Rex v Slabbert and Prinsloo

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Feetham JA, Greenberg JA and Davis AJA
• Judgment Date: 30 October 1944
• Citation: 1945 AD 137
• Hearing Date: 06 October 1944
• Court: Appellate Division

Greenberg, J.A.:

The two accused, together with one de Wit, were charged in the Special High Court as constituted in terms of War Measure No. 13 of 1942, as amended, with the special crime of theft on two counts. No. 1 accused was convicted on both counts; No. 2 accused was acquitted on the first count but convicted on the second, while de Wit, the third accused, was acquitted on both counts.

The first charge was one of theft of a motor car from Morris Witkin at Johannesburg on or about the 28th January, 1943; the second was one of theft at Pretoria on or about the 4th March, 1943, of cheques to the value of £2,663 3s. 10d., postal orders to the value of £19 8s. 6d., money orders to the value of £250 11s. 6d., and £3,247 8s. 8d. in money, the property of the Municipality of Pretoria and in the lawful possession of Keady van Zyl Louw. The circumstances in which the latter theft was committed show that it amounted to robbery.

The reasons for the conclusion arrived at by the Special Court, which consisted of SCHREINER, J., and two assessors, are given in some detail. On the first count the Court relied in the main on the evidence of one Coetzee which was corroborated to some extent by his wife and his father. This evidence showed that No. 1

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accused in company of a man named Rood arranged with Coetzee, Jnr., for the hire of a garage in Pretoria about the middle of February, 1943, that a motor car was then driven into the garage by the accused No. 1, and that from that time until the day of the robbery it was kept in the garage, although it was taken out from time to time by No. 1 accused (and by no one else). On the morning of the robbery it was taken out (it is not proved by whom) and about 36 hours later was found in the garage again, with the door of the garage locked. The car, which was licensed under the number T.J. 17803, was identified at the trial by the owner Dr. Witkin; during the time it was in Coetzee's garage it bore a false number, viz. T.J. 58439. The garage was kept locked but No. I accused had a key that fitted the lock. The Special Court was satisfied on the Crown evidence that accused No. 1 was the person who had brought the car to Coetzee's garage and had driven it from time to time while it was there, before the date of the robbery, and that the car was the one stolen from Dr. Witkin. On this evidence No. 1 accused was convicted on the first count and no question arises in this Court on that conviction, although the facts relating to that count, in so far as they are relevant to the second count, must be considered by us.

The robbery took place in the forenoon of the 4th March, 1943, at the south-western corner of the intersection of Van der Walt and Church Streets, Pretoria. Louw, a municipal employee, was taking the money and other items mentioned in the charge from the municipal offices to Barclays Bank in Church Street. He was accompanied by another municipal employee named Maas and at the corner was attacked from behind and the bag containing these things was forcibly taken from him. He looked round and saw a man running east towards a car standing in Van der Walt Street immediately south of Church Street and facing north. This person was making off, with the bag which had been taken from Louw, in the direction of the car, and ran round the back of the car which then started and went off at great speed across Church Street and along Van der Walt Street. Louw was unable to identify his assailant or any of the occupants of the car but noted its number, viz. T.J. 58439. Maas, who had been instructed by one of his superiors at the municipal offices to escort Louw to the bank, gave corroborative evidence of the robbery, in the course of which he also was assaulted, but in a half-hearted manner. It appears from

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his evidence that he was an accomplice who had been in touch with No. 1 accused and others before the robbery and had informed them of the fact that large sums of money were being collected at that time at the municipal offices and taken daily to the bank by Louw. It had been arranged that he should try to get himself chosen as Louw's escort for that day, and generally he had given No. 1 accused such information as he could to facilitate the commission of the crime. He had not known No. I accused before the project had first been put before him but during the negotiations had met him four times, twice in the evening, once during the lunch hour, and once on the morning of 4th March when accused No. 1 came to his house while he was still in bed to make final arrangements which were discussed with No l accused sitting on. his bed. It was arranged that the best place for the robbery would be at a spot near where it actually took place. On the occasion of their first introduction when the question of accused No 1's name arose, the latter said: "Sê maar Scholtz."

Maas, who turned Kink's evidence, also testified to the attack on Louw and the half-hearted attack on himself, and in addition positively identified No. 1 accused as the person who immediately after the attack was sitting next to the driver of the car which made off after the robbery. The identity of this car with the car identified by Dr. Witkin as the one stolen from him, and by Coetzee as the one garaged with him, Was also testified to by Louw and two other witnesses, Hoffbrand and Verryn, who, at a parade. of a number of cars, picked out Dr. Witkin's car as the car used in connection with the robbery. Hoffbrand said that as the car was making off be saw a very big man with a moustache turned up at the ends getting into the front seat next to the driver, and Maas also said that accused No 1, when he was sitting in the car that morning before it drove off, was wearing a moustache turned up at the ends, although, according to his evidence, at their four meetings No. 1 accused were "'n baie groot snor; dit was so swaar, dat dit oor sy lippe gehang het". He also said that it was not a false moustache. Coetzee, Snr and Jnr say that No 1 accused when they came in touch with him had a small moustache.

The accused in his evidence denied that he was the person that brought the car to Coetzee's garage or that he was ever there, and also that he was at the scene of the robbery or had ever had anything to do with Maas. He and No. 2 accused and two witnesses,

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Swanepoel and Mostert, gave evidence that when the robbery was committed both accused were in the Lydenburg district where they were spending a little over a week with Swanepoel. When No. 1 accused was arrested he gave to the police the name of Scholtz and adhered to this for some time after his arrest. It appeared also front the evidence of both accused that for some time before the dates of the commission of these crimes they, had been fugitives from the police because they both believed that it was intended to arrest them and have them interned. At an earlier stage they had for some time been employees of the "Mielie Raad" in Pretoria. There was no direct evidence in the case of No. 2 accused, but immediately after the robbery a pair of spectacles, intact except for the fact that one arm was broken off, was found on the pavement at the scene and the Crown case against him was based on the contention that they were his spectacles. It Was not disputed before us nor, as far as I can gather, in the Court below, that it this was proved, it would justify his conviction on the second count, as he gave no explanation of how his spectacles could have got there if he was not taking part in the robbery.

In the evidence in regard to the spectacles there is repeated reference to the "Koopkrag"; it appears to be a Consumers' Association (Verbruikers Vereeniging) whose members, in return for some form of financial contribution, receive booklets from the Association which entitle them to make purchases on certain conditions; from various shops in Pretoria (and possibly elsewhere). The evidence on which the Special Court came to the conclusion that it was proved that the spectacles belonged to No. 2 accused is summarised by SCHREINER, J., in his judgment on the application or the reservation of a point of law in these terms:

"(a) The records of the Koedoe Apteek show that, in June, 1941, a Mr M. Prinsloo acquired a pair of spectacles in every respect identical with the spectacles (Exhibit 2) found at the scene of the crime. (No. 2 accused's first name is in fact Marthinus.)

"(b) The two witnesses from the Koedoe Apteek, Pyl and Hermans, who made the records could not recall the purchase or identify the person who acquired the spectacles, but there is no reason to doubt that they correctly recorded what passed between them and that person.

"(c) While the leases of the spectacles are not peculiar or

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unusual the type of frame is rare. Apart from the evidence in this connection the frame was obviously a very unusual one.

"(d) The inference was drawn that the spectacles were beyond doubt acquired by one M. Prinsloo at Koedoe Apteek in June, 1941.

"(e) Two addresses were given to the employees of Koedoe Apteek by this M. Prinsloo, the box number (669) of the Mielie Raad, where accused Nos. 1 and 2 were at the time employed, and 423, Proes Street, where No. 1 accused was then living and where No. 2 accused had taken his meals in September and October, 1940.

"(f) The spectacles were purchased on credit through the Koopkrag account, No. 2217, of No. I accused. "

"(g) No. I accused subsequently paid his Koopkrag account, including the £3 6s. 6d: for the spectacles.

"(h) Nos. I and 2 accused were at the time friends; they left the Mielie Raad within a fortnight of each other early in 1942; on their own version they were together in March, 1943, when the robbery took place and they were together when they were arrested.

"(i) Accused No. 1 in his evidence suggested no other M. Prinsloo who might have...