Theft — Sentence — Theft by attorney of trust moneys — Fifty-year-old attorney convicted of stealing R50 000 payment from Road Accident Fund — Having been struck off roll of attorneys before commencement of trial — Court noting prevalence of offence but upholding sentence of 30 months’ imprisonment on appeal.

S v MACHEKA 2020 (1) SACR 189 (FB)

Theft — Sentence — Theft by attorney of trust moneys — Fifty-year-old attorney convicted of stealing R50 000 payment from Road Accident Fund — Having been struck off roll of attorneys before commencement of trial — Court noting prevalence of offence but upholding sentence of 30 months’ imprisonment on appeal.

 

The appellant, a 50-year-old attorney, was convicted in a magistrates’ court of theft of money from his trust account in an amount of R49 702 that was due to the victim of a road accident. He was sentenced to 30 months’ imprisonment. The appellant had been struck off the roll of attorneys before the trial. The court dismissed the appeal against the conviction, holding that the trial court had correctly found the appellant to be an untruthful witness and had rejected his version as false beyond reasonable doubt. In respect of sentence it was contended for the appellant that a sentence of correctional supervision would be more appropriate, as the appellant had already been punished by having been struck off the roll of attorneys. He had also been diagnosed with diabetes, high blood pressure and tuberculosis. His spouse was sick and had been diagnosed with cancer, but this information had not been substantiated with any evidence or the production of any medical certificate. The respondent contended that the theft of trust funds was a serious offence and that the 30 months’ custodial sentence was actually too lenient.

Held, that the court had properly taken into account the prevalence of this particular type of offence and noted that the Attorneys Fidelity Fund had paid out huge amounts to the public, that had been lost by members of the profession. It could be accepted that the appellant’s deed was motivated by greed and not need, and his lack of remorse for his actions impacted negatively on his chances of rehabilitation. There were no reasons to tamper with the sentence imposed by the trial court. (See [31] – [32].) The appeal was dismissed.

Theft — Proof of — Doctrine of recent possession — Nature of objects stolen relative to time lapse from theft important

S v WITBOOI AND OTHERS 2018 (1) SACR 670 (ECG)

Theft — Proof of — Doctrine of recent possession — Nature of objects stolen relative to time lapse from theft important.

 

Evidence — Admissibility — Pointing-out — Pointing out in circumstances which would not have aided investigation of crime other than to obtain self-incriminating evidence — Tantamount to confession in guise of pointing-out.

 

In an appeal against convictions in a regional magistrates’ court for attempted murder and robbery with aggravating circumstances, it appeared that the convictions were based on the doctrine of recent possession; and, in the case of the third appellant, on the basis of certain pointings-out that he had made.

The first appellant was found in possession of a rifle 15 days after it had been taken from the victims of the robbery. The second appellant was found in possession of a briefcase, a revolver and pepper spray 16 days after they had been taken in the same robbery. Although the third appellant admitted that the contents of the pointing-out document had been correctly recorded, he testified that he had been assaulted and threatened with assault if he did not do the pointing-out. In his warning statement he had indicated that he was prepared to point out what he knew about the incident.

 

Held, as to the discovery of the rifle in the possession of the first appellant, that there were contradictions between the state witnesses as to the circumstances in which the rifle was found in a shack belonging to the first appellant. Although there was a great deal of suspicion concerning the first appellant’s involvement in the crime, that suspicion was insufficient to find that the state had proved his guilt beyond a reasonable doubt, and his appeal had to succeed. (See [41] – [42].) The appeal against the conviction was accordingly upheld.

 

Held, further, that, in the case of the revolver found in the possession of the second appellant, it was an item which could quickly be disposed of and the lapse of time between the crime, and the finding was not very short. However, the briefcase, which was described as being exceptional, was not something which would lend itself to quick disposal, and the lapse of time was therefore short. The appellant’s possession of the articles indicated that he must have acquired all of them at the same time and place, and his possession of them at different times and places suggested an intention to keep them for his own use. Furthermore, his explanation that he had picked them up on a railway line was grossly improbable. The magistrate had not erred in drawing the inference that he was one of the perpetrators of the crime. (See [44] – [45].) The appeal was dismissed in respect of the conviction.

Held, further, that the circumstances of the pointing-out suggested a willingness to provide information rather than do a pointing-out. By that time the police knew the details of the crimes and the first and second appellants were already implicated. A pointing-out would not have aided the investigation of the crimes, other than to obtain self-incriminating evidence from the third appellant. In the circumstances, the suggestion of a pointing-out did not make sense and was tantamount to a confession in the guise of a pointing-out. It was furthermore not proved that the pointing-out and subsequent confession were voluntary. The appeal against his conviction therefore had to succeed.

Theft — Proof of — Shopper forgetting to pay for item put into personal bag

S v MAKHALIMA 2018 (1) SACR 625 (ECG)

 

Theft — Proof of — Shopper forgetting to pay for item put into personal bag — Accused distracted by telephone call from spouse whilst at paypoint and putting item into said bag in order to distract child — Accused’s version reasonable and ought to have been given benefit of doubt.

 

The appellant was convicted in a magistrates’ court of theft. It was alleged that he had stolen a bottle of energy supplement from a shop where he had made some purchases. In his defence, the appellant testified that he went to the shop accompanied by his young child whom he put into a shopping trolley that was constructed to look like a vehicle. His child was in a separate compartment that gave him the illusion of driving the trolley. He selected the supplement from the shelf and put it into the trolley, at which point his child became excitable and wanted to taste it. In order to distract the child, he put the supplement into a green bag, which also contained his wallet and his car keys, and gave his child some chips instead. When he got to the paypoint he put his items on the counter, including the green bag, but was distracted by a telephone call from his wife. He paid for the other items but not the supplement, and was apprehended as he attempted to leave the shop.

The magistrate was of the view that he could not have forgotten about the supplement and should have taken other steps to distract his child, rather than put the supplement into his bag. She also reasoned that because he was holding the bag he should have felt the weight of the supplement.

 

Held, that the magistrate had resorted to speculative reasoning in rejecting the appellant’s evidence. It was not improbable that a parent would be distracted by a child and forget to pay for an item. There was no evidence, on behalf of the state, of the manner in which the appellant put the supplement into the bag, or what the child was doing when he did so. His version was also supported by evidence of the state that, when confronted outside the shop, he immediately said the supplement was in the bag and that he had forgotten to pay for it. This was a case where there was a reasonable doubt about the guilt of the accused, and the appellant should have had the benefit of that doubt.

Failure by VAT vendor to pay VAT collected over to commissioner not Theft

DIRECTOR OF PUBLIC PROSECUTIONS, WESTERN CAPE v PARKER 2015 (4) SA 28 (SCA)

Revenue — Value-added tax — Offences — Failure by VAT vendor to pay VAT collected over to commissioner — Whether misappropriation by VAT vendor of VAT collected on behalf of commissioner sustaining charge of common-law theft — Value – Added Tax Act 89 of 1991, ss 28(1)(b) and 58.

A VAT vendor who misappropriates an amount of VAT which it collected on behalf of the South African Revenue Service (Sars) cannot be charged with the common-law crime of theft.
This is because the Value-Added Tax Act 89 of 1991 is a scheme with its own directives, processes and penalties, and does not confer on the vendor the status of a trustee or a tax-collecting agent of Sars — the basis advanced for such misappropriation constituting theft. Instead, the Act creates a sui generis debtor – creditor relationship which entitles Sars to sue a non-paying vendor for payment and/or to have such vendor charged with s 58 offences which, significantly, does not include common-law theft.