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[2009] ZAGPPHC 305
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Ngwenya and Others v S (614/08) [2009] ZAGPPHC 305 (10 September 2009)
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IN
THE HIGH COURTOF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
NOT
REPORTABLE
DATE:
10 SEPTEMBER 2009
MAGISTRATE
SERIAL N0.19/09
CASE
NO: 614/08
HIGH
COURT REF: 674
In
the matter between:
BOMGANI
NGWENYA
1
ST
ACCUSED
THABANG
NTHOKE MAGAHLELA
2
ND
ACCUSED
DAVID
SHOKA APHANE
3
RD
ACCUSED
and
THE
STATE RESPONDENT
REVIEW
JUDGMENT
MAVUNDLA.
J.,
[1]
Accused 1 Bongani Ngwenya, a male aged 24 years old, accused 2
Thabang Nthoke Magahiela a male aged 23 and accused 3 David Shoka
Aphane a male aged 26 all appeared on 24 February 2009 before the
Magistrate at White River on a count of theft of clothes valued
at
R1000 the property of or in the unlawful possession of Mr. Price or
City of Couriers and Mr.
Fredirick
Hermanus Geldenhuys, on or about 25 November 2008.
[2]
They were unrepresented. Their right to
legal representation had been explained to them and they chose to
conduct their own defence.
They all pleaded not guilty but were
however eventually found guilty on theft and sentenced on 5 May 2009
as follows:
2.1
Accused 1 and 3 sentenced to a fine of
R2000 or 200 days imprisonment.
2.2
Accused 2 sentenced to a fine of
R3000.00 or 300 days imprisonment.
2.3
All three accused were further sentenced
to a further 8 months imprisonment suspended for 5 years on condition
that each accused
is not found guilty of theft, fraud committed
during the period of suspension.
[3]
The matter came before me by way of
review on 25 May 2009. I
forwarded
the following queries to the magistrate per letter dated 26 May 2009:
1.
Accused 2 and 3 indicated that they
speak Northern Sotho.
2.
From the record it is not clear whether
the interpreter was conversant in Northern Sotho
3
What language was employed to interpret
to accused 2 and 3?
4
Can it be said that accused 2 and 3 had
a fair trial if the proceedings were not explained to them in their
language
9
5.
On what basis
was the version of accused 1 and 2 rejected?
6
Was there evidence that the three
accused committed theft?
7
On what evidence can it be said that the
State had proven the guilt of the three accused beyond reasonable
doubt?
8.
Accused 2 is the one who was found
carrying the bag
9.
Should he not have been found guilty of
being in possession of stolen goods?
10.
Were accused 1 and 3 not supposed to
have been acquitted, if not, why not?"
[4]
The relevant magistrate was on leave as
from 8 May 2009 to 8 June 2009 and as a result there was a delay in
responding to the aforesaid
queries. He has since responded to these
queries and his response has been forwarded to the office of the
Director of Public Prosecutions.
The Senior State advocate
H.
S. Ngobeni has kindly furnished his opinion,
with which S Lakhi-Hatia, Deputy Director of Public Prosecutions
agrees, for which
I am thankful and to which I shall later refer.
[5]
I
do not intend to deal with the query relating to the interpretation,
since I am of the view that nothing much turns around this
point. I
say so because the magistrate in his reply has stated that the
proceedings were interpreted, inter alia, in Northern Sotho
because
the interpreter is conversant with IsiSwazi. Northern Sotho, S Sotho.
Zulu, English and Afrikaans.[6]
Accused
1, in disclosing his defence in terms of s115
[1]
explained that on the day in question they went to Bushbuckridge to
deliver some goods, and then his co-accused told him that he
had
picked up a bag. They then put the bag inside the truck and continued
with their duties. They went back with the bag of his
co-accused but
did not, after logging off, report at work that his co-accused had
picked up the bag. The supervisor took them to
the bus terminal and
left them about 50 meters therefrom, and they then proceeded on foot.
A security guard came, stopped them
and searched the bag that was
with his co-accused and found some clothes therein. When a receipt
was demanded, his co-accused said
that he did not have one, and they
were all three arrested.
[7]
Accused
2 stated that he pleaded not guilty because he did not know anything.
Accused 3 stated that they went to deliver at Bushbuckridge.
He was
inside the truck when his friend accused 2 came inside having a bag.
It was already 22: 00 when they arrived at their work
place next to
Nelspruit. They asked their supervisor to take them to their
residential places or to the bus stop. Their supervisor
dropped them
at White River where they then walked on foot. After walking a short
distance a security guard came while accused
2 was holding the bag.
They found clothes inside the bag. When asked where they had found
the clothes, accused 3 responded by saying
that he did not know. They
were all taken to the police station where they were locked up.
[8]
The magistrate then requested the
accused to confirm whether they understood the language spoken
Accused 1 indicated that he speaks
isi-Swazi but can understand a
little English. Accused 2 indicated that he can hear IsiSwazi but
cannot speak it. Accused 3 indicated
that he speaks Northern Sotho
and understands a little English.
[9]
The first State witness called was Mr.
Frederik Hermanus Geldenhuys who indicated that he had no problem in
the use of either Afrikaans
or English. He testified that he is a
security officer with Maxis Security. He was patrolling when he came
across the three accused
on 25 November 2008 at about 20 00. One of
them, Accused 2, was holding a sports bag He searched the bag and
found new clothes
with labels still inside the plastics and having
price tags. He inquired from the accused as to where the clothes were
from, whereupon
all three said that the clothes had been bought from
somebody. Upon inquiring about the slip, the one who was carrying the
bag
responded that the clothes had been bought from someone. He said
that the accused were not assaulted.
[10]
Mr. Ngwenya. in cross examination,
denied that the witness had asked him where he had got the bag from
adding that only the one
who was carrying the bag had been asked. The
witness maintained that all three of them had given the same answer.
He did not have
further questions to this witness
[11]
Accused 2 disputed that this witness had
asked them about where they had got the clothes from. The witness
maintained that he had
asked them and that they all had responded
that one person at the mall had sold the clothes to them. Accused 2
further disputed
the time they came across the witness, adding that
the time was approximately 22: 00 or 23: 00. The witness maintained
that it
was 20: 00. The witness further testified that the accused
had requested them to let them go offering to give them the goods and
to pay them. Accused 2 denied these last mentioned allegations.
Accused 3 did not have any questions to the witness.
[12]
The second state witness called was Mr.
Christo Swart who testified that he is in the employ of City Couriers
in Rock Street. He
said that he knew all three accused as he had
employed them He further testified that on 25 November 2008 the three
accused had
gone to do some deliveries. On 26 November 2008 he was
called to the police station where he identified some clothes still
covered
in their plastics, with their tags still on as those of Mr.
Price. He further said that he usually
communicated
with the accused through a supervisor in IsiSwazi or Shangaan.
[13]
Accused 1 did not have any questions to
Mr Swart. Accused 2 put it to Mr Swart that if something is missing
they do not notice that
immediately until after a day or two. Mr
Swart agreed with this suggestion. Accused 3 did not have any
question to this witness.
[14]
The court asked Mr Swart what his
reaction would be if he was walking in the street and picked up a bag
which was easily accessible
Mr Swart gave his possible reaction. I
deem it not necessary to record his response or possible reaction
because his possible reaction
is of no consequence in the
determination of the guilt of the accused. After this witness the
State closed its case
[15]
Accused 1 testified in his own defence.
He testified that he confirmed what he had said at the beginning of
the trial. Under cross
examination accused 1 stated that accused 2
had come with the bag and told them that he had picked it up from the
bush outside
Mr. Price shop. He testified further that he had seen
the clothes when they were taken out from the bag by the security
guard that
had arrested them. He further said that he had asked
accused 2 what their explanation would be when asked where the
clothes had
been from. He further testified that his co-accused had
hidden the bag just before they arrived at their place of employment
when
they returned from doing the deliveries. Accused 3 had been the
driver of the truck. He further testified that it had been accused
2
s idea that the bag be hidden because he said he had picked up the
clothes. The first State witness spoke to accused 2 who was
having
the bag.
[16]
To the courts question whether he had
seen the contents of the bag when they were on their way to their
company, accused 1 answered
that he had seen the bag, opened it but
that he had not searched it. He further said that he knew that
accused 2 had not gone inside
Mr Price shop because he was walking
outside while he, accused 1, was inside Mr. Price collecting IBT. He
further said that when
they went inside to deliver accused 3 was
standing near the truck and he himself was collecting the IPD While
exiting from the
shop he saw accused 2 coming around a corner of Mr.
Price shop. Accused 2 and accused 3 did not have any questions to ask
accused
1.
[17]
The
proceedings were then remanded to 6 March 2009 and the bail of all
three accused was extended. On resumption on 6 March 2009
accused 2
testified in his defence. He testified that they were returning from
Bushbuckridge on the day in question. There was
a bag which he had
left at White River. They went to knock off at their work place. They
asked their supervisor to take them to
White River. They then went to
take the bag where they had left it. They were stopped by the
security guard at gun point and asked
where the items in the bag were
from. He told them that he had picked them up but the security guard
arrested them after telling
them that they had failed to produce the
receipt for the items.
[18]
Accused 1 asked accused 2 to tell the
court where he had picked the bag up in Bushbuck Ridge. Accused 2
answered that he had picked
it up from a dustbin when he had gone to
pass water. Accused 3 did not have any question.
[19]
On being cross examined by the State
prosecutor, accused 2 said that he had opened the bag and found some
t-shirts therein He said
that there was no shop nearby where he found
the bag in the dustbin which he described as a big rubbish dustbin.
He did not take
the bag to his company because there were no lost
t-shirts there. He conceded that the items he had found had belonged
to Mr. Price.
He also conceded that the items were still inside their
plastic bags Accused 1 and 3 did not have any questions to him The
proceedings
were then adjourned to 23 March 2009 for the witness of
accused 2.
[20]
On resumption of the proceedings on 23
March 2009, accused 2
informed
the court that he was closing his case. Accused 3 also did not
testify and proceeded to close his case
[21]
The magistrate evaluated the evidence of
both the State witnesses and that of the accused. The magistrate
accepted the evidence
of the State witnesses adding that the three
accused had not so much challenged the evidence
of the first State witness. The magistrate concluded that the three
accused had
been in possession of the bag and that they were all
aware of its contents before they reached their place of employment
The magistrate
further concluded that the three accused had a duty to
reveal the contents of the bag to their supervisor or to the firm as
they
had ample time to do so. The magistrate proceeded to reject the
version of all three accused and found them guilty as charged.
[22]
All three accused addressed the court in
mitigation. The personal circumstances of accused 1 are that he is
[…….].
He is single and unemployed and has two children
aged [……] year and […..] and [….] year
and […..]
months both with different mothers. He is staying
with the mother of one of these children, who is receiving child
grant. He is
not certain whether the mother of his other child is
receiving child grant. He has a tuck shop from which he gives an
amount of
R200 to the mother of his child he does not stay with. He
said further that he makes about R1100 per week.
[23]
Accused 2
is […..] years old. He is single and has three children two of
whom are twins who are […..] years old. The
other child is
[….] months old He does temporary work as a brick layer and
gets R40 per day. His highest qualification is
grade [….]. He
was employed for 8 months at […..]. His expenses per week are
R500 for groceries. R300 for the children
and R200 for general things
and his income was R500 per week. He further does not have parents.
[24]
Accused 3 is […..] years old. He
had just started working as a taxi driver, driving from Germiston to
Pietersburg and was
going to earn R500 per week. He had not yet
received his salary on his arrest He is staying with his parents. His
uncle maintained
him His brother is doing grade […..].
[25]
The proceedings were then adjourned for
sentence to 5 May 2009.
The accused were
sentenced as indicated in paragraph [2] above.
[26]
It was correctly submitted by Mr.
Ngobeni, that according to the evidence, the items involved had
allegedly belonged to Mr Price
or were to be delivered to them and
had not yet been recorded in their stock. Mr Swart from City Couriers
did not tell the court
that the items were missing from their depot.
The accused were only found in possession of the property
[27]
For the offence of theft, the
identification of the owner or person entitled to the property or in
possession thereof is one of
the important prerequisites for a
successful prosecution. The State failed to adduce any evidence
proving who the owner or lawful
possessor of the articles
[28]
Accused 2 testified that he had picked up the bag containing the
clothes from a dustbin and brought it to the truck. Accused
3
did
not testify. He had indicated in his plea explanation that he had
seen the clothes in the truck. The magistrate stated in his
judgment
that it is clear that all three accused were in possession of the bag
and that they were aware of its contents. In my
view, the fact of the
matter is that the evidence of the State is that accused 2 alone was
in possession of the bag
[2]
. The
fact that accused 1 and 3 were aware of the contents of the bag, does
not help the State in proving theft nor possession of
the bag
containing the clothes against in particular accused 1 and 3.
[29]
I am of the view that the magistrate misdirected himself in finding
all three accused guilty of theft. Accused 2, in my view,
failed to
give a reasonable explanation for his possession of the clothes. His
explanation that he had found the bag and the clothes
in a dustbin,
was in my view correctly rejected by the magistrate Geldenhuys
testified that the explanation given to him was that
the goods had
been bought from someone. The magistrate found no reason to reject
the evidence of this witness. In my view, he correctly
rejected that
of the accused. He should, however, have found accused 2 guilty of
contravening s36 of Act 62 of 1955 - possession
of suspected stolen
property.
[30]
For
a conviction on possession of suspected stolen property, the Deputy
Director of Public Prosecutions S Lakhi-Hatia and a Senior
State
Advocate. H S Ngobeni, and. correctly so, opined that a sentence of
R1000 00 or 8 months imprisonment would be in order.
Such a sentence,
in my view, having regard to the circumstances of the case and the
personal circumstances of the accused stated
above, indeed, is
appropriate.
[31]
The conviction of all three accused on the count of theft, in my
view, is not in accordance with justice and should, therefore
be set
aside and substituted.
ORDER
1.
The
conviction of all three accused on theft and accused 2's sentence are
set aside and substituted as follows:
2.
"1.
Accused 1 and 3 are found not guilty and
discharged.
2.
Accused 2 is found guilty of
contravening s36 of Act 62 of 1955 - possession of suspected stolen
property.
3.
Accused 2 is sentenced to a fine of
R1000. 00 or
8
months imprisonment."
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
I
AGREE
M.W
MSIMEKI
JUDGE
OF THE HIGH COURT
[1]
Criminal
Procedure Act No 51 of 1977
.
[2]
Pages 8 line 25 -9 line 1 of the record F H Geldenhuy's evidence
"Are you able to tell the court who of the three had it
with
him? Who was carrying it? -The one that is sitting in the middle ”