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2012
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[2012] ZANCHC 34
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S v Morgan (CA&R 88/2012) [2012] ZANCHC 34 (17 February 2012)
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YES / NO
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to Judges: YES / NO
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to Magistrates: YES / NO
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to Regional Magistrates: YES / NO
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case Nr: CA&R
88/2012
Case Heard:
13/02/2012
Date delivered: 17
/02/2011
In
the matter between:
RUBEN MORGAN
…............................................................................
APPELLANT
and
THE STATE
…...................................................................................
RESPONDENT
Coram: OLIVIER J et
PHATSHOANE J
JUDGMENT
Olivier J:
The
appellant and his two co-accused were charged with theft of 11 head
of cattle, alternatively receipt of such cattle in contravention
of
the provisions of 3 (1) of the Stock Theft Act
1
.
Accused nr 1, the brother of the appellant, was found guilty of
theft and was sentenced to a fine of R10 000,00 or 2 years
imprisonment, as well as an additional 2 years imprisonment,
conditionally suspended for a period of 5 years. Accused nr 3 was
acquitted.
The
appellant was found guilty of having knowingly assisted accused nr 1
in the disposal of the said cattle, as envisaged in section
11 (d)
of the Stock Theft Act, and he was sentenced to 3 years imprisonment
in terms of section 276 (1) (i) of the Criminal Procedure
Act
2
.
The appellant’s application for leave to appeal against both
his conviction and sentence was refused, but he was granted
such
leave on petition.
The appellant and his
co-accused pleaded not guilty to both the main and alternative
counts.
Accused nr 1 stated,
in his plea explanation, that he had bought and sold four head of
cattle. From his plea explanation and his
subsequent evidence it
appears that his version was that he had bought the cattle from one
Frank Butata, that his only means
of contacting Butata had been by
phoning accused nr 3 and that accused nr 3 had been present when the
cattle were handed over
to accused nr 1.
In his plea
explanation the appellant denied any knowledge of the theft of the
cattle. He stated that he had met with accused
nr 1 at a hiking
spot, after having been requested by accused nr 1 to take his
driver’s license to him. He furthermore
stated that accused nr
1 had at that stage already been in possession of four head of
cattle, and that he then accompanied accused
nr 1 to where the
cattle were off-loaded.
Accused nr 3 also
denied any knowledge of the theft of stock and simply stated that he
had been arrested after being confronted
by,
inter alia
,
accused nr 1 and police officials.
The evidence tendered
by the prosecution was to a large extent common cause, or at least
not seriously in dispute.
The complainant, Mr
Nelson, farms on property adjacent to the town or village of
Majeng. On 16 October 2009 he discovered that
eleven head of cattle
had been stolen during the previous night under the cover of
darkness. He observed tyre tracks in the
vicinity of a load ramp on
his property, and he also noticed that a fence in the vicinity of
the ramp had been run over. He
reported the theft to the police.
On the same day, and
acting upon information received, Warrant Officer Vermeulen of the
South African Police Service approached
mr Carstens, a
cattle-dealer, on his farm near Kimberley. Four of the missing cows
were found in the possession of Carstens.
Carstens reported
that he had purchased the cows from accused nr 1. His version was
that he had been approached by accused nr
1 the previous day, and
that accused nr 1 had on that occasion offered the cattle for sale.
He had then made a trailer available
to accused nr 1 for the
purposes of the transport of the cattle. Later, during the evening
of 15 October 2009, accused nr 1
and another person returned with
the trailer, with the cattle on it. The cows were off-loaded, but
because Carstens had not
been prepared to conclude the transaction
without properly viewing them during day-time, it was agreed that
accused nr 1 would
return the next day. According to Carstens
accused nr 1 indeed returned during the course of the following
morning, at which
stage an agreement was reached between them that
he would purchase the cows for R12 000,00, as well as ten
sheep. Shortly
after accused nr 1 had left with the money and the
sheep, the police arrived.
At the request of
Vermeulen Mr Carstens telephoned accused nr 1 and requested him to
return to his farm. Upon the arrival of
accused nr 1 he was
arrested. Vermeulen testified that accused nr 1 explained that he
had purchased the cows from two persons
in Majeng.
Accused nr 1 also
stated that the appellant had been with him, and he subsequently
took the police to the appellant, who was
then also arrested.
At the request of the
police accused nr 1 then telephoned accused nr 3, and arranged a
meeting with accused nr 3 and the person
from whom accused nr 1 had
allegedly bought the cows. Accused nr 1, the appellant and police
officials then drove to Majeng.
On their way there they came upon
accused nr 3 and another person. When confronted by the police, the
other person fled, and
accused nr 3 was arrested.
The evidence of
accused nr 1 that he had bought the cows from Butata and that the
cows were loaded onto the trailer by Butata
and accused nr 3, was
rejected. It was found that accused nr 1 had in fact stolen the
cattle, and that he had done so by loading
them onto a trailer at
the complainant’s loading ramp, after running over the
complainant’s fence.
As far as the
appellant is concerned, it was found that he had not only
accompanied accused nr 1 to where the cattle were off-loaded,
but
that he had in fact been with accused nr 1 when the cattle were
loaded onto the trailer. Having then already found that the
cattle
were loaded onto the trailer at the complainant’s loading
ramp, under cover of darkness and after the fence was
run over, the
regional magistrate found that the circumstances under which the
cattle had been loaded onto the trailer, in the
presence of the
appellant, had been suspicious to such an extent that the appellant
“
should have known
” that the cattle did not
belong to accused nr 1. In this regard it was also found that the
farm did not belong to accused
nr 1, that accused nr 1 did not own
cattle and that the appellant had been aware of this.
Whether
the appellant had been present when the cattle were loaded onto the
trailer, was clearly placed in dispute in the appellant’s
plea
explanation. His statement that the cattle had already been on the
trailer when he met with accused nr 1, formed an integral
part of
the basis for his denial of any knowledge of theft. This meant that
the prosecution bore the onus of proving that the
appellant had been
aware of the theft (“
knowingly
”
3
),
and of rebutting the appellant’s version in this regard
4
.
The
prosecution did not, however, tender any evidence at all to the
effect that the appellant had been present when the cows were
loaded
unto the trailer, or that the appellant had been aware that accused
nr 1 could not be entitled to sell the cattle. In
my view there was
definite merit in the appellant’s application for a discharge
in terms of section 174 of the Criminal
Procedure Act. It most
definitely did not deserve being labelled as a waste of time
5
.
It was only after the
refusal of the appellant’s application for his discharge that
accused nr 1 testified that the appellant
had been present when the
cattle were loaded onto the trailer.
In this regard it
should be noted, in the first place, that accused nr 1 did not
testify that the cattle were loaded onto the
trailer on the
property of the complainant, or at the loading ramp on that
property. It was also not his evidence that any
fence had been run
down in the process. In fact, he testified that a gate was opened
to gain access to the cattle and he denied
having driven over a
fence.
The regional
magistrate rejected the evidence of accused nr 1 that he had
received the cows from two men in Majeng. As already
mentioned, it
was found that accused nr 1 had stolen the cattle from the
complainant’s property. It follows that the
regional
magistrate also rejected accused nr 1’s evidence that access
to the loading ramp had been gained through a gate
and his denial
of having driven over any fence.
The evidence of
accused nr 1 that the appellant had been present when the cattle
were loaded, formed an integral part of his
version regarding how
the cattle had come into his possession and about how and where
they had been loaded.
It is trite that the
rejection of one aspect of a witnesses’ evidence would not
necessarily result in the rejection of
the rest of the evidence of
such a witness.
In this case there
is, however, no logical basis for accepting the evidence of accused
nr 1 that the appellant had been present
when the cattle were
loaded. Accused nr 1 was a single witness as far as this aspect is
concerned. He was also a co-accused.
His evidence, insofar as it
may have incriminated the appellant, therefore had to be approached
with caution.
It does not appear
from the judgment why the regional magistrate would have been
prepared to extract this piece of evidence
from the rest of the
evidence of accused nr 1 about how he came into possession of the
cattle, and to accept it as credible.
It is also not corroborated
by any other evidence.
It is not clear on
what evidence the regional magistrate found that the appellant had
known that accused nr 1 was not entitled
to sell cattle. The
evidence of accused nr 1 that he sometimes sold not only vegetables,
but also stock, was not disputed. The
same applies to the evidence
of Carstens that he had sold sheep to accused nr 1 in the past.
The regional
magistrate also appears to have overlooked the undisputed evidence
that the appellant had not been with accused nr
1 when the latter
initially approached Carstens and offered to sell cattle to him, and
that the appellant had also not been with
accused nr 1 when the sale
was eventually concluded and when accused nr 1 received payment for
the cattle.
The fact that the
appellant did not testify, does not take the matter any further. The
evidence simply did not establish
prima facie
proof that the
appellant had known that the cattle had been stolen, and did not
call for an answer.
In my view the
conviction should be set aside. Mr Kgatwe, counsel for the
respondent, correctly conceded this. I therefore find
it unnecessary
to deal with the appeal against the sentence.
I would therefore make
the following order in this matter:
The appeal against
the conviction succeeds and the appellant’s conviction and
sentence are set aside.
______________________
C J OLIVIER
JUDGE
NORTHERN CAPE
DIVISION
I agree:
______________________
M V PHATSHOANE
JUDGE
NORTHERN CAPE
DIVISION
For the Plaintiff: Adv L Setouto
On behalf of: Justice Centre,
KIMBERLEY
For the Respondent: Adv K Kgatwe
On behalf of: Director of Public
Prosecutions, KIMBERLEY
1
57
of 1959
2
51
of 1977
3
Section
11 (1) (d) of the Stock Theft Act
4
S
v Mothlaping en ‘n Ander
1988
(3) SA 757
(NC)
5
Record:
p59