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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
High Court Ref: 140/26
Magistrate Serial No. Review No 37/2026
Magistrate’s Case No: 17/84/2026
In the matter between:
THE STATE
v
EASTON SEAN AND ANOTHER ACCUSED
And
High Court Ref: 141/26
Magistrate Serial No. Review No 39/2026
Magistrate’s Serial No: 17/172/2026
In the matter between:
THE STATE
v
DAMIAN VAN WYK ACCUSED
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Neutral citation: S v Sean and Another; S v Van Wyk (Case No. 140/26; and
141/26) [2026] ZAWCHC … (18 August 2026)
Coram: HENNEY AND LEKHULENI JJ
ORDER
1. The convictions and sentences of the two accused in case 140/2026
(Magistrate’s serial No. 37/2026) for housebreaking with intent to steal
and theft are hereby set aside. The matter is remitted to the Magistrate to
confirm whether the state accepts the plea and deal with the matter
accordingly. If not, the Magistrate shall enter a plea of not guilty and
proceed with the trial.
2. The conviction and the 18-month sentence of the accused on count 2
(theft out of a motor vehicle) in case number 141/2026 (Magistrate Court
Serial No. 39/2026) are hereby set aside. The matter is remitted to the
Magistrate to enter a plea of not guilty and to proceed with the trial.
3. The magistrate concerned is directed to attend to these matters
expeditiously within two months from the date hereof and to report to this
court the outcome thereof.
4. A copy of this judgment must be directed to the Chief Magistrate of Cape
Town to fast-track the expeditious hearing of these matters.
________________________________________________________________
JUDGMENT
Lekhuleni J (Henney J Concurring):
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[1] This judgment deals with two separate review matters, namely, S v Sean
& Another and S v Van Wyk. These two matters come before this court by way
of automatic review in terms of s 303, read with s 304, of the Criminal
Procedure Act 51 of 1977 (“the CPA”). In both cases, the accused were not
legally represented but rather chose to conduct their own defences. For clarity
and systematic analysis, I propose to deal with these two separate cases
sequentially.
S v Sean and Another - High Court Ref: 141/26
Magistrate Serial No. Review No 37/2026
[2] In S v Sean and Another, two accused were convicted by the Cape Town
Magistrates’ Court of housebreaking with intent to steal and theft. It was alleged
that on 1 February 2026, at B[...] Road, Table View, in the District of Cape
Town, the accused unlawfully and intentionally, with intent to steal, broke and
entered the house of the owner unknown to the State and there and then
wrongfully and intentionally stole a light plug and cables, the property in the
lawful possession of a person unknown to the State.
[3] At the commencement of the trial, the accused elected to conduct their
own defences after their right to legal representation was explained to them.
Subsequently, the charges were put to the accused, and both pleaded guilty.
Thereupon, the trial court invoked the provisions of s 112(1)(b) of the CPA. The
presiding magistrate convicted the accused after questioning them in terms of s
112(1)(b) of the CPA and subsequently sentenced each accused to 3 years'
direct imprisonment. The trial court subsequently made an ancillary order in
terms of s 103(1)(g) of the Firearms Control Act 60 of 2000, deeming the
accused unfit to possess a firearm. This Court is now enjoined to consider
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whether the proceedings before the trial court appear to be in accordance with
justice.
[4] In questioning the accused in terms of section 112 (1)(b) of the CPA, the
court asked both accused to explain in their own words what happened that led
to their arrest. In response, accused 1 admitted that on the day in question he
was with accused 2 and that they arrived at 4[...] B[...] Road, Table View.
[5] Upon arrival, they both jumped over the wall of the property and entered
through the door, which they managed to open. While inside the property, they
looked for something valuable to take. However, they noticed that the house
was empty. Shortly thereafter, while they were inside the house, members of the
South African Police Service (SAPS) arrived, and the two accused were
subsequently arrested. Accused 1 explained that his guilty plea was made freely
and voluntarily and without any undue influence.
[6] Accused 2 provided a plea explanation similar to that of Accused 1. In
addition to the explanation already placed on record by Accused 1, Accused 2
stated that they gained entry to the property through a sliding door, which they
managed to open. After questioning both accused in terms of s 112(1)( b) of the
CPA, the court noted that it was satisfied that the two accused admitted all the
elements of the offence and accordingly found them guilty as charged of
housebreaking with intent to steal and theft. The court then heard submissions
in mitigation and aggravation of sentence from both accused and from the
prosecution. Having considered these submissions, the court imposed a
sentence of 3 years direct imprisonment on each accused.
[7] After reviewing the record, I became concerned about both the
conviction and the sentence imposed by the trial court. Accordingly, I
addressed a query to the magistrate, requesting specific comment on whether
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the offence of housebreaking with intent to steal and theft had been established
on the facts, and, if so, what property, if any, had been stolen from the
complainant’s premises. I further asked the magistrate to indicate whether the
accused should not instead have been convicted of housebreaking with intent
to steal and attempted theft. In addition, I requested clarification on whether
the two accused were afforded an opportunity to address the court or to present
evidence before the automatic application of s 103(1) (g) of the Firearms
Control Act 60 of 2000 was invoked.
[8] In a prompt and candid response, the magistrate conceded that she erred
in convicting the accused of housebreaking with intent to steal and theft. The
magistrate further confirmed that, under s 112(1)(b) of the CPA, the plea
explanations given by both accused showed that no property was found inside
the premises and that nothing was in fact stolen. The magistrate also explained
that the accused were interrupted by the police arriving at the scene before
they could remove any property. In light of these facts, the magistrate stated
that the appropriate conviction should have been housebreaking with intent to
steal and attempted theft.
Discussion
[9] Housebreaking is not a crime eo nomine.1 It must be accompanied by the
intention to commit another actual offence, or a substantive offence on the
premises entered. 2 This further offence which the accused intends to commit
must be a different one from the housebreaking itself. The “breaking” consists
of the removal or displacement of any obstacle which bars entry into the
1 Kruger A Hiemstra’s Criminal Procedure (2019) at 26-18(1).
2 S v Bam 2020 [2020] ZAWCHC 68; 4 All SA 21 (WCC) para 76.
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structure, and which forms part of the structure itself. 3 The entry is completed
the moment the wrongdoer has inserted any part of his or her body, or any
instrument he or she is using for that purpose, through the opening with the
intention of thereby exercising control over some contents of the building or
structure.4 Simply put, there exists no offence, either at common law or in
statute, which consists of mere 'housebreaking' without some concomitant intent
to commit a substantive offence.5
[10] In this matter, the accused unlawfully broke into and entered the
complainant’s premises. The state alleged that the accused, whilst inside the
premises, stole a light plug and cables. They were found inside the structure
and arrested before they could remove any property. Their plea explanation
makes clear that they entered the premises with the intent to steal: they stated
that once inside, they searched for items of value to take but found the house
empty. Their plan to steal was ultimately thwarted by the arrival of the police.
[11] On these facts, the accused possessed the requisite intent to steal, but the
offense of theft was not completed. What compounds the difficulty in the
accused's plea explanation is that the State alleged that the two accused stole
light plugs and cables while inside the premises. The accused did not admit
this fact. Before the Court could convict the accused, it did not ask the
prosecutor whether the State accepted the accused's plea. Significantly, the
accused stated that there was nothing of value in the premises that they could
take, and the police arrived before they could take anything from the property.
The accused's plea explanation contradicted what the State alleged in the
charge.
3 S v Lekute 1991 (2) SACR 221 (C) at 222F-G; S v Hlongwane 1992 (2) SACR 484 (N) at 466G-I; S v Madini
[2000] 4 All SA 20 (NC) at p.22.
4 R v Melville [1959] 3 All SA 461 (E) at 545E–F.
5 S v Maseko and Another 2004 (1) SACR 22 (T) at 22G.
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[12] In my view, the magistrate erred in convicting the accused in
circumstances where lis still existed between the State and the accused. It must
be stressed that the State is in charge of the process. The State delineates the lis
between it and the accused by deciding to accept a plea on a lesser charge. 6 As
Makgoka JA noted in S v Kekana,7 the acceptance by the prosecutor of the plea
of guilty on the alternative charge has the result of removing the main charge
from the indictment. It follows that a conviction on the main charge can not
stand. In other words, in such a case, it is up to the State to determine the
offence that the accused is convicted of. The court has no say in that and must
sentence the accused in accordance with the accepted plea . But if the prosecutor
does not accept the plea of guilty in respect of an alternative or lesser charge the
court must note a plea of not guilty in respect of the main charge and act in
terms of s 115.
[13] As stated above, the prosecutor did not accept the accused's plea. The
court did not even ask the prosecutor whether the State accepted the accused’s
plea. In these circumstances, the court should have entered a plea of not guilty
in terms of s 113 of the CPA. Consequently, the conviction and the resultant
sentence imposed upon the accused cannot stand. Both must be set aside, and
the magistrate must proceed with the trial and enter a plea of not guilty on the
accused in terms of s 113 read with s 115 of the CPA.
[14] I am mindful that the accused has been in custody and has served part of
the sentence. Section 312(1) of the CPA provides:
6 S v Tshilidzi 2013 JDR 1356 (SCA) para 9.
7 2019 (1) SACR 1 (SCA) para 17.
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‘(1) Where a conviction and sentence under section 112 are set aside on review or appeal on
the ground that any provision of subsection (1) (b) or subsection (2) of that section was not
complied with, or on the ground that the provisions of section 113 should have been applied,
the court in question shall remit the case to the court by which the sentence was imposed and
direct that court to comply with the provision in question or to act in terms of section 113, as
the case may be.’
[15] A careful reading of s 312 of the C PA reveals that two jurisdictional
requirements must be met before the section finds application. First, the
provision is triggered where an appeal or review court sets aside a conviction
and sentence imposed following a plea of guilty and the subsequent invocation
of s 112. Secondly, the setting aside of the conviction and sentence must occur
because the trial court failed to comply with any of the provisions of s
112(1)(b) or s 112(2), or failed to record a plea of not guilty in terms of s 113
when it ought to have done so.
[16] In the present matter, the irregularities observed, in particular, relate to a
failure to comply with s 112(1) (b) of the CPA, and therefore the matter should
ordinarily be remitted to the court a quo in terms of s 312 of the CPA. However,
I am mindful of the guidance of the Supreme Court of Appeal in S v Mshengu,8
where the court observed that s 312 should not be invoked if compliance with
the section would be unfair. To this end, I find the following excerpt from that
judgment apposite. The court stated:
'[17] The purpose of s 312 is to prevent an injustice which may occur if an accused person
were to escape punishment for his or her crime only because his or her conviction was set
aside on the ground that there was a failure to comply with s 112 of the Act. But an injustice
cannot occur where the accused has served the entire sentence by the time the conviction is
cannot occur where the accused has served the entire sentence by the time the conviction is
set aside on appeal. Nor can it occur where a fresh conviction cannot be achieved following a
remittal to the trial court. . . . There can be no justification for ordering that an accused
8 2009 (2) SACR 316 (SCA).
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person, who has already served the entire punishment, be subjected to a second trial. Such an
order would be inconsistent with the right to a fair trial. In my view it could never have been
the intention of the legislature that a court is obliged to comply with the section irrespective
of the injustice or unfairness that it may cause. I therefore conclude that s 312(1) is not
peremptory.'
[17] The charge of housebreaking with intent to steal and theft against both
accused is serious. It would be a failure of justice if both accused could escape
the consequences of their indiscretion because of mere technicalities.9 The
circumstances of this case evince that the two accused would not be prejudiced,
and justice would be achieved, if the proceedings are again continued against
the accused before the trial magistrate.
S v Damian Van Wyk: High Court Ref – 141/2026
Magistrate Serial No: Review No. 39/2026
[18] The same magistrate who presided in S v Sean and Another also presided
in State v Van Wyk. In the Van Wyk matter, the accused faced three charges,
namely two counts of theft out of a motor vehicle (counts 1 and 2) and a count
of possession of drugs (count 3). The accused pleaded guilty to all three counts.
The court sentenced the accused to 18 months’ imprisonment in terms of s
276(1)(i) for count 1 and 18 months' imprisonment in terms of s 276(1)(i) in
respect of count 2. The court cautioned the accused and discharged him in
respect of count 3. Upon perusing the record, I was satisfied that the conviction
and sentence for counts 1 and 3 were in accordance with justice. However, I
was concerned about the conviction on count 2.
[19] The charge on count 2 was that the accused was guilty of the offense of
theft out of a motor vehicle in that on or about 3 March 2026, and at or near
9 S v Ndzishe and Another 2023 (2) SACR 419 (WCC) para 29.
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Blauberg Road within the District of the City of Cape Town, the accused
unlawfully and intentionally steal goods or property namely a Bluetooth speaker
and clothing whose value is to the State unknown out of a parked motor vehicle,
Opel Corsa, the property in the lawful possession of Leslie Ahmad.
[20] In his plea explanation, the court asked the accused on count 2 to explain,
in his own words, what led to his arrest. In response, the accused stated that on
3 March 2026, he came from Dunoon and walked from Table View to
Bloubergstrand. As he walked, he saw a white Opel Corsa parked on the left
side of the road. He opened the car door and entered the vehicle. Subsequently,
a young boy and his father came out of a nearby house after hearing the accused
inside the car. The boy's father then apprehended the accused and hit him with a
baseball bat. A neighbourhood watch patrol vehicle arrived, and later the police
arrived and arrested the accused. The accused explained that he broke into the
car with the intention of stealing clothing and a Bluetooth speaker. The court
subsequently convicted the accused of theft out of a motor vehicle and
sentenced him accordingly.
[21] After perusing the record, I sent a review query to the magistrate,
inquiring whether the offense of theft out of a motor vehicle in count 2 was
completed, or whether the answers the accused gave supported a finding of theft
out of a motor vehicle. In response, the magistrate stated that the offence of
theft out of a motor vehicle was not completed and noted that notwithstanding,
competent verdicts were put to the accused when he pleaded.
[22] As stated above, the State alleged that the accused stole 1Bx Bluetooth
speaker and clothing from a motor vehicle. The accused did not admit that he
stole the speaker listed in the charge sheet as alleged by the State. The court did
not confirm with the prosecutor whether the State accepted the accused’s plea.
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According to the accused, he was inside the car when the complainant came and
apprehended him. He wanted to steal the said speaker. Nevertheless, the court
convicted him of theft out of a motor vehicle.
[23] Simply put, the State alleged that the accused stole the speaker from the
vehicle. The accused did not admit this fact. Even if one were to consider a
conviction for attempted theft out of a motor vehicle, the State did not accept
the competent verdict. Similarly, in this matter, the conviction and sentence on
count 2 must be set aside. The magistrate should enter a plea of not guilty and
proceed with the trial.
Order
[24] In view of all these considerations, I propose the following order:
1. The convictions and sentences of the two accused in case 140/2026
(Magistrate’s serial No. 37/2026) for housebreaking with intent to steal
and theft are hereby set aside. The matter is remitted to the Magistrate to
confirm whether the State accepts the plea and deal with the matter
accordingly. If not, the Magistrate shall enter a plea of not guilty and
proceed with the trial.
2. The conviction and the 18-month sentence of the accused on count 2
(theft out of a motor vehicle) in case number 141/2026 (Magistrate Court
Serial No. 39/2026) are hereby set aside. The matter is remitted to the
Magistrate to enter a plea of not guilty and to proceed with the trial.
3. The magistrate concerned is directed to attend to these matters
expeditiously within two months from the date hereof and to report to this
court the outcome thereof.
4. A copy of this judgment must be directed to the Chief Magistrate of Cape
Town to fast-track the expeditious hearing of these matters.
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____________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
I agree, and it is so ordered:
____________________________
HENNEY
R
JUDGE OF THE HIGH COURT