Makofane and Another v S (A1099/09) [2010] ZAGPPHC 241 (10 December 2010)

Makofane and Another v S (A1099/09) [2010] ZAGPPHC 241 (10 December 2010)

The court found that the evidence of Inspector Masango established beyond reasonable doubt that the appellants escaped from lawful custody after being locked up in a police cell. Although the appellants claimed to have been released, there was no supporting evidence or register entry to corroborate their defence. The court accepted that the appellants should have been charged under section 117 of the Correctional Services Act rather than section 51(1) of the Criminal Procedure Act, as the escape occurred after detention. However, the essential elements of both offences are substantially similar, and section 270 of the Criminal Procedure Act permits substitution of the conviction. The...

Citation
[2010] ZAGPPHC 241
Parties
Appellant: Moses Makofane; Appellant: TM Malapane; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 December 2010
Case Number
A1099/09
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal dismissed; conviction substituted under section 117 of the Correctional Services Act; sentence confirmed.
Judges
BAM, N RANCHOD
Legal Topics
Escape From Custody, Criminal Procedure Act, Correctional Services Act, Onus of Proof, Substitution of Conviction
Criminal Law Escape From Custody Criminal Procedure Act Correctional Services Act Onus of Proof Substitution of Conviction

Case Brief

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Parties

Moses Makofane

Appellant

TM Malapane

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellants were correctly charged under section 51(1) of the Criminal Procedure Act for escaping from custody.
  2. 2 Whether the evidence proved beyond reasonable doubt that the appellants escaped from lawful custody.
  3. 3 Whether the conviction should be substituted under section 117 of the Correctional Services Act.

Ratio Decidendi

The court found that the evidence of Inspector Masango established beyond reasonable doubt that the appellants escaped from lawful custody after being locked up in a police cell. Although the appellants claimed to have been released, there was no supporting evidence or register entry to corroborate their defence. The court accepted that the appellants should have been charged under section 117 of the Correctional Services Act rather than section 51(1) of the Criminal Procedure Act, as the escape occurred after detention. However, the essential elements of both offences are substantially similar, and section 270 of the Criminal Procedure Act permits substitution of the conviction. The...

Court Disposition

Appeal dismissed; conviction substituted under section 117 of the Correctional Services Act; sentence confirmed.

Orders

  • The conviction under section 51(1) of the Criminal Procedure Act is substituted with a conviction under section 117 of the Correctional Services Act, 111 of 1998.
  • The appeal against both conviction and sentence is dismissed.