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[2013] ZAFSHC 125
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S v Maduna and Another (95/2013) [2013] ZAFSHC 125 (4 July 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 95/2013
In
the review between:-
THE
STATE
versus
MOJALEFA MICHAEL
MADUNA
MOTAUNG TEBOHO
WALTER
______________________________________________________
CORAM:
VAN
ZYL, J
et
JORDAAN, J
______________________________________________________
JUDGMENT BY:
JORDAAN, J
______________________________________________________
DELIVERED ON:
4 JULY 2013
______________________________________________________
[1] This is a review
matter in which the two accused were charged with escaping from
lawful custody in contravention of section
51(1) of the Criminal
Procedure Act. They were represented and pleaded guilty to the charge
as set out. In their statement in terms
of section 112(2) of the
Criminal Procedure Act, they deposed to virtually identical
statements which read as follows:
“
I am an/ the
accused in the matter and make this statement freely and voluntarily
in my sober senses without any undue influence.
That on the 04
th
August
2011, the Police Motor vehicle came to Tseki Police Station, to
collect us for being transferred to Kroonstad Prison. While
the
police van approaching Uniqwa (University) myself and accused 2 broke
the police van’s window and immediately went out
of the window,
while the police motor vehicle was still in motion.
At that moment, I was aware that my
actions were unlawful and for the said actions. I am pleading guilty
for escaping from the lawful
custody.”
[2] Both accused were
convicted as charged without any further questions and sentenced to
four (4) years imprisonment each, whilst
the learned magistrate also
ordered that, in terms of section 276B(1)(a) of the Criminal
Procedure Act, the accused were to serve
their entire sentences
without being eligible for parole.
[3] For some unknown
reason this matter only came to the attention of the High Court in
April 2013 when an Acting Judge requested
reasons for sentence, being
of the opinion that it is
prima facie
too severe and also
questioned the applicability of section 276B(1)(a) of the Criminal
Procedure Act as far as the circumstances
of this matter is
concerned.
[4] From the magistrate’s
reasons it appears that the said magistrate has since retired, but
the magistrate says that escaping
from lawful custody is a very
serious offence and prevalent in the area and that therefore it was a
serious matter that justified
a sentence of four (4) years
imprisonment. She also says that she applied the prescripts of
section 246B(1)(a) of the CPA because
both accused were in custody on
serious matters.
[5] After considering the
matter and the reasons supplied by the learned retired magistrate, it
appears to me that the requisites
of section 51(1) of the Criminal
Procedure Act has not been proven in terms of the statements made by
the two accused. They did
not admit that they were lawfully arrested
as required in the said section, neither that they were in lawful
custody at the time.
See
S v Mafora
2010 (1) SACR 269
(NWM) at 272 paras [8] – p 273 para [12].
[6] The convictions
therefore cannot be confirmed and has to be set aside. Due to the
time that has elapsed and the sentence imposed
on the two accused,
there is no sense in remitting this matter to the trial court for a
fresh consideration.
[7] As far as the
sentences are concerned, it is obviously shockingly severe in the
circumstances. The fact that the two accused
were awaiting trial on
serious charges, does not justify harsher sentences since the
question whether they are guilty of those
charges still had to be
decided. What is more, the trial court ordered that they have to
serve their full sentences, purportedly
in terms of section
276B(1)(a) of the Criminal Procedure Act. The court obviously failed
to have regard to subsection (b) of the
aforesaid section, which
limits the court’s discretion to at most two thirds of the term
of imprisonment.
[8] In view of the
plethora of misdirections by the trial court, the convictions and
sentences have to be set aside.
[9] In the result the
convictions and sentences of both accused are set aside. This order
is to be communicated to the prison authorities
as a matter of
urgency.
_______________
A.F. JORDAAN, J
I
concur.
____________
C. VAN ZYL, J
/spieterse