South Africa: North West High Court, Mafikeng

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S v Mogale (31/00) [2000] ZANWHC 9 (30 June 2000)

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LEEUW J: The appellant was convicted in the Regional Court at Mogwase of contravening the provisions of section 36 of Act 62 of 1955 (two counts).

It is alleged, in count 1, that on the 20^th October 1993 he was found in possession of a Volkswagen Microbus registration number YBB 27908 and in count 2, that he was on the 4^th April 1995 found in possession of a Volkswagen Microbus registration number BBF 100 NW, in regard to which there was a reasonable suspicion that the vehicles had been stolen and that he, the appellant, was unable to give a satisfactory account of such possession.

He was sentenced to undergo four (4) years imprisonment on each count. The appeal is against conviction only.

The main grounds of appeal on behalf of the appellant are inter alia, that the state has not succeeded in proving:

(i) that the appellant was found in possession of the vehicles in issue;

(ii) that the state failed to prove the element of suspicion which ought to have arisen at the same moment that the vehicle was found in possession of the appellant.

The requirements for constituting an offence under section 36 of Act 62 of 1955 are the following:

1. The person must be found in possession of the goods;

2. There has to be suspicion founded on reasonable grounds in the mind of the finder that the goods have been stolen;

3. The person must be unable to give a satisfactory account of his possession.

See R v Ismail and Another 1958 (1) SA 206 (A)

It is now settled that the provisions of section 36 of Act 62 of 1955 are not unconstitutional in that the onus of proof does not shift to the accused and also, that it does not remove the protection from the accused of the presumption of innocence. See Osman and Another v Attorney-General, Transvaal [1998] ZACC 14; 1998 (2) SACR 493 (CC).

ON COUNT 1:

The evidence on record is to the effect that:

(i) the vehicle was registered in the name of the appellant, and

(ii) the appellant, through his admission, bought the vehicle from one Caroline Sebate.

There is nothing on record to prove that the vehicle was found in his possession when the suspicion arose.

It is a vital and important element of this offence that the Court must be satisfied that the appellant was found in possession or that the circumstances were such that the appellant was in control of the vehicle.

See S v Ndou 1959 (1) SA 504 (TPD).

S v Adams 1986 (4) SA 882 (A) at 890 D - 891.

S v Wilson 1962 (2) SA 619 (A).

Whether evidence together with all the other facts of the case would compel an inference that the appellant was beyond a reasonable doubt in possession of the vehicle is debatable.

Furthermore, the evidence before Court is to the effect that the appellant may have acquired the vehicle in an innocent manner. It can therefore not be held beyond a reasonable doubt that he was not in a position to give a satisfactory account of how he acquired the vehicle.

See S v Khumalo 1964 (1) SA 498 (N)

ON COUNT 2:

The vehicle in this count was not found in the possession of the appellant and there is nothing in the evidence led to suggest that he was in control thereof.

The state has rightfully conceded that the offences were not proved beyond a reasonable doubt against the appellant.

In the result, the appeal against conviction is upheld and the conviction and sentence on the two counts are set aside.

M M LEEUW

JUDGE OF THE HIGH COURT

I agree.

M W FRIEDMAN

JUDGE PRESIDENT OF THE HIGH COURT