S v Makgetla (R17/2021) [2021] ZAFSHC 121 (29 April 2021)

S v Makgetla (R17/2021) [2021] ZAFSHC 121 (29 April 2021)

The accused's statement under section 112(2) of the Criminal Procedure Act admitted only to theft, not housebreaking, as he entered through an open window without breaking. The magistrate erred in convicting him of housebreaking with intent to steal and theft. The correct conviction is theft. The sentence must be adjusted to reflect the proper conviction. Previous convictions from 2003, 2006, and 2008 should not have been considered for sentencing, while relevant convictions from 2013 were appropriately noted. The interests of justice require setting aside both the conviction and sentence and substituting them with a conviction for theft and a proportionate sentence.

Citation
[2021] ZAFSHC 121
Parties
Applicant: The State; Respondent: Motsamai Johannes Makgetla
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 April 2021
Case Number
R17/2021
Procedural Posture
Review Application / High Court Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction for housebreaking with intent to steal and theft set aside and substituted with conviction for theft. Sentence of 36 months imprisonment set aside and replaced with 24 months imprisonment, ante-dated to 25 November 2020.
Judges
Naidoo J, Reinders J
Legal Topics
Housebreaking With Intent to Steal and Theft, Theft, Criminal Procedure Act Section 304, Admissions in Plea Statements
Criminal Law Housebreaking With Intent to Steal and Theft Theft Criminal Procedure Act Section 304 Admissions in Plea Statements

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Parties

The State

Applicant

Motsamai Johannes Makgetla

Respondent

Procedural Posture

Review Application / High Court Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Did the accused's plea statement admit all elements of housebreaking with intent to steal and theft?
  2. 2 Was the conviction for housebreaking with intent to steal and theft appropriate on the facts admitted?
  3. 3 Should the sentence imposed be altered in light of the correct conviction?

Ratio Decidendi

The accused's statement under section 112(2) of the Criminal Procedure Act admitted only to theft, not housebreaking, as he entered through an open window without breaking. The magistrate erred in convicting him of housebreaking with intent to steal and theft. The correct conviction is theft. The sentence must be adjusted to reflect the proper conviction. Previous convictions from 2003, 2006, and 2008 should not have been considered for sentencing, while relevant convictions from 2013 were appropriately noted. The interests of justice require setting aside both the conviction and sentence and substituting them with a conviction for theft and a proportionate sentence.

Court Disposition

Conviction for housebreaking with intent to steal and theft set aside and substituted with conviction for theft. Sentence of 36 months imprisonment set aside and replaced with 24 months imprisonment, ante-dated to 25 November 2020.

Orders

  • The conviction on a charge of housebreaking with intent to steal and theft is set aside and substituted with a conviction for theft.
  • The sentence imposed by the magistrate is set aside and substituted with 24 months imprisonment, ante-dated to 25 November 2020.