South Africa: Free State High Court, Bloemfontein

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES

Of Interest to other Judges: YES

Circulate to Magistrates: NO

Case number: R18/2021

CORAM:                                       NAIDOO, J et REINDERS J

REVIEW JUDGMENT BY:           NAIDOO, J

DELIVERED ON:                          29 APRIL 2021

[1]        This matter came before us in terms of section 304(4) of the Criminal Procedure Act 51 of 1977 (CPA), as a result of routine checks on finalised matters by the Acting Senior Magistrate. The latter was of the view that the accused’s statement in terms of section 112 (2) of the Criminal Procedure Act 51 of 1977 (CPA) did not contain admissions of all the elements of the offence with which he was charged. This court was, consequently, requested to review the matter in terms of section 304(4) of the CPA.

[2]        The accused was charged with one count of Housebreaking with Intent to Steal and Theft, the allegation being that he unlawfully and with intent to steal, broke open and entered the house of the complainant and stole two speakers. The accused was represented and pleaded guilty to the charge. His legal representative prepared a statement in terms of section 112 of the CPA, which was signed by the accused, and the contents of the statement were confirmed by the accused. The accused’s version, as contained in the section 112(2) statement, is that he went into the complainant’s and saw that the garage door was open. He walked into the garage and stole two speakers and a car battery charger cable. He left the premises in possession of these items. He admitted the intent to steal and that he was aware at the time that his actions were unlawful and punishable by law.  The speakers which were said to be valued at R2350.00 were later recovered.

[3]        The prosecutor advised the court that the section 112(1)(b) statement accorded with the state’s case and accepted the plea. The magistrate found him guilty as charged and sentenced him as follows:

“12 months direct imprisonment in terms of S 276(1)(b) of Act51/77 wholly suspended for 5 years on condition that the accused is not convicted of Housebreaking with Intent to steal and theft committed during the period of suspension. S103(1) Act 60/2000: No order is made.”

[4]        It is indeed clear that the accused’s version, as accepted by the state, did not accord with the elements of the offence of Housebreaking with Intent to Steal and Theft. The accused’s statement reveals that only the offence of theft was committed, and he ought to have been convicted of the offence of theft. It is well established in our law that gaining entry into premises through an open door does not constitute “breaking into” the premises. The accused’s personal circumstances were placed on record and taken into account by the magistrate. The stolen items, being the speakers were recovered. Although the accused indicated that he also stole the charger cable, he was not charged with the theft of that item, nor is there any indication that the charger cable was recovered. I am of the view that the charger cable need not be taken into account.  In my view, the court misdirected itself with regard to the conviction and sentence in this matter, warranting the interference of this court, in order to ensure that the interests of justice are served.

[5]        The accused, therefore, ought to have been convicted of theft only. The resultant sentence would also have be tailored accordingly. In the circumstances, the following order is made:

5.1      The conviction on a charge of Housebreaking with Intent to Steal and Theft is set aside and substituted with the following:

            “The accused is found guilty of Theft”;

5.2      The sentence imposed by the court in this matter is set aside and substituted with the following:

            “The accused is sentenced to pay a fine of One Thousand Rand (R1000.00) or, in failure thereof, to Ninety (90) days’ imprisonment, which is wholly suspended for three years, on condition that the accused  is not convicted of theft, committed during the period of suspension.”

5.3      No order is made in terms of section 103(1) of Act 60 of 2000

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S NAIDOO J

I concur

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C REINDERS J