S v Tongwane (3/01) [2001] ZANWHC 4 (1 February 2001)

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 State’s case.

The accused was convicted for the theft of all five (5) herd of cattle and sentenced to “R8000 (Eight Thousand Rand) or (2) two years imprisonment.”

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 complainant’s 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 complainant’s cattle went missing. (c) Again, the other permit handed in as exhibit “C”, 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 complainant’s 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 complainant’s 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 complainant’s cattle went missing.

(c) Again, the other permit handed in as exhibit “C”, 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 complainant’s 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 complainant’s 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 complainant’s 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: “Two Thousand Rand (R2000) or One (1) year imprisonment.”

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:

“Two Thousand Rand (R2000) or One (1) year imprisonment.”

M M LEEUW

JUDGE OF THE HIGH COURT

1 FEBRUARY 2001