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[2008] ZAFSHC 119
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S v Moloi (09/2008) [2008] ZAFSHC 119 (25 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 09/2008
In
the case between:
THE
STATE
versus
KHEHLA
PAULOS MOLOI
_____________________________________________________
CORAM:
MABESELE,
AJ
et
MOCUMIE, J
JUDGMENT:
MABESELE,
AJ
DELIVERED ON:
25
SEPTEMBER 2008
[1] The
accused appeared in the Harrismith magistrate’s court on a
charge of theft. He pleaded guilty, was questioned in
terms of
section 112 (1)(b) of the
Criminal
Procedure Act
,
51of 1977, and then convicted.
[2] The
magistrate imposed a sentence of eight (8) months imprisonment and
suspended half of it for a period of three (3) years
on certain
conditions.
[3] The matter came
before me on automatic review.
[4] I prepared a query
and sent a letter to the magistrate to respond to the following:
“
1. The
accused said he intended to return the T-shirts. He said he was
apprehended while on his way back to return the T-shirts
because he
did not have money to pay for them.
2. Why did the magistrate proceed to
question
the accused about his intention?
3. Why was the
magistrate satisfied that the accused intended permanently to deprive
the complainant of its properties?”
[5] The
magistrate admitted that it was not necessary for him to proceed with
the enquiry after the accused said he intended to
return the T-shirts
to the owner.
[6] When
the magistrate asked the accused why he wanted to return the
T-shirts, the accused said he did not have money to pay for
them.
[7] The
magistrate then said:
“You
took two T-shirts and hide them under your Lumber jacket; what was
your intention?”
[8] The accused
ultimately said he intended to steal them.
[9] According to
Snyman:
Criminal Law
(5
th
ed., p 483) a person commits theft if he unlawfully and intentionally
appropriates movable, corporeal property, which belongs to,
and is in
the possession of another, provided that the intention to appropriate
the property includes an intention permanently
to deprive the person
entitled to the possession of the property, of such property.
[10] The accused said he
was apprehended while he was on his way to return the T-shirts
because he did not have money. Quite clearly,
it cannot be said that
he intended permanently to deprive the complainant of its properties.
Therefore, the accused did not admit
all the elements of the offence
allegedly committed. In my view, a questioning by the magistrate,
after the accused had shown
a lack of necessary intention, and the
subsequent conviction cannot stand. The magistrate should have acted
in terms of the provisions
of section 113 of the Act.
[11]
Section 312
(1) of
the
Criminal Procedure Act, 51 of 1977
, provides:
“
Where a conviction and sentence
under 112 are set aside on review … on the ground that any
provision of subsection (1) (b)
… of that section was not
complied with, or on the ground that the provisions of
section 113
should have been applied, the court in question shall remit the case
to the court by which the sentence was imposed and direct
that court
to comply with the provision in question or to act in terms of
section 113
, as the case may be.”
[12] In view of the
provisions of
section 312
(1) the matter should be remitted to the
trial court for reconsideration.
[13]
In
the premises, the following order is made:
1. The conviction and
sentence are set aside.
2. The case is
remitted to the trial court.
3. The trial court is
directed to act in terms of
section 113
of the
Criminal Procedure
Act, 51 of 1977
.
______________
MABESELE, AJ
I
concur.
______________
MOCUMIE, J
ms