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[2011] ZAGPJHC 113
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S v Malapane (69/6076/2010) [2011] ZAGPJHC 113 (19 September 2011)
IN
THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
REPORTABLE
REVIEW CASE: HIGH COURT
REF NO: 186/2011
MAGISTRATE’S SERIAL
NO: 27/2011
JOHANNESBURG CASE NO:
69/6076/2010
DATE:19/09/2011
In
the matter between:
THE
STATE
and
TEBOGO
MALAPANE
JUDGMENT: SPECIAL REVIEW
WILLIS
J:
[1]
This matter has been referred to me for “special review”
in terms of
s 304(4)
of the
Criminal Procedure Act, 51 of 1977
, as
amended (“the
Criminal Procedure Act&rdquo
;).
[2]
The accused had been charged in the Johannesburg District Court held
at Protea, Soweto with one count of assault with intent
to do
grievous bodily harm and another count of theft. The two offences
were allegedly committed on 12 December 2010. There were
no
alternative charges.
[3]
The case involved an altercation between rival street vendors. On 5
April, 2011 the learned magistrate convicted the accused
on the count
of assault but on the count of theft convicted him not of theft but
malicious injury to property. The evidence supported
the conviction
of assault. The reason for the magistrate not convicting on the count
of theft is that the accused did not, in fact,
steal the property of
the complainant but threw his merchandise, which consisted of
vegetables, on to the ground where it was trampled
upon by the
accused and passers by. Some of the persons who were passing by
helped themselves to the merchandise on the ground.
[4]
The complainant estimated his damage at just under R2000,00. When
asked by the magistrate if he would be willing to accept
compensation, the complainant said; “I would settle for
R1500,00, your worship.” On count one the magistrate sentenced
the accused to a fine of R3000, 00 or three months’
imprisonment, suspended for five years on condition that he was not
convicted of assault during the period of suspension. In respect of
the conviction for malicious injury to property the magistrate
acted
in terms of
s 297
(1) (A) of the
Criminal Procedure Act and
postponed the sentence for three months on condition that the accused
paid the complainant R1200,00 in compensation which he was
ordered to
do in instalments. The magistrate ordered the accused to return to
court on 5 July, 2001 with proof that he had paid
the complainant in
accordance with the court order.
[5]
During the course of a routine inspection, the senior magistrate came
across this matter and doubted the correctness of the
conviction of
malicious injury to property as a competent verdict on a count of
theft. The senior magistrate referred a query in
this regard to the
trial magistrate who agreed that the matter should be sent to this
Court on special review in order to obtain
clarity.
[6]
Ever since the case of R v Mashanga
1
it has been clear in our law that malicious injury to property
consists in the unlawful, intentional damaging of the property of
another. All those elements were present in the proven facts before
the learned magistrate. But, was the verdict competent in terms
of
s
270
of the
Criminal Procedure Act?
[7
]
Section 270
of the
Criminal Procedure Act reads
as follows:
If
the evidence on a charge for any offence not referred to in the
preceding sections of this chapter does not prove the commission
of
the offence so charged but proves the commission of an offence which
by reason of the essential elements of that offence is
included in
the offence so charged, the accused may be found guilty of the
offence so proved.
Malicious
injury to property does not appear in the preceding sections of the
chapter as a competent verdict on a charge of theft.
The relevant
question is this: are essential elements of the offence of malicious
injury to property included in the offence of
theft with which the
accused was charged?
[8]
Ever since the case of R v Elling
2
it has been clear in our law that theft consists in an unlawful and
intentional appropriation (contrectatio) of a thing capable
of being
stolen with intent to deprive the owner of ownership. In the crime of
malicious injury to property the intention is to
damage property
rather than to deprive the owner of ownership, as is the position in
the case of theft. Although both offences
are ‘property
related’, the essential elements of malicious injury to
property, on the one hand and theft, on the other
are different. The
point raised by the senior magistrate was, accordingly, well founded.
[9]
The conviction of malicious injury to property and the sentence
imposed in respect thereof must be set aside. What of the
compensation
which the magistrate ordered the accused to pay the
complainant? It seems to me that the magistrate conducted the
proceedings in
a manner reminiscent of a chief in a lekgotla in days
gone by. The proceedings overall were firm, fair and expeditious.
Although
there must be interference with the conviction and sentence
in these review proceedings, there was no serious injustice done.
Accordingly,
if the accused did pay the compensation as he was
ordered to do, no special measures are necessary in order to ensure a
refund
of the money. Nevertheless, this judgment should be brought to
the attention of the accused.
[10]
The following order is made:
The
conviction of malicious injury to property and the sentence imposed
in respect thereof are reviewed and set aside.
DATED
AT JOHANNESBURG THIS 19th DAY OF SEPTEMBER, 2011
N.P.WILLIS
JUDGE
OF THE HIGH COURT
I
agree.
F.H.D
VAN OOSTEN
JUDGE
OF THE HIGH COURT
1
1924
AD 11
2
1945
AD 234