R v Tsholoba and Another

• Jurisdiction: South Africa
• Judge: De Villiers J and Potgieter J
• Judgment Date: 26 November 1959
• Citation: 1960 (1) SA 764 (O)
• Hearing Date: 26 November 1959
• Court: Orange Free State Provincial Division

De Villiers, J.:

In this matter the accused were charged 'under the provisions of Act 26 of 1923' with the theft of 3 head of cattle. They C were duly convicted and in terms of sec. 334 (ter) of Act 56 of 1955, as amended, and having regard to their previous convictions, they were each sentenced to imprisonment for corrective training.

The question which arises is whether a conviction of stock theft is 'an offence referred to in Part I of the Third Schedule' of the aforesaid D Act. If so the accuseds' records qualify them for the sentences which the magistrate imposed. Put in another way the question for decision is whether the word 'theft' in group III of Part I of the Third Schedule includes 'stock theft'. This question was recently considered by a Full Court of the Natal Provincial Division in the case of R v Menyuka, 1959 (2) P.H. H.310, [*] and answered in the negative. The Court after E indicating that the real question for investigation was not whether 'theft' and 'stock theft' are different offences, but what was the intention of the Legislature, held as follows:

'Now Part 1 of the Third Schedule was inserted in the Code by Act 16 of 1959, replacing the old Part 1 which was in the Code as originally enacted in 1955. Let us consider it in its context of the other Schedules. We find that the First Schedule, which sets out the offences in respect of which arrests may be made without warrant, includes F 'Theft, either under the common law or under any statutory provision.' Part 1 of the Second Schedule, which sets out offences in respect of which certain confiscation orders may be made, originally made no mention of theft, but an amendment made in the same year added 'Theft, either at common law or as defined by any statute.' Part II of the Second Schedule, which deals with bail, includes 'Theft, either under the common law or under any statutory provision'. Part 1 of the Third Schedule, as originally enacted and as in force until Act 16 of 1959 was passed, set out offences a third or subsequent conviction whereof might G earn the indeterminate sentence, and included 'theft either under the common law or under any statutory provision'. Nowhere in these Schedules is theft mentioned simpliciter; in every case words are added which leave no doubt that stock theft is included. Then in 1959 the Legislature repeals Part 1 of the Third Schedule and replaces it by a new Part 1 in which for the first time, theft is mentioned simplicite...