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[2012] ZAWCHC 226
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Sompeta v S (A228/2012) [2012] ZAWCHC 226 (2 November 2012)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER: A228/2012
DATE:
2
NOVEMBER 2012
In
the matter between:
SIMPHIWE
SOMPETA
Appellant
And
THE
STATE
Respondent
J
U
D G M E N T
FOURIE.
J:
The
appellant appeared in the Regional Court, Cape Town, on two counts of
theft of a motor vehicle; the first being in respect of
a blue Ford
Bantam bakkie with registration number C[...] and, the second, a
white Nissan bakkie with registration number C[...].
His co-accused,
who appeared with him, absconded during the trial and the matter
proceeded in his absence. After hearing evidence,
the regional
magistrate found appellant guilty, as charged, and sentenced him to 5
years imprisonment on each count. He now appeals
with the leave of
the Court a quo against his convictions only.
It
is not disputed that the two motor vehicles, referred to in counts 1
and 2, were stolen from their owners, as alleged in the
charge sheet.
It is common cause that on 29 June 2009, three members of the SAPS
went to an address in Macassar, Khayelitsha, after
receiving certain
information. Two of them entered the premises, while the third,
Constable Matakana parked the police vehicle
in the street.
The
police found that the backyard of the premises resembled what is
commonly referred to as a “chop shop”, where motor
vehicles are stripped and cut up. Three black men were busy stripping
and cutting up a white Nissan bakkie. The police also found
the rear
part of a blue Ford Bantam bakkie, which had been totally stripped on
the premises.
One
of the three men wore a bright green T-shirt, one a black ANC T-shirt
and the other a red T-shirt. The two men wearing the black
and red
T-shirts, respectively, ran away, but the police were able to detain
the one in the green T-shirt. He was the co-accused
who had absconded
during the trial.
The
members of the police were able to identify the Nissan bakkie by
means of its chassis number, while the Ford Bantam bakkie was
identified by means of an identification number imprinted on the
window of this vehicle. The police were able to establish through
their motor vehicle recovery records that both the vehicles had been
reported as stolen.
The
presiding magistrate correctly identified the issues to be decided as
follows: Firstly, whether the appellant was one of the
three men
found at the premises and, secondly, whether the Nissan bakkie and
the part of the Ford Bantam bakkie found on the premises,
were stolen
from the complainants referred to in the charge sheet.
I
should add that this is also the basis upon which the appeal is
brought by appellant, namely, that the State has failed to link
him
to the theft of the two motor vehicles.
As
far as the identity of the appellant is concerned, the two arresting
officers who saw the man with the black ANC T-shirt run
away,
testified that soon thereafter the same man was brought back to the
premises by their third colleague, Constable Matakana.
The latter
testified that he observed the appellant running from the premises
and was informed by appellant that he was running
away from the
police. I should add that all three members of the police were in
civilian clothes.
Constable
Matakana then apprehended the appellant, whose T- shirt had oil
stains and a spanner was found in the pocket of his pants.
Also
noteworthy is the fact that the appellant identified himself to the
police by means of a false name.
The
appellant’s version as to how he was arrested by Constable
Matakana while innocently walking in the street, was correctly
rejected by the magistrate as highly improbable and false. In the
result I am in agreement with the finding of the Court a quo
that the
State has proved beyond reasonable doubt that appellant was one of
the three men found at the premises, busy cutting up
the white Nissan
bakkie.
As
regards the identification of the motor vehicles, the magistrate,
upon the completion of the State case, re-called Warrant Officer
Aggenbach, in terms of section 186 of the Criminal Procedure Act. He
then testified that he had personally identified the Nissan
bakkie by
means of its VIN identification number, which he had entered in the
SAP13 register. He confiscated the Nissan vehicle
and removed same to
the motor vehicle recovery premises.
In
addition thereto, the defence admitted that this Nissan bakkie was
identified as her property by the complainant referred to
in count 2.
To this I should add that the complainant testified that she
identified this Nissan bakkie of hers at the police premises
inter
alia by means of a dent on the left front side which had been caused
by a previous collision with a horse-drawn cart.
With
regard to the blue Ford Bantam bakkie, referred to in count 1, the
owner testified that, upon the request of the police, he
visited the
motor vehicle recovery premises where he found the rear part of his
bakkie which had been severed from the front part
thereof. He
identified it as the rear part of his blue Ford Bantam bakkie,
referred to in count 1, by means of the following:
1.
He had previously removed DA Pools stickers from this part of the
vehicle, the imprints of which you could still see on the vehicle.
2.
The rusted floor, which he had previously replaced.
3.
The petrol cap with a white sticker; and
4.
The plastic number plate which had been broken in two.
I
should mention that this evidence regarding the identification of the
vehicle part was not contested.
In
addition Warrant Officer Aggenbach confirmed that the VIN
identification number was found on the window, which was with the
rear part of the blue Ford Bantam bakkie recovered in Khayelitsha,
and that he personally entered details of this part in the relevant
police register. It was then taken to the police motor vehicle
recovery site where it was identified by the owner. He confirmed
that
it was the only blue part of a motor vehicle stored at these police
premises.
On
appeal the submission, on behalf of appellant, is that there has been
insufficient identification of the vehicles as the registration
numbers referred to in counts 1 and 2 could not be linked with the
vehicles found. This may be so, but, in my view, the evidence
of
identification to which I have referred, overwhelmingly shows that
the two vehicles recovered are indeed those stolen from the
respective owners thereof.
As
I have mentioned earlier, the evidence tendered by the complainants
relating to the identification of the rear part of the blue
Ford
Bantam bakkie, and the white Nissan bakkie, went unchallenged. Viewed
together with the objective evidence of identification,
including the
admission made by the defence in respect of the Nissan, the only
probable conclusion that can be reached, in my view,
is that the
State has proved the issue of identification beyond reasonable doubt.
The
appellant was one of the three men found in possession of the Nissan
and the rear part of the Ford Bantam a few days after same
had been
stolen. He has failed to provide any convincing explanation for his
possession of the stolen property. As I indicated
earlier, his
version as to how he happened to be on the scene, is clearly false.
In
the result the appeal falls to be dismissed and the following order
is made:
The
appeal is dismissed and the appellant’s conviction on
counts 1 and 2 as
well as the sentences imposed are
confirmed.
I
agree.
SAVAGE,
AJ
It
is so ordered.
FOURIE,
J