Leeuw v S (R81/2020) [2021] ZAFSHC 132 (13 May 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case Number: R81/2020

In the matter between:

VUYANE

DAVID LEEUW

and

THE

STATE

CORAM: MBHELE, J et MOLITSOANE, J

JUDGMENT BY: MOLITSOANE,

J

DELIVERED ON: 13 MAY 2021

[1] This matter comes before us as a special review in terms of s304 (4) of the Criminal Procedure Act, 51 of 1977(the CPA) pursuant to a judicial quality assurance assessment at the Magistrate Court: Hoopstad. The accused was charged with contravention of s36 of the General Laws Amendment Act, 62 of 1955 (the Act). He was convicted as charged and sentenced accordingly.

[2] The accused was convicted on the basis of the statement he made in terms of s112 (2) of the CPA. In the said statement he made the following admissions:

1. “On the 04/07/2020 I was with my friend and when we passed the Traffic Offices we saw the fence,

2. We took it and met the unknown person who told us that the fence belongs to his employer.

3. He took it by placing it at the van at the time my friend had already ran away

I admit that

4. I was found in possession of goods other than stock or produce as defined in section 1 of the Stock Theft Act (sic) to wit wire fence valued at R500 in regard to which there was a reasonable suspicion that the said goods had been stolen and I was unable to give a satisfactory account of such possession.”

[3] The concern raised in the judicial quality assurance assessment is that the statement upon which the conviction was made, lacks the factual basis upon which the element of the offence of contravention of s36 of the Act, that at the time the accused was in possession of the goods, he suspected them to be stolen. In my view, the next issue to determine is whether the admissions made during questioning in terms of s112 (2) were sufficient to sustain a charge of contravention of s36 of Act, 62 of 1955.

[4] A statement in terms of s112 (2) of the CPA must set out the facts which the accused admits and on which he pleads guilty. A mere regurgitation or repetition of the bald allegations in the charge sheet will not suffice. The court in S v Naidoo observed that section 112 was designed to protect an accused from the consequences of an unjustified plea of guilty.

[5] For the court to return a verdict of guilty on a charge of contravention of s36, there must be evidence that (a) the accused was found in possession; (b) that there was a reasonable suspicion that the goods were stolen, and (c) that the accused was unable to give a reasonable explanation of the possession.

[6] The accused, in this case, said that he and his friend saw a fence when they passed the Traffic Offices. They took the fence. The statement is silent on where exactly the fence was seen and picked up. The court failed to establish if the fence was picked up from the premises of the traffic or outside. The statement did not elicit evidence of whether the fence was abandoned or not in order to exclude the possibility that the owner might have thrown same away and same was thus res nullius. This, notwithstanding, I am satisfied that the element of possession was admitted.

[7] The accused was confronted by a person who said that the fence belonged to his employer. This person took the fence and loaded it on his bakkie. Section 36 was designed to combat theft. Where the evidence falls short of establishing the crimes of theft or receiving stolen property knowing it to be stolen, the state may resort to s36 to overcome this hurdle. Now that the identity of the owner and possibly the person in whose possession the fence was, is known, it is unclear why the accused was not charged with theft. The fact that the employee confronted the accused and his friend about their possession of the fence, compels one to infer that he (the employee) was of the suspicion that the accused and his friend were not authorised to take the fence.

[8] In the covering letter accompanying this review, the judicial quality Magistrate made the following submissions with regard to the 112(2) statement:

“It is respectfully noted in the statement of the present case at hand that there are no factual basis given upon which the element of the offence is based that at the time the accused was in possession of the goods, he suspected the items to be stolen and he suspected it to be stolen other than the mere repetition of the element of the offence in par 3.2 of the statement.”

[9] A reasonable suspicion by the finder of the goods (in this case the employee of the owner of the fence) must be present at the time the goods were found. This suspicion must exist in the mind of the finder of the goods. In S v Shabalala, McEwan, J dealing with the provisions of s36 expressed the difficulty inherent in the application of the said section. He remarked as follows:

“How can an accused person admit that some unknown person had a reasonable suspicion that goods found in his possession were stolen. The normal and proper thing in cases of this kind is that the State calls some person, frequently a policeman, who says that he found goods in the possession of the suspect. He then states his reason for suspecting that the goods were stolen and then states whether or not the suspect afforded an explanation of his possession.”

[10] In S v Martins(Van Dyk J, Myburg AJ concurring) rejected the above obiter dictum in Shabalala as “not being in accordance with the legal position”. In Martins, the court held that the provisions of s112 (1)(b) of the Criminal Procedure Act were applicable to a charge of contravention of s36 in respect of any admission, including also the subjective element of the existence of a reasonable suspicion at the time that the accused is found in possession of the goods. The Court held that the accused is able to admit that which he had no personal knowledge of.

[11] For the purposes of this case it is unnecessary to go into the debate raised in Tshabalala and Martins. In my view, the accused must lay a factual basis for admitting the elements of the offence regard being had to the circumstances in which the goods were found, his conduct upon the finding of the goods and that a reasonable person in the position of the policeman or person who found the goods would have formed a suspicion that the goods were stolen. No such factual basis was laid in this case. The statement only repeats the allegations in the charge sheet. The end result is that the statement does not meet the threshold laid out in s112. The conviction and sentence ought to be set aside.

[12] Although the conviction has been set aside it is necessary to refer to the aspect of the formulation of the sentence. According to the record of the proceedings the accused was sentenced as follows:

“Fined 1500 or 3 months imprisonment which is suspended in whole for 5 years on condition accused is not found guilty of possession of suspected stolen property committed during the period of suspension.”

Section 36 creates a statutory offence. While it may commonly be known as “possession of suspected stolen property”, it is not a common law offence. Strictly speaking there is no offence called ‘possession of suspected stolen property’, in as much as there is no offence called ‘drunken driving’. Reference to this offence must relate to the section and the Act. In so far as the condition of the sentence is that the accused should not be found guilty of possession of suspected stolen property during the period of suspension, the wording of the sentence is incorrect. The proper sentence in this case would accordingly be worded along the following lines:

“The accused is sentenced to R1500 or 3 months imprisonment which is suspended in whole for a period of 5 years on condition that the accused is not again convicted of contravention of section 36 of the General Laws Amendment Act, 62 of 1955 committed during the period of suspension.”

[13] Section 312 of the CPA lays down a proper cause to be followed where the conviction and sentence are set aside on appeal or review due to improper application of any of the provisions of s112. This section obliges the review or appeal Court to remit the case to the trial court. The court, however, in Mshengu (above) at par [17] held that the procedure set out in s312 has to be followed unless the court of appeal or review was of the view that remitting the case to the trial court would lead to injustice or would be a futile exercise.

[14] Having regard to the time lapse from the conviction and sentence of the accused and the time of the finalisation of this review I am of the view that remitting this case to the trial court would lead to an injustice. I make the following order:

ORDER

1. The conviction and sentence are set aside.

P.E. MOLITSOANE, J

I concur

N.M MBHELE, J