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2012
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[2012] ZAGPPHC 195
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Moahlodi v S (A165/2012) [2012] ZAGPPHC 195 (31 August 2012)
IN
THE HIGH COURT OF SOUTH AFRICA NORTH
GAUTENG
HIGH COURT, PRETORIA
CASE
NO: A165/2012
DATE:31/08/2012
IN
THE MATTER BETWEEN:
LYNUS
MOAHLODI
…...........................................................................................
APPELLANT
AND
THE
STATE
..............................................................................................................
RESPONDENT
JUDGMENT
TEFFO.
J
[1]
The appellant was charged in the district court held at Klerksdorp
with the following counts, housebreaking with intent to commit
an
offence unknown to the prosecutor (count I) and contravention of the
provisions of section 67(1 )(a) of Act 68 of 1995 in that
he
obstructed a police official in the performance of his duties (count
II).
[2]
He pleaded not guilty to both counts but was convicted on 4 July 2003
of housebreaking with intent to steal and acquitted on
the charge of
contravention of section 67(1 )(a) of Act 68 of 1995.
[3]
The matter was then referred to the Regional Court on 3 October 2003
for sentence. On 29 June 2007 the appellant was sentenced
to seven
(7) years imprisonment.
[4]
Leave to appeal was granted by the court a quo on 22 June 2011 in
respect of the conviction.
[5]
The grounds upon which this appeal is based are that the court a quo
had misdirected itself in finding that the appellant did
commit the
offence as set out in count 1.
[6]
The facts of this matter were briefly as follows: On 22 May 2003 at
about ± 22:00 three police officers were patrolling
in town,
At the comer of Flecker Street and another street just as they were
to turn to Orkney liquor store they saw the appellant
and another
person at Orkney liquor store. The appellant had a stone in his hand
and was busy breaking the window of the liquor
store. This other
person with whom the appellant was, was also kicking the other window
of the liquor store. The two were arrested
and before they were taken
to the police station this other person with whom the appellant was,
managed to run away. The owner
of the liquor store was summoned to
the scene and according to him even though there was an opening at
the broken window of about
70 cm nothing was missing in the store. It
did not seem as if the appellant and the person with whom he was,
were able to gain
entry into the store, and neither did they attempt
to do so.
[7]
The issue for determination is whether the learned magistrate in the
court a quo had misdirected himself in finding the appellant
guilty
of house breaking with intent to steal.
[8]
The evidence of the two police officers corroborated each other in
all material respects. Their evidence was clear that they
saw
appellant hitting the window with a stone. The appellant's version
was that he had just been released on bail. He was on his
way home
after meeting a friend at another drinking spree where they had been
drinking liquor. Further that he was never at Orkney
liquor
restaurant and he did not break the window. If one takes the evidence
in totality I find that the court a quo correctly
rejected the
appellant's version in that it was improbable and could not be
reasonably possibly true.
[9]
It is common cause that the window of the liquor restaurant belonging
to Mr Patrick Lash was broken. It is also common cause
that after the
breaking of the window the appellant and his friend never gained
entry into the liquor restaurant and nothing was
stolen.
[10]
Housebreaking with intent to commit a crime consists in unlawfully
and intentionally breaking into and entering a structure
or building,
with the intention of committing some crime in it. (S v Badenhorst
1960 (3) SA 563
(A)( 566B).
[11]
Housebreaking per se is not a crime although the act of housebreaking
as such may, depending upon the circumstances, amount
to the crime of
malicious damage to property. The crime of housebreaking must be
accompanied by the intention of committing some
other crime. A mere
breaking without entering is not sufficient to constitute the crime
although it may amount to an attempt to
commit the crime. (Maruma
1955 (3) SA 561
(0), Ncanca
1954 (4) SA 272
E; Ndlovu
1963 (1) SA 926
(T).
[12]
Counsel for the state concedes that the evidence led at the court a
quo did not prove the crime of house breaking with intent
to steal. I
agree with both counsels that the evidence led did not prove the
crime of housebreaking with intent to steal and that
the court a quo
could at most have convicted the appellant of malicious damage to
property.
[13]
I therefore find that indeed the court a quo had misdirected itself
by finding the appellant guilty of housebreaking with intent
to
steal.
[14]
On that basis it is my view that this court has to interfere with
regard to the sentence of seven (7) years imprisonment that
was
imposed.
[15]
I make the following order:
15.1
The appeal against the conviction of the appellant is upheld.
15.2
The conviction of the appellant on a charge of housebreaking with
intention to steal is therefore set aside and replaced with
a
conviction of malicious damage to property.
15.3
The sentence imposed against the appellant of seven years
imprisonment is also set aside and replaced with a sentence of one
year imprisonment which is backdated to 29 June 2007.
TEFFO
J
Judge
of the High Court
I
agree
Preller
J
Judge
of the High Court