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[2016] ZAGPPHC 402
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S v Lebeko (A325/2016, B74/2013) [2016] ZAGPPHC 402 (24 May 2016)
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IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
Date24/05/2016
Case
No: A325/2016
Case
No:
B 74/2013
In the matter between:
The State
and
Tshepiso Samuel
Lebeko
REVIEW
JUDGMENT
Maumela J.
1.
This
matter came
before
court
as
a
special
review
in terms of
section
304
(4) of the
Criminal
Procedure
Act
1977
[1]
:
"
Criminal
Procedure
Act"
;.
Before the
magistrate
for the
district of
Potchefstroom, held at Fochville, the court
a quo,
"the
accused", Tshepiso Samuel Lebeko, appeared together with two
co-accused persons.
2. They were charged
as follows:
Accused number 1 was
charged with the following two offences:
1.1.
House breaking with intent to steal and Theft and
1.2.
Attempted House breaking with intent to steal and Theft. Accused
number 2 and 3 were each charged with Attempted House breaking
with
intent to steal and Theft.
3. The allegations on
count one were that upon or about 15 February 2013, and at or near
[…], in the district of Fochville,
the accused did unlawfully
and intentionally and with the intent to steal, break open and enter
the house of Ntefeleng Jacobeth
Janjie and did wrongfully and
intentionally steal the following items; to wit R 200-00 in cash, 1x
camera, 3x cell phones and clothing,
the property or in the lawful
possession of Ntefeleng Jacobeth Janjie.
4. On count 2
allegations were that upon or about 19th of February 2013, and at or
near […], in the district of Fochville,
the accused did
unlawfully and intentionally and with the intent to steal, attempt to
break open and enter the house of Thabiso
Obed Monnagadise, and did
there and there wrongfully and intentionally attempt to steal house
items; the property or in the lawful
possession of Thabiso Obed
Monnagadise.
5. Relevant to this
case, before the court a
quo,
accused number 1, pleaded guilty
to both charges. On both counts the court proceeded in terms of
section 112
(1) (b) of the
Criminal Procedure Act. The
court
concluded that that accused number 1 admits all the elements in the
charges against him. It convicted him as charged in both
counts.
6.
Accused number 2 and 3 were only charged with count 2; (Attempted
House breaking with intent to steal and Theft). They both pleaded
guilty to count 2. The court proceeded against them further in terms
of
section 112
(1) (b) of the
Criminal Procedure Act. The
court
a
quo
then convicted both of them, (accused 2 and 3), of Attempted
Theft.
THE EVIDENCE.
7. Responding to
questions put to him in terms of
section 112
(1) (b), accused number
one told court concerning count 2 that he and his two co-accused were
prowling the streets on the day of
the incident. As they passed near
the house of the complainant in count two; they noticed that the
windows were not properly secured.
8. Relevant to the
case
now
before court, concerning count 2, the court
a quo
proceeded in terms of
section 112
(1) (b) against accused number
1. Accused number 1 admitted that he, together with his two
accomplices entered the premises of
the complainant in count 2,
(Thabiso Obed Monnagadise). He told court that the three of them
noticed that a window of a room at
the complainant's place was not
safely secured.
9. He stated that
while he and his colleagues were still making efforts to open the
window, the noise they made drew the attention
of the complainant.
The complainant discovered the threesome's felonious intent and gave
chase. He apprehended accused number 2
while accused number 1 and 3
escaped. Accused number 1 stated that it is then that he immediately
left for home.
10. On the basis of
the answers accused number 1 gave in response to questions by the
court
a quo
in terms of
section 112
(1) (b) of the
Criminal
Procedure Act, the
court
a quo
convicted accused number two of
Attempted House Breaking with Intent to Steal and Theft.
accused
number 1 can be correctly convicted of attempted house breaking with
intent to steal and attempted.
Based on the above,
the conviction of accused number 1 on count 2 which is a conviction
on Attempted House Breaking with Intent
to Steal and Theft stands to
be set aside, and substituted by one of Attempted House Breaking with
Intent to Steal and Attempted
Theft. The case has to be remitted back
to the court
a quo
so that an appropriate sentence can be
imposed upon accused number one for purposes of count 2. The
following order is made:
ORDER.
1. The conviction of
accused number one by the court
a quo
on a charge of Attempted
House Breaking with Intent to Steal and Theft, is set aside, and it
is substituted by a conviction of accused
number 1 on Attempted House
Breaking with Intent to Steal and Attempted Theft.
2. The case is
remitted back to the magistrate for the district of Potchefstroom,
held at Fochville, for an appropriate sentence
to be imposed upon
accused number 2 for purposes of the conviction on count 2.
___________________
T. A.
Maumela.
Judge of
the High Court of South Africa.
I
agree.
_______________
A.
H. Petersen
Acting
Judge of the High Court of South Africa.
11. Subsequent to
sentencing the matter came before the High Court on review in terms
of
section 304
of the
Criminal Procedure Act. The
honourable
reviewing judge sent a query to the magistrate, questioning the
conviction of accused number 1 on count 2. In response
the magistrate
conceded that on count 2, accused number 1 should have been convicted
of Attempted House Breaking with Intent to
Steal and Attempted Theft;
instead of House Breaking with Intent to Steal and Theft.
12. Comments of the
Director of Public Prosecutions were solicited and the latter
responded to the effect that accused number 1
should indeed have been
convicted of Attempted House Breaking with Intent to Steal and
Attempted Theft, instead of House Breaking
with Intent to Steal and
Theft.
13. The court is to
consider whether or not to set aside the conviction of accused number
1 on count 2 by the court a
quo
which had convicted him of
House Breaking with Intent to Steal and Theft. Evidence proved that
accused number 1, together with his
accomplices only went as far as
attempting to open a window at complainant's house. Their noise drew
the attention of the complainant
who took immediate measures to
counter the intruders. He apprehended
accused number 2 while
accused number 1 and 3 escaped, whereupon accused number 1 ran home.
14. The available
evidence only proved an attempt on the part of accused number one and
his accomplices to break open,
and to enter the house
of the complainant in count two. The further shows that when the
complainant in count two discovered what
was about to happen he
chased after the would-be criminals, apprehending accused number 2.
15.
In the
case of
R v
Schoombie
[2]
.
the court
stated that
there are
two
types
of
attempt
to
commit
an
offence.
The two
types of attempt are:
(a).
Those in which the wrongdoer, intending to commit a crime, has done
everything which he set out to do but has failed in his
purpose
either through lack of skill, or of foresight, or through the
existence of some unexpected obstacle, or otherwise, and
(b).
Those in which the wrongdoer has not completed all that he set up to
do, because the completion of his unlawful act has been
prevented by
the intervention of some outside agency. To the latter may be added
the case where the completion by the wrongdoer
of his unlawful acts
has been prevented by his changing his mind and the desisting from
the actual commission of the crime.
16. In this case
accused number one and his accomplices noticed that a window at the
complainant's house was not safely secured.
They entered the premises
and started efforts to open the window. They attempted to open the
window. The reason behind the opening
of the wind was so as to bail
items from within the house. They could not succeed in committing the
crime intended because the
complainant in count 2 interrupted them,
and chased them off, eventually apprehending accused number 2.
17.
In S v Du
Plessis
[3]
Corbett JA
stated:
"The
decision
any
particular
case
as to whether or not, at the moment of interruption or
prevention
(of
the accused's unlawful acts), the conduct of the accused had
progressed
beyond
the
stage of
preparation
and
constituted a commencement
of
the consummation
must
in the last resort become effectual enquiry relating to the
particular
circumstances
of
the case in which the following factors, among others,
would
play
a
part:
whether
the state the accused had made up his mind the crime, the degree of
proximity
or
remoteness
with
that arrested conduct bore to what would have been the final act
required
for
the commission
of
the crime and,
generally,
considerations
of
practical
common
sense. It is doubtful whether any greater precision
than
this can be achieved.
To
constitute an attempt
(a) there must have been
at the time of interruption
an intention to commit the
contemplated crime, and (b) it must appear that the party
concerned
had embarked
upon a
series of acts,
which had beyond the preparation
stage, and which, if not interrupted,
would have
led to the commission
of the crime."
18. When the
complainant in count two interrupted accused number one and his
accomplices they had conceived the intention to break
into
complainant's premises and to steal property from there within. They
jumped over the fence. They approached a window and shifted
it, so as
to open it. While doing so they made noise enough to draw the
attention of the complainant. They had already embarked
upon efforts
to open a window so as to gain entry and to steal property as
intended.
19.Accused number 1
and his accomplices were interrupted. They had clearly formulated the
intention to steal. They embarked upon
the series of acts outlined
above.
20. It is clear that
accused number 1 and his accomplices did not have a change of heart
about their intended crime. They were rather
interrupted by the
complainant. Had the complainant not been home, accused number 1 in
his accomplices would have proceeded to
break into
complainant's premises
and they would have stolen property there in. In this regard the
attempt on the part of accused number one
was completed.
21. From the answers
accused number 1 provided when the court
a quo
questioned him
in terms of
section 112
(1) (b) of the
Criminal Procedure Act the
intention behind breaking in was to steal property there in. It is
for that reason that
[1]
Act
No
51 of 1977.
[2]
1945 A.O.
541, at
page 545 -
6.
[3]
1981 (3) SA 382
(A).