Mzandi v S (110/2010) [2010] ZAWCHC 168; 2011 (1) SACR 253 (WCC) (27 August 2010)

Mzandi v S (110/2010) [2010] ZAWCHC 168; 2011 (1) SACR 253 (WCC) (27 August 2010)

The court found that although the accused broke into the premises and moved items with the intention to steal, the items were only concealed within the same room and not removed from the owner's control. There was no completed act of appropriation or deprivation of the owner's control over the property. Therefore, the conviction for theft was incorrect; the accused could only be convicted of attempted theft. The conviction for housebreaking with intent to steal and theft was set aside and substituted with housebreaking with intent to steal and attempted theft. The matter was remitted to the regional court for sentencing.

Citation
[2010] ZAWCHC 168
Parties
Applicant: Thulani Mzandi; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
27 August 2010
Case Number
110/2010
Procedural Posture
Review Application / Special Review Under Section 304 a of the Criminal Procedure Act After Referral for Sentence Under Section 116(1).
Outcome
Conviction for housebreaking with intent to steal and theft set aside; substituted with housebreaking with intent to steal and attempted theft. Matter remitted for sentencing.
Judges
Klopper, Le Grange
Legal Topics
Housebreaking, Attempted Theft, Elements of Theft, Contrectatio, Criminal Procedure Review
Criminal Law Housebreaking Attempted Theft Elements of Theft Contrectatio Criminal Procedure Review

Case Brief

Summary, issues, holding and outcome

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Parties

Thulani Mzandi

Applicant

The State

Respondent

Procedural Posture

Review Application / Special Review Under Section 304 a of the Criminal Procedure Act After Referral for Sentence Under Section 116(1).

Legal Issues

  1. 1 Whether the accused's conduct constituted completed theft or only attempted theft.
  2. 2 Whether the movement and concealment of items within the premises amounted to appropriation for the purposes of theft.
  3. 3 Whether the conviction for theft should be set aside and substituted with attempted theft.

Ratio Decidendi

The court found that although the accused broke into the premises and moved items with the intention to steal, the items were only concealed within the same room and not removed from the owner's control. There was no completed act of appropriation or deprivation of the owner's control over the property. Therefore, the conviction for theft was incorrect; the accused could only be convicted of attempted theft. The conviction for housebreaking with intent to steal and theft was set aside and substituted with housebreaking with intent to steal and attempted theft. The matter was remitted to the regional court for sentencing.

Court Disposition

Conviction for housebreaking with intent to steal and theft set aside; substituted with housebreaking with intent to steal and attempted theft. Matter remitted for sentencing.

Orders

  • The conviction for housebreaking with intent to steal and theft is set aside.
  • The conviction is substituted with housebreaking with intent to steal and attempted theft.