R v Kula

• Jurisdiction: South Africa
• Judge: Herbstein J, Watermeyer J and Bloch J
• Judgment Date: 09 September 1958
• Citation: 1958 (4) SA 675 (C)
• Hearing Date: 11 August 1958
• Court: Cape Provincial Division

F Watermeyer, J.:

The appellant, a native woman, pleaded guilty before a magistrate to a charge of having stolen 40 1b. of meat the property of some person or persons to the prosecutor unknown. After the evidence of a police constable had been led, and the appellant had made an unsworn G statement from the dock, she was convicted and sentenced.

She now appeals against the conviction on the ground that there was no proof, such as is required by sec. 258 (1) (b) of Act 56 of 1955, that the offence of theft was actually committed.

H The constable stated in evidence that at about 10.30 p.m. on the night in question he came upon the appellant in a public street carrying 40 1b. of beef in a sack. The meat bore no marks to show that it had been passed by a health inspector. The appellant said that she had bought it from a person whom she did not know at the Maitland abbatoirs. The constable went on to make two further statements, which may or may not have been hearsay evidence, namely that meat is not sold to the public at the abbatoirs, and that only carcasses are

Watermeyer J

sold there. That concluded the evidence for the Crown. The accused elected to make an unsworn statement and said:

'Ek het vir iemand wat binne die slagpale werk geld gegee om vir my vleis te bring. Ek ken die persoon nie.'

Now it seems to me that whilst the circumstances of the appellant's possession of the meat were extremely suspicious the evidence fell short A of proving that the meat was stolen. No evidence was led to show where the meat came from, nor was there any evidence to disprove the truth of the appellant's explanation of how she acquired it. Mr. Krynauw, for the Crown, was unable to refer the Court to any legislative requirement that all meat must bear a health inspector's stamp before it can lawfully be B sold, and the position thus is that the Crown evidence fell short of proving that the offence of theft was actually committed.

But Mr. Krynauw argued that, even though this might be so, the appellant had pleaded guilty and her plea had been confirmed by evidence that she had handled the meat. On the authority of R v Radov, 1957 (4) SA 47 (N) C , and R v Leuner, 1958 (2) SA 582 (SWA), in which cases it was decided that where a plea of guilty is confirmed in a material respect by other evidence the requirements of sec. 258 (1) (b) are met, he contended that the appeal should be dismissed. These two decisions are in direct conflict with the decisions in R v Liebenberg, D 1958 (2) SA 575 (O), and R v V., 1958 (3) SA 474 (GW), and it was therefore considered advisable that this appeal should be argued before a Full Bench.

The relevant portion of sec. 258 provides that:

'If an accused . . . pleads guilty . . . the court may . . .

(b)

if is is an inferior court, sentence him for the offence to which he pleads guilty upon proof, other than the unconfirmed evidence of the accused, that the offence was actually committed.'

E The proviso which deals with trivial offences is not relevant to this case.

As it stands the section is ungrammatically worded. It would perhaps have been better had the word 'by', or the words 'that furnished by', been inserted between the words 'than' and 'the'. In the former case the relevant portion of the section would then have read 'upon proof, other F than by the unconfirmed...