IN THE HIGH COURT OF SOUTH AFRICA 
(NORTH GAUTENG HIGH COURT)
HIGH COURT REFERENCE NO: 414/14 
MAGISTRATE'S SERIAL NO:3/14
MAGISTRATE'S CASE NO: D32/12
CASE NO: A935/14
DATE: 8 JANUARY 2015
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
JUDGE'S CHAMBERS 
NORTH GAUTENG HIGH COURT  
PRIVATE BAG 442  
PRETORIA
  0001
THE MAGISTRATE'S OFFICE BELFAST 
PRIVATE BAG X 601  
BELFAST  
1100
12 December 2014
In the matter between:
THE STATE
and
SOLLY DIBAKWANE
CORAM: HUGHES J et
SPECIAL REVIEW JUDGEMENT
HUGHES J
1. This is a special review in terms of Section 304(4) of the Criminal  Procedure Act 51 of 1977 (the Act).
2. Solly Dibakwane, the accused, was nineteen years of age when he  was alleged to have committed the offences charged with.
3. The accused was charged with two counts of housebreaking with the  intent to steal and theft. In respect of count 1 the state alleged that  on 21 or 22 July 2012 and in Sakhelwa which is within the district of  Belfast the accused unlawfully and intentionally broke into and  entered the home of Lucky Madonsela with the intent to steal. He entered and stole the item as set out under count 1 on the charge sheet.
4.   In the case of count 2, the accused allegedly broke into and entered  the house of Phillip Mbeyane. He stole the items listed under count 2  on the charge sheet. The second count also occurred on 21 July  2012 in Sakhelwe, in the district of Belfast.
5. At the commencement of the trial the accused pleaded guilty to both  counts. The court questioned the accused to verify his guilty plea.  With regards to count 1, when asked by the court how he had  gained entry into Lucky Madonsela's premises? The accused  response was that he had found the door of the premises open so  he just entered.
6. When questioned on count 2, he explained that he had gained entry  into Phillip Mbeyane home by putting his hand through a hole that  was in the window and in doing so he was able to open the window  from the outside of the premises.
7. The court, rightfully I might add, entered a plea of not guilty in  respect of count 1 and a plea of guilty in respect of count 2.
8. The complainant in count 1, Lucky Madonsela, was called to give  evidence. The accused conducted his own defence. The accused  submitted to the complainant that when he had arrived at his home the door was open and had already been broken. Lucky Madonsela replied that when he returned he found the broken door and spade.  See below the record of the accused's submission and the  complainants answer thereto:
’V: Toe ek by die huis kom kry ek dis oop, dit was klaar oopgebreek, maar daar het niemand ingegaan nie?
A: Ek het die gebreekte deur gekry en die graaf."
9. From the above it is evident that the state did not prove that the  accused broke into Lucky's premise. In addition no evidence was  adduced to dispute the explanation preferred by the accused as to  render it being unfounded and untrue. The unlawful, intentional  breaking into the premises of the complainant in count 1 was  regrettably not proven by the state beyond a reasonable doubt.
10. The accused only admitted entering the premises and removing the  goods as set out under count 1 of the charge sheet. In the  circumstances, the removal of the complainant's property resulted in  the crime of theft (the unlawful intentional appropriation of certain  property) being established instead. This is further confirmed by the  accused's explanation.
11. The magistrate who presided over this case is now deceased. He  pronounced the accused guilty as charged of count 1. The additional magistrate, Mr V B Cooke, who is now seized with this case, had the matter referred to this Court for an order setting aside the  conviction in respect of count 1 and substituting same with a  conviction of theft.
12. In the circumstances this court exercises its powers in terms of  section 304(4) of the Act in ensuring that the proceeding are in  accordance with justice and sets aside the conviction in count 1 of  housebreaking with intent to steal and theft and replaces it with  theft.
13. The sentence imposed by the magistrate's court took counts 1 and 2  as one for purpose of sentencing. The sentence imposed was  eighteen (18) months correctional supervision in terms of section  276(1) (h) of the Act. In arriving at this sentence a correctional  supervision report was procured and this report declared the  accused "fit to be placed under correctional supervision as  sentenced".
14. This case was brought before the magistrate, Mr V B Cooke, for  reconsideration of the sentence in terms of section 276A (4) (a) of  the Act. The magistrate seeks of this court to "infer that the accused  is not fit to be subjected to correctional supervision" and that the  sentence in count 2 be confirmed in terms of the provisions of  section 276A (4) (a) of the Act. It further seeks that the sentence in count 1 be set aside and referred back to the magistrate's court, after the setting aside of the initial conviction to that of theft.
15.  In terms of section 275 (1) of the Act this court may after  consideration of the record vary, add to or pass sentence afresh. In  the circumstances this court has the power to confirm the sentence  imposed for count 2 of correctional supervision in terms of 276 (1)  (h). The sentence in respect of the conviction on count 1 of theft in  terms of section 275 (1) can be referred back to the magistrate who  is now seized with this case.
16. In the circumstances I make the following order:
16.1 The conviction in respect of count 1 housebreaking with intent  to steal and theft is set aside, replaced with a conviction of  theft and is in terms of section 275 (1) of the Act remitted to  the magistrate for sentencing.
16.2   The sentence of correctional supervision in terms of section  276(1) (h) in respect of count 2 for a period of eighteen (18)  months is confirmed.

W. Hughes Judge of the High Court 
I concur and it is so ordered:
V. V. Tlhapi Judge of the High Court