About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 493
|
|
S v Maseko (A438/15) [2015] ZAGPPHC 493 (1 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: A438/15
Date: 01 JULY 2015
STATE
V
ABRAM SIPHO MASEKO
MAGISTRATE SERIAL NO.: 01/2015
MAGISTRATE CASE NO.: G775/2014
HIGH COURT REF NO.: 219/2015
JUDGMENT
PRETORIUS J,
[1] This matter came before me as a
review in terms of section 304(4) of Act 51 of 1977 from the
Magistrate’s Court, Groblersdal.
[2] The accused was charged with
contravention of section 117(a) read with
section 1
of the
Correctional Services Act 111 of 1998
- escaping from custody and
with a second charge of fraud. The accused pleaded not guilty to both
charges and was unrepresented
in the Magistrate’s Court, during
the trial. He was convicted on both charges. The charges were taken
as one for purpose
of sentence and he was sentenced on 10 April 2015
to 36 months’ imprisonment and declared unfit to possess a
firearm in terms
of
section 103(2)
of Act 60 of 2000.
[3] The evidence was that on 21 August
2014 there were 51 prisoners in the cells at Groblersdal Police
Station. The accused was
one of the prisoners. At 11 hOO Mr Mmako, a
police officer, went to the cell to fetch the accused to take him to
Witbank prison,
but he was not in the cell.
[4] He received information that the
accused had been released on bail, but according to the records no
bail had been granted to
the accused. The bail receipt was for Mr
Onias Mbedzi, but the said Mr Mbedzi was still in custody in the
cell.
[5] Captain Herbst’s evidence was
that members of the public wanted to pay bail for Mr Mbedzi when the
accused told her he
was Mr Mbedzi. This resulted in the accused being
released on bail on Mr Mbedzi’s name, whilst no bail had been
set for the
accused.
[6] It was then discovered that the
accused had pretended to be Mr Mbedzi and was thus released on bail.
The accused’s version
that he had been lawfully released from
custody was, in my view, correctly rejected by the magistrate.
[7] In this instance this court
enquired from the magistrate whether the accused had not been
convicted on a duplication of charges.
The magistrate’s comment
was that the charge of fraud should be set aside.
[8]
Section 83
of the
Criminal
Procedure Act, 51 of 1977
provides:
“If by reason of any uncertainty
as to the facts which can be proved or if for any other reason it is
doubtful which of several
offences is constituted by the facts which
can be proved, the accused may be charged with the commission of all
or any of such
offences, and any number of such charges may be tried
at once, or the accused may be charged in the alternative with the
commission
of any number of such offences. ”
[9] In R v Johannes
1925 TPD 782
it was
held at p786:
“It seems to me that the court
can safely lay down that under certain circumstances both those
tests, or the one, or the other,
may be applied, namely the test of
whether two acts are done with a single intent and constitute one
continuous criminal transaction,
and the test as to whether the
evidence necessary to establish one crime involves proving another
crime”
[10] In this instance it is clear that
the two crimes were committed with a single intent, to escape from
custody. His action was
to commit fraud to enable him to escape and
he had no intent to defraud anybody, save to accomplish his escape.
Therefor the second
count of fraud should be set aside.
[11] I therefor make the following
order:
1. Count 2 of fraud imposed on 10 April
2015 is set aside;
2. The sentence of 36 (thirty-six)
months’ imprisonment is set aside;
3. The matter is remitted back to the
magistrate to impose a proper sentence on the first count.
Judge C Pretorius
I agree.
Judge DS Molefe