S v Moeketsi (87/05) [2005] ZANWHC 60 (8 September 2005)

S v Moeketsi (87/05) [2005] ZANWHC 60 (8 September 2005)

The Magistrate erred in splitting the charges at the close of the State's case by acquitting the accused of housebreaking with intent to steal under section 174 and proceeding only with theft. Housebreaking with intent to steal and theft is a continuous act and should be prosecuted as a single count. The proper procedure is to proceed to conclusion and, if the evidence supports it, convict on a competent verdict such as theft. The sentence imposed was too harsh given the circumstances and the previous conviction with postponed sentence. Justice requires expunging the section 174 acquittal, recording the conviction of theft under section 262(1), and altering the sentence to two years...

Citation
[2005] ZANWHC 60
Parties
Applicant: The State; Respondent: Japhta Moeketsi
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
8 September 2005
Case Number
87/05
Procedural Posture
Criminal Review / Review Judgment
Outcome
Conviction and sentence as recorded are set aside and substituted. The accused is found guilty of theft and sentenced to two years imprisonment, one year suspended for three years on condition of no further offences involving dishonesty.
Judges
V V Tlhapi, A A Landman
Legal Topics
Housebreaking With Intent to Steal and Theft, Competent Verdicts, Section 174 Criminal Procedure Act, Sentencing, Splitting of Charges
Criminal Law Housebreaking With Intent to Steal and Theft Competent Verdicts Section 174 Criminal Procedure Act Sentencing Splitting of Charges

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Parties

The State

Applicant

Japhta Moeketsi

Respondent

Procedural Posture

Criminal Review / Review Judgment

Legal Issues

  1. 1 Whether the Magistrate correctly applied section 174 of the Criminal Procedure Act at the close of the State's case.
  2. 2 Whether housebreaking with intent to steal and theft constitutes one continuous act or separate offences.
  3. 3 Whether the splitting of charges at the close of the State's case was proper.

Ratio Decidendi

The Magistrate erred in splitting the charges at the close of the State's case by acquitting the accused of housebreaking with intent to steal under section 174 and proceeding only with theft. Housebreaking with intent to steal and theft is a continuous act and should be prosecuted as a single count. The proper procedure is to proceed to conclusion and, if the evidence supports it, convict on a competent verdict such as theft. The sentence imposed was too harsh given the circumstances and the previous conviction with postponed sentence. Justice requires expunging the section 174 acquittal, recording the conviction of theft under section 262(1), and altering the sentence to two years...

Court Disposition

Conviction and sentence as recorded are set aside and substituted. The accused is found guilty of theft and sentenced to two years imprisonment, one year suspended for three years on condition of no further offences involving dishonesty.

Orders

  • The finding of not guilty in terms of section 174 of the Criminal Procedure Act in respect of housebreaking with intent to steal is expunged from the record.
  • The conviction of theft is recorded as a conviction in terms of section 262(1) of the Criminal Procedure Act.