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CA 202/03

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

STEPHANUS DANIEL PETRUS MULLER Appellant

and

THE STATE Respondent

JUDGMENT

CRIMINAL APPEAL

MAFIKENG

HENDRICKS J, SIBEKO AJ

DATE OF HEARING : 19 MARCH 2004

DATE OF JUDGMENT : 26 MARCH 2004

Counsel for Appellant : Advocate M. Hitge

Counsel for Respondent : Advocate A.F. De Leeuw

HENDRICKS J:

The Appellant and his co-accused Ernest Mongotleng were charged in the Regional Court, Mothibistadt with two counts of stock theft. In count 1 it was alleged that they stole eight head of cattle to the value of R28 000-00 on the 18^th of August 2001. In count 2 it was alleged that they stole four head of cattled valued at R8000-00 on the 12^th of August 2001. Both the Appellant and his co-accused pleaded not guilty to both counts. They were found guilty as charged on both counts.

They were each sentenced on Count 1 to undergo an effective term of imprisonment of four (4) years and on Count 2 to two (2) years imprisonment which was suspended for three (3) years on condition that they were not convicted of theft or stock theft committed during the period of suspension.

The Appellant appeals against both the conviction and the sentence imposed on him. Although a notice of withdrawal as attorneys of record is filed on behalf of Ernest Mongotleng, there is no indication that he noted an appeal.

Facts

Certain admissions were made during the cause of the trial in the court a quo which made it common cause between the State and the Defence that:-

1. The cattle mentioned in the two counts were indeed stolen on the alleged dates;

2. That ten of the cattle mentioned in the two counts were recovered and positively identified as belonging to the complainants mentioned in two counts;

3. That the appellant and his co-accused transported these cattle to a stock auction on the 24^th August 2001; and

4. The Appellant and his co-accused were found in possession of these cattle on the 24^th August 2001.

The Regional Magistrate accepted the evidence as tendered by the State and his acceptance thereof was not seriously challenged or contested. In applying the doctrine of recent possession he found that the only reasonable inference that can be drawn under the circumstances of this case was that the Appellant and his co-accused stole the said cattle.

The Appellant, apart from giving an exculpatory plea explanation, did not testify in his defence. There is no onus on him to testify, but if an accused person elects not to testify in the face of evidence pointing to his involvement in the commission of an offence, he is at risk that such evidence may be found to be conclusive and enough to establish proof beyond a reasonable doubt and he may be convicted, on that evidence.

See: S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC) at pages 923 to 924 A.

As far as the sentence is concerned, Mr Hitge submitted that a fine coupled with a suspended term of imprisonment should be imposed. He relied on the case of S v Skweyiya (supra) for his submission.

Having regard to the seriousness of this offence and the value of the cattle involved, I find myself unable to agree with the submissions made by Mr Hitge.

However, in view of the fact that the conviction has been altered to a less serious offence, I am inclined to think that it would be appropriate to suspend a portion of the sentence imposed on Count 1. The Regional Magistrate suspended the sentence on Count 2. I find myself unable to interfere with that sentence, especially in view of the fact that no serious challenge was made in respect of the imposition of the sentence in Count 2.

Having taken all the circumstances of this case into account, I am of the view that it will be appropriate that a portion of the sentence on Count 1 be suspended on certain conditions.

In the result the appeal succeeds to the extent that:-

1. The convictions of theft on both counts are set aside and are substituted with convictions of possession of suspected stolen property;

2. The sentence on Count 1 is set aside and substituted with the following:-

“Four (4) years imprisonment half of which is suspended for three (3) years on condition that the accused is not convicted of being in possession of suspected stolen property during the period of suspension”.

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