---

REPORTABLE

IN THE SOUTH GAUTENG HIGH COURT

(JOHANNESBURG)

CASE NO: A 172/2011

DATE:26/04/2012

In the matter between

LAWRENCE MATHOBELA.............................................................1ST APPELLANT

NICKLAS CHAKA............................................................................ 2^ND APPELLANT

and

THE STATE ….....................................................................................RESPONDENT

J U D G M E N T

___________________________________________________________________

MUDAU AJ:

[1]On 7 July 2010, the two appellants were convicted of housebreaking with intent to steal and theft in the Kempton Park regional court. They were each sentenced to eight (8) years’ imprisonment. It is against both conviction and sentence that they now appeal with leave of the trial court.

[2]The appeal against conviction is essentially on the grounds that there was no direct evidence linking the two appellants to the commission of the offence. Secondly, the mere fact that the two were arrested shortly after the incident of housebreaking and theft, in possession of R23 650-00 and R25 750-00 in cash respectively, the trial court drew an erroneous inference that they were guilty.

[3]In order to determine the correctness of the convictions and the sentence against the two appellants, it is necessary to consider the material aspects of the evidence adduced as well as the relevant aspects associated with sentencing. The evidence adduced by the State is in brief, to the following effect. Mr Treurnich is the loss control manager at Clover. On Sunday the 2^nd of November 2008, he received a call to the effect that there were signs of a break-in at his place of work. When he drove to the scene, he observed that part of the pre-cast wall of the perimeter fence below the electric fencing had been removed. He thereafter proceeded to the cash office area in the presence of security guards on duty as well as members of the SAPS. He found the cash office outer door open. He tried to open the walk-in safe door, but found it locked. He concluded that this was a break-in which failed in that the walk in safe was not interfered with.

[4] The following Monday, events took a different turn when their cashier (Sibongile Mokwena), arrived for work. At the time the trial was conducted, Ms Mokwena had passed away. Her statement however, was admitted as evidence by the parties. From her statement marked exhibit “D” in this matter, she had cashed up after business hours the Saturday preceding the Sunday when the “failed” break in was discovered. In her statement she refers to it as Saturday the 2^nd of November 2008.This was an obvious error as the signs of a break-in were discovered on the Sunday the 2^nd November 2008 and the report to the loss control manager made on Monday the 3^rd. After cashing up on the Saturday, she had placed about R160 000-00 cash collected, in 3 bags which, she in turn locked them inside a smaller safe within the walk –in -safe. By the time she left at about 16h:40 that Saturday, her keys to the cash office or walk -in -safe as well as the keys to the safes inside the walk-in –safe, were placed inside a bag that was in turn, sealed. It is common cause an established procedure that the sealed bag containing these keys, were handed to a guard on duty who in turn recorded this in the occurrence book (O B) against a number. It was established that the sealed bag that contained the safe keys had been tempered with. The plastic seal that slips into the zip upon being broken did not make the “normal sound”.

[4] When Mokwena went inside the walk-in-safe, she had found both the inside safes open and the money she had placed inside the bags, missing. There was no sign of forced entry past what was described as” one and a half ton armour –plated walk-in-safe door”. There are only two sets of keys available to access the cash office and the safes: one gets dropped overnight for safekeeping with a security officer at the control room. The 2^nd set of keys is locked away in a safe with dual keys. The latter safe could only be opened by two managers including Mr Treurnich at the same and for security reasons. In that event, a relevant entry would then be entered in the O B register. It was not the case in this matter as the 2nd set of keys were still locked and sealed away. Cashiers were subjected to polygraphs tests to which, they had volunteered, but came out negative. The matter was referred to the police for investigation.

[5]According to Potgieter who worked for Fidelity security as a contract manager at Clover, the two appellants had worked night shift beginning at 18h00 on Saturday the1st of November 2008 and knocked off at 06h00 on Sunday the 2^nd November 2008. The appellants were posted at the main gate, but he noticed on the CCTV footage that the 1^st appellant at some stage left his post and was in the control room where he was not supposed to be.

[6] Basson, a nightshift security supervisor on the night of the 1^st of November, testified that he had noted all was well in the O B book since he was unaware of the break –in that had occurred. All in all there about 9 security guards on duty that night.

[7Chaka, who is the 2^nd appellant’s uncle, testified that it was about 15h00 on the 3^rd of November 2008 whilst he was seated at his village home outside Giyani in Limpopo that the 2^nd appellant’s wife who was in tears, brought to him a wrapped parcel which contained R27, 750-00 in cash. It is the said amount of money that he later gave to members of the police, one of whom was Kgomo.Kgomo, who later testified corroborated this evidence. It was put to this witness that the 2^nd appellant had nothing to do with the money.

[8] The 1st appellant‘s former lover (Senyatsi] testified to the effect that on Sunday the 2^nd of November 2008, she had received a call from him earlier that morning. The 1^st appellant wanted to see her. He later arrived at her residence in the company of someone else who had remained outside. After locking the door, appellant who was dressed in a “huge jacket” although it was “a sunny day”, took out money which, he threw on her bed. He told her he had been fired from his work and he had been given monies due to him. She questioned him how this could be so given that it was a Sunday, but he stuck to his version. He wanted her to keep the money safely for him. He told her he had slept at the shebeen the previous night and was afraid of being robbed. He could not take the money to a bank as it was a Sunday. They counted the money and it was R35 000-00 in cash. He did not want his wife to keep the money as he did not know her long enough. She refused to keep the money. He gave her R200-00 which she refused to take. She told him to keep it. Appellant then left with the money. She heard nothing further until she was visited by the police the next day to whom she explained what happened the previous day.

[9] Acting upon the information provided by Senyatsi, detective warrant officer Phaka testified that he went in search for the first appellant at his residential address in Tembisa. He eventually traced him to his place of work at clover on the 3^rd of November. The 1^st appellant was then placed under arrest. Appellant’s phone was used to phone one of his girlfriends and not the “girlfriend” found earlier at his home. The said girlfriend brought R23 660-00 in cash. With further information provided by the 1^st appellant, the police went to an address in Ivory Park in search for the 2^nd appellant. The 2^nd appellant was found at the given address and placed under arrest. After his rights were explained, the second appellant stated that his wife had left for Limpopo with the money. This is the money (R27, 750-00) referred to earlier and recovered by the police. There was a 3^rd suspect mentioned who ran away upon sight of the police in the company of the 1^st appellant.

[10] In his defence, the first appellant testified to the effect that the R23, 660-00 taken by the police from his wife belonged to him and his wife. He had saved the said cash. Some of it were”loans from the bank” as well as gambling proceeds. The money was intended for a wedding he planned to have in December of that year. He had also saved to buy his wife clothing and a car. He denied any involvement in the breaking in and theft at his employment.

[11] The 2^nd appellant closed his case without testifying or calling any defence witness. Section 35 (3) of our Constitution, grant him the right to do so. This choice however needs careful consideration “as the choice to remain silent in the face of evidence suggestive of complicity must, in an appropriate case, lead to an inference of guilt” see S v Tandwa and Others 2008 (1) SACR 613 (SCA)at 617b-d.]as well as S v Mdlongwa 2010 (2) SACR 419 (SCA).

[12]It is not in issue in this matter, that the complainant’s business’s premises where during the course of the night of the 1^st November 2008 broken in, and a substantial amount taken from the safe. Neither is it in issue that the two appellants were some of the nine or so security guards on duty that night. All indications however, are this was an “inside job” as the safe where the money was locked was not in any way damaged but the keys were apparently used to access the walk-in-safe as well as the safe wherein the cash was kept.

[13] In Isaacs v the State 2010 ZA 87 SCA [appeal no: 39/2010] at par 61, the court stated that: “courts should always consider the cumulative effect of items of circumstantial evidence... the state must satisfy the court, not that each separate item of evidence is inconsistent with the innocence of the accused, but only that the evidence taken as a whole is beyond a reasonable doubt inconsistent with such innocence”.

[14]In the often cited case of R v Blom 1939 AD 188, the court set out two cardinal principles in relation to inferential reasoning. The first is that the inference sought to be drawn must be consistent with all the proved facts. Secondly, the proved facts should be such that they exclude every reasonable inference save the one to be drawn.

[15] What follows in my view, are the material parts of the evidence which, viewed cumulatively compel the conclusion that that the trial court cannot be faulted in its finding of guilt:

15.1 The appellants were on duty and therefore at the scene of crime on the night of the incident.

15.2 By his own version the 1^st appellant left his post at the gate and went to the control room where the keys to the safe were kept.

15.3 The next day, both appellants had in their possessions substantial amounts of money that ran into thousands of rands referred to above Para 9. In the case of the first appellant he earlier had in his possession R35 000-00 as testified to by his girlfriend. In the case of the 2^nd appellant he at first denied to have anything to do with the money found with his wife in Giyani, but later claimed to be his.

15.4 Both appellants failed to account were the money came from. In the case of the 1^st appellant, he gave several explanations which are patently false and also lied to his girlfriend, Senyatsi.

[16]. It therefore follows and in my view safe to conclude that the appellants in light of all the factors set out above were responsible for the break-in and theft. In my view, the state proved beyond a reasonable doubt the appellants’ involvement in the commission of the said crime. The trial magistrate correctly convicted both appellants.

[17].I now turn to deal with the appeal on sentence. It is trite law that the imposition of sentence is pre- eminently a matter in the exercise of the discretion by the trial court. An appeal court will only interfere with the sentence imposed by the trial court if the latter exercised its discretion in an inappropriate manner. The appellants were 33 and 27 years old respectively at the time the crime was committed. Both are married and fathered 3 minor children. The first appellant held temporary jobs since they were expelled from their employment following this incident and earned R2000-00. The 2^nd appellant was unemployed. The trial court correctly observed that although they were first offenders, aggravating was that they abused their possession of trust by breaking and stealing from the premised they were required to secure.

[18] Finally, the trial court noted that the crime committed was not only serious but also prevalent. I find no misdirection in the manner in which the trial magistrate excised his discretion regarding sentence.

[19] In the result, I propose the following order:

The appeal against the conviction and sentence by both appellants is dismissed.

T P MUDAU

ACTING JUDGE OF THE HIGH COURT

[17] An order is made as proposed by Mudau AJ.

_________________________

C J CLAASSEN

JUDGE OF THE HIGH COURT

COUNSEL FOR THE APPELLANT: ADV M BOTHA

COUNSEL FOR THE RESPONDENT: ADV

DATE OF HEARING: 26 APRIL 2012

DATE OF JUDGMENT: 26 APRIL 2012

---