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[2013] ZAGPPHC 73
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Malesela v S (A 208/12) [2013] ZAGPPHC 73 (4 March 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER A 208/12
DATE:04/03/2013
BEFORE
THE HONOURABLE JUDGES: MAKGOBA J, THULARE AJ
In
the matter between:
SWATE
WILLIAM
MALESELA
.................................................................................
APPELLANT
AND
THE
STATE
…..........................................................................................................
RESPONDENT
JUDGMENT
THULARE
AJ
[1]
Appellant a 35 year old male was
convicted of housebreaking with intent to steal and theft and
sentenced to 5 years imprisonment
in the Regional Division of Gauteng
held in Pretoria on 10 June 2011. He was legally represented at the
court a quo.
[2]
Appellant was granted leave to appeal
against his conviction only.
[3]
Appellant pleaded not guilty to the
charge, elected not to disclose the basis of his defence, exercising
his right to remain silent.
The State called two witnesses, and
appellant was the only witness for the defence.
[4]
Peter Matage Damons (hereinafter
referred to as Damons for ease of reference) testified that he knows
appellant. They used to seek
employment together within the areas of
Waterkloof and Groenkloof and also used to share their food a long
time ago.
[5]
Damons was at work on 7 October 2010 at
house number 124 Main Street Waterkloof. He worked and slept there.
He took a bath at house
number 126 as the electricity at 124 was
switched off. On that day he woke up at about 05H00 from 124 and went
to 126. He locked
the house and the gate of 124. At that time there
was nobody inside yard 124.
[6]
After his shower, when he went back into
124, he found appellant inside the yard. It was after 20 to 25
minutes. Appellant is also
known as Mpieriewierie and he called him
by that name and asked him what does he want in that yard as he
(Damons) worked there,
and also asked him how he got entry into the
yard as he (Damons) had locked the gate.
[7]
Appellant's answer was that he slept
there, meaning at 124. Damons further testified that when he
approached appellant, he noticed
that appellant was standing next to
the inside gate and there were items on the ground next to him, to
wit, the inside of a geyser
that is made out of copper and lamp
shades that hang from the ceiling. Appellant then showed him, on a
flower bed, a place where
appellant said he slept. Damons saw some
sheets and other materials there on the ground next to where he saw
appellant
[8]
Damons testified that he asked appellant
where the items came from and before appellant could answer he then
called other males
that he worked with who slept at 126. When they
came, appellant ran away down Queen Wilhemina into Lange street and
when he went
into Lange street Damons went back to Main street, but
after about five minutes appellant came back. When appellant came
back to
him, he told Damons that he is not the one who took the items
from the house and that he knew those who did, one of them being
Long. Appellant was saying he was chasing those people when he ran
out.
[9]
Damons' testimony is that he knows the
person named Long, but that he did not see this person on that day in
or near the yard and
that he saw appellant alone in the yard. He saw
nobody running away from the house. The inside of the geyser was
removed from the
geyser and the lamp shades were removed where they
were hung from the ceiling. The items belonged to his employer,
Gerhard.
[10]
House number 124 had a board that it was
for sale. There was some renovations done and if a person went passed
the person would
believe that nobody stayed there, according to
Damons.
[11]
After appellant came back where Damons
was with other males, Damons called the owner who came 10 to 15
minutes thereafter. He then
explained to the owner what he saw and
what appellant said to him and then police were later called to the
scene. Damons said he
had a good relationship with the appellant
before the incident.
[13]
Gerhardt Janse van Rensburg testified that he got a call from Damons,
a temporary worker they had engaged to assist in demolishing
houses
from which they intended to do a development, Damons told him he
(Damons) had arrested somebody who was stealing from a
house yet to
be demolished. Upon his arrival on the scene he found Damons and the
appellant sitting on the ground on the pavement
and Damons showed him
some items that he claimed appellant was found with. It was a copper
water tank that came out of an old geyser
that was in the receiving
space room and four brass light fittings which were taken from the
same house. The fittings were consistent
of intricate brass bowls and
globe inside it. Because they were second hand, they would cost about
R1000-00 to R1500-00. He then
called the police who then arrested
appellant. When asked what appellant said to him if anything, his
answer is that appellant
said it is not true. The damage that he saw
was where the copper tank was taken from the geyser which was inside
the ceiling. The
ceiling was broken up when the geyser was taken. The
light fittings were also no more hanging from the ceiling. He is not
sure
whether the window was broken before or during the break-in. The
geyser is an old one, because of the copper, the damage there can
be
about R1500-00.
[14]
Appellant testified that he is
self-employed and does paving and building. He and Damons know each
other. On 7 October 2010 he travelled
from home and did not have
enough money to travel back home and he had to get a place to sleep.
Whilst walking, at the comer of
Queen Wilhelmina and Main Streets he
saw a house and realized nobody was staying there. This is because
the house was dark, there
were no curtains and the wall was broken.
He went in and got to the trees and flower bedding. He slept there.
At around 05H30 he
heard footsteps of people walking inside the yard.
He lit his torch and saw people running away. He recognized them as
Long and
Bob. He went to inspect where they were coming from and he
found the copper geyser and the lights at the gate. It was at that
time
that Damons came and saw him. Appellant denies that he ran away.
He told the owner when asked what he was doing there, that he was
just sleeping. He denies having broken therein or stolen any items.
He was not tied or held and could have fled but he did not,
even when
waiting for the owner or later for the police. He was during that
period doing paving for Waterkloof Primary and was
employed by the
community. Although he knew Damons, he did not know that Damons lived
at that house until that morning. Although
he knows people doing the
same job as him, they are not used to borrowing money to each other.
[15]
At the close of the defence case, the
court a quo postponed the case to the 9
th
June 2011 because the Regional Magistrate wanted to ask Damons some
question(s). On the day the question(s) was to be asked, this
was not
done and the parties proceeded to address that court on the merits
whereafter the matter was rolled to the next day for
judgment and
sentence.
[16]
In my view, the Magistrate was correct
in her finding that appellant's version that he slept at the flower
beds of house 124 on
the night of 6 October 2010 is reasonably
possibly true.
[17]
At least from Damons' testimony we know
that a tree had fallen onto the wall and that the wall was broken,
through which one could
jump into the yard. What we also know, is
that the window was broken, the burglar proof was broken, the ceiling
was damaged and
that the geyser was damaged. From the evidence of
appellant and Damons, the impression is that at least the wall was
damaged sometime
before the 6
th
October 2010. Damons testimony is that he closed the window himself
on the evening of 6 October 2010 and that everything was intact.
His
version is further that the lights had not been working for some time
before that day.
[18]
Janse van Rensburg informed the court
that Damons told him that he (Damons) ran after the appellant and
caught him. I have reason
to believe that this is the report that
Damons gave to Janse van Rensburg. In court, Damons said the
appellant ran away and came
back out of own accord after five
minutes. If appellant wanted to escape and did run away, it is
improbable that he would after
such escape out of his own accord
return to the same place and the same people from whom he ran off,
especially where he stood
accused of such serious allegations.
Moreover,
even in court, Damons changed his version from that the items were in
appellant's hands to that they were on the ground
as and when it
suited him, depending on the question. Furthermore, the impression
Damons created to Janse van Rensburg was that
it was his industry, of
running and catching appellant, that led to the recovery of the
stolen items which appeilant fled with.
In court, his version is that
when appellant ran away, he did not take the items with, as they were
lying on the ground. These
contradictions in the account of Damons,
collectively in my view, have a negative impact on his credibility.
[19]
It is against this background that one
approaches the question as to when the windows, the burglar proof,
the ceiling and the geyser
was damaged. Damons say he closed the
window the previous evening and that everything was intact Janse van
Rensburg says he saw
the broken window but he cannot say whether that
was broken before or whether it was broken at the time of the
break-in.
[20]
There is no direct evidence that
implicates the appellant with the commission of the crime of
housebreaking with intent to steal
and theft. For ail intents and
purposes, the State relies on the evidence of a single witness, to
wit, Damons. Janse van Rensburg's
testimony in the main was to
formally prove ownership only.
[21]
The approach to be adopted, in my view,
is set out in S v Shackell 2001(2) SACR 185 (SCA) by Brand AJA as he
then was at paragraph
30 when he said:
"It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that
a mere
preponderance of probabilities is not enough. Equally trite is the
observation that; in view of this standard of proof in
a criminal
case, a court does not have to be convinced that every detail of an
accused's version is true. If the accused's version
is reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible
to test the
accused's version against the inherent probabilities. But it cannot
be rejected merely because it is improbable; it
can only be rejected
on the basis of inherent probabilities if it can be said to be so
improbable that it cannot reasonably possibly
be true. On my reading
of the judgment of the Court a quo its reasoning lacks this final and
crucial step."
See
also S v V
2000 (1) SACR 453
(SCA) at 455 paragraph 3 (i).
[22]
I am inclined to pronounce myself in
terms similar to how Moosa J did in S v Janse van Rensburg
2009 (1)
SACR 216
at 223 paragraph 20 when he said:
"The
complainant is a single witness and in the light of ail the omissions
and contradictions, I do not agree with the findings
of the trial
court that the evidence of the complainant was satisfactory in every
material respect The version of the appellants,
although highly
suspect, cannot, on the totality of the evidence and the
probabilities, be said to be not reasonably possibly true
or false
beyond reasonable doubt"
[23]
In my view, notwithstanding some
probabilities in the version of appellant, there remains a reasonable
possibility that the substance
of his version is true. It is not for
me to speculate as to what it is that concerned the Magistrate such
that she deemed it meet
to recall Damons. Whatever it is, in the
totality of the circumstances, in my view, the appellant ought to
have been given the
benefit of the doubt
I
would make the following order
1.
The appeal against conviction is upheld.
2.
The conviction and sentence are set aside.
DM
THULARE
ACTING JUDGE OF THE HIGH COURT
I
agree, and it is so ordered.
EM
MAKGOBA
JUDGE
OF THE HIGH COURT