S v Makhendwane (1140/2005) [2005] ZAFSHC 136 (6 October 2005)

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[2005] ZAFSHC 136
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S v Makhendwane (1140/2005) [2005] ZAFSHC 136 (6 October 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 1140/2005
In
the case between:
THE
STATE
and
ANNA MAKHENDWANE
JUDGEMENT:
WRIGHT, J
_____________________________________________________
DELIVERED ON:
6 OCTOBER 2005
_____________________________________________________
[1] The
accused was found guilty of theft of R200,00 and sentenced to a fine
R800,00 or five (5) months imprisonment. She is a 43
year old female
and first offender.
[2] There was only one
witness for the state and it is clear from the judgment of the
magistrate that he was never evaluated as a
single witness. The
accused herself gave evidence and also called a witness who
corroborated her evidence to a certain extent.
What is more, it
seems that the accused was never cross-examined by the prosecutor.
It was never put to her that she was giving
false evidence.
[3] When the accused
asked the state witness whether he had seen her take the money from
the people who come to the shop and that
she had worked with him for
years, helping him and also asked him why she could not do that, he
answered that she was talking about
things of previous days. In this
respect, his evidence is unsatisfactory. For some or other reason
the magistrate says the following
in his judgment:
“
It is also not in dispute that
Accused does not have the authority in any transactions within the
business. Is not even allowed to
have access into and enter behind
the counter. She’s at all not permitted to assist in the shop.”
This
is in fact not common cause and the magistrate’s finding to this
effect, ignores the evidence of the accused.
[4] The magistrate was
asked the following question by the the reviewing Judge:
¡°
Why
was the accused’s evidence that she took the money because of the
assistants dealing only to hand it to her husband, rejected?”
In
his reasons the magistrate set out that according to him the R200,00
concerned was for all material times in the possession of
the accused
and that she did not part with it. The finding ignores the accused’s
evidence that she already wanted to give it back
the same day but it
was not accepted. She also says the following:
“
.. I put the money on the counter
and I explained to him I’m sent here to come and give you this
money. I went outside and started
to do my job, so I don’t know
what has he done and I gave him the money after he had refused it
twice to take this money.”
The
magistrate’s reasons therefore can not be accepted as there is no
reason whatever not to accept the evidence of the accused.
The
magistrate’s argument that it is improbable that the owner of the
shop would not take the money belonging to his business,
takes the
matter no further as it is clear, if the accused’s evidence is
accepted, that he did not want to take the money in any
case probably
because he wanted to discredit her.
At the best for the
state, there are two contradicting versions and the state has to
prove the guilt of the accused.
[5] In
paragraph 9 of the magistrate’s reasons he states the following:
“
The accused bears no onus of proof.
Her version or evidence only has to be reasonably possibly true.
The latter would have been
satisfied had she at least called Mr Sotho
to confirm that she approached him to hand the R200,00 over and why
the latter would not
take it. This failure also was thus devastate
to the defence case.”
The first two sentences
of the above are correct. It was however the state’s duty to call
Mr. Sotho as it had the onus of proof
and if there was doubt with
regard to the matter the accused should receive the benefit of the
doubt.
[6] There was therefore
no reason to reject the accused’s evidence which was not disputed
by cross-examination and therefore no
reason to convict the accused.
[7] The
sentence is also excessive in view of the circumstances of this
matter.
[8] The conviction and
sentence is therefore set aside and it is ordered that the accused
must be immediately released from imprisonment.
_____________
G.F.
WRIGHT, J
/EM