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South Africa: Free State High Court, Bloemfontein
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2009
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[2009] ZAFSHC 7
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S v Machitje (763/2008) [2009] ZAFSHC 7 (29 January 2009)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review Case No.: 763/2008
In the review between:
THE STATE
and
SANKWELA
STANFORD MACHITJE
CORAM:
VAN DER MERWE, J
et
JORDAAN, J
JUDGEMENT:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
29 JANUARY 2009
_____________________________________________________
[1] The accused in this
matter was charged with housebreaking with the intent to steal and
theft of a television set and three blankets.
The accused pleaded
guilty to the charge and after questioning he was convicted as
charged and sentenced to six months imprisonment
that was wholly
suspended.
[2] During questioning in
terms of section 112(1)(b) of the Criminal Procedure Act, No. 51 of
1977 (âthe Actâ), the accused
admitted that he had removed the
items in question from the house of the complainant and that he took
them to his own place of
residence. The question here however, is
whether the accused admitted the intention to steal. The accused
said that at the time
he had a relationship with the complainant. He
said that he intended to keep the goods at his place in order to make
a statement
to the complainant that she should refrain from leaving
her house without properly locking it and also because he was angry
because
his girlfriend was not at home at the time. The accused also
said that he returned all the items to the complainantâs house on
the very same day. The accused was not asked whether he intended to
permanently deprive the complainant of her property nor whether
he
intended to appropriate the items for himself.
[3] In these
circumstances there is in my judgment at least considerable doubt as
to whether the accused is guilty of the offence
to which he has
pleaded guilty. In the result a plea of not guilty should have been
recorded in terms of section 113(1) of the
Act. In the result also,
the matter must be remitted in terms of section 312(1) of the Act.
[4] The conviction and
sentence are set aside and the matter is remitted to the magistrate
who is directed to act in terms of section
113 of the Act.
__________
_______________
C.
H.
G. VAN DER MERWE, J
I concur.
________________
A. F. JORDAAN, J
/em