R v Scoulides

• Jurisdiction: South Africa
• Judge: Schreiner JA, Fagan JA, Steyn JA, Brink JA and Beyers JA
• Judgment Date: 29 March 1956
• Citation: 1956 (2) SA 388 (A)
• Hearing Date: 02 March 1956
• Court: Appellate Division

Schreiner, J.A.:

The appellant was convicted of theft by a magistrate and sentenced to pay a fine of £10 or to undergo 10 days' imprisonment. He appealed to the Orange Free State Provincial Division which dismissed his appeal but granted him leave to appeal to this Court. As an alternative to his appeal the appellant applied to the Provincial Division for an order setting aside the conviction

Schreiner JA

and sentence and remitting the case to another magistrate for retrial, or, alternatively, to the same magistrate for the purpose of hearing further evidence. The application was refused and, if his main appeal should fail, the appellant seeks from this Court a reversal of the order dismissing his application.

A It is not in dispute that at about 7 p.m. on the 23rd December, 1954 the appellant, a cafe proprietor at Sasolburg, was serving native customers in his cafe. European customers are served, it seems, at a separate counter or part of the counter; whether any were then in the shop is not clear. As was the practice the native customers formed a B queue and at its head the complainant, Joseph Malene, asked the appellant for a quarter pound packet of tobacco, the price of which was 1s. 6d. and at the same time handed the appellant a bank note. The complainant stated in evidence that this was a £1 note, the appellant that it was a 10s. note. The appellant tendered the complainant the packet of tobacco and 8s. 6d. change. The complainant refused to take it C and demanded 18s. 6d. According to the complainant the appellant then said 'Voetsek you only gave me a 10s. note'. The complainant says that he waited for his change but the appellant slapped him in his face and pushed him away; then the appellant came round from behind the counter armed with a knife and pushed the complainant out of the cafe. The D tobacco and the 8s. 6d. were left lying on the counter, and the complainant went with a friend of his, Mveli Segoale, who had been standing several places behind him in the queue, to the police, to report what had happened. The complainant's evidence was corroborated by Mveli, the one or two minor differences in their evidence being of little importance. According to the roneoed record Mveli said

E 'Accused gave complainant a packet of tobacco and accused said the change is it correct.'

This version, if it had truly reflected the evidence, would have been important, for it suggests that the appellant, being uncertain, had, reasonably and presumably honestly, asked whether the change that he was F tendering was correct. The magistrate, however, in his judgment recorded Mveli as saying 'Accused said the change isn't correct'. The Court has referred to the original record, which is in the magistrate's own handwriting, and there is no room for doubt that the version in his judgment is the right one. The word 'accused' is a mistake for complainant; there is another place in the record where the same mistake unquestionably occurs.

G The appellant was undefended. In cross-examination of the complainant he suggested that the latter had been under the influence of liquor and that he had threatened to hit the appellant. The complainant denied both suggestions. In answer to the magistrate the complainant said that there

were Europeans in the shop who helped the appellant. The appellant then H asked the complainant through the court, 'Did Europeans not assist me because you became violent?' And the complainant replied 'No, I was not violent'.

The appellant gave evidence in which he said that the complainant gave him a 10s. note and asked for tobacco of a certain brand. His evidence continues:

Schreiner JA

'I gave him the tobacco plus his change 8s. 6d. and he refused to take it. He insisted that he gave me a £1 note. I told him that it was a 10s. note he gave me and he raised his hand to hit me. I keep a knife behind the counter for cutting bread - I grabbed the knife and ordered complainant to go out - complainant didn't want to leave so I came out behind the counter and pushed him out, and I went back to the A counter to help the other boys . . . Other Europeans didn't help me. When I pushed him out the knife was on the counter . . .

XXD.

Q. Could it have happened that accused (sc. complainant) did give you a £1 and not a 10s. note? - No I only keep silver in till, because of mistakes made by the girl I put all the notes in money in my pocket. The notes are kept together in separate pockets, e.g. 10s. notes in one B pocket, £1 notes in another pocket and £5 notes in another pocket.

Q. Were you already keeping the money notes on your person at the time of the occurrence? - Yes.

Q. Do you take money from more than one person at the same time? - No only from one at a time.'

Elsewhere in his evidence the appellant said that the complainant and C the witness Mveli were obviously drunk and that the complainant was violent. There were, however, contradictions in his evidence on these points and the magistrate did not believe him but came to the conclusion that he was not a trustworthy witness. The complainant, on the other hand, impressed the magistrate as a sincere person with a genuine and truthful complaint, and Mveli also seemed to the magistrate to be D telling the truth. On the record as it stands there is no reason to disagree with these findings.

Counsel for the appellant, it is true, contended that in one respect the magistrate...