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[2015] ZAWCHC 143
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S v Majikijela (15242/2015, B517/2014,) [2015] ZAWCHC 143 (9 October 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
High Court Review Ref:
15242/2015
Kuils River Magistrates’
Court case no. B517/2014
Kuils River Magistrates’
Court serial no. 06/2015
DATE: 09 OCTOBER 2015
In the matter between:
THE STATE
And
MNCEDISI MAJIKIJELA
REVIEW JUDGMENT
BINNS-WARD J:
[1] This matter came before me on
automatic review in terms of the Criminal Procedure Act 51 of 1977
(‘the CPA’). The
accused, who claimed to be a scavenger,
had been charged in the district court with the theft of assorted
property of which he
had been found in possession by patrolling
policeman when he acted suspiciously and cast away the bag in which
he had been carrying
it when he noticed the policemen approaching.
He entered a plea of not guilty and maintained that the money that
was amongst the
contents in the bag was his own, while the rest had
been picked up by him, having been apparently abandoned. He was
convicted
of the offence as charged and sentenced to a fine with the
option of imprisonment, the whole of which was suspended for five
years
on the usual conditions.
[2] On considering the record of the
trial proceedings it seemed to me that, although it had been
established that the property
in question had probably been stolen,
the evidence fell short of proving beyond reasonable doubt that it
had actually been stolen,
or that the accused actually knew it was
stolen. I therefore queried whether the accused should not rather
have been convicted
of having committed the offence created in terms
of s 36 of the General Law Amendment Act 62 of 1955 (‘the
GLA’).
That is a competent verdict on a charge of theft by
virtue of s 264(1)(b) of the CPA. Section 36 of the GLA provides:
Any person who is found in possession
of any goods, other than stock or produce as defined in section one
of the Stock Theft Act,
1959 (Act 57 of 1959), in regard to which
there is reasonable suspicion that they have been stolen and is
unable to give a satisfactory
account of such possession, shall be
guilty of an offence and liable on conviction to the penalties which
may be imposed on a conviction
of theft.
[3] The trial magistrate resisted the
proposition that a conviction in terms of s 36 of the GLA should have
been entered. In a detailed
response to my query, the magistrate
reasoned that theft was a continuing offence and that it was not
necessary for the state to
prove who the owner of the property was,
as property could even be stolen from a person who was himself in
possession of it by
reason of having stolen it. Reference was made
to the following statement by Mthiyane AJA in S v Cassiem
2001 (1)
SACR 489
(SCA) at para 8, ‘By the same token, contrectatio and
knowledge of the theft need not be proved by direct evidence. Their
existence can be inferred from the facts and circumstances of the
case’. The magistrate also cited S v Luther en ’n
Ander
1962 (3) SA 506
(A).
[4] It became evident upon a
consideration of the magistrate’s response that she had not
been astute to the need for the state
to have proved all the elements
of the offence, including contrectatio and animus furandi.
[5] The statement from S v Cassiem
relied upon by the magistrate was cited without due regard to its
context. In that case the
accused had been found in possession of a
significant quantity of goods in circumstances that established
beyond reasonable doubt
that they had been stolen from one or more
branches of various identified retailers, being Woolworths, Foschini
and Edgars. The
point taken by the appellant in that case was that
contrectatio had not been proven because the evidence had not
identified from
which branches of the aforementioned outlets the
goods had been taken. The court disposed of that argument at para
9-10 of the
judgment as follows:
I turn to the issue whether the State
succeeded in proving the theft. There is no doubt in my mind that
this question must be answered
in favour of the State. The items of
clothing found in the appellant's house were all new; they bore the
price and name tags of
various stores such as Woolworths, Edgars and
Foschini. A large quantity of goods valued at R59 832,52, was found
and on the probabilities
neither the appellant nor her husband (who
was a gardener) could afford the same. Some of the items were still
in the hangers bearing
the names of the above-named stores. These
factors coupled with the fact that the appellant gave different
versions regarding the
acquisition and ownership of the goods leads
to no other conclusion than that the goods were stolen. The argument
that there was
no identifiable complainant because the complainants
could not prove the loss at their respective branches, is without
substance.
The charges were formulated widely enough to cover goods
stolen from any branches. I agree with the magistrate's finding that
if
one has regard to the evidence as a whole it was clearly proved
that the goods were stolen from the manufacturers or at the
distribution
points of the above mentioned stores. Theft, being a
continuous offence, it made no difference that the goods may not have
been
removed from the branches of the respective complainants or that
the appellant was not involved in the original removal (contrectatio)
of the goods. Her subsequent participation in disposing of them makes
her just as guilty as the original thief.
[10] Turning to the question whether
the appellant was aware that the clothing was stolen, there can be no
doubt that the appellant
was so aware. She did not want to disclose
her residence to the police and deliberately lied to Sergeant King
about where she lived.
Her explanation that she told the police that
she lived at her daughter-in-law's place because that is where she
was going to spend
the night, is so improbable that it was rightly
rejected by the magistrate as false beyond a reasonable doubt. When
the appellant
got to her residence she was reluctant to let the
police into the house. They only managed to get in purely
fortuitously. The different
versions given to the police as to the
acquisition and ownership of the clothes is also a factor which bears
on whether the appellant
knew whether the clothing was stolen. I
agree with the submission that her initial version that the clothing
belonged to her daughter
was an attempt to shift the blame away from
her husband. But after her husband died he was then conveniently
alleged to have been
the owner of the clothing. Allied to this
factor is the question whether she asked her husband where he had
obtained the clothing.
It is to my mind unlikely that the appellant
would not have asked her husband about the source of the goods.
Furthermore the appellant
had been receiving clothing from her
husband for two years prior to her arrest. It seems to me that she
must have been alerted
to the fact that there was something amiss
about these goods, when her husband kept on saying 'hou jou mond op'
whenever she asked
him where the clothing came from. If it had been
acquired innocently it should have been clear to any adult that there
would have
been no reason for him to keep on saying that she should
keep her mouth shut. Her husband was just an ordinary gardener
employed
at a government hospital but he repeatedly brought home four
plastic bags full of clothing every weekend. It should have been
plain
to her that the goods were stolen. In the circumstances I am
satisfied that the State has succeeded in proving that the appellant
was aware that the clothing found in her possession was stolen.
[6] It is clear from Mthiyane AJA’s
summary of the facts in Cassiem that the factual context of the
matter differed materially
from that in the current case. Ownership
of the goods was identifiable and the evidence concerning the
circumstances of the appellant’s
receipt of such goods over a
prolonged period proved that she must have been aware that they were
stolen. The only point of comparison
between the two cases is that
the accused in the current case gave contradictory explanations for
his possession of some of the
goods, as did the appellant in Cassiem.
The giving by the appellant in Cassiem of two different explanations
for her possession
of the goods was, however, just one further
incriminating factor in the factual matrix of that case considered as
a whole. It
is clear that it would not have been enough, on its own,
to prove that she had known that goods had been stolen. Conflicting
explanations
as to their possession of the goods are just as likely
to be elicited from possessors of property reasonably believed to be
stolen,
as they are from persons who actually stole it.
[7] The magistrate’s reference to
S v Luther was also misplaced. The statement by Van Blerk JA, at
511A of the judgment,
on which the magistrate relied, was ‘Aangesien
hul besluit het om die masjien op te tel en nie geweet het wie die
eienaar
daarvan is nie was die aangewese weg, en die veiligste vir
hul, om dit aan die polisie te oorhandig’. The statement had
no bearing whatsoever on whether the appellants in that case had been
properly convicted of theft. In fact, their appeal against
their
conviction on a charge of having stolen the machine was upheld. The
appellants in that case, who were two traffic policemen,
had picked
up a machine on the side of the road in Lyttleton, Pretoria. It was
obviously brand new and was contained in a box
marked with
particulars indicating that it had been despatched by Cutler and
Wilson (Pty) Ltd to Burroughs Machines Ltd in Pretoria.
The
appellants had made enquiries about the value of the machine at
Burroughs Machines and evidence had been adduced that they
had taken
steps to try to sell it there at a discount to its commercial value.
The appellants, however, offered an innocent explanation
for their
possession of the goods and conduct at the premises of Burroughs
Machines, which the appeal court - differing in that
respect from the
trial court and also the Transvaal Provincial Division in a first
appeal - held could reasonably possibly have
been true. Mr Justice
van Blerk nonetheless remarked in passing, having already found that
the appeal would be upheld, that the
appellants’ conduct ‘was
[nie] wat mens sou verwag van verantwoordelike persone in hul posisie
nie; en hul het dit
seker net aan hul self te danke dat hul in die
strafhof beland het, want hul onbesonne optrede kon lig die indruk
gewek het dat
hul gesind was om die masjien toe te eien’. It
was in that context that the statement relied on by the magistrate
was made.
It has no bearing on the issue raised in my query.
[8] There was no evidence in the
current case, apart from his own unsatisfactory explanations, of the
circumstances in which the
accused came into possession of the goods.
Circumstantial factors of the sort that were able to support a
conviction in Cassiem
supra, were lacking. The state did not prove
that the accused came into possession of the goods animo furandi. It
did prove that
he was in possession of goods in regard to which there
is reasonable suspicion that they had been stolen and that he had
been unable
to give a satisfactory account of such possession. The
accused could therefore not properly be found guilty of theft, but he
could
be convicted of the offence created in terms of s 36 of the
GLA.
[9] The magistrate, however, seemed to
consider that the failure of the prosecutor to have included a charge
in terms of s 36 of
the GLA in the charge sheet, or to have expressly
advised the accused during the proceedings that the state might ask
for the competent
verdict precluded resort to s 264(1)(b) of the CPA.
In this regard, she relied on the dictum of Nicholas AJA in S v
Mwali
1992 (2) SACR 281
(A), at 284b-c, that ‘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).’
Yet again, however, the magistrate has failed to put
the statement that she has relied on its context. The sentence she
has quoted
appears in the following paragraph of the judgment, in
which the learned judge of appeal, after recording the prosecutor’s
concession that the conviction on a count of theft could not stand,
and noting the state’s argument that it should be substituted
with a conviction under s 36 of the GLA, said:
That would be a competent verdict in
terms of
s 264(1)(b)
of the
Criminal Procedure Act 51 of 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 Others
1961 (3) SA
8
(N) at 9E-G; S v Mogandi
1961 (4) SA 112
(T) at 114A; S v Arendse
en 'n Ander
1980 (1) SA 610
(C) at 613A-B; and S v Human1990 (1) SACR
334 (C) at 336-8.)
[10] In Mwali, the appeal court in fact
entered a conviction in terms of
s 36
of the GLA notwithstanding that
the accused had not been alerted during the trial to the possibility
of such an eventuality. It
held that to be a competent result in the
absence of any indication that the appellant had been prejudiced by
the omission. That
actual prejudice is the test was confirmed in S v
Jasat
1997 (1) SACR 489
(SCA) ([1997] 2 All SA 63), at 494a (SACR),
(per Nienaber JA).
[11] Having regard to the facts of the
current case, there is no reason to believe that the accused could,
or would, have conducted
his defence differently had he been alerted
to the competent verdict. Thus, on the approach enunciated in Mwali,
there was no
bar to the competent verdict being pronounced.
[12] The goods found in the accused’s
possession included a certain sum of cash, which he claimed belonged
to him. In R v
Monyane
1960 (3) SA 20
(T), and S v Boshoff
1962 (3)
SA 175
(N), it was held that the word ‘goods’ in
s 36
of
the GLA did not include notes or coin in current circulation.
However, in S v Ganyu
1977 (4) SA 810
(RA), MacDonald CJ (Beck AJA
concurring), after a critical consideration of those judgments, took
a different view of the import
of the wording in subsections 14(1)
and (2) of the Miscellaneous Offences Act, Chap. 68, which were the
similarly expressed Rhodesian
equivalent of ss 36 and 37 of the GLA,
and held that there was no good reason to exclude money in any form
from the ambit of ‘goods’.
The interpretation of s 36 in
the relevant respect does not appear to have been revisited in any
reported judgment since the judgment
in Ganyu. In my respectful
view, the reasoning in Ganyu is compelling, and therefore, for the
reasons given in that judgment,
I am disinclined to follow the
earlier Transvaal and Natal decisions.
[13] The cash found in the possession
of the accused in the current case was contained in a purse, which
had in it other material
that suggested that it must have belonged to
someone other than the accused. The context thus supported a
reasonable suspicion
that the money had been stolen.
[14] In the circumstances the
conviction on the charge of theft will be set aside and a conviction
in terms of s 36 of the GLA substituted
in its stead. There is no
need to alter the sentence imposed, which will be confirmed.
Order
1. The accused’s conviction on
the charge of theft is set aside.
2. A conviction in respect of the
offence in terms of s 36 of the General Law Amendment Act 62 of 1955,
to wit, of being found in
possession of the property described in the
charge sheet in regard to which there is reasonable suspicion that it
has been stolen
and being unable to give a satisfactory account of
such possession, is substituted for the aforementioned theft
conviction.
3. The sentence imposed by the
magistrate on 30 January 2015 is confirmed.
A.G. BINNS-WARD
Judge of the High Court
BOZALEK J:
I agree.
L.J BOZALEK
Judge of the High Court