S v Mosoeu (183/2014) [2014] ZAFSHC 167 (9 October 2014)
- Citation
- [2014] ZAFSHC 167
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- A.F. Jordaan, M.H. Rampai
- Case number
- 183/2014
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- A.F. Jordaan, M.H. Rampai
- Case number
- 183/2014
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the accused's plea explanation covered the elements of housebreaking with intent to steal, but not theft, as nothing was stolen. The conviction for theft was therefore incorrect and had to be amended. The sentence was appropriate except for the reference to theft, which was also amended. The conviction and sentence were set aside and substituted with a conviction for housebreaking with intent to steal and a corresponding sentence.
Court disposition
Conviction and sentence for housebreaking with intent to steal and theft set aside; substituted with conviction for housebreaking with intent to steal and amended sentence.
Orders
- The accused is convicted of housebreaking with the intent to steal.
- The accused is fined R2,000.00 or 6 months imprisonment, half suspended for three years on condition of not being convicted of housebreaking with intent to commit a crime during the suspension period.
- The remainder of the proceedings are confirmed.
02
Material facts
Parties
The State
ApplicantThabiso Mosoeu
RespondentAmounts and remedies
- Fine Imposed: ZAR 2,000
03
Procedural history
Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
04
Questions and positions
Legal issues
- 01
Whether the conviction for housebreaking with intent to steal and theft was correct when no theft was committed.
- 02
Whether the sentence imposed was appropriate given the facts admitted by the accused.
Party arguments
- Applicant
- The State charged the accused with housebreaking with intent to commit a crime unknown to the State. The accused pleaded guilty to housebreaking with intent to steal, admitting he broke into the premises intending to steal but was apprehended before stealing anything. The magistrate convicted him of housebreaking with intent to steal and theft.
- Respondent
- The accused admitted only to housebreaking with intent to steal and did not admit to theft, as nothing was stolen. The magistrate later realized the conviction for theft was incorrect and referred the matter for special review.
05
Court’s reasoning
Legal principles
- 01
Criminal Procedure Act 51 of 1977
A conviction for theft requires proof that property was unlawfully appropriated; mere intent to steal does not suffice.
- 02
Criminal Procedure Act 51 of 1977
Section 112(2) of the Criminal Procedure Act allows for a guilty plea to be accepted if the accused's statement covers all elements of the offence.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the accused's plea explanation covered the elements of housebreaking with intent to steal, but not theft, as nothing was stolen. The conviction for theft was therefore incorrect and had to be amended. The sentence was appropriate except for the reference to theft, which was also amended. The conviction and sentence were set aside and substituted with a conviction for housebreaking with intent to steal and a corresponding sentence.
Obiter and limits
- The magistrate acted correctly in referring the matter for special review upon realizing the error in the conviction.
- The remainder of the proceedings, apart from the conviction and sentence, were confirmed.
Court disposition
Conviction and sentence for housebreaking with intent to steal and theft set aside; substituted with conviction for housebreaking with intent to steal and amended sentence.
- The accused is convicted of housebreaking with the intent to steal.
- The accused is fined R2,000.00 or 6 months imprisonment, half suspended for three years on condition of not being convicted of housebreaking with intent to commit a crime during the suspension period.
- The remainder of the proceedings are confirmed.
Source and reliance status
Free State High Court, Bloemfontein
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.
Free State High Court, Bloemfontein
Judgment
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Review No. : 183/2014
DATE: 09 OCTOBER 2014
In the review between:-
THE STATE
Versus
THABISO MOSOEU
CORAM: RAMPAI, AJP et JORDAAN, J
JUDGMENT BY: JORDAAN, J
DELIVERED ON: 9 OCTOBER 2014
[1] In this matter the accused was charged with the crime of housebreaking with the intent to commit a crime unknown to the State. He pleaded guilty to the crime of housebreaking with the intent to steal and filed a statement in terms of section 112(2) of the Criminal Procedure Act, No 51 of 1977 in which he admitted breaking into the premises with the intent to steal, but indicating that he was caught red-handed before he stole anything. Because of that he was then convicted and the learned magistrate convicted him of housebreaking with the intent
to steal and theft.
[2] After the conviction and sentence the learned magistrate realised that the conviction is not in order in that no theft was committed.
[3] In view of the aforesaid the matter was forwarded to this court for a special review in terms of section 304(4) of the Criminal Procedure Act, 51 of 1977.
[4] After the aforesaid conviction the accused was sentenced to a fine of R2 000,00 or 6 (six) months imprisonment of which half was suspended for a period of three years on condition that the accused is not again convicted of housebreaking with intent to steal and theft committed during the period of suspension. The accused was also declared unfit to possess a firearm.
[5] I agree with the learned magistrate that the conviction should be amended and the sentence accordingly amended as well.
[6]I am satisfied that the plea explanation of the accused covers the crime of housebreaking with the intent to steal and that the conviction as far as that is concerned, is in order, excluding the conviction of theft. I am also satisfied that the sentence is in order, except for the reference to theft and should be amended accordingly.
[7] In the result the conviction and sentence are set aside and the following orders substituted therefore:
1. The accused is convicted of housebreaking with the intent to steal.
2. The accused is fined R2 000,00 or 6 (six) months imprisonment of which half is suspended for a period of three years on condition that the accused is not convicted of housebreaking with the intent to commit a crime committed during the period of suspension.
3. The remainder of the proceedings are confirmed.
A.F. JORDAAN, J
I concur.
M.H. RAMPAI, AJP
spieterse
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