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IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION

CA 13/06

OTHAENG GAOBUSE Appellant

and

THE STATE Respondent

CRIMINAL APPEAL

MMABATHO

MOGOENG JP, GURA J

DATE OF HEARING : 8 June 2007

DATE OF JUDGMENT : 07 August 2007

COUNSEL FOR THE APPELLANT : Adv. N. Gutta

COUNSEL FOR THE RESPONDENT : Adv. De Beer

GURA J:

Introduction

[1] The appellant was convicted by the regional court of theft of a motor vehicle and sentenced to undergo a term of five years imprisonment. The present appeal, with leave of the trial court, is directed against the conviction and the resultant sentence.

Factual background

[2] The appellant was initially charged jointly with Buti Ntikang (Ntikang) and Holiness Monareng (Monareng). The case was withdrawn against these two before the commencement of the trial.

[3] The following facts are either common cause between the parties, are admitted or are not denied:

1. Complainant’s van disappeared from his yard on the night of Friday, 8 August 1997.

2. On Saturday, 9^th August 1997, the appellant towed complainant’s van with his vehicle.

3. While the appellant was towing this van, Ntikang was in control of the towed vehicle.

4. The appellant had two houses, one was in the township and the other was in the village. The aforementioned van was towed to the house which is in the village. This house was occupied by Kleinbooi Moholo (Moholo) at the time.

5. The subsequent day, Christius Fuba (Fuba) started to strip the complainant’s van of its various parts.

6. In the evening, some parts of this stolen van, including its gear box, were loaded in the appellant’s van, by the appellant, Fuba and Moholo.

7. The appellant and Fuba then transported the said parts away.

8. On Monday, 11 August 1997, the police impounded the remaining parts of complainant’s van, including the chassis, from the appellant’s house which is in the village.

9. After the three accused had appeared in court, the appellant approached the complainant. He informed him that his involvement in this matter is only to the extent that Monareng brought the stolen vehicle to him for safekeeping since he alleged that he did not have enough space at his premises.

10. It was during these discussions that the appellant offered to take his old van to complainant’s place temporarily for his (complainant’s) use whilst he and Monareng would be repairing the complainant’s stripped van.

[4] The trial Court found that the following facts had been proved. It was the appellant and not Monareng, who requested Ntikang to assist in the removal of complainant’s van to the appellant’s house. The mechanic, Fuba, was conveyed by Monareng to the appellant’s house. The evidence of Fuba and Monareng was rejected. The former was branded an unreliable witness. The version of the appellant, that he acted innocently and at the request of Monareng, was rejected.

The issues

[5] The only question for decision in this matter is whether the appellant stole the complainant’s van.

The approach to evaluation of evidence

[6] The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weighs so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt (S v Chabalala 2003 (1) SACR 134 (SCA).

Evaluation of evidence

[7] Mr De Beer, for the respondent, submitted that Fuba’s statement to the police was inadmissible as evidence because no basis was laid down by the defence before cross-examining him on it. He referred this Court to the decision in S v Pitout 2005 (1) SACR 571 (BG). Consequently, so runs the argument, the trial court should have disregarded this statement in the evaluation of Fuba’s evidence. It is common cause that the public prosecutor in the court a quo never objected when the witness was cross-examined on his statement without first laying down the basis for the making thereof. Secondly, when the court indicated that it would call the police officer who took down the statement to testify, the prosecutor again

said that would not be necessary. By conduct therefore, the state acquiesced in the alleged improper procedure. In S v Pitout this Court held, that it was essential that certain jurisdictional facts be established before a witness may be confronted with his/her previous alleged inconsistent statement. Let me hasten to sound a warning though that the decision in Pitout, does not prohibit the handing in of a statement even though the basis for the making thereof has not been established. In other words, that case does not deal with the admissibility of the statement but rather with, amongst others, the weight to be attached to that particular statement vis-à-vis other evidential material before court. In any event, if Fuba’s statement was to be ignored and brushed aside there would possibly be a failure of justice. Within seven days after the theft of complainant’s van, he implicated Monareng, but seven years later, he substituted Monareng’s role for that of the appellant. The trial court was therefore justified, in rejecting his evidence as unreliable.

[8] Some criticism was levelled against the appellant by the trial court. I think it is time to consider that. The fact that he tried to make an out-of-court settlement with the complainant was found not to be consonant with innocence. I agree. However, it does not always mean that a person who proposes a settlement such as this, is the guilty one. There may be various reasons for trying to strike a deal such as this. For example, an attempt to avoid an expensive and protracted trial and the embarrassment that comes with the trial, the fear that you may eventually go to jail despite your innocence and an attempt to avoid publicity. This list is by no means exhaustive. What is important to note is that the appellant never admitted to complainant (or anyone else) that he stole his van. All that he did was to explain that whatever he did, was at Monareng’s behest.

[9] The court a quo found that the appellant gave no reason why the complainant’s van was not towed to Monareng’s house. With respect, this is an oversight and a misdirection on the part of the court. He did explain that Monareng had insufficient space to strip a vehicle at his yard since he had many vehicles there.

[10] The third criticism against the appellant by the trial court was that he did not tow this van to his house which is in the township. When he testified, appellant was not asked why he did not tow it to his township house. To draw an adverse inference against him on this point would be unjustifiable.

[11] Finally, the trial court found that appellant transported the vehicle parts from his kraal. This, according to the court a quo, justified an inference that he was not innocent. Appellant however explained why he conveyed these parts. It was at Fuba’s request. He knew Fuba to be stripping the van on behalf of Monareng. He (appellant) and Monareng used to help each other. On that particular evening, he did not go to his house specifically to fetch these parts. He had gone there to meet Moholo. Incidentally, he found that Fuba was ready to go.

[12] Moholo testified that Fuba was conveyed to appellant’s house by Monareng and not by the appellant. The trial court seems to have overlooked the importance of this point to the version of the defence. This evidence by Moholo, corroborates the version of the appellant, that the van was brought there at the request of Monareng.

[13] What the state has against the appellant in the form of incriminating evidence is his alleged offer to the complainant and Ntikang’s account. The version of the appellant is corroboroted by Moholo. In my view, it is reasonably possibly true that Monareng stole this vehicle with the appellant, or that it is the appellant alone who stole it. It is also reasonably possible that Monareng stole the vehicle alone, but the ultimate test is proof beyond a reasonable doubt. Under the circumstances there is no basis for rejecting the appellant’s explanation as not being reasonably possibly true.

Conclusion

[14] Consequently, the appeal against the conviction is upheld. The conviction and sentence are set aside.

SAMKELO GURA

JUDGE OF THE HIGH COURT

I agree

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

For the Appellant: S.E. Monare & Partners

1312 Thelesho Tawana Str

MONTSHIWA

2737

For the Respondent: Director of Public Prosecution

Old Standard Bank Building

Main Street MAFIKENG

2745

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