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[2010] ZAGPPHC 241
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Makofane and Another v S (A1099/09) [2010] ZAGPPHC 241 (10 December 2010)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASENO:A1099/09
DATE:10/12/2010
IN
THE MATTER BETWEEN:
MOSES
MAKOFANE
…......................................................................
FIRST
APPELLANT
TM
MALAPANE
…...............................................................................
SECOND
APPELLANT
versus
THE
STATE
….......................................................................................
RESPONDENT
DATE:24/11/2010
APPEAL
JUDGMENT
BAM
AJ
1.
On
25 October 2009 the appellants were convicted in the magistrate's
court, Lydenburg, on a charge of having contravened
section 51(1)
of
the
Criminal Procedure Act, 51 of 1977
, escaping from custody. They
were each sentenced to 3 years imprisonment in terms of
section
276(1)[i)
of the said Act. Leave to appeal was dismissed by the court
a
quo
but
subsequently granted upon petition to the judge President of this
division. Hence this appeal.
2.
Section
51(1)
of the
Criminal Procedure Act provides
for a situation where an
arrestee escapes during the period after his lawful arrest but
before
being
locked up. According to the charge sheet the appellants allegedly
escaped
after
having
been locked up. The escaping of a person,
after
having
been detained in custody, is governed by the provisions of
section
117
of the
Correctional Services Act, 111 of 1998
. It therefore
appeared,
prima
facie,
that
the appellants were not correctly
charged
in
terms of the
Criminal Procedure Act. The
question which accordingly
arose is whether the appellants could, correctly in law, whilst
charged as aforesaid, be
convicted
of
contravening
section 51(1]
of the
Criminal Procedure Act in
the event
of the facts proving escape from custody after they were locked up.
Counsel appearing for the appellants and for the
state, respectively
Mr Moeng and Mr More, did not address this issue in their heads of
argument, and were accordingly requested
to furnish us with
supplementary heads of argument regarding the said question. Counsel
complied, and we are indebted to them.
3.
The state adduced the evidence of a single witness, inspector JK
Masangu. This witness testified that he came on duty at the
police
station, Lydenburg, at 18:45 on the evening of 21 November 2007. He
did not visit the cells. He was told that it was done
by a certain
student constable Shabangu before his arrival at the police station.
Constable
Shabangu had reported that everything was in order. The next morning,
the morning of the 22
nd
,
at around 05:00, inspector Masangu visited the cells accompanied by a
certain inspector Nyanga, now deceased, with the intention
to count
the inmates. He knew from the entries in the registers how many
detainees there had to be. They found that cell unit 5,
where he knew
ten detainees had been locked up, had been broken open. Steel bars at
a door had been sawn through. Five of the inmates
were missing. The
witness testified that the appellants were two of the five missing
escapees. He then laid a charge of escaping.
In his evidence he
conceded that he had a vague memory of the two appellants but that
he, at the time, deposed to a statement regarding
the facts from
which he could refresh his memory. He testified that the detention of
the appellants was recorded in the registers
kept at the police
station, namely the occurrence book and the cell register. These two
registers were however not handed in as
exhibits.
5.
The appellant's defence was that they had been released on the 21
st
,
the previous afternoon, at about 17:00, by inspector Nyanga, before
the witness came on duty. Inspector Masangu denied it and
replied
that inspector Nyanga was not at the police station at that time. He
further stated that their release would have been
noted in the said
registers if that was the said position, which was not the case.
6.
After
the State had closed its case the appellants applied for their
discharge in terms of
section 174
of the
Criminal Procedure Act It
was refused and the appellants closed their case without testifying.
7.
It
was submitted by Mr Moeng that the state had failed to prove that the
two appellants were in fact detained in the police cell
from where
they allegedly escaped. He contended that inspector Masango's
evidence did not prove that the appellants had not been
released by
the late inspector Nyanga: for an unknown reason the state did not
produce the registers of the police station containing
the relevant
evidence as the State should have done and the state was obliged to
call student constable Shabangu as a witness,
which the State failed
to do.
8.
When
the evidence of Inspector Masango is evaluated it appears that he had
all the relevant information regarding the appellants
at his disposal
at the time of the escape. He testified that he knew that the
appellants were detained in the cell from where they
allegedly
escaped. He also knew that inspector Nyanga was not at the police
station when the appellants claimed they were released.
There was
further no entry in the relevant registers that the appellants were
released on bail.
9.
The
appellants' sole defence was that they were released by inspector
Nyanga as aforesaid. That was put to inspector Masango during
cross-examination. The appellants, however, did not contest the
evidence of inspector Masango that there was no entry in the
registers
reflecting their release as there would have been if they
were in fact released as claimed.
The
evidence of inspector Masango, to my mind, proved
prima
facie
that
the appellants escaped from the police cell where they were detained.
10.
It
is trite that the state bears the
onus
to
prove the guilt of an accused beyond reasonable doubt. There is no
evidential burden on the accused to prove anything. The
constitutional right of an accused (in terms of section 35(3)(h) of
the Constitution] to remain silent is also kept in mind and
respected.
11.
Where
the state however adduces evidence which
prima
facie
proves
the State's case, an accused's silence strengthens the State's case,
and justifies a negative inference against the accused
person. This
is the situation in this case. See
S
v Chabalala
2003
(1] SASV 134 (SCA].
12.
Accordingly,
to my mind, the evidence of Insp. Masango was correctly accepted by
the court
a
quo
as
proof beyond reasonable doubt that the appellants did escape from
custody after they were locked up in a police cell.
13.
Pertaining
to the correctness of the conviction, it was, correctly to my mind,
submitted by Mr Moeng and conceded by Mr More that
the appellants
should have been charged with having contravened the provisions of
section 117
of the
Correctional Services Act. The
evidence proved
that this was not a situation where the appellants were charged with
escaping before they were detained in custody.
It was accordingly
common cause that the provisions of
section 51(1)
of the
Criminal
Procedure Act were
not applicable in this case.
14.
Regarding
the powers of a court to convict an accused of having committed an
offence other than the offence alleged in the charge
sheet,
section
270
of the
Criminal Procedure Act provides
as follows:
s270.
"If
the evidence on a charge for any offence not referred to in the
preceding sections of this chapter does not prove the commission
of
the offence so charged but proves the commission of an off en ce by
reason of the essen tial elements of that offence is included
in the
offence so charged, the accused may be found guilty of the offence so
proved." (The offence of contravening the provisions
of
section
51(1)
is not referred to in the preceding sections of the relevant
chapter.)
15.
The
elements of the offence in terms of
s51(l)
of the
Criminal Procedure
Act, as
alleged in the charge sheet, are essentially the same as the
elements of the offence in terms of
section 117
of the
Correctional
Services Act. Except
for the difference in the situation regarding
the escape referred to above, the only dissimilarity seems to be that
for an offence
in terms of the former, lawfulness of the arrest is
required, whilst in terms of the latter, lawfulness of the custody is
not an
element.
Section 51(2)
of the
Criminal Procedure Act further
provides for the same penalties prescribed for the contravention of
section 117
of the
Correctional Services Act.
16.
>
By
reason of the facts
in
casu
not
justifying a conviction on a charge of contravening
section 51(1)
of
the
Criminal Procedure Act such
a conviction, is not competent in law
and should in terms of
section 270
of the said Act be substituted by
a conviction on a charge of the contravention of
section 117
of the
Correctional Services Act, 111 of 1998
. The appellants will not be
prejudiced in any way.
SENTENCE
17.
This
court's powers to interfere with the sentence imposed by a lower
court are limited. It has to be shown that the magistrate
committed
an irregularity or misdirected himself in one way or the other. See
S
v Pieters
1987
(3) SA 717
(A) and
S
v Malgas
2001
(1) SACR 469
[SCA].
18.
I
do not consider the conviction on
section 51(1]
of the
Criminal
Procedure Act to
be an irregularity of the nature that would entitle
this court to interfere with the sentence. I have already stated that
the appellants
were not prejudiced. Mr Moeng's submission that the
correct charge sheet would have caused a different approach with the
cross-examination
holds no water. I can see no reason how it could
have affected their defence that they were lawfully released.
19.
The
appellants were awaiting trial on a charge of housebreaking and
theft. It is perse a serious charge.
20.
The
legislature deemed it appropriate to prescribe a sentence of a fine
or imprisonment of ten years or both such fine and such
imprisonment
for this offence. (In this regard the magistrate erred in finding
that the legislature did not prescribe a fine.
I
have already remarked above that
section 51(2)
of the
Criminal
Procedure Act provides
for the same penalties the legislature
prescribed in
section 117
of the
Correctional Services Act).
21.
The
magistrate took into consideration all the relevant facts as well as
the personal circumstances of the appellants, including that
they
were first offenders.
22.
Save
for what I have stated above I could not find any other misdirection
or error committed by the magistrate. Although the sentence
imposed
by the magistrate in terms of
section 276(l)(i)
of the
Criminal
Procedure Act seems
to me somewhat lenient, there is, to my mind, no
reason in law why we should interfere with the sentence.
22.
Accordingly I suggest, save for substituting the conviction on a
charge of
s51(l)
of Act 51 of 1977 by a conviction on a charge of
sll7 of Act 111 of 1998, that the appeal against both the conviction
and sentence
should be dismissed.
AJ
BAM
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered.
N
RANCHOD
JUDGE
OF THE HIGH COURT