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[2006] ZANCHC 86
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S V Niekerk and Another (61/06) [2006] ZANCHC 86 (28 April 2006)
Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
High
Court Review Case No: 61/06
Magistrate
Case No: B9593/04
Date
delivered: 2006-04-28
In
the review matter of
:
THE STATE
versus
ARMANDO
NIEKERK ACCUSED 1
WILLEM
KOCK ACCUSED 2
Coram
:
MAJIEDT J
et
TLALETSI
J
JUDGEMENT
ON SPECIAL REVIEW
MAJIEDT J:
This
matter was placed on special review, since the inspecting magistrate
was of the view that the accused had been wrongly convicted.
The
accused were charged with the offence of housebreaking with the
intent to steal and were convicted of trespassing.
According
to the charge sheet the accused had broken into the house of the
complainant, Mr. Marthinus van der Westhuizen, in West-End,
Kimberley on or about 28 August 2004. In the charge sheet attention
was drawn to the provisions of section 262 of the Criminal
Procedure
Act, 51 of 1977 (â
the
Act
â).
That section deals with competent verdicts on the offence of
housebreaking with the intent to commit an offence.
On 11
November 2005 the attorney for the two accused proffered a written
section 112(2) plea explanation upon his clientsâ plea
of guilty.
The written plea explanation was clearly inadequate and the
magistrate stood the matter down to consider aspects of
the charge
and the plea explanation.
The record of the
proceedings indicate that upon resumption, the attorney for the
accused applied that the matter be adjourned to
14 November 2005 in
order for him to take proper instructions from the accused and to
prepare another explanation of plea.
On 14
November 2005 a new written plea explanation in terms of section
112(2) was handed up after it had been read into the record
by the
attorney for the accused. In terms thereof the accused pleaded
guilty to the â
crime
of trespassing
â.
The explanation therein contained was to the effect that the
accused had entered the house of the complainant wrongfully and
unlawfully with the intent to steal certain goods therein.
Section 262(1) of the
Act sets out the competent verdicts on the offence of housebreaking
with the intent to steal. It is clear
that the crime of trespassing
is not one of those.
See
generally the discussion in
Hiemstra
SUID-AFRIKAANSE STRAFPROSES
6
th
EDITION at 665 â 666.
The
crime of housebreaking with the intent to contravene the provisions
contained in section 1(1) of Act 6 of 1959 (i.e. remaining
in the
premises after breaking in) is a competent verdict under section
262(2) of the Act which deals with competent verdicts on
a charge of
housebreaking with the intent to commit an offence unknown to the
prosecutor.
See
in this regard generally the discussion in:
R v Badenhorst 1960(3)
SA 563 (A);
S v Jasat 1997(1) SACR
489 (SCA).
In
the premises the conviction is unsound in law and should be set
aside. The inspecting magistrate has correctly alluded to the
fact
further that there are a number of deficiencies regarding the
sentence imposed, but given the fact that the conviction has
to be
set aside, the sentence requires no further consideration herein.
The accusedâs
convictions and sentences are set aside.
______________
SA MAJIEDT
JUDGE
I concur:
_______________
PL TLALETSI
JUDGE