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[2024] ZAECMKHC 116
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S v Mthimkhulu (CA&R179/2024) [2024] ZAECMKHC 116 (18 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION
– MAKHANDA]
CASE NO.: CA&R
179/2024
In the matter
between:-
THE
STATE
and
SIYABULELA
MTHIMKHULU
ACCUSED
SPECIAL REVIEW
JUDGMENT
NORMAN J:
[1]
This is a special review in terms of section 304 (4) of the Criminal
Procedure Act
51 of 1977 (‘the CPA’). On 26 September
2024 the Senior Magistrate sitting in East London submitted to this
court,
this matter on the following facts:
1.1 On the 30
th
of August 2024, the accused, who was legally represented pleaded
guilty to housebreaking with intent to steal and theft. He was
accordingly convicted on his plea. On the same day he was sentenced
in terms of section 276(1)(i) of Act 51 of 1977 to a period
of
eighteen (18) months imprisonment.
1.2 According
to the statement in terms of section 112(2) of the CPA submitted on
behalf of the accused, theft was not
completed. The accused was
interrupted whilst trying to exit the premises though he had already
removed the items from their original
places. The Senior Magistrate
believed that the accused should have been convicted on the charge of
housebreaking with intent to
steal only.
Brief background
[2]
The accused was arraigned on a charge of housebreaking with intent to
steal and theft,
in that on or about 09 June 2024 at or near Phillip
Frame road, Chiselhurst, East London, he unlawfully broke and entered
the business
premises at Maxton and Castle with intent to steal the
goods therein and did unlawfully and intentionally steal the property
of
Maxton and Castle. The property allegedly stolen under the list of
the recovered stolen property were items such as a microwave
oven,
electric kettle, keyboards, computer monitors, dell computer hard
drive and a computer mouse. All those items were valued
at R14 780.
[3]
He pleaded guilty to the charge. The accused’s legal
representative handed in
a statement, in terms of section 112(2) of
the CPA, with specific reference to paragraph 5 thereof, it is
stated:
“
5.
I plead guilty to the charges against me of housebreaking with intent
to steal and
theft.”
[4]
In one of the paragraphs he explained how he gained entry, the items
that he took
and stated:
“
.
. I then took the items as mentioned in the list on charge
sheet without the permission of the owner and with the intention
to
permanently deprive the owner of his property.
While
trying to exit the premises
I
met a security guard by the door who then apprehended me. The police
were called and I was arrested and charged accordingly.
(my
emphasis)
[5]
It is apparent from the statement that he had removed the items from
where they were
and was in the process of trying to exit the
premises. He had not exited the premises when he was apprehended by
the security guard.
[6]
The trial court convicted and sentenced the accused on a charge of
housebreaking with
intent to steal and theft. That conviction was a
composite conviction. It was followed by a composite sentence of 18
months imprisonment
in terms of section 276 (1) (i) of the Act.
[7]
In
Bam
v S
[1]
, Sher J,
stated:
“
44.
Similarly, and in accordance with the fact that in housebreaking
cases one is usually dealing with 2
offences which are commonly
charged by way of a single composite charge, if any one of the
offences is not proven the charge does
not necessarily fail, as a
conviction may nonetheless ensue in respect of the other. Thus, if
the housebreaking is not proven the
accused may still be found guilty
of the theft or robbery which followed it, and vice versa.
45.
Consistent with these principles when an accused is only charged with
housebreaking with intent
to commit an offence but not with that
offence as well, in one, rolled-up composite charge, and it
subsequently transpires that
in addition to the housebreaking he also
committed the offence itself, he cannot be found guilty of that
offence as part of the
charge i.e. together with the housebreaking
offence. Once again, this result is congruous with the fact that one
is dealing with
2 separate offences and as was stated in Zamisa save
in the case where a special verdict is rendered competent by statute
an accused may only be convicted of an offence if he has been charged
with it.
46.
Thus, and by way of summary, when an accused is charged with
housebreaking with intent to commit
an offence and such offence, in
one rolled-up composite charge, any conviction which ensues
ordinarily amounts to a single conviction
in respect of which there
can only be a single punishment, unless one or other of the 2
offences or a competent verdict in
respect of one or both of them are
so clearly distinct in intent, time and modus, and the evidence
necessary to prove the
one is not the same as, and does not
necessarily prove, the other, and they do not form part of the same,
continuous criminal transaction,
in which case there will not be an
improper duplication of convictions if the accused is convicted and
sentenced in respect of
both such offences, instead of in respect of
a single offence.
47.
I think it may safely be said that ordinarily, where an accused could
be convicted of housebreaking
with intent to commit an offence and
that offence as well, and both would be committed with the same
intent (eg housebreaking with
intent to steal and theft or
housebreaking with intent to rob and robbery), there can and should
only be a single conviction on
a composite, rolled-up charge, and
only a single punishment would be competent.
48.
One trusts that this restatement of the law will put paid to the
lingering confusion and uncertainty
which one still finds in
judgments of the Courts and in leading textbooks as to whether
or not a conviction in housebreaking
cases amounts to a conviction of
a single offence or to more than one.”
(footnotes omitted)
[8]
Having read the record, I am satisfied that indeed the offence of
theft was not completed.
If one applies the single intent test,
the factory were broken into with the intention to steal which, in my
view, would
include an attempt to steal. Therefore, a conviction on
housebreaking with intent to steal would suffice.
[9]
In
S
v Kharuchab
[2]
,
at para 11, on review, the Court stated:
[11]
In S v Radebe
[3]
, Ebrahim,
J referred with approval to R v Sabuyi,
[4]
where
the accused had been convicted and sentenced on the charges of
housebreaking with intent to commit an offence in contravention
of
Ordinance 26 of 1906 and theft. The theft had taken place immediately
after the breaking into the premises. In the Sabuyi case,
Innes CJ stated that the test for determining whether a duplication
of convictions has occurred as follows:
“
where
a man commits two acts of which each, standing alone, would be
criminal, but does so with a single intent and both acts are
necessary to carry out that intent, then it seems to me that he ought
only to beindicted for one offence, because two acts constitute
one
criminal transaction.”
[10]
It follows that a conviction including theft that was not completed
was irregular and it ought to be reviewed
and set aside. This court,
exercising its powers provided for in section 304 2(c), shall
accordingly alter the conviction.
[11]
This takes me to the second issue of whether the sentence of eighteen
(18) months imprisonment
in terms of section 276(1) (i) of the Act,
is proportionate to the offence committed. The personal
circumstances of the accused
were that he was 33 years old and
married with 4 children. He is a first offender. He showed
remorse and pleaded guilty.
He committed the offence because he was
struggling at home and the children were hungry. He was
frustrated that as a father
he was not able to provide for his
family. He used to work at that factory as a security guard but was
dismissed because he had
eyesight problems. His intention was
to steal food for the children and something to sell. He was
aware that he will
never work as a security guard again because of
the conviction for this offence. His legal representative asked for a
wholly suspended
sentence.
[12]
The State accepted that the accused had shown remorse. It also
submitted that housebreaking
is serious in nature. The State did not
oppose the suggestion of a wholly suspended sentence.
[13]
In sentencing the accused the trial court stated:
“
Now,
what is more aggravating is that you
stole
from your former employer. They say that you cannot bite the hand
that feeds you. At some stage you were put in a position of trust
by
this company. They employed you, you were part of them until they
released you. Now, you cannot take out your anger on them
just
because they had to release you and
steal
from them. Break in and
steal
valuable items from them.
It is indeed not an excuse to say that you did it out of hunger. ..”
(my emphasis)
[14]
Throughout the reasons for sentence, the Magistrate clearly
misdirected himself or herself by referring
to a theft that had
occurred when in fact it did not. The harshness of the sentence
of direct imprisonment, in the circumstances
of the case, was clearly
influenced by that mistake.
[15]
The fact that the goods were not taken out of the premises and
removed from the factory of the complainant
is something that ought
to have been taken into account. The door that was used to gain entry
was closed but not locked and there
was no damage to it. The
accused was apprehended by a security guard inside the premises and
was arrested shortly thereafter.
The complainant suffered no
loss. The trial court gave no reasons for rejecting the
submission by the defense, which was
supported by the State, for a
wholly suspended sentence. None of the factors mentioned herein were
considered by the trial court.
[16]
I accordingly find that the sentence of eighteen (18) months
imprisonment for housebreaking is
shockingly inappropriate in the
circumstances of this case. It is not in accordance with justice and
is hereby reviewed and set
aside. This court believes that with
all the evidence before it, it is not necessary to remit the matter
to the trial court
for imposition of sentence. The accused is in
custody and this court does not find that direct imprisonment is
appropriate but
intends to replace the sentence by imposing a wholly
suspended sentence which would serve as a deterrent. The effect
of the
sentence to be imposed will call for the immediate release of
the accused.
[17]
In the circumstances I make the following Order:
ORDER
1.
The conviction for the offence of
housebreaking with intent to steal and theft is reviewed, set aside
and replaced with the following:
“
The
accused is convicted of the offence of housebreaking with intent to
steal”.
2.
The sentence of 18 months’
imprisonment in terms of section 276 (1) (i) of Act 51 of 1977 is
reviewed and set aside. The following
sentence is imposed:
“
The
accused is sentenced to undergo six months’ imprisonment. The
sentence is wholly suspended for a period of three (3) years
on
condition that the accused is not convicted of housebreaking with
intent to steal during the period of suspension.”
4.
The sentence is antedated to 30 August 2024.
T.V NORMAN
JUDGE OF THE HIGH
COURT
I agree.
A.S. ZONO
ACTING JUDGE OF THE
HIGH COURT
18
October 2024
[1]
Bam v S (A144/18)
[2020] ZAWCHC 68
;
[2020] 4 All SA 21
(WCC);
2020
(2) SACR 584
(WCC) (20 July 2020).
[2]
S
v Kharuchab 2017(1) NR 116 (HC).
[3]
S
v Radebe 2006(2) SACR 604.
[4]
R
v Sabuyi
1905 TS 170-171
, S v Cetwayo
2002 (2) SACR 319.