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[2020] ZAWCHC 68
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Bam v S (A144/18) [2020] ZAWCHC 68; [2020] 4 All SA 21 (WCC); 2020 (2) SACR 584 (WCC) (20 July 2020)
Republic of South
Africa
IN THE HIGH COURT OF
SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
[REPORTABLE]
Case
no: A144/18
In
the matter between:
SONGEZO
BAM
Appellant
and
THE
STATE
Respondent
JUDGMENT DELIVERED
(VIA EMAIL) ON 20 JULY 2020
SHER, J (BOZALEK J
concurring):
1.
The appellant was arraigned before the
regional magistrate of Vredenburg on a charge of housebreaking with
intent to rob and robbery
with aggravating circumstances. It was
alleged that on 25 January 2016 he broke into the home of the
complainant in Vredenburg
and robbed him of an LG television set, a
Samsung cell phone and an amount of cash. The appellant pleaded not
guilty to the charge
and elected not to provide any plea explanation.
2.
The
State tendered the evidence of the complainant and the investigating
officer as well as 2 witnesses, one ‘Ballie’
and one
‘Shepherd’, who were implicated in the disposal of the
television set a day or two after the alleged robbery.
Both of them
were accordingly warned in terms of the provisions of s 204 of the
Criminal Procedure Act
[1]
(the
‘CPA’). Thereafter the appellant testified and called 2
witnesses to testify on his behalf. As was correctly pointed
out by
the magistrate their evidence was of little value.
3.
The
magistrate convicted the appellant as charged and imposed a sentence
of 7 years imprisonment in respect of the housebreaking.
He then
imposed a further 15 years in respect of the robbery. In terms of the
relevant provisions
[2]
of the
Criminal Law Amendment Act (the ‘CLAA’)
[3]
this is the discretionary minimum sentence which is applicable to a
first offender who is convicted of robbery with aggravating
circumstances
[4]
unless there
are substantial and compelling circumstances present,
[5]
and the magistrate was of the view that there were not. The basis on
which the magistrate imposed a ‘double’ sentence
was that
although the appellant had been convicted of a single charge, in his
view it comprised two separate offences ie housebreaking
and robbery.
4.
In order to ameliorate their cumulative
effect the magistrate directed that the sentence which was imposed in
respect of the housebreaking
was to run concurrently with that which
was imposed in respect of the robbery. Effectively therefore the
appellant was sentenced
to 15 years imprisonment. Just over a year
later the appellant made application for leave to appeal against both
the conviction
and the sentence, which was successful.
Ad
the conviction
5.
As far as the conviction is concerned the
complainant was a single witness in respect of the housebreaking and
the robbery and the
only witness who placed the appellant on the
scene and identified him as one of the robbers.
6.
He testified that whilst he was watching
television in the lounge of his residence on the night in question 3
unknown men entered
via the kitchen door, which was closed at the
time but not locked. The first man, who had a cap on his head and a
scarf around
his face, pointed a firearm at him and demanded his
‘gun’ and his money, as well as his cell phone, and he
duly handed
it over.
7.
The second man, who he identified as the
appellant, told him not to make a noise, whilst the third man went to
the television set
and unplugged it from the wall socket.
8.
When the men made their appearance the
complainant’s wife ran out of the lounge. The man with the
scarf ran after her, but
was unable to catch her as she locked
herself in her bedroom. At that juncture one of the
complainant’s daughters emerged
from her bedroom, and he
grabbed her and took her back to the lounge where he instructed her
to get the complainant to tell them
where his gun was, or he would
shoot her. She informed him that the complainant did not possess a
firearm.
9.
The complainant confirmed this and handed
over his wallet to the appellant who removed the money which was in
it (approximately
R 1200) and threw it on the couch.
10.
The appellant then took the complainant to
the bathroom and told him to close himself inside, while his
daughters were taken to
the bedroom where his wife was and she was
told to let them in.
11.
After a while the house went quiet and the
complainant called out to his family. They ascertained that the
robbers had left, taking
the television set with them. The
complainant immediately reported the matter to the police.
12.
A few days later the police informed him
that they had recovered a television set which might belong to him.
He duly went to the
police station where he identified it. He was
asked to return with proof of ownership and when he did so a
statement was taken
from him by the investigating officer. The
complainant testified that as he was being escorted out of the police
station the investigating
officer told him to look to his right and
when he did so he saw the appellant, who was handcuffed,
sitting outside the detectives’
offices. He said he immediately
recognized him as one of the robbers and informed the investigating
officer of this.
13.
It
is trite that because of the fallibility of the faculties of
observation and memory, evidence of identification, especially by
a
single witness, must be approached with caution. The Court must be
satisfied not only that the witness who makes the identification
is
honest, but also that his identification is reliable. Whether this
test is met in a particular case will depend on a number
of factors.
These include the duration of the incident, the opportunity which the
witness had to observe the accused, the conditions
of visibility and
lighting, the distance between the witness and the accused, any
distinguishing features or characteristics which
would allow the
accused to stand out and make him recognizable or identifiable, and
any prior acquaintance between the witness
and the accused.
[6]
These factors must be weighed against the totality of the evidence
and the probabilities.
14.
The complainant testified that the incident
happened in a matter of minutes. Nonetheless, he said he had a good
opportunity to observe
the appellant as he had interacted with him at
close range, especially when the appellant took his wallet and later
when he took
him to the bathroom. As far as visibility was concerned
all the lights were on in the house at the time. In addition, he
pointed
out that the appellant was not masked as was the case with
the first man and he was a large man, who was taller than his
compatriots.
15.
When asked on what basis he had identified
the appellant when he saw him at the police station the complainant
was unable to point
to any specific identifying features or
characteristics, and said that he had done so on the basis of his
‘general appearance’.
It was pointed out to him during
cross-examination that although the appellant had a number of
distinctive facial marks the complainant
had not made mention of any
of these, either in his police statement or during his evidence in
chief.
16.
The
greatest difficulty which I have with the complainant’s
identification is not that it was non-specific,
[7]
but that it occurred in the police station after he had been prompted
by the police. It is noteworthy that when the investigating
officer
testified he sought to make out that the identification had occurred
spontaneously, when in fact it had not. This raises
the suspicion
that it was deliberately staged. At the time when the complainant saw
the accused, he was visibly in custody, and
was on his own and not
amongst any other persons. The possibility that these circumstances
may have influenced the complainant’s
identification of the
accused cannot be excluded.
17.
In the circumstances, had the complainant’s
identification stood on its own it may not have been sufficient for
the court
to convict the appellant on it. However, as it turned out,
the complainant’s evidence that the appellant was one of the
men
who robbed him was corroborated, albeit indirectly, by the
evidence of the two s 204 witnesses.
18.
Both of these witnesses knew the appellant
well as he was a friend of theirs, and the appellant used to buy
dagga from Ballie and
from the premises next door to him. The upshot
of their evidence was that on or about 26 January 2016 (ie the day
after the robbery
had taken place) the appellant arrived at
Shepherd’s place. He was looking for dagga. As Shepherd didn’t
have any,
they made their way to Ballie’s house. The appellant
asked Shepherd to ascertain from Ballie whether he knew of anyone who
might be interested in acquiring a television set. After Ballie had
established that a friend of his was and enquired how much
the TV was
going for, the appellant informed him that the price was R 1500.
19.
Ballie then drove the appellant and
Shepherd to a scrapyard in an area known as Lapland, where they
retrieved a large flatscreen
LG television set and loaded it onto his
vehicle. They conveyed it to Ballie’s house whereupon he duly
paid over the R 1500,
which was split between the appellant and
Shepherd and two other men who had assisted them.
20.
It is common cause that later that night
the police arrived at Ballie’s house and enquired about the TV.
He took them to where
it was being stored at a neighbour’s
property and explained how he had come into possession of it, and in
due course the
appellant was arrested and the TV was identified by
the complainant.
21.
The appellant’s answer to this
evidence was simply to deny that he had ever been present at Ballie’s
house with Shepherd
when they offered the TV for sale, or that he had
been present when it was fetched and delivered to Ballie. He also
denied that
he had ever received any share of the proceeds of the
sale. His only explanation for why both Ballie and Shepherd would
falsely
incriminate him in regard to the TV was that they possibly
wished to extricate themselves from being implicated in their
dealings
with it.
22.
As was rightly pointed out by the
magistrate this did not make sense, and implicating the appellant in
the dealings which took place
in relation to the TV in no way served
to exculpate either of the witnesses. This much was evident from the
fact that they were
both initially arrested and later called as s 204
witnesses on the basis that they were implicated, at the very least,
in receiving
stolen property or dealing therewith.
23.
In the circumstances the magistrate
correctly rejected the appellant’s contentions in this regard,
and in the absence of any
credible explanation as to how he came to
be dealing with the TV a day after the robbery the obvious and only
reasonable inference
one could draw is that the appellant was one of
the persons who had robbed the complainant of it, as the latter
testified.
Ad
the housebreaking and the sentence
(i)
The treatment of housebreaking charges in our law:
24.
In
our law ‘housebreaking’, as such, is not a crime on its
own unless it is accompanied by an intention to commit an
offence.
[8]
This intention is commonly to steal, but it may be to commit other
offences such as robbery, rape or murder. Where there is a
housebreaking without such an intent then (unless damage has been
inflicted during the break-in one in which case one might be dealing
with the common law offence of malicious injury or damage to
property, or the offender enters the property in which event they
may
be guilty of the statutory offence of trespass
[9]
ie of being in or on the property without permission of the owner or
occupier), the offence is not considered to have been completed.
25.
Thus,
the crime is charged as one of housebreaking with intent to commit a
specific offence, or in the event that the offence is
unknown to the
prosecutor, the accused may be charged in such terms.
[10]
26.
The
essential and accepted elements of the crime as it is known in our
law are i) the ‘breaking’ of the premises -in
a legal as
opposed to a physical sense ie by the displacement of any obstruction
to entry which forms part of the premises (such
as a door or window)
by opening, breaking or (re)moving it ii) entry into the premises-
either completely or by means of any part
of the person or via an
instrument (thus the insertion of a part of the body such as a hand
or even a tool which is used to effect
the break-in will suffice)
iii) wrongfulness ie an unlawful break-in and entry without lawful
authority such as consent, an order
of court or a search warrant and
iv) the necessary criminal intent ie the intent to commit an
offence.
[11]
27.
It follows axiomatically that where an
offender commits a ‘housebreaking’ in accordance with the
requisite elements
and thereafter proceeds to engage in further
criminal conduct which was facilitated by it, and which was the
object of it, he commits
a further, and separate offence.
28.
Thus, where an offender unlawfully breaks
and enters premises with the intention of robbing the occupants and
achieves his purpose,
he commits both housebreaking with intent to
rob as well as the offence of robbery.
29.
That
in such circumstances an offender therefore commits 2 separate
offences has (bar a few exceptions
[12]
)
been consistently recognized by our Courts
[13]
over at least the last 60 years, since the decision in
R
v O’Connell
.
[14]
30.
However,
as was pointed out in
O’Connell
[15]
because it would (in most, but not all instances), amount to a
so-called duplication of convictions to convict an accused of both
the housebreaking and the offence it facilitated separately, as they
are usually committed in the course of a single criminal enterprise
or foray, they are commonly charged in a single rolled-up, composite
charge.
31.
The
underlying rationale on which the principle against a so-called
duplication of convictions is based (and which the Supreme Court
of
Appeal has pointed out
[16]
has
been applied as a rule of practice in criminal proceedings in this
country since at least 1887
[17]
)
is that where an accused has committed what amounts in substance to a
single criminal act it should not be ‘split up and
charged
against him’
[18]
as
several offences, in order to prevent a duplication of convictions,
which would result in a duplication of punishments.
32.
However, in its practical application the
principle has not always been applied consistently and has resulted
in what at times appear
to be conflicting or arbitrary decisions.
33.
In
an effort to establish consistency the Courts adopted a number of
different tests which they applied, sometimes singly and sometimes
in
combination, in order to determine whether the principle might be
breached were an accused to be charged in a matter with more
than one
offence. These ranged from the so-called ‘single or same
intent’, to the ‘continuous transaction’
and/or the
‘same evidence’ tests. Thus, in instances where the
offences may have been carried out with the same/ single
intent or
formed part of a single continuous ‘transaction’ or
course of conduct, or where the same evidence which was
required to
prove the one offence would necessarily also prove the other,
charging the accused with all these offences was considered
to amount
to an impermissible so-called ‘splitting of charges’
which could potentially result in a duplication of convictions,
and
consequently the accused would only be charged with (or convicted of)
one of them.
[19]
34.
The same, single intent is present in
housebreaking matters where an accused’s intention in breaking
into a property is commonly
to steal or rob, and he duly sets about
committing the theft or robbery after entering it. In such instances
the intention present
in relation to the housebreaking offence is the
same as that present in the case of the offence which it facilitates,
and it could
also be said that the theft or robbery is part of one
and the same, continuous criminal enterprise or ‘transaction’,
as the housebreaking.
35.
Ultimately
however, and because of inconsistency in the application of these
various tests, in 2014 the SCA held in
BM
[20]
that they were nothing more than guidelines and in each matter in
order to determine whether there might be an improper splitting
of
charges and a resultant duplication of convictions a Court is
required to adopt a commonsense approach, in the light of the
fundamental requirement of fairness to an accused.
[21]
36.
The consequences of an accused being
indicted in one rolled-up ie composite charge of housebreaking with
intent to commit an offence
and the offence itself may in certain
instances appear to be anomalous, or may at times result in what
appear to be counter-intuitive
or inconsistent decisions. But on
analysis these can best be understood if one bears in mind the
underlying purpose of the practice
in relation to the charging of
housebreaking offences viz the avoidance of a duplication of
convictions and punishments.
37.
Thus,
as was pointed out in
O’Connell
[22]
as it is practice in housebreaking matters for an accused to be
indicted in one single, composite charge with both the housebreaking
and the offence it facilitated, ordinarily one conviction will follow
in respect thereof.
38.
But although this is usually the case it is
not necessarily always so. In certain instances, even though the
accused may be charged
with a single, composite housebreaking charge
he may nonetheless properly be convicted of two offences or attempts
to commit one
or other of them, or he may be found guilty of
competent verdicts in respect thereof, if the circumstances justify
it.
39.
An
example of such a matter, which at first blush appears to have
resulted in a decision which is at odds with the principle against
a
duplication of convictions, is that in
Kulati
[23]
where a full bench of the
Eastern Cape High Court endorsed, on appeal to it, a double sentence
which was imposed on a single, composite
housebreaking charge.
40.
The
accused had been charged with housebreaking with intent to assault
and assault with intent to commit grievous bodily harm. In
respect of
the housebreaking the state failed to prove its case but the
magistrate properly convicted the accused of malicious
damage to
property, which is a competent verdict
[24]
on a housebreaking charge, and he also convicted the accused in
respect of the assault with intent to commit grievous bodily harm
which followed upon it. Thus, a conviction in respect of two offences
ensued in respect of a single charge. The magistrate sentenced
the
accused to a fine of R1500 or 90 days imprisonment in respect of each
of the offences, and ordered that these were to run concurrently
with
one another.
41.
Although the convictions and sentences may
appear to be contrary to the principles previously referred to, they
are justified if
one considers that on the application of any of the
traditional tests or guidelines which would commonly be applied in
order to
determine whether there was an improper ‘splitting of
charges’ and a duplication of convictions and punishments, the
answer would be negative.
42.
In this regard, the intent which was
directed at damaging the property was an altogether different and
separate intent from that
which was directed at the assault. Equally,
the evidence which was necessary to establish the former offence
would not of necessity
establish the latter, and the elements of the
two offences were different.
43.
Thus,
it could be said that the damage to the property and the assault were
sufficiently distinct in intent, time and
modus
that they did not form part of a single criminal enterprise or
transaction and ultimately, applying the fairness yardstick which
was
laid down in
BM
it
was therefore not unfair to convicted the accused of 2 separate
offences, even though they had been rolled up into a single charge,
and it was not unfair to impose a separate punishment in respect of
each of them. In sum therefore it could not be said that the
accused
had been punished more than once for a single criminal act.
[25]
44.
Similarly, and in accordance with the fact
that in housebreaking cases one is usually dealing with 2 offences
which are commonly
charged by way of a single composite charge, if
any one of the offences is not proven the charge does not necessarily
fail, as
a conviction may nonetheless ensue in respect of the other.
Thus, if the housebreaking is not proven the accused may still be
found
guilty of the theft or robbery which followed it, and
vice
versa
.
45.
Consistent
with these principles when an accused is only charged with
housebreaking with intent to commit an offence but not with
that
offence as well, in one, rolled-up composite charge, and it
subsequently transpires that in addition to the housebreaking
he also
committed the offence itself, he cannot be found guilty of that
offence as part of the charge ie together with the housebreaking
offence.
[26]
Once again, this
result is congruous with the fact that one is dealing with 2 separate
offences and as was stated in
Zamisa
[27]
save in the case where a special verdict is rendered competent by
statute an accused may only be convicted of an offence if he
has been
charged with it.
46.
Thus, and by way of summary, when an
accused is charged with housebreaking with intent to commit an
offence and such offence, in
one rolled-up composite charge, any
conviction which ensues ordinarily amounts to a single conviction in
respect of which there
can only be a single punishment, unless one or
other of the 2 offences or a competent verdict in respect of
one or both of
them are so clearly distinct in intent, time and
modus
, and
the evidence necessary to prove the one is not the same as, and does
not necessarily prove, the other, and they do not form
part of the
same, continuous criminal transaction, in which case there will not
be an improper duplication of convictions if the
accused is convicted
and sentenced in respect of both such offences, instead of in respect
of a single offence.
47.
I think it may safely be said that
ordinarily, where an accused could be convicted of housebreaking with
intent to commit an offence
and that offence as well, and both would
be committed with the same intent (eg housebreaking with intent to
steal and theft or
housebreaking with intent to rob and robbery),
there can and should only be a single conviction on a composite,
rolled-up charge,
and only a single punishment would be competent.
48.
One
trusts that this restatement of the law will put paid to the
lingering confusion and uncertainty which one still finds in
judgments
of the Courts and in leading textbooks
[28]
as to whether or not a conviction in housebreaking cases amounts to a
conviction of a single offence or to more than one.
49.
That
confusion still abounds in respect of how to treat housebreaking
cases is apparent even from the recent decision of this division
in
S
v Davids.
[29]
50.
The accused had pleaded guilty to a single,
composite charge of housebreaking with intent to rob and robbery with
aggravating circumstances.
But as in this matter, the
magistrate sentenced the accused separately for the housebreaking, in
respect of which he imposed
6 years imprisonment, and for the
robbery, in respect of which he imposed an additional 15 years
imprisonment, on the basis that
they were two separate offences and
the accused was liable to a discretionary minimum sentence in respect
of the robbery, in terms
of the CLAA, as a first offender.
51.
On appeal the Court held that the
magistrate had erred in regard to the imposition of the sentence of
15 years imprisonment on the
robbery as the accused’s plea did
not reveal that he had admitted to having committed robbery with
aggravating circumstances,
but only robbery
simpliciter.
52.
In this regard, in his plea explanation the
accused said that he had gained access to a building by climbing onto
a balcony and
opening a window. Whilst he was ransacking the
premises the complainant made her appearance. The accused pushed her
and fled,
taking a cell phone and watch with him. It will be apparent
from this explanation that it did not contain an admission that a
firearm
or a dangerous weapon was used in the commission of the
robbery and the appeal Court was therefore correct in finding that
aggravating
circumstances were not present at the time. Thus, at
best, the accused was guilty of robbery plain.
53.
The
Court held
[30]
that the
magistrate had committed a serious misdirection when he stated,
during sentencing proceedings, that the appellant had
been found
guilty and had been convicted of 2 distinct offences, a misdirection
which was perpetuated when the magistrate imposed
a double sentence,
as a single charge of housebreaking with intent to rob and robbery
with aggravating circumstances had been put
to the accused and he had
been convicted of a ‘
single
offence’
.
[31]
54.
As will be apparent from what is set out
above, although the housebreaking charge which featured in
Davids
consisted of 2 separate offences, only a single conviction could
ensue in respect thereof, because it was formulated in a single
rolled-up
charge
,
and not because it constituted a single
offence
.
A conviction can only occur in respect of a charge on which an
accused is indicted, or a competent verdict in respect thereof.
Thus,
it appears that both the magistrate and with respect, this Court,
erred in their findings.
(ii)
The treatment of the housebreaking charge in this matter
:
55.
In the matter before us, the magistrate
similarly correctly pointed out that housebreaking with intent to rob
and robbery are two
separate offences which, for ‘practical’
reasons are usually combined. But, as in the case of his predecessor
in
Davids
he erred when he went on to say that as they were separate offences
they should be punished separately, because the accused was
only
convicted on a single, composite
charge
.
56.
By doing so the magistrate improperly
‘split’ the charge in two, which effectively resulted in
a duplication of convictions
and punishments, for what essentially
amounted to a single criminal ‘transaction’ or course of
conduct. His error in
this regard is evident from his statement,
during sentencing proceedings, that he was imposing 7 years
imprisonment in respect
of the ‘charge’ (‘
aanklag
’)
of housebreaking and the discretionary minimum of 15 years
imprisonment on the ‘charge’ (‘aanklag’)
of
robbery with aggravating circumstances. There was only one charge in
respect of which only a single conviction could ensue and
in respect
of which only a single sentence could be imposed.
57.
As
a result, the double sentence which the magistrate imposed
constituted a material misdirection, and we are thus not only at
large to reconsider the issue of sentence afresh, but are in fact
obliged to do so.
[32]
58.
But in order to do so, the further question
which arises for determination is how we are to deal with any
so-called prescribed or,
as it is now known, discretionary minimum
sentence which may be applicable in terms of the CLAA.
(iii)
Discretionary minimum sentences and housebreaking charges
:
59.
If one applies the principles set out above
ie that an offender who has been convicted of a single, rolled-up
housebreaking charge
for what essentially amounts to a single
criminal act (albeit that it may actually consist of two separate
offences committed with
the same intent) should only be punished once
for it, then logic and fairness dictate that only one sentence can
and should be
imposed.
60.
But what sentence does the Court impose
when, had the offences been charged separately the accused would
possibly have faced a prescribed
ie discretionary minimum sentence in
respect of one or either, or possibly both of these offences? Which
of these punishments,
if any, must be imposed, or are both applicable
by virtue of the CLAA?
61.
When
faced with these questions in
S
v Maswetswa
[33]
Wepener J expressed the view that a single, rolled-up charge of
housebreaking (ie a charge of housebreaking with intent to commit
an
offence and that offence), would be ‘technically ineffective’
in circumstances where the CLAA and the sentences
prescribed therein
were applicable.
[34]
62.
In this regard he pointed out that in terms
of the CLAA an offender who is convicted of housebreaking would be
liable to a sentence
of 5 years imprisonment in the case of a first
offence, 7 years in respect of a second, and 10 years for any
subsequent offence,
whereas offences which frequently accompanied or
followed upon housebreakings such as robbery could, depending on the
circumstances,
attract differing sentences, in excess of that.
63.
Consequently,
he was of the view that a single, composite housebreaking charge was
no longer appropriate and there was good reason
to formulate its
constituent offences as separate charges.
[35]
64.
He
held that it was therefore desirable that housebreaking charges
should be framed in such a manner as to separate the allegations
of
housebreaking with intent to commit an offence, from that offence
[36]
(which he described as the ‘substantive’ charge), and
that it would be wrong to combine offences for which different
minimum sentences were prescribed in terms of the CLAA, into one
charge.
[37]
In his view the
better practice would be to charge offenders separately for the
offence of housebreaking with intent to commit
a crime and the crime
itself.
[38]
I
respectfully disagree with these sentiments.
[39]
65.
In
determining what minimum sentence permutations may be applicable to
housebreaking matters in terms of the CLAA, one must firstly
have
regard for the competent verdicts which are provided for in the CPA,
in respect of a housebreaking charge.
[40]
In this regard if the evidence does not prove that the housebreaking
was effected with the intent to commit the offence as
charged, but
another offence, or the offence of malicious injury to property, the
accused may be convicted accordingly.
[41]
66.
In
the second place one must also consider the competent verdicts which
are provided for in the CPA in respect of the ‘substantive’
offences which are commonly combined with housebreaking and which are
usually facilitated by it,
[42]
such as robbery and theft.
[43]
67.
In
this regard an accused facing a charge of robbery may be convicted of
assault with intent to commit grievous bodily harm or assault
common,
or theft, or the statutory offence of receiving stolen property, if
the evidence allows for this and is insufficient to
prove the
robbery.
[44]
Similarly, on a
charge of theft the accused may be convicted of the statutory
offences pertaining to the receipt of stolen property.
None of these
competent verdicts on charges of robbery or theft, bar that of theft,
and then only theft in excess of a prescribed
amount or theft
committed in a group context, or theft of ferrous or non-ferrous
metal (most commonly copper) which forms part
of essential
infrastructure (such as overhead cables for the supply of
electricity), are subject to the minimum sentences which
are set out
in Schedule 2 of the CLAA. So too, no minimum sentence is prescribed
for malicious injury to property.
68.
As far as the CLAA itself is concerned,
broadly speaking it provides for an increasing severity of punishment
in regard to the discretionary
minimum sentences which are
applicable, depending on the seriousness of the offences and whether
an offender is a first, second,
or subsequent offender.
69.
In
its original iteration the CLAA
[45]
did not provide for a prescribed, or discretionary, minimum sentence
for housebreaking. This was only introduced in 2007
[46]
when it was specified (‘breaking or entering any premises with
intent to commit an offence’) as one of the offences
listed in
Part IV of Schedule 2.
70.
But
housebreaking only qualifies for a minimum sentence if the accused
had a firearm with him which was intended for use ‘as
such’,
at the time of its commission, in which case if the accused is a
first offender he will be liable to a sentence of
5 years
imprisonment, 7 years if he is a second offender and 10 years if he
is a third or subsequent offender.
[47]
Thus, ordinary housebreaking
per
se
does not qualify for a minimum sentence, contrary to what was said in
Maswetswa.
[48]
71.
As far as the most common offences which
are facilitated by housebreakings are concerned ie robbery and theft,
both of these are
liable to attract a minimum sentence, in certain
circumstances.
72.
Thus,
robbery with aggravating circumstances
[49]
ie robbery which is committed by means of a firearm or dangerous
weapon, and robbery which involves the taking of a motor vehicle,
are
listed in Part II of Schedule 2 of the CLAA, and are liable to a
sentence of 15, 20 or 25 years imprisonment, in the case of
first,
second and subsequent offenders.
[50]
73.
In
the case of other robberies (ie those where aggravating circumstances
are not present or where property other than a motor vehicle
is
stolen), first second and subsequent offenders are only liable to
minimum sentences of 5,7 or 10 years
[51]
provided
the accused had a firearm with him which was intended for use
,
at the time of the commission of the offence.
74.
The way I understand the relevant
provisions of the Act read together with the relevant Parts of
Schedule 2 thereof, which provide
for the respective minimum
sentences which I have referred to, it will therefore only be in a
situation where an offender had with
him a firearm which was
intended
for use in the commission of a housebreaking with intent to commit
robbery and the robbery which it facilitated (but which was
not
in fact used in the commission thereof- for in such instance he will
be guilty of robbery with aggravating circumstances), that
there will
be a possibility of a discretionary minimum sentence being applicable
in respect of both such offences, even though
they are charged as
one, by way of a single, rolled-up charge.
75.
And in keeping with the rationale and
principles set out above in regard to the charging and punishment of
housebreaking offences
where the intent in relation to the
housebreaking is the same as that in relation to the offence which it
facilitates and the offences
are part of one criminal foray, there
can only be one sentence imposed, and in my view the determinative
offence ie the one which
should determine the minimum sentence which
may be applicable, is that which the housebreaking facilitated, which
is the principal
offence at which the housebreaking was directed.
76.
I
prefer this terminology to that which was used in
Cetwayo
and
Kulati,
[52]
where the Court referred to it as the ‘actual’ offence,
or that which was used in
Maswetswa
[53]
where it was referred to as the ‘substantive’ offence. In
my view both housebreaking and the offence which it facilitates
are
substantive, actual offences. The danger in using such terminology is
that it harks back to an earlier time when, in accordance
with
Roman-Dutch law, housebreaking was considered not to be an offence in
its own right, but simply a matter of aggravation of
the offence
which it facilitated. Thus, in the case of a housebreaking which was
committed with intent to steal and a subsequent
theft, it was
considered that the ‘real’ offence which was committed
was the theft.
[54]
77.
In the circumstances, where a housebreaker
has with him a firearm which he actually uses in a robbery which is
facilitated by the
housebreaking there will not be a minimum sentence
applicable in respect of the housebreaking, only one in respect of
the robbery.
So, in such cases there will be no question of a minimum
sentence being applicable in respect of both offences.
78.
As
far as theft is concerned, on my reading of Schedule 2 it only
attracts minimum sentences of 15, 20 or 25 years imprisonment
for
first, second or subsequent offenders where it involves an ‘
amount
’
of more than R 500 000 (and not goods?) if committed by a single
person on their own (or more than R 10 000 if the person
is a law
enforcement officer) or more than R 100 000 if committed in a group
context in execution of a common purpose.
[55]
I think it is fair to say that most thefts committed subsequent to
housebreakings in this country, would probably not be struck
by these
provisions.
79.
Theft
is also subject to minimum sentences where it involves ferrous or
non-ferrous metal which forms part of essential infrastructure.
[56]
As most instances of such theft are committed in the open (usually
involving overhead or underground cables), it will not usually
be
facilitated by a housebreaking, and there will therefore in such
cases most often also not be a question of a minimum sentence
being
applicable for housebreaking, and at best only one in respect of the
theft.
80.
The bottom line therefore is that if one
sets about hypothesizing the various permutations which may occur,
where a housebreaking
facilitates an offence which may attract a
minimum sentence in terms of the CLAA and Schedule 2 thereto, there
will in most instances
not be a clash or a dilemma as to which
minimum sentence may be applicable. And in my view, where there is
the possibility of a
conflict the minimum sentence which should apply
is that which is determined by the offence which the housebreaking
facilitates,
as it is the principal offence at which the
housebreaking is directed.
81.
In
this regard it is noteworthy that, save in the case of a third or
subsequent housebreaking offender who has on each occasion
when he
offended had a firearm with him which he intended to use but did not
and who was only convicted of housebreaking (ie breaking
and
entering) and not another offence which it facilitated (a highly
unlikely scenario)- in which event a sentence of 10 years
imprisonment may be applicable
[57]
-
where housebreakings are accompanied by serious crimes of violence
the sentences which may be imposed in respect of such offences
are
ordinarily in excess of the prescribed sentence which may be
applicable in respect of such housebreakings.
82.
Thus,
by way of example, in instances where a housebreaking is accompanied
by and facilitates a murder, which is planned or premeditated,
or
multiple rapes (ie where the victim is raped more than once or by
more than one offender) or the rape involves a child younger
than 16
years of age, the minimum sentence applicable to the determinative,
principal offence is imprisonment for life.
[58]
Other forms of rape which do not fall within one of these categories
are punishable
[59]
by
sentences which start at 10 years in the case of a first offender,
and which progress in multiples of 5 years to a sentence
of 20 years
in the case of a third or subsequent offender. Similarly, as
previously pointed out, in the case of robbery with aggravating
circumstances the ‘starting’ minimum sentence applicable
ie that applicable in the case of a first offender, is 15
years.
83.
In my view, applying the approach which I
have adopted would thus be in keeping with the legislative scheme in
terms of which this
graded scale of minimum ‘tariffs’ for
certain offences, based on their severity, is set out in Schedule 2
of the CLAA
read together with s 51 thereof, and would give effect to
the objectives which the legislature seeks to achieve thereby, and
would
not do an injustice to the victims of housebreaking offences.
In addition, it would be consonant with the principles of avoiding
a
duplication of convictions and punishments which is given effect to
in the long-standing practice of charging offenders by way
of a
single, rolled-up composite charge of housebreaking and the offence
it facilitates.
84.
In
Maswetswa
the accused was convicted of attempted murder (for which he was
sentenced to 8 years imprisonment), murder (for which he was
sentenced
to life imprisonment) and housebreaking with intent to rob
and robbery.
85.
Notwithstanding
the views which he expressed Wepener J held that although the accused
had effectively been found guilty of 2 offences
in respect of the
third (housebreaking) charge, because of the longstanding practice of
combining the offences in the form of a
single, composite charge, the
appropriate sentence to impose was a single sentence of 15 years,
which was the sentence applicable
to a first offender for robbery
with aggravating circumstances, as the robbery was the ‘actual’
offence for which the
punishment was prescribed.
[60]
Thus, ultimately the result in
Maswetswa
lends
support to the approach which I have proposed, notwithstanding the
views expressed therein.
86.
In my view, it would therefore not be
appropriate to seek to circumvent long-established practice in regard
to the way housebreaking
charges are formulated by separating them
into 2 separate charges simply in order to allow for different
discretionary minimum
sentences to be imposed in terms of the CLAA,
and in most instances doing so would effectively result in a
duplication of convictions
and punishments, which would be liable to
being set aside on appeal.
87.
Where the circumstances are such that the
available evidence indicates that the accused had differing
intentions in relation to
the housebreaking and any subsequent
offence(s) which he committed after perpetrating it; and the evidence
which could be tendered
in respect of each of such offences, were
they to be tried separately, would not be the same, and would not be
inextricably woven
up or bound together and would clearly pertain to
different elements, nothing would stop the state from charging the
accused with
separate offences in such circumstances.
88.
As I previously pointed out, this
frequently happens in cases where housebreaking with intent to rob or
steal is accompanied by,
or results not only in, robbery or theft,
but in murder. In such circumstances the accused is commonly charged
with housebreaking
with intent to rob and robbery in one rolled-up
charge, as well as with murder as a further, separate charge. The
same would be
applicable where, although the aim of the housebreaking
is to steal or rob, the perpetrators not only achieve their purpose
but
also rape someone who they find in the premises they break into.
89.
When
an accused is a repeat housebreaker, that can be taken into account
as an aggravating factor when considering what sentence
should be
imposed in respect of the principal offence ie the offence which the
housebreaking facilitated,
[61]
even though it may be subjected to a minimum sentence in terms of the
CLAA. In this regard for example in
Mashune
[62]
the SCA held that the fact that an accused had a number of previous
convictions for housebreaking was an aggravating factor which
was to
be taken into account in considering what sentence to impose in
respect of the (principal) offences, which consisted of
2 instances
of rape, which had been committed in the course of 2 housebreakings.
Because of the previous convictions the SCA
[63]
consequently increased the discretionary minimum sentence of 10 years
which had been imposed
a
quo
on each of 2 composite charges of housebreaking with intent to rape
and rape,
[64]
to 15 years on
each count.
[65]
Conclusion
90.
I now turn to consider what sentence should
be imposed on the appellant. He was party to the commission of two
serious offences:
a housebreaking whereby the sanctity and privacy of
the complainant’s home was invaded at night whilst he and his
family
were watching television, and a robbery which was effected by
means of the use of a firearm, during which time the complainant’s
daughter was threatened that she would be shot and the complainant
and his family were traumatized, and a number of valuable items
were
taken from them, only one of which was recovered.
91.
As previously indicated, there is no
minimum sentence applicable in respect of the housebreaking-in this
regard there would only
have been one in the event that the appellant
had a firearm with him at the time which he intended using, but did
not, and no robbery
had been committed, and this was not the case.
There is however a minimum sentence of 15 years imprisonment
applicable in respect
of the principal offence to which the appellant
was an accomplice (ie the robbery with aggravating circumstances,
which was facilitated
by the housebreaking).
92.
It is trite and well-established that in
introducing the so-called prescribed or discretionary minimum
sentences the legislature
intended to provide for a severe,
standardized and consistent sentencing regime that would ordinarily
be enforced unless substantial
and compelling circumstances are
present, and it has thus repeatedly been said by the highest Courts
that such sentences should
not be departed from lightly, or for
flimsy reasons.
93.
It
is further trite that whether such circumstances exist is a matter
which must be determined by each Court, on a case-by-case
evaluation
of the facts and circumstances before it. All the factors which a
Court would traditionally have taken into account
before the
introduction of such sentences, must be considered. If, after due and
careful consideration thereof the Court comes
to the conclusion that
the imposition of the ‘prescribed’ sentence would be
unjust, in that it would be disproportionate,
having regard to the
nature of the offence(s) concerned, the interests of society and the
accused’s personal circumstances,
it is justified in deviating
therefrom.
[66]
94.
At the time when he committed these
offences the appellant was a relatively youthful first offender of
the age of 25, and was supporting
2 young children (one of whom
tragically passed away while the case was pending). By the time he
was sentenced on 21 June 2017,
he had been in custody awaiting trial
for 16 months. In my view, having due regard for the nature and
seriousness of the offences
which he committed (in respect of which
he was an accomplice and played a non-violent role) and the interests
of society in seeing
offenders who commit such crimes serve
appropriately stiff terms of imprisonment, as well as the appellant’s
personal circumstances,
there are substantial and compelling
circumstances present which would make the imposition of a sentence
of 15 years imprisonment,
disproportionate. In my view, the
appropriate sentence to impose is one of 12 years imprisonment.
95.
I would accordingly make the following
Order:
93.1
The appeal against conviction is dismissed.
93.2
The appeal against sentence is upheld, and the sentence of 7 years
imprisonment which was imposed in respect of the housebreaking
and
the sentence of 15 years imprisonment which was imposed in respect of
the robbery with aggravating circumstances are set aside,
and
replaced with a sentence of 12 years imprisonment, which is antedated
to 21 June 2017.
M
SHER
Judge
of the High Court
I
agree, and it is so ordered.
L
BOZALEK
Judge
of the High Court
Appearances
:
For
appellant: Ms A De Jongh
Legal
Aid, Cape Town
For
respondent: Adv E Cecil
Director
of Public Prosecutions, Cape Town
[1]
Act
51 of 1977. The section provides that a person who is implicated in
an offence may be called as a witness and will be indemnified
from
prosecution in respect thereof if the Court is satisfied that he
testified honestly and truthfully.
[2]
S 51(2)(a)(i) read together with Part II of Schedule 2.
[3]
Act 105 of 1997 (as amended
inter
alia
by the Criminal Law (Sentencing) Act 38 of 2007), which introduced
so- called ‘prescribed’ minimum sentences (now
known as
‘discretionary’ minimum sentences) into our law.
[4]
In terms of s 1(1)(b) of the CPA aggravating circumstances are
present when a firearm or ‘dangerous weapon’ is used
in
the commission of a robbery.
[5]
S 51(3).
[6]
S
v Mthetwa
1972(3) SA 766 (A).
[7]
In this regard I align myself with the remarks which were made by my
brother Rogers J in
Mpilo
v S
[2020] ZAWCHC 58
at para
[23]
:
‘The appellant’s counsel criticized the
identificatory evidence because the witnesses had not mentioned the
features of the driver’s face which had caused them to
identify him with the appellant. Now I know that points of this
kind
are often raised in criminal trials but I am not much impressed by
them. It is not often that a face presents itself with
one, let
alone two or more, remarkable features. Nevertheless, human beings
are highly adept at recognizing faces and voices.
A constellation of
multiple minor variations in standard facial features combine to
make up a facial appearance which in its
own way is as unique as a
fingerprint. The laborious process followed by identikit artists in
teasing out from a witness the
facial features of a perpetrator
shows that people can readily match a face to a perpetrator without
being able to verbalize
a description’.
[8]
Hiemstra
Criminal
Procedure; S v Livanje
[2019]
ZASCA 126
at para
[14]
.
[9]
S
1(1) of the Trespass Act 6 of 1959.
[10]
S
262 of the CPA.
[11]
S v
Hlongwane
1992 (2) SACR 484
(N) at 485A-E.
[12]
One of which, regrettably, is the recent decision of this Court in
S
v Davids
2019 (1) SACR 257
(WCC), which is discussed below.
[13]
S v
Mkize
1961 (4) SA 77
(N) at 77H;
S
v Buthelezi
1961 (4) SA 376
(N);
S
v Zamisa
1990 (1) SACR 22
(N) at 23D-E;
S
v Cetwayo
2002 (2) SACR 319
(E) 321D;
S
v Kulati
2002 (2) SACR 406
(E) at 408D;
S
v Maswetswa
2014 (1) SACR 288
(GSJ) at para [3];
Director
of Public Prosecutions, Free State v Mashune
[2018] ZASCA 60
at para
[10]
.
[14]
1960
(3) SA 272 (O).
[15]
Id,
at 272H-273A.
[16]
In
S
v BM
2014 (2) SACR 23
(SCA) at para [3].
[17]
As
per
Ex
parte Minister of Justice in re: R v Moseme
1936 AD 52
at 59.
[18]
Thus,
the principle was previously also expressed as the principle or rule
against ‘splitting’ of charges.
[19]
Hoexter,
Cowling et al
SA
Criminal Law & Procedure
Vol 3 Chp 3, C2-C3.
[20]
Note
16.
[21]
Id
,
para [3], followed in
S
v McRae & Ano
2014 (2) SACR 215 (SCA).
[22]
Note 14 at 272H-273A.
[23]
S v
Kulati
2002 (2) SACR 406 (E).
[24]
In
terms of s
262(1) of the CPA.
[25]
Similarly,
i
n
R v
Shelembe
1955 (4) SA 410
(N) an offender who broke into a room and was
surprised by the occupants who were sleeping at the time, and who
then broke a
door in order to exit the premises, was similarly held
to have been properly convicted of housebreaking with intent to
commit
an offence unknown to the state, and malicious injury to
property, although he had been charged with one, composite charge of
housebreaking .
[26]
Zamisa
n
13;
S
v Blaauw
1994 (1) SACR 11
(E);
S
v M
1989 (4) SA 718
(T);
S
v Jacobs
1979 (2) SA 837 (C).
[27]
Id
,
at 23F.
[28]
Vide
Snyman
Criminal
Law
(6th Ed) at 544.
[29]
Note
12.
[30]
Per Wille J, Slingers AJ concurring.
[31]
Id
,
at para [11].
[32]
Per Mocumie JA in
Mathekga
& Ano v S
[2020] ZASCA 77
at para
[19]
, referring to
S
v Phillips
2017 (1) SACR 373
(SCA) at para [5].
[33]
2014
(1) SACR 288
(GSJ). I note that in its original format the judgment
is cited and reported on SAFLII as
S
v Maswetsa
[2013]
ZAGPJHC 385, not
S
v Maswetswa
.
[34]
Id
,
a
t
para [7].
[35]
P
ara
[4].
[36]
Para
[8].
[37]
P
ara
[19].
[38]
Para [18].
[39]
The judgment in
Maswetswa
has also been subjected to trenchant academic criticism
vide
Watney ‘Unnecessary Confusion in respect of Housebreaking’
TSAR
2014
Vol 3 606-615.
[40]
These are set out in ss 262(1)-(3) of the CPA.
[41]
S 262(1).
[42]
I have left out of account other crimes of violence which often
follow upon or accompany housebreakings, such as murder and rape,
as
these are inevitably charged as separate offences, for it is very
rare (although not totally unheard of) for housebreakings
to be
carried out with the aim of committing these offences. Usually the
commission of these crimes is incidental to the housebreaking,
which
is most often directed at stealing what is inside the property which
is broken into. Thus, offenders who kill or rape subsequent
to a
housebreaking are usually charged with these crimes as separate
offences, in addition to housebreaking with intent to commit
robbery
or theft.
[43]
S
260 sets out the competent verdicts in respect of a robbery charge
and s 264 deals with those applicable in respect of theft.
[44]
S 260.
[45]
As at promulgation in 1997.
[46]
By way of the Criminal Law (Sentencing Act) 38 of 2007, which came
into effect on 31 December 2007.
[47]
S 51(2)(c) rtw Part IV of Schedule 2.
[48]
At para [6].
[49]
As
defined in terms of s 1(1)(b) of the CPA.
[50]
S 51(2)(a)(i)-(iii) rtw Part II of Schedule 2.
[51]
S
51(2)(c)(i)-(iii) rtw Part IV of Schedule 2.
[52]
Cetwayo
n 13 at 321D;
Kulati
n 23 at 408D.
[53]
Note
33 at para [8].
[54]
R v
Impey & Ano
1960 (4) SA 556
(E) at 566G referring to
R
v Vail
19 EDC 273
;
R
v Sabuyi
1905 TS 170
;
R
v Gentleman
1919 CPD 245.
See also
S
v Maunye & Ors
2002 (1) SACR 266
(T) at 277F-287F.
[55]
Part II of Schedule 2.
[56]
Where
it results in damage to essential infrastructure or to a basic
service, or was perpetrated by a law enforcement officer,
it is
liable in
terms of Part II of Schedule 2 to sentences of 15, 20 or 25 years
imprisonment. Where it is committed in other circumstances
it may
attract lesser sentences of 5, 7 or 10 years (in terms of Part IV
provided that at the time the accused had a firearm
in his
possession which was intended for use in the commission of the
offence), or alternatively where none of these considerations
are
present to 5, 7 or 10 years (in terms of Part V).
[57]
In terms of s 51(2)c) rtw Part IV of Schedule 2.
[58]
In terms of s 51(2)(a) rtw Part I of Schedule 2.
[59]
In terms of s 51(2)(b) rtw Part III of Schedule 2.
[60]
Id,
at
para [8].
[61]
This is not a reversion to the earlier treatment of housebreaking in
our law whereby it was not considered to be a substantive
offence in
its own right- see the discussion at para [76] above.
[62]
Note 13.
[63]
Per Rogers AJA.
[64]
As per s 51(2)(b) of the CLAA rtw Part III of Schedule 2.
[65]
In
order to ameliorate the cumulative effect thereof it directed that 8
years in respect of the sentence which was imposed on
the second
count was to run concurrently with the sentence which was imposed in
respect of the first.
[66]
S v
Malgas
2001 (1) SACR 469
(SCA).