THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 497/04
In the matter between:
ELIZABETH CHABEDI APPELLANT
and
THE STATE RESPONDENT
CORAM: BRAND, NUGENT, CLOETE JJA
HEARD: 16 FEBRUARY 2005
DELIVERED: 3 MARCH 2005
Criminal appeal – based on defects in re cord of proceedings in trial cour t.
Defects in record – not of such a nat ure as to prevent the proper
consideration of the appeal – appeal against conviction on this ground
accordingly dismissed. Sentence of R600 fine for shoplifting fo und to be
excessive in circumstances – substituted with fine of R300 suspended f or
three years.
____________________________________________________
JUDGMENT
BRAND JA/
2
BRAND JA:
[1] This appeal has its origin in the Magistrates' Court for the
district of Roodepoort. The appellant was charged with a form of
theft colloquially known as shoplifting in that she allegedly stole
two roll-on deodorants with a join t value of R15,78 from the
Highgate Pick 'n Pay. Despite her plea of not guilty, she was
convicted as charged and sentence d to a fine of R600 with an
alternative of three months imprisonment.
[2] Her appeal to the Johanne sburg High Court against both
conviction and sentence was dismissed by Fleming DJP
(Satchwell J concurring). The furt her appeal to this court, again
directed against both conv iction and sentence, is with the leave of
the court a quo (Satchwell J and Shakenovsky AJ).
[3] At the hearing of the matter in this court there was no
appearance for the State, t hough heads of argument were duly
filed on its behalf. The reason for this rather unusual state of
affairs, so we were told, was that the advocate in the office of the
Johannesburg Director of Public Prosecutions who had been
instructed to represent the State, did not receive any notice of the
date on which the appeal woul d be heard. It appears, however,
3
that a registered letter containing such notice had been sent to the
office of the Director of Public Prosecutions in Johannesburg by
the registrar of this court in accor dance with the provisions of rule
13 and it was not returned. In addi tion, we were informed that the
appellant, who is unemployed, had travelled from Johannesburg at
her own expense to attend the heari ng of her appeal and that she
was anxious that the matter should be finalised. In these
circumstances we held that the State's request for a
postponement, conveyed to us by telephone, should be refused.
[4] Though the appellant conduct ed her own defence before the
magistrate, she was represented by counsel both in this court and
in the court a quo. Whilst different counsel appeared for her in this
court, he essentially adopted the same line of attack as his
predecessor in the court a quo. This line of attack was concerned
more with the condition of the reco rd of the proceedings in the trial
court than with the merits of the appellant's conviction by that
court.
[5] On appeal, the record of the pro ceedings in the trial court is
of cardinal importance. After all, that record forms the whole basis
of the rehearing by the court of appeal. If the record is inadequate
for a proper consideration of the appeal , it will, as a rule, lead to
4
the conviction and sentence being set aside. However, the
requirement is that the record must be adequat e for proper
consideration of the appeal; not that it must be a perfect recordal
of everything that was said at the trial. As has been pointed out in
previous cases, records of proceedings are often still kept by hand,
in which event a verbatim rec ord is impossible (see eg S v Collier
1976 (2) SA 378 (C) 379A-D and S v S 1995 (2) SACR 420 (T)
423b-f).
[6] The question whether defects in a record are so serious that
a proper consideration of the ap peal is not possible, cannot be
answered in the abstract. It depends, inter alia, on the nature of
the defects in the particular rec ord and on the nature of the issues
to be decided on appeal.
[7] As to the defects in t he record under consideration, it
appears that, though the proceedings were recorded mechanically,
the magistrate's microphone was no t in proper work ing order. In
consequence, questions and comments by the magistrate during
the course of the hearing w ere on occasion transcribed as
'inaudible'. As can be expected, the 'inaudibles' became more
prevalent in the transcript of the trial court's judgments, both on
conviction and sentence, with the result that significant parts of
5
these judgments are simply inco mprehensible. However, because
the other microphones in the court appear to have been
operational, the content of the few 'inaudibles' in the transcript of
the evidence – as opposed to the judgments – can without
difficulty be ascertained by inference.
[8] The next enquiry relates to the nature of the issues to be
decided on appeal. For purposes of this enquiry, I revert to the
facts. The State rested its case on the testimony of a single
witness, Ms Louisa Pretorius. She is a store detective who was on
duty on the Friday in question at the High Gate Pick 'n Pay.
According to her evidence she saw the appellant who was pushing
her trolley between the aisles in the supermarket. Pretorius found
the appellant's behaviour suspic ious because she kept looking
around. She therefore observed the appellant more closely. She
saw the appellant taking the two deodorants involved from the
shelf. At first she put them in her trolley, but then, as she kept
moving between the aisles, she took them out of the trolley and
slipped them into her handbag. Thereafter, Pret orius testified, the
appellant carried on with her shopping. Eventually she went to the
check-out counter where sh e paid for the items in her trolley, but
not for the two deodorants in her handbag. Pretorius therefore
6
confronted her as she was leaving the supermarket. When
Pretorius asked the appellant's permission to search her handbag,
she became aggressive. Consequently , Pretorius took her to the
security office inside the supermarket where the handbag was
searched and the two deodorants f ound. Thereafter, Pretorius
testified, the appellant said she was sorry and offered to pay for
them.
[9] Save for admitting that the two deodorants involved were
found in her handbag and that t hey originated from the
supermarket in question, Pretorius's version was denied by the
appellant in all material aspects. More particularly, the appellant
denied that she took the two deodorants from the supermarket on
the Friday. She bought them, she said, in that same store on the
preceding Thursday. As to how these two unused deodorants
happened to be in her handbag on the Friday, the appellant's
explanation, in short, was the following. After she came home on
the Thursday, the appellant said, she placed one of the deodorants
in her handbag because she always kept a deodorant with her.
Later on her daughter asked for a deodorant and the appellant
gave her the other one. Unfortunatel y the daughter left that one on
a dressing table in the appellant's bedroom. The appellant then,
7
according to her, must inadvert ently have put the deodorant that
she gave to her daughter in her handbag as well. The appellant's
daughter was called as a witness for the defence to corroborate
her mother's version insofar as it fell within her knowledge.
[10] Despite the appellant be ing represented by counsel a
document styled 'supplementary heads of argument' was filed in
this court, which had obviously been prepared by the appellant
herself. Parts of the document amounted to no more than an
elaboration on the arguments raised by counsel. Other parts of the
document, however, were clearly aim ed at the introduction of new
factual allegations which had not been raised either in the trial
court or in the court a quo. These allegations fall into one of two
broad categories. The first category comprised allegations that the
record of the proceedings had been falsified by interposing
stammering and the repetition of words into the transcript of the
appellant's own evidence so as to create the impression that she
was unintelligent or did not have a proper command of the English
language. The second cat egory consisted of allegations that the
employees of the supermarket in question, including Pretorius,
were part of some conspiracy or vendetta against the appellant.
8
[11] On Pretorius's version the appellant was undoubtedly guilty
of theft. The crux of the enquiry is therefore whether the appellant's
denial of Pretorius's version coul d reasonably possibly be true. In
the circumstances, the outcome of that enquiry is in turn
dependent on the question whether, in t he light of all the evidence,
the appellant's explanation as to how the two deodorants came to
be in her handbag at the time when it was searched, could
reasonably possibly be true.
[12] If the appellant's explanation were true, it would necessarily
need to follow that on that parti cular day when the appellant
fortuitously happened to be in possession of two deodorants which
she had bought in the same shop on the previous day, the shop
detective chose her from amongst all the numerous customers in
the shop as the target for a trumped-up charge of the theft of two
deodorants from that store. Even on the acceptance of the
appellant's vague and unsubstantiated speculation of victimisation
by the employees of the supermarket against her, the question
remains how the shop detective could be favoured with such good
fortune that she fortuitously brought a trumpe d-up charge on the
very day that the appellant coincidentally happened to be in
possession of two items originating from that very supermarket.
9
The appellant's explanation is so improbable that it cannot
reasonably possibly be true.
[13] The contention on behalf of appellant that the shortcomings
in the record rendered a proper consideration of the appeal
impossible, was based on the su bmission that we are dependent
on the magistrate's judgment on conviction to assess his
evaluation of the evidence. I do not agree with this submission. As
indicated the matter can, in my view, be decided on the inherent
probabilities which can in turn be de termined on the record as it
stands. If the magistrate based any credibility findings on the
demeanour of the respective witnesses, those findings could, in
the circumstances, only have been adverse to the appellant. Logic
therefore dictates that the appellant could suffer no prejudice
through this court's lack of knowledge whether demeanour findings
were indeed made by the trial court.
[14] The same can be said about the allegations in the
appellant's supplementary heads of argument, to the effect that the
record had been falsified to make her look unintelligent or unable
to speak proper English. Even if these untested and highly
improbable allegations about the fals ification of the record were to
be accepted at face value, the outcome would be the same. The
10
appellant's version falls to be rejected not because she appears
unintelligent or because of any de ficiencies in her us e of English.
Her explanation is rejected becau se it is so inherently improbable
that it cannot reasonably possibly be true. In these circumstances
the appeal against the conviction cannot succeed.
[15] That brings me to the appeal against the sentence of the
R600 fine which was imposed by the magistrate. It appears that, at
the time of the trial, the appellant was 47 years of age and a first
offender; that she was unemploy ed and that, although she held a
university degree in psychology, she had difficulty in finding a job,
particularly, so she said, because of the conviction for theft which
now appeared on her record. It also appears that, although the
appellant had no income, she accept ed responsibility for members
of her extended family. In these circumstances, a fine of R600
was, in my view, so inappropriate that it should be set aside and a
more appropriate sentence substituted on appeal.
[16] For these reasons:
(a) The appeal against conviction is dismissed.
(b) The appeal against sentence is upheld.
(c) The sentence imposed by t he magistrate is set aside and
substituted with the following:
11
'The accused is sentenced to a fine of R300 or in default of
payment to one month impr isonment, all suspended for a
period of three years on conditio n that she is not convicted of
the crime of theft committed during the period of suspension.'
………………
F D J BRAND
JUDGE OF APPEAL
Concur:
NUGENT JA
CLOETE JA