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FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 070/2005

PARTIES: THE STATE

AND

M DYANTYI

REFERENCE NUMBERS –

• Registrar: CA&R 213/05

DATE HEARD: 16^TH AUGUST2005

DATE DELIVERED: 8^TH SEPTEMBER 2005

JUDGE(S): JONES and SANDI JJ

LEGAL REPRESENTATIVES –

Appearances:

• for the State/Applicant(s)Appellant(s): A DE JAGER

• for the accused/respondent(s): GJ BURSEY

Instructing attorneys:

• Applicant(s)/Appellant(s): JUSTICE CENTRE, GRHAMSTOWN

• Respondent(s): DPP GRAHAMSTOWN

Reportable

In the High Court of South Africa

(Eastern Cape Division) Case no: CA & R: 8/2005

Date delivered:

In the matter between:

THE STATE

and

MANDLA DYANTYI

SUMMARY: Trespass – attempt – to be more than an act of preparation the actus reus should amount to conduct directed towards the wrongdoer’s physical entry on to the property of another – in the circumstances of the case opening a roller door leading to the property was held to amount to an attempted trespass.

JUDGMENT

JONES J:

[1] The accused was charged before the additional magistrate of Grahamstown with trespassing in contravention of section 1(1) of Act No 6 of 1959. He was sentenced to a fine of R2500 or 180 days imprisonment. The senior magistrate submitted the matter on special review because he considered that the evidence did not prove beyond reasonable doubt that the accused had entered the complainant’s premises.

[2] The record was referred to the office of the Director of Public Prosecutions for his opinion. Mr Bursey of the Director’s staff submitted a written opinion which correctly conceded that the evidence fell short of proof that the accused had entered the complainant’s premises. In his view, the evidence disclosed that the accused was guilty of attempted trespass. However, the Deputy Director expressed a contrary opinion. To his way of thinking, the accused had not gone far enough for an attempt; his conduct was merely an act of preparation. The review was set down for argument before a full court of two judges. I am indebted to the senior magistrate, the Deputy Director and Mr Bursey for their opinions and argument, and to Mr De Jager for arguing the matter on the accused’s behalf at the request of the court.

[3] The only witness at the trial was one McConnachie, the owner of the premises in question. McConnachie lives in what he described as a small two-bedroom house on the corner of Lawrence Street and Montague Street in Grahamstown. The backyard borders on Montague Street. Access to it is gained through two doors on to the street. One is a roller door of the type which can be raised and lowered for access to garages. In this case there is no garage. The roller door provides access through a wall for McConnachie’s vehicles to enter the back yard, where they are parked at night. Next to the roller door is a gate to the yard which is secured with a yale lock on the inside. The roller door is also as a rule locked from the inside.

[4] On 25 June 2004 McConnachie was asleep in his bedroom. His dog slept inside the house. At 05h30 he was woken by the dog. So ferocious was its barking that he was convinced that an unauthorized person had entered his back yard. He ran outside through the kitchen door, followed by the dog. When he got outside there was nobody to be seen, but he heard the roller door slamming shut. He went into the street through the gate and saw the accused some 10 to 15 metres away running from the direction of his property to the corner of Montague and Lawrence Streets. He and the dog made after him. After a prolonged chase the accused was caught and taken to the police station. He was in due course charged with trespass.

[5] The accused conducted his own defence. In cross-examination he suggested that he was in the neighbourhood in search of employment and that when he went past McConnachie’s house McConnachie set his dog on him for no reason, with the result that he was obliged to flee. But he did not give evidence. McConnachie’s version of the facts was the only version before the court.

[6] The trial magistrate drew an inference that the accused had entered McConnachie’s premises and that, when he heard the dog barking, he had run out through the roller door, slamming it shut behind him. The accused was therefore found guilty as charged.

[7] Mr Bursey very properly conceded that on the evidence the reasonable possibility could not be excluded that the roller door, which on McConnachie’s evidence could have been left unlocked, had been lifted up by a would-be intruder from the outside and that the intruder, on hearing the dog barking, had slammed it shut again without ever setting foot inside the premises. In other words, the inference that the accused had entered the backyard was not the only reasonable inference. A conviction of trespass could not therefore be supported. But, he argued, the only reasonable inference from the facts was that the accused was the person who had lifted up the roller door, that he had done so with the intention of entering the premises unlawfully, and that this amounted to attempted trespass.

[8] Two points were argued on behalf of the accused. The first was that the evidence did not exclude the reasonable possibility that somebody other than the accused had lifted the roller door and let it fall shut again. It is indeed so that McConnachie was not specifically asked whether there was anybody else in the street outside his premises who could have raised the roller door, and that the record is therefore silent on the point. In my view, however, Mr Bursey’s argument that it must have been the accused is entirely convincing. This is particularly so when regard is had to the combined effect of the time of day (it was a winter morning, not yet daylight, when hardly anybody is about), McConnachie’s vivid description of what happened, his evidence of the short time in which everything happened and of the conduct of the accused after McConnachie got into the street, the improbability of the version suggested by the accused in cross-examination, and the absence of any basis for supposing that somebody else might have raised the door without McConnachie seeing him in the street and commenting on his presence. Even in criminal cases, the prosecution does not have to plug every conceivable gap with specific evidence to discharge its onus. I am satisfied that this element of the State case is proved with such a high degree of probability that it amounts to proof beyond reasonable doubt (R v Mlambo 1957 (4) SA 727 (A) 738A).

[9] The other argument was that the State failed to prove beyond reasonable doubt that by lifting up the roller door the accused attempted to commit the crime of trespass. At first blush the issue might seem to be the propriety of the inference to be drawn from a finding that the accused raised the roller door at 05h30 in circumstances where no innocent reason suggests itself for doing so. But the issue is not whether there is an innocent explanation for his conduct. The accused can only have raised the roller with the intention of entering the premises unlawfully. In my view an inference of a guilty state of mind is fully justified. But this is not sufficient. A guilty state of mind is not in itself punishable. There must be some criminal act which brings or attempts to bring it to fruition. Here, the criminal act can only be the accused’s conduct in raising the roller door. It did not bring his criminal intention to fruition because he was interrupted by the dog barking. Does it justify a conclusion beyond reasonable doubt that it was an attempt to bring it to fruition? The issue is therefore whether raising the roller door was merely an act in early preparation for the criminal act of entering the premises unlawfully, or whether it can be said to have gone far enough to be a criminal act in consummation of his criminal intention to trespass. That is the way in which the Court of Appeal put the question of how to resolve the problem of an interrupted attempt in R v Schoombie 1945 AD 541 at 547:

‘It seems, therefore, that in the case of interrupted crimes an attempt to commit such crime is proved when the Court is satisfied from all the circumstances of the case that the wrongdoer, at the time when he was interrupted, intended to complete the crime and that he had at least carried his purpose through to the stage at which he was "commencing the consummation”.’

[10] Mr Bursey argued that, on a charge of housebreaking with intent to commit an offence, raising a closed roller door would amount to ‘commencing the consummation’ and would constitute attempted housebreaking, and that the same argument should apply to a charge of trespass because unlawful entry upon premises is an element of both offences. It is indeed so, as Mr Bursey said, that if the accused in this case had raised a roller door giving access to a building and not the yard, and if he had been charged with attempted housebreaking, his actions would have amounted to breaking into the building and a conviction would have followed. I am nevertheless unhappy with his argument. Housebreaking with intent to commit an offence involves proof of (a) an unlawful breaking into a building (b) followed by an unlawful entry, (c) done with the intention to commit an offence. The element of unlawful breaking tends to colour the inferences to be drawn from the conduct being considered. In most cases of attempted housebreaking, an uncompleted attempt is properly proved by evidence of breaking into a building or attempting to do so, especially where the unlawfulness of the breaking is obvious, and its proximity to the unlawful entry is direct. The inference of attempt is easily drawn if the act of entry with a crowbar is interrupted. The court would usually infer that the unlawful act of attempting to break in was ‘commencing the consummation’ of the crime of housebreaking (i.e. breaking and entering) with intent to commit a crime, although the wrongdoer had not yet reached the stage of entering. See for example Rex v George 1921 EDL 125; Rex v Mtetwa 1930 NPD 285; S v Hlongwana 1992 (2) SACR 484 (N) 485 h-j. But points of distinction arise, which might affect the inference to be drawn. One should not forget, first, that breaking into the premises is not an element of trespass and second, that there can be no offence of housebreaking or attempted housebreaking where the entry, which is also an element of trespass, is not preceded by an act of breaking or attempting to break into a building. This gives the acts of breaking and entry a combined flavour in housebreaking cases which might complicate the drawing of inferences in trespass cases, particularly where the ‘breaking’ part of entry is technical (for example, pushing more open an already open window, which is not necessarily obviously unlawful and which may not always be unlawful). These differences are complicated by the similarities between cases of housebreaking and trespass. This indicates to me that it may not always be appropriate to reason by analogy from one to the other.

[11] I prefer to base my reasoning on the nature of the crime of trespass, and the nature of the conduct which is said to amount to an attempt. For trespass, proof of an intentional and unlawful entry upon another’s land or into another’s building is essential. For conduct falling short of trespass to constitute an attempt, it should be directed at gaining entrance to the premises. Furthermore it must reach a sufficiently advanced stage in that direction to satisfy the court that it is part of actually entering the premises. For example, if the accused had taken a rope with him to the complainant’s premises in order to use it to climb over the wall, his conduct might be thought to be merely an act in preparation and not an act of consummation. If he had been arrested before he got near to the complainant’s premises, a court may consider that his conduct has not yet reached the point of being an attempt to commit a crime. But if he had attached the rope to the wall and started to climb up, would his conduct not amount to the commencement of an act of trespass?

[12] Sometimes the line between preparation and attempt is a fine one. In order to draw it the courts should take a practical view of all the facts and circumstances of the case in hand. Common sense is an important criterion (S v Du Plessis 1981 (3) SA 382 (A) 400A). In R v Katz 1959 (3) SA 408 (C) the court had this to say about the proper approach to drawing the line:

‘After full consideration of the authorities one is left with the conclusion that a value judgment of a practical nature is to be brought to bear upon each set of facts as it arises for consideration - a judgment similar to what is called for in other spheres of law governed by notions of proximity and remoteness as for example the determination of the limits to which damages caused by delict or breach of contract are legally recoverable, . . . . The 'uncertain and wavering line' is drawn 'as best we can' (Feldman (Pty.) Ltd v Mall, 1945 AD 733 at p. 750). In the guiding considerations one finds the same kind of conceptions and even of expressions: 'the natural course of events'; 'proximate in time' is not necessarily 'proximate in law' etc. And experience in all these spheres appears to dictate caution as to the over-ready, rule-of-thumb application of any single expression or consideration. The overriding endeavour must needs be to assign to every constituent part of a particular situation such weight as common sense dictates, and then to decide whether the whole thereof can in a fair and practical sense be said to be too remote to fall within the requisite realm of legal cognizance.’

When the accused raised the roller door I believe that the time for reconsideration of and withdrawal from his criminal purpose had come and gone. His conduct cannot be said to be too remote from the final act of trespass – entry upon the premises – to be legally relevant. It was ‘within the requisite realm of legal cognizance’. Raising the door could not have been more proximate in time or place to the act of entering the premises. It was the final necessary step before actually setting foot inside the yard, and hence it was directly and closely related to the commission of an act of trespass. In my view it constituted an attempt to trespass. Had the dog not barked at the critical moment, the attempt would not have been interrupted. It would have been consummated.

[13] A verdict of guilty of attempted trespass should be substituted for the verdict of guilty of trespass. Mr Bursey concedes that this requires a reduction in the sentence because attempted trespass in these circumstances is a less serious offence than trespass, even in spite of the accused’s previous conviction for housebreaking. I agree. The magistrate decided that a fine was an appropriate sentence, but Mr De Jager has submitted, in my view correctly, that he appears to have fixed the amount of his fine arbitrarily without proper regard to the accused’s personal circumstances and his ability to pay a fine of R2500. According to the record, he was indeed unable to pay it, and has by now served the alternative period of imprisonment. I consider that an appropriate sentence in these circumstances is a fine of R800 or 2 months’ imprisonment.

[14] In the result the verdict of guilty of trespass is set aside and is replaced with a verdict of guilty of attempted trespass. The sentence is set aside and is replaced with a sentence of R800 or 2 months’ imprisonment which is antedated to 15 February 2005 when the magistrate imposed sentence. This is of course for record purposes. The accused has already served his sentence. He cannot be called upon to do so afresh.

RJW JONES

Judge of the High Court.

SANDI J: I agree/

B. SANDI

Judge of the High Court

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