IN THE HIGH COURT OF LESOTHO

In the matter between:-

REX

vs

SIBUSIZO NAIMA

Review Case No. 50/2000 CRI 771/2000

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 HI 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

3 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 LA WAND 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 OVAMBOLAND1931 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?

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(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 car 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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