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2024
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[2024] ZALMPPHC 178
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S v M.V.M and Another (Review) (REV 150/2024) [2024] ZALMPPHC 178 (15 November 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
No:
Rev 150/2024
Court a quo: RCM 76/24
(1) REPORTABLE: YES/
NO
(2) OF INTEREST TO THE
JUDGES:
YES
/NO
(3) REVISED: YES/
NO
SIGNATURE:
DATE:
15/11/24
In
the matter between:
THE STATE
versus
M.V.M
M
FIRST ACCUSED
K.M
N
SECOND ACCUSED
REVIEW JUDGMENT
MULLER J:
[1]
This case came before me on automatic review in terms section 85(1)
of the Child Justice Act.
[1]
Two child offenders were charged in the regional court sitting at
Mankweng with robbery in count 1 and in count 2 with robbery
with
aggravating circumstances.
[2]
Both enjoyed legal representation throughout the trial.
[2] They pleaded guilty
to both charges. Statements in terms of section 112(2) of the CPA
were duly presented to court by their
legal representative. The
various competent verdicts were explained to the child offenders.
They were both convicted as charged
on the strength of their
statements. Each was sentenced in respect of count 1 to 3 years
imprisonment wholly suspended for a period
of 5 years on condition
the child offender is not convicted of robbery committed during the
period of suspension. In respect of
count 2 they were both sentenced
to 5 years imprisonment wholly suspended for a period of 5 years on
condition that the child offender
is not convicted of robbery with
aggravating circumstances committed during the period of suspension.
They were, additionally,
sentenced to undergo correctional
supervision for a period of 3 years in terms of section 276(1)(h) of
the CPA in respect of count
2.
[3] The learned regional
court magistrate was requested to advance reasons for the convictions
of robbery in respect of count 1,
as it appeared from the section
112(2) statements that the complainant in count 1 handed his cellular
phone to the child offenders
voluntarily without any force or threat
of force.
[4]
The regional court magistrate responded that the statement of child
offender 1 was to the effect that he borrowed the said phone
with the
intention to permanently deprive the complainant of his phone. The
complainant handed same over voluntarily. It was only
at a later
stage when the complainant sought to have his phone returned that he
was faced with threats of being harmed if he persisted
in having his
phone back. The regional court magistrate referred to the definition
of robbery provided by Snyman
[3]
and stated that the threat of force could be exercised before, during
or after the taking of the item and that this threat of force
was at
the stage when the complainant sought the phone to be returned to
him.
[5] The Deputy Director
of Public Prosecutions: Limpopo was requested to provide an opinion.
The court is indebted to counsel for
their helpful memorandum. The
convictions of robbery in count 1 are not supported by the Deputy
Director.
[6] To put the facts
briefly alluded to above in proper context, reference will be made to
the relevant portions of the section
112(2) statements of the child
offenders presented to court and accepted by the prosecution in
respect count 1. The first child
offender stated:
“
Count
1 I plead guilty to the charge of Robbery, while I was acting in the
furtherance of Common Purpose.
In that upon or about the
14 April 2023 and at or near Makotopong in the Regional Division of
Limpopo, I unlawfully and intentionally
assault Lesedi Makoma Rapelo
and did then and with force take the following items to wit Blue A13
Samsung cell phone, her property
in his lawful possession.
(I acted in the
furtherance of a common purpose during the commission of the
offence.)
I admit that I was in the
company of my co-offender and two co-perpetrators who are now
separated from this trial, we were at Solly’s
tavern. We saw
the complainant standing outside the tavern, myself and my friends
then agreed amongst ourselves that we must trick
the complainant in
borrowing us his cell phone and thereafter keep it permanently so
that we can sell it without the complainant’s
consent.
I approached the
complainant and borrowed his phone and told him that I wanted to use
it to log in my Face Book account. The complainant
borrowed me the
phone and I used it to log in my Face Book account and after I was
finished going through my account I did not
return the phone to the
complainant.
Myself and my co-offender
as well as co-perpetrators decided to leave, and as agreed the phone
was still with me. The complainant
followed us. Along the way the
complainant requested his phone back and I refused telling him that I
will not give him back his
phone.
At the time I was
refusing to give the complainant his phone back I had the intention
to permanently deprive him of his cell phone.
The
complainant insisted that he wanted his phone back. My co-perpetrator
M
[4]
then responded and said that he heard what I said, that he was not
going to get his phone back. Further that if he so wishes he
can go
and report to the police but we are not afraid of them. My
co-offender told him that if he insists, he will hurt him.
The complainant responded
by saying that he heard me but M put his hand in his pocket and
approached the complainant who then ran
away while M chased after him
for a short distance. The complainant was afraid of us because we
were four and he was alone. Along
the way I gave co-perpetrator M the
said phone and we all went to sell the phone to a certain guy called
Kgabo for R200.00
I knew at that time that
I was associating myself with the conduct of my co-offender and as
well my co-perpetrators of robbing the
complainant of his phone, and
that my conduct was wrongful and against the law, but as we have
agreed to rob the complainant, I
continued with my conduct.
I admit that my intention
on that respectful day was to rob the complainant. I further admit
that my actions on that respectful
day where (
sic
) unlawful
and wrongful and that despite knowing that my actions were unlawful
and wrongful I elected to proceed with my actions
of robbing the
complainant and depriving the complainant of his possessions.”
[7] The second child
offender stated that:
“
I
plead guilty to the charge of Robbery, while I was acting in the
furtherance of Common Purpose.
In that upon or about the
14 April 2023 and at or near Makotopong in the Regional Division of
Limpopo, I unlawfully and intentionally
did by force take the
following items to wit, Blue A13 Samsung cell phone, the property in
the lawful possession of Lesedi Makoma
Rapelo.
(I acted in the
furtherance of a common purpose during the commission of the
offence.)
I admit that I was in the
company of my co-offender and two co-perpetrators who are now
separated from this trial, we were at Solly’s
tavern. We saw
the complainant standing outside the tavern, myself and my friends
then agreed amongst ourselves that we must trick
the complainant in
borrowing us his cell phone and thereafter keep it permanently so
that we can sell it without the complainant’s
consent.
Child offender no 1
approached the complainant and borrowed his phone and told him that
he wanted to use it to log in my Face Book
account. The complainant
borrowed him the phone and he used it to log in his Face Book account
and after he was finished going
through his account he did not return
the phone to the complainant.
We decided to leave, and
as agreed the phone was still with my co-offender. The complainant
followed us. Along the way the complainant
requested his phone back
from my co-offender and my co-offender told the complainant that he
was not getting it back. The complainant
insisted that he wanted his
phone back.
At the time of my
co-offender refusing to give the complainant his phone back we all
had the intention to permanently deprive him
of his cell phone.
The
complainant insisted that he wanted his phone back. My Co-perpetrator
M
[5]
then responded by saying that he heard what my co-offender said, that
he was not going to get his phone back. Further that if he
so wishes
he can go and report to the police but we are not afraid of them. I
then told him that if he insists, I will hurt him.
The complainant responded
by saying that he heard him but M put his hand in his pocket and
approached the complainant who then ran
away while M chased after him
for a short distance. Along the way my co-offender gave
co-perpetrator M the said phone and we all
went to sell the phone to
a certain guy called Kgabo for R200.00
I knew at that time that
I was associating myself with the conduct of my co-offender and as
well my co-perpetrators of robbing the
complainant of his phone, and
that my conduct was wrongful and against the law, but as we have
agreed to rob the complainant, I
continued with my conduct.
I admit that my intention
on that respectful day was to rob the complainant. I further admit
that my actions on that respectful
day where (sic) unlawful and
wrongful and that despite knowing that my actions were unlawful and
wrongful I elected to proceed
with my actions of robbing the
complainant and depriving the complainant of his possessions.”
[8]
Robbery is defined by Snyman
[6]
in the following terms:
“
Robbery
consists in theft of property by unlawfully and intentionally using:
(a)
violence to take the property from somebody
else or
(b)
threats of violence to induce the possessor
of the property to submit to the taking of the property.”
[9]
Burchell
[7]
defined robbery as:
“
Robbery
consists in the theft of property by intentionally using violence or
threats of violence to induce submission to the taking
of it from
another.”
[10]
It is clear from the definitions that the offence involves two
acti
rei
;
a threat of force to induce the victim to submit to taking of the
property or the application of actual force to the person of
the
victim to taking of the property. In
S
v Dlamini
[8]
it was held that:
“
The
violence (assault) and the theft are joint features of one crime. The
key considerations justifying a conviction of this corporate
crime
are proof that the assault and the theft formed part of a continuous
transaction and that the assault was a means by which
the unlawful
possession was obtained.”
[9]
[11]
This definition of the crime of robbery was accepted by the Appellate
Division in
S
v Prins en ‘n Ander
:
[10]
“
Dit
is duidelik dat roof uit twee afsonderlike wederregtelike handelinge
bestaan, nl, geweldpleging, of bedreiging van geweldpleging,
en
verkryging van die goed. Die geweldpleging is die middel wat dien vir
die verkryging van die goed. Dit kan gebeur dat beide
handelinge
afssonderlik strafbaar as aanranding en diefstal kan wees, soos
aangetoon in Grobler se saak
supra
te bl 512C-E. Hierbenewens is die opset om te roof ook ‘n
element van roof as ‘n misdaad.”
[11]
[12] It is clear from the
authorities mentioned
supra
that the purpose of the violence
must be to overcome resistance or to prevent any resistance, to
induce the victim not to offer
any resistance to the taking of the
property. Put differently; the violence or the threat of violence
must casually be connected
to the theft of the goods.
[13] It emerged from
their statements that the child offenders agreed before approaching
the victim that he will be tricked to depart
with possession of the
phone. There was, therefore, no intention or common purpose to rob
the victim; violence was not anticipated
to overcome any resistance
from the victim. In fact, no violence or threat of violence was
indeed brought to bear on the victim
to dispossess him of the phone.
The common intention of the child offenders had been to obtain
possession of the phone with the
consent of the victim by making a
misrepresentation to him with the intention to permanently deprive
the victim of his property,
once the phone is handed over.
[14]
According to De Wet and Swanepoel
[12]
the acts of the child offenders in question constitute the offence of
fraud:
“
Waar
besit van ‘n ander se saak verkry word deur middel van
wanvoorstellings, het mens met nie met diefstal te doen nie, maar
met
bedrog.”
The
authors pointed out that Roman law treated instances where the owner
depart willingly with his property as a result of misrepresentation
as
stellionatus
or fraud and not theft.
[13]
[15]
In our law, the crime of theft by false pretences, which occupies a
position between the crime of theft and fraud, which was
not a crime
under our common law, emerged in early Cape decisions as a creation
of our courts, as a substantive crime.
[14]
The crime is defined as:
“
The
crime of theft by false pretences is committed by any person who
unlawfully, with intent to steal and by means of a misrepresentation
appropriates property capable of being stolen.”
[15]
[16]
Snyman disagrees with the view of De Wet and Swanepoel that all such
cases constitute fraud. He is of the view that all cases
of theft by
false pretences are at the same time also fraud but not all cases of
fraud constitute theft. In
R
v Davies
[16]
the accused was charged with fraud and in the alternative with theft
by means of false pretences. Stratford JA explained:
“
It
is said in effect, that the alternative is also one of fraud. As a
general proposition it clearly cannot be said that the crime
of fraud
and that by means of false pretences are identical. A moment’s
reflection will show the fallacy of that proposition.
Though it is
true that in all cases where the latter crime is committed there are
present all the elements constituting the crime
of fraud, the
converse is certainly not true. The essential elements of the
crimen
falsi
are
a willful perversion of the truth made with the intent to defraud and
to the actual or potential prejudice of another. If the
prejudice is
actual
and consists in the deprivation of another of his ownership in
property capable of being stolen, and further if the accused converts
that property to his own use, in such a case only is the crime also
of theft by means of false pretences. If the prejudice is “potential”
theft is not committed.”
[17]
[17]
The true distinction lies in the requirement that the crime of theft
by false pretences is only completed when the property
is handed over
as a result of the misrepresentation and the said property is
appropriated which is not a requirement in respect
of the crime of
fraud.
[18]
[18] It also bears notice
in this regard that neither the crime of theft by false pretences nor
the crime of fraud are listed as
competent verdicts to a charge of
robbery in terms of section 260 of the CPA. The particulars of
the charge of robbery put
to the child offenders made no reference to
any misrepresentation made to the victim. Section 270 of the CPA can
therefore not
be invoked to secure a conviction of fraud.
[19] Snyman defined theft
as follows:
“
A
person commits theft if he unlawfully and intentionally appropriates
movable, corporeal property which
(a)
belongs to, and is in the possession of
another;
(b)
belongs to another but is in the
perpetrator’s own possession; or
(c)
belongs to the perpetrator but is in
another’s possession and such other person has a right to
possess it which legally prevails
against the perpetrator’s own
right of possession
provided
that the intention to appropriate the property includes an intention
permanently to deprive the person entitled to the
possession of the
property, of such property.”
[19]
[20]
Schreiner ACJ in
Minister
of Justice: In re Rv Gesa; Rv De Jongh
[20]
stated:
“
As
a result of the wideness of our concept of theft some overlapping
with the crime of fraud occurs (
Rex
v Davies
1928 AD 165
at 170). And questions, with which we are not here
concerned, may arise as to the sufficiency of the particulars
provided by an
indictment for theft, where false pretences are
involved. But the existence in our law of a partly overlapping crime
of fraud provides
no reason for doubting that there may be theft even
when there is a “voluntarily” handing over of the goods
by the
victim, if he was fraudulently deceived by the recipient into
handing them over.”
[21]
[21] It follows that
theft is committed when possession of property of another is obtained
by means of a misrepresentation with
the intention to permanently
appropriate the said property. This is what occurred in this case.
Although reference is made in the
statements that the child offenders
robbed the victim, the facts do not disclose that possession of the
cellular phone was obtained
by means of force or a threat of force.
The child offenders deprived the victim of possession of his cellular
phone by means of
misrepresentation (without any violence or any
threat of violence) with the intention to permanently appropriate the
said cellular
phone. By the time that the victim requested that his
phone be returned the act to permanently appropriate the phone had
been performed
and the crime of theft had already been completed. The
child offenders, on the facts set out in their statements in terms of
section
112(2), ought to have been convicted of the crime of theft in
respect of count 1.
[22] The suspended
sentences imposed in respect of count 1 should be adjusted
accordingly to ameliorate the severity of the sentences
to accord
with the less serious crimes of theft.
ORDER:
1.1
The convictions of robbery in Count
1 are set aside and are replaced with convictions of theft in respect
of both child offenders.
1.2
The sentences in respect of count 1
are set aside and replaced with the following sentences:
1.3
“
Each child offender is
sentenced to 15 months imprisonment the whole of which is suspended
for a period of 5 years on condition
that the child offender is not
convicted of theft or fraud committed during the period of
suspension.”
1.4
The convictions and sentences
imposed in respect of count 2 are confirmed.
G.C MULLER
JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION,
POLOKWANE
I, concur
S.
MATHABATHE
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
[1]
Act
75 of 2008.
[2]
As
defined in section 1 of Act 51 of 1977. Hereinafter called “the
CPA”.
[3]
Snyman
CR
Criminal
Law
6
th
ed
LexisNexis (2014) 508.
[4]
His
full name is omitted.
[6]
Snyman
508.
[7]
Burchell
J and Milton J
Principles
of Criminal Law
3
rd
ed Juta (2005) 817.
[8]
1975
(2) SA 524 (D).
[9]
527A-B.
[10]
1977
(3) SA 807 (A).
[11]
815D.
[12]
De
Wet JC and Swanepoel HL
Die
Suid-Afrikaanse Strafreg
2
nd
ed (1960) 318.
[13]
At
428.
[14]
In
English law there is an offence ‘obtaining by false pretences’
that closely resembles fraud in our law. See
De Wet and
Swanepoel 429-430. Burchell J
Principles
of Criminal Law
3
rd
ed (2005) 797;
Snyman
533.
[15]
De
Wet and Swanepoel refer to the definition by Gardiner and Lansdown
II b 1682: “Theft by false pretences is committed
by any
person who by false pretence obtains anything capable of being
stolen, with intent to deprive the owner of his ownership
or any
person having any special property or interest in the thing of such
property interest.”; Burchell 797; Also Snyman
535.
[16]
1925
AD 165.
[17]
169-170.
[18]
The
crime of fraud is completed the moment the misrepresentation comes
to the notice of the representee.
[19]
Snyman
475 (read with footnote 1).
[20]
1959
(1) SA 234 (A).
[21]
240
A-C;
R
v Collins
19
ECD 163, 166.