S v Ngceba

• Jurisdiction: South Africa
• Judge: James JA
• Judgment Date: 27 April 1989
• Citation: 1990 (2) SACR 242 (TKA)
• Hearing Date: 27 April 1989
• Counsel: P Levinsohn SC for the appellant J P M Marais for the State
• Court: Transkei Appellate Division

James JA:

The appellant was found guilty by Beck CJ on a count of theft of R28 101,87 and he was sentenced to two years' imprisonment of which one year was suspended for a period of five years. He now appeals J against his conviction and sentence.

James JA

A The facts in relation to this offence are clearly and concisely set out in Beck CJ's judgment and I quote the following passage from it:

'During 1980 a man from Lesotho by the name of Mokoena obtained money from a number of people in Transkei by means of an unlawful lottery in which he promised substantial gain to participants. Agents of Mokoena were active in Transkei and were in possession of eight motor cars. Who owned each of those cars and what precise role the B cars played in relation to the operation of the lottery is a matter about which there is no evidence whatsoever before the Court. I understood the defence to be prepared to concede no inference other than that the cars were probably used by Mokoena's agents as their means of transport in Transkei where they were presumably going about seeking participants in the lottery. When various participants began C to appreciate that their hoped for gains from their stakes in Mokoena's unlawful venture would not materialise, their disillusionment came to the ears of the then President of Transkei, Paramount Chief K D Matanzima, who thereupon instructed the accused, who was at that time the Commissioner of Police, immediately to remove Mokoena from Transkei, and to seize his property and sell it so that D Transkei participants might recoup some of their money.

On his own evidence it is apparent that Paramount Chief Matanzima did not intend that his instruction be executed with proper regard to the due processes of law. Nor did the accused understand that to have been the President's intention. It is obvious that the instruction was intended by the President to be his own fiat to be acted upon forthwith and for which no further authority of any kind need be E sought in view of the source from which it emanated, and it was so accepted by the Commissioner of Police.

According to the accused the same lack of concern to employ proper legal procedures to deal with Mokoena and his lottery was exhibited by the then Prime Minister, Chief George Matanzima to whom in his capacity as Minister of Police the accused says he reported the urgent instruction that he had received from the President. The accused at F once caused the President's instruction to be carried out. Police officers located Mokoena in a hotel and physically removed him to the...