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[2019] ZAFSHC 194
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Mazibuko v S (R152/2019) [2019] ZAFSHC 194 (19 September 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: R152/2019
In
the matter between:-
FANA
ISHMAEL MAZIBUKO
and
THE
STATE
CORAM
:
MBHELE, J
et
MOLITSOANE, J
JUDGMENT
BY
:
MOLITSOANE,
J
DELIVERED
ON
:
19
SEPTEMBER 2019
[1]
This matter came before us as a special review in terms of
section
304(4)
of the
Criminal Procedure Act, 51 of 1977
. The
accused was charged with the offence of housebreaking with intent to
steal and theft. He was legally represented.
He pleaded guilty and
was convicted as charged. He was sentenced to three years direct
imprisonment.
[2]
It would seem that during Judicial Quality Assessment pertaining to
the appointment of the trial Magistrate, it was discovered
that the
section 112(2)
statement accepted in evidence disclosed the offence
of theft as opposed to housebreaking with intent to steal and
theft
for which the accused was charged and ultimately convicted. It
is for this reason that this case was sent for review.
[3]
The factual matrix underlying the conviction is encapsulated as
follows in paragraph 5 of the 112(2) statement:
“
On the day in question I went
to the complainant’s house, the windows were open. I went
inside and took the said items listed
above. I then took them to my
sister’s place because my shack is very small. The police came
the following day and arrested
me for the offence of housebreaking
and theft. The stolen items were recovered.”
[4]
The offence of housebreaking with intent to commit an offence
consists in unlawfully breaking and entering premises with the
intention to commit some other crime on the premises
[1]
.
The essential elements of this crime are namely, (i) unlawful; (ii)
intention; (iii) breaking into (iv) entering; (v) premises;
(vi) to
commit some other offence.
[5]
For the crime of housebreaking with intent to commit an offence to be
complete, over and above the other elements, the entry
into the
premises must have been preceded by ‘breaking in’. Where
the element of ‘breaking’ is lacking
there is no crime of
housebreaking committed. To ‘break into’, means to create
a way into the premises by displacing
some or other obstruction which
forms part of the premises
[2]
.
The court in
S
v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO
[3]
said that an unlawful entry into the premises through an open window
does not constitute a ‘breaking’.
In
S v Maunatlala
[4]
the accused entered the complainant’s room through an open
window, stole a bicycle and then left by opening a locked door
from
the inside. He was convicted in the lower court of housebreaking with
intent to commit theft and theft. On review the conviction
was
altered to one of theft.
[6]
Returning to the matter in hand. If one were to have regard to the
statement of the accused above, one cannot conclusively say
that the
accused entered the house of the complainant through a window. What
the accused says is that upon arrival at the complainant’s
house he found the windows open. It is unclear if he entered through
any of those open windows or how he gained entry into the
premises.
The 112(2) statement is silent as to how the accused gained entry
into the premises. The Magistrate also did not question
the accused
on the 112(2) statement handed in evidence with reference to the
alleged facts in order to satisfy herself that the
accused admitted
all the elements of the crime. I am, however, satisfied that the
accused gained entry into the house of the complainant
and stole the
items listed in the charge sheet.
[7]
In my view it has not been established that the accused broke into
the premises in order to steal. Even if it may be accepted
that he
gained entry through the open window, it has still not been admitted
or proven that he displaced any part of that window
in order to gain
entry. A conviction on a charge of housebreaking with intent to steal
and theft can thus not stand and ought to
be altered to one of theft.
[8]
The Court did not hold an enquiry into the fitness of the accused to
possess a firearm. The Public Prosecutor, the defence lawyer
and the
Court were of the mistaken view that because the accused had already
been declared unfit to possess a firearm it was unnecessary
to hold a
further enquiry. This assumption is wrong.
[9]
Firstly, it is clear from s104 (1)(b) of the Firearms Control Act(the
Act) that the accused who has been declared unfit to possess
a
firearm may appeal such an order. If that is the case the previous
order may, if the appeal is successful, be set aside. This
in my view
is one of the reasons why an enquiry should be held as a matter of
course where applicable.
[10]
Secondly, in terms of 9(4) read with section 2(p) of the Act the
disqualification contemplated in s103 of the said Act expires
at the
end of a period of five years calculated from the date on which the
person became or was declared unfit, or the expiry of
the period for
which the declaration is valid, whichever occurs first. The fact that
the period of declaration of invalidity to
possess a firearm expires
makes it more of the reason to always hold an enquiry contemplated in
sections 103(1) and (2).
[11]
Thirdly, where an accused is convicted for an offence and sentenced
to direct imprisonment without an option of a fine he becomes
ex
lege
unfit to possess a firearm. In
S
Mkhonza
[5]
the following was said:
“
The manner in which s103 (1)
operates is that the disqualification of the accused is automatic
unless the court orders otherwise.
The source of the disqualification
may therefore be seen as the statute, rather than an affirmative
decision of the court. The
implication seems to be that if the
question is not raised before court then the convicted person ipso
facto is unfit to possess
because s103(1) says so.”
[12]
The accused was convicted and sentenced to direct imprisonment. He
falls squarely under the provisions of s103 (1) of the Act.
The court
was obligated to have held an enquiry into the accused’s
fitness to hold a firearm. He became unfit to possess
a firearm
automatically by operation of the law. The court failed to hold a
peremptory enquiry into his fitness to hold a firearm.
While the
accused was legally represented, it would go against every principle
of fairness to confirm the order of declaration
of invalidity without
having afforded him the opportunity to lead evidence or make
representations. The order of declaration of
invalidity cannot stand.
[13]
ORDER
I
accordingly propose the following order:
1.
The conviction on a charge of housebreaking with
intent to steal and theft is set aside and is substituted with
the following:
‘
Accused is guilty
of theft’.
2.
The accused is not unfit to possess a firearm.
___________________
P.E.
MOLITSOANE, J
I
agree and it is so ordered.
_______________
N.
M. MBHELE, J
[1]
Principles of Criminal Law by Jonathan Burchell 3
rd
ed
at page 857.
[2]
See Burchell (
supra
)
at 861.
[3]
1989(3) SA 368 at 385.
[4]
1982(1) SA 877.
[5]
2010(1) SACR 602 (KZP) at par [14].