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[2016] ZANCHC 35
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S v Erasmus (229/2015, 17/2016) [2016] ZANCHC 35 (4 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
YES
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
VICTORIA
WEST CASE NO:
229/2015
REVIEW
NO:
17/2016
DATE
DELIVERED:
04/11/2016
In
the matter between:
THE
STATE
and
ERASMUS,
CLAUDE
Accused
Coram:
Olivier
J
et
Erasmus
AJ
JUDGMENT
Olivier
J:
[1.]
In
this matter the annexures to the charge sheet reflect a charge of
housebreaking with intent to steal and theft, an alternative
charge
of theft and a second alternative charge of trespassing
[1]
.
[2.]
Before
any charge was put to the accused, Mr Claude Erasmus, the prosecutor
indicated that the main count of housebreaking with
intent to steal
and theft was withdrawn. The record reflects the following
statement by the prosecutor:
“
We
will be withdrawing count 1, the main count posing
(sic)
to
the alternative been
(sic)
the
theft charge your worship and the trespassing charge
”.
[3.]
The
word “
been
”
is most likely a transcription error and should probably have read
“
being
”,
but it is more difficult to understand or find an explanation for the
word “
posing
”
in the particular context.
[4.]
The
record reflects, after the note “
PROSECUTOR
PUTS ALTERNATIVE COUNT
”,
the wording of the first alternative count, presumably as put to the
accused, and immediately thereafter the note “
PROSECUTOR
PUTS SECOND ALTERNATIVE
”,
followed by the wording of the second alternative count (again
presumably as put to the accused).
[5.]
Attempts
by Adv T E Barnard of the Office of the Director of Public
Prosecutions to have the
epsissima
verba
of the prosecutor transcribed, with a view to determining whether the
two alternative counts were put to the accused in the alternative
or
as two substantive counts, were unsuccessful.
[6.]
I
agree, however, with Mr Barnard’s submission that all
indications are that the two alternative counts were put to the
accused
as two substantive counts, and not the one in the alternative
to the other.
[7.]
The
accused, who had been legally represented, pleaded guilty to both the
theft and the trespassing charges, himself referring to
them as
respectively count 2 and count 3.
[8.]
In
his written statement in terms of section 112(2) of the
Criminal
Procedure Act
[2]
the accused admitted the elements of both crimes, and explained that
he had entered into the premises (“
yard
”)
without permission and that he had removed a handbag through an open
window, and then from the handbag a cell phone.
He concluded
his statement by declaring that he pleaded guilty “
to
both charges of theft and trespassing
”.
[9.]
The
legal representative of the accused, Mr Mabaza, confirmed that the
pleas of guilty to both counts were in accordance with his
instructions from the accused.
[10.]
The
accused was subsequently convicted on both the charge of theft and
the charge of trespassing.
[11.]
It
is clear that the understanding of all concerned was that, after the
withdrawal of count 1, the two alternative counts would
apply and
remain as two separate and substantive counts. The two counts
were, as already mentioned, referred to in the section
112(2)
statement as count 2 (theft) and count 3 (trespassing). The
same approach was adopted in the judgment, when the accused
was
convicted “
op
aanklagte 2, diefstal en klagte 3 oortreding
”.
[12.]
The
annexure containing the theft charge describes or numbers it,
immediately after the words “
Count
no/Aanklag nr
”,
as “
Alt
”,
while the annexure pertaining to the trespassing charge reflects the
description “
2
nd
Alt
”
as the number or reference of that charge. These references
would have made sense at the time when the main charge
of
housebreaking still applied, but after its withdrawal there was no
charge left in respect of which the theft and trespassing
charges
could be first and second alternative counts. These parts of the
wording of the theft and trespassing charges are therefore
obviously
not an accurate reflection of how the parties and the Magistrate
eventually understood the position.
[13.]
This
anomaly can be cured by simply amending the particular two annexures
to substitute the numbers or descriptions “
Alt
”
and “
2
nd
Alt
”
with, respectively, the numbers 1 and 2.
[14.]
Such
a formal amendment could cause no conceivable prejudice to the
accused and is competent on review
[3]
.
[15.]
That
is not, however, the end of the matter. The Magistrate also
raised the question whether the two convictions do not amount
to a
duplication. I am indebted to Adv. Jansen of the Office of the
Director of Public Prosecutions for her legal opinion
in this regard.
[16.]
Over
time different tests have crystallised in this regard. One
approach would be to consider whether the evidence on the
one charge
would also prove the other, and another would be to consider whether
the different acts were committed with a single
intent and as part of
one criminal transaction
[4]
.
The definitions and elements of the different offences would also be
a valid consideration
[5]
.
[17.]
In
S
v Whitehead and Others
[6]
these tests were referred to as “
simply
useful practical guides
”
and it was held that “
if
these tests fail to provide a satisfactory answer, the matter is
correctly left to the common sense, wisdom, experience and sense
of
fairness of the court
”
[7]
.
[18.]
Although
the elements and definitions of the offences of trespassing and theft
differ, the accused in the present matter clearly
acted with a single
intent, namely to steal, and the trespassing and the eventual act of
removing the handbag, and from it the
cellphone, formed part of one
“
continuous
criminal transaction
”
[8]
.
[19.]
In
his section 112(2) statement the accused made this abundantly clear,
when he stated that he had entered the premises, and therefore
trespassed, after having noticed an open window and that he had done
so in order to commit the crime of theft.
[20.]
The
facts of the present matter are on all fours with those in
S
v Jazperson
[9]
,
where the accused had to trespass in order to gain access to the bag
that he wanted to steal from. The single intent test
was
applied and it was held
[10]
that, even though “
the
two acts… each, standing alone, would constitute criminal
conduct
”,
they “
were
committed… with a single intent, namely, to steal from the bag
in the tea garden
”.
[21.]
In
my view the accused’s ultimate goal was to steal. The act
of trespassing was merely incidental to the act of stealing,
and no
more than a step towards achieving that ultimate goal.
[22.]
To
this extent the facts of the present matter are distinguishable from
those in
Setlholo
v The State
[11]
.
There it was found
[12]
that
“
The
very offence of fraud was used to lure Bredenkamp to agree to pay the
bribe
”
[13]
,
and the act of fraud could therefore clearly not be said to have been
no more than incidental to the act of corruption.
[23.]
In
my view theft was the dominant intention of the accused in the
present matter
[14]
and the
conviction of trespassing therefore amounts to a duplication of
charges and should be set aside.
[24.]
The
conviction on the theft count is in accordance with justice in all
other respects and the following orders are therefore
made:
1.
IN
THE SECOND ANNEXURE TO THE CHARGE SHEET, SETTING OUT THE CHARGE OF
THEFT, THE REFERENCE TO THE COUNT NUMBER AS “
ALT
”
IS SUBSTITUTED WITH THE NUMBER “
1
”.
2.
IN
THE THIRD ANNEXURE TO THE CHARGE SHEET, SETTING OUT THE CHARGE OF
TRESPASSING, THE REFERENCE TO THE COUNT NUMBER AS “
2
ND
ALT
”
IS SUBSTITUTED WITH THE NUMBER “
2
”.
3.
THE
CONCICTION ON THE RENUMBERED COUNT 2 (TRESPASSING) IS SET ASIDE.
4.
THE
CONVICTION ON THE RENUMBERED COUNT 1 (THEFT) IS CONFIRMED.
5.
THE
MATTER IS REMITTED TO THE VICTORIA WEST MAGISTRATES’ COURT FOR
FURTHER PROCEEDINGS.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
S
L ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
[1]
In contravention of section 1(1) of the
Trespass
Act
, 6 of 1959
[2]
51 of 1977
[3]
Commentary on the Criminal Procedure Act
,
du Toit et al, 14-24A
[4]
Compare
S v Benjamin
en ‘n Ander
,
1980 (1) SA 950
(A)
at 956F - G
[5]
Compare
S v Grobler
en ‘n Ander
,
1966 (1) SA 507
(A)
at 511G – 512A
[6]
2008 (1) SACR 431
(SCA) ([2008] 2 All SA 257)
[7]
Ibid
, para [35]
[8]
Compare
S v Maneli
,
2009 (1) SACR 509
(SCA), para [8]
[9]
2013 JDR 1227 (Nm)
[10]
Ibid
, para [10]
[11]
An unreported judgment on appeal in this
Division, delivered on 19 June 2015 under case number 3/14
[12]
Ibid
, para [41]
[13]
There the two counts concerned were fraud and
corruption (in contravention of section 4(1)(a) of the
Prevention
and Combatting of Corrupt Activities Act
,
12 of 2004)
[14]
Compare
S v Skwari
,
1998 JDR 1002 (CkH), at p8