S v Nyumbeka

• Jurisdiction: South Africa
• Citation: 2012 (2) SACR 367 (WCC)

S v Nyumbeka
2012 (2) SACR 367 (WCC)

2012 (2) SACR p367

Citation	2012 (2) SACR 367 (WCC)
Case No	5/1031/2010
Court	Western Cape High Court, Cape Town
Judge	Erasmus J and Henney J
Heard	August 18, 2011
Judgment	August 18, 2011
Counsel	Counsel details not provided

Flynote : Sleutelwoorde

Verdict — Duplication of convictions — Accused convicted of assault and escaping from custody, in contravention of s 117 of Correctional Services Act 111 of 1998 — Assault committed in order to effect escape from custody — Conviction on both charges amounting to duplication of convictions — Conviction of assault set aside. I

Review — Automatic review — Duties of magistrate in transmitting record to high court — Duties set out — Incomplete records not to be sent on review — Delays caused thereby — While preparation of record primarily function of clerk of court, ultimately function of magistrate to ensure that proper record sent to high court — Criminal Procedure Act 51 of 1977, s 303. J

2012 (2) SACR p368

Headnote : Kopnota

Where the evidence indicates that an accused assaulted the complainant in order to effect his escape from custody, ie that the accused formed A an intention to escape from custody and not to assault the complainant, an application of the 'evidence' test and the 'single intent' test leads to the conclusion that it would be a duplication of convictions to convict the accused of both escaping from custody in contravention of s 117 of the Correctional Services Act 111 of 1998 and of assault. Conviction of assault set aside. B (Paragraph [8] read with para [11] and [5] at 369i, 370f and 369f.)

When imposing a sentence which is subject to automatic review, magistrates should check: (i) that it had been entered into the review register; (ii) that the full record had been properly typed, where it had been handwritten, and transcribed, where there was a mechanical recording of the proceedings; C (iii) that all the evidence presented at the trial is included and, where it is not available, try and reconstruct such evidence from the handwritten notes, with the assistance of all the parties concerned; (iv) that all documents and annexures are attached to the record; (v) that no incomplete or incorrect record should be sent on review, because this will lead to delays, as has happened in the present matter. Should this happen, the D magistrate would be clearly negligent in executing his/her duties and functions imposed by the law, especially s 303 of the Criminal Procedure Act 51 of 1977. Whilst the preparation of a record for a review and an appeal is primarily a function of the clerk of the court, it is ultimately the function of the magistrate to see to it that a proper record is sent to the high court. The clerk of the court should see to it that this is done timeously and within the periods prescribed by law.

Annotations:

Cases cited

Case law

R v Metelerkamp1959 (4) SA 102 (E): dictum at 112E applied E

S v Davids1998 (2) SACR 313 (C): applied

S v Radebe2006 (2) SACR 604 (O): approved and applied

S v Zulu1973 (2) SA 587 (C): applied. F

Legislation cited

Statutes

The Correctional Services Act 111 of 1998, s 117: see Juta's Statutes of South Africa G 2011/12 vol 1 at 3-135

The Criminal Procedure Act 51 of 1977, s 303: see Juta's Statutes of South Africa 2011/12 vol 1 at 2-407.

Case Information

Automatic review.

Judgment

Henney J (Erasmus J concurring):

Introduction and background

[1] This matter came before me as an automatic review. The accused was convicted in the Khayelitsha magistrates' court on a count of assault and escaping from custody, thereby contravening s 117 of the Correctional I Services Act 111 of 1998.

[2] Both counts were taken together for purposes of sentence and he was sentenced to R3000 or six months' imprisonment, half of which is suspended for a period of three years on condition that the accused is not convicted of assault or a contravention of s 117 of Act 111 of 1998, J committed during the period of suspension.

2012 (2) SACR p369

Henney J

[3] The facts upon which the charges were based are as follows: A

[3.1]

On 27 October 2009 the accused was held in custody in the court cells of court 5 whilst awaiting trial at the Khayelitsha magistrates' court.

[3.2]

Constable Luthanda Vanga, the complainant on count 1, was a B court orderly on duty. As part of his duties, he escorted the accused and other awaiting-trial prisoners from the court to the holding cells. The accused walked in front of him, then suddenly grabbed him and strangled him. He pulled out a shaving blade (Minora) from his pocket and threatened him with it. The accused demanded the keys to the cells. The keys were dropped, he prised himself loose from the accused and ran away. C

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