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[2015] ZAGPPHC 514
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Ramokadi and Others v S (A567/2014) [2015] ZAGPPHC 514 (23 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: A567/2014
In
the matter between:
JOSEPH
TSEPO RAMOKADI
First
Appellant
ABEL
MOSEKEMANG ROOIBAADJIE
Second Appellant
WEALTHMAN
SMOUS NGCOBO
Third
Appellant
DAVID
MASEGO ROOIBAADJIE
Fourth
Appellant
and
THE
STATE
Respondent
Heard:
30 April 2015
Delivered:
23 June 2015
JUDGMENT
A.A.L
OUW J
Introduction
[1]
On 13 March 2014 the four appellants were convicted on a count of
theft of copper to the value of approximately R40 000 in the
district
of Benoni.
[2]
On 14 March 2014 the appellants were each sentenced to three years'
imprisonment of which 18 months' imprisonment were suspended
for a
period of 5 years on certain conditions.
[3]
The appellants were granted leave to appeal against the conviction
and sentence imposed on them
Conviction
[4]
Reed & Mitchell is an industrial company. Cool It is an
air-conditioning company which on a regular basis serviced the
air-conditioning equipment at the premises of Reed & Mitchell.
[5]
The four appellants entered the premises of Reed & Mitchell (the
complainant) in two vehicles. There is an exit and entrance
control
to the premises as well as security cameras inside the building from
which the yard could be watched.
[6]
What is no longer in dispute is that they were seen taking the copper
in various boxes or containers from a building
on the
complainant's premises and loaded these into their vehicles.
They were stopped before they could exit at the security
gate. The
vehicles were searched and the copper found.
[7]The
copper weighed 461kg and its value was R40 000.
[8]
On appeal the only point that was argued is that the court a quo
erred in finding them guilty of theft whilst the appellants
were not
successful in stealing and that the conviction should therefore have
been for attempted theft only. This was the
simple issue on
which the appeal turned.
[9]
The magistrate rejected this argument as far-fetched because he
stated they had already completed their action or, to put it
differently,
contrectatio
was completed.
[10]
On
behalf
of
the
appellant reliance
was placed
on
the
5th edition
of
Criminal
Law
[1]
as
well as
State
v
Tau
decided
in this court
[2]
.
[11]
The eminent writer of this text book opines that the word
contrectatio
no longer plays any useful role in South African
law. He defines the act of appropriating ownership of another's goods
as follows:
"By
diefstal in die vorm van saakonttrekking bestaan die toe-
eieiningshandeling uit enige handeling ten opsigte van 'n saak
waardeur X
(i)
die regmatige
eienaar of besitter
uitsluit
van
sy saak en
(ii)
self die
bevoegdhede
van 'n
eienaar
oar
die
saak
uitoefen. X
gedra
ham dus asof hy die eienaar of reghebbende
is
terwyl hy dit nie is nie, en oefen in die plek
van
die reghebbende
self
die beheer
oar
die saak
uit.
"
[3]
[12]
He further gives the following examples also with reference to the
Tau
case:
"Oat
'n
blote
aanmatiging
van
beheer oar die saak
nie vo/doende
is
vir
'n diefstalhandeling
nie,
maar
dat
daar
verder vereis
moet word
dat
X deur
sy
optrede Y
van
sy
saak
moes uitgesluit
het,
blyk
duidelik
uit
twee
uitsprake,
naamlik
Tau
en
Mzandi.
In
Tau
het X
beheer
uitgeoefen
(of minstens
ham
die beheer
aangemagtig)
oar
'n stuk
ru-goud,
maar
in die sme/thuis van
die
goudmyn
waar
die
handeling
plaasgevind het,
was
die
sekuriteitsmaatreels
so
uitstekend
dat
hy
nooit
daarin
sou geslaag het
om
die
ru-goud uit
die
smelthuis te
verwyder
nie. Die
hof
het
tereg
bes/is
dat
X
nie
diefstal
van die ru-goud
gepleeg
het
nie, omdat hy nooit
daarin
geslaag
het
om
Y
van sy effektiewe beheer
oar
sy saak uit te sluit nie.
In
Mzandi
het X
by 'n huis
ingebreek,
artikels
soos
'n hoetroustelsel
van een plek
in die
kamer
na
'n ander plek
onder
'n bed
verskuif
en dit in
'n sak geplaas.
Die artikels is egter
nooit deur
ham
uit die
kamer
verwyder nie.
Vermoedelik
was sy bedoe/ing
om
dit later te kom haal wanneer dit vir ham veiliger was, maar dit het
nooit gebeur nie.
Die
hof
het
tereg
bes/is
dat
X nie
diefstal
in
die
huis gepleeg
het nie,
maar
hoogstens
paging
tot diefstal,
omdat
die werklike eienaar
nooit sy beheer oar sy artikels
verloor
het nie. Alhoewel
daar
'n aanmatiging
van beheer
oar die artikels
was, en
alhoewe/
X
ham
dus
self
die
bevoegdhede
van
'n eienaar aangematig
het, was daar nooit 'n
effektiewe
onttrekking van
die
artikels uit die werklike eienaar se beheer nie.
'
[4]
[13]
When this authority is applied to the facts in this case it is clear
that the magistrate was not correct in finding that
contrectatio
was
the
requirement and that theft had in fact been completed.
The appellants had throughout been watched on CCTV and vehicles are
routinely
searched at the security gate before they exit. This is
where the appellants were apprehended. They clearly did not succeed
in
excluding the owner of its control of the copper.
[14]
In my view therefore the appeal must succeed on this basis namely by
replacing the conviction for theft with that of attempted
theft.
Sentence
[15]
I am however not of the view that this have any meaningful effect on
sentence. The fact that they were stopped short of the
gate and
therefore did not complete the theft is no credit for them. I view
the sentence imposed by the magistrate as a light one
for theft of
this magnitude and therefore find that this sentence is suitable,
exercising my own discretion, for the crime
of attempted theft as
well.
[16]
On behalf of the appellants it was argued that the magistrate erred
in making an example of them by overemphasizing that theft
of copper
is rife in the area of the court's jurisdiction; that the appellants
worked in a group; they were in a position of trust
and that they
failed to show remorse.
[17]
In my view it is established that these four factors exist The
question simply is what weight should be given to these factors
taking into account the circumstances mentioned hereunder. As regards
the position of trust it is so that this case can be compared
to
theft from one's employer as the company they worked for regularly
performed services at the complainant's premises. They did
in fact
bite the very hand that was feeding them. In this connection the
following was said in
State v Prinsloo:
''Theft
from
an
employer
must
be
heavily
punished. The employer
is
entitled
to unswerving
honesty
from the employee
in return
for
the
wages he pays
and
the benefit
he
gives
him... the
employer is
particularly
in
a
vulnerable
position in
relations to
employees
who
choose to
deal
with
the
employer's assets.
I
consider
the
duty
of
the
courts
whenever
this
sort
of misdemeanour
is detected to send
out
a
message
that such conduct
will be severely
punished'
[5]
[18]
On
the
other
hand
Legodi
J
stated
that
it
is
important
to
keep
first offenders out of
jail, in
so
far as it might be possible
[6]
.
[19]
The main contention for an argument that they should be kept outside
of a prison is that they were all gainfully employed and
were family
members who supported their respective families and that the copper
was retrieved.
[20]
In my view having regard to the nature of the offence, the community
interest and their personal circumstances, I am of the
view that an
appropriate sentence is three years' imprisonment of which 18 months
are to be suspended for a period of five years.
Order
I
therefore make the following order:
1.
The appeal on conviction succeeds.
The conviction of the appellants
for theft is set aside and replaced with a conviction on attempted
theft.
2.
The appellants are sentenced to
three years' imprisonment half of
which is suspended for a period of five years on condition that each
appellant is not convicted
of theft or attempted theft committed
during the period of suspension.
_____________________
A.
A. LOUW
Judge
of the High Court
I
agree
____________________________
V.
V. TLHAPI
V.V.
TLHAPI Judge of the High Court
For
the Appellant
Adv. M van Wyngaard
For
the First Respondent
Adv. Makanda
Instructed
by
The DPP
[1]
CR Snyman p499; I am in the possession
of
the Afrikaans , 6
th
edition
which I shall quote hereunder
[2]
1996(2) SACR 79 (T)
I
02 g-h
[3]
At p51
0
[4]
At p51 1
[5]
1998(2) SACR 669 (W) at 672 b-e
[6]
State v
Chipape
2010(1)
SACR 245 (GN
P)