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[2015] ZAGPPHC 148
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Mavimbela v S (A566/2014) [2015] ZAGPPHC 148 (17 March 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No:
A566/2014
DATE:
17/3/2015
Not
reportable
Not of
interest to other judges
In the matter between:
JABULANI
MAVIMBELA
..................................................................................................
Appellant
and
THE
STATE
........................................................................................................................
Respondent
JUDGMENT
MOHLAMONYANE AJ:
[1] The Appellant was charged with and
convicted of the crime of theft of a motor vehicle in the Regional
Court for the Regional
Division of Gauteng, held at Benoni on 25
April 2014. He was sentenced to an effective term of imprisonment of
ten (10) years.
[2] The Appellant,
who was accused no 1 in the Court
a quo
,
was charged together with one Victor Thabang Mochela, who was accused
no 2 in the Court
a quo
.
Accused no 2 is unfortunately not before us on appeal.
[3] In the
charge-sheet the State alleged that
“
...upon
or about 26/10/2010 and at or near BENONI... the accused did
unlawfully and intentionally steal a motor vehicle with registration
number NYP […] to wit VW CITI GOLF and that the said motor
vehicle was recovered on 27/10/201 at ETWATWA...”
.
[4] Both Appellant and Accused No 2
pleaded not guilty to the charge. Appellant’s basis of defence
was a denial of all the
allegations levelled against him. Accused No
2, in explaining the basis of his defence, stated that the motor
vehicle alleged to
have been stolen was found in the premises which
he was renting. The motor vehicle was according to him brought there
by Appellant
who was in company of two other men. Among them he knew
Appellant as Jabu. He stated further that they wanted that he as a
mechanic,
should fix the ignition system of the vehicle. He assessed
the ignition system which he found to have been damaged. As it was at
around 06h30, he requested them to leave the motor vehicle with him
and to return later.
[5] In terms of
section 220
of the
Criminal Procedure Act, no 51 of 1977
, it was placed on record that
Accused No 2 admitted that the vehicle was found in his
possession, but that he did not know
it was stolen.
THE STATE’S
CASE:
[6] The State called
the investigating officer Warrant Officer Sipho Mampane
(“Mampane”)
whose evidence was briefly as follows: He was
attached to the Vehicle Identification Unit of the South African
Police Service
(“SAPS”)
for at least seven (7) years. He stated that
sometime in October 2010, he went to Benoni police station in the
course of investigating
the theft of the said motor vehicle. He
booked out Accused No 2 who had informed him that the vehicle was
brought to him (Accused
No 2) by the Appellant. The investigating
officer, together with Accused No 2, went to a place called Proper
East, looking for
Appellant. It was at around midnight when Accused
No 2 pointed out Appellant’s home. The latter could not be
found, as he
was, according to the Appellant’s grandmother, no
longer living there but with his girlfriend at another section of
Proper
East, which home she did not know. A young man, apparently the
Appellant’s younger brother, took them to his brother’s
girlfriend’s home. The young man pointed a shack to them in
which the Appellant was found sleeping. He was arrested by Mampane
and taken to Benoni police station where he was detained.
[7] The second
witness called was Michael Adam Banthan
(“Banthan”)
.
He was in the employ of the Gauteng Traffic Police Department
attached to the Community Safety Unit. Among his duties were the
tracing and recovering of stolen and hijacked motor vehicles. On 27
October 2010 Banthan was on duty, he had reported for the 6h00
shift
and was doing duty along the N12 freeway. His motor vehicle was
fitted with a tracker system, which activated whilst he was
so on
duty, giving a signal. It was at about 6h30 and the control room
personnel informed him that it was a gold coloured Citi
Golf motor
vehicle which was giving a signal. He and his colleagues tracked the
motor vehicle to Etwatwa, at house number 15368
at Maleka section.
Upon arrival at that house, they approached the vehicle which was
parked. Accused No 2 emerged from the house
and he was arrested for
possession of a suspected stolen motor vehicle. Upon being questioned
as to why the vehicle was at his
place, Accused No 2 mentioned to
them that someone brought it there. Upon arrival of Banthan and his
colleagues at Accused No 2’s
house, the members of SAPS and the
Tracker officers arrived. The police then arrested Accused No 2.
[8] The
owner/possessor of the motor vehicle, Mrs Patricia Ann Roux
(“Roux”)
testified to the effect that she lived at number
11 Surrey Street in Benoni. She stated that at around 22h00 she went
to bed after
parking the motor vehicle outside. At about 04h00, i.e.
the morning of 27 October 2010 when she peeped through the window the
motor
vehicle was gone. She told the Court
a
quo
that the motor vehicle was
recovered a few hours after being stolen. She positively identified
it after her son returned therewith
from the police station.
COMMON CAUSE
ISSUES:
[9] The following facts are common
cause:
9.1
That the motor vehicle with registration letters and numbers NYP […],
to wit a Volkswagen Citi Golf champagne gold in
colour, was stolen.
9.2
That the said vehicle was stolen on the night of 26 October 2010, or
the early hours of 27 October 2010.
9.3
That the motor vehicle was recovered at the home/house of Accused No
2.
9.4
That the said motor vehicle was recovered a few hours after it got
stolen and was positively identified by Roux as her motor
vehicle.
DISPUTED
FACTS:
[10] The Appellant denies that he knew
anything about the motor vehicle. According to him he does not even
know Accused No 2, or
where he lives. According to the investigating
officer, Accused No 2 insisted that it was the Appellant (together
with his friends)
who brought the vehicle to him, to fix. It has to
be noted that it is profoundly significant that Accused No 2 stated
in examination-in-chief
that he knew the Appellant for at least
twenty (20) years. In cross-examination, Accused No 2 persisted that
he knew the Appellant
very well. This then leads me to the issue(s)
to be decided.
THE ISSUE TO
BE DECIDED:
[11] The only issue to be decided in
this appeal is whether the Appellant was the one who stole the motor
vehicle. There is no direct
evidence of the theft of the motor
vehicle. The question that immediately arises is whether the learned
Magistrate erred and misdirected
himself in finding that the
Appellant’s version is not reasonably probably true. I have
taken cognisance of one of the grounds
of appeal raised by the
Appellant, i.e. that the learned Magistrate has erred in convicting
the Appellant on the evidence of a
co-accused, who was alleged to
have been an unreliable witness.
[12] It is significant to observe that
Accused No 2, upon being asked by the investigating officer as to who
gave him the vehicle,
he, without hesitation, mentioned that it was
Jabulani Mavimbela (Appellant).
[13] It was argued on
behalf of the Appellant (in heads of argument) and before us that the
only evidence that placed the Appellant
at the scene of crime was
that of Accused No 2. The further submission was that the Appellant
gave the police a reasonable explanation,
“
...
at the first opportunity...”
. The
question is: what explanation, if any, did the Appellant give?
From the record all what he could proffer was that
he knew nothing. That was, in my view, tantamount to giving no
explanation at
all. The submission is, in my opinion, flawed. It was
argued further that Accused No 2 had a motive to implicate the
Appellant.
What motive if any?
At the first
opportunity, he revealed the name of the person who had brought the
vehicle to him. He was consistent throughout in
that regard.
According to the Appellant, he knew Accused No 2 by sight, they meet
in streets and has had no fight with him. He
further contends that he
does not know why Accused No 2 would
“
choose”
him. He did inquire from him when they were both
incarcerated and Accused No 2 alleged he had been assaulted by the
police, that
is why he
“
chose”
the Appellant. It was argued by counsel for the
State that the issue of assault was an afterthought because it was
never raised
with the investigating officer in cross-examination. I
agree with that proposition. Upon being confronted with the
Appellant’s
version that he (Appellant) did not know Accused No
2, it elicited the following:
“
...he
knows that by the way that I know him and he also knows me ... and he
knows we are in trouble because of this matter...”
.
[14] In S v Mavinini,
2009 (1) SACR 523
(SCA) at 528, par. 13 Cameron JA (as he then was, with Kgomo AJA and
Mhlantla AJA concurring) stated as follows:
“
The
general requirement that a witness must be confronted with damaging
imputations is not a formal or technical rule. It is a precept
of
fairness. That means it must be applied with caution in a criminal
trial: if, despite the absence of challenge, doubt arises
about the
plausibility of incriminating evidence, the accused should benefit”.
[15] I align myself with the view
expressed by Cameron JA in the Mavinini case quoted above. It would
have been unfair, on the part
of the learned Magistrate towards the
Investigating Officer to have accepted that the investigating officer
had assaulted Accused
No 2 without the latter or his lawyer having
taken it up with him for a response.
[16] In Madonsela v S (Case no
A463/2011) [2012] ZAGPJHC67 (19 April 2012) Van Oosten J, on the
doctrine of recent possession, stated,
in paragraph 5 thus:
“
In
Shabalala v S
[1999] ALL SA
583
(N) 587/8, possession of
the stolen vehicle on the day of the robbery or the day thereafter,
was accepted as sufficient for the
doctrine of recent possession to
apply. In S v Mavinini
2009
(1) SACR 523
(SCA) Cameron
JA, writing for the court, held that the appellant’s possession
of the stolen vehicle less than 24 hours after
the robbery, taken
together with his “elusive conduct”, overwhelmingly
suggested criminal involvement in the robbery.
In S v Matola
1997
(1) SACR 321
(BPD)
323I-324g, possession of the stolen vehicle a month after the theft,
together with the further facts, that the stolen vehicle
had been
registered in the appellant’s name, with false registration
numbers, and that the original number plates of the
stolen car had
been found on the appellant’s property, were held to
sufficiently prove that the appellant had played a role
in the
theft”.
[17] In Zwane and Another v The State
(426/13)
[2013] ZASCA 165
(27 November 2013) Matjiedt JA, writing for
the SCA, in paragraph 11 stated as follows:
“
The
inference that a person found to be in possession of recently stolen
property is the thief or one of the thieves (or, in this
instance,
one of the robbers) can only be drawn as the only reasonable
inference where the nature of the goods stolen and the time
lapse
between the theft (or robbery) and the discovery of the goods in that
person’s possession lend themselves to such a
finding (see S v
Parrow
1973 (1) SA 603
(A) at 604B-E; S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A) at 715 C-D; S v Mavinini
2009 (1) SACR 523
(SCA) para 6). The
crucial question would be whether the items concerned are of the type
which can easily and quickly be disposed
of, in which event anything
beyond a relatively short time lapse cannot be said to be recently
stolen (see Skweyiya at 715E)”.
[18] In my view, the vehicle which was
found in possession of Accused No 2 was found within far less than 24
hours after it got
stolen. An inference could be drawn that Accused
No 2 and Appellant had a role to play in the theft.
[19] In the result, based on the
findings I have already made above, I find that the Appellant was
connected to the theft of the
motor vehicle.
CONCLUSION
:
[20] I accordingly have no doubt that
the learned Magistrate was correct in accepting the State’s
version and rejecting that
of the Appellant. He did not err and
misdirect himself by finding that the State had proved its case
beyond reasonable doubt.
SENTENCE:
[21] I disagree with the learned
Magistrate in imposing a term of imprisonment of ten (10) years on
each of the accused. In my mind
the sentence is startlingly
inappropriate. The sentence ought to be interfered with. In terms of
section 103
(1) of the
Firearms Control Act, No 60 of 2000
, both
Appellant and Accused No 2 were declared unfit to possess firearms.
[22] In the result I make the following
order:
22.1
The Appellant’s appeal against conviction is dismissed.
22.2
The Appellant’s appeal against sentence is upheld.
22.3
The sentence of ten (10) years’ imprisonment is set aside and
replaced with the following:
“
Accused
No 1 is sentenced to five (5) years’ imprisonment”.
22.4
The conviction of the Appellant’s co-accused, Victor Thabang
Mochela is reviewed and confirmed.
22.5
The sentence of ten (10) years’ imprisonment imposed on Victor
Thabang Mochela is reviewed and set aside and replaced
with the
following:
“
Accused
No 2 is sentenced to 5 years’ imprisonment”.
22.6
The declaration against Appellant by the Court
a
quo
to be unfit to possess a firearm is
confirmed.
_________________________________
MD MOHLAMONYANE
[Acting Judge of the High Court of
South Africa,
Gauteng Division, Pretoria]
I concur.
__________________________
M. H.E. ISMAIL
[Judge of the
High Court of
South Africa,
Gauteng Division, Pretoria]