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[2013] ZAGPPHC 64
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S v Motsoai (A120/13) [2013] ZAGPPHC 64 (21 February 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF GAUTENG NORTH,
PRETORIA
REPUBLIC OF SOUTH AFRICA
High
Court Ref: 160
Magistrate’s
serial No:02/2013
CASE
NO:A120/13
DATE:21/02/2013
In
the matter between:
THE
STATE and FUNNI ISAAC MOTSOAI
REVIEW
JUDGMENT
Ismail
J:
[1]
The accused, Mr Isaac Funni Motsoai, was charged with the offence of
theft of certain listed items which were allegedly stolen
from the
complainant according to the charge sheet on 02 July 2012. He was
convicted by the magistrate after evidence was led and
the matter was
than postponed in order to obtain a pre sentence report.
[2]
Pursuant to the conviction and prior to sentence the magistrate went
through his notes and he came to the conclusion that his
findings on
conviction were incorrect. Consequently he addressed a letter to this
court requesting that the conviction be set aside.
[3]
It would be prudent for a proper understanding of this matter to
refer to the magistrate’s reasons that the matter should
be
dealt with by way of a special review.
[4]
The special review sought by the magistrate reads as follows:
“
INTRODUCTION
The
accused, Funni Isaac Motsoai, was charged with theft out of a motor
vehicle alternatively contravention of section 66(1) Act
93 of 1998.
However,
when going through the record of proceedings and my notes for the
purpose of sentencing, I am no longer of the opinion
that the
accused’s conviction is safe or that the state proofed (sic)
its case against the accused beyond a reasonable doubt.
I
therefore humbly request that the accused’s conviction is set
aside
SUMMARY
OF EVIDENCE
The
state called two witnesses, Rudolf du Tiot (sic) (the owner of a
scrapyard) and Abram Kgalane (complainant)
Rudolf
du Toit testified that on the 4 April 2011 various items from the
accused. The items included an aluminium top, sink cover
carburetor
and a battery. When selling the items the accused signed a
declaration that the property was his and a copy of his ID
document
was made. The property was photographed by a police approved security
system.
Later,
the complainant, Abram Kgalane arrived and identified the aluminium
top and carburetor as his property. The police was summoned
and the
complainant again identified the property in their presence as his.
The complainant, Abram Kgalane, testified that a top,
four pistons, a
radiator and five wheels was stolen from a motor vehicle which he
borrowed form (sic) one Gapiso. He testified
that he passed by
Rudolfs place, to see whether or not someone sold his stolen(sic)
property to the
scrapyard.
The
complainant identified the top with the two new valves that he
inserted and carburetor by the bolts where someone tried to close
the
holes.
The
accused denied selling complainant’s aluminium top, sink
carburetor and a battery to the first state witness, Rudolf du
Toit.
However, he testified that on the 4 April 2011 he sold a Passat enjin
(sic), gearbox, two wheels and an old battery to the
scrapyard. The
court was satisfied that the state proved it’s case beyond
reasonable doubt and the accused was convicted.
REASONS
FOR SPECIAL REVIEW
According
to the charge sheet the offence was committed on the 2 July 2012.
This is clearly incorrect. According to the J15 the
docket was opened
in January 2011 and the accused was arrested on 21 of June 2012. The
complainant didn’t testify about the
date on which his motor
vehicle parts were stolen, however, the scrapyard owner witness
testified that he bought the items from
the accused on the 4 April
2011. Given the time delay between January 2011 and April 2011 the
doctrine of recent possession is
not applicable. I therefore, humbly
request that accused conviction dated 12/09/2013<sic) be set aside
Dated
at Nebo this 10 th day of January 2013.
(sgd)
Add
Magistrate : ”
[5]
In the light of the magistrate’s request and after having read
the record of proceedings it is clear that the actual date
of the
theft was not given by the complainant. Furthermore the date of the
alleged theft as appears on the charge sheet, is the
2 July 2012.
This cannot be correct because the goods which the complainant
identified at the scrapyard was done a few days after
the 4 April
2011, that is too say before the goods were apparently stolen,
according to the charge sheet.
[6]
No amendment was ever sought and the record as it stands is
completely out of kilter as far as the date of theft, and date the
items were identified does not make sense.
[7]
The reason proffered by the magistrate that the accused could not be
convicted by virtue of the doctrine of recent possession
is also
tenable as the period of several months elapsed between the date the
offence was noted to the police and the goods being
sold at the
scrapyard.
[8]
Accordingly I am of the view that the magistrate’s reasons in
seeking that the conviction be set aside as the state failed
to
establish beyond reasonable doubt that the accused was guilty has
merit.
[9]
Accordingly I make an order to the following effect:
(1)
the conviction noted by the court dated 12 September 2012 is hereby
set aside.
M
H E Ismail
Jude
of the High Court
I
agree,
H
Alberts
Acting
Judge of the High Court