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2014
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[2014] ZAFSHC 95
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Pakela v S (A 195/2013) [2014] ZAFSHC 95 (29 May 2014)
IN
THE HIGH COURT, BLOEMFONTEIN
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A195/2013
In
the appeal between:
MOEKETSI
LUCKY PAKELA
…..........................................................................................
Appellant
and
THE
STATE
….......................................................................................................................
Respondent
CORAM:
MUSI, J
et
MBHELE, AJ
JUDGEMENT:
MBHELE, AJ
HEARD
ON:
5 MAY 2014
DELIVERED
ON:
2
9
MAY 2014
[1]
This is an appeal against conviction and sentence. The
appellant, who is a police officer, was convicted of theft out
of a
motor vehicle and sentenced to six months imprisonment in terms of
Section 276(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
[2]
The appellant applied for leave to appeal and it was refused by the
trial court. This court granted leave to appeal.
[3]
In convicting the appellant the trial court relied on the evidence of
three state witnesses. The evidence was to the effect
that the
accused broke into a vehicle that was parked in an enclosure or yard
where confiscated cars were parked (SAP13 section).
[4]
The appellant and all 3 state witnesses are Police Officers stationed
at Theunissen Police station. It was alleged that
the appellant
was caught in the act, removing amplifiers from a vehicle kept for
safety at the Police Station. It was further alleged
that a torch,
hand gloves and a screw driver were found in his possession.
One amplifier was detached from the vehicle while
the other one was
almost detached with only three of four screws left to keep it in its
place.
[5]
The first state witness Constable Ntorela went to inspect the SAP13
section, after he became suspicious when he saw the police
vehicle
which was driven by Warrant Officer Lesibe, parked far from the
police station, at an unusual spot. While inspecting
vehicles
in the SAP13 section he saw a wooden object placed on the boot of a
Honda Ballade. Upon removal of the said wooden
object the boot
went open and the appellant came out of the boot.
[6]
The second witness Constable Kale said he took a decision to inspect
the SAP13 section after he had noticed that the gate leading
to the
SAP13 section had been left open and the pad lock was missing.
The appellant jumped out of the boot in the presence
of Constables,
Ntorela and other two female police officers, constables Tsotsane and
Morwe.
[7]
The following is common cause: Warrant Officer Lesibe was
called to the scene, the tools that were alleged to have been
used in
the commission of crime were not ceased and never recorded into the
SAP13 register. The incident was not recorded
in the pocket
books/diaries of all the police officers who handled the crime scene
nor was it recorded in the occurrence book kept
at the police
station.
[8]
The appellant denied any involvement in the theft. The
appellant’s version was that on the night of the incident
he
was confronted by Ntorela and Kale while walking from the lecture
hall, where he was writing a statement to the charge office.
They accused him of having stolen amplifiers out of a vehicle that
was kept at the SAP13 section of the police station.
[9]
The basis of the appellant’s appeal is that the court erred in
rejecting his version and also that the state witnesses
had reason to
implicate him falsely, because he advised a female friend to lay a
charge of rape against another police officer
who is a friend of the
state witnesses.
[10]
It is trite that the state has to prove its case beyond reasonable
doubt. The appellant’s version must be reasonably
possibly true. If the court finds that it is reasonably
possible that the accused’s version is true, then he is
entitled
to acquittal.
[11]
The court
a quo
found that the state proved its case beyond reasonable doubt.
The court
a quo
found
that the state witnesses were truthful and reliable, more
particularly Warrant Officer Lesibe who has testified before and
it
for the past 14 years and could not find fault with him or his
testimony. The court condemned the appellant for not recording
the incidents of that night in his pocket book but found no fault
with the state witnesses for committing the same omission.
More
weight was put on the appellant’s failure to produce the docket
for which his statement was needed.
[12]
Upon cross-examination it emerged that the two female police officers
who were working at the charge office on the night of
the incident
would, if called, have contradicted the state’s version.
The state did not call those two female officers
who would have shed
light on the movements of the appellant as he alleged that he was at
the charge office where he took a notepad
for writing his statement
before proceeding to the lecture hall. The conduct of the state
witnesses, on the night of the
incident leaves many questions
unanswered.
[13]
The police pocketbook is a “bible” of any police officer
and I find it strange that they all chose not to record
this incident
in their pocketbooks. The incident was not even recorded in the
occurrence book at the charge office as is
normally the practice.
[14]
What is even more strange is that they failed to confiscate and
record the tools that were used and found on the scene of the
crime
in the SAP13 register.
[15]
It is unfathomable how a person acting alone, could get into a boot
of a car and manage to put a wooden block on its lid to
keep it
closed.
[16]
I have asked myself the question whether the state’s case was
so strong and convincing that it justified total rejection
of the
appellant’s version. The answer is no. The court
a
quo
in its analysis of the evidence
expected the appellant to prove his innocence and disregarded the
material defects that were so
glaring in the state’s case.
[17]
In the magistrate’s view the appellant was expected to give
reasons why the state’s witnesses implicated him falsely.
This approach is wrong as it puts a burden on the appellant to
speculate and find reasons why the state witnesses implicated him
falsely. See
S v Ipeleng
1993 (2) SACR 185
(T).
[18]
I am of the view that the state has not succeeded in proving the
guilt of the appellant beyond reasonable doubt.
[19]
I therefore make the following order:
19.1 The appeal
against conviction and sentence succeeds.
19.2 The conviction
and sentence are set aside.
_________________
N.
M. MBELE, AJ
I
concur.
_________________
C.
J. MUSI, J
On
behalf of the appellant: Adv. T. Langenhoven
Instructed
by:
Rosendorff
Reitz Barry
BLOEMFONTEIN
On
behalf of the respondent: Adv. E. Liebenberg
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN