S v Pitout

• Jurisdiction: South Africa
• Citation: 2005 (1) SACR 571 (B)

S v Pitout
2005 (1) SACR 571 (B)

2005 (1) SACR p571

Citation	2005 (1) SACR 571 (B)
Case No	168/03
Court	Bophuthatswana Division
Judge	Mogoeng JP and Gura AJ
Heard	June 18, 2004
Judgment	September 10, 2004
Counsel	S Joubert for the appellant.; V D Mdabula for the State.

Flynote : Sleutelwoorde D

Evidence — Witnesses — Calling, examination and refutation of — Cross-examination — Materials for cross-examination — Previous statement — Cross-examiner seeking to question witness on previous statement must first lay basis for cross-examination — For example, by asking in which language statement made; in which language statement E written down; whether statement read over to witness or was she or he allowed to read statement before signing it; was she or he satisfied with correctness of contents of statement, etc — Judicial officer should realise that whenever questioning to start on previous inconsistent statement, she or he has duty to see to it that cross-examiner first lays basis for such questioning — F Failure to observe this rule may adversely affect probative value of such evidence.

Stock theft — Sentence — Compensation — Duty of court during sentencing to consider compensatory fine or suspension of sentence on condition that compensation takes place — Theft leaving victim empty-handed — Complainant, unemployed, losing all his G cattle — Stock his only livelihood — Justice not done by sending accused to gaol — Justice demanding that compensation should be considered — Failure on part of trial court to consider compensation, therefore, rendering sentence imposed to be 'disturbingly inappropriate'. H

Stock theft — Sentence — Compensation — Quantification of — Value of cattle R15 400 when stolen — If Court ordering compensation of R15 400, such order would not be fair because it didn't place complainant in position in which he would have been, had his cattle not disappeared — Based on rate of inflation and fact that cattle may have increased, Court having discretion to fix fair amount of compensation above value of cattle when stolen — Amount I of R20 000 fair, just and equitable under circumstances.

Headnote : Kopnota

Any cross-examiner seeking to question a witness on a previous statement must first lay the basis for cross-examination, for example, by asking in which language was the statement made; in which language was the statement J

2005 (1) SACR p572

written down; whether the statement was read over to the witness or was she or he allowed to read the statement before A signing it; was she or he satisfied with the correctness of the contents of the statement, etc. A judicial officer should realise that whenever questioning has to start on a previous inconsistent statement, she or he has a duty to see to it that the cross-examiner first lays the basis of such questioning. Failure to observe this rule, may adversely affect the probative value of such evidence. (Paragraph [14] at 576b - d.) B

The appellant had been convicted of stock theft, in that he stole six cattle from the complainant, and sentenced to five years' imprisonment. In sentencing the appellant the regional court had found that the prevalence of theft of stock and the interests of society called for an exemplary sentence. The trial court did not advise the victim in terms of s 15(1) of the Stock Theft Act 57 of 1989 of the C provisions of s 300 of the Criminal Procedure Act 51 of 1977 relating to compensation. In an appeal,

Held, that stock theft was a serious offence which threatened the well-being of the farming economy. (Paragraph [28] at 578h - i.)

Held, however, that it was the duty of the court during sentencing to consider a compensatory fine or suspension of the sentence on condition that compensation took place. (Paragraph [30] D at 579c.)

Held, further, that the question of compensation should have played a major role in sentence, because the theft had left its victim empty-handed. To a person like complainant, justice had not been done by sending the appellant to gaol. All his cattle were gone. He was not employed. His stock had been his only livelihood. Justice demanded that E compensation should have been considered in the present case. Failure on the part of the trial court to consider compensation, therefore, rendered the sentence imposed to be 'disturbingly inappropriate'. (Paragraph [31] at 579g - i.)

Held, further, that the value of the cattle was R15 400 when they were stolen. If the Court were to order a compensation of R15 400, such order would not be fair because it did not place the F complainant in the position in which he would have been, had his cattle not disappeared. Based on the rate of inflation and the fact that his cattle may have increased, the Court had a discretion to fix a fair amount of compensation which was above the value of the cattle when they were stolen. An amount of R20 000 was fair, just and equitable under the circumstances. (Paragraph [33] at 580a - c.) G

Held, accordingly, that the sentence of five years' imprisonment be entirely suspended for three years on condition that the accused, inter alia, paid to the complainant, the amount of R20 000.

Annotations:

Cases cited

Reported cases

R v Blom 1939 AD 188: applied H

R v Mpele 1948 (3) SA 550 (T): applied

R v Theunissen 1952 (1) SA 201 (A): applied

R v Valachia and Another 1945 AD 826: applied

S v Anderson 1964 (3) SA 494 (A): applied I

S v Baadjies 1977 (3) SA 61 (E): applied

S v Charlie 1976 (2) SA 596 (A): applied

S v Jeggels 1962 (3) SA 704 (C): referred to

S v Lepale 1979 (1) SA 117 (B): applied

S v Marx 1989 (1) SA 222 (A): applied

S v Zinn 1969 (2) SA 537 (A): referred to. J

2005 (1) SACR p573

Legislation cited

Statutes

A The Criminal Procedure Act 51 of 1977, s 300: see Juta's Statutes of South Africa 2003 vol 1 at 1-390

The Stock Theft Act 57 of 1989, s 15(1): see Juta's Statutes of South Africa 2003 vol 1 at 1-308.

Case Information

Appeal from a conviction and sentence imposed in a regional court. The facts appear from the reasons for judgment, which were B handed down by Gura AJ, Mogoeng JP concurring.

S Joubert for the appellant.

V D Mdabula for the State.

Cur adv vult. C

Postea (September 10).

Judgment

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

2005 (1) SACR p574

Gura AJ

left ear a 'swallow tail' mark. In his second statement to the police complainant...