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Willemse v S (A338/2011) [2011] ZAWCHC 532 (25 November 2011)

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JUDGMENT

BAARTMAN, J

[1] On 28 April 2010, the magistrate at Oudtshoorn convicted the appellant on 1 count of possession of suspected stolen property and sentenced him to 12 months direct imprisonment. This is an appeal against that conviction and sentence.

BACKGROUND The arrest

[2] I deal with the facts of this matter to the extent necessary for this judgment. On 16 October 2009, the appellant and Mr Avontuur (Avontuur) were arrested for possession of suspected stolen property. They were in possession of 2 doors, 1 box of ceramic tiles, 7 packs of tile cement (the property) and a Shoprite trolley. The following led to their arrest:

(a) Mr Stander (Stander) had in the late afternoon of 10 October 2009 contacted the police and reported that the appellant and Avontuur were attempting to sell items that he suspected to be stolen. Pursuant to that call, De Kocker (De Kocker), a police officer, arrived at Stander's premises where he found the appellant and Avontuur in possession of the property and the Shoprite trolley.

(b) De Kocker asked the appellant and Avontuur who the owner of the property was. The appellant referred to Avontuur as the person with the required knowledge who in turn referred De Kocker to the appellant. When De Kocker persisted, the appellant and Avontuur indicated that they had elected to exercise their rights to silence, which led De Kocker to arrest both on charges of possession of suspected stolen property.

The state's version

(c) On 10 October 2009 at 16h30, Johan Basson (the
complainant) locked the property in a room at his work place, a building site. That premises was burgled and the property stolen. Basson's evidence was not disputed,

(d) Stander said that he had contacted the police for the reasons set out in paragraph (a) above. De Kocker confirmed that he had responded to Stander's call which had led to the appellant's and Avontuur's arrest for the reasons described in paragraph (b) above. De Kocker said that he had learnt of the housebreaking on his arrival at the police station with the appellant and Avontuur.

The defence's version

(e) According to the appellant, he was walking past Stander's house when the latter, who was standing at his gate, had requested him to assist in carrying the property from a premises on the opposite side of the road to Stander's house. Stander had promised to provide the appellant with "Tik" in exchange for the assistance.

(f) The appellant had in turn requested Avontuur, who was in the neighbourhood, to assist him in moving the property. The police found them in Stander's yard with the property and the trolley that they had used in the move. When questioned, he had informed the police that he was merely assisting Stander. The police did not accept his explanation but instead arrested him and Avontuur.

DISCUSSION

[3] It is so that the State bears the onus to prove its case beyond reasonable doubt. It is also so that a court of appeal will not lightly interfere with a credibility finding of the trial court. (See R v Dhlumavo and Another 1948(2) SA 677 (A)). However, the appeal court must still assess the evidence as a whole. Having assessed the evidence as a whole, I cannot fault the trial court's finding. The essential core of the versions of both Stander and De Kocker were not disturbed under cross-examination. Accordingly the court a quo, in my view, was justified in relying upon their version of the events. I also cannot fault the trial court for rejecting the appellant's version as not reasonably possibly true. It follows that the appeal against the conviction has no merit.

CONSIDERATIONS IN RESPECT OF SENTENCE

[4] The trial court sentenced the appellant to 12 months direct imprisonment. It is so that the court of appeal can only interfere with sentence if it finds that the trial court had misdirected itself or if the disparity between the sentence imposed by the trial court and that which the appeal court would have imposed is so markedly different that it can be said to be shocking and inappropriate.

[5] The trial court found that direct imprisonment was an appropriate sentence. I agree. On 25 March 2010, prior to the imposition of sentence in this matter, the appellant was sentenced to 18 months direct imprisonment for a similar offence. He was still serving that sentence when the trial court sentenced him on this matter. In addition, the appellant had 2 previous convictions for similar offences.

[6] After his arrest, the appellant remained in custody pending finalisation of this matter. It follows that he had been in custody in respect of this matter for approximately 6 months when he was sentence in March. In my view, that factor was not sufficiently considered by the trial court. That is a misdirection that entitles this court to consider the sentence afresh. The appellant's personal circumstances appear from the record, I do not repeat them. It is my view that direct imprisonment is an appropriate sentence in the circumstances of this matter. However, that sentence should run concurrent with the sentence that was imposed on 25 March 2010.

ORDER

I, for the reasons stated above would make the following

(a) The appeal against conviction is dismissed;

(b) The sentence imposed by the trial court is set aside

and replaced with the following:

(i) The appellant is sentenced to 12 months direct imprisonment, which sentence is to run concurrent with the sentence of 18 months direct imprisonment which was imposed on March 2010.

(ii) The sentence is antedated to 28 April 2010.

BAARTMAN J

I agree.

VAN STADEN, AJ