S v Chauke and Another

• Jurisdiction: South Africa
• Judge: Noorbhai AJ
• Judgment Date: 20 May 1997
• Citation: 1998 (1) SACR 354 (V)
• Hearing Date: 20 May 1997
• Court: Venda High Court

Noorbhai AJ:

This matter comes before me on review pursuant to the provisions of s 302(1)(a) of the Criminal Procedure Act 51 of 1977, the two accused having been convicted of housebreaking with intent to steal and theft B and receiving stolen property respectively and each sentenced to pay a fine of R1 200 or to undergo 12 months' imprisonment.

It is appropriate to note at the outset that both accused were originally charged with housebreaking with intent to steal and theft; no alternative count is included in the charge sheet, neither in the form of receiving stolen property nor C any offence which constitutes a competent verdict to a charge of housebreaking with intent to steal and theft. It is also worth noting that receiving stolen property is in any event not a competent verdict to a charge of housebreaking with intent to commit an offence. (See s 262, Act 51 of 1977.) This immediately raises the question whether D accused No 2, Robert Maloyi, was correctly convicted of receiving stolen property.

It may be argued that housebreaking with intent to steal and theft comprises two separate offences and that since receiving stolen property is a competent verdict on a charge of theft (which is a component of housebreaking with intent to steal and theft), receiving stolen property is by necessary implication also a E competent verdict on a charge of housebreaking with intent to steal and theft.

The difficulty with this argument, however, is that although housebreaking with intent to steal and theft are two separate crimes they are chargeable only as one count in an indictment and, upon conviction, can give rise to only F one verdict. See S v Buthelezi 1961 (4) SA 376 (N) at 376H and 377 at 376H.

The implication is that any conceivable competent verdict can only be a competent verdict to the single count in the indictment, namely housebreaking with intent to steal and theft. To charge the two offences separately and to conceive of them as each having separate competent verdicts would amount to an improper splitting of charges. Cf G Buthelezi supra at 377.

Even if one were for a moment to accept that receiving stolen property qualifies as a competent verdict on a charge of housebreaking with intent to steal and theft, one would in casu still remain with an unresolved problem, and that is H it does not appear anywhere on the record that accused No 2 was given any notice that he was in danger of being convicted of an offence which is a competent verdict of the...