Background
The
appellant is a maternal aunt to the complainant. On the 26th
July 2009, the complainant and her husband requested the appellant to procure
for them 6 beasts. The beasts were in respect of lobola payment for the
complainant. The appellant also acted as go-between in this
marriage. The appellant agreed to source the beasts and have them
delivered to the complainant's parents at Mtshabezi by not later than 31st
August 2009. The appellant engaged the co-accused, one Musa Masuku, who
said the beasts were available at Matopo. The appellant was, however,
taken to the Zenka area of Nkayi were she was shown 6 beasts. The appellant
informed the complainant that she had been shown the beasts in
question. On the strength of that assurance, the appellant received the
sum of R12,000= for 6 beasts and a further R3,000= for transportation. The
appellant then gave her co-accused a total of R8,000= and she withheld R4,000=
as a “thank you” for her efforts in securing the beasts. It would seem
that the facts clearly established that the appellant was herself a victim of
fraud perpetrated on her by her co-accused. She was made to believe that
the cattle existed. She acted on that misrepresentation. Of the 6
beasts, only 2 were delivered by the co-accused.
Mr
T. Hove, appearing
for the State, argued that the court did not err by convicting the appellant on
two counts of fraud. It was contended that when the appellant received the
sum of R10,000= for the cattle she indicated that they were available in the
Matopo area. The cattle were to be delivered at Mtshabezi, at the
complainant's homestead. It was argued, further, that the appellant later
changed her story and indicated to the complainant that she had found the
cattle in the Inyathi area and that she physically saw the cattle in question.
After
hearing argument from both counsels, it became clear that there was inadequate
evidence on the record to sustain the conviction and sentence. The learned
trial magistrate erred in failing to realize that the evidence did not
establish the guilt of the appellant beyond reasonable doubt. This so
because the mere fact that the conduct of the appellant raised suspicion did
not translate into proof of guilt. There is evidence on record to show the
appellant's valiant efforts to compel the delivery of the cattle. The appellant
made frantic efforts to enforce the sale and in that regard she made a report
at ZRP Nkayi and Magwegwe respectively against her co-accused. It cannot
be that the reports she made to the police were attempts to cover up for her
dishonesty. To the contrary, these reports show that the appellant had
absolutely nothing to hide by submitting the matter to the law enforcement authorities. Her
conduct is not consistent with a guilty mind. It is also important to
observe that before the appellant made payment to her co-accused, she insisted
on being shown the six beasts and it was only upon being shown the beasts that
she released the purchase price. When the appellant's co-accused attempted
to persuade her to collect two beasts instead of six she flatly refused.
In
convicting the appellant, the trial magistrate reasoned that the appellant's
hands were not clean because she retained for herself the sum of R4,000=. The
appellant explained that the R4,000= had been given to her by the “seller” as a
token of appreciation for finding them a buyer.
This
had nothing to do with the complainant, who had been charged and accepted the
figure of R2,000= per beast. It is my view that the payment of this
“commission” to the appellant was in itself not unlawful.
In
all the circumstances, the appellant raised a defence against the charges which
was not controverted by the State. The evidence led during the trial was
not sufficient to establish that the appellant and the co-accused acted in
common purpose and set out to defraud the complainant.
In
his response to the Notice of Appeal, the trial magistrate stood by his
findings and indicated that in his view the accused persons were acting in
common purpose hence the equal sharing of the “spoils”.
I
cannot agree that the evidence established any common purpose at all.
I
am aware of what the approach is with regard to an appeal court's interference
with a trial court's findings on credibility. In the case of George Parkin v Guardian Security
Services (Pvt) Ltd SC130-99, EBRAIN JA stated…, as follows:
“It
is true that an appellate court is reluctant to interfere with the findings of
credibility of a trial court unless the reasons given for accepting certain
evidence may be unsatisfactory - Hoffman and Zeffert – The South African Law
of Evidence 4th Edition page 484. The probabilities are
important in assessing credibility.”
In
casu, the
magistrate's reasons are not supported by both the law and the evidence. I
have explained that the appellant's defence remained uncontroverted and for
that reason she was entitled to an acquittal.
In
the result, we allowed the appeal and set aside the conviction and sentence.
