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[2011] ZAGPJHC 216
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S v Liesabon and Another (A 566/09) [2011] ZAGPJHC 216 (27 May 2011)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
High
Court Ref No: 17/11
Magistrates’ Serial No: 01/10
Case
N0: A 566/09
In
the review matter of:
STATE
versus
SULLIMAN
LIESABON
................................................................................
Accused
No 1
ROWAN
JANSEN
.........................................................................................
Accused
No 2
REVIEW JUDGMENT
MEYER
, J
[1] This
is a review in the ordinary course. The accused, Mr Sulliman
Liesabon (accused no 1) and Mr Rowan Jansen (accused no 2),
were
charged in the Magistrates’ Court, Randfontein with one charge
of housebreaking with the intent to steal and theft (count
1) and
with one charge of unlawful possession of ammunition (count 2). On 5
May 2010, each accused was convicted of theft, including
the theft of
ammunition, and acquitted on the charge of unlawful possession of
ammunition. The learned magistrate found that a
duplication of
convictions would occur if the accused were convicted of both counts
1 and 2. I do not consider it necessary to
express any view on this
finding. Accused no 1, who was 24 years of age, was sentenced to
imprisonment for twelve months pursuant
to his conviction of theft
and the passing of sentence in respect of accused no 2, who was 15
years old at the time of the commission
of the crime, was postponed
for a period of five years on certain conditions.
[2] The
learned magistrate, correctly in my view, found that the state did
not prove the alleged housebreaking and that the evidence
established
that the accused contravened s 36 of the General Law Amendment Act 62
of 1955. This section provides that
‘
[a]ny person who
is found in possession of any goods, other than stock or produce as
defined in section thirteen of the Stock Theft
Act, 1923 (Act No. 26
of 1923), in regard to which there is reasonable suspicion that they
have been stolen and is unable to give
a satisfactory account of such
possession, shall be guilty of an offence and liable on conviction to
the penalties which may be
imposed on a conviction of theft.’
[3] A conviction for an
offence under s 36 of the General law Amendment Act is competent
where an accused is charged with housebreaking
with the intent to
steal and theft (
S
v Arendse en ‘n ander
1980(1)
SA 610 (C). The evidence before the court
a
quo
did not
prove all the elements of the crime of theft and the learned
magistrate clearly erred in convicting each accused of theft.
They
should each have been convicted of contravening s 36 of the General
Law Amendment Act 62 of 1955.
[4] Adv. Zeiss van Zyl S.C. of
the Office of the Director of Public Prosecutions: South Gauteng
High Court furnished me with an
oral review opinion, which
corresponds with my findings. I thank him for his assistance. I
further do not consider it appropriate
to interfere with the
sentences imposed upon the accused.
[5] In
the result the convictions of accused no 1 and of accused no 2 of
theft are set aside and replaced by the following:
1.
1.1 Accused no 1 is found
guilty of contravening s 36 of the General Law Amendment Act 62 of
1955.
1.2 The sentence imposed upon
accused no 1 is confirmed except that such sentence shall be pursuant
to his conviction of contravening
s 36 of the General Law Amendment
Act 62 of 1955.
2.
2.1 Accused no 2 is found
guilty of contravening s 36 of the General Law Amendment Act 62 of
1955.
2.2 The sentence imposed upon
accused no 2 is confirmed except that such sentence shall be pursuant
to his conviction of contravening
s 36 of the General Law Amendment
Act 62 of 1955.
WEPENER, J
[6] I agree with my brother
Meyer, J.
___________________
PA
MEYER
JUDGE
OF THE HIGH COURT
____________________
WL
WEPENER
JUDGE
OF THE HIGH COURT
27
May 2011