The
facts of the matter are that the accused person was employed as a shopkeeper at
Durban Mine Business Centre. She received stock for trade. On the 17th
of January 2014, a stocktake was conducted by the accused's superiors in the
accused's absence and stock amounting to $1,026= could not be accounted
for. It was alleged that the accused was the sole custodian of the keys to
the shop and therefore was solely responsible for the general deficiency in
stock, or, alternatively, that she failed to account for the inadequacy in the
stock.
The
accused person's defence was that she could not be held to be solely
responsible for the deficiency as she was not the sole person that dealt with
the stock at the shop. The accused person alleged, in her defence, that
the shop owner's wife and some trainees would also access the shop and sell
stock therein. The first State witness, Sanelisiwe Masibi, upon being
asked by the prosecutor that in fact the accused stated that she could not be
solely responsible for the shortfall as the complainant's wife and some trainees
were also handling stock, she responded thus:
“It
is not true the complainant's wife would cause everything she took from the
shop to be recorded and trainees are under her supervision.”
This
is the same witness who stated that she was not involved in the day to day
occurrences at the shop but only come in to balance books as there was a
shortfall. How then can she exonerate the complainant's wife and the
trainees in this manner?
The
shop-owner himself, one Mark Harold Ncube, also gave evidence, and upon being
asked of the accused's assertion that she could not to held solely liable for
the shortfall as his wife and trainees also handled stock in the shop he
responded thus:-
“Accused
is solely in charge of stock. Anyone handling stock in the shop did so with her
permission. That is the golden rule of the company.”
This
answer is clearly skirting the issue of the complainant's wife possibly having
created the shortfall; for it is difficult to envisage a situation whereby the
complainant's wife, being the boss of the accused person, would do everything
she did in the shop under the accused's authority. As long as the
complainant's wife did interfere with stock and had trainees under her
supervision in the same shop that the accused was manning it becomes difficult
to find that the accused was in control of such a situation and therefore
solely responsible for deficiencies in stock.
The
trial magistrate, in her ruling, found that the accused's assertion that some
people would sometimes assist in the shop and hence she could not be held
responsible for the deficiency, to be an unproven fact.
One
wonders on what basis since the evidence of the State witnesses that I have
quoted above clearly shows that the complainant's wife and the trainees would
sometimes deal with the stock although both witnesses sought to put the blame
for the deficiency solely on the accused person.
The
question that follows therefore is; can the accused person be held to be solely
responsible for the shortfall in these circumstances?
General
deficiency, or failure to account for property in one's custody, in my view,
can only be satisfied where clearly the accused person cannot point fingers at
a third party. In these circumstances, where the complainant's wife and some
trainees also had access to the shop and the stock and would sell in the same
shop with the accused, it cannot be found that the accused person was solely
responsible for the shortfall beyond any reasonable doubt.
I
am unable to confirm this conviction for the aforestated reasons. I
accordingly order as follows:-
1)
The conviction is set aside.
