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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

NOT REPORTABLE CASE NUMBER: A2166/04

In the matter between:

THE STATE

Appellant

SIPHO THANSI

and

Respondent

JUDGMENT

1 . The Appellant was charged and convicted in the Regional Court,

Potchefstroom on three counts, namely housebreaking with the intent to

steal (count 1), escaping from lawful custody (count 2) and malicious

injury to property (count 3).

2. The Appellant was sentenced to six years imprisonment on count 1, two

years imprisonment on count 2 and one year imprisonment on count 3,

i.e. nine years imprisonment and the Regional Magistrate also declared

the Appellant unfit to possess a firearm in terms of section 12(2) of Act

72 of 1969.

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3. The Appellant appeals against the convictions and sentences with regard to all three counts.

4. The Appellant was legally represented when he pleaded not guilty to all three the counts whereafter his legal representative withdrew and he elected to conduct his own defence.

5. The Appellant was arrested for breaking and entering into a commodity shop at a filling station and stealing certain goods therefrom. Thereafter, whilst being held in the holding cells at the Regional Court where he had appeared when the matter was postponed, he managed to escape from the holding cells and eventually from the court building by breaking the glass pane of a door in order to exit the building.

6. The Appellant's version was that he did not break and enter into the shop at a bus stop and steal any goods, but that he was arrested some distance away from the shop. He did not escape from custody and cause damage to the door as he was set free by a police officer who had told him to be at court the next day, which instruction he complied with but his case was never called on that day and he left.

7. Mr GJ Swiegers, testified that on 17 August 2001 at approximately 20h30 he locked his shop at a filling station and that at Oh15 he was

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contacted by the police who advised him that his shop had been broken into. When he arrived there he found a big carton box in the shop's door which was empty and packets of cigarettes and other commodities from his shop packed in the driveway. The front window of the shop had been broken. The value of the goods amounted to R2,116 and it cost approximately R750 to replace the window. He did not know the Appellant.

8. The Appellant did not put any questions to this witness.

9. Sergeant H Hanford, a member of the South African police service, testified that he had been a member for 6 years and that he and Sergeant Vermeulen (who has since left the services due to medical reasons) went to the shop as a result of a report received. They noticed that the front window of the shop had been broken and he entered the building through the broken window. He found the Appellant in the kitchen where he was hiding behind a wash-up whereafter he arrested him. When he left the shop he found carton boxes with the goods therein on the outside in front of the shop towards the left hand side of the broken window. A certain Captain Meyer took the Appellant to the police station. The Appellant did not give any explanation as to what he was dong there.

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10. The Appellant put it to Hanford that he had arrested him at a bus stop where he and his girlfriend were waiting for a lift. The witness, denied this. It was further put to Hanford that he had taken the Appellant inside the shop. The police then arrived whereupon he was removed. Hanford persisted that he had been arrested inside the shop. It was also put to the witness by the Appellant that he was at the bus stop with his girlfriend who would verify his version. Hanford, however, denied that the Appellant was found at a bus stop.

11 . Inspector J Colode testified that he had 23 years experience and that he was the court orderly at the Regional Court. The Appellant appeared in court where he served as court orderly on 20 August 2001 on a charge of housebreaking. The matter was postponed. He handed in a warrant for detention as exhibit A from which it appeares that the matter had been postponed to 21 August 2001 and that bail had been fixed at R1,000. He testified that he had made out the warrant for detention in respect of the Appellant and that it had been signed by the Magistrate. This was done in all instances where an accused had to be kept in custody in order to deliver the accused to prison. The Appellant had been taken to the holding cell in the building. Later that day when the prisoners had to be taken to prison, it was discovered that the Appellant had disappeared. It was at some stage established that another orderly had neglected to lock the cell door. He also established the next day

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that a door which gave access to the outside of the court building, had been broken. He speculated that the Appellant hid himself somewhere in the court building and made his way out of the building during the night by breaking out. He also testified that the Appellant's fingerprint appeared on the back of the warrant as it was procedure that a person who is held in custody on the strength of a warrant for detention and who had to be taken to prison, had to place his fingerprint on the warrant.

12. During cross examination the Appellant denied that he had hid himself to which the witness responded that his colleague had neglected to lock the cell door and that this been discovered the next day. It was further put to the witness that the Appellant in fact appeared in court that day and that he was placed in the holding cell. He was called at a later stage together with other persons who had to be released. He was released with those persons and told to appear in court at a later stage. The witness denied that this was the case and stated that where a person is released a warrant for his release (a J6 form) was issued and that nobody could be released without such warrant. No such warrant had been issued in respect of the Appellant. Furthermore the warrant is issued by the court orderly, he was the court orderly and he definitely did not do so. The Appellant also put it to the witness that his fingerprint was placed on a document whereafter he was released. The witness disputed this on the

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basis that no fingerprint is placed on a J6 form as it was not the procedure.

13. Ms ER McMaster, the caretaker of the Magistrate's Court building testified that on the morning of 21 August 2001 at approximately 05h50 she wanted to unlock the building when she found that the glass pane of the door in question had been broken. It appeared as though it had been kicked. Access to the door could be gained from the cells. There was a large enough opening for a person to be able to fit through. She identified the door on two photographs. The Regional Magistrate remarked that it appeared that the glass of the door was reinforced, could not break easily but had cracked, had been bent out of its frame which would allow a person to exit and was protruding outwards appearing as though pressure to it had been applied from the inside causing the reinforced glass to collapse to the outside. She could not say what it had cost to prepare the glass of the door. She unlocked the building in the morning whereas the security locked it in the afternoon. She was not on duty on 20 August 2001. According to a report made to her the door had not been found to be broken on that morning.

14. The Appellant did not question the witness.

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15. Sergeant P Mpela testified that he assisted with the investigation of the charge against the Appellant for having escaped from custody. As a result of information received he on 23 August 2001 at 04hOO arrested the Appellant who had been sleeping in a house. He knocked on the door and announced that it was the police. No one opened the door whereafter it was kicked open and the Appellant was arrested.

16. It was put to the witness by the Appellant that he had opened the door which was disputed because he had to kick the door open.

17. The Appellant's evidence was that he was arrested at a stop where he was waiting for a taxi. He also stated that a security guard had arrested him. The latter then took him to the filling station whereafter the police arrived and took him to the police station. He later conceded that it could have been a police officer. After a couple of days he was taken to court and the matter was postponed to another date. He had to remain in custody unless he paid bail of R1,000. He was taken down to the holding cells and at a later stage certain persons' names were called out. His name was also called out. He was released and told to appear at court the next day. He went home and returned to court the next day, but his name was never called out. He later asked a member of the police what was going on. His details were taken and he was advised that the matter would be investigated. At approximately 14hOO he

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returned home. Two days later he was arrested for having escaped from the court building, but denied that he had done so. He wanted to explain, but he was assaulted. He denied having damaged the door and that he had broken into the shop.

18. During cross-examination it transpired that the stop he was talking about was a bus stop some 40 to 50 meters away from the filling station on the opposite side of the road. The person who had released him and told him to return the next day, was the orderly, Colode. He could not explain why he had not put it to Colode that he had released him and told him to return the next day, but only stated that he was the person that advised him that he could go, that he had to be back the following morning, but that he had not seen him there the following day. He confirmed that the Magistrate had advised him that he had to remain in custody if he did not pay bail and that he had in fact not paid bail. He confirmed having been in the company of a girlfriend, but had only known her for a short while. He also stated that after his arrest Hanford took him to the filling station and told him that he had broken into the shop. Hanford took him inside the shop and walked around with him in the shop looking for other persons and also asked whether the Appellant had been alone whereafter they left the shop. When the police arrived they were standing outside the shop. The Appellant declined to call his girlfriend as a witness.

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19. The breaking into the shop and the theft of goods was clearly proven.

The remaining question is whether the Appellant was arrested inside the shop or not. Hanford testified that he had arrested the Appellant inside the shop. The Appellant stated that he was at a bus stop, 40 to 50 metres away. The Regional Magistrate, in my view, quite correctly held that the Appellant's version was improbable. Why arrest the Appellant some 40 to 50 metres away from the shop where the break-in occurred and then take him back to the shop and then accuse him of having broken into it. Also, why would he arrest the Appellant for breaking into the shop and then take him into the shop? If the Appellant's version is to be accepted then it presupposes that Hanford had already searched the premises and found the perpetrator - hence his search for a perpetrator outside the building and the Appellant's arrest. Why then return to the shop and look for other perpetrators knowing that he would find no-one

there?

20. The Appellant also contradicted himself. He put it to Hanford that he was taken inside the shop to create the impression that he had been arrested inside and also put it that they were inside when the police arrived. He, however, testified that when the police arrived they were outside the shop.

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21. I agree with the Regional Magistrate that the version of Hanford is to be preferred above that of the Appellant and that he correctly rejected the appellant's version that he was arrested at a bus stop. Hanford was a single witness and the Regional Magistrate took this into account. The fact that Hanford had found boxes of goods in front of the shop and that the owner, Swiegers, testified that there was a large empty box with goods in the driveway in my view does not detract from Hanford's evidence. Hanford's evidence was clear and satisfactory in every respect. The Appellant was therefore correctly convicted of housebreaking with the intent to steal and theft.

22. It was common cause that the Appellant had been arrested, that he had been detained and in custody, that the matter had been postponed by the Court and that a warrant for his detention had been issued, that he had to remain in custody if he did not pay bail and that he was arrested at his house two days after he is alleged to have escaped from custody.

23. The question therefore arises whether he escaped from custody.

24. His version was that he did not hide and he did not damage the door in order to escape from the building but was called together with others, released and told to return the following day. The version that he was released and told to return the following day, does not correspond with

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the procedure that is followed. Had that been the case, the Appellant's fingerprint would not have been taken. Colode would have made out a warrant for his release. He in fact made out a warrant for the Appellant's detention. They established that he was missing which would not have been the case if a warrant for his release had been issued. Regard being had to the evidence, only those people's names in respect of whom a J6 form had been made out, would have been called out and would have been set free. Colode would have done so but according to him the Appellant went missing and could not be found.

25. The door leading to the outside of the building was found to have been damaged early the next morning by someone who exerted force to the inside of the door which caused the glass to collapse towards the outside. Access to the door could be gained from the cells. The appellant had disappeared from the cells well knowing that he had to remain in custody unless he paid bail.

26. The probabilities and the circumstantial evidence clearly did not favour the Appellant's version.

27. In my view the Regional Magistrate correctly convicted the Appellant of escaping from custody.

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28. It is mere speculation that the Appellant hid inside the building until he exited the building at night by damaging the glass door. There was no evidence that when the Appellant disappeared or that when the building was locked for the night the door had not yet been damaged. In fact, the evidence was that it was securities task to lock the building. The evidence regarding the damage to the door is circumstantial. The inference may be drawn that the Appellant hid himself in the building whereafter he exited the building by damaging the glass door. This is however not the only reasonable inference that can be drawn from the proven facts. He may just as well after his escape have exited the building by leaving it through the main door.

29. I am therefore of the view that the count of malicious injury to property was not proven and that the Regional Magistrate was wrong in convicting the Appellant on count 3. However even if the only inference to be drawn is that it was the Appellant who damaged the door, it is my view that the Regional Magistrate was wrong in holding that the damage he inflicted to the door was sufficiently removed from his escape from custody in order to constitute a substantive crime and that no splitting of charges occurred. Although the escape and the damage inflicted to the door constituted two distinct actions on the Appellant's part, it has not been shown by the Respondent that those actions did not take place with the single or predominant intention on the part of the Appellant of

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escaping from custody. Mr Kruger representing the Respondent quite correctly conceded that a splitting of charges had in the circumstances occurred and that the Appellant should not have been convicted on count 3. The conviction of malicious injury to property and the sentence imposed in respect thereof should accordingly be set aside.

30. It was argued on behalf of the Appellant that the combined effect of the sentences imposed was startlingly inappropriate and that a shorter sentence should have been imposed coupled with a suspended sentence or community service. The Regional Magistrate considered the relevant factors regarding the imposition of an appropriate sentence on each of counts 1 and 2. It cannot be said that the Regional Magistrate misdirected himself in this regard, which sentences are not startlingly inappropriate. The crimes committed by the Appellant are serious and no reasons exist why any part thereof should be suspended or corrective supervision be imposed. In my view the sentences imposed by the Regional Magistrate on counts 1 and 2 are in order.

31. The appeal against the convictions and sentences on counts 1 and 2 are dismissed. The appeal against the conviction and sentence on count 3 succeeds and the conviction and sentence on count 3 is set aside.

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I agree.

J H DREYER

Acting Judge of the High Court

M A BADENHORST

Acting Judge of the High Court

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