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2005
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[2005] ZAFSHC 72
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S v Matras (1986/2004) [2005] ZAFSHC 72 (10 February 2005)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review No.:1986/2004
In the review between:
THE STATE
versus
JAFTA MATRAS
CORAM:
WRIGHT
J
et
VAN
DER MERWE J
JUDGEMENT:
VAN DER MERWE J
_____________________________________________________
DELIVERED ON:
10 FEBRUARY 2005
_____________________________________________________
[1] In this matter the
accused was charged with housebreaking with the intent to steal and
theft. It was alleged that the accused
broke into a shop and stole
cigarettes as well as prepaid cell phone cards. However, the accused
was found not guilty of housebreaking
and theft but convicted of
contravention of Section 1 of the Criminal Law Amendment Act, no. 1
of 1988. The accused was then sentenced
to imprisonment for a period
of one year.
[2] The accused pleaded
guilty to the aforesaid charge. During questioning in terms of the
provisions of Section 112(1)(b) of the
Criminal Procedure Act, no. 51
of 1977, the accused admitted that the police found him in the shop
in question but added that he
drank alcohol as a result of which he
was so drunk at the time that he did not know where he was.
Accordingly a plea of not guilty
was entered in terms of the
provisions of Section 113 of Act 51 of 1977. A policeman testified
that he was one of four policemen
who found the accused inside the
shop on the relevant date. He said that the accused was drunk and
also violent when they wanted
to arrest him. He said however that
the accused was aware thereof that the police was going to arrest him
and also that the accused
was aware of what he was doing. He also
testified that the accused was found in possession of cigarettes and
prepaid cell phone
cards. Also, boxes of cigarettes, containing
packets of cigarettes were found on the outside of the shop. The
owner of the shop
testified as to how entrance to the shop was
obtained, namely that a window was broken which enabled the person to
open another window
and to so gain entry. He also confirmed that
boxes of cigarettes were found outside the shop. None of this was
disputed by the
accused during cross-examination. When the accused
testified he confirmed that the police found him inside the shop and
that he
broke a window to gain entrance to the shop. He made no
mention thereof that his faculties were impaired. During questioning
by
the court he only said that he drank alcohol and that he knew that
the intake of alcoholic beverages may impair the faculties of
a human
being.
[3] In these
circumstances the accused should in my view not have been convicted
of contravention of Section 1 of Act 1 of 1988, but
of housebreaking
with the intent to steal and theft as charged. Apart from what the
accused said when questioned in terms of Section
112(1)(b) of Act 51
of 1977, which statement does not constitute evidence, there is no
indication whatsoever that as a result of
intoxicating liquor the
faculties of the accused had at the relevant time been so impaired
that he could not appreciate the wrongfulness
of his act or act in
accordance with such appreciation. On the contrary, according to the
evidence he deliberately broke into a
shop by breaking a window and
stole cigarettes and phone cards. Most importantly, the accused made
no mention in his evidence of
alleged intoxication or that as a
result his faculties were impaired to any extent. In my view
therefore, the conviction must be
set aside and substituted, in terms
of Section 304(2)(c)(iv) of Act 51 of 1977, with a conviction as
charged, that is of housebreaking
with intent to steal and theft.
[4] In all the
circumstances I consider the sentence of one year imprisonment to be
appropriate for this offence. The accused is
twenty-one years of age
and all the stolen items were recovered. He is also a first
offender.
[5] Therefore the
conviction is set aside and substituted with a conviction of
housebreaking with the intent to steal and theft as
charged, but the
sentence is confirmed.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
_____________
G.F. WRIGHT, J
/
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