S v Tito

• Jurisdiction: South Africa
• Judge: Pickard ACJ, Erasmus AJ and Rees AJ
• Judgment Date: 11 June 1984
• Citation: 1984 (4) SA 363 (CkS)
• Hearing Date: 17 April 1984
• Court: Ciskei Supreme Court

Pickard ACJ:

I have had the opportunity of reading the judgments of both my Brothers ERASMUS and REES. I am constrained to agree with the reasons and conclusion of my Brother ERASMUS and to disagree with those of my Brother REES.

After due consideration of the arguments addressed to us and C the available authorities referred to, it seems to me that each case should be treated on its own merits and a common sense approach should be adopted. Clearly the purpose of s 112 (1) (b) of the Criminal Procedure Act 51 of 1977 is to ensure that no injustice results by way of a conviction and heavy sentence of an accused who, through his own ignorance, is D convicted and sentenced after a plea of guilty when, had he been sufficiently knowledgeable and informed, he would not have pleaded guilty and accordingly have compelled the State to prove his guilt.

Common sense demands that the judicial officer presiding at the trial should satisfy himself as a reasonable trier of fact and E law that the accused has pleaded guilty with sufficient knowledge and understanding that it may reasonably be inferred that he intended seriously so to plead guilty. Fanciful possible defences, not raised by an accused, need not be extracted from the bottom of the barrel and investigated to ensure that some remote and obscure defence which could conceivably have been raised, but was not raised, can be F eliminated by questions from the bench.

The converse also applies, viz that, if, in the plea or answering questions put by the court, the accused in any way suggests that he may have a possible defence, the court should fully investigate, by its questions, whether or not the accused has not pleaded guilty to an offence of which, if properly advised or informed, he should not have.

G In a nutshell, s 112 (1) (b) proceedings should be so conducted that a reasonable judicial officer may, having convicted and sentenced on a mere plea of guilty, rest assured that no injustice has occured and an innocent man has not been convicted and sentenced.

Confusion must be also avoided between considering all the elements of the offence in order to form an opinion as to H whether the accused admits them and is guilty of the offence charged, on the one hand, and an intensive investigation as to whether or not the accused may have some remote defence which, if raised, will entitle him to an acquittal but which he has not raised, on the other. If the latter investigation had to be I conducted in every case before conviction the whole procedure envisaged by the section would be frustrated and it would be tantamount to requiring that the accused should be cross-examined on the whys and wherefores of his plea each time before a conviction, and that each conceivable, possible defence should be put to him, however remote or unlikely it may be. Such an approach would militate against the practicalities of procedure and against common sense.

Rees AJ

Accordingly I make the following order:

A The charge is corrected to read that the accused contravened s 52 (1) (a) read with s 1 of Act 36 of 1983 and the conviction and sentence are confirmed.

Judgment

Rees AJ:

This matter comes on review from the magistrate's court at Peddie. From the record of the proceedings it appears B that the accused was charged with a contravention of s 48 (a) of Act 8 of 1959. The charge sheet reads:

"Contravening s 48 (a) of Act 8 of 1959: escaping from lawful custody. In that upon (or about) 15 August 1983 and at or near Peddie police cells in the district of Peddie in the said district/division that said accused did wrongfully C and unlawfully and intentionally escaped (sic) from lawful custody at Peddie police cells."

The accused was not represented.

Act 8 of 1959 was repealed by the Ciskei Prisons Act 36 of 1983, published on 30 December 1983. The wording of s 52 (1) (a) of Act 36 of 1983 is substantially the same as the wording of s 48 (1) (a) of Act 8 of 1959. It appears to me that the D same principles apply to the interpretation and application of the two sections. As the Ciskei courts will henceforth be applying the Ciskei Act it seems to me to be desirable to treat of this matter as if the accused had been convicted of contravening s 52 (1) (a) of Act 36 of 1983.

Counsel have conceded that it is competent and desirable for E the matter to be dealt with in this manner.

When the charge was put to the accused he pleaded guilty. The magistrate then questioned him in terms of s 112 (1) (b) of Act 51 of 1977.

The relevant part of the record reads:

"Public prosecutor puts the charge and accused pleads guilty. In terms of s 112 (1) (b).

Q:

What did you do?

A:

I escaped from the police cells at Peddie police station.

Q:

Were you lawfully arrested there?

A:

Yes.

Q:

When was that?

A:

On 15 August 1983.

Q:

How did you escape?

A:

I woke up and noticed that the portion of the roof was open and I got out through it.

Q:

To where did you go?

A:

I went home and took my belongings and proceeded to Alexandria.

Q:

Were you alone in the cells?

A:

I was with others and I was assisted by others to get out.

Found guilty as charged."

The magistrate was asked for his reasons for judgment and he responded inter alia as follows:

"(i)

The court was satisfied when accused stated that he was lawfully arrested as was asked by the court.

(ii)

The court did not find it of importance to enquire from accused further as to how he was arrested as postulated by ss 39 and 50 of Act 51 of 1977.

(iii)

I When the court asked that question it was concerned as to whether accused was lawfully placed or put in Peddie police cells and as a prisoner, ie detained or how he was arrested.

(iv)

The accused understood the phrase 'lawful arrest' as to mean lawful custody or detention because the question was, 'Were you lawfully arrested there?'

Rees AJ

The last word in the question is 'there', meaning Peddie police A cells. And that he escaped from the police cells at Peddie police station."

The question that arose on review was whether the information elicited by the magistrate was sufficient as required by s 112 (1) (b) of Act 51 of 1977 to justify a conviction.

Mr Pillay for the accused at the request of the Court and Mr B Hitchings for the State have now argued the matter before a Full Bench of this Court. Both counsel also submitted lengthy and helpful heads of argument. The Court appreciates their assistance. In condensed form the questions are:

(i)

whether the reply "yes" to the question "Were you C lawfully arrested there?" was sufficient to satisfy the magistrate as required by s 112 (1) (b)of Act 51 of 1977 that the accused was in lawful custody; and

(ii)

whether it was the magistrate's duty to put further questions to the accused in order to ascertain on what facts the alleged lawful custody was based; and

(iii)

D whether it was the magistrate's duty to ascertain whether the accused knew what the phrase "lawful custody" means.

The relevant offence is created by s 52 (1) (a) of the Prisons Act 36 of 1983 which reads:

"Any prisoner who -

(a)

escapes from the prison in which he is lodged or from E any other lawful custody shall be guilty of an offence."

By virtue of the definitions in s 1 the term prisoner includes a person who is lawfully detained in any prison in which he has been lodged, and, for the purpose of an offence under the Prisons Act, the term prison includes every place used as a police cell or lock-up.

F In terms of the section creating this offence it can be committed only by a prisoner. The relevant portion of the definition of prisoner in s 1 of the Prisons Act 1983 reads:

"'Prisoner' means any person, whether convicted or not, who is detained in custody in any prison."

It seems to me that this definition of prisoner should be read G in the context of the Act as a whole, with due regard to the purpose of the Act, and with particular reference to chap 4 which deals with the reception and detention of prisoners.

The word "prisoner" is not synonymous with the phrase "any person". If it had been the intention of the Legislature to H prohibit the escape from a prison of "any person", it would have said so unambiguously.

The effect of these considerations is that the offence of contravening s 52 (1) (a) of the Prisons Act can be committed only by a prisoner, that is, a person who is lawfully detained in custody.

To secure a conviction on a charge of contravening s 52 (1) (a) it must therefore be alleged and proved ante omnia that the I accused is a prisoner.

The proof required to establish that a person who is in custody in a police cell is a prisoner as contemplated by s 52 (1) (a) depends on the length of time that had elapsed since he was arrested and lodged in the police cell.

If the arrest was effected within the previous 48 hours' period, it will

Rees AJ

be necessary to prove; that (a) the arrest was lawful; and (b) A that the accused had been lodged, and was lawfully detained, in the police cell; and (c) that the accused had escaped within 48 hours' of the time of his arrest.

If 48 hours have elapsed since the arrest then it must be shown that the accused had been brought before a lower court and an order for his further detention had been issued by such court; B or if the 48 hours' period had elapsed and the accused not yet been brought before a lower court then it must be shown: (a) that the arrest and detention was lawful; and (b) that the prescribed circumstances that justify an extension of the 48 hours' period are present; and (c) that the relevant extended period had not yet elapsed.

C Proof that an accused is a prisoner therefore necessarily involves proof that he is in lawful custody.

It follows from what has already been said that the charge on which the accused was convicted was not...