S v Kwinana (5/8355/2008) [2009] ZAGPJHC 16 (19 May 2009)
- Citation
- [2009] ZAGPJHC 16
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Mabesele
- Case number
- 5/8355/2008
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Mabesele
- Case number
- 5/8355/2008
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The accused's section 112(2) statement revealed that he took the property as security for unpaid wages and refused to return it unless paid. This conduct does not demonstrate an intention to permanently deprive the owner of the property, which is a necessary element of theft. The magistrate should have entertained doubt regarding the accused's guilt and not convicted him solely on the basis of the statement. The conviction and sentence are therefore not sustainable and must be set aside.
Court disposition
Conviction and sentence set aside; matter remitted for proper compliance with section 112(2) or action under section 113 of the Criminal Procedure Act.
Orders
- The conviction and sentence are set aside.
- The matter is remitted to the court a quo.
- The court a quo is directed to comply with the provisions of section 112(2) of the Criminal Procedure Act, or to act in terms of section 113 of the Criminal Procedure Act.
02
Material facts
Parties
S. Kwinana
DefendantAmounts and remedies
- Value of Stolen Property: ZAR 956
03
Procedural history
Posture
Review Application / Special Review
04
Questions and positions
Legal issues
- 01
Whether the accused admitted all essential elements of theft in the section 112(2) statement.
- 02
Whether the intention to hold property as security constitutes theft under South African law.
- 03
Whether the conviction and sentence based on the section 112(2) statement were correct.
Party arguments
- Applicant
- The accused, through his section 112(2) statement, indicated that he took the property only as security due to non-payment of wages, and refused to return it unless paid. He did not intend to permanently deprive the owner of the property, which is a necessary element of theft.
- Respondent
- The prosecution relied on the accused's admission in paragraph 5 of the statement, where he averred an intention to permanently deprive the owner. They argued this satisfied the elements of theft and justified conviction and sentence.
05
Court’s reasoning
Legal principles
- 01
Snyman: Criminal Law (4th edition p469)
Theft requires unlawful and intentional appropriation of another's property, including an intention to permanently deprive the owner.
- 02
R v Hendricks, 1938 CPD 456
Taking another's property with the intent to hold it as security does not amount to theft.
- 03
S v van Coller, 1970(1) SA 417
If an accused does not admit all essential elements of the offence in a section 112(2) statement, conviction on that basis is not justified.
06
Ratio, limits and disposition
Ratio decidendi
The accused's section 112(2) statement revealed that he took the property as security for unpaid wages and refused to return it unless paid. This conduct does not demonstrate an intention to permanently deprive the owner of the property, which is a necessary element of theft. The magistrate should have entertained doubt regarding the accused's guilt and not convicted him solely on the basis of the statement. The conviction and sentence are therefore not sustainable and must be set aside.
Obiter and limits
- The magistrate should carefully scrutinize section 112(2) statements to ensure all essential elements of the offence are admitted before convicting.
- The accused's further averment of permanent deprivation does not override the clear intention expressed to hold the property as security.
Court disposition
Conviction and sentence set aside; matter remitted for proper compliance with section 112(2) or action under section 113 of the Criminal Procedure Act.
- The conviction and sentence are set aside.
- The matter is remitted to the court a quo.
- The court a quo is directed to comply with the provisions of section 112(2) of the Criminal Procedure Act, or to act in terms of section 113 of the Criminal Procedure Act.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN THE
HIGH COURT OF SOUTH
AFRICA
(WITWATERSRAND LOCAL DIVISON)
High Court Reference no: 51/09
Magistrate Court Reference no: 56/08
Review Case no: 5/8355/2008
S V S.KWINANA
SPECIAL REVIEW JUDGEMENT
MABESELE AJ:
The accused appeared in the magistrate’s Court for the district of Johannesburg, on a charge of theft. The allegation being that on or upon 4 October 2008, the accused did unlawfully and intentionally steal a petrol tag, amounting to R 956, 00, from his place of employment.
The accused pleaded guilty. His legal representative then handed in a statement in terms of section 112(2) of the Criminal Procedure Act, 51 of 1977. The statement is marked “exhibit ‘A’.”
After the magistrate had formed a view that the accused admitted all the elements of the charge and thus correctly pleaded guilty, he convicted the accused and sentenced him to 24(twenty four) months imprisonment. The sentence was wholly suspended on certain conditions.
Subsequent to the conviction and sentence the matter has now been referred to me on special review on the ground that the provisions of section 112(2) of the Criminal Procedure Act, 51of 1977, were not properly complied with.
Paragraph 4 of the statement reads:
“I took the abovementioned articles from a desk after my employer told me that he had no money to pay me (sic) refused to give it back to him unless I was paid”
Paragraph 5 reads:
“It was my intention to take the said item and in so doing, deprive the owner permanently of his ownership”
Theft is committed when a person unlawfully and intentionally appropriates the property of another.
Snyman: Criminal Law (4th edition p469) states that the intention to appropriate the property includes an intention permanently to deprive the person entitled to possession of the property, of such property.
The accused refused to give the property back to the complainant unless he was paid what was due to him. In my view, the accused intended to hold the property as security in order to apply pressure to the complainant to pay him.
Taking another’s property with the intent to hold it as a security does not amount to theft. (See R v Hendricks, 1938 CPD, 456; S v van Coller, 1970(1) SA, 417)
In my view, the accused did not intent permanently to deprive the complainant of his property despite a further averment to such effect.
From what the accused stated in paragraph 4 of his statement, the magistrate ought to have entertained a doubt as to whether the accused was in law guilty as charged.
In the light of the aforegoing, it cannot be said that the finding of guilty by the magistrate on the basis of section 112(2) statement which was handed in as exhibit ‘A,’ is correct, as the accused did not admit all the essential elements of
the offence. In the result, the conviction for theft cannot stand.
Therefore, the following order is made:
The conviction and sentence are set aside.
The matter is remitted to the court a quo
The court a quo is directed to comply with the provisions of
section 112(2) of the Criminal Procedure Act, or to act in
terms of section 113 of the Criminal Procedure Act.
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