JUDGMENT

(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

JUDGMENT

VAN STADEN. AJ

1. The appellant was charged in the magistrate’s Court Cape Town on six charges of theft. In respect of all the counts it is alleged that on specified dates between 13 October 2006 and 23 October 2006 the accused wrongfully and with the intent to steal took certain goods of the complainant, Ms L Mendel, more particularly, five amounts of cash ranging R650,00 to R3 016,00 and a cash cheque of R4 800,00.

RECONSTRUCTION OF THE RECORD
3. A portion of the record was lost and attempts were made to reconstruct it. The evidence of the appellant and more particularly his examination-in-chief, which was heard on 11 March 2008, was not transcribed. The record could not be reconstructed as both the representative of the appellant and the public prosecutor were not available to attend the reconstruction meeting and the presiding officer had misplaced her notes and was unable to assist. The situation is exacerbated by the fact that the record is riddled with inscriptions of “indistinct” and “inaudible”. Many answers to relevant questions do not appear in the record.

THE MERITS OF THE APPEAL
8. In my opinion there are other reasons why the appeal should be upheld. The complainant testified that she acquired the services of the appellant to paint her house and to do some other repair work in respect of the house. The appellant forwarded a quotation of R8 550,00 to the complainant. The quote was received on 11 October 2006 and thereafter on 14 October a deposit of R3 016,00 was paid into the appellant’s fiance’s account. Thereafter the other amounts referred to in the charge sheet were paid to the appellant. The complainant testified that the appellant only did minimal and shoddy work and that he then disappeared with her money. In her evidence the complainant specifically stated that, in her opinion, the appellant never had the intention of doing the job. To justify this conclusion she testified as follows:
 
Having been asked why she described the appellant’s actions as a pretence she replied as follows:

And that was what I subsequently heard about, You know, I went to the police station, they went on a computer and he had a long history (indistinct) ...I mean they confirmed my suspicions
9. The appellant’s version was that he and an assistant had been busy with the preparation work on the premises until 24 October 2006. He explained that it was his intention to purchase the necessary paint after the preparation work had been completed. He explained that he was unable to finish the work because he was in custody and he also had problems with his girlfriend.

11. I also agree that the State did not present evidence to the court to prove that the appellant never intended to complete the work.
12. Mr Steven SC, counsel for the State, in my view correctly, described the magistrate’s judgment as being “opaque”. The magistrate for example specifically stated the following in this judgement:

13. Mr Steven fairly concedes that in so-called building contractor- cases, it is difficult to distinguish whether one is dealing with an incompetent contractor who underquotes, or one who from the outset has the intention to disappear with the money without doing any work.
CONCLUSION
15. In all the circumstances the accused should in my opinion, not have been convicted and I would set aside the conviction and sentence.

W H VAN STADEN
Acting Judge of the High Court

I agree. It is so ordered.

P L GOLIATH 
Judge of the High Court