S v Marema
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | De Vos AJ |
| Judgment Date | 13 September 2023 |
| Citation | 2023 JDR 3539 (GP) |
| Hearing Date | 25 July 2023 |
| Docket Number | A317/2019 |
| Court | Gauteng Division, Pretoria |
De Vos AJ:
The appellant is appealing against his conviction by the Pretoria Regional Court for housebreaking with intent to steal and theft of a motor vehicle. Mr Marema was
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sentenced, on 7 August 2019, to (7) seven years’ imprisonment plus a further (5) five years’ imprisonment wholly suspended for (5) five years.
The finalisation of the matter has been delayed by the record being incomplete. The matter was postponed for the reconstruction of the record on 23 June 2020, 1 February 2021, 21 April 2022, and 8 August 2022. When the matter came before us, the parties agreed the record was in a state sufficiently complete for the Court to hear the matter. We accepted this position.
The conviction centres on Mr Marema having been found in possession of a stolen red Lexus. The police had no other evidence linking him to the crime. No further evidence would materialise either. Even at the trial, no witnesses linked Mr Marema to the crime, and no objective evidence would be brought. The sole evidence against Mr Marema is that he was found in possession of the Lexus.
Mr Marema has stated, all along, that he was keeping the Lexus for his friend, Mr Lusana. In convicting Mr Marema, the trial court rejected this version. Counsel for Mr Marema submits, before this Court, that the trial court improperly rejected Mr Marema’s explanation of how the Lexus came into his possession, did not account for all the evidence and erred in its approach to circumstantial evidence.
We consider these grounds of appeal against the evidence led at the trial. The State led the evidence of the claimants, Mr and Mrs Pienaar as well as the arresting officers, Cst Mabusela and Cst Mawana. Their evidence is summarised below.
The complainants are the Pienaars. They testified that a silver Honda and a red Lexus were stolen from their home on 22 November 2017. Their evidence was limited to waking up to the discover that the cars had been stolen in the night. They could provide no evidence of the actual theft. It appeared that the thieves had climbed through a window, snatched the keys and made away with the cars. Neither of the Pienaars saw any of this, as the theft occurred whilst they were asleep.
Mr Pienaar opened a case of theft for both vehicles and provided the police with the car registration numbers. The following day, 23 November 2017, the police informed Mr Pienaar that his car had been recovered, and on 24 November, Mr Pienaar identified the car as his SAP Pound Unit. The Honda was never recovered.
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The State also proffered the evidence of the arresting officers, Cst Zolake Mabusela and Cst Mawana. The Court only has the spelling of the officers as they appear on the transcript. Their names are, however, spelt inconsistently and inaccurately. The Court has no way of verifying the correct spelling of their names and will reflect them as they appear in the transcript.
The officers patrolled the Olievenhoutbosch area in a marked police vehicle on 23 November 2017. Their evidence was that whilst patrolling, they noticed a red Lexus that appeared to fit the description of one of the cars reported stolen the day before. They stopped and confirmed on the police radio control that this car was reported stolen. The red Lexus was parked next to Mr Marema’s house. From this point onwards, the evidence of the two police officers diverge. Both agree that Mr Marema informed them the car belonged to Mr Lusana and that they set off to his house but found no one there. At Mr Lusana’s house, the officers found the identity document of Mr Lusana’s wife.
Much of the evidence of these officers contradict each other. The contradictions will be dealt with in more detail below.
Mr Marema’s version was, in the main, that his friend, Mr Lusana arrived at his house at about 6 pm on 22 November 2017, driving the red Lexus. Mr Lusana suggested they drive to Mooiplaas to pick up their girlfriends. There was a baby seat in the car which Mr Lusana removed, and they left it in Mr Marema’s home. They went to Mooiplaas, picked up their girlfriends and came back to Olievenhoutbosh. Mr Lusana told Mr Marema that he would leave the red Lexus with Mr Marema and fetch it later. Mr Lusana left the red Lexus at Mr Marema’s house as there was no space at Lusana’s house. Mr Marema did not think it odd that Mr Lusana had a different car, as he had many cars and often had different cars. Nor did he think it was odd to remove the baby seat, as Mr Lusana had children. Mr Marema said he did not know that the Lexus was stolen.
The following day, Mr Marema, awoke to two police officers outside his home. The police officers were drawn to his home because a red Lexus parked in his yard had been reported stolen. The police informed Mr Marema that the vehicle’s registration, description, and make matched a car that had been reported stolen. Mr Marema explained to the officers that the car was not his but belonged to his friend, a Mr
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Lusana. Throughout the record, no accurate or fuller name is provided for Lusana, nor is his surname provided. We will refer to him as Mr Lusana in the judgment. Mr Lusana had asked Mr Marema to leave the car there as Mr Lusana did not have a parking space for the car. Mr Marema provided the police with Mr Lusana’s number and took them to his house. Mr Lusana was, and remains, nowhere to be found.
The trial court accurately identified that the State was relying on circumstantial evidence as no direct evidence had been led. The trial court weighed the dissonance in the two police officers’ versions but ultimately held that they were consistent on material points and differed only in relation to immaterial issues. The trial court concluded the very feature of...
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