S v Pitout

• Jurisdiction: South Africa
• Judge: Mogoeng JP and Gura AJ
• Judgment Date: 10 September 2004
• Citation: 2005 (1) SACR 571 (B)
• Docket Number: 168/03
• Hearing Date: 18 June 2004
• Counsel: S Joubert for the appellant. V D Mdabula for the State.
• Court: Bophuthatswana High Court

Gura AJ:

Introduction D

[1] The appellant was convicted of theft of stock involving six head of cattle and was sentenced to undergo five years' imprisonment by the regional court. He now appeals against both the conviction and sentence. E

Factual background

[2] The following facts are either common cause or not disputed:

2.1

On Thursday, 24 October 2002 the complainant lost six head of cattle. On the same date one Mr John Ngcongolo also lost one beast (bees). This beast, prior to its disappearance, was grazing with complainant's cattle. F

2.2

All these seven cattle used to graze on a communal camp at Springbokpan which is in the vicinity of Lushof farm.

2.3

Between Kaalpan and Driehoek lies the farm Lushof, the property of Mr Rudolph van Rensburg. The appellant is employed as a manager at Lushof farm. G

2.4

On 24 October 2002 eight head of cattle were found grazing in the mealie field at Lushof farm. The appellant then ordered his subordinates to put the cattle into the kraal as they were trespassing.

2.5

When the workers knocked off at 18h00 they left the cattle still in the kraal at Lushof farm. The subsequent day at 06h00, the cattle were no longer there. H

2.6

The appellant told the complainant and Mr Ngcongolo that he sent their cattle to the pound at Lichtenburg.

2.7

There is only one pound at Lichtenburg. This pound belongs to Mr Johan Grobbelaar. He has one driver.

2.8

These cattle never reached Mr Grobbelaar's pound. I

2.9

At about 18h00 on 24 October 2002 a white Isuzu bakkie towing a trailer arrived at Lushof farm. The cattle were loaded onto it.

[3] Complainant described his lost cattle as five cows and a bull. All were not brand marked. On the right ear each had a 'saw jaw' mark and on the J

Gura AJ

left ear a 'swallow tail' mark. In his second statement to the police complainant said that his cattle had a half A moon mark on the right ear, something which he denied in the witness-box.

[4] Mr Frans Malakaje identified the cattle which were in the kraal of the appellant's employer (the kraal) as that of complainant. He testified that he is one of the workers who drove these cattle from the mealie field into the press-way. He could not describe their B identification features, except to say that he knew complainant's cattle very well.

[5] The appellant's evidence is that on 24 October 2002 he saw cattle in the mealie field. He sent two workers to fetch them as they were trespassing. He telephoned the pound master and talked to one Johan. The latter told him that his vehicle was out at Ottoshoop and C that he would come to fetch the cattle later during the day. This was about 10h00. Around 14h30 on the same day, Johan called the appellant on his cellular phone from a Lichtenburg land-line number. Johan needed directions to the farm. Between 17h00 and 18h00 the pound people D arrived and loaded the cattle. They asked the appellant to sign a removal certificate. They left with the cattle without giving him any written proof of receipt of the stock.

[6] According to Mr Johan Grobbelaar the following is the standard procedure which is followed by farmers when dispatching impounded cattle to the pound. The pound master acknowledges receipt of E the cattle by issuing a receipt to the farmer. The following particulars are reflected on the receipt: Pound vehicle registration number, pound master's name, number of cattle involved as well as the colour and gender of the cattle. All this information (on the receipt) is then transferred to the pound register. The pound master also F informs the stock theft unit about the impounded cattle.

[7] Mr Deon Simon was on the farm Lushof when the people who came to fetch cattle arrived. His evidence is that he had gone there for physical training. The appellant talked to these people when they arrived and showed them where the cattle were. Thereafter the appellant kept himself busy talking to Mr Simon. He cannot say if the appellant G ever went to or talked to those people after the cattle were loaded on the trailer.

The issues H

[8] There are two questions which call for determination:

(a)

Did the cattle (or some of the cattle) which were kraaled by the appellant on 24 October 2002 belong to complainant? If yes,

(b)

Did the appellant have the necessary intent to steal these cattle?

The conviction I

[9] Counsel for the appellant submitted that the evidence of complainant regarding the identification of his cattle was unreliable because the description he gave to the police (in his statements) differed materially from what he told the court. To compound the State's problem, so runs J

Gura AJ

the argument, Mr Frans Malakaje, who said he saw complainant's cattle in the appellant's kraal could neither A describe their colours nor their earmarks. It was finally argued that the trial court erred in inferring that appellant had a common purpose with the people who came to fetch the cattle, to steal them.

[10] The complainant was cross-examined by the defence on his alleged two statements which he made to the police. He identified and B confirmed his signature on both statements but persisted in his denial that he made two statements. He maintained that he made only one statement. It is common cause that the description of his cattle as reflected in the police statement differs with his account in the witness- box. The difference pertains to earmarks and the colour of the six head of cattle. Several State witnesses were cross-examined on C their statements to the police. However, no statement was handed into court by the defence.

[11] In the evaluation of complainant's evidence, the court a quo stated: D

'It seemed that he had made an affidavit to the police pertaining to the statement that he...