IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

JUDGMENT

On 10 May 2004 in the George Regional Court, the appellant was convicted, inter alia, of three counts of theft.

There were other charges levelled against the appellant, but he was either acquitted on those charges or has not appealed against his convictions thereon.

Charges 2, 4 and 9, which are the subject of this appeal were considered together for the purposes of sentence and the appellant was, on that basis, sentenced to four years imprisonment, the whole of which was suspended for a period of five years on certain conditions. One such condition was that he pay the complainant, a Ms Havenga, an amount of R8 000,00 damages, together with interest thereon by means of monthly instalments of R2 000,00. .

The explanation proffered by the complainant was that she required proof of any actual wrongdoing on the part of the appellant and that the nature of their relationship was such that she was initially prepared to give him the benefit of the doubt.

What is, in my view, relevant in this regard, is that it appeared to be common cause that it was only in about February 1996 that the complainant, by chance, came across the deed of sale in relation to the sale of the 427 sheep which forms the subject matter of charge 2, and that, in due course, having discussed the matter with her local minister, she decided to prosecute the appellant.

In the light of the circumstances regarding the commencement of the appellant's employment by the complainant, her apparent reliance upon him in regard to her affairs and her evidence with regard to the disintegration of their relationship, it does not seem that the explanation proffered by the complainant falls to be rejected.

Similarly, and with regard to that count relating to the sale on 27 March 1996 of the "staalskuur", which it was common cause belonged to the complainant, I do not consider that the conduct of the complainant is any way improbable and should be rejected. Her conduct subsequent to the sale thereof by appellant is, in my view, inconsistent with the allegation by appellant that she had authorised him to sell it.

As stated above, it was the contention of the appellant, that the sale of that property which forms the subject matter of the theft charges, was effected by him on the instructions of the complainant and on her behalf.

By way of example, it seems common cause that the deed of sale relating to the alleged sale of 427 sheep, forming the subject matter of the second claim, which is Exhibit E, at record page 1549, was not personally handed by the appellant to the complainant at the time of its conclusion, but according to the latter was coincidentally found by her during February 1996. It is also relevant that this document reflects the appellant as the seller of the sheep in question and makes no reference to his having sold such sheep as the alleged agent of the complainant or on her behalf.

"Whilst a Court of Appeal is generally reluctant to disturb findings which depend on credibility, it is trite that it will do so where such findings are plainly wrong. This is especially so where the reasons given for the finding was seriously flawed. Overemphasis of the advantages which a trial court enjoys, needs to be avoided lest an appellant's right of appeal 'becomes illusory*. It is equally true that findings of credibility cannot be judged in isolation, but require to be considered in the light of proven facts and the probabilities of the matter under consideration".
In criminal matters, it is equally well established that the proper test is not whether a witness is truthful and his evidence reliable, but whether the State has established beyond a reasonable doubt that the essential features of the story which he tells are true.

Applying these principles, I am not persuaded that the magistrate misdirected himself in accepting the evidence of those witnesses who testified on behalf of the State and in rejecting the evidence on behalf of the appellant.

It follows in my view that there have been no misdirection and I accordingly propose that the appeal be dismissed.