HIGH COURT CRIMINAL APPEAL NO. 107 OF 2005
In the matter between:
TINA LOSO
APPLICANT
and
THE STATE
RESPONDENT
Applicant in person
Mr Attorney D. Nkau for the Respondent
J U D G M E N T
________________________________________________________________________
ZIETSMAN J.A
The Applicant was convicted in the Magistrates Court on two counts of store breaking and theft. He was sentenced to three years imprisonment
on each count. The sentences were ordered to run concurrently, but consecutive to a sentence which the Applicant was already serving
for a different offence.
An appeal by the Applicant to the High Court and an application in the High Court for leave to appeal to this Court failed. Applicant
now seeks leave to appeal from this court.
It was proved at the trial that a storeroom was broken into some time between 31 March 2003 and 9 April 2003 and that a battery charger,
a compressor and a welding machine were stolen from the storeroom.
It was also proved on a different count that a storeroom at the same premises was broken into on 11 August 2003 and that a singer
sewing machine and several metres of cloth were stolen from the storeroom.
The Applicant was proved to have been in possession of some of the stolen articles which he pawned at various pawn shops.
The applicant did not give evidence under oath. In an unsworn statement he alleged that the goods which he pawned had been given to
him by two different people, namely THABO MATHOSA and ERNEST with the request that he pawn the goods for them. The Applicant also called two witnesses to support his allegations. The persons
referred to, namely THABO MATHOSA AND ERNEST could not be found. The Magistrate rejected the Applicant’s statements and the evidence of his two witnesses, and found the
Applicant guilty as charged.
Applicant now seeks leave to appeal to the Court of Appeal. He does not dispute the factual findings of the magistrate. He raised
two points. In the first place he submits that the charge sheet is defective. The charge sheet in respect of the two counts of store
breaking and theft is drafted in terms of section 302(a) of the Penal Code. The Applicant submits that store breaking should be regarded
as one offence, and theft as a different offence. He submits that the charge sheet should have mentioned the two offences separately.
Section 302(a) is a long section. The relevant part thereof reads as follows:
“Any person who breaks and enters a store and commits therein any offence punishable under this Code with death or with imprisonment
for a term of three years or more is guilty of an offence.”
In other words this section provides that when a person breaks into a store and steals articles from the store it is one offence.
I am satisfied that there is no reasonable prospect that the Court of Appeal will find that the charge sheet is in any way defective.
The other point raised by the Applicant is his application that the sentence should be backdated, or as he states in his grounds of
appeal, that the sentences should run concurrently. When the Applicant was convicted and sentenced for the present offence he was
already serving a prison sentence for the offence of robbery. The Magistrate ordered that the sentences should be served consecutively.
Sentencing is in the discretion of the trial court and the Court of Appeal will not intervene with the sentence unless the sentence
is severely inappropriate. The robbery is not in any way connected with the offences presently under discussion, and it cannot be
said that the Magistrate was unreasonable in ordering that the 3 years sentence for the present offences should be served consecutively
to the sentence for the robbery.
My conclusion is that there are no reasonable prospects of success in an appeal to the Court of Appeal and the Applicant’s application
is accordingly dismissed.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 7TH DAY OF JANUARY 2008.
_________________________
N. W. ZIETSMAN
[JUDGE OF APPEAL]
.RTF of original document