R v Henkins

• Jurisdiction: South Africa
• Judge: Watermeyer AJ and Van Wyk AJ
• Judgment Date: 21 May 1954
• Citation: 1954 (3) SA 560 (C)
• Hearing Date: 12 April 1954
• Court: Cape Provincial Division

Watermeyer, A.J.:

The accused was charged in the magistrate's court with contravening sec. 46 (1) of Act 31 of 1917 in that on the 25th February, D 1954, and at Cape Town Railway Station he, having been arrested and being in the lawful custody of constable Barry Henn but not yet having been lodged in any prison, gaol, lock-up or police cell, did wrongfully and unlawfully escape from such custody. The accused pleaded guilty and the Crown proceeded to lead evidence in terms of sec. 286 (1) (b) of Act E 31 of 1917 in order to prove that the offence was actually committed. The evidence led was that of constable Henn who deposed as follows:

'Konst. S.A.P. Kaapstad. Om 1 vm. op 25/2/54 het ek besk. gearresteer op Kaapstad se spoorweg stasie op 'n klagte dat hy daar water afgeslaan het. Ek het my hand op hom gesit en hom gewaarsku dat ek hom arresteer en het ook gesê hoekom.

F Besk. het omtrent 4 tree saam met my geloop. Toe het hy my weggestap, en in die rigting van die Hooflyn van die stasie gehardloop. Ek het hom agterna gesit en eindelik in St. George's Straat gevang.'

The accused asked no questions, offered no evidence, and had nothing to say in his defence. He was duly convicted and was sentenced to fourteen days' imprisonment with hard labour.

G The accused now appeals against his conviction and sentence, and there is also an application before the Court for an order remitting the case to the magistrate for the hearing of further evidence. In support of this application the accused has filed an affidavit stating inter alia that he was drunk at the time and so did not realise that he was in custody, that he was tried the following morning before he had had an H opportunity of seeking legal assistance, that he is in the employ of the South African Railways and Harbours and that the imposition of the sentence of imprisonment will automatically result in his dismissal from service with loss of pension rights. He asks to be given an opportunity of putting these facts before the magistrate.

Mr. Aaron, who appeared for the accused in this Court, argued

Watermeyer AJ

the appeal against the conviction first, and he submitted that the Crown had failed to prove, as in terms of sec. 286 (1) (b) of Act 31 of 1917 it was obliged to prove, that the offence was actually committed. It was, so he argued, an essential ingredient of the offence that the A accused was in lawful custody, and the Crown had therefore to prove that the accused had been lawfully arrested. The offence for which the accused was arrested was that of contravening sec. 35 (e) of Act 22 of 1916 which is not an offence mentioned in the First Schedule to Act 31 of 1917. Therefore, so the argument ran, constable Henn could only B lawfully have arrested the accused if he had had a warrant to do so, or if the offence was committed in Henn's presence (see sec. 26 of Act 31 of 1917). There was no evidence adduced by the Crown of a warrant having been issued, nor was there any evidence that the offence was committed in Henn's presence.

Mr. Cooper, who appeared for the Crown, conceded that it was incumbent C upon the Crown to prove that the arrest was lawful, but he submitted, firstly that the Court could infer from Henn's evidence that the offence had been committed in his presence. In my opinion Henn's evidence falls short of establishing that fact. There is no statement that he saw the offence being committed; on the contrary, the evidence that he arrested D the accused 'op 'n...