Ntsala v S (A166/2020) [2021] ZAFSHC 227 (4 October 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Appeal no: A166/2020

In the appeal between:

DAVID

MOJALEFA NTSALA

Appellant

and

THE

STATE

Respondent

CORAM: OPPERMAN, J et PAGE,

AJ

HEARD ON: 30 AUGUST 2021; Supplementary Heads of Argument filed on 24 & 27 September 2021

DELIVERED ON: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 4 October 2021. The date and time for hand-down is deemed to be 4 October 2021 at 15h00.

JUDGMENT BY: OPPERMAN, J

INTRODUCTION

[1] The appeal, with leave of the court a quo, lies against a conviction of theft of stock read with the provisions of sections 1, 11, 12, 14 and 15 of the Stock Theft Act 57 of 1959 (“Stock Theft Act”). Mr. Ntsala also appeals against the sentence of 24 months imprisonment. Counsel for the appellant, in addition, stated that the appellant should not have been declared unfit to possess a firearm in terms of section 103 of the Firearms Control Act 60 of 2000.

[2] I will deal with the issue of the conviction first and then with the sentence and the section 103-order. On conviction the following issues crystallized:

1. The adjudication of a matter on appeal.

2. The proper application of the law when adjudicating circumstantial evidence.

3. Slotting in with circumstantial evidence is the doctrine of recent possession.

4. The adjudication of theft as a continuing crime.

5. The issue of the explanation of the appellant of his possession of the stolen cattle.

6. The possible conviction on the competent verdicts described in section 11 of the Stock Theft Act, that will be quoted hereunder. It only allows for the conviction in the alternative to theft of stock, of section 2 or 3; not 2 and 3. The contravention of section 6 of the Stock Theft Act is not a competent verdict in terms of section 11 on a charge of stock theft.

7. The elements of the crimes of section 2 and 3 of the Stock Theft Act.

[3] The appeal was heard on 30 August 2021 but we requested Supplementary Heads of Argument on the issue of the competent verdicts, specifically sections 2 and 3. The Heads of Argument were submitted and we are indeed appreciative of the input by Counsel.

[4] As already indicated; the appellant was charged with:

Theft of stock or produce read with the provisions of section 1, 11, 12,14 and 15 of the Stock Theft Act.

1. Section 11 of the Stock Theft Act reads as follows:

11 Verdicts on a charge of theft of stock or produce

(1) Any person who is charged with the theft of stock or produce may be found guilty of-

(a) the theft of or an attempt to commit the theft of such stock or produce; or

(b) receiving such stock or produce knowing the same to have been stolen; or

(c) inciting, instigating, commanding or procuring another person-

(i) to steal such stock or produce; or

(ii) to receive such stock or produce; or

(d) knowingly disposing of, or knowingly assisting in the disposal of, stock or produce which has been stolen or which has been received with knowledge of it having been stolen; or

(e) contravening section two or three.

(2) Any person charged with the theft of stock or produce belonging to a particular person may be found guilty of any of the offences mentioned in subsection (1), notwithstanding the fact that the prosecution has failed to prove that such stock or produce actually did belong to such particular person.

2. Section 2 stipulates that:

2 Failure to give satisfactory account of possession of stock or produce

Any person who is found in possession of stock or produce in regard to which there is reasonable suspicion that it has been stolen and is unable to give a satisfactory account of such possession shall be guilty of an offence.

3. Sections 3 stipulates that:

3 Absence of reasonable cause for believing stock or produce properly acquired

(1) Any person who in any manner, otherwise than at a public sale, acquires or receives into his or her possession from any other person stolen stock or stolen produce without having reasonable cause for believing, at the time of such acquisition or receipt, that such stock or produce is the property of the person from whom he or she acquires or receives it or that such person has been duly authorized by the owner thereof to deal with it or dispose of it shall be guilty of an offence.

In the absence of evidence to the contrary which raises a reasonable doubt, proof of possession as contemplated in subsection (1) shall be sufficient evidence of the absence of reasonable cause. [S. 3 substituted by s. 2 of Act 55 of 2002.]

THE

UNDISPUTED AND PROVEN FACTUAL BASIS

[5] The undisputed and also proven factual basis of the case is the following:

1. At about 17h00 on the Thursday afternoon of the 2nd of August 2018 the herder on the farm Moedersdeel in the Edenville district counted the cattle on the farm and went home. The next morning, he discovered the fence damaged and three calves[1] were missing.

2. On the same day the second State witness saw how the appellant arrived, according to him, with two boys and cattle at the local municipal sewage works. They did not arrive at once with the three cattle but the one after the other and trice. The cattle were driven into the sewage mud. Two got stuck and were pulled out by the municipal tractor. They were branded by the appellant with his registered mark after they came out of the sewage.

3. In the meanwhile, the herder reported the incident to the police. He, together with the police could not find the cattle. A week later the police found one of the cattle in another camp than where the appellant kept his stock and the herder identified it as the property of the owner and one of the calves that went missing on 2-3 August 2018. The other one came back to the farm on its own. The third one was never recovered.

4. The brand mark was proved to be that of the appellant[2] and it was still “fresh”. The police took samples for DNA tests and it came back positive to the rest of the herd on the farm. The police waited for the DNA results before they confronted the appellant. This happened more than a month after the incident of the theft.

5. The police knew for a fact that the cattle were stolen when they confronted the appellant. The appellant did not give them any explanation for the possession of the cattle. The appellant claimed a language barrier to have existed and he was also of the view that no matter what he said, he will be arrested.

6. The appellant never during the investigations or trial denied that he possessed the stolen cattle but claimed that it was only two.

7. The case only went on trial in September 2019 and the appellant did not give any plea explanation. He did, belatedly, but legally and still within his constitutional right to do so, divulge his defense during cross examination of the State’s witnesses.

8. He maintained that he bought the cattle from one Mr. Tshabalala and obtained a copy of his Identity Document.

9. When Mr. Tshabalala was to come to court to testify, he went missing.

10. Notwithstanding the fact that the appellant had his telephone number and address and knew him well, Mr. Tshabalala could not be traced.

11. The appellant kept the information about Mr. Tshabalala, the person that actually according to the appellant stole the cattle, from the police for more than a year.

12. He admitted that he suspected that the cattle might have been stolen but was not certain.

13. It is common cause that there is no direct evidence showing how and who stole the cattle. The appellant was seen with similar cattle shortly after the theft; it seems to be within a day or two after the theft. There is no direct evidence that the cattle that were brought to the sewage works were indeed the cattle stolen during the night of the 2nd to 3rd August 2018. The description of the single witness of the cattle in the possession of the appellant was good and correlated with the general appearance of the three calves. The witness did not know if the cattle were bought or stolen. The statement of the witness to the police indicated that the cattle were brought to the municipal premises on the Thursday, but this is wrong. It was only stolen on the Thursday night. The appellant did however not deny possession of two calves that were stolen during the night of the 2nd to 3rd of August.

14. The appellant maintained that he bought only two calves and only two calves were recovered with his brand. The third calve is missing and could not be connected to the appellant.

THE

CASE FOR THE APPELLANT

[6]

THE GROUNDS FOR APPEAL

Ad Conviction

1. The State failed to prove the guilt of the appellant beyond reasonable doubt.

2. There was no direct evidence against the appellant that he stole the cattle and the court did not apply the principles of circumstantial evidence accordingly.

3. The court did not approach the evidence of Petrus Ramatlalane with the requisite caution as a single witness.

4. The court underscored the material contradictions in the oral evidence of Ramatlalane in court and his affidavit to the police which was handed in as Exhibit B.

5. The court further disregarded the evidence of Ramatlalane that he did not like the appellant, which factor could play a role as a possible motive for false testimony against the appellant.

6. The court erred in not finding that the evidence of the investigating officer (W/O Swart) to the effect that his investigations revealed that the cattle were brought by two males to the appellant corroborated the appellants version in this regard.

7. The version of the appellant was reasonably and possibly true and ought to have been accepted. No evidence controverted his version that he bought the cattle from Tshabalala.

[7]

THE SUPPLEMENTARY HEADS OF ARGUMENT BY THE APPELLANT

AD CONVICTION ON SECTION 2 OF THE ACT

1. Section 2 of the Act provides that,

“Any person who is found in possession of stock or produce in regard to which there is reasonable suspicion that it has been stolen and is unable to give a satisfactory account of such possession shall be guilty of an offence”. (Emphasis added)

2. I hasten to point out that there is no evidence at all presented by the state to countenance any proposition of possible conviction in terms of this section.

3. It is common cause that the appellant possessed the relevant heads of stolen cattle. However, there is no evidence of any reasonable suspicion occasioned by such possession and this is one of the cardinal elements of the offence. Moreover, such reasonable suspicion should have manifested at the time the cattle were found in possession of the appellant.

4. The view expressed above is premised in the unreported judgment of High Court of Namibia, Northern Local Division, held at OSHAKATI (Appeal Judgment), Case No. CA 15/2016, in the matter between HOSEA ALUGONGO ELUMBA and THE STATE. A copy attached.

5. I digress to mention that the provisions of Namibian Stock Theft Act, 12 of 1990, are replica to the provisions of the South African Stock Theft Act. Both Acts have similar provisions of sections 2, 3 and 11 which are applicable in casu. See paragraphs 24 – 26 of Elumba above.

6. In paragraph 29 of Elumba, the court quoted with approval what was said in the case of S v Silas 2013 (3) 760 (HC), where reference was also made to a number of South African courts’ decisions and the following passage is apposite:

“[5] It has been held time and again in matters dealing with similarly worded statutory provisions in other laws dealing with good or stock…that the reasonable suspicion that the stock has been stolen must exist at the time, or virtually at the time, that the accused was found in possession thereof (R v Mokoena 1957 (1)SA 398 (T); R v Hunt 1957 (2) SA 465 (N) at 468; R v Ismail and Another 1958 (1) SA 206 (A) at 209G – H read with 211 F – G; R v Ndou 1959 (1) SA 504 (T); S v Reddy 1062 (2) SA 343 (N); S v Khumalo 1964 (1) SA 498 (N) at 499; S v Zuma 1992 (2) SACR 488 (N) at 491e). It is incorrect to allege that the reasonable suspicion ‘is’ in existence in the present tense, i.e at the trial. As charge- sheets usually refer to past conduct, the allegation under discussion, read in context, should have stated that the accused was found in possession of stock in regard to which there was a reasonable suspicion that it had been stolen”. (Emphasis added)

7. In our case, the evidence of Johannes Andrias Swart (“Swart”) was to the effect that “one calf came back to the farm by itself”.

Record: P 57 lines 22 – 23

8. The second calf was found in a camp near the township of Edenville.

Record: P 58 lines 3 – 4.

9. There is no evidence at all that when the cattle were “found in possession” of the appellant that they raised reasonable suspicion to Swart that they were stolen.

10. The onus remains on the State to prove the guilt of the accused beyond reasonable doubt on competent verdicts.

11. Consequently, no conviction can be sustained on this competent verdict or offence.

AD SECTION 3 OF

THE ACT

12. In terms of this section, the conviction may follow if one acquires or receives stock from any other person, stolen stock or produce without having reasonable cause for believing, at the time of such acquisition or receipt that such stock or produce is the property of the person from whom it was acquired or received.

13. In casu, the evidence of the appellant was to the following effect, amongst others: -

(i) That he bought the cattle from Tshabalala;

Record: p 65 lines 11 - 25

(ii) He received a copy of Tshabalala’s Identity document. This shows that Tshabalala is not a fictitious person or self – created.

Record: p 66 lines 16 – 25

(iii) To his knowledge, Tshabalala owned cattle;

Record: p 69 lines 16 – 17

(iv) It is common cause that the cattle were delivered during the day;

(v) The cattle did not bear any person’s brand marks.

14. Section 6 of the Act prescribes what is required of the person who, amongst others, sells stock.

15. It is imperative to note that the requirements thereof obligate the seller thereof to furnish the buyer with the prescribed documentation. In other words, failure to comply rests squarely on the door steps of the seller and not the buyer.

16. It is therefore my respectful submission that the instances mentioned under paragraph 15 above constitute enough and or adequate safe - guards which provide a reasonably possibly true account of section 3.

17. Consequently, the state failed to prove the guilt of the appellant beyond reasonable doubt even on this count.

THE

CASE AS MAINTAINED BY THE STATE

[8] Counsel for the State is adamant that the crime of theft of stock has been proven beyond a reasonable doubt. He relied on the recent possession of the cattle and the fact that theft is a continuing crime. According to him the trial court did not commit any error in fact or law that justifies intervention of the Court of Appeal. He submitted that in the alternative the appellant is guilty of the contravention of both sections 2 and 3.

THE

ISSUES

[9] Several issues of law came to the fore. These are:

1. The adjudication of a matter on appeal.

3. Slotting in with circumstantial evidence is the doctrine of recent possession; what is the rule and when does it prove the perpetration of the offence by the person caught in possession of the stolen property?

4. Theft is also a continuing crime. The question is whether the appellant’s conduct perpetuated the theft of the cattle to the extent that he may be convicted of the theft itself ?

5. The issue of the explanation of the appellant of his possession of the cattle is vital; when must the explanation be made and did the evidence of the State refute the explanation to such an extent that it may be rejected? What is a satisfactory explanation in the circumstances of the case and the facts proven?

6. If the explanation of the appellant is accepted does the fact that he suspected that the cattle were stolen conclude in the contravention of section 2 of the Stock Theft Act in that he did not give a satisfactory explanation?

7. All the above said; did the appellant rather transgress the elements of the contravention of section 3 of the Stock Theft Act?

THE

LAW ON THE ISSUES

[10]

ADJUDICATION ON APPEAL

1. The fundamental principle on the evaluation of evidence on appeal is that an appeal court is not inclined to disturb findings by the trial court on the evaluation of the evidence. The advantage of seeing and hearing the witnesses is difficult to surpass.

2. The Supreme Court of Appeal reiterated this stance in its judgment on 31 July 2020 in AM and another v MEC Health, Western Cape (1258/2018) [2020] ZASCA 89:

Such findings are only overturned if there is a clear misdirection or the trial court’s findings are clearly erroneous. That has consistently been the approach of this court and the Constitutional Court as reflected recently in the following passage from ST v CT:

‘In Makate v Vodacom (Pty) Ltd the Constitutional Court, in reaffirming the trite principles outlined in Dhlumayo, quoted the following dictum of Lord Wright in Powell & Wife v Streatham Nursing Home:

“Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judges, and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”

3. The same was law seventy-two years ago; and it is still true in the constitutional epoch. If there was no misdirection of facts by the trial court, the point of departure is that its conclusion was correct. The general principles according to which a court of appeal should consider a case are set out in R v Dhlumayo 1948 (2) SA 677 (A). The court of appeal must bear in mind that the trial court saw the witnesses in person and could assess their demeanour.

4. The court of appeal will only reject the trial court’s assessment of the evidence if it is convinced that the assessment is wrong. If the court is in doubt, the trial court’s judgment must remain in place (S v Robinson 1968 (1) SA 666 (A) at 675H).

5. Courts of appeal have greater liberty to disturb findings of a court a quo when dealing with inferences and probabilities. (Minister of Safety and Security v Craig 2011 (1) SACR 469 (SCA) at [58]). In casu the case is exclusively based on inferences and probabilities drawn from circumstantial evidence. There is not any direct evidence of the theft. The case was not presented thoroughly by the State and the presiding officer had to step in to clarify issues. Time periods and dates are vague. The identification of the cattle on the day the branding took place and when it was noticed in the possession of the appellant, is vague and uncertain. Only two cattle were proven to be connected to the appellant. Notwithstanding the trial court convicted of three cattle. The above to name a few issues. The problems of the case will be discussed in detail hereunder.

[58] Although courts of appeal are slow to disturb findings of credibility, they generally have greater liberty to do so where a finding of fact does not essentially depend on the personal impression made by a witness's demeanour, but predominantly upon inferences and other facts, and upon probabilities. In such a case a court of appeal, with the benefit of a full record, may often be in a better position to draw inferences.

[59] In the present case, as demonstrated above, the credibility findings are not borne out by the record. The reasoning of the court below, in relation to the probabilities, is, at times, based on incorrect facts and is flawed in the respects referred to above. (Accentuation added)

6. The court of appeal does not zealously look for points upon which to contradict the trial court’s conclusions and the fact that something has not been mentioned does not necessarily mean that it has been overlooked.

CIRCUMSTANTIAL

EVIDENCE

[11] The conclusion that the appellant was involved in the theft was solely based on circumstantial evidence.

1. To adjudicate circumstantial evidence the court must rely on inferences. The approach is set out as follows in R v Blom 1939 AD 188 following to the cardinal principles of logic:

i. The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

ii. The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, there must be doubt whether the inference sought to be drawn is correct.

2. Zeffert et al[3] with reference to case law said it perfectly:

i. All circumstantial evidence, of course, ultimately depends on facts that are proved by direct evidence.

ii. Its use, however, involves a source of potential error not found in direct evidence, where the possibility of error lies in the fact that the witness may not be telling the truth. This potential additional error lies in the need for properly and accurately assessing the degree, if any, to which the evidence, on the assumption that it is true, is more probable. The court, in making such an assessment, may be mistaken in its reasoning.

iii. Circumstantial evidence is popularly supposed by laymen to be less cogent than direct evidence. This is, of course, not true as a general proposition. In some cases, as the courts have pointed out, circumstantial evidence may be the more convincing form of evidence such as fingerprints.

iv. But obviously there are cases in which the inferences will be less compelling and direct evidence more trustworthy. It is therefore impossible to lay down any general rule in this regard. All one can do is to keep in mind the different sources of potential error that are presented by the two forms of evidence, and attempt as far as this is possible to evaluate and guard against the dangers they raise.

v. The principles that have dominated our thinking and our practice in performing this task in the case of circumstantial evidence are the “two cardinal rules of logic” referred to by Watermeyer JA in R v Blom.

THEFT AS A CONTINUING CRIME[4]

[12] The rule that theft is a continuing crime means that the theft continues to be committed as long as the stolen property remains in the possession of the thief or somebody who has participated in the theft or somebody who acts on behalf of such a person.

1. The rule has two important applications. The first is procedural in nature and in regard to territorial jurisdiction. The accused may be tried and convicted if he is found in possession of the stolen property within the court’s territory even if the crime was committed in another jurisdiction and vise versa.

2. The second consequence of the rule is that, generally speaking, our law draws no distinction between perpetrators and accessories after the fact. Since theft is a continuing crime, the person who after the commission of the theft assists the thief (who is still in possession of the property) to conceal the property does not qualify as an accessory after the fact, because his assistance is rendered at a time when the original crime (theft) is still uncompleted. The person rendering the assistance is therefore guilty of theft, and not merely of being an accessory after the fact.

THE

DOCTRINE OF RECENT POSSESSION

[13] The Supreme Court of Appeal reiterated the proper application off the doctrine of recent possession in Mothwa v The State (124/15) [2015] ZASCA 143; 2016 (2) SACR 489 (SCA) (1 October 2015) at [8] to [10]:

1. The doctrine of recent possession permits the court to make the inference that the possessor of the property had knowledge that the property was obtained in the commission of an offence and in certain instances was also a party to the initial offence.

2. The court must be satisfied that (a) the accused was found in possession of the property; (b) the item was recently stolen.

3. When considering whether to draw such an inference, the court must have regard to factors such as the length of time that passed between the possession and the actual offence, the rareness of the property and the readiness with which the property can or is likely to pass to another person.

4. There is no rule about what length of time qualifies as recent. It depends on the circumstances generally and, more particularly, on the nature of the property stolen.

5. Courts have repeatedly emphasised that the doctrine of recent possession must not be used to undermine the onus of proof which always remains with the State.

6. It is not for the accused to rebut an inference of guilt by providing an explanation. All that the law requires is that having being found in possession of property that has been recently stolen, he gives the court a reasonable explanation for such possession. (Accentuation added)

THE

EXPLANATION

[14] As was ruled above; the explanation is vital in the adjudication of matters that involves circumstantial evidence, recent possession and theft as a continuing crime. The explanation in the instance is also multifaceted in law.

1. The inability to give a satisfactory account is not to be limited to the time when the goods were found in the possession of the alleged perpetrator.[5] The explanation of the possession may be given at any time; including during trial.[6]

2. “Satisfactory” is if it is reasonably possible or shows a bona fide believe of innocence on the offence charged with.[7]

3. The test for awareness of unlawfulness is subjective.[8]

4. The test is one of dishonesty and not one of negligence.[9]

GENERAL

[15] The evidence must be adjudicated as a whole and the guilt of the appellant must exist beyond a reasonable doubt.

1. The foundation of criminal cases was described by Willis, JA in Ramaite v S (958/2013) [2014] ZASCA 144; 2015 (2) SACR 79 (SCA) (26 September 2014):[10]

[66] …The critical question is therefore brutal in its simplicity: did the appellant have a fair trial or did he not? The evaluation of the evidence in a trial requires regard to the totality thereof. By parity of reasoning, an evaluation of the fairness of a trial must be undertaken by having regard to the totality of facts and circumstances relating to the trial, including the evidence itself. (Accentuation added)

2. According to Hiemstra[11] the duty of rebuttal on the accused when the State has made out its prima facie case need do no more than give an explanation about which the court can say “It is reasonably possibly true”. This is the accused’s duty of rebuttal. This duty is, in the first place, the duty on the accused after the State has presented its evidence. It is to cast doubt on such evidence, either by presenting evidence in rebuttal or by breaking down the State’s case through effective cross-examination. If the State’s case is, on the probabilities, credible and the accused does nothing to reduce its force, he or she has not complied with the duty of rebuttal in that he or she has done nothing to cast doubt on the State’s case.

3. The judgment in Segalo v S (A543/2010) [2017] ZAGPPHC 41 (14 February 2017) explains it as follows:

[15] The correct approach to the evaluation of evidence in a criminal trial was enunciated by the Supreme Court of Appeal as follows in S v Chabalala 2003(1) SACR 134 (SCA) at paragraph 15: The trial court's approach to the case was, however, holistic and in this it was undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favor of the State as to exclude any reasonable doubt about the accused's guilt...

[16] … Where does one draw a line between proof beyond reasonable doubt and proof on a balance of probabilities? In our law, the classic decision is that of R v Mlambo 1957 (4) SA 727 (A). The learned Judge deals, at 737F-H, with an argument (popular at the Bar then) that proof beyond reasonable doubt requires the prosecution to eliminate every hypothesis which is inconsistent with the accused's guilt or which, as it is also expressed, is consistent with his innocence. This approach was rejected, preferring to adhere to the approach which 'at one time found almost universal favour and which has served the purpose so successfully for generations' (at 738A). This approach was then formulated by the learned Judge as follows (at 738A- C):

'In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.” (Accentuation added)

THE

VERSION OF THE APPELLANT

[16] The appellant, on his own version, bought cattle whilst suspecting that it was stolen; not knowing. He did not as a fact knew that it was stolen. His evidence and the undisputed evidence of the witnesses for the State; and the circumstances prove this beyond any doubt. The inference the court a quo made that the appellant stole the cattle is not the only reasonable inference that can be drawn on the proven facts of the case. Two boys brought the cattle to the appellant and one Mr. Tshabalala sold the cattle to him. This was never refuted by any of the evidence of the witnesses or evidence for the State. What is clear is that the appellant did suspect that the cattle was probably stolen.

[17] The elements of the offence described in section 3 of the Stock Theft Act are:[12] that the accused (i) acquired (ii) unlawfully (iii) stock or produce (iv) stolen (v) from another. After prove of the State of the elements above, the accused, in order to escape conviction, must show on a balance of probabilities that at the time of such acquisition or receipt, he believed (i) that the stock was the property of the person from whom he received it (or that that person was authorized by the owner to deal with or dispose of the stock), and (ii) that he held such belief with reasonable cause.

[18] In this instance it is an undisputed fact that the cattle were stolen. The appellant, in his own words, believed that the stock was probably stolen. It was proven and stands undisputed that at least two of the three cattle (stock) that was stolen from the complainant was in the possession of the appellant the day after the theft. He acquired and received it. He did so unlawfully because the sale was not affected at (a) any public market; or (b) by any shopkeeper during the hours when his shop may in terms of law remain open for the transaction of business; or (c) by a duly licensed auctioneer at a public auction; or (d) in pursuance of an order of a competent court. The required documentation in terms of section 6 of the Stock Theft Act was not issued.

[19] This is his explanation and the circumstances of the incident that he described:[13]

1. The cattle that he bought for R3500-00 each the morning after it was stolen, went missing from his herd and this was his reaction thereto:

PROSECUTOR: Did you report them missing?

MR NTSALA: No, I never reported it because usually when we move the cows, we first have to look for them and then (inaudible)

PROSECUTOR: Okay but you are saying I look for them so in essence you following the procedure that the police laid out, they say that you must look for the cattle first then come and report, did you go and look for them and then come to the police station to say I have lost my cattle?

MR NTSALA: In my mind he sold the cows to me and then stole them back.

PROSECUTOR: This Tshabalala person?

MR NTSALA: Yes.

PROSECUTOR: And you did not do anything afterwards you just relaxed and did nothing while you(sic) are missing?

MR NTSALA: Because in my head he was lying because he probably stole them, I told myself that I am going to look for them.

PROSECUTOR: Why do you say he is the one who probably stole them?

MR NTSALA: Because that is the first thing that came to my mind, usually the cows will be stolen so why specifically these two right now.

2. The police confronted him more than a month after the incident with the stolen cattle and he did not breath a word about the person that he bought it from.

3. He was suspicious of the person that sold the cattle and demanded a copy the Identity Book of Mr. Tshabalala; the man he bought the cattle from.

4. He knew where he lived and even had his telephone number, but he did not tell the police about this man that he bought the cattle from.

5. He was only approached and arrested on the 13th of September 2018 and the theft occurred between the 2nd and the 3rd August 2018. By this time the cattle were not in his possession anymore but have wandered of; one back to the farm of the owner and the other to another camp. The third animal was never located. He did not give any explanation to the police but gave an explanation later in court.

6. The animals were connected to the appellant by the branding he placed on it.

7. He did not look for the man that sold stolen property to him and that caused him to be arrested. This man that caused him to lose, in the least, R7000.00 in cash; the money that he paid for the cattle. He did not demand his money back from Mr. Tshabalala.

8. The case only started on 17 September 2019 and the accused did not make any plea explanation to the court about the man that he bought the cattle from. In the year that passed he did not make any attempt to trace Mr. Tshabalala or report him to the police. All this knowing that he was the person that stole the cattle and now caused him to face imprisonment.

9. Suddenly when the trial commenced and Mr. Tshabalala was implicated by the appellant; Mr. Tshabalala went missing and could not be traced by the police.

10. The cattle were immediately branded with the mark of the appellant to further confuse the viewer as to its identity.

11. The appellant, a seasoned cattle owner with his own registered brand mark, did not ask for the prescribed papers[14] when buying cattle in this manner. This is fatal to his claim of complete innocence.

12. Counsel for the appellant correctly referred the court to the matter of Elumba v S (CA 15/2016) [2018] NAHCNLD 43 (24 April 2018) wherein the accused was convicted of section 3 of the Stock Theft Act 12 of 1990 that is similar to our legislation. The court ruled as follows:

[21] I agree with the learned magistrate that there is a duty on a person buying stock to be in lawful possession of such stock. Likewise in my view, there is a duty on a person who receives stock to ensure that he is not unlawfully receiving stock. I further agree that when documentation got lost, new documents can easily be acquired. The appellant did not testify that he at least attempted to obtain new documents. Furthermore, the headman whom the accused claimed to have assisted him with document(s) denies such fact and testified that it was the first time in court to see the appellant. (Accentuation added)

[22] It is common course that the appellant was found in possession of stock not belonging to him; those cattle that were found in his possession did not belong to him; those cattle found in his possession were returned to the lawful owners or their representatives; the accused did not claim ownership of the cattle in question and it is not known if the appellant made attempts to recover his money that he allegedly bought the cattle for.

13. Counsel for the appellant is mistaken in his submission that the seller exclusively carries the responsibility to ensure that the documents is compiled and handed over to the buyer and the copy of the Identity Document sufficed. The case law he referred to above and section 6(2) explicitly decrees that: “No person to whom any stock has been sold, bartered, given or otherwise disposed of and to whom a document of identification is required to be furnished in terms of subsection (1) shall take delivery of such stock without obtaining such document at the time of delivery.” And further:

(3) Any person to whom a document of identification has been furnished in terms of subsection (1) shall retain it in his possession for a period of at least one year.

[Sub-s. (3) substituted by s. 1 (b) of Act 28 of 1990.]

(4) Any person may within the period referred to in subsection (3) demand an inspection of such document, and upon such demand the person having possession of such document shall produce it for inspection to the person making the demand.

[Sub-s. (4) substituted by s. 1 (b) of Act 28 of 1990.]

(5) Any person who-

(a) contravenes or fails to comply with any provision of this section;

(b) fails to comply with any demand made under subsection (4); or

(c) willfully makes any false statement in a document of identification, shall be guilty of an offence.

14. The copy of the Identity Document is not a Document of Identification in terms of the Stock Theft Act. The appellant, a seasoned cattle owner knew this. A Document of Identification shall contain the details of the seller as follows:

(a) stating-

(i) his full name and address and, if the stock was sold, bartered, given or disposed of on behalf of some other person, also the name and address of such other person;

(ii) such particulars in regard to such stock as may be required to be stated therein in terms of any regulation made under section sixteen;

(iii) the full name and address of the person to whom the stock was sold, bartered, given or disposed of;

[Sub-para. (iii) added by s. 1 (a) of Act 28 of 1990.]

(iv) the date on which the stock was sold, bartered, given or disposed of;

[Sub-para. (iv) added by s. 1 (a) of Act 28 of 1990.]

(b) certifying that such stock is his property or that he is duly authorized by the owner thereof to deal with or dispose of it.

[Sub-s. (1) amended by s. 3 of Act 59 of 1983.]

CONCLUSION

[20] Careful reading of the record shows that the Grounds of Appeal and the Heads of Argument for the Appellant are correct but for the contravention of section 3. The guilt of the appellant of the theft of the stock was not proven. He was not connected to the theft in any manner. He did give a satisfactory explanation of his possession of the cattle on the charge of theft; he suspected it to be stolen but did not know it as a fact.

[21] If the evidence is adjudicated as a whole, there is no evidence that the appellant was involved in the theft. The appellant was in the recent possession of the cattle but he explained how it came about. The court a quo did not apply the doctrine of recent possession correctly and did not give any regard to the possibility that the version of the appellant might be reasonably possibly true; this in the face of the bias of the single witness against the appellant and the contradictions pointed out by Counsel for the appellant.

[22] The appellant cannot be convicted of theft on the basis that it is a continuing crime because he did not hide the cattle to protect the real perpetrator of the theft or subjectively promoted the theft; he kept it openly but branded it with his mark. He did not subjectively know as a fact that the cattle were stolen, he only suspected this. He did divulge the name of the perpetrator and Mr. Tshabalala was found by the police but demanded a subpoena to come to court; he went missing afterwards.

[23] The version of the appellant is reasonably possibly true and reasonable; he gave an explanation. The version of the appellant does prove that he is guilty of the contravention of section 3 of the Stock Theft Act because he did have cause to suspect it to be stolen and acquired it. There was no proof to the contrary. The cattle were indeed stolen and it was acquired without Documents of Identification. He acquired the cattle unlawfully.

[24] To reiterate in conclusion; the appellant is guilty, beyond any reasonable doubt and on his own version, of the contravention of section 3 of the Stock Theft Act 57 of 1959 in regard to two cattle.

SENTENCE

[25] The prescribed sentence for the contravention of section 3 is depicted in section 14 of the Stock Theft Act. The trial happened in the District Court at Edenville. The maximum sentence to be a fine or imprisonment not exceeding three (3) years.

14 Jurisdiction of magistrates' courts in respect of sentence

Notwithstanding anything to the contrary in any law, any magistrates' court may, in respect of an offence under this Act-

(a) where the court is not a court of a regional division, impose a fine or imprisonment for a period not exceeding three years; or

(b) where the court is a court of a regional division, impose a fine or imprisonment for a period not exceeding fifteen years.

[S. 14 substituted by s. 7 of Act 59 of 1983 and by s. 2 of Act 32 of 1986, amended by s. 5 of Act 28 of 1990 and substituted by s. 4 of Act 62 of 2000.]

[26] Section 92[15] of the Magistrate’s Court Act 32 of 1944 stipulates the maximum sentencing jurisdiction of the district court to be “R120 000 where the court is not the court of a regional division, and R600 000 where the court is the court of a regional division—GN 217 of 27 March 2014 (GG 37477 of 27 March 2014).”

[27] When one receives stolen property the atrocious market wherein murderers and their conniving allies such as thieves, robbers and burglars thrive is created; without participation in this market the bane of crime and lawlessness that has overwhelmed our country, would not have existed or in the least, be challenged. The objective of the legislator with section 3 of the Stock Theft Act is primarily to prevent theft and prevent a market for stolen stock.

[28] The undisputed facts of this case show that the complainant and owner of the cattle does all in his power to protect his herd. He has a permanent herder that cares for the cattle. He keeps it in a safe area under lock and chain. The cattle were however stolen when the fence was damaged during the night.

[29] From the three cattle that went missing, two were recovered. The recovery was not with the assistance of the appellant but by the cattle that endeavored to and in one instance, did find its way back to the owner. The other one was traced in another camp by the police. The third one was not recovered. The Charge Sheet mentions a value of R27 000.00 but this was never proven. The appellant paid R3500.00 per head of cattle. He admitted to the possession of two but the conduct of the thieves whom he supported with his purchase of the cattle caused one to an estimated value of at least R3500.00, to go missing. The loss suffered by the owner is thus a minimum of R3500.00.

[30] Counsel for the appellant argued that a conviction on section 3 of the Stock Theft Act would automatically bring about a lessened sentence. The appellant was sentence to 24 (twenty-four) months imprisonment for the theft of three cattle. He also submitted that imprisonment coupled with the option to pay a fine would be appropriate in the circumstances. Consequently, he submitted that a sentence of six months imprisonment or a fine in the amount of R2000.00 would be appropriate and the appellant should not be declared unfit to possess firearm.

[31] The accused was 36 years old at the time of the offence. He is a first offender. He has three children aged 7, 11 and 17 years old. He is divorced and is responsible for the financial support of the children. He works at the municipality and after deductions earns a salary of R30 000.00. The court was not made privy to what the deductions entail and what his bruto salary is. Suffice to say is that the appellant is a man of means. He could, immediately pay R7000.00 cash for the two cattle. His legal representative placed on record that: “… he has a high social status in the community…”

[32] The conduct of the appellant during the case shows an arrogant man that does not respect the law or the right to property of his fellow citizens as guaranteed in the Constitution of the Republic of South Africa, 1996. He refused to divulge his explanation of the possession of the cattle and only left it to be declared during cross examination of the State’s witnesses. He openly and again arrogantly, received the cattle on municipal grounds during work hours, used the tractor of the municipality to pull the cattle from the sewage dam and branded it there and then with his mark. He also kept these cattle openly on municipal grounds with a lack of reverence to the police and care for the wrath of the law.

[33] He, as an experienced cattle owner; without remorse or insight into the crime he committed now demands a fine of R2000.00. The appellant as a man of status in the community should be the example to compliance to law and order; but he is clearly an instigator to the opposite. Mr. Tshabalala came to him with his stolen property; he would not have done so if he knew that the appellant was going to demand proof of ownership and would not partake in the trade of stolen property. The appellant has no right to the mercy he demands. The loss he suffered is for his own account.

[34] Stock theft is a very serious offence affecting mostly farming communities. The frequency and callous occurrence and the disrupting effect which this has on farming activities and the economy in general, are common cause. The difficulty in tracing the offenders and the manner in which the appellant neglected to surrender the identity of the real perpetrator make his blameworthiness very similar to as if he stole the cattle; he supports and perpetuates these crimes by his conduct and attitude.

[35] Counsel for the State referred the court to the matter of S v Truyens 2012 (1) SACR 79 (SCA)

[24] … Stock theft is a sensitive issue in many farming communities. This is because it is difficult for farmers to prevent the crime and equally difficult for perpetrators to be apprehended and prosecuted. Cattle farmers are therefore particularly vulnerable to this type of crime. The courts have reflected these concerns by progressively imposing tougher sentences — usually direct imprisonment — on offenders.

[36] A further aggravating factor in the present case is that the appellant is a man of means and status. The crime was committed out of greed. The punishment must fit the crime.

[37] With due regard to the personal circumstances of the appellant, the circumstances of the crime he was convicted of and the crime itself, as well as the interest of the society; a proper and effective sentence will be one of R7000.00 (seven thousand rands) or 12 (twelve) months imprisonment. In addition; the appellant is sentenced to 12 (twelve) months imprisonment which is wholly suspended for 3 (three) years on condition the appellant is not again convicted of the contravention of the Stock Theft Act 57 of 1959 by receiving stock or produce knowing the same to have been stolen; or inciting, instigating, commanding or procuring another person- (i) to steal such stock or produce; or (ii) to receive such stock or produce; or knowingly disposing of, or knowingly assisting in the disposal of, stock or produce which has been stolen or which has been received with knowledge of it having been stolen; or contravening sections two or three of the Stock Theft Act 57 of 1959 and which offences were committed within the period of suspension.

[38] The circumstances of the case do not show a propensity to violence or crime by the appellant. It would therefore be inappropriate to declare him unfit to possess a firearm in terms of section 103 of the Firearms Control Act 62 of 2000. The offence of the contravention of section 3 of the Stock Theft Act does not resort under either section 103(1) or Schedule 2 referred to in section 103(2) of the Firearms Control Act. The appellant must therefore be deemed fit to possess a firearm since the legislation does not prescribe an inquiry to his fitness to possess a firearm. I will however for clarity’s sake make an order in this regard since he was previously ordered to be unfit to possess a firearm.

[39]

ORDER

The conviction, sentence and order dated 14 April 2020 are set aside and replaced with the following:

1. The appellant is convicted in terms of section 11 of the Stock Theft Act 57 of 1959 of the competent verdict of the contravention of section 3 of the Stock Theft Act 57 of 1959.

2. In terms of section 14 of the Stock Theft Act 57 of 1959 read with section 92(1)(b) of the Magistrates Court Act 32 of 1944 the appellant is sentenced to R7000.00 (seven thousand rands) or 12 (twelve) months imprisonment. In addition; the appellant is sentenced to 12 (twelve) months imprisonment which is wholly suspended for 3 (three) years on condition the appellant is not again convicted of the contravention of the Stock Theft Act 57 of 1959 by receiving stock or produce knowing the same to have been stolen; or inciting, instigating, commanding or procuring another person- (i) to steal such stock or produce; or (ii) to receive such stock or produce; or knowingly disposing of, or knowingly assisting in the disposal of, stock or produce which has been stolen or which has been received with knowledge of it having been stolen; or contravening sections two or three of the Stock Theft Act 57 of 1959 and which offences were committed within the period of suspension.

3. The appellant is deemed fit to possess a firearm in terms of the Firearms Control Act 60 of 2000.

M OPPERMAN, J

I concur

C PAGE, AJ

APPEARANCES

Counsel for the Appellant

ADVOCATE RJ NKHAHLE

Chambers

Bloemfontein

Counsel for the Respondent

ADVOCATE MMM MOROKA

Office of the Director of Public Prosecutions:

Free State, Bloemfontein

[1] Hereafter also referred to as “cattle”.

[2] Exhibit C.

[3] Essential Evidence, 2nd Edition 2020, LexisNexis, Part II: Proof, Chapter 4 Circumstantial evidence and inferential reasoning, at page 23 to 24. Also see Schmidt, CWH et al, Law of Evidence, https://www.mylexisnexis.co.za/Index.aspx, Last Updated: June 2021 - SI 19 at 3.2.1.

[4] Snyman, CR, Criminal Law, Last Updated: 2020 - Seventh Edition, https://www.mylexisnexis.co.za/Index.aspx at Part II, Chapter XVIII, A16.

[5] Ismail v S 1958 (1) SA 206 (A) 212D–E.

[6] Osman v Attorney-General of Transvaal 1998 (1) SACR 28 (T) 30e–f.

[7] Nader v S 1963 (1) SA 843 (O) 848; Mojaki v S 1993 (1) SACR 491 (O); Aube v S 2007 (1) SACR 655 (W) 657–658.

[8] Aube v S 2007 (1) SACR 655 (W) 657–658.

[9] Aube v S 2007 (1) SACR 655 (W) 657h–i.

[10] R v Hlongwane 1959 (3) SA 337 (A) at 340H-341B; S v Hlapezula & Others 1965 (4) SA 439 (A) at 442F; S v Khumalo & Others [1991] ZASCA 70; 1991 (4) SA 310 (A) at 327H-I; S v Van Der Meyden 1999 (2) SA 79 (W); S v Van Aswegen 2001 (2) SACR 97 (SCA) at 101A-F; S v Trainor [2003] 1 All SA 435 (SCA) paragraph 8; S v Heslop 2007 (4) SA 38; [2007] 4 All SA 955; 2007 (1) SACR 461 (SCA) paragraph 11.

[11] Hiemstra's Criminal Procedure, Kruger, Last Updated: May 2020, LexisNexis at page 22–10(1).

[12] Burchell, South African Criminal Law and Procedure, Volume I: General Principles of Criminal Law, (4th Edition), Internet: ISSN 2226-3314, Jutastat, e-publication, Part II, Chapter J2, at 4.2 to 4.2.2 on pages J2-18 to J2-22.

[13] Record page 76(21) line 15 to page 77(22) line 20.

[14] 6 Document of identification to be furnished by person who disposes of stock (1) Any person (including any auctioneer, agent or market master who sells, barters, gives or in any other manner disposes of any stock to any other person shall at the time of delivery to such other person of the stock so sold, bartered, given or disposed of, furnish such other person with a document (hereinafter called a document of identification)- (a) stating- (i) his full name and address and, if the stock was sold, bartered, given or disposed of on behalf of some other person, also the name and address of such other person; (ii) such particulars in regard to such stock as may be required to be stated therein in terms of any regulation made under section sixteen; (iii) the full name and address of the person to whom the stock was sold, bartered, given or disposed of; [Sub-para. (iii) added by s. 1 (a) of Act 28 of 1990.] (iv) the date on which the stock was sold, bartered, given or disposed of; [Sub-para. (iv) added by s. 1 (a) of Act 28 of 1990.] (b) certifying that such stock is his property or that he is duly authorized by the owner thereof to deal with or dispose of it. [Sub-s. (1) amended by s. 3 of Act 59 of 1983.] (2) No person to whom any stock has been sold, bartered, given or otherwise disposed of and to whom a document of identification is required to be furnished in terms of

subsection (1) shall take delivery of such stock without obtaining such document at the time of delivery. (3) Any person to whom a document of identification has been furnished in terms of subsection (1) shall retain it in his possession for a period of at least one year. [Sub-s. (3) substituted by s. 1 (b) of Act 28 of 1990.] (4) Any person may within the period referred to in subsection (3) demand an inspection of such document, and upon such demand the person having possession of such document shall produce it for inspection to the person making the demand. [Sub-s. (4) substituted by s. 1 (b) of Act 28 of 1990.] (5) Any person who- (a) contravenes or fails to comply with any provision of this section; (b) fails to comply with any demand made under subsection (4); or (c) willfully makes any false statement in a document of identification, shall be guilty of an offence. (6) Any person who delivers any stock to an auctioneer, agent or market master for the purpose of sale or disposal in any other manner, shall, for the purposes of this section, be deemed to have disposed of such stock to such auctioneer, agent or market master.

[14] 6 Document of identification to be furnished by person who disposes of stock

(1) Any person (including any auctioneer, agent or market master who sells, barters, gives or in any other manner disposes of any stock to any other person shall at the time of delivery to such other person of the stock so sold, bartered, given or disposed of, furnish such other person with a document (hereinafter called a document of identification)-

(i) his full name and address and, if the stock was sold, bartered, given or disposed of on behalf of some other person, also the name and address of such other person;

(ii) such particulars in regard to such stock as may be required to be stated therein in terms of any regulation made under section sixteen;

(iii) the full name and address of the person to whom the stock was sold, bartered, given or disposed of;

[Sub-para. (iii) added by s. 1 (a) of Act 28 of 1990.]

(iv) the date on which the stock was sold, bartered, given or disposed of;

[Sub-para. (iv) added by s. 1 (a) of Act 28 of 1990.]

(b) certifying that such stock is his property or that he is duly authorized by the owner thereof to deal with or dispose of it.

[Sub-s. (1) amended by s. 3 of Act 59 of 1983.]

(2) No person to whom any stock has been sold, bartered, given or otherwise disposed of and to whom a document of identification is required to be furnished in terms of subsection (1) shall take delivery of such stock without obtaining such document at the time of delivery.

(3) Any person to whom a document of identification has been furnished in terms of subsection (1) shall retain it in his possession for a period of at least one year.

[Sub-s. (3) substituted by s. 1 (b) of Act 28 of 1990.]

(4) Any person may within the period referred to in subsection (3) demand an inspection of such document, and upon such demand the person having possession of such document shall produce it for inspection to the person making the demand.

[Sub-s. (4) substituted by s. 1 (b) of Act 28 of 1990.]

(5) Any person who-

(a) contravenes or fails to comply with any provision of this section;

(b) fails to comply with any demand made under subsection (4); or

(c) willfully makes any false statement in a document of identification,

shall be guilty of an offence.

(6) Any person who delivers any stock to an auctioneer, agent or market master for the purpose of sale or disposal in any other manner, shall, for the purposes of this section, be deemed to have disposed of such stock to such auctioneer, agent or market master.

[15] 92 Limits of jurisdiction in the matter of punishments (1) Save as otherwise in this Act or in any other law specially provided, the court, whenever it may punish a person for an offence— (a) by imprisonment, may impose a sentence of imprisonment for a period not exceeding three years, where the court is not the court of a regional division, or not exceeding 15 years, where the court is the court of a regional division; (b) by fine, may impose a fine not exceeding the amount determined by the Minister from time to time by notice in the Gazette for the respective courts referred to in paragraph (a); (c) … (d) by correctional supervision, may impose correctional supervision for a period as contemplated in section 276A(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977). (2) (a) The court shall have jurisdiction to impose any punishment prescribed in respect of an offence under an ordinance of a province or the territory which relates to vehicles and the regulation of traffic on public roads, notwithstanding that such punishment exceeds the jurisdiction referred to in subsection (1). (b) Where a person is convicted of culpable homicide arising out of the driving of a vehicle as defined in any applicable ordinance referred to in paragraph (a), the court shall have jurisdiction to impose any punishment which the court may impose under that paragraph in respect of the offence of driving a vehicle recklessly on a public road.

[15] 92 Limits of jurisdiction in the matter of punishments

(1) Save as otherwise in this Act or in any other law specially provided, the court, whenever it may punish a person for an offence—

(a) by imprisonment, may impose a sentence of imprisonment for a period not exceeding three years, where the court is not the court of a regional division, or not exceeding 15 years, where the court is the court of a regional division;

(b) by fine, may impose a fine not exceeding the amount determined by the Minister from time to time by notice in the Gazette for the respective courts referred to in paragraph (a);

(c) …

(d) by correctional supervision, may impose correctional supervision for a period as contemplated in section 276A(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977).

(2) (a) The court shall have jurisdiction to impose any punishment prescribed in respect of an offence under an ordinance of a province or the territory which relates to vehicles and the regulation of traffic on public roads, notwithstanding that such punishment exceeds the jurisdiction referred to in subsection (1).

(b) Where a person is convicted of culpable homicide arising out of the driving of a vehicle as defined in any applicable ordinance referred to in paragraph (a), the court shall have jurisdiction to impose any punishment which the court may impose under that paragraph in respect of the offence of driving a vehicle recklessly on a public road.