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

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES

Of Interest to other Judges: YES

Circulate to Magistrates: NO

Case number: R17/2021

In the matter between:

THE STATE

versus

MOTSAMAI JOHANNES

MAKGETLA ACCUSED

CORAM: NAIDOO, J et REINDERS J

REVIEW JUDGMENT BY: NAIDOO, J

DELIVERED ON: 29 APRIL 2021

[1] This matter came before us in terms of section 304(4) of the Criminal Procedure Act 51 of 1977 (CPA), as a result of routine checks on finalised matters by the Acting Senior Magistrate. The latter was of the view that the accused’s statement in terms of section 112 (2) of the CPA did not contain admissions of all the elements of the offence with which he was charged. This court was, consequently, requested to review the matter in terms of section 304(4) of the CPA.

[2] The accused was charged with one count of Housebreaking with Intent to Steal and Theft, the allegation being that he unlawfully and with intent to steal, broke open and entered the house of the complainant and stole a grinder. The accused was represented and pleaded guilty to the charge. His legal representative prepared a statement in terms of section 112 of the CPA, which was signed by the accused, and the contents of the statement were confirmed by the accused. The accused’s version, as contained in the section 112(2) statement, is that he went to the complainant’s premises and saw an open window. Thinking nobody was at the house, he climbed through the open window, proceeded to the garage where he saw a grinder on the floor and stole the grinder. He then went back into the lounge, in possession of the grinder, with the intention of exiting through the same open window from which he entered the house. He was however apprehended by the owner of the house, who called the police. The latter arrived and arrested the accused. He admitted the intent to steal and that he was aware at the time that his actions were unlawful and punishable by law. The value of the grinder was not placed on record, but it was clearly recovered as the owner apprehended the accused inside the house, whilst he was in possession of the grinder.

[3] The prosecutor advised the court that the section 112(1)(b) statement accorded with the state’s case and accepted the plea. The magistrate found him guilty as charged and sentenced him as follows:

“36 months direct imprisonment in terms of S 276(1)(b) of Act51/77. S103(1) Act 60/2000: No order is made – automatically deemed unfit to possess a firearm.”

[4] It is indeed clear that the accused’s version, as accepted by the state, did not accord with the elements of the offence of Housebreaking with Intent to Steal and Theft. The accused’s statement reveals that only the offence of theft was committed, and he ought to have been convicted of the offence of theft. It is well established in our law that gaining entry into premises through an open window does not constitute “breaking into” the premises. The accused’s personal circumstances were placed on record and taken into account by the magistrate. The accused pleaded guilty, and has several previous convictions, most of which are relevant to the present offence.

[5] The convictions dated 2003, 2006 and 2008 ought not be taken into account for the purposes of the present offence. The magistrate did not specifically indicate that he disregarded these previous convictions, although he made a reference to the accused’s previous convictions in general terms. It is noteworthy however, that in 2003, the accused was convicted on two separate cases of theft (2 counts each) and sentenced to eighteen months’ imprisonment. In 2006 he was convicted on one count of Housebreaking with Intent to Steal and Theft, and was sentenced thirty six months’ imprisonment of which twelve months was conditionally suspended for 5 years. In 2008, he was convicted for being in possession of property presumed to be stolen and was sentenced to four months’ imprisonment, which was wholly suspended.

[6] The previous convictions which ought to have been taken into account are those for Housebreaking with Intent to Steal and Theft in 2013. There appear to be four separate instances of the offence having been committed and he was sentenced separately in respect of each. In respect of the last two of these convictions, he was released on parole until March 2019. The magistrate correctly held that the two previous convictions in 2016 and 2017 were not directly related to the current offence as those charges were in respect of possession of drugs.

[7] In my view, the court misdirected itself with regard to the conviction and sentence in this matter, warranting the interference of this court, in order to ensure that the interests of justice are served. The accused, therefore, ought to have been convicted of theft only. The resultant sentence would also have be tailored accordingly. In the circumstances, the following order is made:

7.1 The conviction on a charge of Housebreaking with Intent to Steal and Theft is set aside and substituted with the following:

“The accused is found guilty of Theft”;

7.2 The sentence imposed by the court a quo in this matter is set aside and substituted with the following:

“The accused is sentenced to Twenty Four (24) months’ imprisonment, ante-dated to 25 November 2020”

6.3 No order is made in terms of section 103(1) of Act 60 of 2000

_______

S

NAIDOO J

I concur

______

C

REINDERS J