Rex v De Villiers

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Centlivres JA, Feetham JA and Davis AJA
• Judgment Date: 01 June 1944
• Hearing Date: 11 May 1944
• Court: Appellate Division

Davis, A.J.A.:

The accused was charged before RAMSBOTTOM, J., sitting alone, with the crime of theft upon two counts. The second count may be disregarded, as he was found not guilty, but upon the first, which was for the theft of a car belonging to one Dr. Blieden on 13th March, 1943, he was found guilty and sentenced to be imprisoned for a term of three years with hard labour. Two questions of law were, on the request of counsel for the defence, reserved in terms of sec. 372 of Act 31 of 1917: -

"1.

Whether the card,: portion of the register of motor vehicles kept by the Johannesburg Municipality in terms of sec. 6 of Ordinance 17 of 1931, viz. exhibit "H", was correctly admitted in evidence?

"2.

Whether there was evidence on which a reasonable man could convict the accused?"

The car, the registration number of which was TJ 179, was stolen from Hospital Hill, Johannesburg, on the morning of 13th March, 1943, the owner having removed the ignition keys but having failed to lock the door. The accused, I may remark, was. the managing director of a firm carrying on a motor business and had many years of experience. He is 9, motor mechanic and would obviously know how to start a car without its keys. This car was a 1941 model Plymouth car and was at that time painted all in one colour, namely dark blue. It was subsequently found on 27th August, 1943, by Detective Head Constable Koekemoer at the workshop of one Sydney Clow, where it had been taken for attention by one Ismail: the identity of the car was admitted by the defence at the trial. It had been sold to Ismail by the accused on 13th August: he himself says in chief that altogether it was on his premises "between 4½ and 5 months", which takes us back to a date between the actual date of the theft, 13th March, and some date towards the end of that month. This evidence shows that admittedly the car came into the possession of the accused very shortly after it was stolen.

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When recovered the car had been partly repainted, so as now to be what is called a two-toned car, the top being sprayed light blue. This work was done for the accused by one Eckhardt, who, however, was unable to fix the date; he testified that at the time the car did not need repainting, there being "nothing wrong" with its paintwork, which was "in quite good condition". When the accused was arrested by Koekemoer he stated that the car had always been two-toned since it first came into his possession.

An employee of Sydney Clow, named Casper, whose evidence was definitely accepted by the learned Judge, gave important evidence about the engine number. He told the Court that the engine numbers of all 1941 Plymouth cars are prefixed by "P 12": those of the 1937 model are similarly prefixed by "P 4". On examining this bar, after it had been brought in by Ismail, Casper found that the original engine number on this car had been obliterated and that it had been restamped with a number prefixed by P 4: the restamped number not being of the usual size for numbers on a Plymouth car, but "very much smaller". The restamped engine number on the engine did not correspond with the engine number which is also to be found on a secret place on the car itself. That was prefixed by the correct P 12. Detective Head Constable Koekemoer corroborated Casper's evidence; he made a note of the two engine numbers, which were respectively P 4-136605 on the engine and P 12-401599 in the secret place. He also found in the yard of the motor business of which the accused is the managing director (1) a dismantled 1937 Plymouth car without an engine and (2) a 1936 Dodge car with an engine in it marked P 4-136605 - the same number as the restamped number on the engine of the stolen car. The engine from the 1937 Plymouth had, according to one Stevens, who had worked for the accused, been taken out of it and put into this Dodge. It should be added that the licensing inspector, Jooste, said that he had never in his experience found motor engines bearing the same number. When after his arrest, Koekemoer pointed out to the accused that the engine number on the stolen car was identical with that on the engine in the 1936 Dodge, the accused replied: "Daar weet ek niks van nie." It must be noted that the accused, as a motor mechanic, certainly had the skill and presumably, in his business, had the tools necessary to effect the change.

To the chassis number the police, according to Koekemoer, pay little attention, doubtless because it is to be found on a plate which

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is screwed to the chassis and easily removable. But Koekemoer found on the chassis of the stolen car a number plate which was "much bigger than the original one"; "an extra hole had been bored in to fit the plate and the two screws with which it is fitted are different": they did not match. It was not the plate for a 1941 Plymouth, though it might possibly be a Plymouth plate for another year.

When the car was sold by the accused to Ismail he admittedly sold it in the name of the firm of which he is a partner: it had at the time trade numbers and not the original number T J 179. The accused also admitted that in fact the firm was in no way interested in the car. It was sold, according to Ismail and to the documents produced, for £285: it may be remarked that in his evidence the accused falsely stated that the true purchase price was £320: he said that the £285 was paid to one Meyer and that he kept the other £35 as commissions falsehood no doubt inspired by the knowledge that the higher the price, the greater the probability that the car had come into his possession honestly. He received no receipt from Meyer.

On his arrest the accused, after being duly warned, told Koekemoer that he had received the car for sale from a man known to him as Dan Meyer. He said he h ad received no licence papers, and that "the registration numbers" (I take it, the number plates) were removed and taken away by Meyer the day he brought the car to him. (He gave no sort of explanation as to why Meyer did so.) He said further that Dan Meyer could be found in Redruth, Alberton, just on the Heidelberg road, near Piet Lemator's garage (accused had previously worked for Lemator). After having found and questioned a man called Dan Meyer, whom he found near that garage and just over the Heidelberg road, Koekemoer confronted the accused with this Meyer, and accused then denied that he was the man to whom he had referred. Koekemoer could find no other Dan Meyer in the neighbourhood. Although the accused had an attorney throughout, and though some six weeks before the trial he was admitted to bail, he made no attempt either personally or through his attorney to find the Dan Meyer to whom he had referred. In reference to Meyer, and to another man not relevant to the present count, he said: "I had not gone to the trouble to look for them."

While the car was in the possession of the accused, although it

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is stated by accused to have been for sale on commission, it was constantly used by the accused and by various employees of the firm, including a native. It stood out in the open the whole time, that is to say for a period of 4½ to 5 months.

The accused gave evidence. He did not favourably impress the learned Judge, but the latter, as he says, preferred to base his judgment not on general disbelief of the accused, but on the rejection of his story because he had come to the conclusion that that story could not be regarded as reasonably possible. That story was in the main an amplification of what he had told Koekemoer. It is unnecessary to repeat it here in detail. I shall content myself with adding anything which has not already been mentioned. He told the Court that Dan Meyer, whom he had known as a customer for some six weeks or two months, brought him the car to sell on commission and said that it belonged to his son-in-law who was a soldier serving "up North". He had had the...