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[2012] ZAFSHC 203
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S v Tshabalala (160/2012) [2012] ZAFSHC 203 (8 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 160/2012
In
the matter between:-
THE
STATE
and
SIFISO
TSHABALALA
_____________________________________________________
CORAM:
KRUGER, J
et
DAFFUE, J
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
8 NOVEMBER 2012
_____________________________________________________
[1]
This is an automatic review. The accused was charged in the
magistrates’ court, Harrismith for housebreaking with the
intent to steal and theft. He pleaded not guilty, but was eventually
convicted on 16 April 2012 as follows:
“
Guilty
of possession of stolen property.”
He
was sentenced to thirty six (36) months’ imprisonment.
[2]
The review was initially referred to Mocumie, J who directed the
following enquiries to the presiding magistrate.
“
1.
Why was the accused not found guilty on housebreaking with intent to
steal and theft on the basis of “recent possession”?
2. Should the
presiding officer not have endorsed the relevant section of the
General Law Amendment Act on which the accused was
convicted on the
J4 and J15?”
[3]
The registrar of this court was informed by the acting chief
magistrate of Bloemfontein that the presiding magistrate was only
appointed on a temporary basis and that his contract expired.
Consequently he was not available to attend to the remarks of
Mocumie,
J and the High Court was requested to deal with the matter
accordingly.
[4]
It is possible to convict an accused of housebreaking with the intent
to steal and theft on the basis of the so-called “doctrine”
of recent possession. See
S v JANTJIES
1999 (1) SACR 32
(C) at 35 – 36 and
S v MSIMANGA EN ‘N ANDER
2005 (1) SACR 377
(O) at 380 h. The reference to a “doctrine”
is sometimes criticised. I refer to the comments of Hattingh, J in
S
v MSIMANGA
loc cit
as well as the following comment of
Milton:
“
As
such the ‘doctrine’ is simply a common-sense observation
on the proof of facts by inference.”
See
Milton JRL,
THE SOUTH AFRICAN CRIMINAL LAW AND PROCEDURE
,
Volume 2, 3
rd
edition, p 637.
A
review court cannot set aside a conviction and replace it with a
conviction on a more serious crime even if it is of the view
that the
acceptable evidence justifies such a conviction. It is therefore
unnecessary to consider whether the evidence is sufficient
for a
conviction on housebreaking with the intent to steal and theft.
[5]
There is no crime such as “possession of stolen property”.
The presiding magistrate probably had in mind to convict
the accused
of contravention of section 36 of the General Law Amendment Act, 62
of 1955, but did not indicate this at all, neither
in the judgment,
nor on the J4 and J15.
[6]
Section 36 provides as follows:
“
Failure
to give a satisfactory account of possession of goods –
Any person who
is
found in possession
of any
goods
, other than stock
or produce is defined in section 13 of the Stock Theft Act, 1923 (Act
No 26 of 1923), in regard to which there
is
reasonable suspicion
that they have been
stolen
and is
unable to give a
satisfactory account
of such possession, shall be guilty of an
offence and liable on conviction to the penalties which may be
imposed on a conviction
of theft.”
(emphasis
added)
The
underlined words indicate the elements of the crime created in the
section, i.e. (a) goods (b) the suspect must be found in
possession
(c) there must be a reasonable suspicion that the goods have been
stolen and (d) the suspect must be unable to give
a satisfactory
explanation of the possession.
[7]
Broome JP made the following observation pertaining to section 36 of
Act 62 of 1935, the predecessor of the present Act, whilst
accepting
that his comments apply to section 36 of the present Act as well:
“
The
very drastic provisions of the section are directed against a person
who is, as it were, caught red-handed with the stolen goods.
That
cannot be extended to apply to a person who is shown to have had
direct control at some time other than the time when he is
caught,
nor to a person who, not being found in possession, falsely claims
ownership.”
See
R v HASSEN
1956
(4) SA 41
(NPD) at 43A. Snyman is of a similar view and according to
him the state must prove that the accused was in possession of the
goods
at the moment that they were found by the police. See Snyman
CR,
CRIMINAL LAW
, 5
th
Edition, p 525.
There
must be a reasonable suspicion that the goods have been stolen and
that suspicion must at least exist at the moment that the
goods are
found. Once the first three requirements have been proven, and only
then, is it necessary to examine whether the accused
was unable to
give a satisfactory account of his possession. The accused’s
explanation will be regarded as satisfactory if
it is reasonably
possible and shows that he
bona fide
believed that his possession was innocent with reference
to the purposes of the Act, namely the prevention of theft. The test
in
determining whether the accused has given a satisfactory
explanation is subjective and it therefore does not matter whether
the
accused’s belief was unreasonable. See
S
v AUBE
2007 (1) SACR 655
(WLD) at 657 and
658 and Snyman
loc cit
at
527.
[8]
The presiding magistrate committed a misdirection in relying on
S
v PARROW
1973 (1) SA 603
(AD) and Milton
loc cit
for his
conclusion that the accused was
“guilty of possession of
stolen property on the doctrine of recent possession, because the
items were in question, (sic) the
house of the complainant was broken
into on the 28
th
and you were seen on the same day
carrying the items of the complainant.”
[9]
Neither the Appeal Court in
PARROW
,
nor Milton is authority for the proposition that an
accused can be convicted of contravention of section 36 of Act 62 of
1955 –
the failure to give a satisfactory account of possession
of goods suspected of being stolen – based on the doctrine of
recent
possession and in doing so, the court
a
quo
disregarded the elements to be proven in
order to establish the guilt of the accused.
[10]
There was thus no legal basis for a conviction, but over and above
that, the presiding magistrate failed to have proper regard
to the
following:
10.1.
There is no evidence that the accused was seen carrying any property
of the complainants, especially on the day when the offence
of
housebreaking occurred;
10.2.
At no stage did any police official find the accused in possession of
goods suspected of being stolen;
10.3.
The complainant’s wife, Ms Sitebe went to the accused’s
house where she found the accused’s girlfriend and
on her
version recovered a blanket, two dishes and a piece of steel wool
which she believed was theirs. These items had no identification
marks. The state called the accused’s girlfriend, Ms Radebe who
confirmed that Ms Sitebe visited her. She could not argue
with Ms
Sitebe pertaining to the ownership of the blanket at that stage as
she was staying with her parents for a few months during
her
maternity and did not know how accused became in possession thereof.
She denied that the other items, the two dishes in particular,
were
removed from their home by Ms Sitebe.
10.4.
When Ms Radebe confronted accused later, he confirmed that he bought
the blanket for their baby and during the trial accused
confirmed the
transaction regarding the blanket under oath. He handed in a receipt
as proof of purchase as an exhibit.
10.5.
Other items that were allegedly stolen from the complainant’s
house were found in possession of third parties. Their
evidence
tended to incriminate the accused, but as stated right from the
outset it is not our duty at this stage to consider whether
accused
could or should have been found guilty of either housebreaking with
the intent to steal and theft or theft based on the
doctrine of
recent possession. Even if we would be inclined to find so, we are
not at liberty to interfere.
[11]
For the reasons advanced herein the conviction and sentence cannot
stand and should be set aside.
ORDER
[12]
Therefore the following order is made:
12.1
The conviction and sentence of the accused are set aside.
______________
J. P. DAFFUE, J
I concur.
_____________
A. KRUGER, J
/eb