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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA & R 46/2014

Date heard: 15 October 2014

Date delivered: 15 October 2014

 

In the matter between

MZOXOLO GQABI                                                                                            First Appellant

MTUNZI JOSIAH                                                                                         Second Appellant

and

THE STATE                                                                                                           Respondent

Criminal appeal – against conviction – appellants convicted of theft of motor vehicle – trial court correctly accepting evidence of state witnesses and rejecting versions of appellants as being not reasonably possibly true – on the facts application of doctrine of recent possession not faulted - appeal dismissed.

JUDGMENT

GOOSEN, J.

[1] The appellants were convicted of theft of a motor vehicle and sentenced to imprisonment of 10 years and 7 years respectively. Leave to appeal against both conviction and sentence was refused by the magistrate. On petition to this court leave to appeal was granted in respect of the convictions only.

[2] It was not in dispute at trial that the motor vehicle, a blue Toyota Corolla with registration […………..], the property of Mr A. was stolen sometime after 6 PM on Saturday 11 May 2013. Mr A.’s evidence was that he parked the vehicle outside of his house in Motherwell on that evening. He removed the battery and locked the vehicle. When he was preparing to leave for church early on the following morning he noticed that the vehicle was missing. It was immediately reported to the police. His evidence was further that on the following Tuesday he went to the police vehicle recovery facility at Struandale where he recovered the vehicle. When he found the vehicle the bonnet was not in its usual position; the radiator had been stripped out; the starter motor was missing as was the distributor and other cables. All four wheels had been removed and some tools that had been left in the vehicle were also missing.

[3] The state presented the evidence of two police officers who were involved in the recovery of the vehicle and the arrest of the appellants, constables Cita and Jack. They testified that they were on patrol duty in uniform in a marked police vehicle on 12 May 2013. Early that morning they received a call from the Radio Control Unit to say that a motor vehicle was being stripped at the corner of Shaya and Rebellion Streets in Soweto-on-Sea. They proceeded to the scene and stopped the police vehicle a short distance away, out of sight. They approached on foot. Both testified that they saw two persons at the vehicle. One was at the front of the vehicle apparently working inside the open engine compartment of the vehicle. The other was at the rear of the vehicle apparently busy removing the wheels. Cita approached the man at the front of the vehicle and Jack went towards the man at the back. When the man at the front noticed Cita he attempted to flee. Cita pointed his firearm at him and told him to stop, which he did. The person at the rear of the vehicle also attempted to flee. Jack pursued him and subsequently arrested him.

[4] Jack radioed the Radio Control room and supplied the registration details of the vehicle. It was confirmed that it was a stolen vehicle. When Cita searched the person he apprehended, namely the first appellant, he found four silver wheel nuts, a lock nut, some Prattley Putty and a pair of long-nosed pliers in his possession. Jack searched the person he apprehended, namely the second appellant, and found in his possession 17 wheel nuts and a large bunch of keys.

[5] Cita further testified that the vehicle’s bonnet was opened and that the wheels had been removed. The vehicle was apparently standing on stones. The vehicle was later removed and taken to the vehicle recovery facility at Struandale.

[6] The magistrate accepted the evidence of the two police officers and rejected the version of the appellants. The first appellant’s version was that he was on his way to a tavern on that Sunday morning. He noticed a number of people in the vicinity of a blue vehicle that had its wheels removed. As he approached the vehicle the second appellant, who was unknown to him, asked him for a light for his cigarette. He then saw a policeman running towards them and heard a shot being fired. He was told to lie down and was then arrested. He denied being in possession of any of the items found by the police.

[7] The second appellant’s version was to similar effect. He said he was going to a traditional ceremony on that morning. As he was proceeding past the vehicle policeman arrived. A shot was fired, and he was made to lie down. He also denied being in possession of any items.

[8] On appeal it was submitted that the magistrate had erred in finding that the state had proved the appellants’ guilt beyond a reasonable doubt. In particular, that the magistrate had failed to consider that the two police officers had contradicted each other regarding the whereabouts of the appellants when seen at the motor vehicle and therefore erred accepting their version.

[9] This latter submission is without foundation. The evidence as presented by the police officers does not disclose any contradiction.

[10] It was also submitted that the magistrate had erred in failing to consider that the version presented by the appellants was reasonably possibly true. It is indeed so that the magistrate’s judgment does not, in terms deal with the assessment of credibility of the prosecution witnesses nor that of the appellants. What is apparent however is that the magistrate made a clear and positive finding that the evidence of the police officers cannot be faulted.  It is on this basis that their evidence was accepted. The acceptance of the evidence of the police officers necessarily involved acceptance of the fact that both appellants were found (a) in the process of attempting to remove items from the vehicle; (b) in possession of certain items, particularly wheel nuts and, importantly, (c) that they both attempted to flee when confronted by the police. The acceptance of these facts renders the exculpatory version of the appellants not reasonably possibly true. This finding by the magistrate cannot be faulted.

[11] It was argued that the magistrate erred in finding, on the circumstantial evidence, that the appellants were guilty of theft. The magistrate in this regard relied on the doctrine of recent possession. That doctrine amounts to no more than a statement of the reasonable basis for inferential reasoning. In this instance it was not disputed that the motor vehicle was stolen sometime after 6 PM on the previous evening. The appellants were found in the process of stripping the vehicle early on the morning of 12 May. By then a number of items had already been removed from the vehicle. When all of these facts are considered together with the conduct of the appellants, the magistrate’s finding is unassailable.

[12] It follows therefore that the appeal against conviction cannot succeed. I make the following order:

The appeal is dismissed.

__________________________

G. GOOSEN

JUDGE OF THE HIGH COURT

 

NEPGEN, J.

I agree.

_____________________________

J. NEPGEN

JUDGE OF THE HIGH COURT

APPEARANCES:                

For the Appellant

Adv. O. Mtini

Grahamstown Justice Centre

For the Respondent

Adv. H. L. Obermeyer

Director of Public Prosecutions

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