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2011
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[2011] ZAFSHC 181
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Mofolo v S (A 200/11) [2011] ZAFSHC 181 (27 October 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO. A 200/11
In
the review between:
THABO
RICHARD MOFOLO
versus
THE
STATE
_____________________________________________________
CORAM:
ZIETSMAN, AJ
et
NAIDOO, AJ
_____________________________________________________
JUDGMENT BY:
NAIDOO, AJ
DELIVERED ON:
27 OCTOBER 2011
_____________________________________________________
NAIDOO AJ
[1] The appellant was
convicted of Robbery with Aggravating Circumstances in the
Bloemfontein Regional Court on 10 March 2010, and
was sentenced to
Fifteen (15) years’ imprisonment. With the leave of the court
a
quo
, he now appeals against such conviction and sentence. He was
legally represented during the trial in the Regional Court. Mr S J
Reinders appears on behalf of the appellant in this court and Mr M
Strauss on behalf of the State.
[2] By way of background,
I set out briefly the evidence in this matter. The complainant,
Bernardus Johannes Van Wyk (Van Wyk) was
driving home in the early
hours of the morning of 17 June 2009, when he was accosted by four
men at a robot on Nelson Mandela Drive.
Two of them forced him out of
his motor vehicle at knife point and severely assaulted him, causing
him to lose consciousness. He
testified that he also thought that
they had a firearm, although he did not see it. They told him that
they had a firearm. When
he regained consciousness, he discovered
that he had been robbed of his motor vehicle, a white Volkswagen
Jetta, and its contents,
his jacket, watch, cellular telephone and
wallet. The contents of the vehicle included his house keys,
sunglasses, his study material
(he was an apprentice electrician),
and electrical equipment necessary for his work as an apprentice. Van
Wyk was not able to identify
any of the robbers.
[3] Later that day, a
fruit vendor, Stoffel Moreng (also known as Tello Moreng) was picked
up by the appellant, who was his friend,
and one other person, known
as Fanna, in a white Jetta vehicle. He went with them for a ride to a
few places before they dropped
him off at the place at which they had
picked him up. His evidence was that the appellant drove the motor
vehicle and even said
that it was his (appellant’s) motor
vehicle, which he intended to use as a taxi at night. When this
witness was dropped off,
he was told that the appellant and Fanna
were going to the Shoprite supermarket.
[4] Constable Mokoena,
the third witness for the State went to the shopping centre at which
Shoprite is situated after receiving
information that a white Jetta
vehicle, which was stolen, was heading for Shoprite. He was in the
company of a number of his colleagues,
and observed this vehicle
approaching. When it was parked, he approached the vehicle and there
he saw that the appellant, the only
occupant of the motor vehicle,
was seated in the driver’s seat drinking an alcoholic beverage.
The appellant was placed under
arrest, at which time he said that the
vehicle belonged to someone else and offered to show the police who
this person was. Mokoena
and his colleagues appeared not to believe
the appellant and made no attempt to follow up on his assertion that
someone else was
the owner of the vehicle.
[5] The accused was the
only witness for the defence and his version was that his wife, who
was pregnant at the time, needed to
visit the doctor, but he had no
vehicle. He contacted Fanna to assist him take his wife to the
doctor. Fanna arrived in the white
Jetta. They thereafter went to
pick up Tello Moreng to take him to the appellant’s employer.
The employer was looking for
a driver to drive his taxi at night, and
he took Moreng because the latter was unemployed. He and Fanna
thereafter dropped Moreng
off at the spot where they had picked him
up and thereafter headed to Shoprite to pick up Fanna’s wife.
His evidence is that
Fanna drove the vehicle at all times. Fanna left
the vehicle to go in search of his wife. He was seated in the
passenger seat when
the police arrived, took him out of the vehicle
and placed him under arrest. He told the police the vehicle did not
belong to him
and offered to take them to the owner of the vehicle.
However, they did not want to listen to him and assaulted him. He
denied
being involved in the robbery and the taking of Van Wyk’s
vehicle, insisting that his contact with the vehicle was through
Fanna.
[6] It is common cause
that the vehicle had no registration plates or licence registration
disc. The vehicle was identified by Van
Wyk as the vehicle he was
driving and which was taken during the robbery a few hours earlier.
He did this by comparing the Vehicle
Identification Number as well as
the engine number of the recovered vehicle with the Certificate of
Registration of his vehicle.
They were the same. He was also able to
identify it by a tear on the steering wheel and the cable which he
had used to attach the
electric aerial to the vehicle, although the
aerial itself had been removed. There was no dispute that the vehicle
in fact belonged
to the complainant, Van Wyk.
[7] There was,
consequently, no direct evidence that the appellant was one of the
people that had assaulted and robbed the complainant
of his vehicle,
the matter being decided on circumstantial evidence. The learned
magistrate accepted the evidence of the State
witnesses, holding that
Moreng and Mokoena were credible and reliable witnesses. She held
that the appellant did not make a good
impression on her and rejected
his evidence as false, stating that the appellant did not convince
her that his version was true.
The learned magistrate found that in
view of the fact that the appellant was found in possession of the
vehicle within a few hours
after the complainant was robbed of it,
she was satisfied that the only reasonable inference that could be
drawn was that the appellant
was one of the robbers that attacked the
complainant and robbed him of his vehicle.
[8] One of the
considerations that the appellant pertinently requests this court to
make is whether his possession of the vehicle
entitles it to infer
the appellant’s guilt on the charge of robbery. In
S v
Mtsweni
1985(1) SA 590 (A), at page 593 F to G, the
Learned Judge, Smallberger AJA,
cited the following extract from
the case of
S v Essack
1974(1) SA 1:
“
Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective facts
from which to
infer the other facts which it is sought to establish. In some cases
the other facts can be inferred with as much
practical certainty as
if they had actually been observed. In other cases the inference does
not go beyond reasonable probability.
But if there are no positive
proved facts from which inference can be made, the method of
inference fails and what is left is mere
speculation or conjecture.”
Smallberger AJA also
referred to the often quoted passage from
R
v Blom
1939 AD 186
, which is to be
found on page 188:
“
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
(2) The
proved facts
should
be such that they exclude every reasonable inference from them save
the one sought to be drawn. If they do not exclude other
reasonable
inferences, then there must be doubt whether the inference sought t
o
be
drawn
is correct.”
A similar view was held
in the matter of
S v Jantjies
1999(1) SACR 32 (C),
which we
were referred to in the appellant’s Heads of Argument. I quote
from the headnote:
“
The
facts of every case have to be examined to determine whether an
inference about the commission of some or other offence is the
only
reasonable inference that can be drawn. The mere possession of a
stolen thing, shortly after it was stolen, does not per se
justify
the inference that the possessor was the thief or, even worse, the
housebreaker and thief.”
[9] The appellant was not
a satisfactory witness and had difficulty in relating the sequence of
events leading up to his arrest
with any degree of credibility. He
contradicted himself and the evidence of Moreng, especially with
regard to the reason for inviting
Moreng to go for a ride in the
vehicle. It was apparent that he was not being truthful about who
drove the vehicle, no doubt to
distance himself from the fact that
the vehicle was obtained by illegal means. In this regard, the
Learned Magistrate correctly,
in my view, accepted the evidence of
Moreng and Mokoena that the appellant drove the vehicle, and rejected
the accused’s
version. Although his version was that Fanna was
called to transport his wife to the doctor, the appellant seemed to
have forgotten
about it and said that when Fanna arrived, he arranged
with him to pick up Tello Moreng. When he was pertinently asked about
this
by the prosecutor, he said that he made a mistake by asking
Fanna to pick up Moreng, but later said that his wife was taken to
the doctor before they picked Moreng up.
[10] I agree with the
learned magistrate that the appellant’s version of the way
events unfolded is not reliable or credible
and it does appear that
he was fabricating parts of his version. The question that
consequently arises is whether the appellant’s
untruthfulness
justifies an inference of guilt. In this regard I align myself with
what Smallberger AJA said in the Mtsweni case
(as translated in the
headnote):
“
Although the untruthful evidence or
denial of an accused is of importance when it comes to the drawing of
conclusions and the determination
of guilt, caution must be exercised
against attaching too much weight thereto.The conclusion that,
because an accused is untruthful,
he therefore is probably guilty
must especially be guarded against. Untruthful evidence or a false
statement does not always justify
the most extreme conclusion. The
weight to be attached thereto must be related to the circumstances of
each case.”
[11] The evidence is that
the complainant, who was robbed of his motor vehicle in the early
hours of the morning of 17 June 2009,
was unable to identify his
attackers. One can reasonably infer from the fact that the appellant
was arrested in possession of the
complainant’s vehicle some
twelve to fourteen hours after his vehicle was taken from him, that
he robbed the complainant
of his vehicle. The circumstances are such
that it can also be inferred that he stole the vehicle after the
complainant was robbed.
The facts also lend themselves to a finding
of guilt in terms of Section 36 or Section 37 of the General Law
Amendment Act 62 of
1955. There are consequently no facts to
establish the appellant’s guilt in respect of the robbery, and
he ought not to have
been convicted of robbery, but of one of the
lesser offences I have mentioned.
[12] In my view, a
conviction in terms of Section 37 of Act 62 of 1955 would be the most
appropriate in this case. The policemen
who arrested the appellant
made no attempt to follow up on his version that the vehicle belonged
to someone else. It is common
cause that the appellant was in Fanna’s
company up to the time that Moreng was dropped off at the stop
street, and that he
was advised that the appellant and Fanna were on
their way to Shoprite. It would have been relatively easy for the
police to have
pursued the investigation in respect of Fanna and even
to have obtained a statement from him in respect of his involvement
in this
matter. With regard to the conduct of the appellant, even
assuming that he was a passenger in the vehicle, it is improbable
that
having observed the absence of registration plates and a licence
disc on that vehicle, that he would not have at least entertained
the
suspicion that the vehicle was stolen. Indeed the inference is
inescapable that he must have been aware or suspected, when
he first
observed the vehicle, that it was stolen. But he continued with his
activities and even advised Moreng that he intended
to hire the
vehicle out as a taxi. He assumed control of the vehicle in
preparation of his intended use of it. In
S
v
Mani
2002(2)
SACR 393 (EC), it was held that
“
where the
evidence did not indicate that the accused had participated in the
actual theft of a stolen motor vehicle found in his
possession, but
that he had become aware of the fact that it was stolen and had not
participated in the disposal of the motor vehicle,
which he was
retaining for his own use, he was guilty of receiving stolen property
and not theft”
In view of what I have
outlined above, I align myself with this view.
[13] In view of what I
have said, I do not deem it necessary to deal with the submissions
made by Mr Reinders and Mr Strauss in
respect of the imposition of
the prescribed minimum sentence. However, the submissions of both
Counsel in respect of what an appropriate
sentence would be in
respect of a conviction in terms of section 37 of the General Law
Amendment Act 62 of 1955 have been taken
into account. It is also
noted that the appellant spent nine months in custody awaiting trial.
I, accordingly, propose
that the following order be made:
The conviction of
Robbery with Aggravating Circumstances is set aside and substituted
with the following:
The Accused is found
guilty of contravening Section 37 of the General Law Amendment Act 62
of 1955.
2. The accused is
sentenced to Twenty Four (24) months’ imprisonment, back-dated
to 10 March 2010.
____________
NAIDOO, AJ
I agree,
________________
P. ZIETSMAN, AJ
Counsel for Appellant:
Mr. SJ Reinders
Instructed by:
Giorgi
and Gerber Attorneys
Counsel for the
Respondent:
Mr M Strauss
Instructed by:
The
State