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S v Moncho and Others (181/04)  ZANWHC 34 (25 October 2004)
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IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
CA NO.: 181/04
In the matter between:
MOTHUSENG MATHEWS MONCHO
 This is a review of case A290/04 referred in terms of section 304 of Act 51 of 1977 emanating from the Magisterial District of Taung. This case was heard before Magistrate T J Ngakane.
 The three accused were charged with housebreaking with intent to steal and theft. On 20 September 2004 the accused were convicted of theft and each sentenced to 2 (two) years imprisonment. When the matter was submitted for review, Mogagabe AJ advised the learned Magistrate that the evidence tendered at the trial did not sustain or proved a conviction of the offence of housebreaking with intent to steal or theft. He enquired why since the accused were found in possession of the items stolen from the complainant’s house, were they not found guilty of contravening section 36 of the General Law Amendment Act 62 of 1965.
 In respect of sentence the Learned Magistrate was asked (a) whether direct imprisonment was the only appropriate sentence in the circumstances; (b) whether the Magistrate took into account the following factors; (i) that accused no 2 and 3, were 21 and 19 years old respectively; (ii) that all the accused are first offenders (iii) that the value of the property found was R7 000.00, that some was recovered in the possession of the accused.
 The Learned Magistrate persists that the conviction was correct. Regarding sentence the Learned Magistrate concedes that a sentence of imprisonment with an option of a fine would be an appropriate sentence.
 The evidence proves that the housebreaking occurred on 12 May 2004. The perpetrators were not identified by the State witnesses. The evidence adduced is that four persons were seen entering the complainant’s house. Goods were removed from the house. The perpetrators left the scene, no one saw them leave nor could anyone identify them.
On 21 May 2004 accused no. 1 was found in possession of some of the complainant’s stolen property. On 27 May 2004 accused no. 2 was found in possession of some of the complainant’s stolen property. In July 2004 accused no. 3 was found in possession of some of the stolen property of the complainant.
 The versions of the accused were correctly rejected. The Learned Magistrate misdirected himself in finding that the evidence proved housebreaking with intent to steal and theft. The evidence only proved contravention of section 36 of the General Law Amendment Act 62 of 1965 which is a competent verdict of housebreaking with intent to steal and theft.
 In the premises the conviction of theft is set aside and substituted with the following:
“The accused are found guilty of contravening section 36 of the General Law Amendment Act 62 OF 1965”.
 Pursuant to the fact that the accused are found guilty of a lesser offence, I am of the view that it is justifiable to re-consider sentence herein.
(a) accused no. 1 is 25 years old and a first offender;
(b) accused no. 2 is 21 years old and a first offender; and
(c) accused no. 3 is 19 years old and a first offender.
All accused are unemployed and are not married and have no dependants. The accused are not in a position to pay a fine. In the premises the sentence of two years imposed on all the accused is set aside and substituted with the following:
“The accused are sentenced to two (2) years imprisonment. One year is suspended for a period of five (5) years on condition that the accused are not found guilty and convicted of the offence of theft or contravening section 36 of the General Law Amendment Act no. 62 of 1965 during the period of suspension”.
R D MOKGOATLHENG
ACTING JUDGE OF THE HIGH COURT
A A LANDMAN
JUDGE OF THE HIGH COURT
DATED : 25 NOVEMBER 2004