S v Kopsani and Another

• Jurisdiction: South Africa
• Citation: 2019 (2) SACR 53 (ECG)

S v Kopsani and Another
2019 (2) SACR 53 (ECG)

2019 (2) SACR p53

Citation	2019 (2) SACR 53 (ECG)
Case No	CA&R 123/2017
Court	Eastern Cape Division, Grahamstown
Judge	Lowe J and Bloem J
Heard	February 20, 2019
Judgment	March 14, 2019
Counsel	BC Harker for the appellants.; ML le Roux for the state.

Flynote : Sleutelwoorde

Theft — Proof of — Circumstantial evidence — Reasonable inference — Possession, B one month later, of two brand-new vehicles (of model not yet released) stolen from vehicle manufacturer — Such evidence not per se justifying inference that persons in possession of vehicles had stolen them — Conviction of theft changed to contravention of s 36 of General Law Amendment Act 62 of 1955. C

Headnote : Kopnota

The appellants (and two other accused who were not parties to the present appeal) were convicted of the theft of two brand-new motor vehicles from a motor vehicle manufacturer. The cars were of a model range that had not yet been released to the public. They were recovered exactly a month later in a police sting operation, after the vehicles had covered only 20 – 30 kilometres D after having been stolen.

In the operation, the designated policeman agreed with the four accused to buy the vehicles for R40 000 in cash. He testified that he arranged to collect the vehicles the following day at a prearranged spot. On that day the four accused met the policeman. The first appellant, who wanted to see the money, then went with the policeman to meet an undercover policewoman E who had the money. Satisfied with the arrangements, the first appellant drove to the prearranged place where they met the other accused who drove the stolen vehicles to the spot. More police officials then arrived, and the four accused were arrested. The four accused testified that they had merely gone to pick up a friend at a hiking spot.

The magistrate held that, although there was no direct evidence that the accused F had stolen the vehicles, they had been found in possession of the vehicles, had not given any explanation for their possession and had in fact denied that they had been in possession of the vehicles. In the circumstances the only inference that could be drawn from the facts was that the accused had stolen the vehicles.

Held, that the magistrate's factual and credibility findings could not be disturbed, G but the issue was whether the inference that was drawn was justified on the facts. In the light of the evidence it could not be properly concluded by inferential reasoning that the accused were linked to the theft sufficiently to justify the conclusion that they had stolen the vehicles. This conclusion amounted to mere conjecture and the conviction of theft had to be set aside. (See [18] – [21].)

Held, further, in the circumstances where the appellants were found in possession H of the vehicles and there was, at the time, a reasonable suspicion that the goods had been stolen and neither of the appellants had given a satisfactory explanation or any account at all of their possession of the vehicles, the appellants fell to be convicted of the alternative count, namely a contravention of s 36 of the General Law Amendment Act 62 of 1955. (See [24] – [28].) I

Cases cited

Minister of Safety and Security and Others v Craig and Others NNO 2011 (1) SACR 469 (SCA): applied

R v Blom 1939 AD 188: dictum at 202 – 203 applied

R v Dhlumayo 1948 (2) SA 677 (A): applied J

2019 (2) SACR p54

R v Hlongwane A 1959 (3) SA 337 (A): referred to

S v BM 2014 (2) SACR 23 (SCA) ([2014] 1 All SA 420; [2013] ZASCA 160): referred to

S v Crossberg 2008 (2) SACR 317 (SCA) ([2008] 3 All SA 329): referred to

S v Guess 1976 (4) SA 715 (A): referred to

S v Hadebe and Others 1998 (1) SACR 422 (SCA): referred to

S v Khumalo B 1964 (1) SA 498 (N): dictum at 501F applied

S v Majikijela [2015] ZAWCHC 143: applied

S v Mhlongo and Others[1994] ZASCA 172: referred to

S v Singh 1975 (1) SA 227 (N): considered

S v Trainor 2003 (1) SACR 35 (SCA) ([2003] 1 All SA 435): referred to

S v Van Aswegen 2001 (2) SACR 97 (SCA): followed

S v Van der Meyden C 1999 (1) SACR 447 (W) (1999 (2) SA 79): followed.

Legislation cited

Statutes

The General Law Amendment Act 62 of 1955, s 36: see Juta's Statutes of South Africa 2017/18 vol 1 at 2-689.

Case Information

BC Harker D for the appellants.

ML le Roux for the state.

An appeal from convictions in a magistrates' court for theft of motor vehicles.

Order E

The appeal succeeds to the extent that the conviction of theft is set aside. The conviction, however, is replaced with the following:

1.

A conviction in respect of the offence in terms of s 36 of the General Law Amendment Act 62 of 1955, to wit, of being found in possession of the property described in the charge-sheet in regard to F which there is reasonable suspicion that it has been stolen, and being unable to give a satisfactory account of such possession, is substituted for the aforementioned theft conviction.

2.

The sentence imposed by the magistrate on 3 February 2017 is confirmed.

Judgment

Lowe J (Bloem J concurring): G

Introduction

[1] In this matter the appellants were convicted of the theft of two motor vehicles. H At the trial there were various alternative charges, the most significant being a contravention of s 36 of the General Law Amendment Act 62 of 1955 (Act 62 of 1955) — the inability to give account of possession of goods suspected of being stolen. At the trial there were four accused, first and second appellants being accused 1 and 4, respectively.

[2] I I should mention that counsel for appellants astonishingly argued this appeal without a copy of the record (at the appeal hearing), whether on paper or electronic. This is in my experience unprecedented and undesirable, as any reference to the record during argument was then clearly problematic. Counsel's explanation was that his attorney (who was not present at the appeal) had only furnished him with an electronic J copy thereof.

2019 (2) SACR p55

Lowe J (Bloem J concurring)

The facts A

[3] The facts relevant to the charges in this matter can be summarised from the lengthy evidence relating to the theft of two vehicles which were brand-new models, the model range not yet having been released, being Velvet Red and Switchblack Silver Cruze motor vehicles, the first a 2.0 LS vehicle and the second a 1.6 LS vehicle. B

[3.1]

The following observations-facts fell to be accepted:

[3.1.1]

In summary two General Motors employees were called to establish that the two vehicles were in the control of General Motors represented by Roche Moore when the theft took place. They were removed from the C General Motors premises with their own car keys and an 'inside job' was suspected. There is no doubt on the evidence that General Motors owned the two vehicles, that they were stolen, but by whom was the first issue. There was no direct evidence in this regard whatsoever.

[3.1.2]

The two brand-new vehicles, to the joint value of D R526 000, were stolen from the General Motors factory on the night of 11 – 12 September 2012.

[3.1.3]

The same two vehicles were recovered by the police on 12 October 2012, one month later, at a spot next to the N2 in the Motherwell area just outside Port Elizabeth. E

[3.1.4]

Both these vehicles had travelled, in total, approximately 20 – 30 kilometres after having been stolen.

[3.1.5]

Information about the vehicles received by the police resulted in a police 'sting operation' which led to the recovery of the vehicles. F

[3.1.6]

Two police officers, Const Zahele and WO Lebaka, acted as undercover agents in the said police operation and were set the task of buying the said vehicles from those holding same.

[3.1.7]

Warrant Office Lebaka was at the time in...