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[2013] ZAFSHC 216
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S v Mohlomi Pii (57/2013) [2013] ZAFSHC 216 (5 December 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No : 57/2013
In
the matter between:-
THE
STATE
…........................................................................................................................................
Applicant
and
JOSHUA
MOHLOMI PII
…..............................................................................................................
Respondent
HEARD
ON:
22 NOVEMBER 2013
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
5 DECEMBER 2013
[1]
This is an application by the State as applicant for leave to appeal
in accordance with the provisions of
s 319
of the
Criminal Procedure
Act, 51 of 1977
.
[2]
Phalatsi AJ presided over the criminal trial, but his acting stint
came to an end at the end of the third term and consequently
the
Acting Judge President of this division referred the application for
leave to appeal to me for consideration. Two accused,
accused 1, a
certain Reit, and accused 2, the respondent in this application, but
who will be referred to herein as in the trial
court, stood arraigned
before Phalatsi AJ who delivered judgment on 20 September 2013.
Accused 1 was convicted of (i) housebreaking
with the intention to
rob and robbery with aggravating circumstances, (ii) murder and (iii)
assault with intent to do grievous
bodily harm. Accused 2 was
acquitted on all charges.
[3]
Adv A.M. Ferreira of the Office of the Director of Public
Prosecutions in Bloemfontein appeared for the State in the criminal
trial as well as in this application. Adv L. Tshabalala of the
Bloemfontein Justice Centre appeared for accused 2 in the
criminal
trial as well as in this application for leave to appeal.
[4]
The State’s application for leave to appeal reads as follows:
“
Dat
die Applikant verlof toegestaan word om te appelleer teen die
uitspraak van Sy Edele Waarnemende Regter Phalatsi gelewer op
20
September 2013 na die Hoogste Hof van Appèl op sekere regsvrae
wat die (sic) tydens die verhoor ontstaan het, te wete:
Dat Sy Edele
Waarnemende Regter fouteer het in sy aanwending van die leerstuk van
onlangse besit; en
Dat
bovermelde en addisionele regsvrae geformuleer sal word en tydens
gemelde aansoek aan die Verhoorhof voorgehou word ten einde
die
Verhoorhof in staat te stel om gemelde vrae te formuleer vir
oorweging deur die Hoogste Hof van Appèl.”
[5]
When the application was called Mr Tshabalala indicated that he did
not have any objection to the reservation of the formulated
question
of law. For ease of reference the question of law the State
wants the court to reserve as it appears from the notice
of
application is translated as follows:
“
That
the Honourable Acting Judge erred in his application of the doctrine
of recent position.”
[6]
I accept that the intention was to phrase the aforesaid in the form
of a question so that it reads:
“
Did
the Acting Judge err in his application of the doctrine of recent
possession?”
[7]
When the application was heard Ms Ferreira raised two further alleged
questions of law to be reserved, to wit:
“
(1)
Het die Regter die heersende reg korrek toegepas deur te bevind dat
respondent vrygespreek moet word op alle aanklagte deurdat
hy nie in
besit van die motorvoertuig gevind is nie?
Die Regter moes die
afleiding vanweë die leerstuk van onlangse besit gemaak het dat
respondent saam met beskuldigde 1 betrokke
was by die pleging van die
misdrywe.
(2)
Het die Regter fouteer deur te bevind dat daar geen
omstandigheidsgetuienis was wat die skuld van die respondent bewys
het
bo redelike twyfel nie?”
[8]
When I perused the judgment and prepared for the hearing of the
application for leave to appeal, it struck me that the question
that
the State wanted the court to reserve might not have a practical
effect on accused 2 or might not be sufficient to serve the
interest
of justice. I believed that something more was required and that
certain further questions of law should be reserved for
consideration. Therefore I was of the view that the State’s
request was meritorious.
[9]
Mr Tshabalala was taken by surprise by the State’s approach and
indicated that he did not have a copy of the judgment
of Phalatsi AJ
and that he needed time to consider the issue. Upon my
enquiries it appeared that if the matter had to be
postponed counsel
would only be available during the course of next year. It was
then agreed that Mr Tshabalala would place
his viewpoint on record
and that it be recorded by me accordingly. He objected to the
two further questions as he was of
the view that these were not
questions of law, but related to factual issues and that the State
did not have the right to appeal
to the Supreme Court of Appeal in
that regard as it is not entitled to have a disguised question of
fact reserved.
See:
Attorney-General, Transvaal v Kader
[1991] ZASCA 135
;
1991 (4) SA 727
(A) at 739D – 740J.
[10]
An application for leave to appeal requires the court to consider
whether there is a reasonable prospect that another court
will come
to a different conclusion regarding the facts and/or the law.
The principles generally applicable to applications
for leave to
appeal apply
mutatis mutandis
to
applications in terms of
s 319
, albeit that
s 319
applies to mistakes
of law only.
[11]
Section 319(1)
reads as follows:
“
If
any question of law arises on the trial in a superior court of any
person for any offence, that court may of its own motion or
at the
request either of the prosecutor or the accused reserve the question
for the consideration of the Appellate Division, and
thereupon the
first-mentioned court shall state the question reserved and shall
direct that it be specially entered in the record
and that a copy
thereof be transmitted to the registrar of the Appellate Division.”
[12]
Kruger A,
Hiemstra’s Criminal
Procedure
, loose-leaf edition at 31-34,
refers to the difficulty in correctly identifying whether a question
is one of fact, or law, or a
combined question of fact and law with
reference to
Magmoed v Janse van
Rensburg and Others
1990 (2) SACR
476
(C) and
[1992] ZASCA 208
;
1993 (1) SACR 67
(A).
[13]
The decision to reserve a question of law should have a practical
effect on the accused and not merely be of academic value.
See:
Magmoed
,
loc cit
,
1990 (2) SACR 476
(C) at 478g.
It
is also accepted that if the record of the proceedings does not
disclose the question of law to be raised, it cannot be said
that the
question has arisen on the trial as should be the case
See:
S v Mulayo
1962 (2) SA 522
(A) at 527A-B.
If
a question of law is reserved, certainty must exist in regard to all
the facts to which the question relates. The factual
findings
on which the point of law is dependent must be recorded.
See:
Director
of Public Prosecutions Natal v Magidela and Another
2000 (1)
SACR 458
(SCA) at 462i;
S
v Basson
2003 (2) SACR 373
(SCA)
paras [6], [7] and [8] at 384h – 386d.
I
quote the following from the heading in
Basson
at 378d-f:
“
The
State has no right of appeal in terms of the Act against incorrect
factual findings by a trial court. The State can appeal
only if
the trial Court gave a wrong decision due to a mistake of law….
It follows that a question of law arises only
when the facts upon
which the trial Court based its judgment could have another legal
consequence than that which the trial Court
had found. For
these reasons
(a)
there must be certainty regarding the legal
issue being raised and the facts upon which the trial Judge based his
or her finding,
and
(b)
when a question of law is reserved it has
to set out clearly, not only which legal issue is raised, but also
the facts upon which
the trial Court based its finding.”
[14]
If the State wishes to appeal against an acquittal on the ground that
a mistake of law was made, a question of law will be
reserved only if
there is a reasonable prospect that the accused would have been
convicted had that mistake of law not been made
–
S
v Basson
,
supra,
paras [10] and [11] at 386 and 387 as translated in the summary at
378i – 379b.
[15]
In casu
the following was common cause at the trial, save as indicated in
paragraphs 15.7 and 15.8:
15.1
Mr and Mrs Bazzard were attacked in their townhouse by two assailants
about midnight of 28/29 January 2013.
15.2
Mr Bazzard was stabbed several times with a knife and died as a
result of the wounds inflicted upon him. His wife was
attacked
with a different knife and suffered superficial wounds only.
Several items were removed from their home, including
a Standard Bank
bank card, as well as the couples’ Mercedes Benz motor vehicle.
15.3
Soon after the attack a cash withdrawal of R1 000.00 was made
from Mrs Bazzard’s Standard Bank account by making
use of an
Absa ATM at 01h14 on 29 January 2013.
15.4
Just before 03h00 that same morning the Mercedes Benz stopped at the
Golf Course Filling Station on the N8 outside Bloemfontein
where fuel
was taken in. The vehicle and the driver thereof in particular
were video-taped by means of video cameras and
the video footage was
presented as evidence. A facial expert testified that according
to the video footage accused 2 was
the driver of the vehicle at that
point in time.
15.5
Accused 1 made a detailed plea explanation, placing himself and
accused 2 on the scene in the townhouse of the Bazzards during
the
night of 28/29 January 2013. He pleaded not guilty to the
charges as put to him, but pleaded guilty to housebreaking
with the
intent to steal and theft, which plea was not accepted by the State.
15.6
Accused 1 was arrested in the vicinity of Pepler Court in
Bloemfontein in the early hours of 29 January 2013 whereafter he
took
the police officers to accused 2’s house where he was found and
arrested.
15.7
At accused 2’s house an Allen key was found, which accused 1
testified was in accused 2’s possession when they
arrived at
the Bazzard’s townhouse. According to accused 1 he took
the Allen key from accused 2 and opened the security
gate therewith.
This version was not accepted by the trial court who found that
accused 1 adapted his version to correspond
with the State’s
version.
15.8
Accused 1 to a large extent confirmed the version set out in his plea
explanation in his evidence in court, but the trial court
was not
prepared to accept his version insofar as he implicated accused 2 as
being his co-perpetrator who also attended to the
scene in the
Bazzard’s townhouse. The court found that there was
“nothing” to support accused 1’s
version. On
the basis that the court was confronted with two mutually destructive
versions, i.e. of accused 1 on the one
hand and of accused 2 on the
other, it was not prepared to make any findings adverse to accused 2.
[16]
The trial court was not prepared to apply the doctrine of recent
possession, because accused 2 was not found in possession
of the
Mercedes Benz vehicle of the Bazzards. Its attitude was that
although accused 2 was in the vehicle at some stage,
even the driver
thereof, it did not mean that he had been at the crime scene as
well. The court found that the only way in
which it could have
been assisted by the doctrine of recent possession was if accused 2
was found in actual possession of the motor
vehicle, but insofar as
he was not so found in possession that doctrine could not be
applied. I shall deal with this finding
infra.
[17]
The doctrine of recent possession of stolen property was discussed in
S v Parrow
1973 (1) SA 603
(AD) at 604B-D. In terms hereof an accused may
be convicted of theft if he is found in possession of recently stolen
property
and fails to give an innocent explanation which might
reasonably be true. The court continued as follows:
“
Hence,
even if, after the closing of the cases for the State and the
defence, it is inferentially probable that the accused stole
the
property, he must be acquitted unless the only reasonable inference
is that he did so; for the law demands proof beyond
reasonable
doubt.”
Proof
that stolen goods were found in an accused’s possession never
shifts the onus to him of proving his innocence, even
if he fails to
satisfactorily explain his possession. He may still be entitled
to an acquittal if the court, having considered
all the evidence in
its totality, is not satisfied that his guilt has been proven.
The doctrine is simply a common-sense
observation on the proof of
facts by inference. Three requirements have to be met before
the doctrine can be considered,
i.e. that (i) the item was stolen;
(ii) the item was recently stolen; (iii) the accused has failed to
give an innocent explanation.
See
in general: Milton,
The South African
Criminal Law Procedure
, vol 2, p 636 –
638.
[18]
In
S v
Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A) at 715 the Court found that the nature of the
stolen item is an important element in determining what is recent.
Certain
stolen items may easily and quickly be disposed of by thieves
in which case
“
anything
beyond a relatively short period will usually not be recent.”
In a recent SCA judgment delivered a few days
ago and as yet
unreported it confirmed the
Parrow
and
Skweyiya
judgments.
See:
Zwane and another v The State
(426/13)
[2013] ZASCA 165
(27 November 2013).
[19]
In
S v Mavinini
2009 (1) SACR 523
(SCA) the trial court found that the State witness
positively identified the appellant as the driver of the robbed Audi
vehicle
which vehicle sped away and eluded the police pursuit.
The vehicle was found deserted a week later. The trial court
found that as appellant was driving the vehicle less than 24 hours
after commission of the robbery his possession was so closely
connected to the robbery that in the absence of any explanation he
must have been one of the robbers. This finding was not
attacked on appeal as the identity only of the driver was in
dispute. The SCA accepted the trial court’s finding on
identity and dismissed the appeal. The essence of this judgment
is that the person in respect of whom the doctrine is sought
to be
applied does not have to be found in actual possession and thus
caught red-handed. It applies even if the person is
seen in
possession of the stolen item soon after the crime, but gets rid
thereof thereafter and before being apprehended red-handed.
It
remains a matter of proof.
[20]
In casu
the relevant issue is whether accused 2 was found in possession of
the robbed Mercedes Benz. Phalatsi AJ found that he was
never
found in possession and therefore the doctrine of recent possession
did not even come into play. The question to be
considered is
whether “found in possession” literally means to be
trapped red-handed and found in actual possession
of the stolen item
by a police officer or any other person that qualifies in this
regard. It appears that the doctrine can
be applied in the
following scenario to mention one example: while running away from
the police, the suspect, during the chase
throws the stolen item away
whereupon he is apprehended and the stolen item immediately
recovered.
In casu
accused 2 was not found in actual possession of the Mercedes Benz
motor vehicle by the police or any other person in the literal
sense
of the phrase, but the trial court accepted the video footage to the
effect that he was at a stage in possession of this
vehicle and the
driver thereof within two to three hours from the time that the
vehicle had been robbed. Accused 2’s
explanation, whilst
admitting that the person in the video looked like him, but that it
might be his identical twin brother who
he failed to call to testify
on his behalf, was rejected by the trial court. Having
considered the application and bearing
in mind the arguments as well
as Mr Tshabalala’s concession, I am of the view that there is a
reasonable possibility that
the Supreme Court of Appeal might find
that the question of law raised in the notice of application for
leave to appeal be found
to be good.
[21]
I am also mindful of the fact that even if accused 2 was found in
possession of the stolen Mercedes Benz, this in itself does
not mean
that the accused ought to be convicted of the charges on which he was
acquitted, even if he did not give a reasonable
explanation of his
possession.
See:
S v Jantjies
1999 (1) SACR 32
(C) at 36 and 37;
Parrow
,
loc cit
.
[22]
The two further alleged questions of law raised by the State,
referred to above, are more problematic to adjudicate.
Trial
courts often draw inferences from proven facts and not all these
inferences can be regarded as questions of law. Ackermann
J
et
al
stated in
S
v Basson
[2004] ZACC 13
;
2004 (1) SACR 285
(CC) at
308d para [49], that if the inferential process is directed at
determining a fact (often referred to as a secondary fact)
no
question of law arises, but on the other hand, challenges to findings
which are in reality conclusions of law have been held
to raise
issues of law for purposes of
s 319.
[23]
In
Magmoed
,
loc cit
,
at 94a - d Corbett CJ dealt with this matter as follows:
“
It
is a genuine question of law (a) whether the evidence against an
accused was such that there was a case to go to the jury or
that
there were grounds upon which the jury could legally convict the
accused of the crime charged; or (b) whether the proven facts
bring
the conduct of the accused within the ambit of the crime charged….,
category (b) involves an enquiry as to the essence
and scope of the
crime charged by asking whether the proven facts in the particular
case constitute the commission of the crime.
This is clearly a
question of law.”
Based
on the quoted authorities I am of the view that the second and third
questions raised by the State, adapted by me, are questions
of law
which can be reserved in terms of
s 319.
The aim of the second
question is to obtain a finding to the effect that if the Supreme
Court of Appeal finds that the doctrine
of recent possession was
incorrectly applied, it should follow that the proven facts brought
accused 2 within the ambit of the
crimes of which he was charged.
The third question is based on the same reasoning and it should be
regarded as a genuine
question of law, i.e. whether the court erred
in finding that there was no circumstantial evidence upon which the
guilt of accused
2 was proven beyond reasonable doubt. Both
second and third questions have a bearing on the issue as to whether
the proven
facts constitute the commission of the crimes with which
accused 2 was charged in line with the quoted statement by Corbett CJ
in
Magmoed
,
loc cit
.
[24]
Although the questions were raised in Afrikaans, I shall in my order
translate the Afrikaans, adapted as required, into English.
[25]
Wherefore the following orders are made:
1.
The
applicant’s application for leave to appeal to the Supreme
Court of Appeal in terms of the provisions of
s 319(1)
of the
Criminal Procedure Act, 51 of 1977
, is granted.
2.
The following
questions of law are reserved for consideration by the Supreme Court
of Appeal:
2.1
Did the acting
trial judge err in his application of the doctrine of recent
possession?
2.2
Did the acting
trial judge apply the law correctly in acquitting accused 2 in
respect of all charges based on his finding that accused
2 was not
found in possession of the robbed Mercedes Benz motor vehicle of the
Bazzards and should the acting trial judge not have
inferred in
accordance with the doctrine of recent possession, and bearing in
mind the direct evidence also, that accused 2 committed
the crimes
together with accused 1?
2.3
Did the acting
trial judge err in finding that there was no circumstantial and/or
direct evidence that proved the guilt of accused
2 beyond reasonable
doubt, bearing in mind that the proven facts constitute the
commission of the crimes?
3.
It is directed
that the three questions of law shall be specially entered into the
record and that a copy thereof be transmitted
to the registrar of the
Supreme Court of Appeal.
_____________
J.P.
DAFFUE, J
On
behalf of applicant: Adv A. M. Ferreira
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
On
behalf of respondent: Adv L. Tshabalala
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN