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[2012] ZAFSHC 173
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S v De Kok (186/2012) [2012] ZAFSHC 173 (18 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 186/2012
In
the review of:-
THE
STATE
and
MARSHALL
DE KOK
_____________________________________________________
CORAM:
DAFFUE, J
et
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
18 SEPTEMBER 2012
_____________________________________________________
[1] This matter was send
to the High Court for special review in terms of section 304(4) of
the Criminal Procedure Act, 51 of 1997
(“CTA”).
[2] The accused was
charged with and convicted on 22 May 2012 of housebreaking with the
intent to commit a crime unknown to the
state. He was sentenced to 8
months imprisonment of which was suspended for a period for 4 years
on condition that he is not convicted
of housebreaking with the
intent to commit any crime or attempt thereto of theft or attempted
theft and for which the sentence
to unsuspended imprisonment without
the option of a fine committed during the period of suspension. The
accused was represented
by an attorney, Mr Z Luntinto.
[3] A statement in terms
of section 112(2) of the CTA was prepared for and on behalf of the
accused by his legal representative
which statement was read into the
record and handed in as exhibit A. The accused confirmed that he
signed the statement and the
correctness of the allegations contained
therein. The prosecutor confirmed that the facts as avert were in
accordance with the
state’s case and the plea was accepted on
that basis.
[4] It appears from the
section 112(2) statement that the accused was caught red-handed by
the complainant whilst he was already
inside his house after
obtaining excess through a window, the handle of which had been
broken by the accused. The statement
inter alia
contains the
following admissions:
“
4.2 On the
said date I went to the above address and then I broke the handle of
the window. I entered to (sic) the house at about
02am in the
morning.
…
5. I admit that after I entering to
(sic) the house I checked the items in order to steal it.
6. I admit that the owner of the house
came and caught me inside the house.
7. I admit further that I had no
reason in law to break into the said premises with intent to steal.”
[5] The presiding
magistrate submitted that the conviction was not in accordance with
the law and requested the High Court to amend
the conviction and to
convict the accused of housebreaking with the intent to steal and
further, to confirm the sentence. The court
a quo
relied on
the judgments of
S v BLAAUW
1994 (1) SACR 11E
and
S
v KESOLOFETSE AND ANOTHER
2004 (2) SACR 166
(NC).
[6] Section 262 of the
CPA reads as follows:
“
2. If the
evidence on a charge of housebreaking with intent to commit an
offence to the prosecutor unknown, whether the charge is
brought
under a statute of the common law, does not proof the offence of
housebreaking with intent to commit an offence to the
prosecutor
unknown, but the offence housebreaking with intent to commit a
specific offence, or the offence of malicious injury
to property the
accused maybe found guilty of the offence so proofed.”
[7] The allegations
contained in section 112(2) statement presented the evidence on which
the accused was found guilty. That evidence
indicated the accused’s
intention at the time and that was to steal. It was not necessary
amend the charge at that stage,
but to convict the accused on the
known facts of housebreaking with the intent to steal. As state by Du
Toit
et el
commentary on the Criminal Procedure Act 26/9 it
would be senseless and also misleading for criminal record purposes
to held otherwise.
[8] In conclusion I
confirm that I am in agreement with the judgements referred to by the
presiding magistrate as well as his present
viewpoint. The judgment
and sentence were recorded in Afrikaans and therefore the order
therein will be in Afrikaans.
[9] Consequently, the
following orders are issue:
Beskuldigde se
skuldigbevinding word ter syde gestel en vervang met die volgende:
Beskuldigde word skuldig
bevind aan
huisbraak met die opset om te steel
.
2. Die opgelegde vonnis
word bekragtig.
______________
J. P. DAFFUE, J
I concur.
___________________
/eb