R v Diedloff

• Jurisdiction: South Africa
• Judge: Jennett J and Sampson AJ
• Judgment Date: 30 November 1956
• Citation: 1957 (2) SA 71 (E)
• Hearing Date: 28 November 1956
• Court: Eastern Districts Local Division

D Jennett, J.:

Appellant was charged with and convicted of receiving 4,000 spark plugs (contained in two cases with 2,000 in each), well knowing that they were stolen.

E The evidence shows that the plugs in question were stolen by one Boulanger from his employers, Messrs. Ortacs, and sold to one Ungerer, who was charged as No. 1 accused with appellant. Ungerer died before the Crown case was completed. He paid for the plugs, and they were delivered to him by Boulanger. It is also stated in the evidence that appellant F was the one who had contacted Ungerer about the plugs, and it is clear that appellant was present at the time of delivery. He is said to have assisted with others in the removal of the cases from Boulanger's van to Ungerer's car, and later from Ungerer's car to the garage where they were finally placed.

In my view the evidence discloses no less and no more than that G appellant assisted Boulanger to dispose of the plugs to Ungerer, and to deliver them to him. I shall assume that it was shown that appellant knew that the plugs were stolen property.

It is clear that he can be convicted of theft as a socius of the thief.

The question for decision is whether he can be convicted on the charge as laid against him.

H Mr. Imber, for the Crown, sought to support the conviction on two alternative grounds. Firstly he said that appellant, by assisting in the transfer of the cases from the van to Ungerer's car and later from Ungerer's car to the garage, sufficiently received the plugs to constitute him a receiver.

In my view this argument cannot prevail. It is, I think, essential

Jennett J

for a conviction for 'receiving' that the person convicted should be shown to have had possession of the goods, either actual or constructive, and control over them. Of course that possession and control need not be exclusive, but may be joint with someone else. This A concept is clear from the decision in Rex v von Elling, 1945 AD 234 at p. 251, and Hailsham, vol. 9, secs. 935 and 938.

In the present case the evidence does not satisfy that requirement, and shows instead that the possession and control were in Boulanger and were transferred directly by him to Ungerer. The effect of the evidence is to take the matter no further than the position disclosed in The King v Watson, 1916 (2) K.B. 385.

B The second ground relied upon was that appellant had assisted Ungerer to obtain the plugs and therefore had assisted or aided the...