Fransen v S (A256/07) [2008] ZAWCHC 26 (16 May 2008)

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[2008] ZAWCHC 26
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Fransen v S (A256/07) [2008] ZAWCHC 26 (16 May 2008)

REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO. A256/07
In the
matter of:
COLIN
FRANSEN
Appellant
and
THE
STATE
Respondent
J U D G M E N T DELIVERED THIS 16
th
DAY OF MAY 2008
Weinkove
A.J.
On 15 November 2006 Appellant was convicted on a
charge of housebreaking with intent to steal and theft in the
District Court at
Oudtshoorn.
Because of his previous convictions sentencing was referred to the
Regional Court in terms of section 116(3)(a) of Act 51 of 1977.

Appellant was sentenced to 3 years imprisonment.
Appellant appeals against his conviction:
on the grounds that there was an absence of direct evidence that he
had in fact broken into Complainant’s premises;
that the Magistrate drew an erroneous inference that Appellant had
committed the offence because he was found to be in possession
of
the stolen goods;
that the Magistrate erred in finding that the State witnesses had
corroborated one another;
that the Magistrate erred in rejecting the explanation given by
Appellant which, it is alleged, was reasonably possibly true;
and
that the Magistrate erred in basing his conviction on an
inadmissible admission made by Appellant.
The evidence showed that the home of Charlene Goliaths (“Goliaths”)
had been forcibly entered on 12 August 2006 and that 150
compact
discs (they were actually copies of discs and not the originals), 2
gold men’s rings and a cash amount of R3 000.00
was stolen
from this home. The evidence further established that Goliaths was
living together with her “husband”, Raymond
May (hereinafter
referred to as “May”).
The investigating officer, Brian Christopher Minnie (“Minnie”),
testified in the bail application and later in the trial itself.

Minnie is a senior detective employed by the South Africa Police
with some 26 years experience. He said that he knew May well
as a
person who was a vegetable hawker in the area.
On 15 August 2006 he received information from
May which led him to Appellant’s home and he said that when he
went there and told
Appellant that he believed that he had broken
into the house of his friend and stolen certain goods, Appellant
became aggressive.
Appellant had resisted questioning and tried to
stab him with a putty knife. He called for reinforcements and
Appellant was taken
to the Police Station.
He said that Appellant was warned en route to the
Police Station that he was being held in connection with a charge of
housebreaking
and theft and that anything he said could be taken down
and used against him, he was again warned at the Police Station. He
said
that May, who knew Appellant well (they had been friends), at
one stage broke down and cried in the presence of Appellant and asked
him to return the goods that he was alleged to have stolen and
promised to withdraw any charges against him if he did so. According
to Minnie and May, Appellant then admitted that he had broken into
the house and said that he was prepared to return the stolen goods.
He then took Minnie and May to his mother’s home
where he went to fetch some of the compact discs and the 2 gold
rings. He did
not return the money and Minnie said that heard May
say to him “
you couldn’t have smoked
the whole of the R3 000.00
”. In
evidence, May had said that Appellant claimed he did not have the
money because he had smoked all of it already. The reference
to
“smoke” indicated that Appellant claimed he had used it to
purchase dagga. Later, Appellant is alleged by May to have said
that
he had divided the money up among some of his friends.
Appellant’s explanation in the trial was that some unidentified
people had sold the goods to him. He claimed he paid R200.00
for
the compact discs and the rings and he knew nothing about the cash
sum of R3 000.00 which had allegedly been stolen.
Later he
changed this story and said that these goods had been pawned to him
on the basis that the persons concerned would recover
these goods
and pay him R250.00 (thereby making a profit of R50.00).
As far as Appellant’s admissions are concerned, he disputes ever
having made such admissions at all. He gives a completely different
version and says that he came into possession of these goods having
purchased them (later saying that he acquired the goods in
a pawn
transaction).
The State contends that, in the face of Appellant’s denials, the
issue as to whether he made the admissions or not is accordingly
a
question of fact to be decided by the Magistrate and does not
require a “trial within a trial” in order to determine whether
the statements were voluntarily made or not. Where an accused
person makes an admission or a confession to a police officer or
in
the presence of a police officer, the onus is on the State to prove
that that statement was freely and voluntarily made. The
Magistrate
did not make any finding as to whether the statements by Appellant
were freely and voluntarily made and, for the purposes
of his
judgment, he ignored those statements completely. In the
circumstances, it is not necessary for this Court to determine
the
status of these admissions. I will also ignore them for the
purposes of this judgment.
The Magistrate found that Appellant was a most
unsatisfactory witness. His explanations were improbable and far
fetched. He noted
that Appellant at no stage questioned Minnie as
to who the “friend” was whose home he is alleged to have broken
into. Nor
did he question Minnie as to what the goods were that he
is alleged to have stolen. It is common cause that when these
statements
were made to him by Minnie.
The Magistrate found that the whole story of
having purchased the goods and then later alleging that he had taken
the goods in a
pawn transaction was unsatisfactory and palpably
false. Furthermore, it seems to me highly unlikely that Appellant,
who claims
to have been a signwriter, would have had the money to
purchase goods of this nature. The compact discs themselves were
computer
made copies and of little, if any, commercial value. The
rings would appear to be gold, but it is unlikely that Appellant had

the expertise to know whether the rings were gold plated or solid
gold. He gave no evidence in this regard. Appellant claims that
he
had written signs for May to advertise his vegetables at his stall.
This is hardly the kind of business that would have placed
Appellant
in a position to make a reasonable living let alone have sufficient
spare funds to run a pawn broking or money lending
business.
The Magistrate also observed that Appellant had
stated in evidence that his sister was present when Minnie stormed
into his home
and made the accusations concerning the housebreaking
charge. He alleged that his attack on Minnie was provoked because
Minnie
had proceeded to make an unauthorised search of his property.
All of this was denied by Minnie, but the presence of Appellant’s
sister in the room was never put to him or May in cross-examination
and the sister was never called as a witness to corroborate
Appellant.
As far as the State witnesses are concerned, the
Magistrate held that they had corroborated each other in all material
respects.
This finding is well supported in the transcript of the
evidence.
The Magistrate also observed (and correctly so)
that if in fact the goods were stolen by somebody else, they would
have also acquired
possession of the R3 000.00 in cash. It
would make no sense whatsoever for them to expose themselves to
arrest or identification
by trying to pawn the discs and the rings
to a stranger for a mere R200.00.
I am furthermore in agreement with the Magistrate’s observation
that if Appellant had innocently acquired possession of the compact
discs and rings, he would have volunteered the information much
earlier, particularly when he realised, or must have realised,
that
the person who was the victim of the robbery was his good friend,
May.
In his judgment, the Magistrate rejected Appellant’s explanation
for his recent possession of the stolen goods and convicted
him on
the housebreaking and theft charge. This raises the question
whether a person can be convicted of housebreaking and theft
based
on his recent possession of the stolen goods and his inability to
furnish an acceptable explanation for his possession.
In the case of
R.
v Gentleman
,
1919 CPD p.245
a Full Bench of this Court held that being in possession of recently
stolen property may be evidence not only of theft but also of
housebreaking with intent to steal. In that case, the accused was
found to be in possession of missing articles from premises which
had
been broken into. It was argued that there was no evidence of
housebreaking with intent to steal because mere possession of
the
stolen property, although evidence to show that a theft was
committed, was not evidence to show that the accused was also guilty
of housebreaking with intent to steal.
The Court found that in a case such as the
present, a person found in possession of another person’s property
which had recently
been stolen can be guilty of theft and that same
inference of his possession of another’s property can also be
applied in determining
that he had also committed the housebreaking.
The Court considered a number of previous
authorities and the Roman Dutch writers to the effect that in a case
such as the present,
the law allowed the conviction not only of theft
but of theft accompanied by violence or housebreaking, so to speak a
“qualified”
theft.
The case of
R. v
Gentlemen
has been followed in a
number of other decisions, including a Full Bench decision of the
Orange Free State in the case of
R.
v van Vurren & Another
,
1959 (2) SA p.46
and in
S.
v Screech
,
1967 (2) SA p.407
at
p.409
, Eksteen, J. confirmed a long
line of decisions dating back to
R. v
Gentleman (supra)
, Eksteen said:
“
Where an accused person charged with
housebreaking with intent to steal and theft is found in possession
of recently stolen goods
and he fails to explain his possession, or
if he does explain his possession and his explanation is disbelieved,
a presumption of
fact may, in all the circumstances of the case,
arise that he stole the goods, and a court might be entitled to
convict him of theft
on such evidence (cf.
R.
v. Kulamo,
1930 A.D.
193
at p.213). As was pointed
out in
R. v. Nxumalo
,
1939 A.D. 580
at p.587, this result follows not because of any rules
of law relating to the matter but simply from the logical inferences
which
are to be drawn from the facts of the case. Where, therefore,
this line of reasoning may compel a court to come to the conclusion
that the accused who was found in possession of the recently stolen
property is guilty of theft, it may equally lead to the conclusion
that he is the person who broke into the house with intent to steal.
”
For the reasons set out above, I consider that
Appellant was rightly convicted and that the criticisms of the
Magistrate’s judgment
are unfounded. The Magistrate did not rely
on the admissions made by Appellant. He relied on Appellant’s
false explanations
for his possession. The State witnesses did
corroborate each other and Appellant was a most unsatisfactory
witness. His explanation
was far fetched, improbable and palpably
false. The Magistrate effectively based his judgment not on any
admissions made by Appellant
but on “
the
logical inferences which are to be drawn from the facts of the case
”
taken together with Appellant’s false explanations.
In the result, I would dismiss the appeal against the conviction.
Insofar as sentence is concerned, the State
correctly points out that leave to appeal against sentence was
neither requested nor
granted. Notwithstanding the aforegoing, this
Court is seized with the matter and the question of sentence has
been argued on
Appellant’s behalf. In my view, the sentence is
appropriate and, having regard to Appellant’s long list of
previous similar
convictions, I do not think that this Court should
interfere with that sentence on any of the grounds submitted on
Appellant’s
behalf. In the result, I would also confirm the
sentence imposed.
________________________________
Weinkove,
A.J.
I agree. The conviction and the sentence are confirmed.
____________________________
E. Moosa, J.