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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION PRETORIA)
Date24/05/2016
Case No: A325/2016
Case No: B 74/2013
DELETE WHICHEVER IS NOT APPLICABLE
(I ) REPORTABLE: YES I NO.
(2) OF INTEREST TO OTHER JUDG ES: YES I NO.
(3) REVISED.

DATE
SIGNATlJRE

In the matter between:

The State

and

Tshepiso Samuel Lebeko

REVIEW JUDGMENT

Maumela J.

1. This matter came before court as a special review in terms

of section 304 (4) of the Criminal Procedure Act 19771 :
"Criminal Procedure Act". Before the magistrate for the
district of Potchefstroom, held at Fochville, the court a quo,

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Act No 51 of 1977.
 "the accused", Tshepiso Samuel Lebeko, appeared together
with two co-accused persons.

2. They were charged as follows:

Accused number 1 was charged with the following two
offences:
1.1. House breaking with intent to steal and Theft and
1.2. Attempted House breaking with intent to steal and Theft.
Accused number 2 and 3 were each charged with Attempted
House breaking with intent to steal and Theft.

3. The allegations on count one were that upon or about 15

February 2013, and at or near […], in the district of Fochville,
the accused did unlawfully and intentionally and with the
intent to steal, break open and enter the house of Ntefeleng
Jacobeth Janjie and did wrongfully and intentionally steal the
following items; to wit R 200-00 in cash, 1x camera, 3x cell
phones and clothing, the property or in the lawful possession
of Ntefeleng Jacobeth Janjie.

4. On count 2 allegations were that upon or about 19th of

February 2013, and at or near […], in the district of Fochville,
the accused did unlawfully and intentionally and with the
intent to steal, attempt to break open and enter the house of
Thabiso Obed Monnagadise, and did there and there
wrongfully and intentionally attempt to steal house items; the
property or in the lawful possession of Thabiso Obed
Monnagadise.

5. Relevant to this case, before the court a quo, accused

number 1, pleaded guilty to both charges. On both counts
the court proceeded in terms of section 112 (1) (b) of the
Criminal Procedure Act. The court concluded that that
accused number 1 admits all the elements in the charges
against him. It convicted him as charged in both counts.

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6. Accused number 2 and 3 were only charged with count 2;
(Attempted House breaking with intent to steal and Theft).
They both pleaded guilty to count 2. The court proceeded
against them further in terms of section 112 (1) (b) of the
Criminal Procedure Act. The court a quo then convicted both
of them, (accused 2 and 3), of Attempted Theft.

THE EVIDENCE.
7. Responding to questions put to him in terms of section 112
(1) (b), accused number one told court concerning count 2
that he and his two co-accused were prowling the streets on
the day of the incident. As they passed near the house of
the complainant in count two; they noticed that the windows
were not properly secured.

8. Relevant to the case now before court, concerning count 2,

the court a quo proceeded in terms of section 112 (1) (b)
against accused number 1. Accused number 1 admitted that
he, together with his two accomplices entered the premises
of the complainant in count 2, (Thabiso Obed Monnagadise).
He told court that the three of them noticed that a window of
a room at the complainant's place was not safely secured.

9. He stated that while he and his colleagues were still making

efforts to open the window, the noise they made drew the
attention of the complainant. The complainant discovered
the threesome's felonious intent and gave chase. He
apprehended accused number 2 while accused number 1
and 3 escaped. Accused number 1 stated that it is then that
he immediately left for home.

10. On the basis of the answers accused number 1 gave in

response to questions by the court a quo in terms of section
112 (1) (b) of the Criminal Procedure Act, the court a quo
convicted accused number two of Attempted House
Breaking with Intent to Steal and Theft.
 accused number 1 can be correctly convicted of attempted
house breaking with intent to steal and attempted.

Based on the above, the conviction of accused number 1 on

count 2 which is a conviction on Attempted House Breaking
with Intent to Steal and Theft stands to be set aside, and
substituted by one of Attempted House Breaking with Intent to
Steal and Attempted Theft. The case has to be remitted back to
the court a quo so that an appropriate sentence can be
imposed upon accused number one for purposes of count 2.
The following order is made:

ORDER.

1. The conviction of accused number one by the court a quo

on a charge of Attempted House Breaking with Intent to
Steal and Theft, is set aside, and it is substituted by a
conviction of accused number 1 on Attempted House
Breaking with Intent to Steal and Attempted Theft.

2. The case is remitted back to the magistrate for the district

of Potchefstroom, held at Fochville, for an appropriate
sentence to be imposed upon accused number 2 for
purposes of the conviction on count 2.

T. A. Maumela.
Judge of the High Court of South Africa.

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I agree.

________
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A. H. Petersen
Acting Judge of the High Court of South Africa.

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11. Subsequent to sentencing the matter came before the High
Court on review in terms of section 304 of the Criminal
Procedure Act. The honourable reviewing judge sent a
query to the magistrate, questioning the conviction of
accused number 1 on count 2. In response the magistrate
conceded that on count 2, accused number 1 should have
been convicted of Attempted House Breaking with Intent to
Steal and Attempted Theft; instead of House Breaking with
Intent to Steal and Theft.

12. Comments of the Director of Public Prosecutions were

solicited and the latter responded to the effect that accused
number 1 should indeed have been convicted of Attempted
House Breaking with Intent to Steal and Attempted Theft,
instead of House Breaking with Intent to Steal and Theft.

13. The court is to consider whether or not to set aside the

conviction of accused number 1 on count 2 by the court a
quo which had convicted him of House Breaking with Intent
to Steal and Theft. Evidence proved that accused number 1,
together with his accomplices only went as far as attempting
to open a window at complainant's house. Their noise drew
the attention of the complainant who took immediate
measures to counter the intruders. He apprehended
accused number 2 while accused number 1 and 3 escaped,
whereupon accused number 1 ran home.

14. The available evidence only proved an attempt on the part of

accused number one and his accomplices to break open,
and to enter the house of the complainant in count two. The
further shows that when the complainant in count two
discovered what was about to happen he chased after the
would-be criminals, apprehending accused number 2.

15. In the case of R v Schoombie 2. the court stated that there

are two types of attempt to commit an offence. The two

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1945 A.O. 541, at page 545 - 6.
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 types of attempt are:
(a). Those in which the wrongdoer, intending to commit a
crime, has done everything which he set out to do but has
failed in his purpose either through lack of skill, or of
foresight, or through the existence of some unexpected
obstacle, or otherwise, and
(b). Those in which the wrongdoer has not completed all that
he set up to do, because the completion of his unlawful act
has been prevented by the intervention of some outside
agency. To the latter may be added the case where the
completion by the wrongdoer of his unlawful acts has been
prevented by his changing his mind and the desisting from
the actual commission of the crime.

16. In this case accused number one and his accomplices noticed
that a window at the complainant's house was not safely
secured. They entered the premises and started efforts to
open the window. They attempted to open the window. The
reason behind the opening of the wind was so as to bail items
from within the house. They could not succeed in committing
the crime intended because the complainant in count 2
interrupted them, and chased them off, eventually
apprehending accused number 2.

17. In S v Du Plessis3 Corbett JA stated: "The decision any

particular case as to whether or not, at the moment of
interruption or prevention (of the accused's unlawful acts), the
conduct of the accused had progressed beyond the stage of
preparation and constituted a commencement of the
consummation must in the last resort become effectual enquiry
relating to the particular circumstances of the case in which the
following factors, among others, would play a part: whether the
state the accused had made up his mind the crime, the degree
of proximity or remoteness with that arrested conduct bore to
what would have been the final act required for the commission
of the crime and, generally,

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1981 (3) SA 382 (A).
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 considerations of practical common sense. It is doubtful
whether any greater precision than this can be achieved.

To constitute an attempt (a) there must have been at the

time of interruption an intention to commit the contemplated
crime, and (b) it must appear that the party concerned had
embarked upon a series of acts, which had beyond the
preparation stage, and which, if not interrupted, would have
led to the commission of the crime."

18. When the complainant in count two interrupted accused

number one and his accomplices they had conceived the
intention to break into complainant's premises and to steal
property from there within. They jumped over the fence.
They approached a window and shifted it, so as to open it.
While doing so they made noise enough to draw the
attention of the complainant. They had already embarked
upon efforts to open a window so as to gain entry and to
steal property as intended.

19. Accused number 1 and his accomplices were interrupted.

They had clearly formulated the intention to steal. They
embarked upon the series of acts outlined above.

20. It is clear that accused number 1 and his accomplices did

not have a change of heart about their intended crime. They
were rather interrupted by the complainant. Had the
complainant not been home, accused number 1 in his
accomplices would have proceeded to break into
complainant's premises and they would have stolen property
there in. In this regard the attempt on the part of accused
number one was completed.

21. From the answers accused number 1 provided when the

court a quo questioned him in terms of section 112 (1) (b) of
the Criminal Procedure Act the intention behind breaking in
was to steal property there in. It is for that reason that

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