Marumo v S [2006] ZAFSHC 147 (9 March 2006)

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[2006] ZAFSHC 147
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Marumo v S [2006] ZAFSHC 147 (9 March 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : A145/2004
In
the appeal between:-
ISAAC
LELALA MARUMO
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
C.J.
MUSI J
et
MATHEBULA
AJ
_____________________________________________________
HEARD
ON:
20
FEBRUARY 2006
_____________________________________________________
JUDGMENT
BY:
MATHEBULA
AJ
_____________________________________________________
DELIVERED
ON:
9
MARCH 2006
_____________________________________________________
[1] The
appellant is appealing against sentence. He pleaded guilty before
the regional magistrate Welkom, on five charges. The charges
are as
follows:
Charge
1: Deurdat op of omtrent 4 - 5 Januarie 2001 en te of naby Nirvana
Hof in die distrik van Welkom en binne die Regsgebied van
die
Streekafdeling Vrystaat, die beskuldigde wederregtelik en opsetlik,
die huis van Pieter Jacobus Horn oopgebreek en binnegegaan
het met
die opset om die goed daarin te steel en toe en daar wederregtelik
items soos per aangehegte lys ter waarde van R1 300,00
die eiendom
van Pieter Jacobus Horn of in die regmatige besit van Pieter Jacobus
Horn gesteel het.
Charge
2: Deurdat op of omtrent 4 – 5 Januarie 2001 en te of naby Nirvana
Hof in die distrik van Welkom en binne die Regsgebied
van die
Streekafdeling Vrystaat, het die genoemde beskuldigde wederregtelik
en opsetlik ‘n motorvoertuig Nissan Sentra met registrasienommer
BJY 655 FS die eiendom van of in die regmatige besit van Pieter
Jacobus Horn gesteel het.
Charge
3: Deurdat op of omtrent 3 September 1998 en te of naby Dagbreek in
die distrik van Welkom en binne die Regsgebied van die
Streekafdeling
Vrystaat, het die genoemde beskuldigde wederregtelik en opsetlik ‘n
motorvoertuig Citi Golf met registrasienommer
OKE 127 395 die eiendom
van of in die regmatige besit van Mnr J P Claassen gesteel het.
Charge
4: Deurdat op of omtrent 25 – 26 Oktober 2000 en te of naby 29
Utopia in die distrik van Welkom en binne die Regsgebied van
die
Streekafdeling Vrystaat, die beskuldigde wederregtelik en opsetlik
die huis van Carlos Menino oopgebreek en binnegegaan het met
die
opset om die goed daarin te steel en toe en daar wederregtelik soos
per aanhangsel ter waarde van R4 000,00 die eiendom van Carlos
Menino
of in die regmatige besit van Carlos Menino gesteel het.
Charge
5: Deurdat op of omtrent 25 – 26 Oktober 2000 en te of naby 29
Utopia in die distrik van Welkom en binne die Regsgebied van
die
Streekafdeling Vrystaat, het die genoemde beskuldigde wederregtelik
en opsetlik ‘n motorvoertuig Mazda Sting met registrasienommer
BXB
822 FS die eiendom van of in die regmatige besit van Carlos Menino
gesteel.
[2] He was sentenced as
follows:
Charge
1 - 3 (Three) years imprisonment
Charge
2 - 5 (Five) years imprisonment
Charge
3 - 5 (Five) years imprisonment
Charge
4 - 3 (Three) years imprisonment
Charge
5 - 5 (Five) years imprisonment
It was
further ordered in terms of
section 280
of the
Criminal Procedure Act
51 of 1977
as amended (the Act) that the sentences be served
concurrently and that the effective sentence be 12 (twelve) years
imprisonment.
[3] In terms of
section
112(2)
of the Act the following facts were admitted:
The
appellant on 4 or 5 January 2001 broke into No. 16 Nirvana Court by
entering through a window with the intention of stealing the
contents. In the process of doing so he removed the keys of a Nissan
Sentra motor-vehicle (registration number BYS 655 FS) as well
as the
vehicle together with the other items.
On or
about 3 September 1998 at No. 8 Nirvana Court, the appellant
unlawfully and intentionally removed a Volkswagen Citi Golf with
registration number OKE 127 397.
Again
on 25 – 26 October 2000 at No. 29 Utopia Flats, the appellant broke
into a third flat by entering it through a window and
with the
intention of stealing the contents. In the process of removing the
contents he also took the keys of a Mazda Sting motor-vehicle
as well
as the motor-vehicle itself.
[4] All the
motor-vehicles were recovered and returned to its rightful owners.
It is not clear as to whether the other household
contents that the
appellant stole on various occasions were recovered.
[5] In
matters of this nature, the court of appeal is circumscribed to
interfere with the findings with the trial court. In
REX
v DHLUMAYO AND ANOTHER
1948 (2) SA 677
(A) at 705, the court held that there must be
inter
alia
cognisable misdirection by the trial court to warrant such
interference. In my view, it is clear that the regional magistrate
overlooked
other considerations. Although the appeal is about
sentence, it is important to ensure that the convictions were in
order to warrant
the sanction imposed. Mrs. Liebenberg, for the
respondent, submitted that the convictions were in order and referred
to paragraphs
2 and 3 of the statement in terms of
section 112(2)
of
Act 51 of 1977 as amended. Paragraph 3 of the aforementioned
statement reads as follows:
“
This
housebreaking and the theft of this motor-vehicle was planned by a
certain
Mopeli
who was employed by Telkom and who resided at Nr 8 Villa Fermada in
Welkom. He used to identify premises which could be burgled
while he
performed work at these premises in his capacity as a Telkom worker
and I assisted him and
Motshehi
Letsosa
in the execution of the burglary and the theft of the motor-vehicle.”
[6] Her
submission is that the appellant only had intention to steal the
household contents and not the motor-vehicle because that
was planned
by somebody else, in particular Moghashane Mopeli. Her view is that
the appellant formed a new intention to steal the
motor-vehicle when
he saw the keys. In that manner the appellant was correctly
convicted of two different offences.
[7] Mr.
Skibi submitted on behalf of the appellant that the convictions were
duplicated as the appellant only had one intent. He
broke into the
flat in order to steal whatever he could lay his hands on. In that
regard it should be regarded as one conviction.
[8] I
disagree with Mrs. Liebenberg that convictions on charges 2 and 5
were in order. The appellant had intention to break into
premises
and steal. He successfully carried out his unlawful actions over a
period of time through the assistance from the aforementioned
Moghashane Mopeli. Moghashane Mopeli, according to the statement,
had information of the houses that were “soft targets”. This
information he gave, among others, to the appellant and they formed a
clear intent to break into the flats and steal everything in
their
way. In
S
v TOUBIE
2004 (1) SACR 530
(W) the court held that the issue is whether the
evidence necessary to sustain any one of the acts is indispensable
for the purpose
of sustaining the others. In the present matter, the
unlawful act of breaking into the house, taking the household
contents and
the car keys, thus removing the motor-vehicle, was one
act. All these acts were planned beforehand by the appellant and the
said
Moghashane Mopeli, as per his statement. If he had formed an
intent to steal the motor-vehicle, he would probably have done so
without
breaking into the house. Conversely, if he only formed an
intent to break into the flat and steal, and only later proceeded to
steal
the motor-vehicle when he found the car keys, they would not
have planned it beforehand with Moghashane Mopeli. I am therefore of
the view that convictions on charges 2 and 5 were duplication of
convictions with charges 1 and 4. The crime of theft of the
motor-vehicle
is not a distinct crime on its own. We should
therefore use our inherent review powers and review those convictions
and sentences.
[9] It
is trite law that the court of appeal should not lightly interfere
with a sentence imposed by the trial court. See
S
v PIETERS
1987 (3) SA 717
(AD) at 728 B – C and
S
v PILLAY
1977 (4) SA 531
(AD) at 535 E – F. The court of appeal may
interfere if the trial court misdirected itself or the sentence is
shockingly inappropriate.
I am at liberty to interfere with the
sentence imposed by the regional magistrate because of the order I
intend making in respect
of charges 2 and 5.
[10] The
regional magistrate concluded in his sentence as follows:
“
Nou
ten einde ook die kumulatiewe effek van hierdie vonnisse in ag te
neem word daar dan in terme van die bepalings van artikel 280
van wet
51 van 1977, gelas dat die vonnisse so samelopend uitgedien sal word
dat ‘n totale termyn van
twaalf
jaar gevangenisstraf uitgedien word.”
[11] This
order is unclear and confusing. The regional magistrate does not
state which sentences must run concurrently with which
one. The
matter is further muddled in cases where the appellant is successful
on appeal on some charges. It is important that in
future when
applying the provisions of
section 280
of the
Criminal Procedure Act
51 of 1977
as amended, the trial court closes any possibility of
ambiguity in sentencing.
[12] I
make the following order:
Convictions and
sentences on charges 2 and 5 are reviewed and set aside.
Convictions
and sentences on charges 1, 3 and 4 are confirmed.
In
terms of section 280 of the Act, the sentences on charges 1 and 4
will run concurrently so that the cumulative effect of the
sentence
is 8 (eight) years imprisonment.
­­­­­­­­­­­­­­­­­­­­­___________________
M.A. MATHEBULA, AJ
I
agree.
__________
C.J. MUSI, J
On
behalf of appellant: Adv. N.L. Skibi
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. E. Liebenberg
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp