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[2015] ZAFSHC 89
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Phume v S (164/14) [2015] ZAFSHC 89 (7 May 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: 164/14
In
the matter between:
ERIC
MOKUNYANE
PHUME
...............................................................................................
Appellant
and
THE
STATE
...........................................................................................................................
Respondent
CORAM:
C.J. MUSI, AJP et G.J.M. WRIGHT, AJ
JUDGEMENT:
G.J.M. WRIGHT, AJ
HEARD
ON: 9 MARCH 2015
DELIVERED
ON:
7 May 2015
[1]
This appeal is directed at the Appellant’s convictions in the
magistrate’s court. Even though the judgment of the
trial court
is in Afrikaans, the Appellant’s Heads of Argument and oral
argument were presented in English. I find it convenient
therefore to
give this judgment in English.
[2]
The Appellant (as Accused 1) stood trial on the following charges:
(i) Count 1: Stock
Theft (with alternative charges);
(ii) Count 2: Fraud;
(iii)
Count 3: Unauthorized use of a motor vehicle.
Accused 2, ALFRED
MOKUZAYI, was discharged at the end of the State’s case.
[3]
The Appellant pleaded guilty to count 3, but persisted in his
innocence on the other charges. He was however found guilty as
charged and sentenced in the following manner:
(i)
Count 1: three years imprisonment, of which 1 year was suspended for
five on certain conditions;
(ii)
Count 2: 12 months imprisonment;
(iii)
Count 3: A fine of R 1 200 – 00 or 3 months imprisonment.
[4]
The trial court granted the Appellant leave to appeal against his
convictions on counts 1 and 2.
[5]
The facts underlying the convictions may be summarized as follows:
Sometime between February and March 2011 a Bonsmara cow,
belonging to
Jan Hendrik Jansen van Rensburg (the complainant), was stolen
together with 6 others. On 8 March 2011 the Appellant
took the cow to
the Bothaville Abattoir with instructions for it to be slaughtered.
The next day, and only after he was requested
to do so, the Appellant
produced a handwritten document under the auspices of it being a
removal certificate in terms of section
6 of the Stock Theft Act, Act
57 of 1959 (“the Act”). The personnel at the abattoir
became suspicious as the cow appeared
to be of stud quality and the
handwritten document did not comply with the requirements of the Act.
After they contacted the complainant,
the cow was positively
identified as one of several cows stolen during the time that the
complainant was away from his farm Boshoek.
[6]
After his arrest, the Appellant took the police to the farm of the
complainant and pointed out Accused 2 as the person from
whom he
allegedly bought the cow. Accused 2 denied knowing the Appellant or
knowing of any transaction involving the cattle of
the complainant.
Other than the say so of the Appellant, there was no evidence linking
Accused 2 to the crimes mentioned in the
charge sheet.
[7]
At the time of his arrest, the Appellant was a police officer. Count
3 is based on the unauthorized use of the vehicle designated
for use
during the performance of his official duties. In his plea
explanation the Appellant admitted that on the day in question
he
took a route for which he did not have the necessary authority and
that this was done for purposes of buying the cow (“
tydens
die aankoop van die bees
”).
[8]
The Appellant attacks the findings of the trial court on several
grounds. The main grounds of appeal are:
(i) The magistrate
erred in finding that the so-called removal certificate is
meaningless and irrelevant in regard to the charge
of stock theft.
(ii)
The magistrate erred in finding that the certificate was merely
drafted to disguise the theft of the cow.
(iii)
The trial court erred in rejecting the Appellant’s version as
false.
[9]
The principles governing the adjudication of appeals against findings
of fact are well-established. A short summary will suffice.
If there
has been no demonstrable misdirection on the facts, it is presumed
that the trial court’s evaluation of the evidence
as to the
facts is correct, and a court of appeal will interfere only if it is
convinced that that evaluation is wrong (
S
v Hadebe and Others
1998
(1) SACR 422
(SCA) at 426 a – b). If the court on appeal is in
doubt, the trial court’s judgment must remain in place. See for
example:
S v Robinson
1968
(1) SA 666
(A) at 675 H.
COUNT
1: THEFT
[10]
The Appellant’s conviction on the count of stock theft is based
on circumstantial evidence. The approach to circumstantial
evidence
has been set out in the well-known case of
R v Blom
1939 AD 188
at 202 – 203. It follows the following cardinal
principles of logic:
(i) The inference
sought to be drawn must be consistent with all the proved facts.
(ii) The proved
facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn.
[11]
It is possible that several independent facts can separately be
reconciled with innocence. It is however their combined persuasive
force that should be assessed (
R v
Mtembu
1950
(1) SA 670
(A) at 679 – 680).
[12]
It is common cause that the Appellant had in his possession a cow
stolen from the complainant and that he presented it at the
abattoir
for slaughter. The Appellant dealt with the cow as if he was the
owner thereof. It is therefore necessary to evaluate
the Appellant’s
version as to his possession of the cow in order to establish whether
the magistrate’s finding that
he is guilty of theft, was
correct.
[13]
The Appellant related his version of events in (i) a statement
prepared with the assistance of his attorney and (ii) his plea
explanation. He did not testify and did not call any witnesses. A
further portion of his version was put to one of the state witnesses
namely that, as the seller of the cow was unable to write in
Afrikaans, the Appellant took it upon himself to prepare the
purported
removal certificate. The Appellant further admitted that he
used an official police vehicle to transport the cow to the abattoir.
[14]
The Appellant’s plea explanation presents with the following
version of his possession: He bought the cow from a person
who
identified himself as Samuel Motsumi. The Appellant bought the cow as
he was running a butchery. The Appellant only later learned
that the
person that sold him the cow is in actual fact Accused 2. The
Appellant received the necessary document from the seller,
where
after he took the cow to the abattoir and organized for it to be
slaughtered.
[15]
In
S v Mothlaping
1988 (3) SA 757
(NC), at 761 I –
762 G, the court conveniently summarised the status of statements
made as part of a plea explanation.
(i)
What the accused says in a plea explanation is not evidence.
(ii)
A plea explanation is evidential material in the sense that the
accused has made a statement.
(iii)
The plea explanation cannot be used as evidential material in favour
of the accused.
[16]
The Appellant chose not to substantiate his plea explanation with any
oral testimony. The plea explanation itself does not
contain the full
details of his version. For example, it does not explain that it was
indeed the Appellant who prepared the removal
certificate. This
version only became known during statements put to one of the state
witnesses. Other portions of the Appellant’s
version emerged as
the trial progressed, such as a statement prepared by his attorney in
answer to questions by the investigating
officer.
[17]
While the investigating officer was taking down the Appellant’s
warning statement, he questioned the Appellant. The Appellant
answered some of the questions. However his response to several of
the questions was to the extent that his attorney will answer
those
questions. The attorney later prepared a written statement on the
Appellant’s behalf, presumably to provide answers
to the issues
raised by the investigating officer, but also to provide an
exculpatory version of the Appellant’s possession.
[18]
It is significant that the questions which the Appellant did not
initially answer, were the pertinent ones relating to the
very
essence of his defence. No explanation has been forthcoming as to why
the Appellant was amenable to answer certain questions,
but not
others. It is also not explained why he needed the assistance of an
attorney in order to respond to simple questions posed
by the
investigating officer such as:
(i)
“
Ken jy die persoon op die brief
soos bystuk
[sic]
A6
by wie jy die bees aangekoop het?
”
(ii)
“
Wie het die brief geskryf m.a.w
die koopkontrak?”
(iii)
“
Wie het die brief onderteken?”
[19]
The State handed in the statement prepared by the Appellant’s
attorney.This is a crucial piece of the evidentiary puzzle
presented
against the Appellant as it creates more questions than it answers. I
quote the following pertinent extracts to illustrate
this point:
“
Die
persoon by wie ek die tersaaklike bees aangekoop het was voor die
voorval aan my onbekend gewees. Hierna verwys as die “Verkoper”.
3.
Die Verkoper het
‘n boodskap gelaat dat hy ‘n bees het om te verkoop.
4.
Ek
het hom gekontak en nadat ek en hy by die veekrale naby Kgotsong
Bothaville was en die tersaaklike bees aan my uitgewys was het
ons
gereël dat die prys van die bees was R4 000-00 en dat ek sou
reël vir vervoer om dit die volgende dag na Bothaville
slagpale
te neem
.”
And
later:
“
Tydens
die oplaai van die bees het ek R4 000-00 kontant aan die Verkoper
oorhandig en hom ook versoek om ‘n brief aan my te
gee dat hy
die bees aan my verkoop het.”
7.
Hy
het ‘n boek wat lyk soos ‘n faktuurboek uitgehaal maar
toe ek hom versoek om die brief in Afrikaans te skryf omdat
die
slagpale nie ‘n brief in ‘n ander taal aanvaar nie, het
hy my versoek om in my eie handskrif die brief in Afrikaans
te skryf
wat ek gedoen het omdat hy my meegedeel het dat hy nie goed in
Afrikaans kan skryf nie.”
[20]
As the Appellant was willing to set out his version in a written
statement, prepared by an attorney no less, one would have
expected
him to give the full picture. As such the statement leaves at least
the following burning questions unanswered:
(i)
If the Appellant met the seller at the cattle pens at Kgotsong, how
did he know that this person works and resides at the farm
Boshoek?
(ii)
How did he and the seller contact each other?
(iii) How did it
happen that the seller knew that the Appellant would be interested in
buying cattle?
(iv)
Why did the Appellant find it necessary to request the seller to
provide him with a “letter” indicating that the
cow was
sold to the Appellant (especially if he was not conversant with the
exact requirements of the Stock Theft Act)?
[21]
The statement becomes problematic when compared with other portions
of the state’s evidence, such as the pointing out
of Accused 2
at the farm and the presence of the Appellant’s car in the
vicinity of the farm.
[22]
The Appellant took the police to the farm of the complainant and
pointed out Accused 2 as the person who allegedly sold the
cow to
him. This followed the consultation between the Appellant and his
attorney. Warrant officer Greeff testified how this came
about as
follows:
“
Op
Maandag die 28ste het ek en mnr. Phume saam sy regsverteenwoordiger
mnr.Viljoen by die kantoor gaan ontmoet. Daar is vergun dat
ek sekere
vrae rondom die dokumentasie aan mnr. Phume gestel het en ook die
klagte aan hom verduidelik. Daar is hulle toe verdaag
of nie verdaag
nie laat hulle wat mnr. Phume en sy regsverteenwoordiger toe eers
afsonderlik gepraat het en toe het hulle my later
weer in geroep.
Mnr. Viljoen het my toe meegedeel dat sy kliënt mnr. Eric Phume
bereid was om vir my die verkoper naamlik
die op die dokumentasie,
Samuel Motsumi, bereid was om vir my die man te gaan uitwys.
”
[23]
On the Appellant’s version it would seem to be a mere
coincidence that Accused 2 happens to be a worker (the “
veewagter
”)
on the farm where the cattle were stolen. If Accused 2 was indeed
unknown to the Appellant before their transaction, it
is inexplicable
how the Appellant then knew to take the police to the farm (and not
to the cattle pens at Kgotsong where they allegedly
met).
[24]
The letter provided to the Appellant as evidence of the alleged
legitimacy of the transaction was handed in as exhibit 6. This
document again lacks pertinent information and cannot in itself be
connected to the transaction. The essential portion of the document
simply reads:
“
Verkoop
van bees
Ek
Samuel Motsomi verklaar dat ek verkoop my rooi vers bees vir Eric
Phume van Jocy M. Market met sonder beswaar
.”
[25]
The document does not contain a date or any specific description of
the cow. It does however contain the registration number
of the
vehicle to be used in transporting the cow. The registration number
appears to belong to the official vehicle that forms
the subject of
the charge of the unauthorized use of a vehicle. And it was this
vehicle which the Appellant admitted to using during
the buying of
the cow. But more importantly, according to evidence provided by the
tracking system of the vehicle, this vehicle
was in the vicinity of
the farm, not Kgotsong.
[26]
Exhibit 6 also contains the cellphone number of the alleged seller of
the cow. During the police investigation the owner of
that number was
traced as being George Molelekwa Masike. Mr. Masike testified that he
does not know the Appellant and that he took
no part in preparing
exhibit 6. The owner of the Bothaville Abattoir, Isabel Stoltz,
called the number. A person answered who identified
himself as
“S
amuel
”.
When asked how he came into possession of the cow, he responded by
saying that he traded one of his cows for that particular
red one
which he then sold to “
Eric
”
(the name of the Appellant). No one testified to confirm this version
of how the transaction went down.
[27]
The existence and contents of the “certificate”, when
compared with the Appellant’s version, creates more
problems
for the Appellant than it actually solves. According to the
Appellant’s plea explanation he himself prepared the
document
as the seller indicated that he is not conversant with Afrikaans. But
on behalf of Accused 2 it was put to witnesses that
Accused 2 is
completely illiterate and cannot write in any language. The document
furthermore does not comply with the provisions
of the Stock Theft
Act. As a police officer who had on occasion investigated cases of
stock theft, the Appellant would have been
aware of the requirements
of the Act. And furthermore, he had brought cattle to the abattoir
before. If he obtained possession
of the cow through legitimate
means, he could easily have ensured that the document was in line
with all the necessary requirements.
In the premises the magistrate
was correct in not placing any reliance on exhibit 6 as evidence of
the Appellant’s innocence.
The magistrate correctly found that
the document cannot be linked to the specific cow or the alleged
transaction.
[28]
The first state witness, Isak Kotze, testified that the cow was
branded. The brand read “JVR”. This was not disputed
by
the Appellant. It was not the Appellant’s case that he was
unaware of the brand. It would be reasonable to expect from
a police
officer who had investigated cases of stock theft, such as the
Appellant, to be aware of the significance of a brand on
a cow. At
the very least it should have caused the Appellant to make proper
enquiries from the seller as to how he came into possession
of the
cow. Finding a branded cow of stud quality at cattle pens should have
raised at least some level of suspicion with the Appellant.
[29]
The Appellant chose not to testify in his own defence and he closed
his case without calling any witnesses. It was argued on
behalf of
the Appellant that there was no duty on the Appellant to testify as
the State failed to make out a
prima
facie
case. It was further argued that
no negative inference should be drawn from the Appellant’s
failure to testify.
[30]
Where a
prima facie
case is proved against an accused, which case rests upon
circumstantial evidence and to which a reply from an innocent person
would be expected, the fact that the accused does not reply to it may
be a factor which, together with other factors in the case,
leads to
an inference of guilt. The weight to be attached to the accused’s
silence depends on the facts of the case. (
S
v Letsoko
1964
(4) SA 768
(A);
S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) at 646 d –
g)
[31]
If during the state’s case, the state hands in an exculpatory
statement and the accused does not testify, the court cannot
simply
ignore the contents of the statement (
S
v Mali
2002
(2) SACR 597
(EC) at 599 c – f). As has already been stated,
the exculpatory statement which was prepared by the Appellant’s
attorney
and which was handed in as part of the state’s case
against the Appellant, created issues which the Appellant needed to
explain
through evidence. It was at his own peril that the Appellant
chose not to explain it.
[32]
The State did succeed in presenting a
prima
facie
case against the Appellant.
Several aspects of the case and the available evidence called for an
explanation. Of these aspects
the most troubling is the relationship
between the Appellant and the alleged seller. As stated above, the
Appellant’s attempt
to vaguely deal with this aspect in the
statement prepared by his attorney, does not assist him as he would
have liked.
[33]
In the circumstances of the case, the magistrate rightly drew a
negative inference from the Appellant’s failure to testify.
The
court
a quo
was also fully aware of the fact that it had to apply the test
applicable to circumstantial evidence. And the test was correctly
applied to the specific circumstances of the case. The magistrate
evaluated the evidence in a coherent and persuasive manner. He
properly appreciated the significance of the certificate (exhibit 6)
and duly drew negative inferences from the contents thereof.
The
trial court went further and also drew appropriate negative
inferences from the Appellant’s statement and his responses
to
questions by the investigating officer.
[34]
The trial court correctly found that the Appellant’s version
(as presented in various ways other than oral testimony)
cannot
reasonably possibly be true. The portions of the State’s case
that, individually, point in the direction of the innocence
of the
Appellant are not sufficient to assist the Appellant with a finding
of innocence. Here the warning expressed in
S
v Hadebe and Others
1998 (1) SACR
422
(SCA) at 426 f – h is apt:
“
The
breaking down of a body of evidence into its component parts is
obviously a useful aid to a proper understanding and evaluation
of
it. But, in doing so, one must guard against a tendency to focus too
intently on the separate and individual parts of what is,
after all,
a mosaic of proof
.”
See
also:
S v Mbuli
2003 (1) SACR 97
(SCA) at 110 e;
S
v Van Aswegen
2001 (2) SACR 97
(SCA).
[35]
The trial court correctly found the Appellant guilty of theft by
considering the conspectus of all the evidentiary material.
The
inference is irresistible that the Appellant, together with Accused
2, stole the cow. Theft is a continuing crime. At the very
least, the
Appellant knew that the cow was not obtained through any lawful means
and still dealt with it as if he is the owner
thereof.
[36]
In the premises the trial court was correct in finding the Appellant
guilty on the main charge in count 1.
COUNT
2: FRAUD
[37]
This charge is based on the contents of exhibit 6, the so-called
certificate. Various pieces of information show that the facts
contained in the document are not true. The document was intended to
present to the world that the Appellant had obtained the cow
through
legitimate means.
[38]
It is a rule of practice in our criminal courts that “
where
the accused has committed only one offence in substance, it should
not be split up and charged against him in one and the
same trial as
several offences.
”
(
Ex
Parte Minister of Justice: In Re R v Moseme
1936 AD 52
at 59) The test is
“
whether,
taking a common sense view of matters in the light of fairness to the
accused, a single offence or more than one has been
committed
.”
(
S v BM
2014 (2) SACR 23
(SCA) at 26 b –
d)
[39]
If there are two acts, each of which would constitute an independent
offence, but only a single intent, and both acts are necessary
to
realize this intent, there is a continuous criminal transaction and
only one offence. See:
R v Sabuyi
1905 TS 170.
[40]
When evaluated against the background of the fact that the
Appellant’s version has been rejected, the existence of exhibit
6 calls for only one reasonable inference: it was produced and
presented in order to facilitate the Appellant’s presentation
of himself as the rightful owner of the cow.The misrepresentation was
a means of furthering or hiding the theft. As such it cannot
be said
that the production of the document amounts to fraud and therefore a
separate conviction on count 2. The conviction on
count 2 should be
set aside.
ORDER
[41]
In the result the following order is made:
1.
The appeal against the Appellant’s
conviction on count 1 is dismissed and the conviction and sentence on
count 1 are confirmed;
2.
The appeal against the conviction on count
2 succeeds and the conviction and sentence on count 2 are set aside.
3.
The conviction and sentence on count 3 are
confirmed.
_________________
G.J.M.
WRIGHT, AJ
I
concur.
______________
C.
J. MUSI, AJP
On
behalf of the applicant: Adv. J. Nel
Instructed
by:
McIntyre
& Van der Post Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. M. Strauss
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN