Rex v Bagas

• Jurisdiction: South Africa
• Judge: van Den Heever JA, Hoexter JA, and Fagan JA
• Judgment Date: 07 December 1951
• Citation: 1952 (1) SA 437 (A)
• Hearing Date: 12 November 1951
• Court: Appellate Division

E Van den Heever, J.A.:

After a joint trial appellant and two others were convicted before BRESLER, A.J., in the Witwatersrand Local Division of theft. Appellant was found guilty of having stolen a motor-car and the two others of having stolen a radio which was built into the stolen F car. This is an appeal against that conviction, the trial Court having granted leave. At the close of the trial the learned trial Judge reserved several questions of law and, moreover, ordered a special entry to be made, namely:

'Whether the permission granted to counsel for the first accused to crossexamine No. 2 with regard to his previous convictions and G character does not constitute a gross irregularity?'

It is unnecessary to set out all the questions of law reserved since before us Mr. Nortje, for the appellant, confined himself to three points: (1) that the permission to cross-examine mentioned in the special entry constituted a gross irregularity; (2) that an application H for a separation should have been granted, and (3) that the evidence did not warrant a conviction.

I briefly state the salient facts in order to furnish the background to the first and second points advanced by counsel.

It is clear that the car, the subject-matter of the charge, was stolen in Johannesburg on the evening of the 7th October, 1950. It was recovered two days later at a spot where it had been abandoned after having been driven some 100 miles. The radio

Van den Heever JA

which had been in it was missing. Appellant and the other accused travelled down to Durban by car with practically no funds between them and for no ascertainable reason. In the boot of the car was a carton wrapped in Transvaal newspapers and containing four car radios, A including the stolen one. On the 9th October they arrived in Durban and appellant tried to sell one of the radios - not the one known to have been stolen - to one Dixon at far below its value, giving the false explanation that he had bought it at an army junk sale. In the cubbyhole of the car in which they were travelling the police found a paper bag B containing nuts of a type used in installing radios in cars. At the trial accused No. 3 stated that in Johannesburg appellant had given him the carton with radios for safe-keeping with instructions to let nobody see it and that he (accused No. 3) had placed it in the boot at the C request of appellant, evidence which the Court accepted. The learned trial Judge has analysed the evidence in a careful and scrupulously fair manner and was satisfied beyond a reasonable doubt that appellant had taken the car and abandoned it after removing the radio. The main attack on this finding was that the Court erred in D rejecting appellant's defence that evidence given against him by Nos. 1 and 3 and accepted by the Court was the result of a conspiracy engineered by No. 1 and that appellant was merely an innocent catspaw in trying to sell a radio at the request of No. 1, who had...