S v Sphuhle and Another

• Jurisdiction: South Africa
• Judge: DM Thulare J
• Judgment Date: 04 February 2022
• Docket Number: A233/21
• Hearing Date: 04 February 2022
• Court: Western Cape Division, Cape Town
• Citation: 2022 JDR 1408 (WCC)

Thulare J:

[1]

On petition, the appellants were granted leave to appeal against both conviction and sentence. The leave granted in respect of conviction was on the limited aspect of the splitting of charges. The appellants were convicted on three counts, to wit, housebreaking with intent to commit a crime unknown to the State, assault with intent to do grievous bodily harm and robbery with aggravating circumstances as

2022 JDR 1408 p2

Thulare J

intended in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977) read with the provisions of section 51(2) of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997). Each appellant was sentenced to fifteen years imprisonment on the housebreaking charge, three years imprisonment on the assault charge and fifteen years imprisonment on the robbery charge. Ten years imprisonment imposed on the robbery charge was ordered to run concurrently with the fifteen years imprisonment on the housebreaking charge. Both were declared unfit to possess a firearm. The net effect of the sentences was that each appellant was sentenced to twenty three (23) years direct imprisonment.

[2]

The appellants' case was that there was a duplication of convictions and that all the convictions should be set aside and be replaced with a conviction on a charge of housebreaking with intent to rob and robbery. On sentence the appellants' case was that the court should have imposed one cumulative sentence of direct imprisonment for the offences and should also have found substantial and compelling circumstances to deviate from the minimum sentence of 15 years imprisonment applicable in respect of the principal offence of robbery with aggravating circumstances which was facilitated by the housebreaking.

[3]

The State conceded that only the charge of assault was a duplication of the charge of robbery with aggravating circumstances as the assault was committed in the process of the robbery and that it was only the conviction on assault that should be set aside. According to the State. there was no misdirection in respect of the other two charges and the argument was for the court to confirm the conviction on housebreaking with intent to commit a crime and robbery with aggravating circumstances. The State conceded that the appellants raised substantial and compelling circumstances justifying the imposition of a lesser sentence than the one prescribed by the law. The State conceded that there were grounds to interfere with the sentence.

[4]

The appellants pleaded guilty to the charges they were convicted of. Their statements upon which their pleas were based, was that they together with another person, named Moses, arranged for transport for them to get to the complainants farm to break in and rob the complainants of money and other valuables. Moses

2022 JDR 1408 p3

Thulare J

opened the gate to the farm house at Hillcrest Berry Orchards in Stellenbosch and in the process the dogs were alerted. As the dogs approached them, Moses hit the dogs with a hammer. Betty O'Grady ("Mrs O'Grady), a 72 year old woman screamed from inside the house. Raymond O'Grady (Mr O Grady), a 77 year old man came out of the house to confront them. Moses hit Mr O' Grady with a hammer on his head. A scuffle ensued between Moses and Mr O'Grady and Mr O'Grady fell to the ground. Thereafter Moses and the second appellant then opened the door to the house and entered the house, whilst the first appellant kept watch outside.

[5]

Both appellants were aware that Moses was armed with a hammer and would use it to force Mrs O'Grady to co-operate, inside the house. The second appellant admitted to breaking open and entering the house of the complainants with the intent to rob and to the robbery. He admitted the assault on Mr O'Grady by way of common purpose and that Mr O'Grady sustained serious injuries when he was repeatedly hit with a hammer on his head. He and Moses opened and entered the house. Mrs O'Grady was threatened with a hammer, which induced fear that caused her to hand over R7000-00 in cash, a watch, ring, cell phone, credit card and a Toyota Hilux with registration number CL48769. First appellant felt that the two inside the house were taking too long and became scared that this would result in their being caught. He came into the house to call them. Moses handed him the O'Grady's car keys, and the three of them used the vehicle to drive off. They abandoned the vehicle at Kayamandi and went to first appellant's house where the money was counted and shared amongst them. The police found Mrs O'Grady's ring and watch in possession of second appellant. Both appellant in their statement mentioned that they were sorry for what they had done and asked for mercy.

[6]

There are two tests which were developed by the courts in order to determine whether a duplication of charges had occurred, and these are:

(a)

whether the offences were committed with a single intent and were part of one continuous transaction or

(b)

whether the offences differed from one another in their elements and whether the same evidence was necessary to prove both offences [S v Benjamin en n' Ander1980 (1) SA 950 (A) at 9576E-H]. These two tests can be individually or collectively applied but are not necessarily decisive [S v Benjamin at 956G].

2022 JDR 1408 p4

Thulare J

[7]

Housebreaking in South Africa is not a crime on its own unless it is accompanied by an intention to commit an offence [S v Livanje [2019] ZASCA 126 at par 14]. Absent the intention to commit an offence, the unlawful breaking and entering does not constitute an offence sounding in housebreaking [R v Badenhorst1960 (3) SA 563 (A) at 566B-E]. However, once the appellants unlawfully broke and entered the O'Grady's house with the intention to rob them and indeed robbed them, they committed both offences of housebreaking with intent to rob as well as the offence of robbery [Director of Public Prosecutions, Free State v Mashune [2018] ZASCA 60 at para 10].

[8]

In S v BM2014 (2) SACR 23 (SCA) at para 3 it was said:

"[3] It is apparent that charging Mr BM with two separate counts, arising out of what was clearly one and the same incident, involved an improper duplication (splitting) of charges. It has been a rule of practice in our criminal courts since at least 1887 that 'where the accused has committed only one offence in substance, it should not be split and charged against him in one and the same trial as several offences.' The test is whether, taking a common sense view of matters in the light of fairness to the accused, a single offence or more than one has been committed. The purpose of the rule is to prevent a duplication of convictions on what is essentially a single offence and, consequently, the duplication of punishment."

[9]

In Bam v S it was said at para 47:

"47. I think it may safely...