S v Sehloho (R82/2020) [2021] ZAFSHC 123 (15 April 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Review number: R82/2020

In the matter between:

THE

STATE

And

MPHO

RUBEN SEHLOHO

CORAM: Mhlambi, J et Nekosie, AJ

JUDGMENT BY: Nekosie AJ

DELIVERED ON: 15 APRIL 2021

[1] This matter was sent on special review by the Senior Magistrate, Welkom for consideration in terms of section 304(4) of the Criminal Procedure Act 51 of 1977 following a judicial quality assurance assessment at Hoopstad Magistrate`s Court.

[2] The accused was charged with contravention of section 36 of the General Law Amendment Act 62 of 1955, commonly referred to as Possession of Suspected Stolen Property. He was cited as accused 3. All charged were withdrawn against accused 1 and 2. The main count of theft was withdrawn against accused 3.

[3] The accused pleaded guilty. He was legally represented and a statement in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 was handed into court. He was subsequently convicted and sentenced as follows:

“Fined R8000.00 (Eight thousand rand only) or (8) Eight months imprisonment part of which that is R4000.00 (four thousand rand only) or (4) months is suspended for five years on condition that Accused is not found guilty of possession of stolen property committed during the period of suspension”

[4] The Senior Magistrate requested the Court to firstly determine whether the elements of the offence and the facts upon which it was premised was correctly admitted. Based on S v Aube[1], he raised the questions whether the Court aquo could have been satisfied:

1. That the accused realised that the offence to which he has pleaded guilty is an offence of dishonesty and not one of negligence and

2. That the accused was, and remained, unable to give an explanation to the effect that he bona fide believed his possession of the goods in question to be innocent, having regard to the objects of the legislation, namely, the combating of theft.

[5] The facts in S v Aube supra is distinguishable from this matter in that the appellant in that matter specifically denied knowledge that the goods were stolen, averring that he bought it from what he believed was a legitimate vendor. Thereafter, he admits that the goods were the property of persons other than those who sold it to him. Then he proceeded to admit that he acted unlawful by purchasing the items. Thus intimating that he was negligent not to ascertain the origins of the goods.

[6] In this matter the accused admits that he knew the goods were stolen and was to share in the spoils if he stored the goods. This acknowledgement leans towards admitting to committing theft given the continuous nature of the offence. There is no ambiguity in regards his knowledge that he was being dishonest.

[7] It would have been more desirable for the Magistrate to ask the accused to elaborate on his admission that he was unable to give a satisfactory account for his possession. However, seen against the backdrop of the admission that he knew the goods was stolen, I am satisfied that this admission is sufficient under the circumstances.

[8] The second aspect brought into question by the Senior Magistrate is whether the admission by the accused that the police had a reasonable suspicion that the goods were stolen was sufficient. In this regard he cites S v Sepiri[2] where it was stated as follows:

‘By 'n aanklag van oortreding van art 36 is daar die volgende elemente wat erken moet word voordat 'n skuldigbevinding uitgebring kan word.

(i) Dat beskuldigde in besit gevind is van goedere anders as vee of produkte.

(ii) 'n Verdenking wat op redelike gronde berus dat dit gesteelde goedere is, moes in die gedagte van die vinder ontstaan het op enige tydstip gedurende die beskuldigde se besit daarvan.

(iii) Dat beskuldigde nie in staat is om voldoende rekenskap van sodanige besit te gee nie.

Die eerste en derde elemente lewer nie probleme op nie. Dit is feite wat binne sy kennis is en wat hy kan erken.

Die tweede element, die redelike verdenking kan meer probleme oplewer. Mnr Roodt stel dit in sy betoogpunte soos volg:

"Die vermoede dat dit gesteelde goedere is, moet gevorm word terwyl die beskuldigde nog in besit daarvan is. S v Van Heerden 1968 (1) SA 65 (GW); S v Mogatla 1966 (1) PH H237 (NK). Hierdie vermoede is baseer op subjektiewe waarnemings aan die kant van die persoon wat die beskuldigde in besit gevind het. Objektief word dan beoordeel of die vermoede 'redelik' was. S v Khumalo 1964 (1) SA 498 (N); R v Hunt 1957 (2) SA 465 (N).”’

[9] The Court in Sepiri distinguished between the situation where an accused in unrepresented and represented and remarks as follows:

‘Ek meen nie dat daar in beginsel beswaar kan wees teen so 'n erkenning nie. 'n Beskuldigde of sy regsverteenwoordiger erken dikwels feite waarvan hulle nie persoonlik kennis dra nie omdat hulle, bv, weet dat die Staat dit maklik kan bewys. Een voorbeeld wat in die gedagte kom is die uitslag van ontledings van monsters wat geneem is.

'n Landros sal net baie versigtig te werk moet gaan in sy ondervraging wat betref hierdie element van die oortreding. As slegs gevra word: "Erken jy dat op die tydstip toe Sersant A die genoemde goedere in jou besit gevind het, daar by hom 'n redelike verdenking ontstaan het dat dit gesteelde goed is?" en hy "Ja" antwoord, sal oortuiging dat die beskuldigde skuldig is aan die oortreding skaars daaruit kan volg, sekerlik nie waar die beskuldige nie regshulp het nie.’[3]

[10] In this matter the accused was legally represented and the admission was made in the statement in terms of section 112(2) of the Criminal Procedure Act. He also confirmed the statement to the Court. The admission in my view stand and I am satisfied that the conviction should stand.

[11] In sentencing the accused the magistrate imposed a condition that the accused not be convicted of “possession of stolen property” committed within the period of suspension. The Senior magistrate correctly pointed that the condition was vague. There is no common law offence of “possession of stolen property”.[4] On the roneo form used by the prosecutor the same wording is used and one suspects that the magistrate was influenced by same. The phrase is a misnomer that arose from a colloquial expression referencing contravention of section 36 of the General Law Amendment Act 62 of 1955.

[12] The content of the annexure to the charge sheet and the plea explanation makes it clear that the accused was convicted of section 36. The vagueness can therefor be corrected by insertion of the statutory provision in the sentence.

[13] The Senior Magistrate further pointed out that the magistrate applied the provisions of section 103(1) of the Firearms Control Act 60 of 2000 to declare the accused unfit to possess a firearm when in fact section 103(2) was applicable, thus the magistrate was required to hold an enquiry before making such order.

[14] Section 103 (2) (a) of Firearms Control Act 60 of 2000 reads as follows:

“A court which convicts a person of a crime or offence refer to in schedule 2 and which is not a crime or offence contemplated in subsection (1), must enquire and determine whether the person is unfit to possess a firearm.”

[15] The offence committed is one of dishonesty and falls under schedule 2. Consequently, an enquiry into the accused fitness was warranted. The order made by the magistrate was irregular and stands to be set aside.

[16] A final aspect that I deem necessary to address is the fact that the magistrate was requested to comment on the aforementioned issues and simply responded that a competent sentence was imposed even if no reference was made to the statutory provisions.

[17] Judicial officers are under a duty to give reasons for their decisions. The importance of this duty was stressed in S v Mokela[5], where Bosielo JA said:

‘I find it necessary to emphasise the importance of judicial officers giving reasons for their decisions. This is important and critical in engendering and maintaining the confidence of the public in the judicial system. People need to know that courts do not act arbitrarily, but base their decisions on rational grounds. Of even greater significance is that it is only fair to every accused person to know the reasons why a court has taken a particular decision, particularly where such a decision has adverse consequences for such an accused person.’

[14] The magistrate`s reply to the request to comment or give reasons for his decisions depicts a decree nonchalance which, given the importance of the duty to give reasons for decisions, is unacceptable and should be guarded against.

[15] In conclusion the I make the following order:

Order

1. The conviction is confirmed.

2. The sentence is amended by insertion of the statutory provisions to read:

‘Fined R 8000 (eight thousand rand) or 8 (eight) months imprisonment part of which R 4000 (four thousand rand) or 4 months imprisonment is suspended for 5 (five) years on condition the accused is not found guilty of contravention of section 36 if the General Law Amendment Act 62 of 1955 committed during the period of suspension’.

3. The order declaring the accused unfit to possess a firearm in terms of section 103(1) of the Firearms Control Act 60 of 2000 is set aside.

____

C NEKOSIE, AJ

I agree and it is so ordered

JJ MHLAMBI, J

[1] 2007 (1) SACR 655 (W)

[2] S v Sepiri 1979 (2) SA 1168 (NC) at 1174F – 1175A

[3] S v Sepiri supra at 1174F-G

[4] CR Snyman: Criminal Law, Sixth Edition at page 515

[5] S v Mokela 2012 (1) SACR 431 (SCA) at [12]