S v Mavela (CA&R 11/08) [2008] ZAECHC 100; 2008 (2) SACR 608 (Ck) (25 June 2008)

IN THE HIGH COURT OF

SOUTH AFRICA

BISHO HIGH COURT

CASE NO: CA&R 11/08

In the matter between:

THE STATE

and

MENZI MAVELA Accused

REVIEW JUDGMENT

EBRAHIM J:

This matter came on automatic review pursuant to the provisions of s 302 of the Criminal Procedure Act 51, of 1977 (‘CPA’).

The accused was charged with, and duly convicted of, the offence of housebreaking with intent to steal and sentenced to a fine of R2 000,00, alternatively a term of imprisonment for one year conditionally suspended for a period of five years.

In the s 112(1)(b) proceedings at the trial the accused stated, inter alia, that ‘I broke the window and [was] about to enter but I was seen by an old lady. I used my hand to break the window and I pushed it open. I was about to enter with my body when I was seen and she asked me what I wanted. I said I was looking for the owner of the house.

She asked me why I had broken the window [and] I said I was hungry and looking for food’.

A query was addressed to the trial magistrate to indicate ‘on the basis of which facts ……… the magistrate [was] satisfied that the accused admitted having entered the premises?’.

The response of the magistrate was that ‘the accused stated that he had broken the window and as he was about to enter with his body, he was caught. He further stated that his intention, once inside, was to steal. The magistrate admits that the wording may not be very clear, but however respectfully request[s] that based on the above explanation, the accused had already broken the window and started to enter and only when he was about to enter with his “body” was he caught. The magistrate would therefore submit that based on [the] above, the accused indeed admitted the elements required for “entering” the premises.’

The question of what constitutes a breaking into premises has been the subject of much discussion both by the courts and academics. In R v Melville1 the Court said:

‘Dealing with the crime of house breaking with the intent to commit a crime it is stated in Gardiner and Lansdown Criminal Law, vol II at p. 1721, that

“house breaking at common law is inseparably connected with an entry of the premises broken, and this is so invariably the case that, where the offender has actually completed the removal of the obstruction to his entry but for some reason has desisted from further action, the crime charged is that of attempting to commit house breaking with the particular intent which the circumstances indicate”.

Reference is made to the decision in Rex v. George, 1921 E.D.L.

125.

That it is essential to allege and prove an entry appears from the decisions in R. v. Rapetso, 1954 (2) P.H. H.108; R. v. Behr, 1955 (1) P.H. H.25 and R. v. Maruma and Another, 1955 (3) S.A. 561 (O).

It is true that there will be a sufficient entry if the offender does no more than insert into the premises only a part of his body or an instrument by which he intended to exercise control over something in the house.’

In the instant case the accused admitted that ‘I used my hand to break the window and I pushed it open’ and added that ‘I was about to enter with my body when I was seen ……… .’

The magistrate has contended that ‘the elements required for “entering” the premises’ had been admitted by the accused as he ‘had already broken the window and started to enter and only when he was about to enter with his “body” was he caught.’

With due respect to the magistrate I cannot agree that his admissions establish this. While it is apparent from the accused’s explanation that he was about to enter the premises and stopped when he was seen, it is by no means clear that he had already inserted a part of his body or his hand into the premises.

The fact that the magistrate conceded that ‘the wording may not be very clear’ demonstrates that it cannot be accepted, without more, that the admissions by the accused established the necessary elements of “entering”. This aspect should have been explored more fully by the magistrate instead of the assumption being made, as it seems she has done, that he had entered the premises. In view of the lack of clarity on this question the admissions by the accused only establish attempted housebreaking with intent to steal.

In my view, the sentence which the magistrate imposed is an appropriate one even in the case of an attempt to break into the house and I find no reason to alter same.

Order

In the result, the conviction for housebreaking with intent to steal is set aside and substituted with attempted housebreaking with intent to steal. Further, the sentence imposed by the magistrate of ‘R2 000,00 or one year imprisonment which is suspended for a period of 5 years on condition that accused is not convicted of housebreaking with intent to steal committed during the time of suspension’ is confirmed.

____

Y EBRAHIM

JUDGE OF THE HIGH COURT 25 JUNE 2008

I agree and it is so ordered

D VAN ZYL

JUDGE OF THE HIGH COURT 25 JUNE 2008

Mavela.RVJ

1 1959 (3) SA 544 (ECD) at 545D-E