S v Mamabolo (A328/2008) [2009] ZAGPPHC 298 (2 September 2009)
- Citation
- [2009] ZAGPPHC 298
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- B.R. Southwood, G. Webster
- Case number
- A328/2008
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- B.R. Southwood, G. Webster
- Case number
- A328/2008
On this page
Professional case brief
Research organized from the available case record
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
RespondentEllen Maphela Mamabolo
AppellantAmounts and remedies
- Sentence (imprisonment, Suspended Portion): ZAR 6
03
Procedural history
Posture
Review Application / High Court Review of Magistrate's Conviction and Sentence
04
Questions and positions
Legal issues
- 01
Whether the admitted facts covered all elements of housebreaking and theft.
- 02
Whether the sentence imposed was excessive or shocking.
- 03
Whether the conviction should be amended to reflect the correct offence.
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
Legal principles
- 01
General principles of criminal law
A conviction must reflect the actual intention and actions of the accused as established by the admitted facts.
- 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
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.
North Gauteng High Court, Pretoria
Judgment
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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