[1]
The appellant was charged with two counts of robbery with aggravating
circumstances and one count of attempted murder. He pleaded
not
guilty to all three counts and elected to remain silent. The court a
quo
found
that there was insufficient evidence upon which he could be found
guilty of the counts charged. However, the court did find
the
appellant guilty of the competent verdict on count 2, robbery with
aggravation circumstances. He was instead convicted of section
36 of
the General Amendment Act 62 of 1955 (the Act)
“
being
in possession of stolen property but unable to give a proper
explanation”.
He
was sentenced to three years imprisonment.
[2] For the duration
of the entire court proceedings, the appellant was legally
represented. On 6 November 2014 the appellant was
granted leave to
appeal the conviction and sentence.
[3] Briefly, the
incident took place on 2 March 2012 at the home of the complainant,
Refiloe Johanna Seroba. Whilst she and her
mother, Lulu Josephine
Seroba, were at home six men armed with firearms, entered and removed
four cellphones and R800.00 cash.
Both mother and daughter were
unable to identify the assailants.
[4] The appellant’s
representative, Mr Mogashoa, argued that the trial court erred when
it found that the state had proved
beyond a reasonable doubt that the
appellant was guilty of possession of suspected stolen property
without a reasonable explanation.
He argued that the court
misdirected itself by finding that the explanation advanced by the
appellant to the investigating officer
was an attempt to mislead the
investigating officer.
[5] In my view, the
argument advanced of the elements of the offence especially that of
“possession”, as required by
section 36 of the Act, is of
importance. This to my mind was not proven by the state as it is not
sufficient that the appellant
had previously possessed the cellphone.
I deal with this aspect later in the judgment.
[6] Mr Mogashoa
argued that for the offence to be confirmed the state had to
establish whether the appellant had personal and direct
control of
the cellphone.
[7] Mr Pruis, for
the state, submitted that the argument presented by the appellant’s
counsel was incorrect. He submitted
that the reasons for the
magistrate’s conviction must be looked at in totality. This
would then incorporate the magistrate’s
view that the appellant
had mental possession of the cellphone.
[8]
Mr Pruis persisted that the appellant had given away the cellphone to
attain sexual favours, borrowing it to, Maria Lekalakala.
She was
apprehended for the cellphone. Mr Pruis submitted that though the
appellant did not have it physically
“
he
was still mentally in possession of control over that particular
cellphone”.
Mr
Pruis referred to the judgment of the magistrate and the relevant
extracts appear at page 73 lines 22 (the above extract) and
page 74
lines 1-10, for easy reference I set out the later passage below:
“
However
when it comes to the competent verdicts we applies for Section 260
the court must take into consideration Section 36 possession
of
stolen property without a proper explanation. The accused knew very
well that it was stolen. That it was not operating that
is one reason
I gave it away so easily for sexual favors [sic favours] and that is
why he also said that I already passed the stage
of proposal I said
let you borrow it in another words you are still in control of that
particular cellphone. So not physically
he
was
still mentally in
possession of control over that particular cellphone and that
constitutes the elements of the crime of Section
36”
[9]
Section 36 of the General Law Amendment Act 62 of 1955 reads as
follows:
“
Any
person who is found in possession of goods, other than stock or
produce as defined in s1 of the Stock Theft Act...57 of 1959,
in
regard to which there is reasonable suspicion that they have been
stolen and is unable to give a satisfactory account of such
possession, shall be guilty of an offence and liable on conviction to
the penalties which may be imposed on a conviction of theft.
”
[10]
It is trite that the elements of the offence are:
(i)
was found in possession (ii) goods (iii) reasonable suspicion (iv)
satisfactory account (v) mens rea.
In
S v Ismail
1958 (1)
SA 206
(A) at 209
it
was held that the element
‘
was
found to be in possession’
translates
to the appellant being in possession of the item and not after the
appellant has ceased to be in possession. As regards
the time when
the appellant must be
‘
found
to be in possession’
this
must either be when the goods are found or when he is asked for an
explanation. See
R
v Ndou
1959 (1) SA 504
(T) at 505 and R v Hassen 1956 (4) 41 (N).
In
both cases there was evidence that the accused had brought the goods
to the place (which was not under his control) where they
were found,
and in both cases he was absent when the goods were found. The goods
were then removed by the police. Thus the accused
was not in
possession either when the goods were found or when he was asked for
an explanation, for in the latter situation the
goods were in the
possession of the police.
[11]
Mention was made by the magistrate of the appellant having had mental
possession of the cellphone. In considering this aspect
it is prudent
that the mental element known as
animus
needs
to be explained.
Animus
is
the intention of the possessor, which is the intention with which one
exercises control over the article. In the case at hand,
it is clear
that the appellant was not in physical possession of the cellphone as
he had given it to Ms Lekalakala. From the evidence
it is also
apparent that Ms Lekalakala’s, stated that the appellant gave
her the cellphone in order to communicate with him.
Of interest is
the fact that she went to an Indian shop to have the security code
decoded as the cellphone was not functioning.
This was done on her
own accord and not on the instructions of the appellant. From her
evidence she communicated with the appellant
via the same cellphone
from March to November 2012, when the cellphone was eventually
confiscated by the police.
[12] When I consider
all the evidence as set out above together with the relevant law
applicable, I am of the view that there was
a misdirection on the
part of the magistrate when he concluded that the appellant was
guilty of section 36 of the Act. I am of
the view that in the case
against the appellant the element of possession was not present at
the time that the cellphone was found
neither was it present at the
time that the appellant was asked to provide an explanation.
[13] In the
circumstances the state has failed to prove the competent verdict,
being in possession of property suspected to have
been stolen and
unable to give a satisfactory explanation. The conviction is thus set
aside.
[14] In the result
the following order is made:
[14.1] The appeal
against the conviction is upheld.
[14.2] The
conviction is set aside.
[14.3] The registrar
is directed to request the Correctional Services Department to
immediately release the appellant.
W. Hughes
Judge of the High
Court
I Agree
W R C Prinsloo
Judge of the High
Court
Attorney for the
Appellant:
PRETORIA JUSTICE
CENTRE
2
nd
Floor
FNB Building
Church Square
PRETORIA
Tel: 012 401 92000
Ref:
Attorney for the
Respondent:
THE DIRECTOR PUBLIC
PROSECUTIONS
PRETORIA
Tel: 012 351 6700
Ref: