Ndayi v S [2002] ZAFSHC 11 (12 September 2002)

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[2002] ZAFSHC 11
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Ndayi v S [2002] ZAFSHC 11 (12 September 2002)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No.: 163/2001
In
the appeal between:
JOSEPH
NDAYI
Appellant
and
THE
STATE
Respondent
CORAM:
CILLIé
et
MUSI, JJ
HEARD ON:
9 SEPTEMBER 2002
JUDGMENT
BY:
MUSI,
J
DELIVERED ON:
12 SEPTEMBER 2002
[1]
The appellant, a 32 year old man, was on 25 April 2001 convicted by
the Regional Court at Kroonstad of theft of a motor vehicle
and
sentenced to four years imprisonment. He appeals against both the
conviction and sentence.
[2]
The evidence led on behalf of the State was briefly as set out
hereunder. The complainant testified that he and the appellant
had
been relatively close and on good terms, the appellant being his
ex-pupil and having been on the council of the school at which
the
appellant was a teacher in Maokeng, Kroonstad. They had often
travelled together in the complainant’s car and the appellant
would
sometimes drive but only in the complainant’s presence. On a
certain day in May 1998 the two had been travelling together
when the
vehicle stalled. There was something wrong with the petrol pump which
they could not fix and because it was late at night
they parked it at
a Trek filling station and walked to the complainant’s home where
they both slept. The appellant had indicated
that he would go and
check on the vehicle the following day to see what the problem was.
The following day the complainant went to
his school and left the car
keys with the appellant. Later that morning at about 10:00 the
appellant arrived at the complainant’s
school driving the car. The
complainant then instructed the appellant to take the car to his
home, park it there and then he could
go around and get quotations
for a new petrol pump. That was the last time that the complainant
saw the appellant and his car. He
had, however, learned from his
mother and daughter that the appellant had been there, but then drove
away indicating that he would
pick up the complainant at a soccer
field. The following day when the appellant had still not shown up
the complainant laid charges
of unauthorised use of the vehicle with
the police. As appears from other evidence this was on 13 May 1998.
After some time when
the appellant failed to turn up the charges were
converted to motor car theft. The next that the complainant saw his
vehicle was
during June 2000 at a scrapyard in Harrismith where he
had been taken by the police. It was a scrap. It had apparently
capsized.
[3]
Sergeant Magadlela’s evidence is to the effect that he took over
the investigation of the case on 30 May 1998. He confirmed
that the
complainant had initially laid charges of unauthorised borrowing of
the motor vehicle, but that these were later changed
to car theft
when the appellant could not be traced. He had for a long period
unsuccessfully tried to trace the appellant. The appellant
only
showed up after more than a year. The appellant informed him of the
whereabouts of the vehicle and took Sergeant Magadlela to
Harrismith
where the vehicle was found in the scrapyard. It was a scrap and both
the engine and the gearbox had been removed, but
these were found. He
had also followed up allegations made by the appellant that the
vehicle had been stolen at Emilio Hotel in Welkom
and that the theft
had been reported at the local police station. He could find no trace
of such a report and pointed out that the
police would have recorded
the report and immediately circulated the vehicle as stolen. In the
event, this particular motor vehicle
was only circulated after a long
time when it could not be found. Nor did the complainant ever report
to him as investigating officer
that the appellant reported the
alleged theft to the complainant. On the allegation by the appellant
that the police would have told
the appellant where the vehicle was,
Sergeant Magadlela was adamant that the police did not know that nor
could the appellant give
the name of the police who would have had
such knowledge. It is the appellant who informed him of the vehicle’s
whereabouts. Sergeant
Magadlela also testified that he had got hold
of the register of the accident in which this vehicle was damaged
from the police at
Harrismith and found that the driver and his
occupants had given false addresses and could not be traced.
[4]
The version of the appellant was that he had been instructed by the
complainant to drive around with the vehicle to look for parts
that
were needed in order to repair the vehicle for purpose of a
roadworthy test; that he had quarelled with his wife that same day
as
a result of which he decided to sleep out and booked himself at the
Emilio Hotel in Welkom where the complainant’s vehicle was
stolen
that same night; that he had attempted to report the theft to the
police but was told to first get hold of the owner; that
he had
contacted the complainant and informed him telephonically of the
theft. He said that he learned from the police at Kroonstad
of the
whereabouts of the vehicle and denied that he took Sergeant Magadlela
to the scrapyard where the vehicle was found. He made
contradictory
statements as to how he got hold of the vehicle. But then there are
so many contradictions and improbabilities in his
evidence that the
magistrate branded him a consummate liar. The magistrate puts it this
way:
"Daar
is net een woord om die beskuldigde as getuie te beskryf, en dit is
‘n absolute leuenaar, huiwer die Hof nie om sy getuienis
van hoe
die voertuig weggeraak het in totaliteit te verwerp nie."
That
statement is fully justified and there is no need to consider the
appellant’s evidence any further.
[5]
The question remains, however, whether on the evidence of the State
theft has been established. The learned magistrate’s conclusions
in
this regard appear in one paragaph in the whole of the judgment:
"Tevrede
dat hy die persoon is wat daardie voertuig gesteel het, verwerp ek sy
weergawe en bevind die Hof dat op 13 Mei 1998
hy die klaer se
voertuig hier te Kroonstad gevat het sonder toestemming en dat hy die
voertuig gesteel het, word die beskuldigde
SKULDIG
BEVIND SOOS AANGEKLA
."
[6]
In current South African law theft is defined as an unlawful and
intentional appropriation of a movable corporeal property. C.R.
Snyman,
Criminal Law
,
4th Ed. at p.469
et seq
elaborates on the different components of this basic definition, that
is the elements of the crime, in relation to the different
types of
theft. J.R.L. Milton,
South
African Criminal Law and Procedure
,
Vol.2, 3rd Ed. states the following at p.617:
"In
South African law it is not sufficient that the accused intentionally
effected a
contrectatio
of the property. In order for there to be the
mens
rea
of theft the
contrectatio
must be accompanied by an intention permanently to deprive the owner
of the benefits of his ownership."
The
pertinent question is whether it has been shown that the appellant
had the requisite intention to permanently deprive the complainant
of
his motor vehicle.
[7]
There is no evidence that when the appellant initially drove away in
the vehicle contrary to the complainant’s instructions
he had any
intention to appropriate it for himself. Nor can such an intention be
inferred from the circumstances of this case. The
probability is that
his aim was only to use it and he drove it to Harrismith with the
intention to return it later, but then the
unexpected happened and he
capsized with it. The fact that he thereafter failed to contact the
complainant and abandoned it does
not take the matter further. He
would have had a guilty conscience knowing that he had no permission
to use the vehicle and that
would explain why he avoided the
complainant. If he had any intention to deprive the owner permanently
of the vehicle, he could have
sold the engine and the gearbox. There
was no basis for a verdict of theft.
[8]
Ms Caarsten, who argued the appeal on behalf of the appellant,
contended that the competent verdict of unauthorised borrowing
in
contravention of section 1(1) of the General Law Amendment Act No.50
of 1956 could not be returned in this case and she cited
R
v DUNYUA
1961 (3) SA
644
(O).
Now
DUNYUA
is on the facts distinguishable from the instant case. There the
accused had obtained permission to go to Glen but instead of
returning
he undertook a five day visiting trip to Bloemfontein. His
appeal was upheld because it was found he had permission to use the
bicycle.
In the instant case the appellant had no permission to use
the vehicle. The evidence of the complainant was direct on this
point,
namely that the appellant was to leave the vehicle at his
place.
[9]
The problem, however, lies in another element of the offence created
by section 1(1) aforesaid, namely interpretation of the phrase
"removal of the property from the control of the owner".
DUNYUA
interpreted the word "control" to mean physical control or
possession. The offence could therefore not be committed if
having
removed the property with consent the accused later decides to put it
to his own use without permission. See Milton,
South
African Criminal Law and Procedure
Vol.3 Chapter J4 at p.3-4 and the cases cited there. In terms of this
interpretation of section 1 aforesaid, the appellant could
not be
convicted since he had removed the vehicle from the control of the
complainant with consent and only applied it to his own
use later
when it was no longer under the control of the owner.
[10]
The Supreme Court of Appeal has, however, said the last word on the
matter. It has held in
S
v RHEEDER
[2000] ZASCA 127
;
2001 (1)
SA 348
(SCA)
that the word
"control" has a wider connotation than just physical
detention or possession. The position was stated as
follows at
358F-H
:
"Dit
vereis volkome beheer, dws liggaamlike besit met gepaardgaande
geoorloofde seggenskap oor die voertuig ingeslote (in die
geval van
iemand anders as die eienaar) die reg of vergunning om dit te kan
gebruik of te kan laat gebruik, hetsy vir ‘n bepaalde
doel of na
goeddunke. Waar iemand anders as die eienaar dus ‘n artikel in sy
liggaamlike besit het, is die aard van die artikel
en die
omstandighede rakende sodanige besit lotsbepalend of daar beheer oor
die artikel is soos in art 1(1) beoog. Tensy anders ooreengekom,
sou
die werktuigkundige aan wie ek my voertuig toevertrou om te versien
word alleenlik "beheer" daaroor hê vir soverre
dit nodig
mag wees om die versiening te doen en vir aangeleenthede redelik
bykomend daartoe. Sy "beheer" sou hom nie toelaat
om die
voertuig vir sy eie doeleindes te gebruik nie of om ander te
veroorloof om dit te gebruik nie. Enige ongeoorloofde gebruik
buite
die omvang van sy ooreengekome "beheer" sou myns insiens op
‘n oortreding van art 1(1) neerkom."
I
hold therefore that by entrusting his vehicle to the appellant for
purpose of its being taken home, the complainant did not thereby
relinguish his overall control over the vehicle. The appellant’s
control was only for the purpose of delivering it to the
complainant’s
home. The requirements of the section have therefore
been met and the appellant was guilty of the competent verdict of
unauthorised
use.
[11]
Regarding sentence section 1(1) aforesaid empowers the court to
impose "any penalty which may lawfully be imposed for theft".
The conduct of the appellant was reprehensible throughout. Not only
did he breach the trust that the complainant had in him as an
ex-pupil of his, he also showed no remorse at all and went about
fabricating lies to conceal his wrongdoing. He even tried to drag
the
police into the mud by imputing negligence to them when he claimed
that they failed to attend to such a serious complaint as
car theft.
He caused the complainant loss of the vehicle that he had recently
bought so that the complainant’s R7 000,00 went down
the drain and
yet he has no regrets about it. I note also that although the
appellant had no record of previous convictions when
he was
sentenced, he was in fact not a first offender for he was serving a
term of correctional supervision. Having taken into account
all the
relevant factors, I am of the view that three years imprisonment
would be an appropriate sentence.
[12]
In the result the appeal succeeds in part and the conviction and
sentence imposed are set aside and replaced with the following:
The accused is found guilty of
contravention of section 1(1) of Act 50 of 1956 and is sentenced to
three (3) years imprisonment. The
sentence shall be deemed to have
been imposed on 25 April 2001.
H.M.
MUSI, J
I
CONCUR
C.B.
CILLIé, J
On
behalf of Appellant:
Adv. T. Caarsten instructed by UFS Legal Aid Clinic
On
behalf of Respondent:
Adv. C.A. van der Merwe
instructed by The Director: Public Prosecution