S v Mokhanya [2009] ZAFSHC 102 (8 October 2009)

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[2009] ZAFSHC 102
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S v Mokhanya [2009] ZAFSHC 102 (8 October 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review
No. :
501/09
In the review between:-
THE STATE
and
THOLANG
MOKHANYA
_____________________________________________________
CORAM:
RAMPAI,
J
et
KRUGER,
J
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
8
OCTOBER 2009
_____________________________________________________
[1] The
matter served before m
e
by way of a special review in terms of section 303, Act No. 51 of
1977 read with section 116 thereof. The accused was prosecuted
in
the Zastron district court where he was convicted. The district
magistrate then stayed the proceedings and transferred the
case in
terms of section 116 to the regional court for sentence.
[2] The
regional magistrate considered the matter but imposed no sentence on
the accused. He had some reservation as regards the
correctness of
the conviction - hence he referred the matter to the High Court in
terms of section 303 for review.
[3] The
accused was arrested on 30 April 2009. Subsequent to his arrest he
was criminally charged. The charge preferred against
him was
housebreaking with intent to steal and theft. It was alleged that he
committed the crime at 58 New Location in Zastron
on 31 October 2008;
that he stole certain goods valued at R5 600,00 and that such goods
were in the lawful possession of Ms Yoliswa
Ngogo.
[4] His
trial began on 11 May 2009. He pleaded not guilty. Notwithstanding
his plea, he was found guilty on 20 May 2009. He was
then
transferred in terms of section 116(1)(b), Act No. 51 of 1977 to the
regional court for sentence, as already indicated.
[5] In a memorandum dated
16 August 2009 the regional magistrate summarised the facts and came
to the following conclusion:
“
Die moontlikheid dat die
beskuldigde die selfoon van die inbreker gekoop of andersins ontvang
het in ‘n periode van 14 dae, is
mynsinsiens rederlik en is die
skuldigbevinding op die hoofaanklagte ‘n mistasting.”
[6] Seeing that the
regional magistrate differed with the district magistrate on the
conclusion reached, I would have preferred
to have the comments of
the district magistrate before I reviewed the matter. The last
paragraph of the memo by the regional magistrate
reads as follows:
“
Ek het die saak met die geleerde
verhoor landdros breedvoerig in kamers bespreek en het hy aangedui
dat hy nie enige kommentaar
aan die hof van hersiening wens voor te
lê nie.”
In the light of the
statement, which I accept as true and correct, I deem it unnecessary
to bother the district magistrate with
a request for his further
input. I take that he has no further contribution.
[7] The
facts were that the victim, a teacher by profession, lived alone.
She locked her house, apparently on Friday 31 October
2008, and went
to Sterkspruit. The next day, on Saturday 1 November 2008, she
returned. She discovered that her house had been
burgled and certain
goods stolen. Among the stolen goods were four cellular phones:
Samsung, Motorola and two Nokias. There was
no eyewitness. There
was no obvious physical sign of forced entry.
[8] Two
weeks later on Friday 14 November 2008, one of the cellular phones, a
Nokia 5310, was traced. It was found in the possession
of the
accused. He was the victim’s back neighbour. Mr. Kamolelo
Lebokeng was the victim’s side neighbour. At the request
of the
victim he had kept an eye on the victim’s house while she was away.
He went over on one occasion or so and fleetingly
inspected the
victim’s house. His nickname was Poposo.
[9] The
undisputed resume of the evidence reveals that the second state
witness, Mr. Mothupi, owned a Nokia 5310 worth R3 000,00.
He lent it
to his girlfriend, a learner. She took it to school where the victim
worked as a teacher. It rang in the classroom.
The teacher took it
away from her as punishment. Similarly the teacher took three more
cellular phones from the other delinquent
learners. She later put
all the phones in her wardrobe. While she was away her house was
broken into by unidentified burglar
or burglars. Among the stolen
goods were the four cellular phones. Fourteen days later Mr. Mothupi
recovered his from the accused.
[10] The critical
question in the case was whether or not the accused was involved in
the burglary of the victim’s house fourteen
days earlier prior to
the recovery of the cellphone in his possession. The district
magistrate found he was. The regional magistrate
differed.
[11] The
doctrine of recent possession means that where a person is found in
possession of recently stolen goods, he is deemed to
have acquired
possession thereof, through direct participation in the actual
stealing of such goods, unless he can give an innocent
explanation,
which is reasonably possible as to how he came to possess such goods.
[12] Still
on the same doctrine, a brief survey of authorities shows that the
goods must have been recently stolen; that the nature
of the stolen
article is an important element in the enquiry; that in the case of
an unusually cheap and common article, which
can easily and rapidly
be disposed of, the doctrine loses much of its connective force, that
in the case of an unusually expensive
and rare article, which cannot
easily and readily pass from person to person, the doctrine retains
its connective force between
the current possessor and the original
thief.
S
v SKWEYIYA
[1984] ZASCA 96
;
1984 (4) SA 712
(AD) at 715 C – G and the decisions there cited.
[13] The
doctrine was eloquently elucidated by Holmes JA in
S
v PARROW
1973 (1) SA 603
(AD) at 604 B – D:
“
On proof of
possession by the accused of recently stolen property, the Court may
(not must) convict him of theft in the absence
of an innocent
explanation which might reasonably be true. This is an epigrammatic
way of saying that the Court should
think
its way through the totality of the facts of each particular case
,
and must acquit the accused unless it can infer, as the only
reasonable inference, that he stole the property.”
[14] I
now turn to the facts in the instant case. Subsequent to the
burglary four witnesses individually had encounters with the
accused.
The accused’s mother invited the victim to her place to talk to
the accused about the missing property. The victim
accepted the
invitation. The accused ran away, according to the victim.
The
accused admitted the victim’s visit and did not deny that he ran
away. He implicitly confessed running away but averred or
rather
suggested that he fled because the victim’s companion was armed.
[15] It
was not his evidence that the
victim’s
companion attacked or threatened him in any way. At any rate the
victim denied that her companion, a small boy 15 years
of age, was
armed. Her version was credible evidence. On that occasion, the
accused had the first opportunity of telling the
victim that he
recently bought a cellphone from Poposo. He did not. Instead he ran
away. He knew, as he ran away, that the victim
was looking for a
cellphone, among others. This was apparent from his
cross-examination of the victim. He claimed she searched
his bedroom
and took his cellphone. She was his neighbour. She was within easy
reach, but he made no effort to see her in fourteen
days to let her
know that he saw Poposo walking in and out of her house while she was
away and that he subsequently bought a cellphone
from him.
[16] The
second state witness, Mr. Mothupi, suspected that the accused was the
burglar. He was one of the owners of the stolen
cellphones. He was
on his way to lay a charge against the accused when, by coincidence,
he met him on Friday 14 November 2008.
He asked the accused whether
he had a cellphone to sell. The accused answered that he had. The
cellphone the accused had in
his possession was a Nokia 5310. The
victim positively identified it as his cellphone stolen during the
burglary into the complainant’s
house. The accused did not dispute
the witness’s claim that the cellphone was his stolen property.
According to the witness,
all that the accused told him was that he
bought the cellphone, but gave no exact further particulars of the
seller.
[17] Mr.
Mothupi later testified in court. For the first time the court
heard, during his cross-examination by the accused, that
the accused
bought the cellphone in question, a Nokia 5310, from Poposo. The
witness told the court that at the time he met the
accused, the
accused did not mention the name of Poposo as the person who sold the
cellphone to him. The witness was hearing about
the name for the
first name. It is significant to remark that the witness
specifically denied that the accused ever named any
particular person
from whom he bought the cellphone. There was no reason for the trial
court to disbelieve the witness. His evidence
was credible. He and
the accused were, after all, in good terms.
[18] The
third state witness was the investigating officer, Mr. Faber, whose
rank does not appear on record. According to him,
he interrogated
the accused and the accused told him he bought the cellphone at the
taxi rank from an unknown person. During cross-examination
by the
accused, he denied the claim that the accused ever mentioned to him
that he bought the cellphone from Poposo.
[19] The fourth state
witness, Mr. Lebokeng, testified that he was nicknamed Poposo. He
corroborated the victim’s testimony in
material respects. He
stated that he did not sell any cellular phone to the accused.
During cross-examination by the accused,
he answered that the padlock
of the victim’s house was broken. He admitted that during the
victim’s absence, he was on her
premises. However, he denied that
he was in and out of the victim’s house, as the accused had
alleged. He, once again, specifically
denied selling the cellular
phone to the accused.
[20] It
has to be repeated and stressed that the accused put it to the last
three state witnesses that he had bought the cellphone
from Poposo.
All three of them denied his allegation. All of them heard about the
accused’s explanation for the first time
in court, although they
had met the accused separately before the trial. Poposo was the
victim’s neighbour. He lived in the
same vicinity as the accused.
Although the accused was released on bail, he never confronted Poposo
before the trial about the
stolen cellphone he allegedly sold to him,
which led to his arrest and prosecution. It will also be recalled
that the accused
never put it to the victim that he bought the
cellphone from Poposo. The accused’s failure to do so for the
second time is not
without significance. He heard the victim’s
testifying that Poposo had gone to Gauteng for work. He then
reckoned that Poposo
would not be available to dispute his
allegation. When Poposo made his appearance in court, the accused
knew he was in trouble.
The testimony of Poposo completely destroyed
the opportunistic defence of the accused. His version was not only
opportunistic,
it was also fiddled with inconsistencies.
[21] In
S
v SKWEYIYA
,
supra
,
the accused did not name any specific identifiable individual from
whom he had acquired possession of the stolen goods. There
was no
direct evidence to gainsay his version that he tumbled upon such
goods unattended in the street. This is an important distinguishing

feature. In the instant case, the accused committed himself to a
specific and identifiable person. The alleged source was called.

The source gave credible and reliable evidence which showed, beyond
reasonable doubt, that the accused did not obtain possession
of the
cellphone from him.
[22] There
is proof that the accused was found in possession of recently stolen
property; that he failed to admit such possession
at the earliest
available opportunity when the victim confronted him and enquired
about the missing property; that he attempted
to shift the blame to
an innocent person and that he clearly failed to give an innocent
explanation which might reasonably be true.
The court
a
quo
appears to have painstakingly thought its way through the myriad of
the peculiar facts of this particular case. It then came to
the
conclusion that the only reasonable inference was that the accused
acquired possession of the stolen cellphone through direct

participation in the stealing which the followed the burglary.
[23] That
finding by the court
a
quo
is one which, on review, I cannot find to be wrong. To disturb that
finding would, in my view, do serious injustice to the peculiar

circumstances of this case.
S
v PARROW
,
supra
,
at 604 B – E. The nature of the stolen property is not the
decisive factor in this particular case. It is not only
inferentially
probable that the accused stole the victim’s
property, the only legitimate and reasonable inference is that he
did. The evidence
as a whole established, beyond reasonable doubt,
that the accused directly participated in the actual or original
stealing. I
would, therefore, confirm the conviction.
[24] Accordingly,
I make the following order:
24.1 The
proceedings in the district court were in accordance with justice.
24
.2 The
conviction of the accused is confirmed.
24.3 The
case is remitted to the regional court to consider and to impose an
appropriate sentence on the accused.
___________
___
M.H.
RAMPAI, J
I concur.
____________
A. KRUGER, J
/sp