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[2002] ZAWCHC 77
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Kote v S (A354/2002) [2002] ZAWCHC 77 (13 September 2002)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A354/2002
DATE
:
13
SEPTEMBER 2002
In
the matter between:
DERECK
KOTE
Appellant
and
THE
STATE
Respondent
JUDGMENT
(Appeal against Conviction and Sentence)
MOTALA,
J
The
appellant and two others were charged in the Court a
quo
with
the theft, on 31 January 1997, of a motor vehicle. All three accused
pleaded not guilty. One of the accused, accused number
2 at the
trial, was discharged at the end of the State case. Appellant and the
other accused, Christo Bell, were found guilty and
sentenced to seven
years imprisonment each.
Appellant
appeals against both the conviction and the sentence. The salient
facts relevant to whether appellant was guilty or not
were not in
dispute, either at the trial or before us They are as follows:
The
complainant's vehicle, a red Ford Escort XR3, was stolen sometime
between 7.00 am and 4.00 pm on 31 January 1997. The complainant
asked
a friend, Gavin Williams, to be on the lookout for the car. On 4
February 1997 Witliams went to a place where, to his knowledge,
Fords
are regularly dealt in. There he concluded an agreement with Belt in
terms of which he agreed to buy the body of a red Ford
Escort.
Williams suspected, quite rightly, as other evidence proved, that the
body was that of the complainant's car. He advised
the police and
told the police that he was going to tow the car the next day and
told the police of the route he was going to follow.
The next day
Williams went with Bell, as arranged, to the residence of the
appellant, where the vehicle was parked and towed it
away. Along the
route they were stopped by the police, who had been waiting for them,
as arranged with Williams. Bell was in the
Escort, sitting on a box
as the seats had been removed. He was steering the wheel with a vice
grip as the steering wheel had also
been removed. The police then
went to the appellant's premises. There the police found,
inter
alia,
that
the wheels of the stolen car were mounted on a black panel van
belonging to the appellant. They found also that the seats and
other
parts of the stolen car had been transferred to a car belonging to
Bell's brother. The seat in Bell's brother's car were
in appellant's
van.
Appellants
version is that he was asked by one Kritzinger, whom he knew for
about a year, to park the vehicle on his premises, as
it was not in
order and he had to push it in and out of his premises each day in
order to allow the other members of his family
to enter or to leave
the premises. Kritzinger told him he could not afford to pay for the
parking, but appellant could swap the
wheels of the car with the
wheels of his van and that a mechanic would come to the premises to
repair the car. According to appellant
two or three days later Bell
carne to work on the car. He came on two or three days, during which
times he virtually stripped the
car of many of its parts.
On
5 February, the car was towed away as testified to by Williams.
According to appellant, the car was towed away so that it could
be
worked on on a better surface than the surface in his yard from which
it was difficult to retrieve things like screws which
had fallen.
The
Magistrate concluded that the version of the appellant was not
reasonably and possibly true. His reasons for coming to that
conclusion are set out in his judgment, at page 226, and need not be
repeated here. There are in fact many other reasons for
rejecting
appellant's evidence, but I do not find it necessary to set them out.
The magistrate applied the doctrine of recent possession
and in my
view he was correct in doing so On appellant s own version, even
overlooking the mistake he made in saying that the vehicle
was there
for about a week, and on the undisputed facts of this case, that the
vehicle was stolen on 31 January and was on his
premises for several
days before being towed away
f
he must have taken possession of the vehicle, either on the day it
was stolen, or soon thereafter. He was clearly in possession
of
recently stolen property, and was required to give an innocent
explanation therefore i.e an innocent explanation which was
reasonably and possibly true. In my view, as I have already
indicated, he failed to do so.
I
turn
now
to the question of sentence. It is trite that sentencing is a matter
for the discretion of the trial court. In my view, the
magistrate has
not misdirected himself in any way, nor does the sentence induce a
sense of shock. The appellant has many previous
convictions for
offences involving dishonesty, including one for robbery, for which
he was sentenced to six years in jail. He was
released on 5 April
1991. The following year he again committed theft - of goods to the
value of R6 000. On 4 November 1992 he
was sentenced to three years
imprisonment, two years of which was suspended for five years on
condition that he was not
convicted of theft during
the period of suspension, which means that he committed this
offence when the period of suspension
had not expired.
Although
a sentence of seven years is a severe sentence I cannot find in the
circumstances of this case that the magistrate erred
in imposing a
sentence of seven years.
I
would accordingly
DISMISS
THE APPEAL AND CONRRM THE CONVICTION AND THE SENTENCE.
MOTALA,
J
WILLIAMS,
AJ
:
I agree, and it is so ordered.
WILLIAMS,
AJ