S v Barends and Another (260/05) [2005] ZANCHC 111 (7 November 2005)

S v Barends and Another (260/05) [2005] ZANCHC 111 (7 November 2005)

The accused were incorrectly convicted of housebreaking with intent to steal and theft because their plea statements did not admit to removing an obstruction forming part of the structure, as required by law. Merely pushing aside a curtain to gain entry through an open window does not satisfy the legal definition of housebreaking. The magistrate misapplied section 112(2) of the Criminal Procedure Act by accepting these admissions as sufficient for conviction. Furthermore, the sentences imposed were inappropriate given the accuseds' ages and the lack of proper consideration of their prior convictions. The review court exercised its inherent powers to set aside both the convictions and...

Citation
[2005] ZANCHC 111
Parties
Defendant: Gradwell Barends; Defendant: Pieter Gertz; Applicant: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
7 November 2005
Case Number
260/05
Procedural Posture
Criminal Review / Automatic Review Following Conviction and Sentence
Outcome
Convictions and sentences set aside; matter remitted for proper application of section 112(2) or section 113 of the Criminal Procedure Act.
Judges
OLIVIER, TLALETSI
Legal Topics
Housebreaking, Application of Section 112 2, Conviction and Sentence, Review Procedure
Criminal Law Housebreaking Application of Section 112 2 Conviction and Sentence Review Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Gradwell Barends

Defendant

Pieter Gertz

Defendant

The State

Applicant

Procedural Posture

Criminal Review / Automatic Review Following Conviction and Sentence

Legal Issues

  1. 1 Whether the accused were correctly convicted of housebreaking with intent to steal and theft based on their plea statements.
  2. 2 Whether the sentences imposed were appropriate given the accuseds' ages and previous convictions.
  3. 3 Whether the magistrate properly applied section 112(2) of the Criminal Procedure Act.

Ratio Decidendi

The accused were incorrectly convicted of housebreaking with intent to steal and theft because their plea statements did not admit to removing an obstruction forming part of the structure, as required by law. Merely pushing aside a curtain to gain entry through an open window does not satisfy the legal definition of housebreaking. The magistrate misapplied section 112(2) of the Criminal Procedure Act by accepting these admissions as sufficient for conviction. Furthermore, the sentences imposed were inappropriate given the accuseds' ages and the lack of proper consideration of their prior convictions. The review court exercised its inherent powers to set aside both the convictions and...

Court Disposition

Convictions and sentences set aside; matter remitted for proper application of section 112(2) or section 113 of the Criminal Procedure Act.

Orders

  • Both accuseds' convictions and sentences are set aside.
  • The matter is remitted to the trial court for proper compliance with section 112(2) or section 113 of the Criminal Procedure Act, as appropriate.