IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN
Case No: A 181/09

In the matter between:

and

JUDGMENT

INTRODUCTION
1. The appellants, a married couple from Cape Town, were charged in the Regional Court, Cape Town, with theft of a motor vehicle. On 22 October 2007, they both pleaded guilty to the charge and tendered written plea explanations in terms of section 112 of the Criminal Procedure Act. 1977.
2. The prosecutor was not prepared to accept the pleas on the factual basis set oul in the plea explanations and the Regional Court Magistrate, correctly, had misgivings as to whether the pleas as tendered amounted to an admission that they had the intention to deprive the owner permanently of her property. As o result pleas of not guilty were entered.

4. With the leave of the trial court, both appellants appealed against their convictions and the sentences imposed.

THE EVIDENCE

"1.     I, ULRICH WALTER, confirm thai I plead guilty to the offence of car theft.

2. I admif that on the 3 March 2007 and al the Waierfront parking area, Cape Town in the area of jurisdiction of this Honourable Court I wrongfully and unlawfully stole a Renault Geo motor vehicle with registration number CY21723I ("the Geo"} the property or in the lawful possession of Elardie Mosfert.

3. The incidenf occurred against the backdrop of emotional, matrimonial and psychological upheavals in our lives. I am bipolar and my wife suffers from a general anxiely disorder and severe depression. Shortly before the incidenl our marriage had seemingly come to an end for o number ol reasons but the main ones being o relationship Undo hod had with a previous boytriend of hers and her inability to come fo terms with her father abusing her when she was a child. We had atlempted 1o overcome our difficulties by talking the problems over at greaf length in the days leading up to the incident and more especially fhat day. We had attempted to resolve the problems with the assistance of partner therapy. We had eventually agreed to stay together as a family and Linda had made a number of commitments in this regard.

6. I lold Linda to drive the Cleo out in order for her to prove to me that she still loved me and our children, that she had made a commitment to our marriage and that she had in fact put behind her the emotional and psychologically debilitating trauma of being molested by her father when she was a child. Although Linda was receiving counseling, this latler problem was having such a profound effect on her and our marriage that I believed it had to be resolved. She loved her father despite whot he nod done to her and I was not sure that our iove could be placed first in her mind. She had agreed to put this problem behind her but was not convincing in her undertaking.
7. Linda used our parking tickel to take the Clio out of the parking area and I got a replacement ticket by saying I had lost mine and by giving a false name. The giving of the false name was not only to disguise my identity because we had taken the Clio but also because I am afraid to give out my address details to strangers.
8. Linda drove Ihe car home and parked it in the street outside our house. We hod not thoughl through what we were doing and after parking the car we did not know what fo do with it. We then became scared and afraid of Ihe consequences of what we had done. We discussed various ways to get out of the predicament we had placed ourselves in and eventually decided to park the car near to where we had stolen it but never got around to doing so before I left to go to Namibia early the following week and then on to Germany to give a series of lectures to bankers. The emotional crises in our lives was not over and this combined with the overseas trip and uncertainty as 1o what to do contributed to our failing to deal with the Cleo problem immediately.   We intended to sort the problem out when 1 returned from Germany. We had parked Ihe car on our properly and in order lo protect it from our large dogs, and also to hide the car. we put a plastic cover over it.

9. Linda made sure thai everything in the car that could be stolen whilst it was parked in the street outside our house was removed and placed safely in our house. When the police called the following Thursday these items togefher with the car were returned to the police and then to the Complainant.

10.     Our actions were unlawful and wrong. I am truly sorry and apologise to fhe Complainants for any anxiety or harm I may have caused them."
6. The first appellant in her plea explanation confirmed the contents of her husband's plea explanation insofar as it related to her.
7. The complainant Bardie Mostert, testified that she parked her husband's car, a Renault Clio, in the basemenl parking at the V&A Waterfront shopping mall in Cape Town on Saturday 3 March 2007 at approximately 1 lhOO. She had locked the vehicle and put the keys in her handbag whereafter she and a friend went looking for an evening dress. On her return to the parking area later that day, she could not find her keys in her handbag and the car was missing.

9. John Davids, a surveillance operator at the V&A Waterfront shopping complex, testified that he examined images pholographed by the security cameras in the complex and found that the Renault Clio entered the underground parking area at 1 lh08 on 3 March 2007 and left the parking area at 13h30 on the same day. He further testified that a Mercedes Benz with a foreign registration number entered the parking garage at 12h04 and left the parking garage at 13h40 on the same day. He handed in a photograph of the driver of the Mercedes Benz who paid for a parking ticket at 13h33. He further established that the driver of the motor car with the foreign number plate had purchased a replacement parking ticket on that day. It is common cause that this was the second appellant.

10. He further established from the video recordings made by the security cameras that at 13h28 the first appellant got out of the Mercedes Benz with the foreign number plate and that she was the driver of the Renault Clio motor vehicle when it exited the parking area at 13h30.

12. He then told her that they were going to arrest her for the theft of the car and warned her she did not have to answer any further quesiions, that she was entitled to an attorney of her choice and if she could not afford one she could apply for one. He thereafter asked her where the car in question was and she took them through the kitchen to the backyard of the property, where she pointed out a vehicle covered in black plastic. He and his colleague uncovered the vehicle and identified the vehicle as the one that was reported stolen by the complainant. The front registration plate was still on, but the rear one was missing. On his question as to the keys for the car, the first appellant went into the house and came back with the keys.
13. Whilst walking towards the police vehicle, he again reminded her of her rights and asked her why she had taken the vehicle. She informed him that she had found the keys in the vehicle and took the vehicle for safe-keeping. She did not fhink of reporting the matter to the security officials at the centre. That was the case for the State.
14. First appellant was the only witness for the defence. She testified that she and second appellant had marital problems. He is bipolar and she suffers from depression. She also had an affair with her previous boyfriend which came to her husband's attention.

16. She testified that when they returned to their car to leave, she noticed that the ignition of the Renault Clio parked next to them still had its keys in the ignition and that the ignition was still on. They both got into their car and proceeded towards the exit. There were other vehicles and they had to stop. At this stage second appellant dared her to get out of their car and drive the Renault Clio out of the parking area. This, he said, would indicale that she still loved him and that she had forgotten about her boyfriend and the problems that she had with her father when she was young. She decided to do it, got out of the car and into the Renault Clio, whereafter she drove it out of the parking area. She used their parking ticket to get through the control at the exit.
17. After she had left the area, she testified that she panicked and did not know what she must do. She decided to drive to the house and she parked the car outside and waited for second appellant to arrive.

19. On Ihe Tuesday second appellant left for Namibia and Germany. As she did not know what to do with the vehicle, she decided to wait for second appellant to return.
20. In cross-examination she conceded that the car was not visible from the front of the house but was hidden so that nobody could see it. She also testified that before the car was covered with plastic, second appellant requested her to open the bonnet and that he had touched two nuts to the battery, explaining to her something about a tracking system.
21. On a quesiion from the prosecutor as to why she did not tell Swinnen that she had taken the car because it was a dare from her husband, she replied that it was embarrassing and unpleasant for her. She also thought it was totally unbelievable and that he would not have believed her in any case.
22. The second appellant did not testify.
 THE FINDINGS
23. The trial court found that first appellant was not a truthful witness and rejected her evidence insofar as she contradicted the evidence of the State witnesses. With regard to the keys, and having accepted the evidence of Mostert that the keys were in her handbag, the trial court found that it could not find how the keys came to be in the possession of the appellants and calied it a mystery.

THE ALLEGED IRREGULARITIES

27. As stated above, Swinnen testified that he had shown first appellant video footage from the security cameras at the V&A Walerfront, including a photo of herself and asked her if she could confirm that it was her. To this she replied in the affirmative. Mr King objecled to evidence being led as to what the first appellant had said to Swinnen, on the basis that she was not warned of her constitutional rights.
28. After some discussion, Mr King agreed that the evidence may be led as Ihe fact that first appellant was the person in the photo is not disputed. He added that "if that is the only evidence my learned friend wishes to produce, then she may proceed". He further placed on record that should the State wish to place further evidence of what first appellant allegedly said to Swinnen before court, a trial-within-a-trial should be held to establish the admissibility of such evidence.

29. According to Swinnen he then told first appellant that he was going to arrest her on the charge of theft of a motor vehicle and he warned her of her constitutional rights, including that she did not have to answer any further questions.
30. He thereafter enquired about the whereabouts of the car and she took them to the bock yard where she pointed out the car. At this juncture Mr King informed Ihe court that this evidence is also not in dispute.
31. On Swinnen's enquiry as to the keys for the car, the first appellant retrieved the keys from the house.
32. Swinnen then proceeded with the first appellant to the police vehicle to take her to the police station. His evidence in this regard reads as follows:

"While walking, I reminded her again about her rights, and she understood her rights. I then asked why she took the vehicle.

33. During cross-examination by Mr King, Swinnen conceded that afler the document, warning first appellant of her rights, was completed at the police station, first appellant elected to exercise her right to remain silent. Mr King's further cross-examination was. in the main, aimed at placing in dispute Swinnen's evidence that he had informed first appellant of her right to remain silent at her house as he had testified.
34. During her evidence in chief, first appellant admitted that Swinnen had shown her Ihe photographs and that she had admitted that it was she and second appellant in the photos.
35. She also admitted thai she had told Swinnen that she had the car and had given him the keys.
36. She further testified that before they left her house, Swinnen allowed her to phone her lawyer. At the police station her rights were explained to her. She denied that Swinnen had explained her her rights at an earlier stage.
37. She confirmed Swinnen's evidence thai he had asked her why she hod taken the car and that he did so before they arrived at the police station. She was not asked whether she replied to that question.
38. Under cross-examination, first appellant was asked whether she lold Swinnen why she took the car. Mr King immediately renewed his objection but was overruled by the Regional Court Magistrate as follows:

39. The prosecutor then asked firsl appellant why she did not inform Swinnen that she took the car because second appellant dared her to do so. She replied that it was embarrassing and that she thought it was so unbelievable that Swinnen would not have believed her in any event.
40. In her judgment, the Regional Court Magistrate dealt with Swinnen's evidence and first appellant's evidence with regard to the conversation at the house. After finding that the statement in question was not self-incriminating, she concluded that the Constitution is not applicable. She further stated that even if the Constitution was applicable, the first appellant's rights were not infringed as her rights were explained to her.

44. Bearing in mind the nature of the evidence in question, the fact that first appellant was not cross-examined with regard to the impugned reply to Swinnen's question and the plethora of other evidence establishing Ihe guilt of the firsl appellant, I do not share counsel's view that the irregularity resulted in an unfair trial.

The convictions

46. The issues that arose in this matter were the following:

46.1. Whether the complainant had left the keys in her car's ignition or whether it was removed from her handbag;
46.2. Whether the first appellant removed the car from the V&A Waterfront as a result of a dare from second appellant;
46.3. Whether the appellants removed the car and kept the vehicle with the intention of stealing it.

47. The court a quo found that the State witnesses were reliable and that the first appellant was an untruthful witness and rejected her evidence insofar as it contradicted the evidence by the State witnesses.
48. These findings are borne out by the record.

50. It follows that first appellant's evidence that she saw the keys in the ignition is reasonably possibly true.
51. The court a quo, however, correctly rejected the first appellant's evidence that she had removed the car from the V&A Waterfront as a result of a dare by her husband. This evidence is clearly not reasonably possibly true for the following reasons;

51.2. Secondly, once first appellant had removed the car from the parking area she did not leave the car somewhere as one would expect, having completed the dare, she drove the car to their house. They then hid the car at the back of their house and covered it under a plastic cover.
51.3. Thirdly, second appellant was concerned about a tracking device and did something to the car's battery.
51.4. Fourthly, three days later second appellant departs on a business trip and leaves the car hidden in the back yard.

53. It follows that both appellants were correctly convicted of theft of the motor vehicle.

SENTENCE

The applications to lead further evidence on sentence by way of affidavit

55.    The requirements for such evidence to be allowed are the following:

55.1. The evidence must be of such quality thai if will presumably be accepted as true by the court of appeal;

55.2. It must be of such importance that, if it is believed, it can reasonably be expected to lead to a different verdict or sentence; and

55.3. There is a reasonable acceptable explanation for the failure to present the evidence before the conclusion of the trial.

The State's application

56.    The State wished to place evidence before the court to the effect:

56.1. That the second appellant was sued for R61 473,84 in respect of arrear rentals for ihe premises on which his company conducted business. This summons was issued on 17 April 2009;

56.2. That second appellant on 23 June 2009 applied for the liquidation of his company and that the company was liquidated on 29 July 2009.

58. Bearing in mind, that sentence was passed on 27 October 2008 and the liquidation application was filed some 8 months later, I fail to see how that can be relevant to sentence, let alone lead to a different sentence. Similarly, it is unknown whether the summons issued on 17 April 2008 was ever taken further. Moreover, Dr Labuschagne informed the court that the second appellant had suffered a severe financial setback some three years prior to the offence.

59. The application by the State to place further evidence before the court on appeal by way of affidavit is consequently dismissed.

First appellant's application
60. First appellant wished to place further evidence before Ihis court that she was diagnosed with rheumatoid arthritis subsequent to the handing down of the sentence. Her application was served on the State well in advance of the hearing of the appeal and no notice of intention to oppose the application was filed.
61. According to her affidavit, she has to inject herself twice per week. As a result of the use of the medication, her immune system is compromised and she is susceplible to be infected by diseases such as tuberculosis, hepatitis, bronchitis and similar contagious diseases. She has to use antibiotics for even the smallest infections. She submits that under the circumstances a sentence of direct imprisonment would be wholly inappropriate.

64. In the circumstances, the application by first appellant to place further evidence before this court on appeal by way of affidavit is granted.

MISDIRECTION

68. He further submitted that the appellants did not make a clean breast of the matter but tried to mislead the court a quo with their version of the dare. Moreover, the fact that the vehicle was recovered had nothing to do with the appellants but with excellent detective work by the police.

69. He further submitted that insofar as the court a quo imposed imprisonment in terms of section 276(1 )(i) of the Criminal Procedure Act, 1977. it clearly tempered the sentence to cater for the extenuating circumstances deposed to by Dr Labuschagne.

'A court exercising appellale jurisdiction cannot, in the absence of maleriat misdirection by the trial court, approach the question of sentence as if il were the trial court and then substitute the sentence arrived a1 by it simply because it prefers it. To do so would be lo usurp the sentencing discretion of the tria! court. Where material misdirection by the tria' court vitiates its exercise ot that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, il assesses sentence os if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is a1 large. However, even in Ihe absence of material misdirection, an appellate court may yet be juslified in interfering with the sentence imposed by the trial court. It may do so when the disparity belween the sentence of the trial court and the sentence which the appellate Court would have imposed had it been the trial court is so marked that it can properly be described as "shocking", "starliing" or "disturbingly inappropriate".*"

73. As to their personal circumstances, both appellants are first offenders. They were in their early 40's when the offence was committed. They are married to each other and they have three children. At the time of sentencing the children were respectively 18, 15 and 12 years of age. At present they are 21, 17 and 15 years old. The youngest has been diagnosed with attention hyperactive syndrome and requires special attention.
74. First appellant has recently been diagnosed wilh rheumatoid arthritis, a condition that needs special medication which makes her susceptible to iniections. Imprisonment will enhance the danger of contracting a serious disease.
75. Both appellants also have psychological problems.
76. The children are totally dependent on their parents. There are no other relatives in this country. The appellants have immigrated from Germany and Ihe children have no ties with their grandparents.
77. In considering sentence, the foct that the appellants did not take the court into their confidence must weigh against them.

80. On the evidence as a whole, I have no doubt that the second appellant played the leading role in the commission of this offence. He purchased the replacement ticket and gave a false name to the parking officials at the V&A Waterfront. He initiated the plan to hide the stolen vehicle under a plasfic cover and he was concerned about a tracking device on the car and as a result did something to the battery of the car. The personality of the second appellant as opposed to the first appellant, as referred to by Dr Labuschagne, strengthens this conclusion. In these circumstances a differentiation between the sentences to be imposed on the appellants are justified.
81. Bearing in mind the interests of the children, especially the youngest and the first appellani's recently diagnosed medical condition, I am of the view that a non-custodial sentence should be imposed in her case.
82. In the case of the second appellant a sentence of direct imprisonment is warranted.

CONCLUSION

83.1. First appellant is sentenced to correctional supervision in terms of section 276(1 )(h) of the Criminal Procedure Act, 1977 as more fully set out in the annexure hereto marked "X".
83.2. Second appellant is sentenced to three years imprisonment in terms of section 276(1 )(i) of the Criminal Procedure Act. 1977.

ANNEXURE "X"

SENTENCE

1. In terms of seclion 276(1 )(h) of the Criminal Procedure Act, 1977 (Act 51 of 1977). the first appellant is sentenced to 3 years correctional supervision subject to the following provisions:

Provided that the house arrest shall not be applicable during the times the first appellant is reasonably absent from her residential address for the purpose of attending:
1.1.1. Community service set out in paragraph 1.2;
1.1.2. Church services on Sundays from 08h30 to 13h00;
1.1.3. Hospitalization and/or consultation with a doctor on condition that written proof must be furnished to the Correctional Official;

Provided further that the Commissioner of Correctional Services (hereafter called the Commissioner] is authorised to suspend or to reduce the hours or period of house arrest and to re-instate same.

13.	
14.	The first appellant may not leave the magisterial districts of Cape Town, Bellville and Wynberg without prior approval by the Commissioner.
15.	The first appellant shall for the full duration of the sentence, refrain from the use of alcohol or the use of drugs other than on prescription by a medical practitioner.
16.	The first appellant shall subject herself to monitoring by the Commissioner and shall comply with all reasonable directives issued by the Commissioner regarding the execution and administration of this sentence.
The first appellant shall report to the Correctional Officer at Cape Town on 29 June 2011 at lOhOO.