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IN THE HIGH COURT OF SOUTH AFRICA

(VENDA PROVINCIAL DIVISION)

 

                                                                Date: 4 August 2008

 

 

 

 

The Magistrate

VUWANI

 

CASE NO.  A285/08

REVIEW CASE NO. 63/2008

 

THE STATE v TSHIFHIWA  SIKHWARI

 

 

REVIEW  JUDGMENT

 

 

 

SNYMAN  AJ

 

 

[1]     This is an automatic review in terms of the provisions of section 302 of the Criminal Procedure Act, No. 51 of 1977.  In the court a quo the accused was found guilty of contravening the provisions of section 36 of the General Law Amendment Act, No. 62 of 1955 (Possession of suspected stolen property) (hereinafter referred to as the Act) and sentenced to three years imprisonment without an option of a fine. In view of the fact that I am of opinion that the conviction and sentence imposed is clearly not in accordance with justice, and in view of the fact that the accused may be prejudiced if the record of the proceedings is not forthwith placed before this Court, I deem it unnecessary to obtain a statement from the magistrate who presided at the trial.

[2]     Ignoring the reference in section 36 of the Act to the provisions of the Stock Theft Act, the elements of the crime created in this section are as follows:

 

(a)              the goods;

(b)             the accused must be found in possession of such goods;

(c)              there must be a reasonable suspicion that the goods have been stolen, and

(d)             the accused must be unable to give a satisfactory explanation of the possession.

 

[3]     In casu, it is common cause that the accused was found in possession of goods by inspector Rumadeni on 15 May 2008.

 

 

[4]     In my view, the conviction is clearly not in accordance with justice, for the following reasons:

 

(a)      the court a quo erred in not at all considering the requirement that there must be a reasonable suspicion that the goods have been stolen.   There is no evidence whatsoever of a reasonable suspicion that the goods have been stolen and there are no circumstances from which it could be inferred that there is such a suspicion.  The State did not at all prove this requirement and it follows that on this basis alone the conviction (and subsequent sentence) should be set aside;

 

(b)     furthermore, it is trite law that an accused is not required to proof the lawfulness of his possession.  All that is required is that an accused must state where he obtained the goods and it must be clear from his statement that his possession was innocent in the sense that either the goods had not been stolen or that he honestly believed that it was not stolen or that he was entitled to possess it (See Criminal Law CR Snyman Fourth Edition at 517).  It is also trite law that the Courts allow an accused to give account of his possession at any time up to and including his trial (see, inter alia, S v Khumalo 1964 (1) SA 498 (N) at 500 – 501).  The evidence of the accused in casu is clear as to where he obtained the goods and it is also clear from his evidence that he, at least, honestly believed that he was entitled to possess the goods.  The mere fact that his evidence is on one aspect contrary to that of Rumadeni does not at all affect the truthfulness of the accused.   There is absolutely no evidence to rebut the evidence of the accused in this regard.  The court a quo thus erred in finding that the accused’s version cannot be reasonably possibly true;

 

(c)     furthermore, the court a quo erred in making an adverse inference regarding the failure of the accused to call his brother to testify: in his judgment the presiding magistrate states that the accused was told to call his brother so as to strengthen his case (record p.19 line 9 – 10) but there is no indication in the record of the proceedings that the accused was told to call his brother to testify.  On the contrary, it seems as if the presiding magistrate closed the door for the accused after the accused had testified.  In this regard I refer to the record p.14 line 4 – 10  and I quote: 

 

“COURT:  Step back.

                                      NO FURTHER  QUESTIONS

COURT:     Is that your case sir?  Are you through?  You have testified, you did not call any witness, is that your case?

ACCUSED:  I still have one question.

COURT:   It is not a question, are you through?

ACCUSED:  Defence case.”  From the quoted passage it is clear hat the accused was not even given the opportunity to ask a question and it is also clear that the presiding magistrate did not ask the accused whether he wanted to call his brother to testify and informing him of the consequences should he fail to call his brother to testify.  In my view, the right to a fair trial and the interests of justice, demand that a presiding officer should ask an unrepresented accused whether he wants to call a witness (and assist the accused to call such witness) and to inform such accused of the importance and consequences should the accused fail to call such witness.  In casu this was not done, and in my view the presiding magistrate could therefore not blame the accused for his failure to call his brother to testify.  Furthermore, the court a quo erred in stating in its judgment that the brother of the accused “is available”, there being no such indication on the record of the proceedings; on the contrary, the accused testified that he is not certain whether his brother was aware of the court date (record p. 13 line 24, p. 14 line 1 – 2).

 

[5]     In the result, the following order is made:

 

The conviction and sentence of the magistrate is set aside and substituted for the following:  the accused is found not guilty and is discharged.  The accused must immediately be released from prison.

 

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MM SNYMAN

ACTING JUDGE OF THE VENDA HIGH COURT

I concur

 

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GNK  HETISANI

JUDGE OF THE VENDA HIGH COURT

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