S v Mafora

• Jurisdiction: South Africa
• Judge: Gura J and Lever AJ
• Judgment Date: 02 July 2009
• Docket Number: 09/2009
• Court: North West High Court, Mafikeng
• Hearing Date: 02 July 2009
• Citation: 2010 (1) SACR 269 (NWM)

Lever AJ:

[1] In this matter the accused was charged with and convicted of escaping from custody, in terms of s 51(1) of the Criminal Procedure E Act 51 of 1977, and sentenced as follows: 'Two years' imprisonment. Accused unfit to possess a firearm in terms of s 103(1) of the Firearm Control Act.'

[2] When the matter came on review it was accompanied by a letter from the learned presiding magistrate, addressed to the reviewing judge. This F letter requested that the inquiry and finding held in terms of the Firearms Control Act 60 of 2000 be set aside on the grounds that escape from unlawful custody is not listed among the offences under s 103(1) of the Act.

[3] This matter initially came before my brother Pistor AJ, and on G 30 March 2009 he wrote to the learned magistrate in the following terms:

'Bearing in mind that in his answers to the questions put to him in terms of s 112(1), the accused merely admitted that he was under lawful arrest without giving any further particulars, the learned Presiding H Magistrate is requested to indicate whether the questions put to the accused in terms of s 112(1) elicited sufficient information in order for the trial court to ascertain whether the accused was guilty of a contravention of s 51 of the Criminal Procedure Act (escape before lodged in a prison, police cell or lock-up) or whether he was guilty of a contravention of s 117(a) of the Correctional Services Act 111 of 1998 (escape after having been lacked (sic) up in a prison, etc.).'

I [4] The learned magistrate replied by way of a letter and, after explaining and apologising for some delays, she dealt with the queries raised by Pistor AJ, as follows:

'The accused faced a charge contravention of s 51(1) of the Criminal J Procedure Act 51/77 which he tendered a guilty plea to.

Lever AJ

1.

The court invited the accused to relate what happened on the day A in question and he simply replied that he had escaped.

2.

The court, then, posed questions to determine if the accused admitted all the allegations against him.

3.

The court determined from the accused's answers that he admitted all the elements of the offence.

4.

In this instance, the accused escaped after he had been locked up B in a prison. He had just appeared in court and he escaped as he was being led to the police van. [Emphasis of magistrate.]

5.

The essential elements in the charge of contravention of s 51(1) Act 51/77 and in that of contravention of s 117(a) read with s 1 of the Correctional Services Act 111/98, is escaping from lawful custody. C

6.

The accused tendered a guilty plea. His explanation as well as his answers he gave to questions posed by the court constituted an offence under s 117(a) of the Correctional Services Act 111/98. It is clear that the accused admitted to committing an offence of escape from lawful custody prohibited under s 117(a). The accused could not have suffered any prejudice had the court D convicted him of contravention of s 117(a) of the Correctional Services Act 111/98.

7.

The court should have invoked provisions of s 270 of the Criminal Procedure Act 51/77 and therefore convicted the accused of escape from lawful custody under s 117(a) Act 111/98.'

[5] The query to the learned magistrate by my learned brother Pistor AJ E ...