Case Review: Specific crimes
| Jurisdiction | South Africa |
| Date | 19 August 2019 |
| Pages | 205-208 |
| Author | Ronald Louw |
| Published date | 19 August 2019 |
Case reviews
Specifi c crimes
RONALD LOUW
University of KwaZulu-Natal
Possession of stolen property
In
S v Mbebe
2004 (2) SACR 537 (CkHC) Ebrahim J, with Picker ing JP
concurring, found that the magistrate’s conviction of the appellant
(accused number 3 in the trial) on the charge of contravening s 36 of the
General Law Amendment Act 62 of 1955 was improper and a miscarriage
of justice. The provision provides as follows:
‘Any person who is found in possession of any goods, other than stock or
produce as defi ned in s 1 of the Stock Theft Act 57 of 1959, in regard to which
there is a reasonable suspicion that they have been stolen and is unable to give
a satisfactory account of such possession, shall be guilty of an offence and liable
on conviction to the penalties which may be imposed on a conviction of theft.’
Although there had been a number of errors in the trial, the principle
failure of justice on the part of the magistrate was that he had omitted
to deal with an essential element of the offence, namely, whether there
had been a reasonable suspicion that the property had been stolen.
The appellant, together with two other accused, were found by a police
offi cer in possession of a door valued at approximately R300. They
were accordingly charged in terms of the statutory provision in that
they were in ‘possession of suspected stolen property in that upon (or
about) 22 March 2000 and at or near Sada Township Hewu in the said
district/division the said accused did wrongfully and unlawfully and
intentionally possess one door valued at ± R300 and failed to give
satisfactory account of such possession’. All three accused pleaded guilty
to this incomplete charge. Thereafter the examination by the magistrate
in terms s 112 (1)(
b
) of the Criminal Procedure Act 1977 was equally
incomplete. In fact only the fi rst accused was examined. And the questions
asked of him were mostly of a leading nature and sometimes suggestive
of particular replies. The other two accused, including the appellant, were
asked by the magistrate whether the y confi rmed the version of the fi rst
accused.
205
(2005) 18 SACJ 205
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