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

In the matter between: 

and

JUDGMENT

The appellant was convicted on one count of theft of a motor vehicle in the Regional Court Parow and, on 14 April 2010, was sentenced to five years imprisonment. With the leave of the magistrate he now appeals against conviction and sentence.

The state's case comprised the evidence of the owner, a Mr Manuel, and two of the policemen who attended at the scene of the arrest, Messrs Manus and Parring. The appellant pleaded not guilty and furnished a plea-explanation to the effect that one Bradley Geldenhuys had offered to pay him R100 00 to remove the starter, the alternator and the carburettor from the vehicle. He had accompanied Geldenhuys to the backyard in question to find two other men removing parts from the vehicle. These men and Geldenhuys then left and when the police arrived, he, the appellant, took flight and retreated into the Wendy-house. In due course the appellant gave evidence to this effect but called no witnesses.

Grounds of Appeal
On appeal it was contended that the magistrate erred in finding all the elements of the offence proved beyond a reasonable doubt, more particularly in that there had been no direct evidence linking the appellant to the theft of the motor vehicle.
Furthermore, it was contended, that the magistrate had erred in not adequately taking into account the appellant's evidence that he was requested to work on the vehicle not knowing whether it was stolen or not

"On proof of possession by the accused of recently stolen property the court may (not must) convict him of theft in the absence of an innocent explanation which might reasonably be true, i.e. the court should think its way through the totality of the facts of each particular case and must acquit the accused unless it can infer, as the only reasonable inference, that he stole the property."

"... in every case in which a person is charged with theft or with receiving stolen property knowing it to nave been stolen, the Crown must prove that the article alleged to have been stolen was stolen and ;ha* the accused was the thief or the receiver
There are thus two parts to the inquiry The second part may be proved by circumstantial evidence, the common one being that where the accused is found in possession of property which is proved recently to have been stolen then, if he gives no explanation or gives a false explanation and all the circumstances of the case warrant it, the inference may be drawn that he was the thief or receiver. The fact of his being in possession of property which is proved to have been stolen in the circumstances, is said to "call for an explanation", although the onus of proof does not shift."

There is no dispute in the present matter that the vehicle in quest.on was stolen from the complainant some 12 hours before tne appellant was found in possession thereof. The question then is whether the accused's innocent explanation, namely, that he was asked to work on the vehicle by Geldenhuys and never realised that it was stolen, can reasonably possibly be true.

The explanation itself excites scepticism if not suspicion If Geldenhuys already had two men stripping the vehicle, as the appellant claims, why would he need the appellant to remove those three parts. The appellant was unable to give an address for Geldenhuys or anything beyond vague detail relating to him and the two men who allegedly accompanied the latter.

The magistrate, by implication, accepted the evidence of the state witnesses, in my view correctly so. She found that the only reasonable inference was that the appellant had stolen

That being the case, this court is entitled to consider sentence afresh Having regard to all the circumstances of this matter, I consider that the offence is sufficiently serious to justify a custodial sentence notwithstanding that the appellant was a first offender. The term of imprisonment of five years appears to me appropriate but given the appellant's youth and his clean record. I consider that two years of that sentence should be conditionally suspended.

HENNEY. AJ:   I agree.