In the matter between
THE STATE
and
IN THE HIGH COURT OF SOUTH AFRICA,
FREE ST ATE DIVISION, BLOEMFONTEIN
Not reportable
Case number: R03/2026
Magistrate's Case No: A39 /2025
MPHO JONAS JAMES ACCUSED
Neutral citation: S v James (R03/2026) [2026] ZAFSHC 111 (23 March 2026)
Coram: DANI SO J et MHLAMBI ADJP
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 23 March 2026 at 11h00.
1
ORDER
The order of the district court, Lejweleputswa in respect of count 3 is reviewed , set
aside and replaced with the following:
'(a) The accused is found guilty of theft.
(b) The matter is remitted to the district court, Lejweleputswa for the purpose of
sentencing afresh.'
JUDGMENT
Daniso J (Mhlambi ADJP concurring)
[1] On 23 June 2025 the accused appeared legally represented in the district court,
Lejweleputswa held at Theunissen. He was initially charged with three coun ts of
housebreaking with intent to steal and theft. The State alleged that on 30 December 2024
the accused broke into Mr TS Markus's residence and stole clothes and groceries (count
1); on 15 January 2025 he broke into Mr NB Theta's residence and stole his clothes and
groceries (count 2) on 22 January 2025, he broke into Mr C Mbangani's house and stole
his solar battery, speaker and solar FM (count 3). At the commencement of the
proceedings, count 1 was withdrawn by the State.
[2] The accused pleaded guilty to the remaining counts. He was summarily convicted
on the basis of his statements as provided for in s 112(2) of the Criminal Procedure Act·
51 of 1977 (CPA). He was subsequently sentenced to nine months' imprisonment wholly
suspended for five years with conditions in respect of count 2. A sentence of twelve
months imprisonment wholly suspended for five years was imposed in respect of count
2
3. In terms of s 103 (1) of the Fir_earms Control Act 60 of 2000, the magistrate determined
that 'the accused is not declared unfit to possess a firearm.'
[3] This is a special review submitted by the senior magistrate, Welkom, in terms
of s 304(4) of the CPA. It pertains to the conviction of the accused based on his guilty
plea in relation to count 3.
[4] The issue that arises from the senior magistrate's referral is that the conviction
cannot stand as having regard to the accused's s 112(2) statement, his admissions relate
to stealing Mr. Mbangani's property after gaining entry into his residence through an open
window, the accused made no admission pertaining to breaking into the property which
is an essential element of the charge of housebreaking with intent to steal and theft .
Therefore , the accused ought to have been convicted of theft. It follows too that the
sentence imposed necessitates this Court's intervention.
[5] In response to the senior_ magistrate's query, the learned magistrate conceded
that the accused ought to have been convicted of theft as he did not admit to
breaking into Mr. Mbangani's house.
[6] The relevant part of the accused's s 112(2) statement (para 7) reads as follows:
'My plea of guilty is based on the following facts:
On the day of the incident I went to D32 Asijiki Theunissen, I went through an open window of
the house as I could see there is no one. I then saw the said items being car battery, solar
battery, speaker and solar FM and decided to take them and go sell them .. .'
[7] 'Breaking of premises ' with the intention of committing a crime in the legal sense
constitutes the removal or displacement of any obstruction to entry of a structure which
forms part of the premises.1 In the context of this matter, the removal component of
this offence required the accused to admit to having opened, even partially the window
in order to gain entry into Mr. rv,bangani's house to qualify as an admission to the
in order to gain entry into Mr. rv,bangani's house to qualify as an admission to the
'breaking' element of the offence. Based on the absence of this admission, it has not
been established that the accused admitted all the elements of the offence to which
1 S v Hlongwane 1992 SACR 484 N.
3
he has pleaded guilty. The proceedings are thus not in accordance with justice, they
stand to be set aside.
Order
[8] In the premises, I make the following order:
The order of the district court, Lejweleputswa in respect of count 3 is reviewed, set
aside and replaced with the following:
'(a) The accused is found guilty of theft.
(b) The matter is remitted to the district court, Lejweleputswa for the purpose of
sentencing afresh.'
I concur and it is so ordered.
4
The Honourabi e Justice
NS DANISO
JUDGE OF THE HIGH COURT
JJ MHLAMBI
JUDGE OF THE HIGH COURT
....