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[2014] ZAECGHC 42
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Van Breda v S (CA&R401/2013) [2014] ZAECGHC 42 (4 June 2014)
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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE NO : CA & R 401/2013
DATE HEARD : 14 MAY 2014
DATE DELIVERED : 4 JUNE 2014
In the matter between :
FATIMA VAN BREDA Appellant
and
THE STATE Respondent
JUDGMENT
RUGUNANAN, AJ :
[1] The appellant was convicted by a magistrate in Port Elizabeth on a charge of fraud and sentenced to a fine of R1 000,00 or 60 days’ imprisonment conditionally suspended for 5 years. With the leave of the trial Court the appellant is before this Court on appeal against her conviction.
[2] The case against the appellant is that the offence was committed during January 2012 at an Edgars store when she entered a fitting room and switched a price tag on an “Eco T-shirt” with another price tag having a red sticker which indicated that the garment was on sale for a reduced price.
[3] In the conduct of the trial before the magistrate the prosecution called five witnesses. They included two security officers, Ms Althea Roberts and Mr Mekele Xulobana; a credit controller, Ms Charmelle Elana Goliath; a retail associate, Ms Clair Irene Jeggels; and Ms Winita Nolene Dial, a customer consultant.
[4] It is common cause that when the appellant exited the fitting room a price tag with a red sticker was attached to the T-shirt. The main issue for determination in this appeal is whether the price tag with the red sticker was attached to the garment before the appellant entered the fitting room. The issue attracts an onus for the State and its resolution is dependant on the testimony of the security officers Roberts and Xulobana. For reasons that will become apparent hereunder the testimony of the remaining witnesses, although summarised perfunctorily, is peripheral and of no assistance.
[5] On the main issue, the record of the trial proceedings evidences two distinct versions; on the one hand it being the version of the appellant that a price tag with a red sticker was attached to the T-shirt before she entered the fitting room; and on the other hand, a somewhat discrepant version emanating from the security officers suggesting by implication that a price tag with a red sticker was not so attached before the appellant entered the fitting room.
[6] Roberts testified that on the relevant day she operated the security camera in the CCTV monitoring room at Edgars. She stated that she observed the appellant, then accompanied by her spouse, via the camera and saw the appellant initially browsing around the women’s department and thereafter proceeding to the men’s department where she took a T-shirt from the rail where other T-shirts of a similar brand were displayed. When she observed the appellant proceeding to the fitting room she contacted Xulobana by radio and requested him to ascertain if there was a red sticker on any of the items of clothing taken by the appellant. Roberts stated that Xulobana called back and reported that there was no red sticker on any of the clothing when the appellant entered the fitting room but upon the appellant’s exit, she stated that Xulobana contacted her and reported that there was definitely a red sticker attached to the T-shirt. Roberts stated that she then zoomed the camera in on the garments carried by the appellant whereupon she observed a red sticker attached to the T-shirt. She also stated that video footage of the appellant’s movements were recorded on the CCTV monitor.
[7] In his evidence Xulobana confirms that at the request of Roberts he dispatched to the fitting room. What he did from that point onwards is apparent from his evidence-in-chief which reads as follows:
Prosecutor : “Can you remember further what Althea told you?
Xulobana : Yes she said I must look at the cloths (sic) that they are going to go into the fitting room with.
Prosecutor : And did you do that?
Xulobana : Yes correct.
Prosecutor : What did you do sir?
Xulobana : She had two garments with her, one was a skipper t-shirt and flexi pants. So because she had these two garments I gave her disc number two, indicating that she had two pieces of clothing that she was going to go into the fitting room with.”
[8] Xulobana stated that when the appellant exited the fitting room she returned the disc to him whereupon he observed a red sticker on the T-shirt and that he reported this to his “controllers”.
[9] In the extract quoted above Xulobana does not state that he did not observe a red sticker attached to either of the garments before the appellant entered the fitting room. He does so only upon being questioned by the magistrate. The relevant extract from the record reads as follows:
Magistrate : “Just explain to me in simple logical sense was that red sticker not there when she entered the cubical the first time?
Xolubana : Yes Your Worship it was not there I did not see it.”
[10] During cross-examination Xulobana was questioned about the fact that in his statement to the police (Exhibit “D”) he stated that he was requested by Roberts to check “the price tags of the customer”. When asked why he did not mention this during his evidence-in-chief his response was, “Well I must have forgotten”. The incongruity in Xulobana’s evidence does not render it clear and satisfactory in every material respect. When examined as a whole it lacks cohesiveness and reads unpersuasively.
[11] The witness Goliath testified that she and Dial assisted the appellant when the latter requested a credit transfer because she wanted to exchange a T-shirt for another. Goliath stated that after the appellant had been to the fitting room the appellant returned to the till point with a T-shirt to which a price tag with a red sticker was attached. Although she stated that she noticed a number of anomalies pertaining to the red sticker (the details of which are not relevant for present purposes), she conceded that her recollection of events and detail thereover was unreliable due to the passage of time.
[12] Briefly stated, the witness Dial confirmed that she and Goliath assisted the appellant with a credit transfer and exchange. She also stated that one of the garments brought by the appellant scanned for a different amount at the till point but could not remember if it was a “tracksuit pants” or a “top”. She was unsure whether this occurred when the appellant initially sought a credit transfer and exchange or whether it occurred after the appellant exited the fitting room. Her cross-examination on this and other aspects brought no clarity. As with Goliath, Dial’s recollection of events was also affected by passage of time as also the fact that she was feeling unwell on the day when the appellant visited the store.
[13] The witness Jeggels testified that she was employed in that section of the store where T-shirts were displayed. She stated that she was responsible for reducing the prices on all garments in her section. To do this she would use a “gun” from which a red sticker is ejected and attached to the relevant garment. Of some importance is that she stated that although reduced garments were kept on a separate rail, shoppers would move some of the items and not return them to their designated rail. She also recalled that Roberts contacted her about the price of an “Eco T-shirt” which she gave to Roberts.
[14] The appellant testified that she and her husband visited the store on the relevant day. After returning a garment (also a T-shirt, but with a “Woodstock” brand name), she uplifted a medium sized “Eco T-shirt” to which a red sticker was attached. She proceeded to the fitting room with two items of clothing, namely the T-shirt and the pants. She stated that before entering the fitting room Xulobana examined the price tag on the pants but that he did not check the tag attached to the T-shirt. She also stated that Xulobana smiled at her seemingly because he had previously falsely accused her of switching price tags in the store. She stated that when she exited the fitting room Xulobana was not there but that she was further attended to by a female assistant. The appellant’s evidence on this aspect is irrelevant for purposes of determining the main issue, it being common cause in any event that when she left the fitting room a price tag with a red sticker was attached to the T-shirt.
[15] From the aforegoing summation and a reading of the record, it bears mentioning that Roberts did not state during her evidence-in-chief nor during cross-examination that she zoomed in on the garments and / or that she observed a red sticker before the appellant entered the fitting room. In seeking to resolve the main issue, Roberts’ evidence is of limited assistance and Xulobana’s evidence must necessarily be examined.
[16] Commenting on the version proffered by Xulobana during his evidence-in-chief, it is clear from his recital above that he did not afford himself proper opportunity for observation or inspection. He merely counted the number of garments without physically checking them to ascertain if there was a red sticker attached to any of the items taken by the appellant before she entered the fitting room. His confirmation of the presence of a red sticker before the appellant entered the fitting room occurred only in response to a (trenchant) question put to him by the magistrate. This amounted to a denial that he did not properly inspect the garments before the appellant entered the fitting room.
[17] In convicting the appellant, although the magistrate appears to have been mindful of the previous incident when Xulobana accused the appellant of committing a similar offence, the magistrate made no specific finding regarding an improper motive that could be attributed to Xulobana. It is considered incumbent for the magistrate to have approached Xulobana’s evidence with a degree of caution that recognised his inclination towards mendacity as a factor for reducing the risk of a wrong conviction. The application of a cautionary approach assumes significance for the reason that the prosecution did not advance corroboratory evidence which indicated that a price tag with a red sticker was attached to the T-shirt before the appellant entered the fitting room. In point, the CCTV video footage mentioned by Roberts took the case for the State no further, nor for reasons already mentioned, was Roberts’ own evidence of any assistance on this issue. The magistrate however relied on Xulobana’s denial that he did not properly inspect the garments before the appellant entered the fitting room despite Xulobana’s own evidence which clearly indicated that he did not afford himself proper opportunity for observation or inspection of the garments before the appellant entered the fitting room. This evidence ought to have alerted the magistrate that the reliability of Xulobana’s denial was questionable considering that, in the context of his evidence as a whole, it was not clear and satisfactory in every material respect. Accordingly, on the main issue, Xulobana was a single witness whose evidence ought to have been approached with caution and it should only have been accepted by the magistrate if it inspired confidence that it was clear and satisfactory in every material respect. In this regard see S v Letsedi 1963 (2) SA 471(AD) at 473F-G and S v Khumalo en Andere [1991] ZASCA 70; 1991 (4) SA 310 (AD) at 327J. It is apparent from the judgment of the magistrate that he did not recognise that he was dealing with the uncorroborated evidence of a single witness on this aspect. It follows that the magistrate misdirected himself and accordingly erred in accepting the evidence given by Xulobana on the main issue.
[18] The magistrate also found that it was improbable that only one T-shirt with a reduced price would be amongst all the others with higher prices. On this aspect the record reveals no evidence that the T-shirt taken by the appellant was the only one on the rail with a price tag having a red sticker on it. In this regard the magistrate failed to recognise or to consider the evidence by Jeggels that shoppers would move items and not return them to their original places. The magistrate accordingly misdirected himself in respect of the evidence.
[19] Although unrelated to the issue for determination by this Court, a further misdirection is also evidenced by the magistrate’s finding that it was common cause that if an item was to be sold at a reduced price, the original price would have been deleted with a marking pen. This finding was made in the absence of evidence to that effect from Jeggels who was responsible for the marking of reduced prices.
[20] Respectfully, the aforegoing misdirections are reflective of an approach by the magistrate that is not compatible with a careful and reasoned evaluation of the evidence by Xulobana and the appellant. It is significant to comment that the magistrate had no regard to the appellant’s evidence that a price tag with a red sticker was attached to the T-shirt before she entered the fitting room, and that he was dismissive of her evidence that Xulobana only examined the price tag on the pants. Nowhere does the magistrate’s judgment indicate that Xulobana was found to be a reliable and honest witness nor were reasons advanced for preferring his evidence to that of the appellant (see Sithole v The State (868/11) [2011] ZASCA 85 at paragraph [8]). All that the magistrate said, was that it was more probable that Xulobana looked at both garments before the appellant entered the fitting room which, in itself, does not amount to a finding that Xulobana physically examined and inspected the price tags, nor does it amount to a conclusive finding that he observed a red sticker on the price tag attached to the T-shirt.
[21] In a case such as this, it is necessary to re-iterate the test to be applied when assessing an explanation given by an accused. In S v V 2000 (1) SACR 453 (SCA) at 455b, the court had the following to say:
“It is trite that there is no obligation on an accused person, where the State bears the onus, ‘to convince the court’. If his version is reasonably possibly true he is entitled to his acquittal even though his explanation is improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false. It is permissible to look at the probabilities of the case to determine whether the accused’s version is reasonably possibly true but whether one subjectively believes him is not the test. … the test is whether there is a reasonable possibility that the accused’s evidence may be true.”
[22] Commenting on the onus of proof that is applicable in criminal cases, in S v Van Der Meyden 1999 (1) SACR 447 (WLD) at 448h, the court stated that :
“In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true.”
[23] The reasoning employed by the magistrate shows that he did exactly what is cautioned against in the dicta cited from the aforegoing judgments. His line of reasoning, apart from disclosing no good reason for rejecting the appellant’s version, evidences a selective and piecemeal process of reasoning which overlooks consideration of a crucial ingredient, namely whether the reasonable possibility remains that the appellant’s explanation may be true. Clearly, the appellant’s version is not so improbable as to be rejected out of hand.
[24] For the above reasons I consider that the magistrate erred in holding that the State succeeded in discharging the onus on the main issue and therefore in proving the appellant’s guilt beyond reasonable doubt.
[25] The appeal is accordingly allowed and the appellant’s conviction and sentence is set aside.
__________________________
S RUGUNANAN
ACTING JUDGE OF THE HIGH COURT
EKSTEEN J :
I agree. It is so ordered.
__________________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Appellant : Adv J W Wessels instructed by Peter Mackenzie Attorneys, Port Elizabeth
For Respondent : Adv S Hendricks instructed by the National Director of Public Prosecutions, Grahamstown