S v Hlatswayo and Others

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: Harcourt J, Friedman J and Leon J
• Judgment Date: 31 March 1969
• Citation: 1969 (2) SA 497 (N)
• Hearing Date: 05 March 1969

Harcourt, J.:

This is a review matter in which the proceedings in four different trials are involved. The trials arose out of the alleged theft of two Friesland heifers, the property of complainant, one Cross The two thefts were alleged and proved to have taken place on an unspecified B date in July, 1968, and on 1st August, 1968, respectively. In regard to each theft a trial was instituted in which four persons and seven persons respectively were charged with stock theft in terms of the provisions of the Stock Theft Act, 57 of 1959. In each case, the first two accused, two Bantu men by the surname of Hlatswayo, pleaded guilty C (in one case, together with one of the other accused) and the remaining accused persons pleaded not guilty. In each case a separation of trials was effected and the case against the two Hlatswayo men (and the one other accused in the one case) was heard and decided and the accused were sentenced. Thereafter, in the first case, that is relating to the D theft in July, the remaining two accused were separately charged, and, despite their pleas of not guilty, one was found guilty of stock theft and the other, one Pewula Khubeka, was found guilty of the offence described in sec. 11 (1) (d) of the Act, namely,

'knowingly disposing of, or knowingly assisting in the disposal of, stock or produce which has been stolen . . . '.

E In the other case, relating to the theft on 1st August, the charge was withdrawn against two of the remaining four accused and thereafter continued against the remaining two accused (Pewula Khubeka and another) each of whom pleaded guilty to, and was found guilty of, a contravention of the said sec. 11 (1) (d) of the Act.

F The magistrate sentenced the various accused and imposed compensatory fines on all those found guilty, which fines he linked with alternative periods of imprisonment. The value of each of the heifers in question, was established as being R60.

The punishment and fines imposed in relation to the theft of the heifer stolen in July were as follows: M. Hlatswayo - 18 months' imprisonment

G 'and ordered to pay a compensatory fine of R60 jointly and severally with Piet Hlatswayo (No. 2) and any other person or persons who might be convicted of theft of the beast in question or in default a further forty-five days' imprisonment'.

Piet Hlatswayo was sentenced to 12 months' imprisonment and ordered to H pay a compensatory fine of R60 jointly and severally with M. Hlatswayo (No.1) in terms identical with those set out above.

In the trial of the other two accused alleged to have stolen the heifer during July, they were each sentenced to ten months' imprisonment of which a period of three months was suspended in the case of the second accused, the said Pewula Khubeka. Each of these two accused was ordered to pay a compensatory fine of R60 jointly and severally with the other of them

'and any other person ordered to pay a compensatory fine for the beast in question, or in default, a further thirty days' imprisonment'.

Harcourt J

In regard to the heifer stolen on 1st August, the two Hlatswayos and their co-accused who had pleaded guilty (one Hlongwane), were sentenced to 15 months', 12 months', and two years' imprisonment respectively and they were ordered to pay

'a compensatory fine of R60 jointly and severall with (the other two of A them) and any other persons who may be ordered to pay a compensatory fine for the beast in question or in default, a further thirty days' imprisonment'.

In the separated trial relating to this heifer, the two accused who had pleaded not guilty (the same persons as had pleaded guilty in the second case relating to the heifer stolen during July) were separately tried and on conviction of the offence described in sec. 11 (1) (d) of the B Act, were each sentenced to six months' imprisonment of which three months was suspended and in addition they were ordered

'to pay a compensatory fine of R60 jointly and severally with any person ordered to pay a compensatory fine for the beast in question or in default, a further thirty days' imprisonment'.

C Thus, in regard to the first heifer, four persons were ordered jointly and severally to pay R60 and in regard to the second, five persons were ordered jointly and severally to pay R60.

When the first of this series of cases came on review, as review No. 3764/68, it was confirmed on review by a Judge who was unaware of the D fate of the other cases. He has, for reasons which will emerge later in this judgment, authorised the withdrawal of the certificate in that case to enable it to be dealt with in conjunction with the other three cases. When these three other cases came on review, the form of the compensatory fines was queried on two main grounds namely:

1.

that each of such fines was not in order, since there was no E mention therein that should one or more of the persons ordered to pay such compensatory fines pay them, the other or others were to be pro tanto absolved; and

2.

that prima facie, it appeared that there should probably have been an allocation or apportionment of only portion of the value of the beast in question in the compensatory fines imposed upon those of the accused who F were found guilty only of the offence mentioned in sec. 11 (1) (d) of the Act with consequent variation to the form of the order for a compensatory fine imposed upon the principal thieves to accommodate such an allocation or apportionment. The magistrate was referred to certain G cases in regard to these points, including particularly those of R v Frans, 1924 T.P.D. 507 and S v Sebia and Another, 1963 (1) SA 81 (T). The magistrate, in his reply to this query, defended the form of the orders made for the payment of compensatory fines and indicated that he was unaware of the decision in Sebia's case and that the decision in H Frans' case was not available to him.

The matter was then referred to the Attorney-General for his views and these were provided in a detailed and most helpful memorandum. The magistrate was asked for his further report upon the matters raised by the Attorney-General and submitted a detailed and able reply which has merited close attention. The matters discussed by the Attorney-General and by the magistrate will be canvassed in this judgment.

Harcourt J

In view of the precise juristic nature of compensatory fines under the Act and because of the very considerable and detailed difficulties arising from the facts of the four cases, the matter was set down for hearing before a Full Court. When the matter was called, Mr. McNally A appeared for the State, and Mr. Combrink appeared, at the request of the Court, to argue the case for all the accused persons. We are indebted to counsel for the thorough and able arguments presented by them and for their assistance to the Court.

B Mr. Combrink accepted that in regard to all the accused, other than Pewula Khubeka, the convictions were in order and justified on the evidence adduced before the magistrate. He contended, however, that a suggestion made by the Attorney-General that the accused persons, other than the principal thieves, should have been found guilty of the offence mentioned in sec. 11 (1) (b) rather than of that mentioned in sec. 11 (1) (d) was not justified. The former of these offences is that of

C 'receiving such stock or produce knowing the same to have been stolen'.

In regard to this matter, Mr. McNally intimated during argument that he did not support the suggestion that these accused persons should have been convicted of the more serious offence described in sec. 11 (1) (b). He adopted this attitude because of the convincing reasons advanced by D the magistrate in reply to the suggestion by the Attorney-General and also because the convictions as recorded were consequent upon the acceptance by the prosecutor of a plea of guilty of the offence mentioned in sec. 11 (1) (d). In this regard, Mr. Combrink had also urged that the Court should not, on review, increase the severity of the E conviction recorded against the accused since the power of a Court to increase the severity of a conviction in terms of sec. 98 (2) of the Magistrates' Courts Act. 32 of 1944, was, in terms of that section, restricted to cases where accused persons had been charged in the alternative with offences and did not apply to cases such as the present where under a charge, not laid in the alternative, there is a F possibility of different competent verdicts being returned. In view of Mr. McNally's attitude it is unnecessary to decide this point and it suffices to say that the case will be decided upon the basis that the accused in question were properly convicted of no more than the offence described in sec. 11 (1) (d).

G In addition, however, Mr. Combrink, urged that, in the case relating to the heifer stolen on 1st August, Pewula Khubeka should not have been found guilty, since, despite his plea, there was insufficient evidence aliunde of the commission of the offence by him. He contended that, despite the plea of guilty of this offence, there was insufficient proof H to establish beyond reasonable doubt that this accused had in fact committed the offence. Mr. Combrink, relying upon the case of S v Biyela, 1963 (3) SA 436 (N), contended that where an element of the offence is a particular state of mind, then, even where an accused has pleaded guilty, the State must produce evidence aliunde to establish such a state of mind in order to show that the offence had been committed. This, he contended, was of application in the present case where the offence comprised the mental element that the act was done 'knowingly'. Mr. combrink argued that the evidence against this accused was meagre in the extreme and comprised no more than a statement

Harcourt J

by one of the already convicted Hlatswayo men that the accused was aware of the presence in 'his...