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[2008] ZAWCHC 280
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De Jongh v S (A87/08) [2008] ZAWCHC 280 (31 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A87/08
In
the matter of:
MOHAMMED
DE JONGH
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON 31 OCTOBER 2008
GAMBLE
AJ
:
[1]
In February 2007 the Appellant appeared before the Regional
Magistrate, Wynberg, on a charge of theft of a motor vehicle. On
22
May 2007 he was duly convicted as charged and sentenced to 5 years
imprisonment.
[2]
The Appellant appeals now against both conviction and sentence with
the leave of the trial court. The State has indicated in
its heads of
argument that it concedes the appeal.
[3]
At the trial, the State called two witnesses, the owner of the car in
question and the police officer who arrested the Appellant.
The
Appellant testified in his defence.
[4]
Omar Sait, the owner of the motor vehicle, testified that at about
02h00 on 28 August 2006 he parked his Honda Ballade in the
street
outside his home in Lavender Hill in the suburb of Retreat. He awoke
the next morning to find it gone. The car was returned
to him by the
police a month later
[5]
Captain Larkin testified that he was a member of the police Dog Unit
with 21 years experience. At about 02h35 on 29 August 2006,
and while
on duty, he received a call from radio control informing him that the
police were involved in a car chase in Retreat.
[6]
Captain Larkin hastened to the scene where he encountered a certain
Inspector Erasmus and Constable Gordon standing next to
the white
Honda Ballade belonging to the complainant. They informed him that a
suspect had run into a yard nearby.
[7]
Captain Larkin searched the yard and found the Appellant hiding in an
outside toilet a mere 25 metres from the vehicle. He appeared
nervous
and his heart was beating fast The police officer arrested the
Appellant and took him back to the car where Erasmus and
Gordon
allegedly identified the Appellant "as the one who jumped out of
the vehicle and ran."
[8]
Under cross-examination, Captain Larkin conceded that he could not
himself identify the Appellant as the driver of the stolen
motor
vehicle and relied on the say-so of the other police officers in this
regard. He was also unable to deny the Appellant's
version that he
had been a passenger in the car and that he had jumped out and run
away because he was in possession of drugs.
[9]
After the completion of Captain Larkin's evidence the State requested
a postponement to enable it to properly subpoena Erasmus
and Gordon.
(The prosecutor informed the Court that the subpoenas that had in
fact been issued had only been served a week before
and she did not
consider it appropriate to request arrest warrants in those
circumstances).
[10]
The Appellant's legal representative strenuously opposed any further
postponement, citing earlier delays in the matter which
were not of
the Appellant's making and noting that he had been in custody since
August 2006. The Court refused the postponement
and since the State
was not in a position to proceed, the Court deemed its case to have
been closed.
[11]
The Appellant then gave evidence and told the Court that he earned a
living as a pimp and drug-dealer. On the evening in question
he took
a lift with two friends (Wonky and Ougat) in the white Honda Ballade
for the purposes of purchasing drugs in Claremont
so as to augment
his stocks. On the way the car was chased by the police and
eventually brought to a halt. While they were being
chased the driver
of the Honda told the Appellant that the vehicle was stolen.
[12]
When the car came to a stop in a dead-end street the Appellant said
he jumped out and ran, throwing away a packet of drugs
in the
process, his concern being that he would be found in possession
thereof. He confirmed that he was apprehended in the toilet
by
Captain Larkin.
[13]
The learned Regional Magistrate rejected the Appellant's evidence as
unreliable and false and went on to find that the circumstantial
evidence was sufficient to justify his conviction.
[14]
I
have
considered the evidence and with respect
I
am
unable to agree with the learned Magistrate.
In
the
absence of the testimony of Erasmus and Gordon there was simply not
enough evidence before the Court to gain-say the Appellant's
version
that he was not the driver of the vehicle. His evidence that he was a
passenger and that he only learned that the vehicle
had been stolen
once the car-chase began can also not be refuted. The State, in my
view, therefore correctly conceded the appeal.
[15]
In such circumstances, I am of the view that it cannot be said that
the Appellant's version before the learned Magistrate was
not
reasonably true and that he was entitled to his acquittal.
[16]
It is indeed regrettable that the learned Magistrate did not afford
the State a postponement to enable it to place all of the
relevant
evidence before the Court. If one has regard to the Appellant's long
list of previous convictions one sees that he is
a person who has a
definite predilection for motor theft. The Magistrate's refusal of
an indulgence in the present case may well
have the result that a
serial offender is permitted to return to his old ways.
[17]
In my view the conviction cannot stand and I would accordingly uphold
the appeal and set aside the conviction and sentence.
P
A L GAMBLE
MOOSA
J:
I
agree, it is so ordered.
MOOSA
J