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2009
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[2009] ZAGPJHC 16
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S v Kwinana (5/8355/2008) [2009] ZAGPJHC 16 (19 May 2009)
IN THE
HIGH COURT OF SOUTH
AFRICA
(WITWATERSRAND LOCAL DIVISON)
High
Court Reference no: 51/09
Magistrate
Court Reference no: 56/08
Review
Case no: 5/8355/2008
S V
S.KWINANA
SPECIAL REVIEW JUDGEMENT
MABESELE AJ:
The accused
appeared in the magistrate’s Court for the district of
Johannesburg, on a charge of theft. The allegation being
that on or
upon 4 October 2008, the accused did unlawfully and intentionally
steal a petrol tag, amounting to R 956, 00, from his
place of
employment.
The accused
pleaded guilty. His legal representative then handed in a statement
in terms of
section 112(2)
of the
Criminal Procedure Act, 51 of 1977
.
The statement is marked “exhibit ‘A’.”
After the magistrate had formed
a view that the accused admitted all the elements of the charge and
thus correctly pleaded guilty,
he convicted the accused and sentenced
him to 24(twenty four) months imprisonment. The sentence was wholly
suspended on certain
conditions.
Subsequent to
the conviction and sentence the matter has now been referred to me on
special review on the ground that the provisions
of
section 112(2)
of
the
Criminal Procedure Act, 51of 1977
, were not properly complied
with.
Paragraph 4
of the statement reads:
“
I took the abovementioned
articles from a desk after my employer told me that he had no money
to pay me (sic) refused to give it
back to him unless I was paid”
Paragraph 5 reads:
“
It was my intention to
take the said item and in so doing, deprive the owner permanently of
his ownership”
Theft is committed when a person
unlawfully and intentionally appropriates the property of another.
Snyman:
Criminal Law (4
th
edition p469) states that the intention to appropriate the property
includes an intention permanently to deprive the person entitled
to
possession of the property, of such property.
The accused
refused to give the property back to the complainant unless he was
paid what was due to him. In my view, the accused
intended to
hold the property as security in order to apply pressure to the
complainant to pay him.
Taking
another’s property with the intent to hold it as a security
does not amount to theft. (See R v Hendricks,
1938 CPD, 456
; S v van
Coller, 1970(1) SA, 417)
In my view, the accused did not
intent permanently to deprive the complainant of his property despite
a further averment to such
effect.
From what the accused stated in
paragraph 4 of his statement, the magistrate ought to have
entertained a doubt as to whether the
accused was in law guilty as
charged.
In the light
of the aforegoing, it cannot be said that
the finding of guilty by the magistrate on the basis of
section
112(2)
statement which was handed in as exhibit ‘A,’ is
correct, as the accused did not admit all the essential elements of
the offence. In the result, the conviction for theft cannot stand.
Therefore,
the
following order is made:
The conviction and sentence are
set aside.
The matter
is remitted to the court
a
quo
The court
a
quo
is directed to comply with the provisions of
section
112(2)
of the
Criminal Procedure Act, or
to act in
terms of
section 113
of
the
Criminal Procedure Act.
________________
M.M
MABESELE
(
Acting
Judge of the High Court)
I agree
____________________
R.MOKGOATHLENG
(Judge
of the High Court)