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[1998] ZASCA 46
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S v Shakane (385/97) [1998] ZASCA 46 (27 May 1998)
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Case No 385/97
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter of:
SESINYANA SHAKANE
and
THE STATE Respondant
CORAM : VAN HEERDEN, HEFER et SCOTT JJA HEARD : 21 MAY 1998 DELIVERED : 27 MAY 1998
JUDGEMENT
with each other and looking about the shop. At some stage she observed accused
No 3 hand to accused No 1 a handbag which she recognised as one which was
identical to those on sale in the shop. The latter placed a lipstick and certain other
small articles in the bag and the trio headed for the exit. She also overheard
accused No 3 saying let's get out' to her companions. Miss Mokoena summoned
a security officer, referred to in the evidence as 'Margaret', and the three accused
were apprehended outside the shop. According to Miss Mokoena the accused
refused to come back into the shop and Margaret was obliged to go and call the
manager, one 'Solly'. In the meantime, accused No 1 handed a set of keys to
accused No 3 who a short while later returned in a BMW motor car. Accused No
1 climbed in but by this time Solly had arrived and he pulled the keys out of the
ignition. The three accused were then taken back into the shop and accused No
5
1 into the kitchen where, according to Miss Mokoena, she was searched by
which she said had been found on accused No 1. The security officer, Margaret,
did not give evidence.
The version of the three accused as to what had happened was totally
different. They said that they had gone into the shop merely to look for accused
No 3's cousin. After observing that she was not there, they left. They said that the
handbag belonged to accused No 3 and that she had purchased it a few weeks
previously from someone in Mkhuthlu where she lived. They said that on the day
in question it was being used by accused No 1. They denied that accused No 3
had handed the bag to accused No 1 as alleged by Miss Mokoena. They also
denied that accused No 3 had gone to fetch the BMW motor car. They said that
not only had accused No 1 been searched but also accused No 2 and that this had
taken place in the storeroom where there were clothes packed on shelves and not
7 in the kitchen. Accused No 1 and accused No 2 denied that any clothes belonging.
to the shop had been found concealed on their person. In short, the defence was
that the entire State case was a fabrication.
Turning to the count of contravening s 36 of Act 62 of 1955, Sergeant
Rodney Ngobeni testified that shortly after arriving at the Smart Centre he spoke
to the three accused and in their presence searched a BMW motor car which had
been pointed out to him by accused No 3 who was in possession of the keys. In
the boot he found two video recorders, two compact disc players and a large
quantity of clothing including female underwear and trousers. All the items
appeared to him to be new. The initial response of the accused to his inquiry
regarding the items was that they belonged to another gentleman who was
'outside'. Sergeant Ngobeni saw no sign of this person and suspected that the
goods were stolen. He brought the three accused to the police station where he
8 again asked them for an explanation for the goods found in the motor car. This
time they said that they had purchased the clothing at a factory or factories in
Durban and the electronic equipment at an auction in that city. According to
Sergeant Ngobeni they were unable to produce a receipt for their purchases or
furnish the name of the factory or the auctioneer in question. In these
circumstances he continued to suspect that the goods had been stolen.
The accused in evidence did not deny that they were in possession of
the goods found in their presence by Sergeant Ngobeni in the boot of the car.
They said they had driven down to Durban where they had spent two weeks on
holiday and where they had purchased the goods in question with the object of
reselling them at a profit. The clothing, they said, had been purchased at a factory,
or factory shops - the evidence is not entirely clear - and the electronic equipment
they had purchased at an auction sale. They testified that they had not been taken
9 directly from the Smart Centre to the police station but that en route the police had
turned off into the bush where they had been assaulted. They said that they had
been asked to give an explanation for the goods found in the car while they were
in the bush and not at the police station. They referred the police to receipts in the
cubbyhole of the car and these were removed by the police. The allegations '
regarding the trip to the bush and the furnishing of the police with receipts were
not put to Sergeant Ngobeni in cross-examanation. As in the case of the theft
charge, the defence on the statutory charge was similarly that their alleged failure
to furnish receipts for their purchases was a total fabrication.
was found concealed on accused No 1's person when she was searched. Miss
Mokoena testified that the search was conducted by Margaret and Miss Matimela
charge. As to accused No l's gait, Miss Mokoena's observation and conclusion.
by the very nature of things involved a high degree of subjectivity and were far
from conclusive. It is significant that Miss Mokoena's evidence on this aspect
was not confirmed by Miss Matimela. The evidence that Margaret emerged either
from the kitchen or the storeroom carrying the clothing in question does not justify ,
the inference that she necessarily found it concealed on the person of accused No
1 or accused No 2. This is particularly so in the light of the denial by the accused
and the failure on the part of the State to explain why Margaret was not called as
a witness. It follows that in my view the State failed to prove the theft of the
clothing.
no label attached to it and contained no packing. No attempt was made by the
State to explain this. Miss Matimela conceded in cross-examination that on the
day in question she had expressed some doubt as to whether the bag was new or
not. She would hardly have done so had it been filled with packing and had a
Smart Centre label been attached to it. No evidence was adduced by the State as
to whether the Smart Centre was the sole retailer of bags of that kind, nor for that
matter was any other evidence produced which would have resolved the issue.
In my view the State failed to discharge the burden upon it and the accused were
entitled to an acquittal on the theft charge.
13 police station they had been taken by Sergeant Ngobeni and other policemen into
opposed to being 'in possession'. On the facts of the present case it is unnecessary
label attached to them. He first suspected they were stolen when the accused said ;
16 appellants at the trial was satisfactory and that the magistrate erred in rejecting it
as false. In his judgment the magistrate in a somewhat ambiguous passage appears
to have drawn an adverse inference against the accused for declining to make a
statement indicating the basis of their defence at the commencement of the trial
in terms of s 115 of the Criminal Procedure Act 51 of 1977. This was clearly a
misdirection. Nonetheless, I am satisfied that the rejection of the explanation
offered by the accused in their evidence was fully justified.
their explanation was riddled with improbabilities. Accused No 1 testified that she
and her co-accused had spent two weeks in Durban when purchasing the clothing
and equipment. This was shortly before their arrest. While in Durban they had
stayed, she said, at a beachfront hotel. However, in cross-examination she was
17 unable to state the name of the hotel. She could also not recall at which factories
the clothing had been purchased, nor could she say where in Durban the auction
had been held. She also had no idea what their accommodation had cost them,
nor could she remember the route they had taken on returning from Durban.
which they had allegedly stayed. But she, in turn, had no idea what they had paid
for the clothing and equipment, and yet the purchases were said to have been made
with a view to reselling the goods at a profit. Accused No 3 said they had spent
some nights in a township while in Durban but was unable to gave the name of the
township.
See Du Plessis and Others v De Klerk and Another [1996] ZACC 10; 1996 (3) SA 850 (cc).)
-Concur
HEFER JA