S v Dibakwane (A935/14) [2015] ZAGPPHC 19 (8 January 2015)

S v Dibakwane (A935/14) [2015] ZAGPPHC 19 (8 January 2015)

The evidence did not establish that the accused unlawfully and intentionally broke into Lucky Madonsela's premises in count 1, as the accused found the door already open and broken. The State failed to prove housebreaking beyond reasonable doubt, and the accused only admitted to theft. Accordingly, the conviction for housebreaking with intent to steal and theft in count 1 was set aside and replaced with a conviction for theft. The sentence for count 2, which was correctional supervision for eighteen months, was confirmed as appropriate. The sentence for count 1 was remitted to the magistrate for reconsideration in light of the substituted conviction.

Citation
[2015] ZAGPPHC 19
Parties
Applicant: The State; Respondent: Solly Dibakwane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 January 2015
Case Number
A935/14
Procedural Posture
Criminal Law Review / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction for housebreaking with intent to steal and theft in count 1 set aside and replaced with theft; sentence for count 2 confirmed; sentence for count 1 remitted for reconsideration.
Judges
W. Hughes, V. V. Tlhapi
Legal Topics
Housebreaking, Theft, Correctional Supervision, Section 304 Review, Sentencing Variation
Criminal Law Housebreaking Theft Correctional Supervision Section 304 Review Sentencing Variation

Case Brief

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Parties

The State

Applicant

Solly Dibakwane

Respondent

Procedural Posture

Criminal Law Review / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the conviction for housebreaking with intent to steal and theft in count 1 was supported by evidence.
  2. 2 Whether the accused's conduct in count 1 constituted theft rather than housebreaking with intent to steal.
  3. 3 Whether the sentence imposed for both counts was appropriate and in accordance with justice.

Ratio Decidendi

The evidence did not establish that the accused unlawfully and intentionally broke into Lucky Madonsela's premises in count 1, as the accused found the door already open and broken. The State failed to prove housebreaking beyond reasonable doubt, and the accused only admitted to theft. Accordingly, the conviction for housebreaking with intent to steal and theft in count 1 was set aside and replaced with a conviction for theft. The sentence for count 2, which was correctional supervision for eighteen months, was confirmed as appropriate. The sentence for count 1 was remitted to the magistrate for reconsideration in light of the substituted conviction.

Court Disposition

Conviction for housebreaking with intent to steal and theft in count 1 set aside and replaced with theft; sentence for count 2 confirmed; sentence for count 1 remitted for reconsideration.

Orders

  • The conviction in respect of count 1 for housebreaking with intent to steal and theft is set aside and replaced with a conviction of theft, and remitted to the magistrate for sentencing.
  • The sentence of correctional supervision in terms of section 276(1)(h) for count 2 for a period of eighteen months is confirmed.