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[2009] ZAGPPHC 298
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S v Mamabolo (A328/2008) [2009] ZAGPPHC 298 (2 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT. PRETORIA)
Date: 2 September 2009
Not reportable
High
Court Ref No.: 1998
Magistrate's
Serial No.: 22/2008
Case
No.: A328/2008
MAGISTRATE
MANKWENG
THE
STATE V ELLEN MAPHELA MAMABOLO
REVIEW
JUDGMENT
SOUTHWOOD
J
(1]
On 19 August 2008 the accused was
found guilty of housebreaking with intent to commit an offence
unknown to the state in the Mankweng
magistrates' court and on the
same day was sentenced to 12 months imprisonment, half of which was
suspended for 5 years.
(2]
On 3 November 2008 (some 2 months
late) the matter came before this court on review in the ordinary
course The review judge queried
whether the facts admitted by the
accused (he had pleaded guilty) covered all the elements of
housebreaking and theft and whether
the sentence was not shocking. On
5 August 2009 (after the accused had served his sentence of 6 months
imprisonment) the presiding
magistrate furnished his response.
(3]
The presiding magistrate
correctly points out that the accused entered the house, by pushing
open a window, and had the intention
of stealing a music system, but
was apprehended before he could do so. He contends that the accused
should have been found guilty
of housebreaking with intent to steal
and attempted theft. He contends that the sentence is not excessive
The Director of Public
Prosecutions agrees with both contentions and
so do I. I also agree with the Director of Public Prosecutions that
the conviction
can be amended as the accused cannot be prejudiced.
Order
[4]
I. The conviction of housebreaking with intent to commit an
offence unknown to the state is set aside and replaced with a
conviction
of housebreaking with intent to steal and attempted
theft;
II.
The sentence is confirmed.
B.R.
SOUTHWOOD JUDGE OF THE HIGH COURT
I
agree
G.
WEBSTER JUDGE OF THE HIGH COURT