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[2013] ZAFSHC 102
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De Koker v S (A328/2012) [2013] ZAFSHC 102 (24 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A328/2012
In
the appeal between:-
ALFONZO
DE KOKER
.............................................................
Appellant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
MOLOI, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
20 MAY 2013
_____________________________________________________
DELIVERED ON:
24 MAY 2013
_____________________________________________________
JUDGMENT
_____________________________________________________
K.J. MOLOI, J
[1] This is an appeal
against the conviction on a charge of motor vehicle theft and the
sentence of 6 (six) years imprisonment imposed
by the Regional Court,
Bloemfontein on 19 June 2012. The trial court granted leave to appeal
to this Court.
[2] The basis of the
conviction was that the appellant, a panelbeater by occupation, was
found in possession of a motor vehicle
belonging to one Hendrik Abram
du Plessis, which vehicle was recently stolen from Northridge Mall in
Bloemfontein and that the
appellant failed to give a reasonable
explanation of his possession thereof. The trial court couched this
basis in the following
terms:
“
The
prosecutor however submitted strongly that he succeeded in proving
the case against you beyond reasonable doubt… That
even though
there is no direct evidence against you, the fact that you were found
in possession of a vehicle that had just been
recently stolen, you
failing to give a reasonable explanation about the possession
thereof… I should then reasonably infer
that you are the
person who actually stole this vehicle…”
[3] Briefly the facts of
the matter were as follows:
On 10 April 2011 Mr
Hendrik Abram du Plessis parked his Nissan 1400 motor vehicle with
registration letters and numbers DLM654FS
worth R60 000,00 in
the parking area of Northridge Mall in Bloemfontein. After doing his
business in the mall, he went to
where he had parked his motor
vehicle. The motor vehicle was no longer there despite the fact that
he still had the keys thereof
in his possession. He reported the
theft of his vehicle to a nearby Bayswater police station. The
police, led by Colonel Gerber
attached to the organised crime unit,
following information received, went to an address given being a
house of the Lubbes where
they found the complainant’s bakkie
parked in the backyard covered with some cloth. He further received
information that
the appellant brought the vehicle there as he
usually did as per agreement when his place of business had too many
vehicles to
accommodate. Colonel Gerber then confronted the appellant
about the vehicle concerned and the appellant told him the vehicle
was
brought to him for spray-painting, but could not tell the name or
address of the person who brought it to him. Colonel Gerber went
to
the appellant’s workshop where he found many other vehicles
which he inspected and could not find anything untoward. Based
on the
failure of the appellant to provide the name and address of the
person who brought the said vehicle to him for spray-painting
and the
fact that, according to him, the vehicle was in “pristine”
condition and needed no spray-painting, he arrested
the appellant.
The said vehicle could be started with a modified key that was not
its original key. Later the complainant identified
the vehicle as his
stolen property.
[4] After arrest the
appellant made a warning statement to another police officer to whom
he said the person who brought the vehicle
to him was known only as
KB, but did not know his (KB’s) address. The VIN number of the
vehicle had been removed. The warning
statement was made a day after
the arrest. Warrant Officer Mokhethi, who was with Colonel Gerber all
the time, could not remember
if the name KB was mentioned before the
warning statement was made. According to the police a panelbeater,
such as the appellant,
had to know full particulars of his clients.
[5] In the plea
explanation at the commencement of the trial, the appellant stated
that on 11 April 2011 KB brought a white Nissan
bakkie to him for
repairs. The said bakkie had no registration plate, but a temporary
permit. KB had left another vehicle with
him two weeks before and
this vehicle, a yellow Uno, was parked at the normal storage for
excess vehicles, namely the Lubbe’s
place. The appellant and KB
drove the Nissan bakkie to the Lubbe’s place where the bakkie
was left and the Uno given to KB.
The following day the police
confronted and eventually arrested him. This was repeated in evidence
by the appellant. It was confirmed
by Mrs Lubbe who was at home when
the bakkie was delivered. The Lubbes agreed to the storage of
vehicles at their place by the
appellant and even gave him an extra
key of the gate to facilitate his access to the place whenever he
wanted to. Asked why he
did not verify KB’s address and gave it
to the police, the appellant answered that his legal representative
had advised him
to have nothing to do with KB, whose name he later
learnt to be Godfrey.
[6] Above the basis of
the appellant’s conviction was set out. In addition the trial
court in its judgment added that
“
But in this
case I do not have evidence that someone else could have stolen the
vehicle”
The judgment further
stated::
“
There is no
direct
evidence
against you correct, it is only circumstantial but there cannot be
any other reasonable inference to be drawn from this
circumstances of
your possession of the vehicle just two days after it had been stolen
than that you were actually the person who
stole it. Your failure to
bring KB here shows that there is no KB who could have stolen the
vehicle elsewhere but only yourself.”
[7] That reasoning is
incorrect in that, firstly, where circumstantial evidence is
concerned, the cardinal rules of logic enunciated
in
R v Bloem
1939 AD 188
et seq
find application, namely
“
(1) The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, then the inference cannot be drawn.
(2) The proved facts should be such
that they exclude every reasonable inference from them save the one
sought to be drawn. If they
do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought
to be drawn is correct.”
Uncontroverted evidence
is that the appellant is a panelbeater; that he had an agreement with
the Lubbes to store vehicles at their
place where he had too many
vehicles at his workshop and that he stored the bakkie in question
there where it was found; that at
the same venue he had stored the
said KB’s Uno vehicle which he had repaired and the same was
taken by KB on the day the
bakkie concerned was brought to that
place, etc. Secondly, the reference to recent possession, itself is
the subject of inferential
scrutiny subject to the same cardinal
rules as circumstantial evidence. Thirdly, the alleged failure of the
appellant to give reasonable
explanation cannot take the matter any
further because the appellant did give a reasonable explanation of
his possession by saying
KB (Godfrey) brought the said vehicles to
him for repairs only whereafter he would pay the appellant and remove
the vehicle as
he did the Uno. There was no obligation on the
appellant to have given his explanation to Colonel Gerber at his
arrest especially
if his rights were explained to him. See section
35(1)(a) of the Constitution of South Africa, Act No 108 of 1996.
Fourthly, the
rejection of the appellant’s explanation of his
possession of the said vehicle was based on his failure to call KB as
a witness
and the magistrate’s personal knowledge or deduction
that
“
it looks
like theft of motor vehicle by panelbeaters is the order of the day,
particularly in the Heidedal area because
S
v Mombondwana
the accused was found in possession of a vehicle that was just stolen
the previous night. He is a panelbeater in Heidedal and the
vehicle
also was not found in his direct premises, but it had been stored at
some other person’s premises like Mr Lubbe in
your case.”
The evidence of the
accused may only be rejected if
“beyond any reasonable
doubt it is false”
-
R v
Difford
1937 AD 370
at 373. See also
R
v Matsoso
1950 (4) SA 178
at 185 and
R
v M
1946 AD 1023
at 1027 where the
following was stated:
“
And, I
repeat, the Court does not have to believe the defence story; still
less has it to believe it in all its details. It is sufficient
if it
thinks that there is a reasonable possibility that it may be
substantially true.”
[8] In the heads of
argument it was argued that the most the court could convict the
appellant of was being found in possession
of stolen goods and being
unable to give a satisfactory reason/explanation of such possession
in contravention of section 36 of
the General Law Amendment Act No 62
of 1955. This argument was correctly abandoned at the hearing in view
of the fact that a reasonable
explanation was given.
[9] In
view of the conclusion reached that the appeal against conviction
ought to succeed, it becomes redundant to deal with the
appeal
against the sentence herein.
ORDER
[10] The appeal against
the conviction succeeds and the sentence of six (6) years
imprisonment imposed on 19 June 2012 is set aside.
____________
K.J. MOLOI, J
I concur.
_________________
N.W. PHALATSI, AJ
On
behalf of appellant: Adv J.S. Makhene Instructed by:
Bloemfontein
Justice Centre BLOEMFONTEIN
On
behalf of respondent: Adv M. Lencoe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/spieterse