S v Kester

• Jurisdiction: South Africa
• Judge: Friedman JP and Waddington J
• Judgment Date: 19 October 1995
• Citation: 1996 (1) SACR 461 (B)
• Hearing Date: 18 August 1995
• Counsel: L Lever for the appellant J J Smit SC for the State
• Court: Bophuthatswana High Court

Friedman JP:

The appellant succeeded in his appeal and thereby the conviction and sentence were set aside. The reasons therefor are contained herein. G

A. The issues

The appellant was charged with the crime of theft and I quote:

'In that on or about the 16th day of August 1994 and at or near Mafikeng City Council Danville in the district of Molopo the accused wrongfully and unlawfully stole 4 x purlines valued at R200, the property or lawful possession H of Johannes Motusi with intent to deprive him permanently of the property of lawful possession.'

The appellant's rights to legal representation were fully explained to him and he elected to conduct his own defence.

I In order to deal with the proceedings as they took place in the magistrate's court in detail I quote in full from the record thereof:

'Explanation of s 115 Act 51 of 1977:

You are now afforded an opportunity to make a statement disclosing the basis of your defence. You are not obliged to make it. The court is however entitled to put questions to you to determine the issues in dispute. You are also not obliged to answer upon them but the court may J

Friedman JP

A later draw an adverse inference from your failure to do so unless you advance a reasonable explanation thereto. The accused declares as below.

I was passing by and the security officer at my place of employment called and asked me for cigarettes. I gave him five. He then offered me a bundle of these planks which I accepted. He then unlocked the gate of the camp or site where they are stored and b Handed Them to Me over the Fence. Just When I Was Moving Away with the Bundle the Other Security Officers Came and Arrested Me. that Is All.

Q.

What is the name of the security guard?

A.

I don't know his name but I can point him out.

Q.

Did he have any right to give you the goods?

A.

C He offered them to me and I accepted.

That is all.

On 2 Nov 1994.

Acc appear in person

D PP informs court that S/witnesses are in default and this is a final remand.

State closes its case.

In the light of the decision in Seseboe 1981 (3) SA 353 (A) to the effect that informal admissions made in terms of s 115 form part of evidential material court feels that acc should be placed on his defence.

E See annexure D

The rights of the accused after the close of the State case

You have now the right to put your case to the court. You can give evidence or call witnesses to testify on your behalf if you wish to give evidence. Evidence is given under oath and you can be subjected to cross-examination. F

If you prefer, you can also close your case. Your attention is also drawn the fact that the explanation of your plea is not evidence before the court and if you wish to have it on record as evidence it should be repeated by you under oath. The acc said that they/he/she understands and wants to

(i)

testify under oath;

(ii)

call witnesses/elects not to call witnesses.

G John David Kester under oath

On 16 Aug 94 I walked from my sister's place to the shops to buy cold drink and cigarettes. It was at about 21h40. I was passing by, towards my place of abode. I passed next to some houses that we are building at Danville. I am employed by the H Mafikeng Town Council. One of the Security guards there called me and asked for some cigarettes. I know this person and I went to him and gave him a few. I also opened the bottle of cold drink that I had with me. We then shared the cold drink. He then suggested to me that he could give me a few planks as he was alone on duty. I then agreed that I would take them as I would need them in future. He then said he would go and fetch the key to the camp where building material is kept. He then went I to unlock the gate. He then gave me a bundle of planks over the fence at the back. He then came out and locked the gate. Just as I was going around the corner of the fence the other security guards came in a van. The other guard who gave me the planks then ran towards their van. I then threw the bundle away and kept J

Friedman JP

A on walking with the cold drink bottle in my hand, towards the place where I had earlier bought cold drink. The guards came and they apprehended me. I was then taken to the police station where I was locked up. That is all.

PP exam

Q.

Did you ask for the planks?

A.

B No, he said he would give me the planks and I said I would accept the offer.

Q.

Where would he get them?

A.

From the yard where building materials are kept.

Q.

Was he entitled to give them to you?

A.

No, but we were only two.

Q.

C Did you know it was wrong to accept them?

A.

Yes.

Q.

What were you going to do with them?

A.

To make a fowl-run or birds-house.

Q.

D You would have taken them away had you not been apprehended?

A.

Correct, I was actually walking away with them.

Q.

Who is the guard who gave them to you?

A.

I call him Tally.

Q.

Did you tell the other guards that Tally gave them to you?

A.

Yes, but they did not want to believe me.

Q.

E To whom did the planks belong?

A.

Mafikeng Town Council.

That is all

Defence Case

PP: I apply that the accused be found guilty of receipt of stolen property well F knowing it to be stolen. He knew the property did not belong to the guard and that the guard did not have any right to dispose of them in that fashion.

Acc: I apply for my acquittal.

Verdict: In terms of s 264 Act 51/77 Guilty on receiving stolen property well G knowing it to be stolen.'

The appellant addressed the magistrate in mitigation of sentence, stating that he was single and he had one child to maintain. Furthermore, that he was unemployed since the date of the incident, and he requested a lenient sentence because he could not afford to pay any fine.

H The sentence that the magistrate imposed was:

'R400 or four months' imprisonment wholly suspended for three years on condition accused is not convicted of an offence of theft or any competent verdict thereof in terms of s 264 Act 51 of 1977 to wit,

(a)

receiving stolen property well-knowing it to be stolen.

(b)

contravention of s 36 of Act 62 of 1955.

(c)

I contravention of s 37 of Act 62 of 1955.

(d)

contravention of s 1 of Act 50 of 1956 and for which he is sentenced to imprisonment without an option of a fine which offence is committed during period of suspension.'

It is important to note that on the count of theft the appellant was J

Friedman JP

A convicted on the competent verdict thereof in terms of s 264 of Act 51 of 1977. I shall return to this aspect in due course.

When this matter came before Waddington J for review he requested the Attorney-General to submit his views on two cases decided in this Division, namely S v Daniel Masenga CA 123/89 and S v Malebo 1979 (2) SA 636 (B). B

This case was also sent to the Attorney-General for his comments, and correspondence passed between the learned Judge and the Attorney-General in regard to the procedure followed in the court a quo in the instant matter. In addition to the aforegoing, the said correspondence was also referred to the magistrate, and C he made certain comments relating thereto.

The correspondence crystallized on 2 February 1995 when Waddington J wrote a letter to the Attorney-General, and I quote:

'Having discussed the case with my Brother Judges I have decided to set the matter down for argument on review in terms of s 304(3) of the Criminal Procedure Act, 1977. Mr Lawrence Lever has agreed to appear amicus D curiae. Would you kindly set the matter down for hearing on a convenient Friday in consultation with Mr Lever whose convenience should receive high priority on account of certain personal problems he is experiencing.

A copy of the record and accompanying correspondence is attached for your E convenience.

The points to be argued are:

1.

Was the procedure followed by the magistrate in this case sanctioned by the Code. More particularly, was the failure of the State to lead any F evidence after the accused's plea of not guilty, fatal to the conviction.

2.

Assuming the propriety of the procedure followed by the magistrate, was there sufficient evidence justifying the accused's conviction.'

The Court is indebted to Mr L Lever not only for his comprehensive heads of argument, but also for assisting the Court in the appeal amico curiae. The Court is also indebted to Mr Smit for drawing the Court's attention to various authorities G relating to this aspect, and to the helpful manner in which he assisted Waddington J and the Court in arriving at a decision in this matter.

From examining the record, the magistrate informed the appellant of his rights to legal H representation. I have no quarrel with this aspect.

In his explanation in terms of s 115 of Act 51 of 1977 it will be observed that the appellant did not make any admissions whatsoever. He spoke of a bundle of these planks. He is accused of stealing purlines. Furthermore no quantity of these planks I are mentioned. The charge specifies four purlines. The charge alleges that the same being the property or lawful possession of Johannes Motusi.

There is no admission by the appellant that the person from whom he took them was Johannes Motusi. From his plea explanation he did not even know the name of the person who gave him the planks but only suggested that he could point him out. In reply to the question as to J

Friedman JP

A whether the other person who gave him the planks had the right to do so he stated: 'He offered them to me and I accepted.'

The aforesaid statements of the appellant do not indicate any admission of theft. Therefore it is not difficult to conclude that on his plea explanation there is not even the remotest suggestion of an admission on which the State could rely. B

One must...