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[2011] ZAFSHC 38
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Moloi v S (A176/2008) [2011] ZAFSHC 38 (24 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A176/2008
In
the appeal between:-
BRAKIE SAMUEL MOLOI
….........................................................
Appellant
and
THE STATE
…...........................................................................
Respondent
_______________________________________________________
CORAM:
EBRAHIM, J
et
LEKALE, AJ
_______________________________________________________
HEARD
ON:
7 FEBRUARY 2011
_______________________________________________________
JUDGMENT
BY:
LEKALE, AJ
_______________________________________________________
DELIVERED
ON:
24 FEBRUARY 2011
_______________________________________________________
INTRODUCTION:
[1] The appellant was
convicted of theft by false pretences and sentenced to a fine of R2
000,00 or 4 (four) months imprisonment
by the Magistrate’s
Court at Harrismith on the 15
th
May 2008.
[2] He now approaches
this Court by way of an appeal against the conviction with the leave
of the court below.
BACKGROUND:
[3] The appellant was
arraigned after the complainant had laid a charge against him about
one month after the incident.
[4] The complainant
testified before the trial court, as the sole witness for the State,
to the effect that on the relevant Saturday
she met the appellant at
a supermarket some 100 metres from the latter’s workplace. The
appellant requested her to go to
the post office to deliver a card
and to return with his cellphone. He offered her R20,00 to run that
errand. The appellant took
her to a bottle store which he informed
her was his workplace. The appellant, furthermore, invited her to
pledge something as security
that she would return with his
cellphone. She, thereupon, gave him, as security, R210,00 in cash
together with the R20,00 which
he had advanced to her for her
services. When she later returned to the bottle store, the appellant
had changed into another T-shirt
and denied that he had sent her to
the post office. She returned on three occasions but the appellant
persisted in his denial.
[5] The appellant’s
case was simply that he only left his workstation when he went to the
toilet and was at his workplace
from 09h00 to 17h00 on the day in
question. He denied that he had sent the complainant to the post
office or met her before she
confronted him and relied, in this
regard, on an attendance register as his alibi.
GROUNDS OF APPEAL:
[6] In the Notice of
Appeal and the Heads of Argument submitted on behalf of the appellant
it is, effectively, contended that the
Court
a quo
erred in
finding that the State had proved its case beyond reasonable doubt
because it committed a misdirection when, in its assessment
of the
probabilities, it preferred the complainant’s version to that
of the appellant.
APPELLANT’S
SUBMISSIONS:
[7] Advocate Pretorius
submitted,
inter alia
, that:
7.1 the appellant’s
version that he was on duty on the day in question and did not leave
the bottle store is reasonably possibly
true; and
7.2 the appellant was a
credible witness and it was not strange that the complainant had
identified him after a month because she
saw him on, at least, three
occasions at the bottle store, prior to making the identification.
THE STATE’S
CONTENTIONS:
[8] Advocate Liebenberg,
for the State, conceded that there were a few disconcerting features
about the complainant’s version
but nevertheless supported the
conviction on the basis that the magistrate had correctly rejected
the appellant’s version
on the ground that the attendance
register did not prove that the appellant did not leave the bottle
store at any stage on the
relevant day.
[9] In addition she
submitted that the complainant had had an opportunity to see, talk to
and hear the appellant and, as such, her
identification of him as the
culprit was reliable. She argued that the conviction was, on this
ground, also sound.
ISSUE TO BE
DECIDED:
[10] The question to be
decided in this appeal is whether or not there exists a reasonable
possibility that the appellant’s
version might be reasonably
possibly true.
APPLICABLE LAW:
[11]
The test is whether there is a reasonable possibility that the
appellant’s evidence may be true. The court does not have
to
believe the appellant’s story in all its details. For a verdict
of not guilty to be returned, it suffices for the court
to find that
there is a reasonable possibility that the appellant’s evidence
may be substantially true. (Compare
S v JAFFER
1988 (2) SA 84
(C) and
S v SAULS AND OTHERS
1981 (3) SA
172
(A).)
[12] In order to resolve
a conflict of fact between the evidence of the State witnesses and
that of an accused person, the court
applies its mind not only to the
merits and demerits of both the State and the defence witnesses, but
also has regard to the probabilities
of the case.
See:
S
v VAN DER MEYDEN
1999
(2) SA 79
(W)
;
S v VAN ASWEGEN
2001 (2) SACR 97
(SCA).
FINDINGS
:
[13] The Court
a quo
considered the appellant’s alibi in isolation and lost sight of
the fact that in law, there is no onus on the accused person
to
establish or prove his innocence. What the Court
a quo
failed
to keep in mind is that if the appellant’s alibi might
reasonably possibly be true, in the light of the totality of
the
evidence, he was entitled to an acquittal.
(See
R
v HLONGWANE
1959 (3) SA 337
(A) at 340 – 341.)
[14] Applying this legal
test, we are satisfied that the learned magistrate erred in his
assessment of the probabilities. We find
that it is improbable that
the appellant would have deprived the complainant of her money under
false pretences in circumstances
such as the present and, at the same
time, tell her where he could be found so that she could have him
arrested and criminally
charged.
[15] The magistrate also
ignored the fact that the complainant did not go to the police
station to report the matter at the earliest
reasonable opportunity,
but only reported the matter a month later. This factor, alone,
raises doubt about the complainant’s
credibility in the context
of her explanation that she was told she could not go to the police
station on the day of the theft
because the police station closed at
13h00.
ORDER:
[16] The appeal
accordingly succeeds.
[17] The conviction and
sentence are set aside.
______________
L.J. LEKALE, AJ
I concur.
_____________
S. EBRAHIM, J
On behalf of appellant:
Mr. P.L. van der Merwe
Attorney for Appellant
Instructed by:
Bloemfontein Justice
Centre
Legal Aid SA
113 St Andrew Street
BLOEMFONTEIN
On behalf of respondent:
Adv. E. Liebenberg
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/sp