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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, GRAHAMSTOWN

APPEAL NO: 38/2012

CASE NO: RC17/426/08

Date Heard: 13 March 2013

Date Delivered: 13 March 2013

In the matter between:

THABISO PLAATJIES ................................................................................Appellant

and

THE STATE .............................................................................................Respondent

JUDGMENT

GOOSEN, J:

[1] The Appellant was convicted in the Regional Court at Port Elizabeth of theft of a motor vehicle and was sentenced to five years imprisonment. He now appeals, with leave of the court a quo, against his conviction.

[2] The relevant facts were, largely, common cause at trial. On 18 October 2007 two members of the South African Police Service who were on patrol in Kwazakhele, Port Elizabeth received information from a member of the public. As a result they proceeded to a house in Mbilini Street. They arrived at the address at about 8:30 pm. On pulling up in their police vehicle Constable Valentyn, who testified, stated that he saw five persons “stripping” a white Toyota Hilux bakkie. The bonnet of the vehicle was open and some people were “busy stripping” the engine. Others were at the rear of the vehicle “stripping” some metal bars from the vehicle. As the police approached the five persons ran away. Valentyn and his partner, Constable Venter, gave chase. Valentyn apprehended the Appellant after pursuing him for about 20 to 25 metres. Venter also apprehended a suspect. The other persons made their escape. According to Valentyn the Appellant was taken back to the yard where the Hilux vehicle was parked. He was found to be in possession of R2 000 and he was arrested.

[3] It was not disputed at trial that the Toyota Hilux vehicle found at the scene in Mbilini Street was owned by a Mr Pineda and that it had been stolen during the night of 17 October 2007 from the premises of his employee, Mr Viccence.

[4] The Appellant pleaded not guilty to the charge of theft. In his plea explanation he stated that on the 18^th October 2007 he had gone to the residence of a Mr Fekile Sindile in order to collect money that Mr Sindile owed to him. Mr Sindile was not present at the time. A person by the name of Mbulelo was at the house and he was standing at the kitchen door talking to Mbulelo. He saw that there were two bakkies parked in the yard and that there was a number of persons, 4 or 5 according to him, who were standing near the one bakkie talking to one another. He did not pay any attention to these men. He heard one of the men shout that the police were coming at which point all of these persons, including Mbulelo to whom he was speaking, ran away by jumping over the back fence. He did not run away and he was arrested by one of the policemen. He stated that he had a sum of R2900 in his possession, being money that he had collected from his clients. He explained that he conducts the business of giving loans to people and operates a taxi. He denied that he was “stripping” the Hilux bakkie or that he had anything to do with the vehicle at all.

[5] The Magistrate accepted the evidence of Valentyn and rejected that of the appellant. He accordingly found, on application of the doctrine of recent possession of stolen goods, that the appellant was guilty of theft of a motor vehicle.

[6] In rejecting the version of the appellant the Magistrate accepted, on the evidence of Valentyn, that the Appellant was one of the group of persons who were observed to be “stripping” the Hilux motor vehicle. He also accepted that the appellant had attempted to flee when the police arrived and that this fact was indicative of knowledge that “something was wrong in the yard”. He found too, that it was highly improbable that his version was true.

The Magistrate’s reasoning in this regard is instructive:

“Now this is being disputed by Plaatjies. Plaatjies says that he was on the scene when he was arrested. He had not run away. The policeman found him by the door. Now worth noting at the following: when it comes to the evidence of Mr Valentyn he did not know the accused prior to this incident. He had met him for the first time. No motive was brought to the fore as to why he would falsely accuse the accused. Not even the accused could come up with same. When looking at the probabilities it is very unlikely that a policeman would just catch someone that is innocently standing by the door away from a car that is being dismantled and arrest him.

On the other hand we have the accused version. Very interesting and very unlikely are the following: the accused says that he was standing by the door talking to Mbulelo and he and Mbulelo were innocently chatting to each other. Mbulelo informing him that the owner of the house Mr Fikile is not present. Five other men are innocently standing inside the yard and chatting. But for some strange these five men that were chatting start running when they see the police. Mbulelo himself, who was inside the house, starts running away from the police. Why would he do that? He is not even part of the people who are stripping the vehicle. If anything, if it is true that there were other five males then he could have furnished the police with the names of those people. Mbulelo starts running, the accused does not run. Very unlikely.”

[7] No reason is given why this description of events is unlikely. Having regard to the appellant’s version it is indeed unlikely that he would attempt to flee. He made it clear in his evidence that he had came to the house to collect money. He was not part of the group of men who were at the vehicle and if this is so then he would have had no reason to flee.

[7] Two critical aspects of the evidence bear consideration. The first relates to Valentyn’s observation that the appellant was busy “stripping” the vehicle. According to Valentyn he saw the appellant working on the vehicle. He was however quite unable to state where the appellant was, whether working on the engine or on the back of vehicle. The high water mark of his evidence was that the appellant was “part of the group”. It is striking that Valentyn was a single witness in this regard, despite the fact that he was in the company of another policeman, Constable Venter. It also bears mentioning that the arrests occurred at 8:30 pm; that it was dark and the only lighting was provided by the police vehicle’s headlights.

[8] According to the appellant he was standing outside the kitchen door of the house. The vehicle and the persons who were in the yard, was close by.

[9] Valentyn’s inability to state clearly and with any conviction where exactly the appellant was, does not permit of a definitive finding that the appellant was indeed one of the persons who was seen to be “stripping” the vehicle. Inasmuch as the Magistrate accepted that the evidence indeed established this fact he undoubtedly erred. There is a further factor which was apparently not weighed in the consideration of the probabilities, namely the appellant’s attire. He was wearing amongst other things, a brown jacket. The other suspect who was arrested was wearing a blue overall of the type that one would expect a person, who was working on a vehicle, to be wearing.

[10] The second aspect concerns the evidence as to the fact that the Appellant allegedly fled. Valentyn said that he chased after the appellant, and, having had him constantly in his sight, caught him after a 20 or 25 m pursuit. Later in his evidence he said he apprehended the appellant about 10 or 15 m away from the vehicle. The evidence also establishes that the police vehicle came to a halt at the entrance gate to the yard. There is no evidence to suggest whether or how the appellant came to be outside the yard, in the street. This in any event is not supported by Valentyn’s later evidence that the appellant was apprehended next to the stolen vehicle. According to the appellant he did not flee and he was arrested where he stood in the yard. If anything Valentyn’s evidence lends credence to the appellant’s allegations that he did not attempt to flee the scene.

[11] In my view the Magistrate erred in finding that the appellant’s version was not reasonably possibly true. His rejection of the appellant’s evidence was not based on a finding as to his credibility. Instead it was based upon a consideration of the probabilities. As I have already stated, there is nothing inherently improbable in the appellant’s version such as would warrant rejecting it out of hand as false beyond a reasonable doubt.

[12] Having come to the conclusion that the Magistrate erred in finding that the appellant’s version was not reasonably possibly true, it follows that the state did not discharge the onus which rests upon it.

In the result I make the following order:

1. The appellant’s appeal is upheld.

2. The appellant’s conviction and sentence is set aside.

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G GOOSEN

JUDGE OF THE HIGH COURT

ZILWA AJ:

I agree.

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P ZILWA

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

FOR APPELLANT: D.P Geldenhuys

Justice Centre

Grahamstown

FOR RESPONDENT: D Els

Director of Public Prosecutions

Grahamstown

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