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 18th of August 2001.  In count 2 it was alleged that they stole four head of cattled valued at R8000-00 on the 12th 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 24th August 2001; and

4.	The Appellant and his co-accused were found in possession of these cattle on the 24th 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 2001 (1) SA 912 (CC) at pages 923 to 924 A.

The question arises as to whether the Regional Magistrate was correct in applying the doctrine of recent possession and in his inferential reasoning.  Mr Hitge, who appeared on behalf of the Appellant submitted that the Regional Magistrate erred in applying this doctrine in that it was not the only reasonable inference that can be drawn under the circumstances of this case, that the Appellant and his co-accused stole the said cattle.  He referred this court to the case of S v Skweyiya 1984 (4) SA 712 (A).

He submitted that:-  

(1)	it is possible that Simon Morake, the person mentioned on the certificate of Removal of Stock, could have stolen these cattle and sold it to the Appellant and his co-accused;

(2)	 these cattle could have been stolen by the co-accused, Ernest Mongotleng, without Appellant knowing that they were stolen;

(3)	that the period of six and twelve days respectively is long enough for the said cattle to change hands before they ended up with the Appellant and his co-accused.

I am of the view that there is merit in these submissions.  It cannot be said beyond a reasonable doubt that the only inference that can be drawn from the fact that the Appellant and his co-accused were found to be in possession of the stolen cattle, is that they themselves stole it.

Mr Hitge conceded that the Appellant should have been convicted of possession of suspected stolen property.  I am of the view that this concession is indeed correctly made, especially if regard is had to the admissions made as well as the uncontested and unrefuted evidence on record.

I am therefore of the view that the conviction of theft should be set aside and substituted with that of possession of suspected stolen property.

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”.

In exercising our inherent powers of review, this order also applies to Ernest Mongotleng, the co-accused of the Appellant. 

                                              
R.D. HENDRICKS
JUDGE OF THE HIGH COURT

I agree

                                            
L.T. SIBEKO
ACTING JUDGE OF THE HIGH COURT

Attorneys of Appellant		:	Nienaber & Wissing Attorneys
6B Dada Complex
Aerodrome Crescent
MAFIKENG	

For the  Respondent		;	The Director of Public Prosecution
North West Province
Attention: Advocate  De Leeuw
Private Bag X2009
MMABATHO