S v Slabb (1488/06) [2006] ZAWCHC 42; 2007 (1) SACR 77 (C) (11 September 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2006
>>
[2006] ZAWCHC 42
|

|

S v Slabb (1488/06) [2006] ZAWCHC 42; 2007 (1) SACR 77 (C) (11 September 2006)

REPORTABLE
IN
the High court OF South AFRIcA
(cAPe
of GOod HOPe PROVINcIAL Division)
High
Court Ref. No.: 061488/06
Magistrate’s Serial No. 69/2006
Case
No: SHA75/2006
In
the matter between:
the
state
and
ALBERT
SLABB
Accused
REVIEW
Judgment: 11 SEPTEMBER 2006
A
le Grange AJ
:
The Magistrate sitting in the
Regional Court, Wynberg has referred this matter to the High Court
in terms of section 116(3) of Criminal
Procedure Act 51 of 1977
(“the Act”) on special review.
The accused was convicted in the
district court of Wynberg on 23 March 2006 on a charge of
housebreaking with intent to steal. The
facts, which the district
court magistrate, in my view, correctly accepted can be summarised
as follows: the complainant and her
three minor children were
asleep in the bedroom when they were awoken after midnight by a
falling plate and spoon in the kitchen;
a curtain separates the
kitchen and the bedroom; the complainant saw the accused who lives
in the area and is known to the her,
in the kitchen; the accused
unlawfully gained entry to complainant’s premises by using a
screwdriver to prise open the front
door; the accused’s movements
were confined to the kitchen area where items of value were kept; he
fled the scene upon being
discovered; the complainant was not able
to testify whether the accused removed or attempted to steal any of
her goods in the kitchen,
neither was any item missing from the
kitchen.
The district court convicted the
accused of housebreaking with the intent to steal and referred the
matter to the regional court
for purpose of sentence as the
accused’s list of previous convictions ran into a number of pages,
many of which, relate to crimes
of dishonesty.
The regional court magistrate,
seized with the matter, after perusal of the record was dissatisfied
that the proceedings in the
district court were in accordance with
justice. He requested further reasons from the district court
magistrate for her conviction.
In her reply the district court
magistrate commented as follows:
“It is clear from the
evidence which the court accepted that the Accused indeed broke into
the house. The only other question to
be answered is was it his
intention to steal. It is clear from the evidence of the complainant
that the Accused did not take anything.
However the accused entered
her premises was in the kitchen and was disturbed by the falling
plate and spoon. Which resulted in
him checking if anyone was awaken
by the noise.
It is clear that he did not
enter the premises to assault or rape (the) complainant, his
movements were confined to the kitchen area.
The complainant
testified that she had a TV, kettle and an iron.
It is sufficiently clear to
the Court that there were items of value on the premises.
The Accused could not
complete the act of stealing any item because the complainant had
awoken by noise of the falling plate and
spoon and started screaming
for help.
I therefore am of the view
that in the light of these facts the only conclusion to be drawn is
that the Accused entered the premises
with intention to steal.”
The regional court magistrate,
however, is of the view that there is insufficient evidence to draw
the only reasonable inference
that the accused had the intention to
commit theft or any crime, when he was found on the premises of the
complainant.
In his memorandum to the High
Court, the magistrate referred to section 262(1) of the Act, as well
as
S v Woodrow
1999(2) SACR 109(C) where the Court
held that the validity of a charge of housebreaking with the intent
to commit an offence to
the prosecutor unknown had long been the
subject of criticism by our courts and the academic writers. As a
result the courts usually
sought to find some criminal intent on the
part of the accused, when the charge against him was housebreaking
with the intent to
commit an offence to the prosecutor unknown. The
Magistrate also made reference to the requirements for a conviction
of housebreaking
with the intent to trespass.
The referring Magistrate further
expressed the view that as a result of the decision in
S v
Woodrow
(supra),
the accused in this matter did not
commit any offence and therefore the conviction of the District
Court Magistrate should be set
aside.
I cannot agree with the
conclusion reached by the Regional Magistrate. Firstly, the facts in
the
Woodrow
case differ significantly from the facts
in the present matter on review
.
Secondly, to regard the
reasoning in the
Woodrow’s
case as authority not to
convict an accused person of housebreaking with the intent to commit
an offence unknown, as provided in
section 262 of the Act, is
misplaced. Thirdly, for a successful conviction of housebreaking
with the intent to trespass as envisaged
in section 1(1) of the
Trespass act 6 of 1959, the prosecution needs not only to prove that
the perpetrator(s) unlawfully entered
the premises with the
intention
‘to remain’
on the property but also that the
perpetrator ‘
was’
on the property and intended ‘to
be’
on the property. (See Snyman
supra
at 546 also
footnote 111 and at 547 – 548).
In the
Woodrow’s
case the accused was charged in the district court
inter alia
with housebreaking with the intent to commit an offence to the
prosecutor unknown. The accused had gone to the home of the
complainant
with whom he had had an intimate relationship with the
intention to speak to her and fetch his clothes. The relationship
had soured
and the complainant would not admit him to her premises.
The accused thereupon broke a window, bent back the burglar bars,
and
climbed into the premises. A scuffle ensued inside, during which
the accused pushed the complainant around, and broke a telephone
in
respect of which separate charges of assault and malicious injury to
property respectively were preferred against him. The magistrate
then convicted the accused of housebreaking with intent to commit an
offence to the prosecutor unknown as well as the other charges.
The Court in
Woodrow
correctly set aside the conviction of housebreaking with the intent
to commit an offence to the prosecutor unknown, as the intention
of
the accused, when he committed the unlawful entry, was not “
unknown
”
to the prosecutor. The Regional Court Magistrate’s reliance on the
Woodrow’s
decision that a conviction of
housebreaking with the intent to commit an offence unknown is
undesirable and therefore, so it seems
from his memorandum, to be
irregular, is misconceived. The reference to the comments of the
academic writers and in particular
to the work by De Wet and
Swanepoel
Strafreg
4
th
ed at 369 cannot, in my
view, be regarded as authority to disregard the provisions of
section 262 of the Act. (See also Snyman,
Criminal Law
4
th
ed at 545 – 546).
It is necessary to refer to
Section 262 and in particular subsection (1) of the Act, which is
applicable in this matter. It provides
as follows;
‘if the
evidence on a charge of housebreaking with the intent to commit an
offence specified in the charge, whether the charge
is brought under
a statute or the common law, does not prove the offence of
housebreaking with the intent so specified but the
offence of
housebreaking with the intent to commit an offence other than the
offence so specified or the offence of housebreaking
with the intent
to commit an offence unknown or the offence of malicious injury to
property, the accused may be found guilty of
the offence so proved.’
The definition of housebreaking with the intent to commit an offence
unknown may seem questionable (Snyman,
supra
) but the crime
of housebreaking, as commonly understood, constitutes a major
invasion of the private lives and dwellings of ordinary
citizens.
The purpose of this crime is to protect and preserve the sanctity of
people’s homes and property and to punish those
perpetrators who
unlawfully gain entry into a home or other premises with the
intention of committing a crime on the premises.
There are numerous
instances where perpetrators break into premises and commit heinous
crimes. A common sense approach is therefore
called for in
determining the intention of perpetrators when they face a charge of
housebreaking with the intent to commit an offence
unknown to the
prosecution and the ordinary principles of law must apply. (See
S
v Wilson
1968(4) SA 477 (AD) at 481 F ).
Where, however, perpetrators are
caught after unlawfully breaking and entering into premises and the
evidence is overwhelming that
their intention was to commit (a)
crime(s)
, but it is impossible for the prosecution to prove what
crime(s) they intended to commit, the allegation that they intended
to
commit an offence unknown and to pronounce a verdict accordingly
is, in my view, the proper one. To view it any differently will
in
effect force the State to resort to trespass prosecutions, or to
speculate in respect of some known offences, which may lead
to
questionable decisions. This clearly will place the prosecution in
an untenable position and will make section 262 of the Act
redundant.
A perusal of the full record of
the hearing in the district court the inescapable conclusion to be
drawn is that the accused gained
unlawful entry to the premises of
the complainant to commit a crime. The facts, however meagre,
support the only inference that
the accused intended to commit
theft. The magistrate in the district court was, in my view, correct
to convict the accused of housebreaking
with the intent to steal.
In the result I will make the
following order.
The conviction of housebreaking
with the intent to steal is confirmed.
The record is herewith returned
to the Regional Magistrate to continue with sentence proceedings.
A
le Grange
Veldhuizen,
J:
I agree and it is so ordered.
A
H Veldhuizen