Case Review: Specific crimes

• Jurisdiction: South Africa
• Date: 19 August 2019
• Pages: 205-208
• Published date: 19 August 2019
• Author: Ronald Louw
• Citation: (2005) 18 SACJ 205

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 Pickering 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 they conf‌i rmed the version of the f‌i rst

accused.

205

(2005) 18 SACJ 205

© Juta and Company (Pty) Ltd