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[2011] ZAFSHC 172
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Thobela v S (A176/2010) [2011] ZAFSHC 172 (10 November 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : A176/2010
In
the matter between:-
MANUEL THOBELA
….............................................................
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
H M
MUSI, JP
et
MOLOI, J
_____________________________________________________
JUDGMENT BY:
MUSI,
JP
_____________________________________________________
HEARD ON:
31 OCTOBER 2011
_____________________________________________________
DELIVERED ON:
10 NOVEMBER 2011
_____________________________________________________
[1]
The appellant was arraigned on two charges in the magistrate’s
court for the district of Sasolburg. The first is housebreaking
with
intent to steal and theft, it being alleged that on the 11
th
to 12
th
July 2008 and at 6 Oliewenhout Street, Sasolburg,
the appellant broke into the house of Miss Lebohang Daphney Makau
(Makau) and
there stole a variety of articles set out in the annexure
to the charge sheet. In the second count, it was alleged that on the
12
th
July 2008 at night, the appellant entered the
premises of Fakkel School in Sasolburg without the permission of its
lawful occupier
or caretaker and was thus guilty of trespass. The
appellant was convicted on all the counts, which were then taken
together for
purposes of sentence and he was sentenced to six years
imprisonment.
[2]
It is undisputed that between 11 and 12 July 2008 the house of Makau
was broken into and her property comprising movables valued
at R36
914,00 were stolen. The stolen goods were found in the night of the
12
th
July 2008 on the premises of Fakkel School,
Sasolburg. They were packed in two suitcases. It is undisputed that
the appellant was
apprehended at Fakkel School on the same night of
12 July 2008.
[3]
The dispute in this matter centres on the following issues:
3.1
whether the appellant was found inside the premises of the school
under circumstances described by the state witnesses.
3.2
whether the suitcases containing the stolen goods were found in the
immediate vicinity of the appellant when he was first seen
and, if
so, whether it can be inferred that he was in possession thereof.
3.3
whether the inference that the appellant had been in possession of
the stolen goods is the only reasonable inference to be drawn
in the
circumstances.
(
R
v BLOM
1939 AD 188
at 202 – 203.)
[4]
The first point to be made is that the magistrate accepted the
version of the state as true and rejected that of the appellant
as
false and the question is whether there is any basis for disturbing
this factual finding. During oral argument, I broached the
subject
with Mr Tshabalala, counsel for the appellant. He frankly conceded
that he could not advance any cogent reasons for disturbing
the
magistrate’s findings. Nor could I find any. It is moreover
trite that a court of appeal will not lightly interfere with
the
credibility and factual findings of the trial court.
(
R
v DHLUMAYO AND ANOTHER
1948 (2) SA 677
(A).)
[5]
Accordingly, the appeal stands to be decided on the version of the
state as gleaned from the record. It is briefly to the effect
that
the appellant was seen walking under trees in the dark in front of
the school by Mariska Myburgh, who had been standing at
the gate of
the school with her boyfriend, one Andries. The appellant was alone
and there was nobody else in the school premises
as the students had
been away on school vacation. Next to the appellant was a suitcase
hanging on a palisade. Another suitcase
was lying nearby outside the
fence. Mariska saw that the appellant was moving towards the back of
the school and urged her boyfriend,
Andries, to catch him. Andries
obliged and apprehended the appellant. The police were called and the
appellant was handed over
to them, together with the stolen goods.
The appellant gave no explanation to the police officer who arrested
him and indeed refused
to utter a word when questioned.
[6]
In court, the appellant not only denied having been in possession of
the goods but also denied having been caught inside the
school
premises and gave a clearly false explanation of how he was
apprehended. He said that he had been walking past the school
when
Andries confronted him, caught him and dragged him inside the school
premises.
[7]
From the acceptable evidence on record the following findings would
be justified:
7.1
the appellant was spotted inside the school premises at night under
suspicious circumstances.
7.2
he had absolutely no legitimate cause to be on the premises and
failed to give any explanation therefor.
7.3
he was the only person in the area where he was spotted and where the
stolen goods were found.
7.4
the goods had recently been stolen from Makau’s house, which
had been broken into.
The
doctrine of recent possession applies (
S v PARROW
1973
(1) SA 608
(A) at 604E.).
[8]
There can be no other plausible explanation why the appellant falsely
denied having been inside the school premises and for
distancing
himself from the stolen goods other than concealment of guilt. This
factor strengthens the state case. Compare
S v MTSWENI
1985 (1) SA 590
(A) at 593i to 594a;
S v M
2006 (1)
SACR 135
(SCA) paras [64] and [65].
[9]
The only reasonable inference to be drawn from the proven facts is
that the appellant is the one who brought the goods there
and further
that he had stolen them after breaking into the house of the
complainant in count 1. That means that the appellant
was correctly
convicted on count 1. The evidence discloses that he had no
permission to be on the premises of Fakkel School. Nor
did he have
any justification whatsoever for being thereon. He was accordingly
also correctly convicted of trespass.
[10]
Now counsel for the state, M/s Ferreira, correctly pointed out that
although it is not desirable that the magistrate’s
court should
take convictions together for purposes of sentence, nonetheless doing
so does not
per se
entitle an appeal court to interfere with
the sentence (
S v KEULDER
1994 (1) SACR 91
(A)).
Lumping the convictions together may have given the impression that
the two offences were committed on the same premises
but a perusal of
the record shows that Makau’s house is not on the premises of
Fakkel School.
[11]
It is trite that sentence is a matter that falls within the
discretion of the trial court and a court of appeal will interfere
therewith only if there was a misdirection or irregularity in the
sentencing process or if the sentence imposed is shockingly
inappropriate. Mr Tshabalala could only advance one ground for
challenging the sentence. He submitted that the magistrate did not
take into account the personal circumstances of the appellant and
said this constituted a misdirection. However, he conceded that
the
appellant’s personal circumstances had been put on record by
his legal representative. A perusal of the record of the
proceedings
shows that the magistrate did consider the personal circumstances of
the appellant and Mr Tshabalala’s submission
in this regard
falls by the wayside. A sentence of six years imprisonment for
housebreaking with intent to steal and theft, particularly
considering the substantial value of the goods stolen, can hardly be
considered inappropriate, let alone shockingly inappropriate.
[12]
In the result, the appeal is dismissed in respect of both the
conviction and sentence.
______________
H. M. MUSI, JP
I concur and it is so
ordered.
_______________ K. J.
MOLOI, J
On behalf of the
appellant: Adv. L. M. Tshabalala
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. A. M. Ferreira
Instructed by:
The Director of Public
Prosecutions
BLOEMFONTEIN
/EB