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[2009] ZAGPPHC 345
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Barnard v S (A23/2009) [2009] ZAGPPHC 345 (11 December 2009)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT PRETORIA
CASE
NO: A29/2009
DATE:
11 DECEMBER 2009
In
the matter between
WILLEM
GEORGE
BARNARD Appellant
and
THE
STATE Respondent
JUDGMENT
VICTOR.
J:
INTRODUCTION
[1]
The appellant and his co-accused was
convicted of theft of approximately 300metres of railway lines and
sleepers in the Modimolle
Magistrate s Court. The appellant and his
co-accused (who does not appeal) was sentenced to 6 years'
imprisonment wholly suspended
and only the appellant was ordered to
forfeit his firearm and ammunition in terms of section 103 of Act No
60 Of 2000.
[2]
The State alleged that the appellant
together with his co-accused stole the railway line and cross members
from the railway station
known as Alma. The evidence of a Spoornet
employee Mr Vogel was tendered by the respondent to prove ownership
of the portion of
line stolen. It soon became apparent during cross
examination that it was not a simple task to identify which portion
of line belonged
to Spoornet and which portion was private. It was
not possible for Mr Vogel who had inspected the very lines at Alma
over many
years to identify same from the plan and he had to resort
to an inspection in loco. The Spoornet lines and the sideline
belonging
to the Farmer's Cooperative known as NTK were not easily
identifiable on the plan. This plan was published in a directory of
railway
lines and siding privately owned in South Africa.
[3]
Mr Vogel could not read the plan or
testify with any certainty which portion belonged to Spoornet and
which to NTK.
[4]
An inspection in loco was undertaken and
it was only thereafter that Mr Vogel came back more positively about
which portion of railway
line belonged to Spoornet and whether it
indeed was the property of Spoornet which was stolen.
[5]
The State called a Mr G van Moerkerken
to testify presumably to link the appellants co-accused to the theft.
Mr Van Moerkerken an
auditor testified that he had been approached by
the appellant and his co-accused in order to draw up a joint venture
agreement.
Pursuant to the instructions he drew up the agreement and
it would appear that one of the parties were not happy with the terms
namely that it would be a joint venture in equal shares. The
appellant provided the workmen and the technical know-how and he
wanted a more advantageous profit split. There was some uncertainty
about the date on which Mr Van Moerkerken was approached to
draw up
the agreement. It could have been in the year 2003 or 2004. After
being challenged about the date he became uncooperative
was not
prepared to commit to a date.
[6]
It was suggested on behalf of the
respondent that the appellant and his co-accused had requested this
agreement after the theft
in order to try and cover their tracks. The
agreement clearly corroborates the appellant's version namely that he
and his co-accused
were bona fide buyers of disused railway lines.
[7]
The respondent also called one Mr Du
Toit who was […….] years of age. He worked for the
appellant He had been working
for him 6 years. He testified that the
appellant's co-accused pointed out the relevant portion of the
railway line that had to
be removed. He had been Instructed by the
appellant to meet the co-accused at the Alma Station as, he, the
co-accused was going
to point out the portion of the rail for
dismantling and lifting. The appellant was not present and at no
stage did the appellant
point out the relevant portion to be lifted.
The co accused did indeed proceed to point out the exact portion of
the railway line
that had to be lifted. When the same sketch was
shown to him as had been shown to Mr Vogel he to tell was unable to
tell from the
sketch which piece belonged to Spoornet as opposed to
NTK. He confirmed that he dismantled and lifted approximately 300
metres.
[8]
A Mr De Klerk also testified on behalf
of the State. He confirmed that he purchased the railway line from
the appellant. He had
negotiations with both the appellant and the
co-accused but his negotiation was with the appellant.
APPELLANT’S
VERSION
[9]
It was the appellant's case that he and
his co-accused were house- visiting friends in particular his
co-accused was not a man of
means and the wife of the co-accused came
to the appellant’s farm on a daily basis for sewing in order to
make items for
sale and thereby supplement their income. During the
course of that friendship it would appear that the appellant and his
co-accused
attended the same Church where the appellant was a deacon.
[10]
During the course of this friendship the
appellant suggested to his co accused that he try and source
private railway lines
that were for sale. The appellant himself was
busy removing an underground railway line at a nearby mine. He did
not have time
to source prospective train lines for sale His co
accused took on this task
[11]
The appellant then gave his co-accused a
directory which contained all the private lines in South Africa.
[12]
It is the appellant's case that his
co-accused sourced a private train line and gave the information to
the appellant. The appellant's
daughter Mrs P. attended to all his
general administration and in particular to this task. Pursuant to
that information she telephoned
a Mrs R. of Spoornet and ascertained
that the particular portion of railway line at Alma Station was
indeed owned privately. She
arranged for the line to be closed off
with a clamp which meant that that particular portion of the railway
line was no longer
going to be used. The page of the directory
reflecting the private ownership of the line at the Alma Station was
handed in as an
exhibit.
[13]
What is of importance is that prior to
the lifting of the railway line the officials of Spoornet damped the
rail line. This could
be done when Spoornet itself sold railway line
alternatively it could be done when a private owner of a side line
sold the line
In this case the line was clamped and this was further
comfort for the appellant who had visited the site only once on a
Friday
afternoon. This fact also meant that he had no reason to raise
any queries about the validity of the sale.
[14]
The entire version of the appellant's
co-accused was that he had nothing to do with the situation; he had
not pointed out the line;
he had not become involved in the sale of
the line and therefore knew nothing about it. His version was
rejected by the Magistrate
in light of the evidence of the State
witness.
[15]
A perusal of the photographs does
indicate a disused railway line. It is next to the silos and it is
possible to confuse which particular
of railway line belongs to
Spoornet and which belongs to NTK. The appellant ultimately had to
accept that the line taken by them
belonged to Spoornet had not been
purchased and did not belong to NTK.
[16]
The question to be determined in this
appeal is whether the court a quo erred in accepting that the
respondent had proved that the
appellant had the necessary intention
to commit theft. None of the state witnesses implicated the appellant
in the theft Mr Vogel
demonstrated the difficulty in identifying the
piece of rail. The co accused was the person who set up the illegal
operation for
the appellant to dismantle and remove the rail. The
version of the co accused was clearly false in the light of the
evidence of
the state witnesses. The respondent could not show that
the appellant was aware of the illegality of the operation.
[17]
Once the appellant’s version could
reasonably be true the proper test has to be applied:
'The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and
the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable, and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored.'
[1]
[16]
The appellant's conduct has been
consistent and he carried out the operation in the normal course of
business. At the relevant time
the appellant approached the local
police Capt Strauss and told him that they were busy removing rail
lines which had been purchased.
Mrs R. of Spoornet had been
approached. He had not instructed his workers to be furtive He had
not been secretive in his dealings
with the merchant who purchased
the line. The relevant line had been clamped All the aforesaid
conduct can hardly be consistent
with an intention to commit theft.
[18]
It
was necessary for the Magistrate to have regard to all the evidence
before convicting the appellant. The test of course is whether
the
guilt was established beyond reasonable doubt There was no doubt in
the appellant's mind that the railway lines were lawfully
removed by
him.
[2]
[19]
The State never called Capt Strauss to
rebut the appellant's evidence or Mrs Roos to do so. The court a quo
placed too much weight
on the fact that the appellant never attended
to the payment of the purchase price for the rails
to
NTK. It was quite clear from the evidence that his business
administration was left to his daughter Mrs Putter.
[20]
These parties all lived on a farm and it is quite clear that
administration was only done on an ad hoc
basis when and if necessary. If Mrs
Putter was presented with an invoice she would effect payment.
Throughout this period the appellant
liaised with his daughter in
order to ascertain the progress of the removal of the lines. The
question of payment for the lines
did not have to be addressed by the
appellant. The co-accused was attending to the administrative side of
things.
[20]
During this time the appellant and his
co-accused fell out over a Church-related matter and they did not
speak to each other. When
the appellant tried to speak to his
co-accused the latter “het op hom gegil”.
[21]
The fact that the appellant and his co
accused where engaged in a bitter dispute was also not undermined in
any way by the respondent.
The lack of communication between the
appellant and his co accused also led to absurdity and facilitated a
situation where the
appellant was duped by his co accused.
[22]
It is also unclear why the court a quo
declared that the appellant could not hold a firearm but did not
impose the same sentence
on his co-accused. It is correct that the
Statute does provide for the removal of the right to possess a
firearm on being convicted
of theft. The court however in exercising
its discretion to order the removal of the firearm was obliged give
reasons. There is
nothing on the record to show on what basis the
court exercised us discretion.
[23]
By virtue of the conclusion I come to on
the conviction of the theft it’s unnecessary to say anything
more about the sentence
in respect of the firearm and ammunition.
The order that I would
make is the following:
1
The appeal is upheld
2
The conviction and sentence of the
appellant in the court a quo are hereby set aside and replaced with
the following: “The
accused is found not guilty and acquitted.”
VICTOR
J
JUDGE
OF THE HIGH COURT
I
concur and it so ordered
MABUSE
AJ
ACTING
JUDGE OF THE HIGH COURT
[1]
S v Van der Meyden
1999 (1) SACR 447
(W) and S / Trarnor 2003 (1)
SACR 35
[2]
Volume 3 P3ge 283 hne 20 to page 284 line 5, pago 289 line 228.