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[2011] ZAFSHC 150
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S v Tshabalala (278/2011) [2011] ZAFSHC 150 (1 September 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 278/2011
In
the review between:-
THE
STATE
and
SIFISO ALFRED
TSHABALALA
CORAM
:
MOLEMELA, J
et
KUBUSHI, AJ
DELIVERED ON:
1 SEPTEMBER 2011
KUBUSHI, AJ
[1] This is a Special
Review in terms of section 304 of the Criminal Procedure Act 51 of
1977 (“the CPA”). The matter
was placed before this court
by H.B Breyl, a Judicial Head in the Magistrates’ Office
Harrismith, with the following remarks:
“
1. Bovermelde saak het tydens
‘n routine inspeksie onder my aandag gekom en het ek die
betrokke Voorsittende Beampte op sekere
aspekte gewys en sy
kommentaar gevra. Hy het met my saamgestem.
2. Geliewe die oorkonde aan sy Edele
die Hersienings Regter voor te le vir ‘n spesiale
hersiening...”
[2] The aspects which the
Judicial Head referred to the presiding officer were stated as
follows:
“
1. You convicted the
abovementioned accused on 14 March 2011 and sentenced him on 16 March
2011.
2. The charge against the accused was
one of contravening section 36 of The General Law Amendment Act 62 of
1955.
3. Accused was represented and a plea
of guilty was entered where after a statement in terms of section
112
(2) Act 51
of 1977, was read out and handed in on strength of which
you convicted the accused.
4. I am of the opinion that all the
allegations in the charge to which he pleaded guilty was not covered:
(i) There is no indication that there
was a reasonable suspicion that the goods had been stolen and that it
was based on reasonable
grounds.
(ii) He gave a satisfactory account of
his possession anyway? (See S v Mahlasela
2005 (1) SACR 269
NPD)
5. I intend to send this matter for
special review in terms of section
304 (4) Act 51
of 1977. Your
comments will be appreciated.”
[3] The presiding
magistrate responded as follows:
“
1. In this case the accused was
convicted and sentenced by me on 14/03/2011.
2. The charge against the accused was
one of contravening section 36 of the General Law Amendment Act
62/1955.
3. I agree with my Judicial Head that
not all the elements of the offence were covered.
S v Martins
1986 (4) SA 934
(T)
S v Malinga
1986 (4) SA 296
(E)
S v Sepiri
1979 (2) SA 1168
(NC)
4. As the trial Magistrate is now
functus officio he is of opinion that the Honourable Reviewing Judge
should direct that the statement
of the accused should be retaken
properly.”
[4] The accused person
was charged with the crime of contravening the provisions of section
36 of the General Law Amendment Act
62 of 1955 in that upon the 6
th
day of January 2011 and at/near the dumping site in the district of
Harrismith, the accused was found in the unlawful possession
of goods
other than stock or produce as defined in section 1 of the Stocktheft
Act 57 of 1959, to wit a 1 x wheelbarrow (R320-00),
safety boots
(R150-00) the total value of which amounted to R475 -00, in regard to
which there was a reasonable suspicion that
the said goods had been
stolen and the accused person was unable to give a satisfactory
account of such possession.
[5] The accused was
represented at the trial. He pleaded guilty and handed in a statement
in terms of section 112 (2) of the Criminal
Procedure Act, 51 of 1977
(the statement). The statement was read out in court and admitted in
the record as exhibit “A”.
The relevant part of the
statement read as follows:
“
Statement in terms of
section
112
(2) of the
Criminal Procedure Act, 51 of 1977
.
I the undersigned,
SIFISO ALRED TSHABALALA
Do hereby declare that:
I am the accused in this matter and I
plead guilty to the charge of possession of stolen property.
I make this statement freely,
voluntarily and without any undue influence. The facts upon which I
plead guilty are as follows:-
2.
On the 06
th
of January 2011
at Intabazwe Location in the district of Harrismith I was unlawfully
and wrongfully found in possession of stolen
property to wit old
wheel barrow and pair of safety boots.
3.
On the 06
th
of January at
around 12:00 noon I met with Thabiso and I bought the said items from
him. Before the transaction I asked him where
exactly he got the
items and he said that was his. I believed him since it is the old
items.
4.
I admit that I acted wrongfully hence
I plead guilty.
5.
I plead to the honorable Court of its
mercy and give me a chance to amend my ways.”
The statement was signed
by the accused and a witness. The accused was found guilty on the
basis of this statement and on the 16
March 2011 sentenced to twenty
four (24) months imprisonment.
[6]
Section 36
of General
Law Amendment Act 62 of 1955 provides as follows:
“
Any person
who
is found in possession
of
any goods, other than stock or produce as defined in section
one
of
the Stock Theft Act, 1959 (Act 57 of 1959), 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.”
(my
underlining)
The elements which must
be proved for a conviction in terms of this section are the
following:
A person must be in
possession of goods;
There must be a
reasonable suspicion that the goods have been stolen; and
The person concerned
must be unable to give a satisfactory account of such possession.
[7] According to the
Judicial Head, in this instance the accused person admitted only the
element of the possession of the goods
and provided a satisfactory
account of such possession. I agree with the Judicial Head that the
statement by the accused person
does not indicate that there was a
reasonable suspicion that the goods were stolen and that such
suspicion was based on reasonable
grounds. On the contrary, the
accused person gave an account as to how he came to be in possession
of the goods.
[8] The provision of this
section has been interpreted in various judgments as requiring the
“reasonable suspicion”
to have existed in the mind of the
person finding the goods in the possession of the accused person, at
the time when he so found
them in his or her possession. However, it
has also been held that an accused person can make an admission in
terms of
section 112
of the
Criminal Procedure Act in
regard to facts
which are not in his or her personal knowledge. In such cases, the
court has to take into account other consideration
like for instance
the sufficiency of the accused person’s source of knowledge and
the probative value of the admission. See
S V MALINGA
1986 (4) SA 296
(E) at 299F – G;
S v NAIDOO
1985
(2) SA 32
(N) and
S v MAHLASELA
2005 (1) SACR 269
(N)
at 271.
[9] Since there was no
admission made by the accused regarding reasonable suspicion, it was
therefore expected of the state to prove
that there was a reasonable
suspicion that the goods were stolen. Since the element of reasonable
suspicion was not admitted by
the accused person nor proved by the
state, the trial magistrate erred in finding the accused person
guilty. The trial magistrate
ought to have entered a plea of not
guilty.
[10] The accused person
also provided an account of his being in possession of the goods.
This account, to me, was reasonable and
the trial magistrate should
have entered a plea of not guilty even on this basis. The state did
not prove the accused person’s
inability to give a reasonable
account either at the time he was found in possession of the goods or
at the trial. His explanation
as stated in the statement was accepted
by both the state and the trial magistrate. It has been held that if
the accused person
gives an explanation which may reasonably be true
and which, if true, would be a satisfactory account of his or her
possession,
he or she must be acquitted. See
S v KHUMALO
1964 (1) SA 498
(NPD) at 501C.
[11] In the premises I
would grant the following order:
1. The conviction is
set aside.
2. The case is
remitted to the trial court to be heard afresh before a different
magistrate.
________________
E.M.
KUBUSHI, AJ
I concur (and it is so
ordered).
_________________
M.B. MOLEMELA, J
/sp