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[1992] ZASCA 99
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S v Mwali (525/90) [1992] ZASCA 99 (29 May 1992)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
SITSANGANI NAPTHAL MWALI
Appellant
AND
THE STATE
Respondent
Coram
: SMALBERGER, F.H. GROSSKOPF, JJ.A. et NICHOLAS, A.J.A.
Heard
: 25 May 1992
Delivered: 29 May 1992
JUDGMENT NICHOLAS
, A.J.A. :
Sitsangani Mwali was charged as accused No. 1, together with three others,
with the theft of a motor car in the Regional Court sitting
at Durban. He and
accused No. 3 were found guilty as charged and sentenced to 2 years'
imprisonment. His appeal to the Natal Provincial
Division was dismissed, but he
was granted leave to appeal to this Court.
It was not disputed that a Toyota Corolla No. ND 211832, the property of
I.Haribhai, was stolen from the driveway of his home in Overport,
Durban between
8 p.m. and 11.30 p.m. on 8 July 1987; that it was spotted during the early hours
of 9 July
2
by Constable Roger Deare of the South African Police, who pursued it in his
patrol van until it went out of control and finally came
to a stop; and that the
four accused, including Mwali, got out of it and were arrested then or shortly
afterwards.
There was no direct evidence that Mwali was a participant in the actual
theft. The case against him rested entirely on two facts:
(1) He was a passenger in the stolen car during the chase. (Deare said in his
evidence that Mwali left the car by the driver's door.
Mwali said that he was a
passenger in the back seat. Accused Nos. 2, 3 and 4 all said that No. 3 was the
driver, and that was the
finding of the magistrate.)
......../ 3
3
(2) On the afternoon of 9 July 1987 Constable Roland Robinson
accompanied Mwali to his house in Kwa Mashu, where Mwali pointed out
as his
vehicle a Volkswagen Golf. In the boot Robinson found a spare wheel. Mwali said
that this wheel was his. This was a different
size from a Golf wheel, and it was
identified by Haribhai as the wheel missing from his Toyota Corolla.
As to (1), the fact that Mwali was a passenger in the stolen car when spotted
by Deare does not by itself show that he was guilty
of the theft, for there was
no evidence that he ever exercised any control over the car. See
R. v.
Brand
1960 (3) SA 637
(A). But that fact does not stand
......./ 4
4
alone. In the absence of an explanation, or other evidence to the contrary,
facts (1) and (2) considered together could justify the
inference that Mwali was
a party to the theft.
He gave this explanation in his evidence. It was his custom to sleep in his
car outside his house. On 8 July 1987, he went to sleep
at about 8 p.m. His
brother, Zwelinjani Mwali, was also sleeping in the car. At about midnight he
awoke when four men (the other
three accused and a man called Ge) arrived in a
car. They left shortly afterwards. He fell asleep again, but was awakened once
more
when the four men returned at about 1.30 a.m. Ge told him that he had a
tyre which would fit Mwali's car. Mwali did not check whether
......./ 5
5
it would fit, but agreed to buy it for R30. He placed the wheel in the boot
of his car. The men told him that they were going to visit
some girls at
Newlands East. Mwali was interested and went with them. They were on their way
when the police van was encountered.
The magistrate submitted this account to trenchant criticism. He found it
highly improbable in a number of respects and formed the
impression "that it
consisted of a number of loose fragments, each one fitted to the story to some
purpose." Mwali's evidence differed
in some respects from that of his brother,
whom he called as a witness, and that of the other three accused. The magistrate
rejected
it as false beyond reasonable doubt, and concluded that the only
inference
.... / 6
6
to be drawn was that Mwali was involved in the theft
of the Toyota. This
was also the view of the court
a quo. It was said in the judgment:
"I agree with the Magistrate that this story is so unlikely that one simply
cannot credit it. In my view there is no reasonable possibility
that he was in
the vehicle for an innocent purpose or that his possession of the spare wheel
which belonged to the stolen vehicle
was untainted by guilty knowledge. His
story in my view cannot reasonably possibly be true. If one looks at the facts
objectively,
the only inference is that he knew full well that the vehicle was
stolen and was in fact involved in its theft. Accordingly I am
of the opinion
that the conviction is in order."
In my view there can be no quarrel with
the magistrate's rejection of Mwali's story. The
question is, however, whether the magistrate's con-
......./ 7
7
elusion was correct having regard to evidence that Mwali got into the Toyota
for the first time when it arrived at his home. This
was the evidence of Mwali
himself, and also that of his brother and of each of the other three accused.
Despite the magistrate's
adverse findings on credibility, I do not think that a
finding is justified that this part of their evidence could not reasonably
possibly be true. That seems to have been recognized by the court a
quo
in the judgment granting leave to appeal, where it was said that the magistrate
came to his conclusion largely on an assessment of
probabilities and that -
"One cannot exclude the possibility that another Court might take a different
view on the probabilities, particularly if one considers
that
.... / 8
8
the appellant apparently only joined the venture after the vehicle might well
have been stolen by others."
This was also recognized by counsel for the State, who conceded that there
were no sound reasons for the conclusion that Mwali stole
the Toyota, and agreed
that the conviction for theft could not stand. She submitted, however, that
there should be substituted a
conviction under s. 36 of the
General Law
Amendment Act
, 62 of 1955, namely, of the offence of being found in
possession of goods in regard to which there was a reasonable sus-picion that
they had been stolen and being unable to give a satisfactory account of such
possession.
That would be a competent verdict in terms of s. 264 (1) (b) of the
Criminal Procedure Act
, 51 of
....../ 9
9
1977. The possibility of such a conviction was not brought to Mwali's
attention at any stage, but the decided cases show that that
is not necessarily
a bar to such a course. It is well established that it is desirable that if the
State contemplates asking for
an alternative verdict in terms of s. 264 (1), the
offence concerned should be formally charged as an alternative, or it should be
brought to the notice of an accused during the course of the trial that he can
be convicted of one of the offences mentioned in s.
264 (1). Even though neither
course be followed, however, the accused would not be entitled to succeed in an
appeal against or review
of the conviction unless it appeared that he was
prejudiced by the failure. see
R. v. Dayi and
....../ 10
10
Others
1961 (3) SA 8
(N) at 9 E-G;
S. v. Mogandi
1961 (4) SA 112
(T) at 114 A;
S. v. Arendse en 'n Ander
1980 (1) SA 610
(C) at 613 A-B; and
S. v. Human
1990 (1) SACR 334
(C) at 336-338.)
In
S. v. Vaaltyn
1966 (3) SA 728
(E), the accused had been charged with the
theft of a bicycle on 9 April 1966. The evidence was that he was found in
possession of
a bicycle which was an exhibit before the court, and the wheels
and stand of which were identified by the complainant as having formed
part of
his stolen bicycle. The accused gave several explanations for his possession of
this exhibit, all of which were rejected
by the magistrate, who convicted the
accused of contravening s. 36 of Act 62 of 1955. In
......./ 11
11
a judgment given on review the court of appeal considered that such a verdict
would only be justified if it related to the possession
of the articles alleged
in the charge sheet to have been stolen, because then the charge sheet would
have directed the attention
of the accused to the allegations he would be
required to meet. It was held at 729 D-E that
"The present verdict relates to other goods than those referred to in the
charge sheet, and, therefore to my mind, ought not to have
been arrived at on
the present charge. (Cf.
R. v. Kahn and Another
1956 (2) SA 39
(N) and
R. v. Argyle and Burns
1957 (2) PH H 153 (E)."
In
Kahn's
case the appellants had been
charged with the theft of a motor car but were convicted
of receiving stolen property, namely, certain of its
....../12
12
fittings (viz a radio converter, four hub caps, an
electric fan, a hub cap
assembly and a cigarette lighter).
It was held at 41 G-H that -
"If the charge which they were defending themselves on had sufficiently
informed them that they might be convicted of receiving the
accessories even if
they successfully defended themselves against the charge of the theft of the
car, their defence might very well
have been different. Thus they were
prejudiced and their conviction cannot stand."
Plainly, where the goods possessed are not the same as, or comprised in, the
goods alleged in the charge to have been stolen, a conviction
under s. 3 (b)
would not be competent. But where that is not the case, the test is that of
prejudice to the accused.
In my opinion there is no technical ob-
...../13
13
stacle to the substitution of a verdict in terms of s. 3 (b). The spare wheel
was an accessory of the Toyota Corolla. It was proved
that it was stolen and
that is sufficient proof that there was a real suspicion that such was the case.
See
R. v. Mkize
1961 (4) SA 77
(N) at 78 G. As to prejudice, the
submission on behalf of the State was that there would be none and counsel for
Mwali agrees. I
am of the same view. Mwali must have known that his possession
of the Toyota wheel lay at the crux of the State case and that he
was called
upon to explain it. In his evidence he did give an explanation on which he was
exhaustively cross-examined. It does not
seem that if he had been charged under
s. 36, or if he had been told that he stood in jeopardy of a
....../14
14
conviction under that section, his conduct of his case could have been any
different or that he could have had any other line of defence.
The appeal is upheld to the extent that
the conviction and sentence are set aside. There is
substituted the following verdict:
"Guilty of an offence under s. 36 of the General Law Amendment Act 62 of 1955
in respect of the spare wheel of Toyota Corolla ND 211832."
There remains the determination of an appropriate
sentence. In its terms, a person convicted under
s. 36 shall be liable to the penalties which may be
imposed on a conviction of theft. Generally speaking,
a conviction for theft of a spare wheel should carry
..../15
15
a lesser penalty than a conviction for the theft of a motor car. It appears
from the record that Mwali had no previous convictions.
He was 27 years old at
the time of his conviction. He had been a student constable in the SAP for six
months and had then been employed
as a furniture salesman. He had passed Std. X
at school, and he informed the magistrate that he wanted to go to Teachers'
College.
In the circumstances I do not think that an unsuspended prison sentence
is called for. He appears to be able to pay a fine, because
he found the bail
which the court a
quo
granted in the amount of R1000. The following
sentence is imposed in respect of the altered conviction:
"The accused is sentenced to a fine of R500,
...../16
16
and in default of payment to imprisonment for 6 months. In addition he is
sentenced to 6 months' imprisonment suspended for 5 years
on condition that he
is not during the period of suspension convicted of an offence involving
dishonesty for which he is sentenced
to imprisonment without the option of a
fine."
H.C. NICHOLAS, A.J.A.
SMALBERGER, J.A. )
concur F.H. GROSSKOPF, J.A. )