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In Mosotho and Another v S (GP) (unreported case no A373/16 GP, 18-9-2017) (Mokoena AJ, Mudau J) the court at para 31 referred to S v Parrow 1973 (1) SA 603 (A), where the Supreme Court of Appeal (SCA) stated the following ‘I pause here to refer briefly to the so-called doctrine of recent possession of stolen property.’ The Oxford Dictionary defines ‘doctrine’ as a ‘principle widely followed in the field of law’. If the ‘doctrine of recent possession’ is not a real doctrine, what is it then?
This ‘doctrine’ permits the court to make certain inferences. In S v Mothwa 2016 (2) SACR 489 (SCA) the SCA answered this question at para 8 where it held that: ‘The doctrine of recent possession permits the court to make the inference that the possessor of the property had knowledge that the property was obtained in the commission of an offence and in certain instances was also a party to the initial offence.’ Simply put: ‘The doctrine is simply a common-sense observation on the proof of facts by inference’ as was held at para 17 in S v Mohlomi Pii (FB) (unreported case no 57/2013, 5-12-2013) (Daffue J).
In Ntsala v S (FB) (unreported case no A166/2020, 4-10-2021) (Opperman J, Page AJ) at para 11 the court held that the appellant’s involvement in the theft was ‘solely based on circumstantial evidence. To adjudicate circumstantial evidence the court must rely on inferences’. The two cardinal rules that were laid down by R v Blom 1939 AD 188 were the following:
In Sijadu v S (ECG) (unreported CA&R 84/2013, 30-1-2013) (Hartle J) at para 14 the court held that: ‘The doctrine of recent possession is based on an inference being drawn that the possessor of recently stolen property stole the property.’ The SCA in Mothwa at para 8 gave three requirements that must be met before such an inference can be drawn, namely:
In Mohlomi the court referred to S v Mavinini 2009 (1) SACR 523 (SCA) and summarised the Mavinini judgment at para 19 as follows: ‘The essence of this judgment [Mavinini] is that the person in respect of whom the doctrine is sought to be applied does not have to be found in actual possession and thus caught red-handed.’ The court held that the doctrine of recent possession applies ‘if the person is seen in possession of the stolen item soon after the crime, but gets rid thereof thereafter and before being apprehended … .’ Even though the accused was not found in actual possession of the property the court in Mavinini at para 27 concluded that: ‘In my view that level of certainty exists about the appellant’s guilt.’ In S v Cassiem 2001 (1) SACR 489 (SCA) at para 8 that ‘knowledge of the theft need not be proved by direct evidence’, the knowledge ‘can be inferred from the facts and circumstances of the case.’
To determine whether property was recently stolen the court in Mothwa referred to S v Skweyiya 1984 (4) SA 712 (A) at para 8 where the court held that: ‘When considering whether to draw such an inference, the court must have regard to factors such as the length of time that passed between the possession and the actual offence, the rareness of the property, and the readiness with which the property can or is likely to pass to another person.’ No precise amount of time can be laid down in order to determine what would constitute as recently stolen but will depend on ‘the circumstances, particularly the nature of the goods’ as was held at para 18 in Sijadu.
In Mothwa at para 10 the court held that: ‘Courts have repeatedly emphasised that the doctrine of recent possession must not be used to undermine the onus of proof which always remains with the state. It is not for the accused to rebut an inference of guilt by providing an explanation. All that the law requires is that, having been found in possession of property that has been recently stolen, he gives the court a reasonable explanation for such possession.’ The court in Nkosi and Another v S (WCC) (unreported case no A260/2021, 19-4-22) (Binns-Ward, Wille JJ) at para 17 held that the explanation for his possession of the stolen property ‘may be given at any time, including during trial.’ In Zwane and Another v S (SCA) (unreported case no 426/13, 27-11-2013) (Majiedt, Mthiyane, Cachalia, Malan, Tshiqi JJA) at para 12 the court held that: ‘It is trite that, while the false evidence or false denial of an accused person is of importance in relation to the drawing of conclusions and a finding of guilt …’, the court also recognised that people ‘lie for a myriad of reasons’. The court held that: ‘In my view the false explanation proffered by the first appellant, absent any other incriminating evidence, is not adequate proof of his complicity in the robbery.’ However, what is important is when an explanation is given by the accused for his possession of the stolen property, the state must produce ‘adequate proof’ that will stand up and counter the accused’s explanation. The court held at para 13 that ‘the state bore the onus and failed to procure evidence which may have gainsaid this explanation if indeed it was untrue.’ Knowing that the accused is lying or relying on the fact that the accused is lying in his explanation without producing adequate proof to the contrary will not discharge the state’s case of proving the accused’s guilt beyond a reasonable doubt and the accused may still be acquitted. The courts are bound to take the evidence in its totality to determine whether the accused is guilty or not.
In Sijadu at para 22 the accused denied having knowledge that the vehicle was stolen. The court held that ‘this denial is awkward and improbable against the facts found proven’ and that the ‘possibility of their innocent possession entirely loses its force against the backdrop of the totality of the facts accepted’. One aspect of the trial cannot stand in isolation and must be taken as a whole when considering the guilt of an accused in a matter involving recent possession. If the corroborating witness for the defense testifies to the satisfaction or partial satisfaction of the court the court cannot take that evidence and on its own and finds for the accused, that evidence must be taken as whole and in the totality of all the other pieces of evidence before the court.
The court in S v Tshabalala (FB) (unreported case no 160/2012, 8-11-2012) (Kruger J, Daffue J) at para 17 held that: ‘The test in determining whether the accused has given a satisfactory explanation is subjective and it therefore does not matter whether the accused’s belief was unreasonable’. At para 7 the court held that the accused explanation will be ‘satisfactory if it is reasonably possible and shows that he bona fide believed that his possession was innocent with reference to the purposes of the Act, namely the prevention of theft’. The test does not refer to the true state of affairs but centers around what the accused, while being in possession of the stolen property, believed the state of affairs was. In Nkosi at para 17 it was held that the explanation is ‘vital in the adjudication of matters that involve circumstantial evidence, recent possession, and theft as a continuing crime.’ The court held that an explanation will be ‘“satisfactory” if it is reasonably possible or shows a bona fide belief of innocence.’ The court held that: ‘The test is one of dishonesty and not one of negligence.’
The court in Cassiem at para 8 held that ‘theft is a “continuing crime”’, meaning that the theft continues as long as the stolen property is in the possession of the original thief, someone who acts on his behalf (by hiding the stolen property), or someone who acts in the interest of the original thief (by selling the stolen property). All involved are guilty of theft. At para 9 the court held that the stolen clothing was all new and neither the accused nor her husband who is a gardener could afford the clothing amounting to R 59 832,52 that was found in her home from Woolworths, Edgars and Foschini. After concluding that the property was indeed stolen, the court held at para 9 that: ‘Theft, being a continuous offence, it made no difference that the goods may not have been removed from the branches of the respective complainants or that the appellant was not involved in the original removal … of the goods. Her subsequent participation in disposing of them makes her just as guilty as the original thief.’ The court has to determine whether the accused was aware that the clothing was indeed stolen. In this instance the accused first indicated to the police that she lived with her daughter-in-law, after investigating that, it was found to be false. When the police eventually got to the accused’s home she was reluctant to let them in. She gave different versions of how she acquired the clothing. As mentioned above, inference that the accused had knowledge of whether the property was stolen, can be made from the circumstances of the case. The SCA was satisfied that on the totality of the evidence and the circumstances that the accused knew that the clothing was stolen.
In Cassiem at para 9 counsel for the defense argued that there was no ‘identifiable complainant’ because the different stores could not prove the loss at any of their branches. That argument could not be sustained. The court held that the charge sheet was formulated such that it covered goods stolen from any of the branches. The court held that ‘it was clearly proved that the goods were stolen from the manufacturers or at the distribution points of the above mentioned stores.’ From this it is clear that it must be proven that the items were stolen and that will be inferred from the circumstances of the case and what proof there is to make such an inference. No direct ownership and loss could be proved in relation to where the stolen items actually came from, the court drew the inference that if no shop reported a loss, then it could have come from the manufacturer or the distribution points.
The court in Nkosi at para 20 held that ‘… the circumstantial evidence, ultimately depends on the facts that are proved by the direct evidence.’ At para 23 the court referred to R v Mlambo 1957 (4) SA 727 (A) where the SCA held that: ‘In my opinion, there is no obligation upon the Crown [the State] to close every avenue of escape which may be said to be open to an accused.’ The inference that sought to be drawn will be dependent on the facts before the court and the court will make the necessary inference to ultimately decide whether the state has discharged the onus of proving the accused person’s guilt beyond a reasonable doubt.
Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in Upington.
This article was first published in De Rebus in 2024 (Sept) DR 22.
