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[2019] ZAFSHC 222
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S v Kasa (R98/2019) [2019] ZAFSHC 222 (8 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
case number: R 98/2019
In
the matter between:
THE
STATE
and
LUCKAY KASA
CORAM:
MOLITSOANE, J et
OPPERMAN, J
JUDGMENT
BY:
MOLITSOANE , J
DELIVERED
ON:
8 AUGUST 2019
REVIEW JUDGMENT
[1]
This matter came before us on automatic review in terms of section
302 of the Criminal Procedure
Act 51 of 1977 (the CPA). The accused
was convicted on a charge of housebreaking with intent to commit an
offence unknown to the
prosecutor and sentenced to nine months
imprisonment of which six months thereof was suspended for five years
on certain conditions.
[2]
The following is the summarised factual matrix elicited during
questioning in terms of section
112(1)(b) of the CPA upon which the
conviction is based: The accused indicated that on one rainy
Friday he went out to look
for food at the taxi rank in Bloemfontein.
He did not find the food. Upon return he went past Ultra Liqours
Store. He entered
the gate and took stones and broke the window
of the said store. He thereafter entered the premises through
the said broken
window. An alarm went off and he also saw a security
guard walking outside. He ran towards the back of the premises and
hid in
the ceiling. He was later arrested. He explained to the court
that the reason that he broke and entered into the store was because
he wanted to go and steal as he thought that he would get money to
buy corrugated iron sheets in order to build himself a shack.
[3]
Upon receipt of this matter I caused the following query to be sent
to the Honourable Magistrate:
“
1.
During questioning in terms of section 112(1)(b) of Act 51 of 1977
the accused admitted that he entered the store
in order to go and
steal;
On what basis was he convicted of a
crime unknown when he expressly said he was going to steal. For which
offence should accused
have been convicted.”
[4]
The Honourable Magistrate promptly replied to the query raised for
which I am grateful.
He replied as follows:
“
1) It is indeed correct
that the accused admitted, during questioning that he entered the
store in order to go and steal,
expressly so.
2)
It is however my understanding
that the prosecutor is
dominis
litis
until, at least, the
court makes a ruling.
3)
The Hourable Judge will note
that I specifically asked the Prosecutor as to what charge should the
accused be convicted of. In this
regard I refer the Honourable Judge
to the last sentence of page 11 of the transcribed records.
4)
It is my humble submission that
the accused was correctly convicted of Housebreaking with intent to
commit a crime unknown to the
state, as that is what the prosecutor
accepted.
5)
My decision is based on my
reading and understanding of the following cases, to wit, S v Brown
2015(1) SACR 211 SCA; S v Cardozo
1075
1 SA 635
(T) and S v Ngubane
1985 3 SA 677
(A).”
[5]
In common law it was impermissible to convict an accused of an
offence of housebreaking
in circumstances where it was unknown what
his intentions were when he broke and entered the premises. The
position is now governed
by sections 95(12) and 262 of the CPA.
Section 95(12) provides as follows:
“
A charge relating to
housebreaking or the entering of any house or premises with intent to
commit an offence, whether the charge
is brought under the common law
or any statute, may state either that the accused intended to commit
a specified offence or that
the accused intended to commit an offence
to the prosecutor unknown.”
Section 95(12) must be
read with sections 262 and 263, of the CPA.
Kruger
[1]
opines that section 263 referred to the pre-1910 provincial
legislation of which most or all of it has been repealed by the
Trespass
Act 6 of 1959. According to him these provisions (s263) may
safely be ignored. I share the same sentiments.
[6]
While s95(12) creates an offence of housebreaking with intent to
commit an offence unknown,
s262 allows and empowers the court
to convict an accused where the evidence, and/ or the responses
elicited during
questionining in terms of s112(1)(b)
[2]
,
proves the commission of housbreaking with intent to commit a
specified or an unspecified offence. Section 262(2) specifically
provides that:
“
If the evidence on a charge of
housbreaking with intent to commit an offence to the prosecutor
unknown, whether the charge is brought
under a statute or the common
law, does not prove the offence of housebreaking with intent to
commit an offence to the prosecutor
unknown, but the offence of
housebreaking with intent to commit a specified offence or the
offence of malicious injury to property,
the accused may be found
guilty of the offence so proved.”
[7]
It is unnecessary to seek an amendment of the charge in terms
of section 86 of the CPA where the charge
alleges that house-breaking
with intent to commit an unknown offence was committed but the
evidence later proves that such
housebreaking was committed with the
intention to commit a known or specified offence
[3]
.
Commenting on this type of offence,
Jonathan
Burchell
[4]
says the following:
“
At common law such an offence
was not permitted, but the
Criminal Procedure Act sanctions
it. It
would seem that if X is charged with housebreaking with intent to
commit an offence unknown to the Prosecutor he cannot
be convicted
unless the evidence proves that he intended to commit some offence
known to our law.”
It
has to be borne in mind that housebraking,standing in isolation, is
not an offence. For it to attract criminal sanction, it must
be
accompanied by an intention to commit an known offence.
Buchell
[5]
goes on further to say:
“
But if the evidence reveal such
an intent, then it is logically contradictory and farcical to convict
of housebreaking with intent
to commit an offence unknown,because the
offence is known.”
[8]
Returning to the facts at hand, it is clear from the questioning
that the accused expressly
said that when he broke and entered
Ultra Liqour store his intention was to go and steal. He expressly
said that he thought that
he would find money to enable him to go and
buy some corrugated iron sheets in order to built himself a shack. It
would be illogical
and wrong to accept this evidence where the
intention is expressly revealed but ignore it in returning the
verdict.The court in
this case should have convicted the accused on a
charge of housebreaking with intent to steal in view of the express
intention
he revealed during questioning.
[9]
In
S v
Kesolofetse and Another
[6]
the accused where charged with housebreaking with intent to commit a
crime unknown to the prosecutor. They pleaded guilty and during
questioning they indicated that they had broken into the premises in
order to steal. They were convicted ‘
as
charged’
.On
review, in setting aside the conviction the court said the following:
“
[6] In my view, the mmagistrate
was therefore wrong to convict the accused in this case of the crime
of housebreaking with intent
to commit a crime to the prosecutor
unknown, for the simple reason that the ‘evidence’ did
not prove that offence.”
[7] Quite apart from this it would
obviously be senseless, and in fact misleading for record purposes,
to convict an accused on
the basis of his or her having had the
intention to commit a crime to the prosecutor unknown, where, at the
end of the day, it
is known to not only the prosecutor but indeed
also to the court what the intended crime was.”
(See also the unreported
decision of this court by Daffue, J Case 186/2012 delivered on 18
September 2012)
[10]
The magistrate seems to be under the mistaken impression that he is
bound by the decision of the prosecutor
on the issue of which charge
should the accused be convicted of. This mistake seems to arise on
the aspect of the right of
the prosecutor to accept a plea on a
lesser charge. There is no dispute that the prosecutor as
dominus
litis
has the right to accept a plea on any charge. That is the
prerogative of the state. If the state accepts certain facts by
the accused, then in that case the court is bound by those facts.The
court, however, in returning a verdict on the accepted plea
must be
satisfied that the facts in support of such a plea correlate with the
charge the state accepted. If the facts do not support
the charge
preferred, the court cannot convict on the said charge but may elect
to convict on a competent verdict or may enter
a plea of not guilty
in terms of
s113
of the CPA.
[11]
The court was alive to the provisions of
s262
of the CPA and to
illustrate the effect of the said section it even gave an example to
the accused to understand the import of
the provisions of this
section. In my view the conviction on a charge of housebreaking with
intent to commit an offence unknown
to the prosecutor must be set
aside and substituted with the conviction of housebreaking with
intent to steal. The sentence imposed
is in my view in accordance
with justice and stands to be confirmed. I make the following orders:
[12]
ORDER:
1.
The
conviction is set aside and substituted with the following: Accused
is found guilty of housebreaking with intent to steal.
2.
The
sentence is confirmed.
3.
The order
in terms of
s103(1)
is confirmed.
P.
E. MOLITSOANE, J
I
concur.
M.
OPPERMAN, J
[1]
Hiemstra’s Criminal Procedure
Act-Lexis Nexis at 26-24.
[2]
See S v Andrews 1984(3) SA 306(ECD)
where the court,
inter alia
,
dealt with the issue of whether the answers during
s112(1)(b)
constitute évidence.
[3]
Hiemstra (
supra
)
26-19.
[4]
Principles of Criminal Law-Juta. 3
rd
ed at 863.
[5]
Supra at 863.
[6]
2004(2) SACR 166 (NC) at 168