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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO. CA and R 769/02

In the matter between:

ERIC SOWEYA FIRST APPELLANT

XOLANI VOYA SECOND APPELLANT

and

THE STATE RESPONDENT

_______________________________________________________________________________________JUDGMENT___________________________

PLASKET AJ:

[1] The appellants were convicted in the Regional Court, Port Elizabeth on a charge of housebreaking with intent to steal and theft. They were sentenced to seven and five years imprisonment respectively. They appeal against both conviction and sentence.

[2] On 28 December 2000, the house of Mr GS Nel was broken into and goods to the value of approximately R30 000.00 were stolen. He and his family discovered the theft when they returned home from a trip out of town.

[3] Earlier that day, two policemen, Captain Welcome Kennedy and Sergeant Andre Hammond, had arrested the appellants in the vicinity of Mr Nel’s home, when they had found them in possession of five suitcases loaded with what was later found to be the property of Mr Nel and his family. It was also alleged by the State that one of the appellant’s was found wearing an expensive leather jacket that belonged to Mr Nel, that jewellery was hidden in the lining of this jacket (which the first appellant abandoned in the police cells after his arrest) and the second appellant was found in possession of jewellery.

[4] As against this evidence, the appellant’s presented the following version. They were on their way to Korsten when they happened to come upon three men – strangers to them -- at the side of the road. These men asked them for assistance in carrying suitcases but never told them where the suitcases should be taken. Two of the strangers left the appellants with the third stranger and three suitcases while they went to fetch the remaining two suitcases.

[5] It was at this stage that the policemen arrived on the scene. The version proceeded as follows, in the words of the first appellant:

‘Die polisie het toe vir ons gevra wat is hierdie, wie s’n is dit, ons het vir hulle gesê hulle moet vir dié meneer vra, want dit is sy goed en ons het vir hulle gehelp. Terwyl ons so staan, het daar nog dié twee manspersone by gekom wat weg was. Hulle het nóg twee sakke by hulle gehad. Hulle het dit op die drie sakke gesit wat daar voor ons gestaan het. Hulle het gesê, “Ja, hulle is diewe, hulle het die sakke gesteel.” Ons het probeer verduidelik aan die polisie, maar hulle wou nie luister nie.’

Both appellants embellished on this version during the remainder of their evidence.

[6] It is clear that the magistrate treated the evidence of the State witnesses with great caution. This was justified. Captain Kennedy and Sergeant Hammond were very poor witnesses indeed. Despite this, however, the magistrate was able to find, correctly in my view, that the State had succeeded in establishing that the appellants were found in possession of the stolen goods, that the first appellant had been wearing the stolen leather jacket and the second appellant had been in possession of stolen jewellery.

[7] The magistrate was also correct in rejecting the version of the appellants as not being reasonably possibly true. He held in this regard:

‘Die beskuldigdes se getuinenis dat vreemdelinge hulle op straat voorgekeer het met die versoek dat hulle hulp moet verleen, is net eenvoudig nie redelik moontlik waar nie. Die verduideliking wat hulle gee grens aan die absurde. Hulle wil hê dat die hof moet glo dat hierdie persone wat dan in alle waarskynlikheid die diewe is, selfs terwyl die polisie op die toneel is, van die gesteelde goed gaan haal en bring tot by die polisie. Hierdie mense is bereid om hulself te kompromitteer. Dit is voor die handliggend dat só ‘n reaksie net eenvoudig nie redelik moontlik waar is nie. Hierdie getuienis kom ook as ‘n totale nuwe weergawe, dit is tydens die staat se saak nooit aan enige getuie gestel nie. Verder maak dit ook nie sin dat drie mense nie vyf tasse kan dra nie. Waarom hulle die beskuldigdes se hulp moet verkry, weet mens nie, die mense is totale vreemdelinge vir mekaar.’

[8] It follows from the above that the magistrate cannot be faulted in finding that, despite the poor quality of the evidence of the State witnesses, the State had proved the guilt of the appellants beyond reasonable doubt.

[9] As stated above the magistrate imposed terms of imprisonment of seven and five years respectively on the first and second appellants. It was argued by Mr Wolmarans on their behalf that these sentences were excessive in the circumstances.

[10] When, however, one considers the fact that the first appellant has nine previous convictions, of which eight are for either theft or housebreaking with intent to steal and theft, and the second appellant has two previous convictions for theft and for housebreaking, it is apparent that the appellants – particularly the first appellant -- can consider themselves fortunate with their sentences. It follows that I take the view that the magistrate cannot be said to have misdirected himself in imposing the sentences that he did.

[11] In the result, the appeals of the appellants against both their convictions and their sentences are dismissed; their convictions and sentences are confirmed.

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C Plasket

Acting Judge

I agree

__________________________

M Jennett

Acting Judge President

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