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1995
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[1995] ZASCA 129
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S v Buzo (656/94) [1995] ZASCA 129 (17 November 1995)
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
CASE NO. 656/94
GEORGE DAVID BUZO
APPELLANT
VERSUS
THE STATE
RESPONDENT
CORAM
: HEFER, VAN DEN HEEVER et SCHUTZ JJA
DATE HEARD
: 14 NOVEMBER 1995
DATE FILED
: 17 NOVEMBER 1995
SCHUTZ JA
2
REASONS FOR JUDGMENT
SCHUTZ JA
:
At the conclusion of argument this appeal was allowed
and the conviction and sentence set aside. The reasons now follow.
The case is concerned with the alleged theft of an old Toyota motor vehicle
CFR 362 T on 11 December 1992. Two contradictory versions
were advanced in the
Regional Court at Kempton Park. According to the complainant Esaia Makarige the
appellant George Buzo obtained
the keys of the vehicle by a ruse and decamped
with it to the Eastern Cape. The appellant, on the other hand, claimed that
the
3
complainant had lent him the vehicle for the purpose of making such a trip,
not on 11 December but on a later date. Accepting the
complainant's version and
rejecting that of the appellant, the magistrate convicted and sentenced the
appellant to five years imprisonment.
An appeal to the Witwatersrand Local
Division failed, but that Court gave leave to appeal to this Court both on
conviction and sentence.
It was common cause that the complainant and the appellant were tenants at
the same house. They knew one another, were indeed friends.
According to the
complainant, although the appellant had a job at Chloorkop he also repaired
refrigerators on private account. On
11 December 1992, which was a Friday, the
complainant was planning to drive to his "homeland" in the Toyota. The appellant
told him
that he
4
needed to deliver a refrigerator to premises along the route to the
"homeland" and requested the complainant to load up the refrigerator
and himself
and drop them off at the premises. The complainant assented and the refrigerator
was loaded onto what the complainant
in his evidence in chief called the bakkie.
Under cross-examination he said that the vehicle was not a bakkie at all but a
2000 GSL
sedan, and that the refrigerator was loaded onto the roof carrier.
When they arrived at the appellant's delivery destination in Enkhaleni
section, Tembisa, the refrigerator was unloaded. The complainant
requested to
use the toilet, and while he was doing so the appellant asked for the keys so
that he might re-position the vehicle
in order to speed up the complainant's
departure. He handed him the keys.
5
I shall leave over for the moment the complainant's description of what
happened next. Suffice it to say that the vehicle disappeared
down the road in a
dust cloud with the complainant in vain pursuit. He was not to see the vehicle
again, and the appellant not until
his trial.
The other State witness was sergeant Herselman, who was stationed at Adelaide
in the Eastern Cape. Before proceeding with his evidence
it is necessary to note
that it was ultimately agreed that the vehicle was involved in an accident at
Adelaide at between 23.10h
and 23.15h on 15 December, that is the Tuesday; also
that the complainant had laid a charge of theft in the Transvaal a few hours
earlier, at about 18.30 or 19.00h.
To revert to Herselman, he arrested the appellant for reckless or
6
negligent driving. The latter told him where the vehicle was to be found and
took him to a house which his brother, a police assistant,
hired in Lunguleto.
According to Herselman's evidence in chief the vehicle, which was a sedan, was
concealed at the back of the house,
but in cross-examination he conceded that it
was possible that it had been placed where it was for reasons other than
concealment.
He attached the vehicle on 18 December, and the appellant was
released on the same day after he had appeared in court. I shall deal
with his
evidence as to the conversation which he had with the appellant about the origin
and ownership of the vehicle at a later
stage.
Turning to the appellant, his account of earlier dealings over the car was
wholly denied by the complainant. What it came to was this.
7
The car did not have a roadworthy certificate and had been at another
mechanic's place for a long time awaiting repairs. The complainant
lost
patience. Accompanied by the appellant he went to him and retrieved the car,
which had not yet been roadworthied. The appellant
took it to his sister's place
and propositioned the complainant to sell it to him. The complainant was
prepared to let him have it
for R1000, as he was his "brother". The appellant
approached his employer, one Griesel, who agreed to advance him the necessary
money
within a week. In the meantime the appellant paid the complainant an
advance of R300 out of his own savings telling him that his
employer would lend
him the balance. When he went back to Griesel the latter pointed out that the
appellant did not have a driver's
licence, and said that he did not want
8
him to purchase from a black person as the vehicles of the blacks gave
trouble. He dropped the subject of the purchase in consequence.
In
cross-examination he added that the complainant and he decided to leave over the
finalisation of their dealing until January.
The complainant's evidence had been
that he had bought the vehicle for R800 but that he was busy having it repaired
and that at the
time of its disappearance it was worth from R1000 to R2500.
In the meantime the appellant had, according to his account, done repair work
on the car and the complainant had allowed him to drive
it around daily, so that
the latter had to take a taxi to work or rely on lifts from friends. In fact for
a period he had the custody
of the vehicle and rode around in it as he would. In
so far as these things were put to the
9
complainant he denied them saying that he would as little lend his vehicle as
his wife.
Concerning his taking the car to the Cape, the appellant explained
that he had to attend a function in his "homeland" but lacked transport.
He
approached the complainant who agreed to lend him the car for this purpose,
adding that he was not to be away for long. On the
day of his departure the
complainant asked him first to drive to his lover's place of residence in
Enkhaleni. They did not go straight
there but drove around, picked up two girls
and proceeded to their destination at Enkhaleni, which was a shebeen at
Mathumba's house.
He handed the complainant R50 to buy drink. After they had
been drinking for some time the two girls said that it was late and that
they
wished to leave. He also
10
indicated that it was time for him to go. To this the complainant responded
that that was grand and that he might leave. He left with
the girls, leaving the
complainant in the shebeen knowing that he was going to his "homeland" and
thereafter to Adelaide.
He called at a friend, Lucas Mbeka, to tell him that he was going away, and
he then drove to Adelaide. There he had an accident with
the car and was
arrested because of it.
There was much uncertainty as to what the appellant's version was as to the
date on which he left, but overall it seems to have been
Saturday 12 December.
Before leaving he had told the complainant he might be away for two or three
days, and that he had to get back
to work. Although he contradicted himself
about dates, perhaps because of
11
uncertainty as he said, he did at one stage claim that he had told the
complainant that he would be back on the Monday or the Tuesday
(i.e. the 14th or
the 15th) and that the complainant was satisfied.
Two observations should be made about the appellant's evidence at this stage.
He several times got into trouble over dates, but I
am not persuaded that this
was necessarily because he was lying. Both he and Herselman seem to have been
confused about dates. The
second observation is that several significant parts
of his version were not put during the cross-examination of the complainant.
But
again I am not persuaded that this was because of the appellant's
untruthfulness, for the reason that his evidence in chief was
also very scantily
led, and his version at times attained coherence only when he volunteered
fuller
14
The appellant did not return on Monday, but on that day (the 14th) he was
told that the appellant had telephoned asking that a sum
of R600 should be
provided at Adelaide for his bail. Leaving aside the problem of dates, which
runs right through this case, this
corroborates the appellant's version that on
the day of his arrest he had telephoned Griesel from the charge-office at
Adelaide.
He added that on that occasion he also telephoned his sister
requesting her to tell the complainant what had befallen him. (The complainant
denied that any consequent communication ever reached him.)
Luce Khubeka (presumably the "Lucas Mbeka" referred to in the appellant's
evidence) deposed that the appellant had regularly visited
him in a Toyota
Corolla which had recently been painted blue (which was the
15
colour of the complainant's car). He did not see him drive any other vehicle.
On a Saturday in December 1992 the appellant again arrived
and told him that he
was on his way to his "homeland". He did not see him again for some time.
Khubeka added that the car had no roof carrier. It is possible that this car
was not the one owned by the complainant (as the magistrate
pointed out): but
then Herselman had said of the car identified as the one allegedly stolen from
the complainant that it, also, did
not have a roof carrier. This appeared to
contradict the complainant's evidence that the repaired refrigerator had been
loaded on
the carrier for delivery. The complainant's evidence had suggested
that the carrier was a regular appurtenance to the car when he
had said, "Die
yskas het ek bo-op die
16
draer (carrier) die drarak het ek dit daarop gelaai."
The magistrate dealt with the problem created by
Herselman's
evidence by saying:
"Dit volg nie noodwendig dat klaer die onwaarheid gepraat het nie, want as
daar juis vir die yskas 'n drarak opgesit is - geleen is
- dalk selfs
beskuldigde se eie drarak, wat daarna weer verwyder en verkoop is, praat hy nie
die onwaarheid nie. Dit was nooit met
horn (klaer) geopper nie" (namely that the
car did not have a roof carrier).
Notwithstanding the valid criticism about not putting the
version,
this observation is generous to the complainant's
credibility indeed. The
speculation indulged in by the magistrate involved that between the time
of his having left the complainant pounding after him in the dusty road
at Enkhaleni and his arrest at Adelaide, he had disposed of this useful
attachment to his recently purloined vehicle. I find this most strained.
17
The more natural inference is that the complainant may have been
untruthful.
There are, in my opinion, several other reasons for having doubts
about the complainant's version. Chief among them is the unlikelihood
of the
appellant simply abandoning his job (as is the complainant's suggestion) where
his services were valued, for an old car worth
one or two thousand rands. I say
that this is the complainant's suggestion, because if it is not, his version
faces the next improbability,
that the appellant would have engaged in this
barefaced theft in the presence of witnesses, when his victim knew him well,
indeed
lived in the same house with him, and knew that he worked at a factory at
Chloorkop. It was presumably to meet these difficulties
among others that
the
18
complainant sought to disparage the appellant: saying that a man who was
constantly troubling him for R2 coins was hardly one with
whom he would
negotiate the sale of his car, and that when the appellant did get some money
from repairing refrigerators, or received
his wage, he would stay away all night
(implying thereby what one may imagine). Griesel contradicts this picture of a
man of no substance,
even if in need of credit. The magistrate brushed aside the
complainant's manifestations of ill-will towards the complainant on the
ground
that one might expect such an attitude towards a man who had stolen one's car.
Maybe. But why be untruthful about the appellant?
The magistrate was much impressed by the complainant's statement that he
would as little lend out his car as his wife, and was equally
19
unimpressed by the appellant's evidence that the complainant, whilst owning a
car, had to make use of other means to get to work.
Leaving aside the
complainant's wife, who to my mind was allowed to play too prominent a part in
the case, the appellant had quite
a good explanation. The complainant could not
use his car to go to work because it was not then roadworthy. By contrast he,
the appellant,
could well drive around in it, he without a driver's licence, in
the narrow township streets to which the traffic police did not
penetrate.
Another questionable aspect of the complainant's version is the time he took,
the more than four days between the 11th and 15th December,
to lay a charge of
theft. True, the complainant had an explanation. It was that immediately after
the theft he had gone to the
20
appellant's sister's home, where he did not find the appellant himself (I do
not know whether the innuendo was that he had expected
to find him there). The
sister said that they should wait for a while, but she also said that she knew
that the appellant would sell
the vehicle! I would have thought that this should
have increased the urgency, if anything. At some stage the sister gave him the
appellant's ID book (another form of real security?) Then, on the 15th, the
sister accompanying him, he reported the theft. I am
not impressed by this
explanation, and think that if anything it tends to support the suggestion made
by the defence as to the motive
for the complainant's having laid a charge at
all, namely that the complainant had become impatient or angry or concerned when
the
time within which the car was to have been returned (this is, of course,
21
on the appellant's version) was running out or had run out. In other words it
may have been a method of applying pressure for the
immediate return of the car,
a method which did not work because a few hours later the car was involved in an
accident and the appellant
was arrested. The appellant conceded that he was late
in returning , as things had gone wrong and he had been delayed at Adelaide.
The magistrate said that the complainant had not been proved to have been
mendacious. That may be, but there was, of course, no onus
on the appellant to
have done so. The magistrate also held that there were no inherent
improbabilities in the complainant's version.
For reasons already given I do not
agree.
He went on to say that there were no contradictions in his version.
22
With this also I do not agree. His unlikely story as to how the appellant
got the keys from him while he was in the toilet is riddled with
contradiction. In the course of his evidence in chief he said that the
car
was on the property round a corner from the entrance gate and that the
appellant's proposal was that he would reverse it as far as the gate so
as
to facilitate the complainant's departure. Yet as he came out of the
toilet
door and saw the car being driven to the gate (as arranged) he became
disturbed and started to shout and run. Further, having said that the
only
reason for repositioning the vehicle was as already stated, he added that
he had also gained the impression that the car was so close to the house
as to impede persons wishing to pass. He also contradicted himself as
to whether there was another person in the car with the appellant.
23
The magistrate relied upon the fact that the appellant had lied, in that he
had not told Herselman that he had borrowed the car. The
criticism is justified,
but its weight in the ultimate decision of the case is debatable. The appellant
had been arrested in a faraway
place after being involved in a serious accident.
Then it appeared that the car he had been driving had been reported stolen. It
would have been a tall story indeed to tell the sergeant; that the man who had
reported the theft had in fact lent him the car; a
story that has so far failed
to persuade two Courts; indeed it was considered by them to be not reasonably
possibly true.
The magistrate further held the appellant to have contradicted himself as to
his conversation with Herselman, in that when he was
24
asked why he had told the latter that he had bought the car, he initially
deposed that Herselman had lied in saying that he had said so, whereas
later in his evidence he claimed that he had answered as Herselman had
said because of the way in which the question had been posed.
Herselman
had said that the appellant had told him that he had bought
the car and that it was his. When the appellant was in the box the
magistrate asked him why he had told Herselman that he had bought it.
The appellant answered that Herselman had asked him to whom the car
belonged and he had answered that it belonged to the complainant. The
magistrate persisted by asking whether, if Herselman had said in
evidence that the appellant had claimed that he had bought the car,
Herselman would be telling a lie. The answer was that he had later said
25
that he had bought it, but the initial question had been, who owned it. In
the result he had told Herselman both that the complainant
owned the vehicle and
that he the appellant had bought it. These details also were not put to
Herselman, but I think that the magistrate
misdirected himself in saying that
the appellant had called Herselman a liar, or that he had contradicted himself.
It may be added
that although according to the appellant the sale was then in
limbo, it had not been finally cancelled. Griesel's evidence tends
to confirm
that the sale or proposed sale was not simply an invention. Strong confirmation
is provided by the complainant's lack
of reaction when told by the appellant's
sister that the appellant would sell the car.
The complainant is to all intents a single witness, as the magistrate
26
recognised. Not only do I not regard him as being substantially unblemished
as a witness, as the magistrate did, but I view his evidence
with some
scepticism, for reasons already given. As far as the appellant's version is
concerned, whatever improbabilities there may
be in it, I do not think that it
can be said that it could not reasonably possibly be true, particularly when the
support of his
witnesses is taken into account. The magistrate appears to have
ignored the substantial support that Griesel gave to the defence,
whilst
emphasizing the contradictions between him and the appellant. Whatever the
reasons for these contradictions I do not think
for a moment that Griesel's
evidence was an invention.
The magistrate has misdirected himself substantially, and upon a
27
fresh consideration of the matter I do not consider that the State has proved
its case beyond reasonable doubt.
It is for these reasons that the appeal
succeeded and the conviction and sentence were set aside.
W P SCHUTZ JUDGE OF APPEAL HEFER JA)
CONCUR VAN DEN HEEVER JA)