Review
Case No. 50/2000 CRI 771/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

vs

SIBUSIZO
NAIMA

Review
Order No. 3/2000 Quthing District

REVIEW
ORDER

This is
the matter which came before me on an automatic review from the
resident magistrate Quthing. The accused was charged with three
counts. The first count was the charge of the crime of House Breaking
with Intent to Steal and Theft. The second count, was the charge of
Theft Common. The third count was the charge of contravention of
section 14 of NATIONAL IDENTITY AND PASSPORT SERVICES ACT NO. 9 of
1984.

The
accused pleaded guilty and was convicted on all counts. In respect of
counts II and III the statement of agreed facts contains all the
essential elements which must be established in order to sustain the
conviction of the charges in counts two

2

and
three. The conviction and sentences in respect of these two last
counts, are

found to
be in order. I accordingly confirm both conviction and sentence in
respect of counts II and III.

As far as
count I is concerned, there are problems of insufficiency of evidence
that supports the conviction. I proceed to deal with the question of
evidence as disclosed in the statement of agreed facts . That
statements of agreed facts is as follows:-

"the crown will show that the accused was previously employed by
the parent of the child whose items of clothing, were found missing
from the caravan which the father used as a living room. Evidence
will show that the caravan was noticed to have been broken into
sometime in February 2000. That caravan had been previously closed
and locked by this child who was away at the time. This child
examined her property and found the items listed in the charge,
missing. The father and the child had not given their permission to
anyone to take away that property."

The
statement of agreed facts is very brief and vague. It does not show
precisely, how and when the breaking in was done and the property
removed in relation to

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that
breaking in. The statement does not show how the breaking in was
done.

There is
also an omission of the facts as to how entry was effected if at all
entry was made into that caravan.

It has
come to my notice that once an accused tenders a plea of guilty, the
public prosecutor, does not bother to make sure that all the facts
which establish the commission of the offence charged are put before
the court. The plea of guilty by the accused, by itself, is not
sufficient to sustain conviction. There must be facts which show the
court that the offence charged was in fact committed. In our present
case, the accused is charged with the crime of House Breaking with
intent to Steal and Theft. There are essential elements of this
crime, which must be established by the facts of the case. These
essential elements are five in all. They are (a) Unlawfully; (b)
breaking; (c)entering; (d) premises; (e)Intent. SOUTH AFRICAN
CRIMINAL LAW AND PROCEDURE. Volume II Common Law Crimes Third Edition
by JRL Milton at page 796. The entry into the premises must be
unlawful.. R v FAISON 1952 (2) SA 671. It must be shown in the facts
that the accused had no right to enter the premises. This accused, is
said to have been employed by the parent of the child whose items of
clothing were allegedly taken by the accused. The statement does not
disclose in what capacity was the accused employed.. The statement of
facts does not disclose whether or not the

4

accused
had any right to enter the premises of the employer. It must be
specifically alleged in the facts that at the time the entry was made
by the accused into the caravan, he was not at all entitled to enter
those premises. R v WILLY OVAMBOLAND 1931 SWA 11

(b)
Breaking

To
'break' premises means to create a way into those premises by
displacing some obstruction which forms part of those premises. R v
FOURIE; R v LOUW 1907 ORC 58. The removal, [for example of a lock] or
displacement of any obstacle which bars entry into that caravan,
should have been alleged in the facts. R v NGOBEZA 1992 1 SA CR 610
(T) 614. The facts do not show how the conclusion that the caravan
was broken into, was arrived at. Was the door or window broken? There
need not be actual damage to anything obstructing the way into the
caravan. Mere opening of the closed door without the authority or
permission of the owner to open it, is breaking in. The facts must
specifically address how the conclusion that the caravan was broken
into, was arrived at. What exactly led them to conclude that the
caravan was broken into? What obstruction was removed if any
obstruction was at all removed in order to gain unauthorised access
into the caravan?

5

(c)
Entering

There is
no allegation that the accused entered the caravan. The complainant
must have made some observations that entry into the caravan was
effected. The statement of facts should show how the crown was going
to prove that the accused entered the caravan. Those facts which gave
the complaint an impression that someone has been in the caravan
should be specifically stated. There is no mention that entry into
the caravan, was effected and how it appears to have been made.

(d)
Premises

It is
mentioned in the statement of agreed facts that the complainant used
that caravan as the living room. Certain assumptions may be made from
this statement. Firstly, that it must have been permanently parked
there for that purpose. Secondly, that it was being used, primarily
for human habitation. That being so, it deserved the protection of
the sanctity of a home. On this aspect, the facts though not detailed
they some how provide a basis from which assumptions can safely be
made to fill in the gaps in that statement of agreed facts.

(e) Intent

The
intention to steal may be inferred from the fact that certain items
which were

6

in the
caravan were found to be missing immediately after the caravan was
broken into. On this aspect, the facts alleged show this court that
there are items of clothing which went missing. The statement fails
to show precisely at what stage in relation to the breaking in were
the items found missing. The material facts which would support the
conviction on the charge of House Breaking with intent to steal and
Theft have been omitted. The statement of facts does not show if
those items were found and where they were found. The facts as stated
by the public prosecutor and accepted by the accused, do not disclose
the commission of an offence of House Breaking with intent to steal
and theft. There is no link between the alleged crime and the
accused.

The
conviction on this count is quashed and the sentence set aside. The
accused was properly convicted and sentenced in respect of counts 2
and 3. The conviction and sentence in respect of those two last
counts are confirmed.

K. J.
GUNI

JUDGE

18th May
2000

cc: The
Resident Magistrate - Quthing

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O/C
Police - Quthing

O/C
Prison – Quthing

O/C
Central Prison - Maseru