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[1990] ZASCA 99
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S v Van Der Westhuizen (527/88) [1990] ZASCA 99 (21 September 1990)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE OIVISION
)
In the appeal of:
A J VAN DER WESTHUIZEN
Appellant
versus
THE STATE
Respondent
CORAM
: NESTADT JA,
NICHOLAS et NIENABER AJJA
DATE OF HEARING
: 17 August 1990.
DATE OF
JUDGMENT
: 21 September 1990
JUDGMENT NICHOLAS
AJA:
In 1986 Mr Albertus van der Westhuizen was a
detective warrant-officer in the South African Police. He was attached to the
CID at
the Milnerton police station in
2
the Cape. On Saturday 8 March 1986 he was investigating a
charge of theft of gold rings against Miss Lewona du Plessis. In the course
of
his investigation he went with her to Gold Coin Jewellery Exchange, a jewellery
shop in the Golden Acre in Cape Town. They drove
in a police patrol car and they
were accompanied by Constable Delport, a uniformed policeman stationed at the
neighbouring Table
View police station. Van der Westhuizen had arrived there
asking for someone to accompany him because, he said, he had a woman with
him
and he could not drive alone with her, and Delport had volunteered. They were
busy with inquiries in the shop when a coloured
man entered and offered a ring
for sale. When asked, he was unable to produce any form of identification and he
left the shop. At
Van der Westhuizen's behest, Delport went after the man and
brought him back and searched him. He found a gold ring with five diamonds
on
his right hand little finger; in his left
3
trouser pocket a pair of gold earrings and a single gold earring; round
his neck a necklace with a pendant containing a white stone;
in his fob-pocket
another pendant with a pearl drop; in his right pocket a string of pearls and a
rose-shaped brooch; and in his
back trouser pocket a red purse containing R91
consisting of four RlO notes, two R20 notes, a R5 note and three R2 notes.
The man gave his name as David Pienaar. Van der Westhuizen was not satisfied
with his account of his possession of the goods and decided
to investigate
further. He drove to Cape Town police station, with Delport sitting next to him
and Du Plessis and Pienaar sitting
at the back of the car. Van der Westhuizen
first questioned Pienaar in the yard of the police station and then went into
the charge-office
where he perused the register of criminal cases to see if
there were any charges of picking of pockets or a charge of theft which
might be
connected with
4
the jewellery. Finding none, he took Pienaar out and, in the course of
questioning him, assaulted him, in an attempt to force him
to speak the truth.
Pienaar then told Van der Westhuizen that he had got the jewellery from a
coloured man at Belville station where
they had robbed a white woman. Van der
Westhuizen brought Pienaar back to the patrol car. He asked Delport if he had a
pair of handcuffs,
which he did not have. But Delport took out from the back of
the car a piece of thick rope with which he tied Pienaar's hands in
front of him
and passed the rope around his neck. The party (comprising Van der Westhuizen,
Delport, Du Plessis and Pienaar) then
set off for Belville.
At Belville police station Van der Westhuizen first telephoned the railway
police to enguire whether any relevant cases had been reported
during the
previous month. The answer was negative. He then took Pienaar to the detectives'
office at Belville and interrogated him
in the
5
presence of Det. Sgt. Horn. Pienaar's hands were tied behind his back
and Sgt. Horn assaulted him, in order to get Pienaar to come
out with the truth.
Pienaar then said that he had taken the jewellery at a house in Pinelands where
a medical doctor lived.
They drove to Pinelands, where Van der Westhuizen spoke to Dr Brink. She
identified Pienaar as a man who had worked for a contractor
which had in April
of the previous . year erected a glass door on her patio. Van der Westhuizen
showed her the jewellery, but she
said that nonê of it was hers. En
route
back to Table View, Van der Westhuizen stopped his vehicle under a
bridge at the Black River Parkway. He told Delport that he could
prove nothing
and that he was going to let Pienaar go. He instructed Delport to return to
Pienaar R30,00 of the money taken from
the latter, which Delport gave him,
together with the red purse. At the request of the accused, Du Plessis untied
Pienaar.
6
They then drove on, leaving Pienaar behind. The jewellery and the
balance of the cash (R61 ) were retained. Van der Westhuizen did
not issue
Pienaar with a receipt for the seized goods and otherwise failed to comply with
regulation 328 (1) of the Police Standing
Orders, which provides as follows:
"Wanneer 'n lid ingevolge hoofstuk 2 van die Strafproseswet, 51 van 1977, besit
neem van of beslag lê op enige eiendom, dit
wil sê enigiets ten
opsigte waarvan 'n misdaad werklik of vermoedelik gepleeg is of wat moontlik
bewys kan lewer dat 'n misdaad
gepleeg is, of wanneer dit vermoedelik bedoel was
om 'n misdaad te pleeg, moet hy besonderhede daarvan in sy sakboek aanteken en
aan die persoón van wie hy dit geneem het of 'n ontvangsbewys daarvoor
gee of hom die aantekening in sy sakboek laat onderteken
en sodanige eiendom of
voorwerp, hierna die bewysstuk genoem, sonder versuim by die aanklagkantoor
inhandig nadat hy die voorkant
van 'n etiket, SAP 13A voltooi en
daaraan
7 geheg het."
When he eventually returned to Milnerton police station, Van der Westhuizen
did not register a report of what had taken place. Although
he was on duty on
Sunday 9 March 1986, he did not during that day make any report or hand in the
jewellery or money. It was only
on Monday 10 March that any money was handed in
by Van der Westhuizen or a report was registered of the occurrence.
Arising out of these incidents, Van der Westhuizen (whom I shall henceforward
refer to as "the accused") was charged in the Regional
Court sitting at Cape
Town on two counts: (1) theft of the jewellery and cash amounting to R61 taken
from Pienaar, and (2) defeating
or obstructing the course of justice by
releasing Pienaar from custody and by appropriating to himself exhibits relating
to the prosecution
of Pienaar. He was found guilty on both counts and sentenced
cm each to two years' imprisonment, of which
8
one year was conditionally suspended. It was ordered thát the
unsuspended portions of the two sentences should run concurrently.
An appeal to
the Cape Provincial Division was dismissed by Howie and Williamson JJ, with Nel
J. dissenting.
With the leave of the court a
quo
the accused now appeals to this
court against the convictions and sentences.
At the trial Delport was the main witness for the State, which also called a
number of other policemen and Du Plessis. The accused
was the main witness for
the defence. His evidence conflicted in many respects with that of the State
witnesses. It is not necessary
to attempt to resolve all the conflicts, nor do I
think that that would be possible. Even so, I shall have to retraverse in detail
some of the ground which has so far been sketched only in bare outline.
9
Central to the accused's guilt in respect of each of the counts was the
question why the accused let Pienaar go.
Pienaar's case was one to which s 36 of the General Law Amendment Act 62 of
1955 had application. This provides:
"Any person who is found in possession of any goods, other than stock or produce
as defined in section 13 of the Stock Thef t Act...
in regard to which there is
reasonable suspicion that they have been stolen and is unable to give a
satisfactory account of such
possession, shall be guilty of an offence and
liable on conviction to the penalties which may be imposed on a conviction for
theft."
(The position in regard to
stock or produce is governed by the substantially identical provisions of the
Stock Theft Act 57 of 1959.
) S.36 is a powerful weapon in the police armoury
for the combating of theft. Its virtue is that a conviction under it does not
require
evidence of a theft and
10 that there is no call to seek for the
victim. Pienaar was found in possession of goods (i e jewellery). The accused
admittedly
suspected that they had been stolen. The suspicion was a reasonable
one. There was a conflict between the accused on the one hand
and Delport and Du
Plessis on the other in regard to Pienaar's first account of his possession, but
whichever it was, it was not
a satisfactory account, either objectively or in
the view of the accused. On the face of it, therefore, Pienaar was guilty of an
offence. Why in those circumstances the accused spent the morning looking for a
victim and for evidence of a theft instead of delivering
Pienaar and the
exhibits into custody at the Cape Town police station, within whose area Pienaar
was found, is a question on which
one can only speculate.
The reason was not that the accused was ignorant of the provisions of s 36.
At the time of this occurrence
11
he had been in the police force for about seven years. He had obtained
rapid promotion to detective warrant-officer. He had been in
charge of the CID
branch at Table View. He had made many arrests on charges of theft and had often
given evidence in court arising
out of such arrests. He agreed that to a
policeman the provisions were as well known as the sun and the moon.
The accused said in evidence that Pienaar's first account, given at the Gold
Coin Jéwellery Exchange, was that he came from
Plettenberg Bay where he
lived with his grandmother; and that he had taken the jewellery from his
grandmother and was now selling
it because he had come to Cape Town two weeks
previously and he had no money. The accused did not think this account
satisfactory
- that is why he assaulted Pienaar at the Cape Town police station.
In his evidence the accused explained how the CID question
12
suspects. (It is devoutly to be hoped that some of the techniques are
not in common use. ) He said that they employ various methods
of interrogation.
If a psychological approach does not succeed, then they have recourse to a form
of violence. This does not work
with everybody, but still it does work - they
have achieved great successes; but he had often found that if you use certain
methods,
the suspect lies in order that you should stop assaulting him. He says,
"Ons het net vir jou gelieg dat jy kan ophou om ons te versmoor".
The accused
said that in this case Pienaar had departed from his first story because he had
been assaulted and in consequence he
was prepared to say anything which would
satisfy the accused; then when the accused began to talk nicely to him at
Pinelands, Pienaar
returned to his first story. The accused said that at that
stage he believed that Pienaar had possibly got the goods at his grandmother's,
and Delport was then pressing the accused
13
to take him back to Table View because Delport wanted to go off duty.
The accused said he told Pienaar that he was going to let him
go; that he would
keep the goods and hand them in at Milnerton, and he would investigate the
matter further in order to ascertain
whether he had got them at his
grandmother's; if the accused found that he had not got them there, he would
trace him and rearrest
him; and if Pienaar was certain that he had got the goods
at his grandmother's, he could fetch them at Milnerton CID. The accused
asked
Pienaar where he wanted to get out of the car and Pienaar indicated a place
under a bridge.
This story of the accused' s does not bear examination in the light of other
evidence given at the trial.
Both Delport and Du Plessis denied in their evidence that at the Gold Coin
Jewellery Exchange Pienaar said that he had got the jewellery
from his
grandmother at
14 Plettenberg Bay. He did not mention his grandmother.
Delport said that when Pienaar was asked where he had got the jewellery his
reply was that he had got the ring from his mother, and the rest of the
jewellery he had got from his sister (or from his girl-friend)
who apparently
lived in Kraaifontein. Du Plessis said that in answer to the accused's question
where he had got the jewellery, Pienaar
said that the chains were his
girl-friend's and the ring was his mother's with whom he lived in Kraaifontein;
and that Pienaar did
not speak of his grandmother or Pléttenberg Bay.
Clearly the evidence of Delport and Du Plessis is to be preferred to that
of the
accused. They corroborated each other on this point, which was not important in
itself, but only became important because
the accused gave the Plettenberg Bay
story as the reason for letting Pienaar go; and it was not a point on which the
two witnesses
could have made a mistake. Moreover, the magistrate found that
they
15 were both very good witnesses.
The accused's explanation for believing at Pinelands that the Plettenberg Bay
story might be a satisfactory account, cannot reasonably
possibly be true. The
accused did not regard it as satisfactory when, according to him, it was first
made, and it could not become
satisfactory merely because, on the accused's
version, Pienaar returned to it after giving two lying accounts following on
assaults.
One of the reasons why the story was in any event not satisfactory was that,
as the accused was driven to concede, it evidenced at
least theft from the
grandmother:-
"
AANKLAER
: U sê hy het gesê hy het dit by sy ouma gekry?--
Van sy ouma geneem, so ek weet nie of hy dit gesteel het by sy ouma
nie.
HOF
: Meneer, as die man nou goed van sy ouma geneem het en hy het dit
uiteindelik
16
aangebied vir verkoop, dan het hy dit gesteel nie waar nie, dan is dit
diefstal?— Ja.
So, minstens op grond van sy weergawe dat
hy goed geneem het, dat hy dit
aangebied het
vir verkoping, het hy diefstal gepleeg?-- Jy
kan dit so
Edelagbare
Sy weergawe wat hy aan u gegee het, het minstens diefstal geopenbaar?—
Edelagbare, ia."
He said under
cross-examination:
"Of hy dit geneem het, het ek nie geweet nie en of hy dit gesteel het, het ek
nie geweet nie, maar hy het dit daar gekry en dit is
wat ek verstaan het wat hy
vir my gesê het hy het dit by sy ouma gekry, so dit was daar van
Plettenbergbaai afkomstig."
Having
dropped off Pienaar, the accused proceeded to Table View. At the police station
there, Sgt. Carstens, the charge office sergeant,
came out to the accused's car
and asked him to investigate a complaint relating to dagga at the Robin Hood
Café. The accused
agreed. Du Plessis
17
was handed over to Carstens
and the accused drove off to the Robin Hood Cafe with Delport accompanying
him.
Because Delport's evidence of what happened at this stage is of importance in
the decision of this appeal I set out the relevant extract
from the record in
full.
"
Aanklaer
: U moet gaan ondersoek instel na die bewering?— Dit is
reg U Edele. Die beskuldigde het toe aan sersant Carstens gevra om die
Kleurlingvrou na binne te neem. Ek het die twee pakkies juweliersware met die
kontant, die een pakkie van die juweliersware van die
Kleurlingman het ek
uitgehaal en aan die beskuldigde gevra wat gaan hy hiermee doen met die idee om
dit ook aan sersant Carstens
te gee sodat hy dit kan loop inhandig vir ons. Die
beskuldigde het aan my gesê dat hy in sy truspieëltjie gekyk het en
gesien het dat die Kleurlingman nie die voertuig se nommerplaat geneem het nie,
en dat ons die geld kan deel en die juweliersware
wil hy, aangesien hy nog
ou
18
goud by die huis het, en dit wil smelt en die diamante daarvoor
gebruik.
Ja?— Die beskuldigde het aan my gesê dat, jammer ek het
toe aan die beskuldigde gesê ek wil niks, ek wil nie betrokke
wees hiermee
nie, ek wil niks hiermee te doen hê nie. Die beskuldigde sê toe aan
my ek moenie bekommerd wees nie, hy
het dit al vorige kere gedoen en daar het
niks van gekom nie. Ek het toe weer aan die beskuldigde gesê dat ek wil
niks hiermee
te doen hê nie en die twee pakkies gevat, die een met die
juweliersware en die een met die juweliersware en die geld, en dit
tussen die
twee sitplekke neergesit op die 'console'. Ons is toe daarvandaan af na die
winkel U Edele en terwyl ons soontoe beweeg,
het die beskuldigde die pakkie
opgetel met die geld en die juweliersware en die geld daaruit gehaal en aan my
gegee.
Al die geld?-- Nee U Edele, hy het, dit was R31,00 gewees, dit was een
R20,00-noot, een R5,00-noot en drie R2,00-note. Ek wou nie
hierdie kontant
hê nie en die beskuldigde het dit toe op my regterkantse bobeen neergesit.
Ons het gestop by die winkel en
ek het weer geprobeer om die kontant aan die
19
beskuldigde terug te gee, maar die beskuldigde het reeds uit die voertuig
uitgeklim. Ons het uitgeklim en ek kon nie die geld in
die voertuig los nie en
ek het dit toe in my regterkantse baadjiesak gesit. Ons het die klagte ondersoek
en gevind dat dit vals was
en ons is toe terug na die polisiestasie en ek het
nie weer met die beskuldigde gepraat nie, aangesien die beskuldigde 'n
adjudant-offisier
was en ek h konstabel
was."
It was put to Delport in
cross-examination on behalf of the accused that his evidence in this regard was
quite untrue; and that at
one stage Delport had remarked that he was "broke" and
asked for a few rand; and that on the way back from the Robin Hood Café
Delport had said that the accused did not have to hand in the jewellery. All
this Delport denied.
Delport's further evidence was that when the accused and he returned to Table
View from the Robin Hood
20
Café, he wanted to find a senior member of the SAP to
whom he could return the R31 which the accused had pressed on him and
to report
the matter. It was then, however, well after 2 pm when he should have gone off
duty, and he had to pick up his wife urgently,
and so he drove off, still in
possession of the R31 . At about 9 pm on the same day he returned to the police
station and outside
the charge office reported what had occurred to W/0 Meyer.
Meyer took the R31, placed it in an envelope which he signed and put it
in the
safe in the charge office. When Delport reported for duty on the following
morning, the envelope was obtained from the safe
and Delport opened it at the
entrance and took out the money in the presence of Const. Joseph. When the
accused arrived at the police
station at about 13h00 Delport went to the
accused' s car and placed the money on the dashboard in front of the steering
wheel, saying
that he had reported the matter to W/O Meyer and that he wanted
nothing
21
to do with the money and he asked that the accused hand it in. He asked
the accused what he was going to do now, and the accused replied
that he was now
going to the barracks to play darts with W/O Muller.
Later that day W/O Muller (who was the officer in charge of the CID at
Milnerton) came to Delport and said that he had spoken to W/0
Meyer and asked
him to explain what had taken place. Delport told Muller the story. At about 11
o'clock that evening and at Muller's
reguest Delport accompanied Muller to the
accused's house. There the accused was roused and Muller asked him the
whereabouts of the
jewellery. After some discussion and a short delay to enable
the accused to dress, the accused emerged from his house, and went and
unlocked
his car and took out the jewellery which was lying loose there. Muller asked the
whereabouts of the money which had been
seized and instructed that it be brought
to him the following day.
22
Muller and Delport returned to Table View police station and
Delport found that the jewellery included all the items taken from Pienaar
except for the string of pearls and the brooch.
W/O Meyer, W/O Muller and Const. Joseph all gave evidence corroborating parts
of Delport's evidence.
Thus Meyer said that on 8 March 1986 he was on duty at Table View police
station. At about 9 o'clock that evening Delport, who was
on duty at the time,
approached him and made a report and handed some money to him. Meyer did not
count the money, but he saw that
it included a R20 note. He gave instructions
that the money was to be sealed in an envelope which was to be locked in the
charge
office safe. At the earliest opportunity the money should be given to the
accused for him to hand in "in die SAP 13 register". At
about 5 o'clock on the
afternoon of Sunday 9 March W/O Muller arrived at the charge office. Meyer
informed Muller
23
of what had occurred the previous evening. Muller said
that he would take over the case.
Const. Joseph said that he was on duty at the Table View police station on
Sunday 9 March, when he saw Delport come out of the charge
office with a brown
envelope in his hand. He opened it and took out some cash, made up of a R20
note, a R5 note and some R2 notes.
Muller said that on Sunday 9 March 1986 W/O Meyer made a report to him at
about 5 o'clock in the afternoon. In consequence he spoke
to Delport and
received information from him. That night he asked Delport to accompany him to
the accused's house at Melkbosstrand.
They arrived there just after midnight.
Muller knocked at the door which was opened by the accused. Muller asked him
what he had
done with the jewellery which he and Delport had seized. After an
interval the accused went to the car, opened it and pointed out
the jewellery
which was lying in an open
24
container just behind the gear lever. As a result of the
information Delport had given him, Muller asked the accused what had become
of
the R61, and the accused replied that the money was in his office. Muller left
the accused there and returned to Table View where
the jewellery was handed in.
On the following day, 10 March 1986, the accused came into Muller's office and
handed him R61 made up
of six R10 notes and a R1 coin. He said to Muller,
"Delport het hierdie geld gesteel en nou word ek daarvoor verantwoordelik
gehou".
On the basis of all this evidence the following facts must be taken as
established - indeed, the accused was not in a position to
dispute them. Delport
was on 8 March in possession of R31 of the R61 seized by the accused from
Pienaar. He reported his possession
to Meyer at about 9 o'clock on the evening
of that day. He gave the R31 to the accused at about 1 pm on Sunday 9 March.
Although
no details of his reports to Meyer and Muller were given in
25
evidence, there can be no doubt that he must have reported , to them
what on his version the accused had said of his intention in
regard to the
jewellery which had been seized from Pienaar. The accused had not reported the
seizure and was still in possession
of the jewellery (except for the brooch and
the pearl necklace) at midnight on 9 March.
The accused's version of what took place between him and Delport during the
excursion to the Robin Hood Cafe was quite different.
In his evidence-in-chief
he said that on the way to the Robin Hood Café Delport said to him that
he was broke and asked the
accused for a few rand. He was referring to the
seized money which he then had in his hand. Accused took no notice - he did not
take
it seriously. On the way back to Table View, Delport asked him what he was
going to do with the jewellery and whether he was going
to hand it in, whereupon
the accused told him that he was going to hand it in at Milnerton so that he
could
26
investigate the case. At Table View, when Delport was about to
drive off in his Volkswagen, this conversation remained in his mind
and he ran
to Delport just before he drove off, and asked him where he had put the seized
goods. Delport said that he had put them
in the cubby-hole of the patrol car.
The accused went to his vehicle. He found nothing in the cubby-hole, but on the
"console" between
the two seats next to the gear lever, he saw the jewellery
lying and his pocket book with the bank notes protruding from it.
At Milnerton, he said, he took out his pocket book in order to write it up,
but he had to go out to attend to a number of complaints
which had come in. On
the Sunday at Table View, Delport leaned in at the window on the driver's side
of his car and put down R31,
saying, "Dit is die geld van gister". The accused
said that he had no doubt that Delport had taken the money the previous day and
was now returning it. The accused told Delport that he could be
27
glad that he had not yet handed in the seized articles. The
accused returned to Milnerton and, opening his pocket book, saw for the
first
time that it contained only R30, whereas he had seized R61 . He then threw the
money (the R30 and the R31 which Delport had
given him) into a small tobacco box
wherein he kept his own money - there was R50 of his own at the time - and set
off for Kuilsrivier
where he was to attend a braái with his in-laws.
Asked by his counsel if he could suggest why Delport had given the evidence
which he did, the accused said that he could only infer
that Delport had taken
the money from the patrol car on the Saturday and that later he had realised
what he had done and then tried
to find a way to get the money back to the
police station in order to exculpate himself. Delport's account was definitely a
distorted
one.
In my opinion the suggestion that Delport had on
28 the Saturday stolen the R31 is so far-fetched as to verge on the fatuous.
One shares the incredulity which Muller expressed when
being cross-examined:
"Toe hy die Maandagoggend in my kantoor instap en hy gooi die geld voor my neer
en hy sit die blaam op die ander polisieman wat saam
met hom was, toe het hy my
gedwing om h saakdossier te laat oopmaak. Hy het gesê hierso is die geld
en toe het hy vir my gesê
Delport het die geld gesteel, en my antwoord aan
hom was, Mnr Van der Westhuizen, wil jy vir my sê dat h konstabel vat geld
waarop jy beslag lê en hy steel
dit."
It is not credible that a police
constable would steal money seized in a criminal investigation from under the
nose of the detective
warrant officer in charge, especially after he had been
told that the seized articles were to be handed in; that he would put at
risk
his future career in the police force for a paltry R31, for discovery of the
theft would necessarily have been swift and inevitable.
It is not
29
credible that when, as the accused said, he learned of the
theft, he would have said to Delport only "You can consider yourself lucky
that
I've not yet handed in the money", and that he would not have reprimanded
Delport and reported him.
The suggestion, that Delport's story of what the accused had said to him on
the way to the Robin Hood Cafe, was a fabrication is egually
far-fetched. On the
accused's version Delport could not have known that the accused was not going to
hand in the seized articles
- the accused had told him that he was going to hand
them in at Milnerton. If that were true, it is not credible that Delport, in
order to extricate himself from the consequences of a theft of R31, would invent
a story involving grave allegations against his
senior officer - allegations
which, so far as Delport knew, could be instantly rebutted. Delport's conduct
was not that of a man
trying to exculpate himself:
30
he brought his possession of the R31 to official notice, and
if his charge against the accused misfired, as it was likely to misfire
if the
accused had told him that he was going to hand in the seized articles, his
attempt would have been self-destructive.
In my opinion the evidence of Delport regarding what the accused told him and
the pressing of the R31 on Delport was rightly accepted
by the magistrate.
This is a convenient stage to summarize the main facts which, where they were
not common cause, were established beyond peradventure
by the evidence:-
1. On Saturday 8 March 1986 Pienaar was taken by the accused into lawful police
custody on suspicion of the theft of the jewellery
found in his
possession.
31
2. The accused seized the jewellery from Pienaar and R91 in cash.
3. Later that day the accused released Pienaar from custody. No lawful
justification existed for the release, and the accused could
not have believed
that any such justification existed.
4. Upon the release of Pienaar, the accused retained possession of the jewellery
and R61 of the R91 which had been found on Pienaar.
5. Thereafter, the accused told Delport at or near the Robin Hood Cafe that they
would share the R61 and he would keep the jewellery
for his own purposes. He
pressed on Delport an amount of R31 and retained R30. On the following day
(Sunday) Delport returned the
R31 to the accused. The accused either dealt with
the money for his own purposes, or mingled it with his own money. On
32 the Monday the accused handed to Muller R61 made up of six RlO notes and a Rl
coin. 6. The accused did nothing about reporting
the case until the Monday
morning. He did not of his own volition hand in the jewellery at any time, but
he handed it to Muller only
when the latter demanded it at his house at midnight
on the Sunday.
The important question remains, what was the
intention of the accused in releasing Pienaar and in retaining possession of the
seized
money and jewellery? Some light is thrown on the question by the events
which occurred in the vicinity of the Robin Hood Cafe. Further
light is thrown
upon it by the circumstances of Pienaar's release and the subsequent conduct of
the accused in relation to the money
and the jewellery.
Since there was no lawful justification for Pienaar's release, the accused
must have had reasons of his
33
own. What those reasons were, he did not vouchsafe to the
court. In my view, however, the inference to be drawn from all the circumstances
is clear. It is plain that the accused must have been confident that he had seen
the last of Pienaar. So far from giving a satisfactory
account of his possession
of the jewellery, Pienaar had told four or five different stories, and it was
unlikely that he could later
come up with anything better. He must have
considered himself fortunate to escape from the clutches of the police with the
loss only
of some money and the jewellery, and to be given R30 in travelling
money to boot. It was extremely unlikely that he would in the
circumstances risk
putting his neck into the police noose again.
The accused had not complied with Regulation 328(1) of Police Standing Orders
which is guoted above. In consequence Pienaar had nothing
to substantiate a
story which on the face of it was so bizarre that the telling of
34 it would
excite only incredulity. The accused could explain his omission to comply with
the regulation only by saying -
"Edelagbare dit is h ding wat h gewoonte is by ons, ons pas dit nie toe in die
praktyk nie, daar is baie min speurders wat dit wel
toepas."
This, coming from a man in
authority like a detective warrant officer, is not credible. The strong
probability is that the accused
did not comply because he wanted to create no
written evidence of his contact with Pienaar.
The accused was unable to give an acceptable
explanation for his failure to hand in the seized articles
on the Saturday
or on the Sunday. In regard to the
Saturday he said:
"Edelagbare die hoofrede omdat die goed nie ingehandig is nie, is omdat ek
haastig was. Ek weet dit is staande ordes, dit
is
35
regulasies dat die goed ingehahdig moet word dieselfde dag, maar dit word nie
altyd gedoen nie, ek het dit in die verlede al baie
nie gedoen nie, dan handig
ek dit die Maandagoggend in voor die parade of so en dit is wat ek sou gedoen
het."
One is aware that individual
policemen like individuals in other walks of life do not always show a
scrupulous and strict regard in
the performance of their duties, but one must
treat such evidence from a warrant officer with scepticism.
In regard to the Sunday the accused was unable to give an acceptable
explanation of why, when he was on duty on Sunday and had ample
opportunity to
do so, he did not hand in the money or the jewellery, but left the money lying
in his office and drove around with
the jewellery lying open to view in the
patrol car. When pressed by the prosecutor on the point, he could only say
variously, "(Ek)
het nie
36
daaraan gedink nie", "Ek glo dit was laksheid aan my kant" and
"Dit was agtelosigheid gewees". He agreed that there was remissness
on his part
and when it was put to him that his conduct amounted to recklessness in the
conduct of his duties he agreed, saying,
"Ja ek was traak-my-nie-agtig gewees
oor my werk op daardie stadium".
The accused was not an inexperienced constable with a "maleesh" attitude
towards his work. He was a senior detective who had been
a branch commander of
the CID branch at Table View. He had received rapid promotion in the police. His
zeal and vigour in the performance
of his detective duties had been demonstrated
on the Saturday morning. But now he would have it that his zeal had dissipated.
His
omission to hand in the money and the jewellery without delay was in my view
to be attributed, not to irresponsibility and carelessness,
but to
dishonesty.
There is another important circumstance which
37
throws light on the intention of the accused in retaining
possession of the R61 and the jewellery.
Asked by the prosecutor what he intended to do with the R61 of Pienaar's
money which was not repaid when Pienaar was released, the
accused said that he
would have handed it in on the Monday. When it was pointed out to him that it
formed no part of the jewellery,
he could reply only that it was found on the
accused and that his idea was that if the owner could not be traced it would be
forfeited
to the State. He would not say that he suspected that the money was
stolen money. He did not know why he did not give it back to
Pienaar. Pressed on
this question, he said eventually, "Edelagbare, daardie besluit wat ek gemaak
het was in h paar minute gewees.
Ek kan u werklik nie nou sê wat ek toe
gedink het nie". The accused could not dispute that on the Sunday Delport
returned to
the accused R31 made .. up of one R20 note, one R5 note and three R2
notes. On the
38 Monday the accused handed to Muller R61 made up of six R10
notes and a Rl coin. Plainly the accused must either have disposed of
some of
the 'notes which made up the original R61, or, if his own evidence is true, that
he had mingled this money with his own money
which he kept in the tobacco box.
On either basis, this evidences an intention on the part of the accused to
appropriate the money
to his own use.
There is nothing to suggest that the accused had one intention in regard to
the money and another in regard to the jewellery. If,
as I think, the intention
to steal the money was clearly proved, then it follows that the accused had a
theftuous intention in regard
to the jewellery.
The cumulative effect of all the evidence is therefore to lead to the
conclusion, beyond reasonable doubt, that at the time of the
release of Pienaar
the accused had formed the intention of retaining the seized
39
articles for his own purposes.
It was argued on behalf of the accused that the State case on the first count
of theft was deficient inasmuch as a
contrectatio
had not been proved:
the money and jewellery taken from Pienaar were held in trust, and the evidence
was not of such a nature that
the omission to hand in these articles constituted
a
contrectatio
.
In regard to the cash, it was contended that the act of the accused in
handing the R31 to Delport did not constitute a
contrectatio
: under the
principle referred to in Hunt's
South African Criminal Law and Procedure
2nd ed, vol II, p 634, there is no
contrectatio
when the holder of trust
money has a liquid fund available to cover the sum involved. The argument is
misconceived. This was not
a case where the accused was entitled to use the
money which had been seized ostensibly for production as an exhibit at any trial
which ensued. By giving R31 to Delport and by
40 mixing the money with his
own, there was a
contrectatio
by the accused.
In regard to the jewellery, it was argued that there was no proof that at the
time of the seizure the accused had a theftuous intention,
and that the accused
did not handle the jewellery thereafter.
I am prepared to assume in.favour of the accused that the original seizure of
the goods did not constitute an unlawful
contrectatio
. But by retaining
the jewellery after he had formed an intention to steal it, there was a
sufficient
contrectatio
in law. Because the accuséd already had
control, it would be an absurd fiction to require fresh
contrectatio
.
(See Hunt, op
cit
, 608.) The position is not dissimilar in principle from
that of a
constitutum possessorium
.
Finally in regard to the convictions, it was
41 argued that the conduct of the accused was not such as to constitute the
crime of defeating or. obstructing the course of justice.
The crime of defeating
or obstructing the course of justice consists in unlawfully doing an act which
is intended to defeat or obstruct
and which does defeat or obstruct the due
administration of justice (Hunt,
South African Criminal Law and
Procedure
, vol II, 2nd ed, 143).
The acts laid to the charge of the accused in count 2 were -
1. the release of Pienaar from arrest or custody, which had the result that
Pienaar was not, or could not be, prosecuted, or that
the prosecution of Pienaar
was hampered or delayed; and
2. the unlawful appropriation of the exhibits which had been seized, which had
the result that the prosecution of Pienaar was frustrated,
obstructed or
hindered.
42
The acts and their conseguences were clearly established. It
was argued on behalf of the accused that Pie-naar was not officially
under
arrest and that mere neglect of duty by a police official was not necessarily a
crime.
The first submission was based on the evidence of
the accused, who said that he did not regard Pienaar as
being under
arrest; he himself did not use the word arrest,
and Pienaar had made no
objection to being taken on the
investigation. There is no merit in this submission.
Pienaar was in police
custody. A piece of rope was tied
around his hands and his neck so that he
would not escape;
the fact that he voiced no objection to his treatment
does
not mean that he was not in custody.
The release was unlawful. Quite apart from the
applicable provisions of the Police Regulations it can
hardly be suggested
that a police officer acts lawfully if
he releases a suspect within his
custody in order that he
43 should escape trial. On the evidence that was
plainly the accused's object. In regard to the cash and jewellery, it was
plainly
the intention of the accused that they should not be produced as
exhibits at a trial of Pienaar; he knew that if they were not handed
in they
could not be produced; and even though his immediate intention was to enrich
himself, he must have known that that intention
would not be realised unless the
trial of Pienaar was frustrated.
This was not merely a case of neglect of duty by a policeman; these were acts
of commission by the accused aimed at defeating the
course of justice.
The last argument was in regard to sentence. It was contended that the
effectivê sentence was strikingly inappropriate ánd
should have
been suspended in
toto
: the accused is a young man who on all the
indications had made a valuable contribution to society until he committed the
first offence;
there was no adequate proof of the value of
44 the jewellery;
the indications are that the accused did not initially have an intention to
steal, so that the court was not here
dealing with a case where goods were
removed from the possession of the owner
animo ferandi
.
In his judgment on sentence, the magistrate gave careful consideration to all
relevant factors, and it is nót suggested that
he misdirected himself in
any respect. I do not regard the sentences as at all inappropriate. There is no
basis for interference
by this court.
The appeal is dismissed.
H C NICHOLAS