NDOU J: The
appellant was convicted by a Beitbridge Magistrate of theft of stock as defined
in section 114(2)(a)(i) of the Criminal Law [Codification and Reform] Act
[Chapter 9:23]. The appellant is alleged
to have stolen 19 bovine beasts and drove them to the homestead of Tomani Dube
where they were sold. The appellant was
sentenced to 25 years imprisonment. The
appellant protests both conviction and sentence in this appeal. During the
trial, he pleaded not guilty to the charge.
His defence being that he had been hired to simply drive the cattle to
the place of sale. There he did not take
part in sale of the beasts but received payment for services. After a trial in which two state witnesses
were called, the appellant was convicted of the charge and sentenced.
The first witness was Watson Dube,
the Kraal head at Mazondo Tshipise area.
He said that he knew the appellant by sight. Towards the end of January 2008 the appellant
arrived at his homestead in the company of one Sheperd. They arrived around sunset. They had nineteen (19) beasts. They asked for a place to put up for the
night. He asked them about the beasts
before he offered them a place to sleep.
The appellant told him that the beasts belong to him. The beasts did not have brand marks. The
cattle were penned in his cattle pen. He
gave them somewhere to sleep. The
following day they left at 8am. He asked
them where they were heading to. Once
more it was the appellant who respondent and said they were going to look for a
buyer at Tomani's homestead. He followed
them to Tomani's homestead out of curiosity and also he haboured suspicion that
the beasts belonged to the appellant as he had claimed. Further the appellant and Sheperd had
promised to give him ZAR100 at Tomani's homestead.
Tomani was present together with his
wife when he arrived. He told Tomani
that the appellant and Sheperd were looking for a buyer for their cattle. Tomani informed them that there was a man
from Mozambique who was interested. The
cattle were penned in Tomani's cattle pen pending the arrival of the
buyer. The man from Mozambique
arrived. Tomani, appellant and Shepherd
entered the cattle pen. The Mozambican
man bought fifteen (15) beasts leaving four (4) from the lot the appellant and
Sheperd had brought along. The witness
did not hear the exact purchase price but he heard the buyer say he had
sufficient money for the fifteen (15) beasts and promised to return with more
money for the remaining four (4) beasts.
He saw the buyer hand over money denominated in South African Rand to
the appellant. The appellant was given a
lot of ZAR100 as the purchase price for the fifteen (15) beasts. Tomani and Sheperd watched this transaction
as well. The witness was adamant that it
was the appellant who negotiated the sale of the beasts with the man from
Mozambique. The appellant left the four
beasts that were not bought at his (witness's) homestead. The appellant later came for them. He said the appellant informed him that he
had asked Sheperd to assist him drive the cattle. He said the appellant never told him that he
had been hired to drive the beasts on behalf of someone. This testimony was found to be credible by
the trial court. Such finding of facts
is the province of the trial court and we have no legal basis to upset this
finding.
This credible testimony evinces that
the appellant claimed ownership of the stolen beasts. He was prime negotiator in the sale of the
beasts. He received the purchase price. He made the necessary arrangements for the
temporary custody of the remaining beasts.
He later collected the four beasts.
The appellant was shown by the evidence of this witness to have played a
prominent role in the transaction involving these stolen cattle. His testimony was corroborated by that of the
second witness Tomani Dube. The latter
witness was also found to be credible.
The appellant, who is a frequent person at cattle sales, drove these
cattle without any form of cattle movement documents. The credible evidence established that the
appellant drove these beasts without any form of documentation. He sold these beasts without any
documentation. He sold the cattle with
no brand marks. The appellant was the
recipient of purchase price. He also
collected the four beasts that were not bought.
The credible evidence has established all the essential elements of the
offence created by section 114(2)(a)(i), supra. His conviction cannot be faulted.
On the question of sentence there is
no doubt that appellant's conduct is very serious. He stole a total of nineteen beasts. He sold fifteen to a Mozambican national who
obviously took them to his country.
Offences of this kind are prevalent in border areas like the one where
this offence occurred. Such
international cross border crimes are regarded as very serious. However, the trial magistrate misdirected
himself by imposing the maximum term of imprisonment in the enabling
statute. The respondent has conceded
this error and has suggested that we interfere with the sentence imposed by the
trial court. There is merit in this
concession.
Accordingly the appeal against
conviction is dismissed. The appeal
against sentence is partially successful and the sentence of 25 year
imprisonment imposed by the trial magistrate is set aside and substituted by
one of 15 years imprisonment.
Cheda
J ………………………………………..I agree
Samp Mlaudzi & Partners, appellant's legal practitioners
Criminal Division, Attorney General's Office,
respondent's legal practitioners
