S v Tongwane (3/01) [2001] ZANWHC 4 (1 February 2001)
- Citation
- [2001] ZANWHC 4
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- M M Leeuw
- Case number
- 3/01
More details
- Court
- North West High Court, Mafikeng
- Panel
- M M Leeuw
- Case number
- 3/01
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that while the complainant could only positively identify one calf as his, the evidence established that the accused sold five cattle, including the calf, to a farmer. The inability to identify the owners of the other four cattle did not exonerate the accused under Section 11(2) of the Stock Theft Act. The conviction for theft of all five cattle was confirmed. However, the sentence imposed by the magistrate exceeded the statutory maximum for a first offender, as the law had been amended to reduce the maximum fine from R8000 to R4000. The accused, being a first offender, was entitled to the benefit of the amended sentencing provision. The sentence was therefore set aside and substituted with a lesser sentence in accordance with justice and the statutory limit.
Court disposition
Conviction confirmed; sentence set aside and substituted.
Orders
- The conviction of the accused for theft of five cattle is confirmed.
- The sentence imposed by the magistrate is set aside.
- The following sentence is substituted: Two Thousand Rand (R2000) or one (1) year imprisonment.
02
Material facts
Parties
The State
ApplicantNeo Johnson Tongwane
RespondentAmounts and remedies
- Original Sentence Imposed: ZAR 8,000
- Substituted Sentence: ZAR 2,000
03
Procedural history
Posture
Review Application / Sentence Review After Conviction
04
Questions and positions
Legal issues
- 01
Whether the conviction for theft of all five cattle is supported by evidence beyond reasonable doubt.
- 02
Whether the sentence imposed by the magistrate was in accordance with statutory limits and justice.
Party arguments
- Applicant
- The State argued that the accused stole five cattle belonging to the complainant, and that the conviction and sentence imposed were appropriate given the evidence and statutory provisions.
- Respondent
- The accused contended that not all five cattle could be positively identified as belonging to the complainant, and that the sentence imposed exceeded the statutory maximum for a first offender under the amended Stock Theft Act.
05
Court’s reasoning
Legal principles
- 01
General criminal law principle
A conviction for theft requires proof beyond reasonable doubt that the stolen property belonged to the complainant.
- 02
Section 11(2) of the Stock Theft Act No 57 of 1959
The owner of stolen stock need not always be identified for a conviction under the Stock Theft Act if the accused is proved to have stolen stock.
- 03
Section 13(a)(v) of the Stock Theft Act No 57 of 1959 as amended
The maximum fine for a first conviction for theft of stock is R4000, as amended by Section 4 of Act 28 of 1990.
06
Ratio, limits and disposition
Ratio decidendi
The court found that while the complainant could only positively identify one calf as his, the evidence established that the accused sold five cattle, including the calf, to a farmer. The inability to identify the owners of the other four cattle did not exonerate the accused under Section 11(2) of the Stock Theft Act. The conviction for theft of all five cattle was confirmed. However, the sentence imposed by the magistrate exceeded the statutory maximum for a first offender, as the law had been amended to reduce the maximum fine from R8000 to R4000. The accused, being a first offender, was entitled to the benefit of the amended sentencing provision. The sentence was therefore set aside and substituted with a lesser sentence in accordance with justice and the statutory limit.
Obiter and limits
- The court noted the importance of proper identification of stolen property but clarified that statutory provisions may allow for conviction even where ownership is not fully established.
- The court emphasized that sentencing must strictly comply with statutory limits, especially where amendments have reduced maximum penalties.
Court disposition
Conviction confirmed; sentence set aside and substituted.
- The conviction of the accused for theft of five cattle is confirmed.
- The sentence imposed by the magistrate is set aside.
- The following sentence is substituted: Two Thousand Rand (R2000) or one (1) year imprisonment.
Source and reliance status
North West High Court, Mafikeng
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North West High Court, Mafikeng
Judgment
CA NO 3 : /01
IN THE HIGH COURT OF SOUTH
AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
THE STATE
vs
NEO
JOHNSON TONGWANE
REVIEW:
LEEUW J: The accused No 1 was charged with the theft of five (5) herd of cattle belonging to one Rodgers Moncho. He was tried with four (4) other accused persons, but they were acquitted at the close of the Stateâs case.
The accused was convicted for the theft of all five (5) herd of cattle and sentenced to âR8000 (Eight Thousand Rand) or (2) two years imprisonment.â
The complainant Rodgers Moncho, testified that on the 25th June 2000, he kraaled (29) twenty nine herd of cattle and was informed on the following week-end that (5) five of his cattle went missing. He looked for them but was only able to recover (1) one calf of the missing cattle from a certain farmer. It was alleged that it was sold to the said farmer by the accused in question. The conviction for the theft of this calf is in order, but I am not satisfied that the State has proved, beyond a reasonable doubt that the other (4) four herd of cattle sold to the farmer by the accused belonged to the complainant in this case. I say so because of the following: (a) The complainantâs evidence is to the effect that his cattle went missing after the 25th June 2000. (b) The permit issued by Katlholo Justice Senatle, the administrative clerk at the tribal office, reflects (2) two herd of cattle, and forged to read (4) four herd of cattle, and is dated 22nd June 2000, before the complainantâs cattle went missing. (c) Again, the other permit handed in as exhibit âCâ, reflects the number of cattle as either 2 or 5, but the number was apparently forged. This permit, allegedly issued by the chief, is dated 23rd June 2000, before the complainantâs cattle went missing.
The complainant Rodgers Moncho, testified that on the 25th June 2000, he kraaled (29) twenty nine herd of cattle and was informed on the following week-end that (5) five of his cattle went missing. He looked for them but was only able to recover (1) one calf of the missing cattle from a certain farmer. It was alleged that it was sold to the said farmer by the accused in question. The conviction for the theft of this calf is in order, but I am not satisfied that the State has proved, beyond a reasonable doubt that the other (4) four herd of cattle sold to the farmer by the accused belonged to the complainant in this case.
I say so because of the following:
(a) The complainantâs evidence is to the effect that his cattle went missing after the 25th June 2000.
(b) The permit issued by Katlholo Justice Senatle, the administrative clerk at the tribal office, reflects (2) two herd of cattle, and forged to read (4) four herd of cattle, and is dated 22nd June 2000, before the complainantâs cattle went missing.
(c) Again, the other permit handed in as exhibit âCâ, reflects the number of cattle as either 2 or 5, but the number was apparently forged. This permit, allegedly issued by the chief, is dated 23rd June 2000, before the complainantâs cattle went missing.
(d) The complainant did not identify the other (4) four cattle which went missing and which he did not recover; It is therefore difficult to say with certainty whether the other (4) four herd of cattle, which were sold by the accused to the farmer, belonged to the complainant or not. Nevertheless, there is uncontradicted evidence on record to prove that the accused did sell the complainantâs calf, together with (4) four other herd of cattle to the farmer. The fact that the owner of the (4) four other herd of cattle is not known, does not exonerate the accused of the theft of the cattle. See Section 11 (2) of the Stock Theft Act No 57 of 1959 as amended. The conviction of the accused in respect of all (5) five herd of cattle is therefore in order. With regard to sentence: Section 13 of the Stock Theft Act, and in particular sub-paragraph 13 (a) (v) was substituted by Section 4 of Act 28 of 1990, which came into effect on the 4th April 1990. The maximum fine in respect of a first conviction for theft of stock, was reduced from R8000 to R4000.
(d) The complainant did not identify the other (4) four cattle which went missing and which he did not recover;
It is therefore difficult to say with certainty whether the other (4) four herd of cattle, which were sold by the accused to the farmer, belonged to the complainant or not.
Nevertheless, there is uncontradicted evidence on record to prove that the accused did sell the complainantâs calf, together with (4) four other herd of cattle to the farmer. The fact that the owner of the (4) four other herd of cattle is not known, does not exonerate the accused of the theft of the cattle. See Section 11 (2) of the Stock Theft Act No 57 of 1959 as amended.
The conviction of the accused in respect of all (5) five herd of cattle is therefore in order.
With regard to sentence:
Section 13 of the Stock Theft Act, and in particular sub-paragraph 13 (a) (v) was substituted by Section 4 of Act 28 of 1990, which came into effect on the 4th April 1990. The maximum fine in respect of a first conviction for theft of stock, was reduced from R8000 to R4000.
The accused is a first offender and in view of the above factors mentioned above, the sentence imposed by the learned Magistrate, Mothibistad, on the 8th November 2000 must be interfered with. I am satisfied that the sentence imposed is not in accordance with justice: In the result, the conviction is confirmed but sentence is set aside and the following is substituted therefore: âTwo Thousand Rand (R2000) or One (1) year imprisonment.â
M M LEEUW
JUDGE OF THE HIGH COURT 1 FEBRUARY 2001
The accused is a first offender and in view of the above factors mentioned above, the sentence imposed by the learned Magistrate, Mothibistad, on the 8th November 2000 must be interfered with. I am satisfied that the sentence imposed is not in accordance with justice:
In the result, the conviction is confirmed but sentence is set aside and the following is substituted therefore:
âTwo Thousand Rand (R2000) or One (1) year imprisonment.â
M M LEEUW
JUDGE OF THE HIGH COURT
1 FEBRUARY 2001
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