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[2024] ZAECMKHC 29
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S v Qina (B488/2023) [2024] ZAECMKHC 29; 2024 (2) SACR 310 (ECMk); 2024 (2) SACR 580 (ECMk) (15 March 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – MAKHANDA
REPORTABLE
Appeal
Case No: B488/2023
Date
Received: 26/02/2024
Date
Delivered: 15/03/2024
In
the matter between:
THE
STATE
and
ZOLANI
QINA
Accused
REVIEW
JUDGMENT
Notyesi
AJ
Introduction
[1]
These
proceedings served before this Court by way of a special review
ostensibly in terms of section 304A
[1]
of the
Criminal Procedure Act, 51 of 1977
, as amended (the Act)
[2]
.
The matter was referred to this Court for review by the acting
Magistrate for the Magistrate’s District court of Humansdorp.
In that court, the accused had only been convicted of the offence
charged. This referral is prior to the imposition of a
sentence
and therefore,
section 304A
is the correct section to be invoked.
[2] Although
the Magistrate incorrectly referred to the provisions of
section
304(4)
of the Act in the referral, a careful consideration of the
circumstances and facts, which had led to this referral, leads to a
conclusion that the review must be in terms of
section 304A.
Despite
the shortcomings concerning incorrect reference to the applicable
section, the matter has been properly referred for review
by this
Court.
Background
[3] The
accused appeared before the acting Magistrate facing a charge of
housebreaking with the intent to
steal. The details of the offence in
the charge sheet are set out as follows -
‘
Housebreaking
with intent to steal –
In
that upon or about 17/11/2023 and at or near 5[...] C[...] Street,
H[...] in the SARAH BAARTMAN DISTRICT, SUB DISTRICT OF KOUGA
AT
HUMANSDORP, the accused did unlawfully and with the intent to steal,
break open and enter the home of Sonopolo Gallant with
intent to
steal.’
[4] At
the commencement of the trial before the acting Magistrate, the
accused was legally represented by
an attorney from the Legal Aid
Board of South Africa. The charges were put to the accused and
through his legal representative,
he pleaded guilty. Consequent to
the plea of guilty, the accused’s legal representative handed
the court a statement presumably
prepared in terms of
section 112(2)
of the Act. The state accepted the plea, whereafter, the acting
Magistrate convicted the accused for the offence of ‘housebreaking
with the intent to steal’.
[5] It
is relevant to quote the material admissions of the accused as
recorded in the
section 112(2)
plea statement. The statement is in
the form of a
pro forma
of which I assume has been prepared by Legal Aid South Africa. It has
blank spaces in which must be completed. In paragraph 1 of
the
ostensible plea statement, the accused had stated as follows-
‘
I
am the accused person in this matter and I understand the charge
against me - housebreaking with intent to steal.’
[6] In
paragraph 5.2 of the statement, the accused stated –
‘
I
admit that on this particular day, I unlawfully broke open the
mentioned address by forcing the kitchen door open. I entered the
premises with the intention to see what I can steal there. I admit
that I was then apprehended by the owner and handed over to
the
police. I apologise for my actions.’
[7] The
acting Magistrate, who was in possession of the statement of the
accused, convicted the accused after
his consideration of the plea
and the statement purportedly under
section 112(2)
which was in
answer to the particulars of the charge that was put to him, and
which the prosecution had accepted. The accused was
convicted on 15
February 2024 and the request for review, according to the
Registrar’s stamp, was received on 23 February
2024. The matter
was brought before the reviewing judge on 26 February 2024.
The
brief statement for request of the acting Magistrate
[8] In
the referral, the acting Magistrate confirmed that the annexure to
the charge sheet reads that the
accused was guilty of the offence of
housebreaking with the intent to steal. The acting Magistrate had
convicted the accused on
the charge presented by the state as set out
in the annexure to the charge. The acting Magistrate stated that
after convicting
the accused, it was brought to her attention that
the charge upon which the accused has been convicted, is defective.
The acting
Magistrate states that she had erroneously convicted the
accused on a defective charge. She contended in her referral letter
of
the matter that, although the accused had been convicted on a
defective charge, in her consideration of
section 112(2)
of the
accused’s plea statement and the plea, the accused would be
guilty of the offence of housebreaking with intent to
steal and
attempted theft.
[9] The
acting Magistrate requests for this Court to set aside the conviction
of the accused and to refer
the matter back for the accused to be
convicted afresh after a proper charge had been put up by the state
against the accused.
Legal
framework
[10]
Section
35(3) of the Constitution
[3]
provides that – every accused person has a right to a fair
trial, which includes the rights –
(a) to
be informed of the charge with sufficient detail to answer it.
(b) …
(c) …
(d) to
have their trial begin and conclude without unreasonable delay.
[11]
Section
35(3) underscores the procedural fairness of a trial and there is a
symbiotic relationship between subsection 35(3)(a) and
(b). Section
35(3), in essence, lists fifteen procedural rights of an accused that
would accord with a fair trial of that accused.
In
S
v Jaipal
[4]
,
a
case dealing with the constitutional rights of an accused person to a
fair trial, the Constitutional Court, after analysis of
various cases
referred to therein, held –
‘
[26]
Section 35(3) of the Constitution states that every accused person
has a right to a fair trial. The basic requirement
that a trial
must be fair is central to any civilized criminal justice system.
It is essential in a society which recognises
the rights to human
dignity and to the freedom and security of the person, and is based
on values such as the advancement of human
rights and freedoms, the
rule of law, democracy and openness. The importance and
universality of the right to a fair trial
is evident from the fact
that it is recognized in key international human rights
instruments...
[29]
The right of an accused to a fair trial requires fairness to the
accused, as well as fairness to the public as represented
by the
state. It has to instil confidence in the criminal justice
system with the public, including those close to the accused,
as well
as those distressed by the audacity and horror of crime.’
[12] Chapter
14 of the
Criminal Procedure Act is
dedicated to the charge.
Section
84
of the same Act deals with the basic essentials of a charge. The
section provides as follows –
‘
(1)
Subject to the provisions of this Act and of any other law relating
to any particular offence, a charge shall set forth the
relevant
offence in such manner and with such particulars as to the time and
place at which the offence is alleged to have been
committed and the
person, if any, against whom and the property, if any, in respect of
which the offence is alleged to have been
committed, as may be
reasonably sufficient to inform the accused of the nature of the
charge.
(2)
Where any of the particulars referred to in subsection (1) are
unknown to the prosecutor it shall be sufficient to state that
fact
in the charge.
(3)
In criminal proceedings the description of any statutory offence in
the words of the law creating the offence, or in similar
words, shall
be sufficient.’
Discussion
and analysis
[13] The
accused faced a charge of housebreaking with the intent to steal,
that being the charge preferred
against him by the state. The accused
can only plead to the charge put against him. The Annexure to the
charge sheet indubitably
set out the charge that had been preferred
by the state. The summary of the accused’s response as set out
in the
section 112(2)
statement is self-evident and I quote below –
‘
I
admit that on this particular day, I unlawfully broke open the
mentioned address by forcing the kitchen door open. I entered the
premises with the intention to see what I can steal there. I admit
that I was then apprehended by the owner and handed over to
the
police. I apologise for my actions.’
[14] The
proposition by the acting Magistrate that the accused could be
convicted of, and punished for, housebreaking
with intent to steal
and attempted theft is wrong and lacks appreciation of the facts of
the case and substantive law regarding
specific offences. I elaborate
below.
[15] The
accused, in his plea statement, emphasized that he entered the
premises with the intention ‘to
see what he can steal there’.
That was the only version provided in the statement of the accused.
There are no other facts
that were placed before the acting
Magistrate other than those set out in the accused’s plea
statement.
[16]
It
is indeed a long-standing practice that an accused who breaks in and
enters premises at which he commits an offence would be
charged with
one composite offence of house breaking with intent commit such an
offence, and of committing the specific offence
concerned. However,
it is instructive to issue a reminder that the offence of
housebreaking with intent to commit an offence, whether
under common
law or statute, is separate a offence on its own.
[5]
Regarding the offence of housebreaking with intent to steal,
that this is so, was held in
S
v Zamisa
[6]
when Thirion J said:
‘
It
is settled practice to charge as one count the crime of housebreaking
with intent to commit a crime and the crime itself, which
was
committed in consequence to the breaking and for the purpose for
which the breaking in was committed. So much so this is the
practice
that only one sentence is imposed in respect of a conviction of
housebreaking with intent to commit a crime and the further
crime, to
commit which the breaking was effected. That circumstance, however,
does not do away with the fact that the house-breaking
with intent to
commit the crime is in itself a distinct crime which is separate
from, and not dependent upon, the crime committed
after entry has
been effected.’
[17]
In
S
v Cetwayo
[7]
it
was held:
‘
It
is trite that housebreaking with intent to commit an offence is in
itself a substantive offence (see
s 262
of Act 51 of 1977) and that
it is a separate offence from the actual offence, for the purpose of
which the housebreaking was committed,
if such be committed.’
[18]
In
the present case, the charge does not state that the accused is
charged with ‘housebreaking with the intent to steal and
attempted theft.’ It must be remembered that ‘housebreaking’
entails “
(a)
‘
breaking’
in the legal sense of displacement of obstruction to entry of a
structure or premises;
(b)
entering
which
is
physical
presence by any part of person inside the structure;
and
(c)
acting
unlawfully and intentionally
.
[8]
It is the intention to commit a crime that makes housebreaking an
offence.
[19] In
his plea statement the accused makes it abundantly clear that he
unlawfully entered the home of the
complainant by forcing the kitchen
door open, and that his intention in so doing was to steal. This, in
my view, establishes the
offence of housebreaking with intent to
steal as a distinct offence. That he was caught by the owner of the
house before he could
steal anything does not establish an offence of
attempted theft.
[20] An
attempt to commit a crime requires that the actions of the accused
had gone beyond mere preparation
to commit that crime. No facts were
placed before court to show that the accused’s actions had
reached a stage of a complete
and punishable attempt. In fact, in his
plea statement, the accused does not state what he was doing once
inside the house at the
time he was apprehended by the owner. It
cannot, therefore, be correct that there would be any basis on which
the accused would
be convicted of attempted theft which would have
resulted from his breaking in the complainant’s house.
[21] In
the circumstances of the present review, I hold a view that the
offence with which the accused was
charged is complete as it stands.
I can hold no otherwise than to confirm the conviction.
Conclusion
[22] It
is worth remarking about the acting Magistrate’s suggestion in
her referral, that the accused
would suffer no prejudice if the
matter is remitted back to the court
a quo
. On careful
scrutiny of the record, the accused is prejudiced. The accused first
appeared at Court B on 20 November 2023. The case
was remanded to 27
November 2023. On 27 November 2023, the case was further postponed to
29 November 2023. On 29 November 2023,
the case was further postponed
to 6 December 2023. On each occasion, the accused was remanded in
custody.
[23] On
6 December 2023, the case was postponed to 8 January 2024. Still, the
accused was remanded in custody.
On 8 January 2024, the case was
postponed to 30 January 2024 for SAP69. The accused was to remain in
custody. On 30 January 2024,
the case was remanded to 1 February 2024
for attorney and possible plea. On 1 February 2024, the case was
postponed to 14 February
2024 for a plea. On 14 February 2024,
the case was remanded for 15 February 2024. On 15 February
2024, the accused
and he was called upon to plead. According to the
record, the accused was represented by a Legal Aid attorney who on
many occasions
had sought for postponements, abandoned the launch of
bail and in each occasion, promising that the accused would plead to
the
charge.
[24] I
have no doubt from the reading of the presented record that the Legal
Aid attorney had conducted the
case of the accused carelessly and in
an extremely casual manner. The accused had languished in jail in
circumstances where both
the state prosecutor and the legal
representative of Legal Aid Board of South Africa were the cause of
the delay. All these circumstances,
in my view, had seriously
prejudiced the accused.
[25] Self-evidently,
the postponements in this case, were simply granted without any form
of enquiry by the
presiding Magistrate. Throughout these
administrative mishaps, the accused was languishing in jail. I
conclude that the accused
had been severely prejudiced.
[26] The
acting Magistrate seeks to mitigate this apparent enormous prejudice
by asserting that the accused
was in custody in respect of another
matter, where he had not yet pleaded. Unfortunately, the suggestion
of the acting Magistrate
cannot be sustained. Section 35(3)(d) of the
Constitution stipulates that an accused person has a right to a fair
trial which includes
the right to have their trial begin and conclude
without unreasonable delay.
[27] For
the reasons set out above, this judgment should be brought to the
attention of the head of the relevant
justice centre of the Legal Aid
South Africa and the Director of Public Prosecution in the Eastern
Cape for investigations on the
role of the public prosecutor and the
Legal Aid attorney in causing the delays of the trial and the failure
of justice in the matter.
Order
[28] For
all the reasons stated above, I would accordingly make the following
order–
1. The
conviction of the accused
Mr Zolani Qina
of the offence of
‘housebreaking with the intent to steal’, in proceedings
held under case number B488/2023, Humansdorp
District court, is
confirmed.
2.
The
matter is remitted back to the Acting Magistrate who convicted the
accused to proceed with sentencing of the accused, subject
to the
provisions of section 275 of the CPA
[9]
in the event of the Acting Magistrate no longer being available.
3. The
Registrar of the High Court, Makhanda, is directed to make a copy of
the judgment available to both
the head of the Legal Aid Board of
South Africa justice centre responsible for Humansdorp Magistrate’s
Court and the Eastern
Cape Director of Public Prosecution for their
consideration and remedial actions, if any, relating to the
circumstances set out
under paragraphs 22 to 24 of the judgment.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
I
agree
L
RUSI
JUDGE
OF THE HIGH COURT
[1]
Section
304(4) provides – ‘If in any criminal case in which a
magistrate’s court has imposed a sentence which
is not subject
to review in the ordinary course in terms of section 302 or in which
a regional court has imposed any sentence,
it is brought to the
notice of the provincial or local division having jurisdiction or
any judge thereof that the proceedings
in which the sentence was
imposed were not in accordance with justice, such court or judge
shall have the same powers in respect
of such proceedings as if the
record thereof had been laid before such court or judge in terms of
section 303 or this section.’
[2]
Act No 51 of 1977, as amended
[3]
Constitution
of the Republic of South Africa, Act 108 of 1996,
[4]
S
v Jaipal
(CCT21/04)
[2005] ZACC1
[2005] ZACC 1
; ;
2005 (4) SA 581
(CC);
2005 (5) BCLR 423
(CC); 2005 (1)
SACR 215 (CC) (18 February 2005),
paras 25 & 26
[5]
Principles of Criminal Law, 5
th
Edition, by Johan
Burchell, at p765-771
[6]
1990 (1) SACR 22
(N) where at 23 d-e.
[7]
2002 (2) SACR 319
(E) at 321; see also
S
v Kulati
2002
(2) SACR 406
E.
[8]
S v
Hlongwane
1992
(2) SACR 484
(N) at 485A-E.
[9]
Section
275 (1): If sentence is not passed upon an accused forthwith
upon conviction in a lower court, or if, by reason
of any decision
or order of a superior court on appeal, review or otherwise, it is
necessary to add to or vary any sentence passed
in a lower court or
to pass sentence afresh in such court, any judicial officer of that
court may, in the absence of the judicial
officer who convicted the
accused or passed the sentence, as the case may be, and after
consideration of the evidence recorded
and in the presence of the
accused, pass sentence on the accused or take such other steps as
the judicial officer who is absent,
could lawfully have taken in the
proceedings in question if he or she had not been absent.