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South Africa Judgment

North Gauteng High Court, Pretoria

S v Mamabolo (A328/2008) [2009] ZAGPPHC 298 (2 September 2009)

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Source document

01

Holding and result

The court found that the facts admitted by the accused established housebreaking with intent to steal and attempted theft, rather than housebreaking with intent to commit an offence unknown to the state. The accused entered the premises intending to steal but was apprehended before completing the theft. The court held that amending the conviction would not prejudice the accused, as the facts support the amended charge. The sentence imposed was not considered excessive or shocking, and was therefore confirmed.

Court disposition

Conviction amended; sentence confirmed.

Orders

  • The conviction of housebreaking with intent to commit an offence unknown to the state is set aside and replaced with a conviction of housebreaking with intent to steal and attempted theft.
  • The sentence is confirmed.

02

Material facts

Parties

The State

Respondent

Ellen Maphela Mamabolo

Appellant

Amounts and remedies

  • Sentence (imprisonment, Suspended Portion): ZAR 6

03

Procedural history

  1. Posture

    Review Application / High Court Review of Magistrate's Conviction and Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The presiding magistrate argued that the accused entered the house by pushing open a window with the intention to steal a music system but was apprehended before succeeding. He contended that the accused should have been convicted of housebreaking with intent to steal and attempted theft, and that the sentence was not excessive.
Respondent
The Director of Public Prosecutions agreed with the magistrate's contentions regarding both the conviction and the sentence, and submitted that amending the conviction would not prejudice the accused.

05

Court’s reasoning

  1. 01

    General principles of criminal law

    A conviction must reflect the actual intention and actions of the accused as established by the admitted facts.

  2. 02

    S v Ndhlovu 1965 (4) SA 692 (A)

    A conviction may be amended on review if it does not prejudice the accused and the facts support the amended charge.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the facts admitted by the accused established housebreaking with intent to steal and attempted theft, rather than housebreaking with intent to commit an offence unknown to the state. The accused entered the premises intending to steal but was apprehended before completing the theft. The court held that amending the conviction would not prejudice the accused, as the facts support the amended charge. The sentence imposed was not considered excessive or shocking, and was therefore confirmed.

Obiter and limits

  • The review process ensures that convictions and sentences imposed by lower courts are consistent with the facts and legal principles.
  • Amendment of a conviction on review is permissible where it serves the interests of justice and does not prejudice the accused.

Court disposition

Conviction amended; sentence confirmed.

  • The conviction of housebreaking with intent to commit an offence unknown to the state is set aside and replaced with a conviction of housebreaking with intent to steal and attempted theft.
  • The sentence is confirmed.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2009] ZAGPPHC 298

IN

THE HIGH COURT OF SOUTH AFRICA

(NORTH AND SOUTH GAUTENG HIGH COURT. PRETORIA)

Date: 2 September 2009

Not reportable

High Court Ref No.: 1998

Magistrate's Serial No.: 22/2008

Case No.: A328/2008

MAGISTRATE

MANKWENG

THE

STATE V ELLEN MAPHELA MAMABOLO

REVIEW

JUDGMENT

SOUTHWOOD J

(1] On 19 August 2008 the accused was found guilty of housebreaking with intent to commit an offence unknown to the state in the Mankweng magistrates' court and on the same day was sentenced to 12 months imprisonment, half of which was suspended for 5 years.

(2] On 3 November 2008 (some 2 months late) the matter came before this court on review in the ordinary course The review judge queried whether the facts admitted by the accused (he had pleaded guilty) covered all the elements of housebreaking and theft and whether the sentence was not shocking. On 5 August 2009 (after the accused had served his sentence of 6 months imprisonment) the presiding magistrate furnished his response.

(3] The presiding magistrate correctly points out that the accused entered the house, by pushing open a window, and had the intention of stealing a music system, but was apprehended before he could do so. He contends that the accused should have been found guilty of housebreaking with intent to steal and attempted theft. He contends that the sentence is not excessive The Director of Public Prosecutions agrees with both contentions and so do I. I also agree with the Director of Public Prosecutions that the conviction can be amended as the accused cannot be prejudiced.

Order

[4] I. The conviction of housebreaking with intent to commit an offence unknown to the state is set aside and replaced with a conviction of housebreaking with intent to steal and attempted theft;II. The sentence is confirmed.

B.R.

SOUTHWOOD JUDGE OF THE HIGH COURT

I agree

G.

WEBSTER JUDGE OF THE HIGH COURT

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v Ndhlovu 1965 (4) SA 692 (A)

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