R v Abdullah

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Centlivres CJ, Schreiner JA, Fagan JA, De Beer JA and Reynolds JA
• Judgment Date: 19 March 1956
• Citation: 1956 (2) SA 295 (A)
• Hearing Date: 13 March 1956

D Schreiner, J.A.:

The appellant was charged before a regional magistrate on one count of housebreaking with intent to steal and theft and on one count of receiving stolen property knowing it to have been stolen. On the first count he was convicted of theft and sentenced to one year's imprisonment; on the second count he was convicted and sentenced to five months' imprisonment. He appealed to the Cape Provincial Division which E dismissed his appeal but increased the sentences to two years' imprisonment on the first count and one year's imprisonment on the second count. Leave to appeal to this Court upon the alteration of the sentences was refused by the Cape Provincial Division but was granted by a member of this Court under sec. 105 (2) (c) (ii) of the South Africa Act, as substituted by section 4 of Act 32 of 1952.

F Before leave was granted the magistrate was requested to furnish his reasons for the sentences imposed, and those reasons form part of the record. The comment was advanced in this Court that the magistrate had in his original reasons dealt only with the convictions and had not dealt with the sentences, and it was submitted that the Cape Provincial G Division would have been in a better position to judge of the appropriateness of the sentences had it called for the magistrate's reasons therefor. This criticism may be justified in relation to count 2, where the ground of appeal related purely to the merits and was so treated by the magistrate. But the ground of appeal on count 1 was that

'The magistrate erred in finding that the accused received or was guilty of theft in respect of any goods, other than twelve watches.'

H What was put in issue was thus not the conviction but the seriousness of the offence i.e. the sentence; and as I read his judgment that is the basis on which the magistrate dealt with the matter. His further reasons provided some elaboration of the earlier one but were largely concerned with explaining why he had found the appellant guilty of theft and not of housebreaking to steal.

Schreiner JA

The Crown's case against the appellant on the first count was that he had instigated one Percy Muller and an associate to break into a jeweller's shop in Cape Town and steal jewellery, that this crime was carried out and that the following day the appellant received from the A perpetrators jewellery to the value of about £2,500. The appellant's arrest about a week later followed upon...