S v Johnson (CA&R 91/06) [2006] ZANCHC 65 (8 December 2006)

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[2006] ZANCHC 65
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S v Johnson (CA&R 91/06) [2006] ZANCHC 65 (8 December 2006)

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No
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CA&R 91/06
Date delivered: 08/12/2006
PAUL
JOHNSON APPELLANT
versus
THE
STATE RESPONDENT
Coram
:
LACOCK J
et
MOKGOHLOA
AJ
JUDGMENT
ON APPEAL
MOKGOHLOA
AJ:
The
appellant was convicted on 18 November 2005 in the Regional Court
held at Douglas of housebreaking with intent to steal and
theft and
sentenced on the same day to 5 (five) years imprisonment. Appellant
was unrepresented. He now appeals against his conviction
with leave
of the Court.
The
appellant’s grounds of appeal as they appear in the Notice of
Appeal are as follows:
“
AD:
CONVICTION
The learned regional
magistrate erred in finding that the state
had
proved its case on
charge
one
against accused number 2
beyond
a reasonable doubt.
The
court erred in holding that it is the 2
nd
accused who
committed the actual
housebreaking to the exclusion of any
other
possibility that someone else could have done so. Except
the
said items in Exhibit ‘B’ that were found in accused 2’s place
some
few days after the actual housebreaking, there is no other
evidence
that shows that only the accused could have broken into
the
said premises.
The court erred in holding
that the bedding items, in particular the
duvet cover, fitting sheet,
and the nightfrill are of a special material
despite
the fact that those material were never produced in court
to
ascertain the quality of their making. The court readily accepted
the
testimony of the complainant in this regard as true without any
further
corroboration of such testimony.
The
court failed to consider it as strange, as 2
nd
accused also did
put it to the complainant,
that he (the accused) chose to keep only
one duvet
set of the three sets stolen from the 1
st
complainant’s
property, but failed to take
also the pillow cases purportedly stolen
along
the items listed on Exhibit ‘A’.
The court erred in holding
that even if it may be arguable that the
duvet set was of a special
material, which is in fact arguable, that
nevertheless there are
other factors in the case that shows that
the accused is the
culprit, including the similarities of the three
pieces that make the
duvet set, the fact that there was no indication
on
how the nightfrill was going to be used, and also the apparently
questionable
way that the accused got hold of the said items.
The
court erred in failing to consider the version of the accused as
reasonably and possibly
true, particularly in the fact that there were
no
distinct marks on the said items upon which a conclusion could
be made
that they belonged to the complainant.
”
The
evidence of the state is that on 8 January 2004 Mr du Raan’s lapa
was broken into and certain items were stolen. On 14 January
2004
the following items belonging to Mr du Raan were found at the
appellant’s house i.e:
a
blanket,
a
duvet cover,
a
sheet, and
a
night frill.
The
appellant does not deny that these items were found at his house but
he says that he bought same from a street vendor in town.
This
evidence was corroborated by the appellant’s wife Shernette Klein.
That he paid R300.00 for the duvet set and R50.00 for
a blanket.
The
onus of proving that the appellant is guilty of housebreaking with
intent to steal and theft remains on the prosecution. If
the
appellant fails satisfactorily to explain his possession, he may
still be entitled to an acquittal if the Court is not satisfied,
looking at all the evidence, that his guilt has been proved. See
S
v Rama 1966(2) SA 395 (A)
.
It was held in
S
v V 2000(1) SACR 453 (SCA) at 455
that:
“
It is
trite that there is no obligation upon an accused person, where
the State bears the onus, to
convince the Court. If his version is
reasonably
possibly true he is entitled to his acquittal even though
his
explanation is improbable. A Court is not entitled to convict
unless
it is satisfied not only that the explanation is improbable but
that
beyond any reasonable doubt it is false.
”
In
the present case the appellant gave an explanation which, in my
view, is reasonable. Both Mr du Raan and Sergeant Germishuys
conceded that the blanket found in appellant’s house, alleged to
be Mr du Raan’s can be purchased from any chain store. None
of
the State witnesses could dispute the fact that the accused bought
these items from a street vendor. No evidence was presented
to
suggest that the appellant broke into the complainants’ house and
stole those items. I therefore cannot find any reason why
the
appellant’s explanation should be rejected in these circumstances.
In
the light of what I have said about the conviction, it follows that
the sentence cannot stand as well.
I therefore make
the following order:
The appeal
succeeds.
Both the
conviction and sentence are set aside.
______________
FE MOKGOHLOA
ACTING
JUDGE
NORTHERN CAPE
DIVISION
I
concur and it is so ordered:
____________
H LACOCK
JUDGE
NORTHERN
CAPE DIVISION