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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG, PRETORIA)

CASE NO: A1143/2009

DATE:21/10/2010

In the matter between:

PATRICK DUMISANI NKOSI.............................................Appellant

and

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

JUDGMENT

MAKGOKA, J:

[1] This appeal turns on the thin line between theft and attempted theft. The appeal is against both conviction and sentence. The appellant stood trial with another accused (accused 2) in the regional court, Ermelo, on one count of theft (read with sections 1, 11 and 14 of the Stock Theft Act 57, of 1959). The appellant, who was accused 1, was legally represented throughout his trial.

[2] Despite his plea of not guilty, the trial culminated in his conviction on 26 January 2009, upon which he was sentenced to 5 years imprisonment. The vehicle which was found to have been used in the commission of the offence was declared forfeited to the State. With leave of the regional court, the accused is now before us on appeal against both conviction and sentence.

[3] Although the notice of appeal on the merits was directed at the conviction as a whole, in the heads of argument filed on behalf of the appellant, as well during argument before us, the attack on conviction was limited to the question whether, on the facts of the case, theft had been completed or whether the appellant should only have been convicted of attempted theft.

[4] The circumstances that gave rise to the appellant’s conviction can be summarized as follows: the appellant was a registered police informer connected to the Stock Theft Unit of the Davel South African Police Service. The standard procedure for the appellant was as follows: once he became aware of information concerning stock theft, he would contact the police and furnish them with the information. He could not himself take any steps regarding the suspicion.

[5] On the morning of 29 March 2008 at approximately 4H30, Mr. Daryll Kadish, a farmer in the Davel area, received a phone call from accused 2, who told him he had information about cattle theft in process at his farm. He phoned the police and drove to the farm, where he found two of his nine cattle tied to poles. The rest were not tied.

[6] About 200 meters from where the cattle were tied, he found the appellant’s bakkie with a trailer, both stuck in the mud. He found the appellant at the vehicle. He questioned the appellant as to what he was doing there. The appellant informed him that he was there on a stock theft assignment on the instruction of a Captain Van Rensburg. Upon further inspection of the scene, it appeared to him that people had tried to push the vehicle out of the mud.

[7] Captain Van Rensburg testified and corroborated Kadish in material respects of what he found at the scene, including the presence of the appellant and the bakkie, as well as the tied cattle.

[8] It was common cause during the trial that the appellant also phoned Inspector Kobus Jurgens Janse Van Rensburg (to be distinguished from Captain Van Rensburg, who was phoned by accused 2), at 04H58 on the morning of 29 March 2008, and informed Janse van Rensburg that he had information of a stock theft that was in process at Davel and that he, the appellant, had found the thief and had arrested him. He wanted Janse van Rensburg to immediately send police officers to the scene.

[9] It was further common cause that Janse van Rensburg dispatched two police officers, Inspectors Sibanyoni and Hartley, to the scene, who found the scene as described by Kadish.

[10] The appellant’s explanation for his presence at the scene, with his bakkie stuck in the mud was the following: during the night of 28 March 2008 he received a request from accused 2 to assist him load some cattle. He agreed after he was directed to where the cattle had to be loaded. He proceeded to the camp as directed, and about 200 meters

from where the cattle were stationed, his bakkie got stuck in the mud. Him and accused 2 tried unsuccessfully to push it out. Accused 2 then left to summon help. When accused 2 did not return, he phoned Janse van Rensburg. He denied that he had any intention of stealing the cattle.

[11] The appellant further testified that he knew accused 2 as he once saw him at an auction and once delivered liquor at his house at the end of January 2008. The appellant led the court to believe that he did not have any further communication with accused 2 from end of January 2008 until the night of 28 March 2008. However, it was established during cross-examination, through his cellphone records, that the appellant and accused 2 had frequently contacted each other between 24- 28 March 2008. The appellant and accused 2, implicated each other and each offered an exculpatory explanation about their involvement with the incident which led to their arrest.

[12] The regional magistrate, correctly, rejected the version of the appellant as not been reasonably possibly true. He found that as a police informer, he did not follow the prescribed procedure referred to above, simply because he and accused 2 had agreed to steal the cattle. Only when they could not execute their plan because the bakkie got stuck in the mud, did he phone the police to try justify his bakkie’s presence at Kadish’s camp.

[13] Unfortunately, the regional magistrate did not consider in any detail the question whether theft or merely attempted theft had been established. He simply arrived to a conclusion that “[d] it is duidelik dat beskuldigdes reeds op daardie stadium die beeste vir hulleself toegeeien het...”, without any basis or reasons for his conclusion.

[14] It was argued by Mr. Van Rooyen, on behalf of the appellant, that the State’s case, at best, establishes that only attempted theft had been proven. Ms. Voster, for the State argued, with reference to S v Ncube en ’n Ander 1998 (1) SACR 174 (T), that completed theft had been established.

[15] In S v Ncube (supra), the accused were arrested by the police while they were moving or lifting a box from the back of an open delivery vehicle, with an intention of stealing the box. However, the police intervention prevented them from actually removing it from the vehicle. The question arose on review whether the accused had committed theft or merely attempted theft. The court held that theft had been completed.

[16] In coming to that conclusion the court relied, by analogy, on the general principle applied in some shop-lifting cases, where a person who hides an article in a self-service store with an intention to walk out of the shop without paying therefore, is guilty of theft despite that he had not succeeded in doing so because of security officers’ intervention.

[17] In my view, there are two reasons why Ncube should not be followed: firstly, the authorities are not harmonious on the shop-lifting cases. There are conflicting judgments. The court in Ncube cited two old South West African cases, S v Xinwa 1970 (2) PH H 171 (SWA) and Uirab v S 1970 (2) PH H 172 (SWA). There are cases which are in conflict with the two mentioned, for example S v Khumalo 1975 (4) SA 345 (N) and Mqambuzana 1976 (1) SA 212 (EC) where it was decided that such conduct merely amounts to attempted theft.

[18] Secondly, one should be cautious not to lavishly apply the shoplifting principle to all other cases where a determination has to be made between completed and attempted theft. Theft out of self-service shops constitutes, in my view, special form of theft in that “by die self- bedieningswinkel - gevalle bestaan daar dan altyd die risiko dat ’n voornemende dief wat ’n artikel byvoorbeeld onder sy klere sou versteek, met die handeling sal wegkom en so die versteekte item suksevol sou kon steel”- Stafford J (as he then was) in S v Tau 1996 SACR 97 (T) at 102 h-i.

[18] In Shangase 1960 (1) PH H 123 (N), the accused was convicted of theft on the following facts: he was found on the premises where he had no right to be with his hand on a carton of paint which was on a truck and which he pulled halfway off. When he was seen he abandoned his attempt and ran away. On appeal, it was held that the accused ought to have been convicted of attempted theft for he had not completed the contrectatio when he was obliged to abandon the attempt.

[20] The judgment in Tau (supra) serves to confirm the principle that a mere assumption of control over the property is not yet sufficient to constitute theft, but it should further be required that the owner effectively be excluded from his property.

[21] In the present appeal, I take into account the following: the cattle were not removed from the camp or the farm; and they could not be so removed as the bakkie was stuck in the mud; they were not even loaded; when the bakkie could not be pushed out of the mud, the appellant decided to abandon the theft; at least by 05H00 when he called Captain Van Rensburg. As remarked in R v Schoombie 1945 AD 541, the present case falls into the class of “those on which the wrongdoer has not completed all that he has set out to do, because the completion of his unlawful acts has been prevented by the intervention of some outside agency...”

[22] In my view, the appellant’s conduct amounted to acts of execution or consummation of the offence, which do constitute an attempt. (S v Josephus 1991 (2) SACR 347 (C) at 348 f-h.) The conviction should therefore be set aside and replaced with one of attempted theft.

[23] The appeal is also against sentence, an aspect to which I now turn. In terms of section 14 (b) of the Stock Theft Act 57 of 1959 (as amended) the regional court has jurisdiction to impose a fine or imprisonment for a period of 15 years.

[24] It is trite that a court of appeal is entitled to interfere with the sentence of a trial court only where the trial court failed to exercise its discretion properly, or where the sentence imposed is so shockingly inappropriate that no reasonable court would have imposed it. Put differently, where the trial court misdirected itself.

[25] In the present case, the magistrate’s reasons for sentence for both the appellant and accused 2, is only one and half pages, consisting of 37 lines. After setting out the general principles of the triad developed in S v Zinn 1969 (2) SA 367 (A), the regional magistrate mentioned the previous convictions of the appellant and the appellant’s equal role in the commission of the offence. The regional magistrate then dealt with the evidence of the State in aggravation of sentence: the statistics and losses suffered by stock owners, the prevalence of the offence and the difficulty in tracking the offence. Finally he held that the appellant showed no remorse, and concluded that the only suitable sentence for both the appellant and accused 2 was direct imprisonment.

[26] Nowhere did the regional magistrate make reference to the personal circumstances of the appellant or accused 2. He had the benefit of a very detailed and articulate address in mitigation of sentence by the appellant’s counsel, Adv Killian, in which all possible circumstances favourable to the appellant were raised. It is therefore difficult in the light thereof that he could have failed to take such personal circumstances into account at all. His failure to make even a passing remark to such circumstances, is an indication, in my view, of a failure to accord sufficient weight thereto and amounts to a misdirection.

[27] The regional magistrate also failed to give due consideration to other sentencing options like imposition of a fine. Why direct imprisonment was considered to be the only sentencing option is not articulated in the regional magistrate’s reasons for sentence. Such failure to consider other sentencing options, constitutes a further misdirection. In the circumstances, this Court is at large to interfere in the sentence imposed and consider sentence afresh. I proceed to do so, having regard to the personal circumstances of the appellant, the nature of the crime and the interests of society.

[28] The personal circumstances of the accused were placed on record as follows: he was 33 years old, married with two sons aged 6 and 16 years old, who are both in school in Ermelo. His wife is unemployed and was expecting their third child. His highest educational standard is grade 11, completed in 1999. He earned an amount of plus minus R4000 as a speculator in cattle. He has three previous convictions which were older than 10 years.

[29] It is so that stock theft is a very serious offence, affecting, as it does, mostly farming communities. The manifold occurrence of this offence in the district of Davel, as testified by Captain Van Rensburg and the disrupting effect which this has on farming activities, as well as the difficulty in tracing the offenders, make the expectation of the farming community in the area, proper and legitimate that appropriate sentences are meted out to those convicted of the offence. A further aggravating factor in the present case is that the appellant was a police informer attached to the Stock Theft Unit. It is quite conceivable that he used his inside knowledge to plan and commit this offence, thus abusing his position of trust.

[30] Having said that, there is still a need to maintain a healthy and proper balance between the interest of society, the nature of the offence and the offender. Aggravating of sentences to combat increasing prevalence of a particular crime must not lead to an inevitable negation of the accused’s personal circumstances - S v Matoma 1981 (3) SA 838 (A).

[31] I find the following extenuating factors in the appellant’s favour: the complainant did not suffer any damage; the appellant was for all intents and purposes, a first offender (as his previous convictions were older than 10 years); he was gainfully generating income to support his unemployed wife and two young children, expecting the third one. Imprisonment would deprive him of the means of earning a living. The latter aspect was considered a relevant factor in S v Scheepers 1977 (2) SA 154 (A), a case also involving stock theft, where the appellant had been convicted of theft of a cow. The sentence of 12 months imprisonment was set aside on appeal and replaced with a fine of R1000.00 or six months imprisonment.

[32] Regard being had to the totality of all factors in the appeal against sentence, I am of the view that a fine would be an appropriate sentence.

[33] In the circumstances I make the following order:

1. The appeal against the conviction is upheld in part to the extent that the conviction of theft is set aside and replaced with the conviction of attempted theft.

2. The appeal against the sentence is upheld.

3. The sentence of 5 years imprisonment, including the forfeiture order in respect of the motor vehicle, is set aside and replaced with the following sentence:

“Accused No. 1, Petros Dumisani Nkosi, is sentenced to a fine of R2500 or 3 months imprisonment”

4. The motor vehicle with registration numbers BZW051MP is to be returned forthwith to its rightful owner, and the relevant officials are directed to ensure compliance with this order.

T R MAKGOKA

JUDGE OF THE HIGH COURT

I agree

MNGQIBISA-THUSI

JUDGE OF THE HIGH COURT

DATE HEARD: 1 JUNE 2010

JUDGMENT DELIVERED: 21 OCTOBER 2010

FOR THE APPELLANT:ADV J VAN ROOYEN

INSTRUCTED BY:PRETORIA JUSTICE CENTRE

FOR THE DEFENDANT:ADV P VOSTER

INSTRUCTED BY:DIRECTOR OF PUBLIC

PROSECUTIONS

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