S v Sehunoe (CA 53/2002) [2002] ZANWHC 46 (12 December 2002)

CA 53/2002

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

MORGAN

SEHUNOE Appellant

and

THE

STATE

Respondent

CRIMINAL APPEAL

MAFIKENG

MOGOENG J; PISTOR AJ

DATE OF HEARING : 25 OCTOBER 2002

DATE OF JUDGMENT : 12 DECEMBER 2002

COUNSEL FOR THE APPELLANT: ADV.R.D

HENDRICKS

COUNSEL FOR THE RESPONDENT: ADV.H.R. MOLEFE

PISTOR AJ:

Introduction:

This is a Criminal Appeal. Appellant was charged in the Magistrates Court with:

Theft of a pair of shoes and of a few items of clothing (count 1).

A contravention of section 1 of the General Law Amendment Act, 1956 (Act 50 of 1956) in that he used a vehicle of the complainant without the latter’s consent. (Count 2 – main count.)

In the alternative to the latter count the appellant was charged with: a contravention of section 123(3) of the Road Traffic Act, 1989 (Act 23 of 1989) in that he tampered with the machinery, accessories or parts of the said vehicle without the necessary consent of the owner (count 2 – first alternative).

Further in the alternative to count 2 the Appellant was charged with a contravention of section 123(2) of the aforesaid Road Traffic Act, 1989 in that he drove the vehicle without the consent of the owner. (count 2 – second alternative)

In the Court a quo, the Appellant was represented by an Attorney. He pleaded not guilty and elected to exercise his right to remain silent without any plea explanation having been given. He was found guilty of theft in respect of count 1 and on the main count in respect of count 2 (ie. a contravention of section 1 of Act 50 of 1956). He was sentenced to two years imprisonment on count 1 and to three years imprisonment on count 2. The presiding Magistrate directed that the sentences should not run concurrently. Appellant now appeals against the convictions and sentences imposed.

Ad Count 1:

The Facts:

The facts relating to this count (and found by the learned trial magistrate to have been proved) can be summarised as follows. Appellant has an LLB degree and was employed at the Magistrates office, Mogwase. On or about 4 December 2000 the Appellant obtained from the complainant the keys to the house where the complainant on that count used to stay and obtained permission from the complainant to sleep that night in the said house. (Complainant was to sleep elsewhere during that night.) When he left the following morning Appellant took the goods, alleged to have been stolen from the house and shortly thereafter started to wear same. It is common cause that the Appellant did not have any permission to take or to use the goods. The Appellant’s defence to this count was that the complainant had taken the Appellant’s cell phone in order to have it repaired but has failed to return it and Appellant therefore took the clothes and shoes as a pledge, pending the return of the cell phone. The day after the Appellant had slept in complainant ‘s place, complainant left for Johannesburg. Whilst in Johannesburg complainant was informed telephonically by a friend that the Appellant was wearing complainant’s clothes. After approximately ten days the complainant returned from Johannesburg and confronted the Appellant with regard to the clothes and shoes. According to complainant the

Appellant had then told complainant that he (Appellant) did not want to go home to fetch his own clothes during the night that he was sleeping in complainants place and he therefore took complainants clothes to use instead. Complainant testified that he then told Appellant that he (complainant) “never borrowed my clothes to anybody” and he requested Appellant to return his property in the afternoon when the Appellant would knock off at work. The Appellant undertook to bring the complainant’s property after work on that day, but he has ever since failed to return complainants property.

Credibility Findings:

Since the Appellant’s credibility is relevant in order to come to a finding as to what his real intention was with regard to his taking of the complainant’s clothes, it is necessary to consider the question of credibility.

The learned Magistrate found the Appellant to be an untrustworthy witness and rejected his evidence. This Court will not lightly interfere with a finding on credibility by a trial Court.

In Wynland Properties CC v Potgieter and Another 1999(4) SA 1265(C) at 1272(E) MOOSA J stated this principle as follows:

“It is trite that a Court of appeal will, as a rule, not interfere with the findings of the court a quo on the facts unless there has been a misdirection. It has been said that the trial court has the distinct advantage of seeing and hearing the witnesses and in being steeped in the atmosphere of the trial (R v Dhlumayo and Another 1948 (2) SA 677 (A)).”

In Ndlovu v AA Mutual Insurance Association Ltd 1991(3) SA 655(E) at 659(E – F) ERASMUS J is reported to have said:

“According to the principles governing appeals, the power of a Court of appeal to substitute its findings of facts for those of the trial Court is limited.”

In any event, having had the opportunity of reading the record in the present matter, I can find no basis for interfering with the findings on credibility of the learned presiding Magistrate.

The basis of the Magistrates finding against the Appellant on credibility is the following:

When confronted by complainant, the Appellant was wearing the complainant’s shoes and clothing. In particular the Appellant was wearing the complainant’s trousers but denied that the trousers belonged to the complainant. However, complainant told the Appellant that there was an identifying sticker on the back pocket of the trousers and complainant invited Appellant to take off the trousers in order to find the sticker. Appellant then agreed that the trousers belonged to the complainant. In cross-examination it was

specifically put to the complainant by Appellant’s Attorney that the only item that the Appellant had taken from complainant was the complainant’s shoes. It was further put to the complainant that the shoes were taken “because you are not willing to return the cell phone”.

Inspector Tlou, the investigating officer in the case, testified that after the case had been reported, he approached the Appellant and that the Appellant handed to him (inspector Tlou) the complainants pair of shoes and a number of other items of clothing. According to Inspector Tlou, Appellant’s explanation was that: “he was paying himself because the complainant has taken his cell phone”.

In cross-examination of Inspector Tlou it was not denied on behalf of the Appellant that the clothes were taken by the Appellant. Neither was it put to Mr Tlou (as it was put to the complainant) that the Appellant had only taken the complainant’s shoes. The Magistrate found that the Appellant’s admission (that he had taken the clothes) only came after Mr Tlou had testified whilst before that the Appellant was denying that he had taken the clothes as well. In this regard the Magistrate remarked as follows:

“now, the question before this Court is, why should then the accused if he was innocent, if he intended to take the clothes back to the complainant, why should he then decide to tell this Court lies and say he did not take the articles”.

The Magistrate therefore found that the accused

“cannot be trusted”,

that

“he is not a reliable witness”

and rejected his evidence.

In my view there is no basis for this Court to interfere with the findings of the learned presiding Magistrate on credibility. Therefore, the appeal has to be considered on the facts found by the trial court to have been proved.

However, and even if I were to be wrong on this issue, then the Appellants own evidence which is to the effect that he did use some of the complainants clothes is, in my view not reconcilable with his evidence that he only intended to use the clothes as a pledge. He must have intended (at least by way of dolus eventualis to appropriate the complainants rights permanently. Therefore in my view his conviction on count 1 is in order.

Ad Count 2:

The Charge:

The allegations contained in the main count on count 2 was that the accused:

“sonder ‘n bona fide aanspraak of reg daartoe en sonder die toestemming van Mnr Ramope (the complainant), die eienaar daarvan wederegtelik voertuig met registrasie nommer DPL129NW uit die besit van genoemde Mnr Ramope verwyder het met die doel om dit sonder (sy) toestemming te gebruik”

and that in doing so the Appellant contravened section 1(1) of the aforesaid Act 50 of 1956.

The allegations in respect of the first alternative to the second count are that the Appellant tampered with the vehicle and in so doing contravened section 123(3) of the aforesaid Act 29 of 1989.

The second alternative charge to the second count is that the Appellant used the vehicle without the permission of the owner and that in so doing he contravened section 123(2) of 29 of 1989.

Act 29 of 1989 was repealed by section 93 of the National Traffic Act, 1996 (Act 93 of 1996). Therefore we directed the following request to Counsel before the Appeal was heard:

“1. Was Act 29 of 1989 (which forms the basis of one of the alternative counts to the second count) not repealed by section 93 of Act 93 of 1996?

If so repealed, could the Appellant have been found guilty of any of the provisions of the repealing statute (Act 93 of 1996) and if so, in respect of which provision of the latter statute could he have been found guilty?”

It is common cause that Appellant borrowed the vehicle referred to in count 2 from the complainant for a specific purpose and for a specific period of time. It is also common cause that the Appellant has, on his own version exceeded the terms of that permission. In his address on the merits in the Court a quo the Attorney for the Appellant in respect of count 2 said the following:

“I would concede that the evidence that we have before the Court and on the admission of the accused, the State has established the second count.”

It is not clear whether the Attorney was referring to the main or to any of the alternative counts that I have referred to above.

The Law:

Before us Mr Hendricks argued that Appellant could not have been found guilty on the main count since, once it has been established that the vehicle was removed with the permission of the owner thereof, the Appellant could not have been found guilty of a contravention of section 1(1) of Act 50 of 1956. He, in this regard, referred to R v Brand 1960(3) SA 637(A) at 642(A) where SCHREINER JA is reported to have said:

“For these reasons the Appellant should not have been found guilty of theft of a car and as he did not remove the car from the owner’s control, he could not be found guilty of the offence created by section 1(1) of Act 50 of 1956.”

During argument Mr Molefe, who appeared on behalf of the State in the Appeal, conceded that the Appellant could not have been found guilty of the contravention of section 1(1) of Act 50 of 1956 since the removal of the vehicle by the Appellant was not without the consent of the complainant. In my view Mr. Hendricks is correct and the concession by Mr. Molefe has properly been made. The relevant portion of the section reads as follows:

“Any person who, without a bona fide claim of right and without the consent of the owner …… removes any property from the control of the owner ….. with the intent to use it …….”

In view of the fact that the Appellant had been given permission to remove the vehicle, he did not contravene the said section.

Mr Molefe, however, argued that the Appellant could have been found guilty of a contravention of section 66(2) of Act 93 of 1996 (the repealing Act referred to above). The section provides:

“No person shall ride in or drive a vehicle without the consent of the owner, operator or person in lawful charge thereof.”

As I have indicated above, the Appellant was not charged with a contravention of the latter section. Section 86 of the Criminal Procedure Act, 1977 (Act 51 of 1977)-in so far as it is relevant- provides:

”(1) Where a charge is defective for the want of any essential averment therein, or where there appears to be any variance between any averment in a charge and the evidence adduced in proof of such averment, or where it appears that words or particulars that ought to have been inserted in the charge have been omitted therefrom, or where any words or particulars that ought to have been omitted from the charge have been inserted therein, or where there is any other error in the charge, the court may, at any time before judgment, if it considers that the making of the relevant amendment will not prejudice the accused in his defence, order that the charge, whether it discloses an offence or not, be amended, so far as it is necessary, both in that part thereof where the defect, variance, omission, insertion or error occurs and in any other part thereof which it may become necessary to amend.

(2) ……….

(3) Upon the amendment of the charge in accordance with the order of the court, the trial shall proceed at the appointed time upon the amended charge in the same manner and with the same consequences as if it had been originally in its amended form.

(4) The fact that a charge is not amended as provided in this section, shall not, unless the court refuses to allow the amendment, affect the validity of the proceedings thereunder.”

In casu the accused should in the first place have been charged with a contravention of section 66 of the 1996 Act and not in respect of the 1989 Act. I am of the view that, had he been properly charged he could and would have been found guilty of a contravention of section 66 of the 1996 Act. Consequently, I am of the view that the trial court should have directed that the charge be amended as suggested above. Appellant would have suffered no prejudice as a result of such amendment.

In terms of section 304(2)(iv) read with section 309(3) of the said Criminal Procedure Act this court has the power to

“generally give such judgment or impose such sentence or make such order as the magistrate's court ought to have given….,”

In the circumstances such an order ought to be given.

Sentence: Count 1:

The Appellant has an LLB degree. He indicated that he would be in a position to pay a deferred fine. The learned presiding Magistrate asked the Appellant as to whether he would be in a position to compensate the complainant. He indicated that he would not be financially in a position to do so. The learned Magistrate considered various aspects with regard to sentence and then came to the conclusion:

“Although you are a first offender, this Court has come to a conclusion that the only fit and proper sentence will be a term of imprisonment. The Court has considered a wholly suspended sentence but the Court feels that a wholly suspended sentence would not be fit and proper, looking at the nature and the gravity of this offence. The Court has also considered an option of a fine. You had indicated to this Court that you are unemployed at this stage, and basically you can afford a fine of R1 000-00. And you also indicated that you would not be in a position to compensate these two complainants. One of the reasons being that you are not employed.”

In my view the learned Magistrate erred in this regard. The Appellant’s evidence was that he would be in a position to contribute R500-00 per month towards the compensation of the complainant in count 2. He would have obtained that money from an amount of R1 700-00 being money saved by him. He was asked by the Court a quo as to whether he would be in a position to compensate the first complainant and he said:

“If given a chance your Worship, I can.”

He further indicated that he could contribute an amount of

R1 000-00 towards complainant in count 1. He then said that he would be in a position to pay a fine

“if it can be deferred.”

The learned Magistrate then asked the Appellant’s Attorney:

“… you think can the accused compensate this complainant according to what he said?”

The answer was:

“Correct your Worship.”

The Court then remarked as follows:

“But the accused says he can only afford R500-00, that is my problem and he says he have (sic) R1 000-00. So, if he has no means of income how is he going to be able to compensate?”

The Attorney then reacted as follows:

“That is why I am saying, …… that it would appear that he would not be in a position to afford a fine, hence I suggested that may the order be made but deferred.”

“Alright.”

In my view this is not a matter in which imprisonment is the only suitable sentence. The learned Magistrate failed to give sufficient weight to the fact that in respect of count 1 the Appellant has lost his cell phone as a result of the actions of the complainant and that, although the Appellant was not in law entitled to make use of self-help, his conviction of theft in the circumstances of this case does not place him in the same position as the ordinary thief. In the circumstances this Court is entitled to consider the sentence afresh.

In S v Lekgoale and Another 1983(2) SA 175(B) at 176(C – E) HIEMSTRA CJ laid down the following guidelines with regard to the consideration of a fine:

"A fine is not an empty, meaningless gesture. It is supposed to be a device to keep a convicted person out of prison and yet to punish him.

In general the following broad guidelines should be observed when the court considers the imposition of a fine. In the first place the court should consider whether a fine comes into the picture at all. The option of a fine is a concession to the accused and it is supposed to carry less of a stigma than outright imprisonment. A man who committed a crime of serious violence or who has previous convictions for similar offences would normally not qualify for a fine. In general the option of a fine is given where the offence is not one of such gravity that imprisonment seems to be the only appropriate sentence.

When an option is granted, it is desirable that it should be a real option, that is to say the fine must be such that it is reasonably possible for the accused to pay it, either from (i) cash resources of his own; or (ii) such money as he can borrow; (iii) by the realisation of such assets as he may possess. The court should therefore inquire about the accused's ability to pay (R v Frans 1924 TPD 419; R v Nhlapo 1954 (4) SA 56 (T) ), unless the circumstances are quite obvious."

In my view the option of a fine should as far as possible be given where the offence is not one of such gravity that imprisonment seems to be the only appropriate sentence. In the present matter the Appellant should have been given an option of a fine in respect of the first count.

Sentence: Count 2:

The penal provisions for a contravention of section 66 of the 1996 Act are contained in section 89(6) of the Act. It is a fine or a period of imprisonment up to one year. The sentence on count 2 will therefore have to be substituted with an appropriate sentence.

I therefore make the following order:

The appeal succeeds partly.

In respect of count 1:

The conviction on count 1 is confirmed. The sentence is set aside and substituted with the following:

“R4 000-00 or two years imprisonment of which R2 000-00 or one year imprisonment is suspended on condition that the accused is not found guilty of theft, committed during the period of suspension.”

In respect of count 2:

The conviction and sentence are set aside and substituted with the following:

“Accused is found guilty of a contravention of section 66(2) of Act 93 of 1966. He is sentenced to R1 000-00 or six months imprisonment.”

In terms of section 297(5) of the Criminal Procedure Act, 1977 (Act 51 of 1977) the payment of both the afore stated fines is suspended until Monday, 30 June 2003.

J H F PISTOR

ACTING JUDGE OF THE

HIGH COURT

I agree.

M T R

MOGOENG

JUDGE PRESIDENT