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[2013] ZAFSHC 199
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S v Sebokolo (279/2013) [2013] ZAFSHC 199 (31 October 2013)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
…
..........................................................................................................................................................................................................................................
Review
No.: 279/2013
In the review between:-
THE STATE
versus
TSIETSI SEBOKOLO
CORAM:
................................................
LEKALE,
J et SESELE, AJ
JUDGMENT BY:
...................................
SESELE,
AJ
DELIVERED ON:
.................................
31
OCTOBER 2013
[1] This is a special
review in terms of section 304(1) of the Criminal Procedure Act 51 of
1977 (the “CPA”).
[2] The matter was
referred to us by S.F. Ferreira, the Acting Senior Magistrate,
Welkom, with remarks to the effect that:
2.1. The accused was
convicted and sentenced by the Acting Magistrate, Ms F. Peterson on
27 August 2013.
2.2. The charge was
“housebreaking with the intent to assault”.
2.3. The accused was
convicted of the offences of housebreaking with intent to assault and
attempted assault.
2.4. The accused was
sentenced to 6 Months imprisonment which is wholly suspended for 3
years on condition that he is not convicted
of Housebreaking and
Assault, committed in the period of suspension.
2.5. In terms of
section
103(1)
of the
Firearms Control Act 60 of 2000
the accused was
declared unfit to possess a firearm.
2.6. In his opinion the
accused was prejudiced by being convicted for an offence he was not
originally charged with. The sentence
is also not in accordance with
section 262
of the
Criminal Procedure Act 51 of 1977
.
2.7. He proposes that the
conviction be changed to: “Guilty: Housebreaking with the
intent to assault “.
2.8. He further suggests
that the sentence be altered to:
“
6
Months imprisonment which is wholly suspended for a period of 3 years
on condition the accused is not convicted of housebreaking
with the
intent to commit an offence, committed during the period of
suspension.”
[3] It appears from the
record that the accused was represented when he pleaded not guilty to
the charge of housebreaking with intent
to assault.
[4] The following
evidence of the complainant is on record:
At page 3, line 20:
“
Can
you, in your words, tell the Court what happened that day?
It was in the evening
past eleven, when I hear someone who was knocking hard on the door.
He knocks several times, Your Worship,
with his fist. He was
insulting me, saying I am a bitch. I must open the door. I did not
open. He kicked the door twice.
”
At line 2 of page 4:
“
He
entered into the house, Your Worship. He was holding a panga. We
closed the sleeping rooms door Your Worship and we were holding
the
door Your Worship. He stabbed the door with the knife.
”
At page 4, line 20.
“
He
refused to leave, Your Worship, after his friend reprimanded him. He
continued to stab the door Your Worship, he left after he
hears that
I am phoning the police.
”
[5] From the above it is
clear that the accused only entered the house after kicking the door
twice, but did not gain entry to the
bedroom. This is supported by
the complainant’s witness at page 14 of the record.
[6] In her judgment the
trial court found that the accused was prevented by his companion
from doing something more than what he
intended to do.
[7]
Section 262
of CPA
makes it possible for an accused person to be convicted for
housebreaking with intent to commit an offence other than the
one
specified in the charge.
[8] The totality of the
evidence before the trial court clearly shows that the accused had
the intention to assault the complainant
when he broke into her
house.
[9] I am in respectful
agreement with the learned Acting Senior Magistrate that the accused
might have been prejudiced by being
convicted as the trial court did.
[10] I am further in
respectful agreement with learned Acting Senior Magistrate that the
sentence is not in accordance with justice
insofar as the condition
attaching to its suspension is concerned.
ORDER
[11] The conviction and
sentence imposed by the trial court are set aside and substituted
with the following:
“
1.
The accused is guilty of housebreaking with the intention to commit
assault.
2. The accused is
sentenced to 6 (six) months imprisonment which is wholly suspended
for a period of three years on condition that
the accused is not
convicted of housebreaking with the intent to commit assault.
The accused is
declared unfit to possess a firearm in terms of
section 103(1)
of
the
Firearms Control Act 60 of 2000
.
”
[12] The sentence is
antedated to 27 August 2013.
________________
L.M.S. SESELE, AJ
I concur.
_____________
L.J. LEKALE, J
/spieterse