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2012
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[2012] ZAFSHC 36
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Nxoko v S (A237/2010) [2012] ZAFSHC 36 (8 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A237/2010
In the matter between:-
PETRUS BUTI NXOKO
…............................................................
Appellant
and
THE STATE
…..........................................................................
Respondent
_______________________________________________________
CORAM:
JORDAAN, J
et
CHESIWE, AJ
_______________________________________________________
HEARD ON:
27 FEBRUARY 2012
_______________________________________________________
JUDGMENT BY:
CHESIWE, AJ
_______________________________________________________
DELIVERED:
8 MARCH 2012
_______________________________________________________
[1] The appellant was
charged in the Parys District Court with theft. The appellant pleaded
not guilty and was convicted and sentenced
to a fine of R1 000,00 or
five months imprisonment, suspended for five years on condition that
he is not found guilty of theft.
The appeal lies against the
conviction and sentence.
[2] The main ground of
appeal is that the State did not prove its case beyond reasonable
doubt.
[3] The facts of the case
are that the appellant was employed by Parys Sekuriteit and on 30
October 2008 was arrested for theft
of the following items:
control panel
switch board
alarm system/set
[4] Advocate Reyneke, on
behalf of the appellant, in the heads of argument emphasised that the
State in the court
a quo
did not prove the case against
appellant beyond reasonable doubt. In this regard reference was made
to the case of
S v V
2000 (1) SASV 453 (SCA) at 455 a –
c:
“
It
is trite that there is no obligation upon an accused person, where
the State bears the
onus
,
'to convince the court'.”
If his version is
reasonable possible true, he is entitled to acquittal even though his
explanation is improbable. A court is not
entitled to convict unless
it is satisfied, not only that the explanation is improbable, but
beyond any reasonable doubt it is
false. It is permissible to look at
the probabilities of the case to determine whether the accused’s
version is reasonably
possibly true, but whether one subjectingly
believes him is not the test.
[5] This is highlighted
further in the presiding officer’s judgment, page 890 of the
records:
“
Van die
maatstawwe vir evaluering van getuienis is daar demonstreerbaar,
leuenagtigheid, valsheid aan te merk, weersprekings, afwykings.
...
Die hof moet nou hier ‘n geloofwaardigheid bevinding maak. Wie
gaan die hof nou glo?”
[6] This issue is further
canvassed by the court
a quo
that:
“
Mnr [Barend
Daniel] Oosthuizen (state witness) hy is uitgevang dat hy steel by
die werk. En toe hy daaroor gekonfronteer is, het
hy erken dat hy in
Welkom gesteel het, maar om een of ander rede het hy maar besluit hy
wil die beskuldigde saamsleep om sodoende
sy situasie te versag.”
[7] Advocate Hoffman on
behalf of the respondent, in the heads of argument and oral
submission, indicated that there was no true
evidence that the
appellant did steal the mentioned items. He stated that the employer
was aware that the appellant had the items
with him albeit opted to
observe the appellant.
[8] Advocate Hoffman
submitted that the employer heard from other people that the
appellant had these items and that the workshop
of the employer had
no proper control over items going in and out. Advocate Hoffman
conceded that the conviction and sentence against
the appellant
should be set aside.
[9] The appellant denied
that the items were found on him and that the items were in the car
for two days and not two weeks. The
appellant also denied that he has
shared any money with Barend Daniel Jacobus Oosthuizen.
[10] In terms of our law
the State must prove beyond reasonable doubt that the appellant’s
conduct has met all the requirements
of theft. Thus the onus rests on
the State to prove beyond all reasonable doubt that the appellant had
the required criminal capacity.
I am of the view that in
this case the State did not prove its case beyond reasonable doubt.
[11] Accordingly I make
the following order:
The appeal in respect
of both the conviction and sentence succeed.
The conviction and
sentence imposed by the trial court is set aside.
______________
S. CHESIWE, AJ
I concur.
_______________
A.F JORDAAN, J
On behalf of appellant:
Mr. J.D. Reyneke
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. R. Hoffman
Instructed by:
Office of the Director:
Public Prosecutions
BLOEMFONTEIN
/sp