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[2015] ZAGPPHC 19
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S v Dibakwane (A935/14) [2015] ZAGPPHC 19 (8 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
HIGH
COURT REFERENCE NO:
414/14
MAGISTRATE'S
SERIAL NO:
3/14
MAGISTRATE'S
CASE NO:
D32/12
CASE
NO: A935/14
DATE:
8 JANUARY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
JUDGE'S
CHAMBERS
NORTH
GAUTENG HIGH COURT
PRIVATE
BAG 442
PRETORIA
0001
THE MAGISTRATE'S
OFFICE BELFAST
PRIVATE BAG X 601
BELFAST
1100
12 December 2014
In the matter
between:
THE
STATE
and
SOLLY
DIBAKWANE
CORAM:
HUGHES
J
et
SPECIAL REVIEW
JUDGEMENT
HUGHES J
1. This is a special
review in terms of Section 304(4) of the Criminal Procedure Act
51 of 1977 (the Act).
2. Solly Dibakwane,
the accused, was nineteen years of age when he was alleged to
have committed the offences charged with.
3. The accused was
charged with two counts of housebreaking with the intent to
steal and theft. In respect of count 1 the state
alleged that on
21 or 22 July 2012 and in Sakhelwa which is within the district
of Belfast the accused unlawfully and
intentionally broke into
and entered the home of Lucky Madonsela with the intent to
steal. He entered and stole the item as
set out under count 1 on the
charge sheet.
4. In the case
of count 2, the accused allegedly broke into and entered the
house of Phillip Mbeyane. He stole the items
listed under count 2 on
the charge sheet. The second count also occurred on 21 July 2012
in Sakhelwe, in the district
of Belfast.
5. At the
commencement of the trial the accused pleaded guilty to both counts.
The court questioned the accused to verify his
guilty plea. With
regards to count 1, when asked by the court how he had gained
entry into Lucky Madonsela's premises?
The accused response was
that he had found the door of the premises open so he just
entered.
6. When questioned
on count 2, he explained that he had gained entry into Phillip
Mbeyane home by putting his hand through
a hole that was in the
window and in doing so he was able to open the window from the
outside of the premises.
7. The court,
rightfully I might add, entered a plea of not guilty in respect
of count 1 and a plea of guilty in respect of
count 2.
8. The complainant
in count 1, Lucky Madonsela, was called to give evidence. The
accused conducted his own defence. The accused submitted
to the
complainant that when he had arrived at his home the door was open
and had already been broken. Lucky Madonsela replied
that when he
returned he found the broken door and spade. See below the
record of the accused's submission and the complainants
answer
thereto:
’
V:
Toe ek by die huis
kom kry ek dis oop, dit was klaar oopgebreek, maar daar het niemand
ingegaan nie?
A:
Ek het die gebreekte deur gekry en die graaf
."
9. From the above it
is evident that the state did not prove that the accused broke
into Lucky's premise. In addition no evidence
was adduced to
dispute the explanation preferred by the accused as to render it
being unfounded and untrue. The unlawful,
intentional breaking
into the premises of the complainant in count 1 was regrettably
not proven by the state beyond a
reasonable doubt.
10. The accused only
admitted entering the premises and removing the goods as set out
under count 1 of the charge sheet. In
the circumstances, the
removal of the complainant's property resulted in the crime of
theft (the unlawful intentional
appropriation of certain property)
being established instead. This is further confirmed by the accused's
explanation.
11. The magistrate
who presided over this case is now deceased. He pronounced the
accused guilty as charged of count 1. The
additional magistrate, Mr V
B Cooke, who is now seized with this case, had the matter referred to
this Court for an order setting
aside the conviction in respect
of count 1 and substituting same with a conviction of theft.
12. In the
circumstances this court exercises its powers in terms of section
304(4) of the Act in ensuring that the proceeding
are in accordance
with justice and sets aside the conviction in count 1
of housebreaking with intent to steal and theft
and replaces it
with theft.
13. The sentence
imposed by the magistrate's court took counts 1 and 2 as one for
purpose of sentencing. The sentence imposed
was eighteen (18)
months correctional supervision in terms of section 276(1) (h)
of the Act. In arriving at this sentence
a correctional supervision
report was procured and this report declared the accused "fit
to be placed under correctional
supervision as sentenced".
14. This case was
brought before the magistrate, Mr V B Cooke, for reconsideration
of the sentence in terms of section 276A
(4) (a) of the Act. The
magistrate seeks of this court to "infer that the accused is
not fit to be subjected to
correctional supervision" and that
the sentence in count 2 be confirmed in terms of the provisions
of section 276A
(4) (a) of the Act. It further seeks that the
sentence in count 1 be set aside and referred back to the
magistrate's court, after
the setting aside of the initial conviction
to that of theft.
15. In terms of
section 275 (1) of the Act this court may after consideration of
the record vary, add to or pass sentence
afresh. In the
circumstances this court has the power to confirm the
sentence imposed for count 2 of correctional supervision
in
terms of 276 (1) (h). The sentence in respect of the conviction
on count 1 of theft in terms of section 275 (1) can
be referred
back to the magistrate who is now seized with this case.
16. In the
circumstances I make the following order:
16.1 The conviction
in respect of count 1 housebreaking with intent to steal and
theft is set aside, replaced with a conviction
of theft and is
in terms of section 275 (1) of the Act remitted to the
magistrate for sentencing.
16.2 The
sentence of correctional supervision in terms of section 276(1)
(h) in respect of count 2 for a period of eighteen
(18) months
is confirmed.
W. Hughes Judge of
the High Court
I concur and it is
so ordered:
V. V. Tlhapi Judge
of the High Court