S v Leeuw (1253/2004) [2004] ZAFSHC 144 (23 September 2004)

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[2004] ZAFSHC 144
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S v Leeuw (1253/2004) [2004] ZAFSHC 144 (23 September 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
Nr: 1253/2004
In
the matter between:
THE
STATE
versus
DANIEL
LEEUW
___________________________________________________________
CORAM:
CILLIé
J et VAN DER MERWE J
___________________________________________________________
JUDGMENT:
CILLIé
J
___________________________________________________________
DELIVERED
ON:
23
SEPTEMBER 2004
___________________________________________________________
The
accused in this matter was convicted of five counts of theft and one
count of contravening section 36 of the General Law Amendment
Act nr.
62 of 1955. He was sentenced to 6 months imprisonment half of which
was suspended for five years on condition that the accused
is not
found guilty of contravening section 36 of Act 62 of 1955 committed
during the period of suspension. It is not clear from
the record
whether the magistrate took the six convictions together for purposes
of sentence but apparently that is what she intended.
When
the matter was submitted for review the following query was directed
to the magistrate.
“The accused was charged with one count of contravening Section 36
and five counts of theft. He was convicted of all six counts.

However it appears as if the items that form the basis of count one
are the same items that are the subject of counts 2 – 6.
Is this
not a duplication of convictions. Reasons for conviction in the
light hereof please.”
In response to this the magistrate
inter
alia
explained as follows:
“The evidence revealed that the accused was found in possession of
stolen goods, that belongs to five 5 people. Although I convicted
accused with all 6 counts, and it appeared that the present case
satisfied the intention test. It is my submission that, the accused
had suffered no injustice, either as far as conviction is concerned.
The accused was never sentence on each count, he was only sentenced,
6 (Six) months imprisonment of which 3 (Three) months is wholly
suspended.”
This explanation does not make any sense. If ever there
was a text book example of a splitting of charges it is the present.
The
accused should have been found guilty of five counts of theft.
All the complainants identified the items found in possession of
the
accused as their property. The accused’s explanation for this
possession was rightly rejected but that does not mean that
his
failure to supply a satisfactory explanation for his possession
thereof amounts to an additional substantive offence namely the
contravention of section 36 of the said Act. After all the fact that
the accused stole the items is the explanation for his possession
thereof.
As
said the Magistrate apparently took all the convictions together for
purpose of sentence. Although this was not really the correct
approach it is undesirable to interfere with that at this stage.
In
the result the following order is made:
- The conviction on counts 1, 2, 3, 4, 5 and 6 are set
aside and substituted with convictions of theft on counts 2, 3, 4, 5
and 6.
- The
convictions are taken together for purposes of sentence and the
accused is sentenced to 6 months imprisonment half of which
is
suspended on condition that the accused is not found guilty of theft
committed during the period of suspension.
- This
alteration to the convictions and sentence must be conveyed to the
accused by the Magistrate.
_____________
C.B. CILLIé, J
I
CONCUR:
_________________________
C.H.G. VAN DER MERWE, J
/ec