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2004
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[2004] ZANCHC 45
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S v Van Wyk (B 5456/03) [2004] ZANCHC 45 (16 January 2004)
Reportable: Yes / No
Circulate to Judges: Yes
/ No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case no: B 5456/03
DATE DELIVERED: 16/01/2004
In
the matter between
:
THE STATE
versus
PIET
VAN WYK ACCUSED
JUDGEMENT
ON REVIEW
MAJIEDT
J:
The
accused had been convicted in the Magistrateâs Court on a count of
housebreaking with the intent to commit an offence unknown
to the
State as well as on a count of trespassing.
He
was sentenced to 6 monthsâ and 3 monthsâ imprisonment
respectively on these counts.
My
brother, Olivier J, has raised two matters on automatic review,
namely whether the convictions do not amount to a splitting
of
charges and, if not, why the Magistrate had not ordered that the
sentences imposed should run concurrently. The Magistrate
has
furnished full reasons for her decisions on these two aspects.
As
far as the convictions are concerned, I am in agreement with the
Magistrate that there has in fact not been any splitting of
charges
herein. In applying the so called single intention and evidence
tests and on the basis of sound reasoning and oneâs
basic sense of
fairness, I am satisfied that the evidence adduced at the trial
clearly establishes that two distinct offences had
been committed.
See
generally: S v Davids 1998(2) SACR 313(C) at 316 d; Du Toit et al,
Commentary on the Criminal Procedure Act at 14 â 7.
The
convictions are therefore in order.
The
sentence is quite a different matter. The explanation proffered by
the accused is reasonably acceptable. Even if it is not,
it seems
to me that it would be quite harsh to have the accused serve an
effective nine monthsâ imprisonment for a seemingly
harmless
breach of the complainantâs domestic privacy. Consequently I am
of the view that the Magistrate has erred in failing
to order that
the sentences should run concurrently.
The
following order is issued:
The
accusedâs convictions and sentences are confirmed. It is further
ordered that the sentences imposed on counts 1 and 2 are
to run
concurrently
.
_______________________
S
A MAJIEDT
JUDGE