In the matter between:
MAINGA, J et VAN NIEKERK, J
The accused in this matter was charged with the offence of housebreaking with intent to commit a crime unknown to the State. The particulars of the offence are that the accused broke into the shop of Piet Muller at or near Leonardville in the district of Gobabis on or about 29 April 2007. The accused pleaded guilty and was questioned in terms of section 112(1)(b) of the Criminal Procedure Act, 51 of 1977 (“the Act”), as follows: -
Do you understand the charge against you?
Are you forced to plead guilty?
Did you on 29/4/07 enter the complainant’s shop?
How did you enter?
I entered through the ceiling of the toilet which I cut open.
Were you given permission to enter?
Why did you enter?
I wanted to steal.
Did you manage to steal anything?
Did you realize that what you were doing was wrong and can be punished?
It is alleged that Mr. Piet Muller is the complainant. Do you agree or dispute?
Court satisfied that accused admits to all the elements of the offence.”
When I received the matter on review I asked the trial magistrate whether the accused should not have been convicted of housebreaking with intent to steal and theft. The learned magistrate concedes that he should have done so. In my view the concession is correctly made.
Section 262(2) of the Act provides: -
In S v Andrews 1984 (3) SA 306 (E), a case which presented the same facts as the one before me, KANNEMEYER, J (with SMALBERGER, J, as he then was) in effect held that the admission by the accused during the questioning in terms of section 112(1)(b) namely, that he broke in with the intention to steal, is part of the evidential material upon which a court could rely when applying section 262(2). The Andrews case was followed and applied in S v Kesolofetse and another 2004 (2) SACR 166 (SCA), a similar case where the answers of the two accused during the
questioning showed quite clearly that they broke into the premises with the intent to steal. In that case the following was said (at p168): -
I respectfully agree with the approach taken in these cases. In my view there is also in this case no prejudice to the accused by convicting him for the offence which he admitted during the questioning process.
The accused was sentenced to a fine of N$600 or to six months imprisonment. I shall not change the sentence.
In the result I make the following order: -
The conviction is set aside and substituted with a conviction of housebreaking with intent to steal.
The sentence is confirmed.
VAN NIEKERK, J