About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2011
>>
[2011] ZAWCHC 527
|
|
Kutwana v S (A435/11) [2011] ZAWCHC 527 (18 November 2011)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT. CAPE TOWN)
CASE
NO
: A435/11
DATE
:
18 November 2011
In
the matter between:
GROOVY
ZUKILE
KUTWANA
Appellant
and
THE
STATE
Respondent
JUDGMENT
BLIGNAULT.
J
Appellant
was convicted in the Regional Court, Cape Town, on 30 March 2011 on
two charges, namely one, theft of a Volkswagen Golf
motor vehicle,
the value about R35 000, which took place on 1 to 2 August 2006 at
Claremont, allegedly the property of Megan Dale.
The second charge
was theft of a Volkswagen Golf motor vehicle, the value alleged to be
R45 000. This occurred according to the
charge on 31 January 2007 and
the vehicle was the property of Dean Cannell.
At
the commencement of the trial there were certain exchanges between
the attorney representing the accused, Mr Ntsimango, and the
magistrate and also between the accused and the magistrate. The
attorney asked for a postponement of the matter. He explained that
he
had a difficulty in obtaining further particulars and then he was
only able to consult with the accused on the morning of the
12th. He
said that he needed more time to consult with the accused -and to get
proper instructions from him. The attorney
asked
for a postponement to the next day. The prosecutor opposed the
application because the case had been postponed for
trial on several
prior occasions. The magistrate placed on record that the matter had
previously been enrolled for trial on four
occasions and that it was
postponed every time due to the accused not being ready to proceed.
The detail of these occasions appear
from the magistrate's judgment
at page 61, the first time the matter was set down for plea and trial
on 1 December 2009, and on
that occasion the case was postponed
because the attorney, Mr Strauss, who then appeared, informed the
Court that his mandate had
been terminated by the accused. Then the
matter was again postponed to enable the accused to appoint advocate
Boswell, this apparently
did not occur.
The
accused then indicated that he will conduct his own defence. Again
the case was postponed for trial to 21 June 2010. On that
occasion
the accused requested another postponement because he was not ready
to conduct his own defence and it was also alleged
on that occasion
that he was not in possession of certain further particulars, which
had been supplied on the previous occasion.
This
was the third postponement to 8 November 2010, for plea and trial
purposes. The magistrate then quoted from his endorsement
on the
record that he warned the accused to be ready for trial on 8 November
2010, he must make the necessary arrangements, if
he wants to appoint
a representative. On 8 November Mr Ntsimango came on record for the
accused, and once again there was an application
for a further
postponement because the defence was not ready for the trial on that
day. On that occasion the trial was then postponed
to 30 March which
was the date on which it actually commenced. The magistrate pointed
out that on 1 December 2010 five State witnesses
were present and had
to be excused. On 21 June 2010 six State witnesses were again at
court and had to be excused. One of the witnesses
was from Umtata in
the Eastern Cape. On 8 November 2010 the witness from Umtata was
again present and had to be excused again.
I
revert to the exchanges between the attorney and the magistrate on
the morning of the 30th March. The magistrate gave the attorney
time
until 10:30 to prepare for trial. In the circumstances the
application for the postponement of the trial was refused. The
accused was then asked to plead. His attorney told the magistrate
that he is not entering any plea. The magistrate entered a plea
of
not guilty. Before the first witness commenced with her evidence the
attorney advised the magistrate that the accused had instructed
him
to ask that the magistrate recuse himself. The attorney again asked
for a postponement of the matter and the magistrate told
him that he
had already made a ruling on that issue. The magistrate also refused
the request that he recuse himself.
Before
the witness was called the attorney placed on record again that the
accused wanted the magistrate to recuse himself, but
he informed the
Court that he had not been able to get proper instructions from the
accused. The magistrate once again refused
the application. The first
witness was about to start with her evidence when there was again an
interruption. The attorney informed
the Court that he had received
instructions not to ask questions and not to proceed with his
representation. The attorney was given
five minutes to take
instructions and he then informed the magistrate that his mandate had
been terminated. The magistrate asked
him to stay on record and
assist the accused. He also asked him to explain to the accused what
the consequences of his withdrawal
would be. The attorney discussed
this with the accused but the accused told him that he has told the
attorney to leave. The attorney
then left and the accused informed
the Court that he wanted someone else to defend him, who would listen
to him. The magistrate
informed him that the trial had to proceed.
The accused then said he had a headache. The magistrate said the
trial must proceed.
At this stage the accused said to the Court "it
is not your choice, it's my choice, I'm the accused in this case."
The
magistrate again told him to proceed and he if he caused a
nuisance he would have him removed to the court cells. The magistrate
asked him to sit down, but he refused to do so. The magistrate again
told him that he could proceed without a lawyer, or be taken
to the
cells. The accused then of his own accord informed the magistrate
that he would go down to the cells. The evidence for the
State was
thereafter led in the absence of the accused.
Ms
Megan Dale testified that she was at her flat in Claremont on 1
August 2006. She was the owner of a Volkswagen Citi Golf which
was
parked outside her flat, it was locked. The next morning she saw that
the vehicle was gone. The value of the car was about
R35 000. Two
policemen came to take a statement from her. Seven to nine months
later she was called to the Stikland Police Station
where she
identified the car. The car's engine was severely damaged and various
items in the car had been damaged, or severely
tampered with. The
damage amounted to about R25 000.
At
the end of her evidence the Court Clerk was sent down by the
magistrate to the cells to inform the accused that he could return
to
cross-examine their witness. The accused elected not to return.
The
next witness was Constable Sibuyile Booi. In 2007 he was stationed at
Nyanga Police. He testified that he went to the premises
at 2[...]
D[...] Street, Tableview with one Bongani in order investigate the
possible theft of a different vehicle, a white Golf.
Bongani
identified the accused as the person who sold the white Golf to him.
Whilst on the premises he saw a blue Golf in a garage.
He tested the
numbers on the blue Golf and it corresponded to the vehicle which had
been stolen in Claremont. He arrested the accused
and took the car to
the Bellville South Police Station. At the conclusion of this
witness's statement the magistrate again informed
the accused in the
cells that he could question the witness, but again the accused
elected not to return attending the trial.
Mr
Maritz R Coetzee testified that he is employed in the vehicle
registration section of the S A Police Services. On 6 March 2007
he
examined the identification numbers on a white Volkswagen Golf car
and found that it corresponded with a stolen vehicle reported
at Diep
River Police Station with original numbers plates C[...]. Mr Bongani
Ntengo was the next witness. The magistrate again
explained to the
appellant that he was entitled to participate in the trial. He
indicated that he did not want to take part. Mr
Ntenga testified that
he purchased a white City Golf registration C[...] from one Joe for
R40 000. The accused promised to send
the papers of the car to him in
Umtata but he did not do so. He came to Cape Town, that is now the
witness, Ntenga, came to Cape
Town and the accused gave him temporary
papers and told him that the permanent papers would follow. They
again did not arrive.
He came to Cape Town and took the car to the
police where it was examined by Mr Booi. He took Mr Booi to the house
of the accused
in Tableview where the accused was arrested. He never
received the sum of R20 000 that he had paid for the car.
Mr
Andy Swart testified next for the State. He testified that he bought
motor vehicle C[...] through an insurance company and sold
it to
Barnard Auto Spares. The vehicle was deregistered by him. The purpose
was to cancel or scrap the vehicle.
Mr
Dean Cannell testified that he was at his home at […] C[...]
Road in Meadowridge, Cape Town. He was the owner of a white
Golf 3
motor vehicle. At about 8 am on 21 January 2007 he found that his car
was not where he had parked it the previous night.
He reported it to
the police. The registration number was C[...]. It's value was about
R45 000. The police recovered the vehicle
later. He identified it at
Stikland by the engine number and items such as the leather interior,
the wheels and the steering wheel.
The damage to the vehicle was
about R15 000.
Mr
Sidney Spencer worked at Barnard Auto Spares. He testified that they
bought the vehicle, C[...], to break up for spares. They
bought it
from H and H Spares in Wellington. The various parts of the vehicle
was sold and the rest was sold to a scrap metal dealer.
They still
had the registration papers for the vehicle which meant that it had
not been sold by them.
That
concluded the evidence for the State. The magistrate caused the
accused to be brought into court. He explained his rights to
him. The
accused said that he was not going to testify as he knew nothing
about the case. He also declined the invitation to listen
to the
prosecutor's address.
The
magistrate gave judgment on 1 April 2011, the accused was brought up
from the cells and he said that he wanted to listen to
the
judgment. The magistrate dealt fully with the events that
gave rise to the accused absenting himself from the proceedings.
He
then summarised the evidence presented by the State. The magistrate
said, in short, that there was no reason to question the
reliability
or credibility of any of the evidence given by the State witnesses.
He found that in all the circumstances of the case
the accused had
the two cars in his possession and that he must have been aware of
the fact that they were stolen cars. He accordingly
convicted the
accused on both counts.
The
matter was postponed for sentence to 23 May 2011. The accused was
then legally represented and at this stage he elected to give
evidence himself. He testified that his current age was 36 years old,
his highest level of education is standard 8, he has six
children,
they are all dependant upon him as well as two children of his
brother. He was running a few small businesses before
he was
arrested, namely a construction company and a tavern and he also sold
clothes. He estimated that he paid about R6 000 per
month for the
maintenance of his dependants. Appellant admitted that he had
previously been convicted for possession of stolen
property. He was
convicted on 27 May 2010 and sentenced on 27 May 2010. I may add in
parenthesis that this was not in the circumstances
regarded as a
previous conviction as such, and the magistrate did not take it into
account as a previous conviction.
The
magistrate then sentenced him to three years imprisonment on each
charge, that is six years imprisonment in total. Ms Sussana
Kuun
appeared on behalf of appellant on appeal. She attacked appellant's
convictions in the first place on the grounds that he
did not have a
fair trial in that the evidence was led in his absence and he did not
have any legal representation. I do not agree.
As to his absence, he
himself elected to depart from the proceedings. The magistrate did
not force him, provided he behaved himself
properly which he elected
not to do.
The
provisions of
Section 159(1)
of the
Criminal Procedure Act 51 of 1977
is applicable in this situation. It reads:
"If an accused at
criminal proceedings conducts himself in a manner which makes the
continuance of the proceedings in his presence
impractical the Court
may direct that he be removed and that the proceedings continue in
his absence."
This
section is dealt with in the commentary in the work of
Hiemstra's
Criminal Procedure
at page 22/41, and the author says inter alia
the following:
"it is also
desirable to cause the accused to be brought back at a suitable time
for the Court to see whether they have realised
that they should
change their attitude
The
author refers here to authority.
"It may even be
desirable if at all possible to allow the case to stand down for a
postpone in order to allow the accused to
come to their senses. The
accused shall also be informed pertinently that the case can proceed
in their absence. Given that real
prejudice can follow such removal
it is submitted that the presiding officer should also inform the
accused of such possible prejudice.
The events in
Mokoa
, one
of the cases mentioned, underlines the fact that patience is an
indispensable component of judicial conduct."
It
is not necessary to repeat the facts that preceded the appellant's
election to absent himself from the trial. In my view the
magistrate
fully complied with each and every one of the precepts set out in the
passage which I have quoted above, in fact the
magistrate in my view
exhibited an admirable degree of patience in this matter.
As
to the question of appellant's lack of legal representation the facts
again speak for themselves. He was given ample opportunity
to be
ready for trial. He had a number of legal representatives before. He
knew that he had to be prepared and that he would have
had to consult
with his attorney before the appearance. Yet he arrived without any
consultation or preparation shortly before the
trial was about to
commence. In my view in these circumstances the magistrate did not
err in deciding to proceed without any further
postponement.
Ms
Kuun's second attack on the conviction is that the Court relied on
the doctrine of recent possession and that it had not been
shown that
the two vehicles had been stolen recently, that is recently before
the discovery of them in the possession of appellant.
I must point
out first that one is not dealing here with any legal doctrine, one
is simply dealing with a presumption of fact,
which will arise, or
may not arise, from the facts. The period between the commission of
the offence and the date on which the
stolen article was found in the
possession of the appellant is but one of the factors from which an
inference of guilt can be drawn.
In
the present case there are two other important factors. The first is
that the appellant never furnished an explanation for his
possession
of these vehicles, not at the time when he was arrested nor at the
trial. If he had an innocent explanation it would
not have been
difficult for him to convey that to the Court even after he had not
listened to any of the State evidence.
The
second factor is that appellant was found in possession, not only of
one vehicle, but of two stolen vehicles which had been
stolen on two
separate occasions. In these circumstances it is not reasonably
possible that he could have been innocent in respect
of both these
vehicles. Such a coincidence can in my view practically be ignored.
Ms
Kuun also submitted that the sentences imposed by the magistrate are
shocking, startling or disturbingly inappropriate. Once
again I do
not agree with the submission. It appears from the judgment on
sentence that the magistrate adopted a balanced approach.
In
State
v Gerber
2006(1) SACR 618 SCA
Conradie, JA
provided a
brief survey of sentences recently imposed for motor vehicle theft.
It appears from this that a sentence of three years
imprisonment
tends towards the lower end of the range. In the circumstances I am
not persuaded that the magistrate erred at all.
APPELLANT'S
APPEAL AGAINST THESE CONVICTIONS AND SENTENCES ARE ACCORDINGLY
DISMISSED THE CONVICTIONS AND SENTENCES ARE CONFIRMED
BLIGNAULT,
J
I
agree.
ROGERS, AJ