S v Mothibedi (CA 38/2003) [2003] ZANWHC 19 (3 April 2003)

S v Mothibedi (CA 38/2003) [2003] ZANWHC 19 (3 April 2003)

The reviewing court found that section 51(1) of the Criminal Procedure Act, 1977, does not apply to escapes after an accused has been lodged in a police cell or lock up. The correct statutory provision for such escapes is section 48(1)(a) of the Correctional Services Act, 1959, or section 117 of the Correctional Services Act, 1998, which both criminalise escape from custody after being placed in a police cell or lock up. Although section 117 of the 1998 Act has come into operation, section 48 of the 1959 Act remains in force until repealed by proclamation. Since section 117 creates similar provisions and is operative, the court substituted the conviction under section 51(1) with a...

Citation
[2003] ZANWHC 19
Parties
Applicant: The State; Respondent: Oagile Abel Mothibedi
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
3 April 2003
Case Number
CA 38/2003
Procedural Posture
Review Application / Review of Conviction and Sentence
Outcome
Conviction under section 51(1) of the Criminal Procedure Act, 1977, set aside and substituted with conviction under section 117(a) of the Correctional Services Act, 1998. Sentence of eight months' imprisonment confirmed.
Judges
JHF Pistor, BE Nkabinde
Legal Topics
Escape From Custody, Correctional Services Act, Statutory Interpretation, Substitution of Conviction
Criminal Law Escape From Custody Correctional Services Act Statutory Interpretation Substitution of Conviction

Case Brief

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Parties

The State

Applicant

Oagile Abel Mothibedi

Respondent

Procedural Posture

Review Application / Review of Conviction and Sentence

Legal Issues

  1. 1 Whether the accused was properly convicted under section 51(1) of the Criminal Procedure Act, 1977, after escaping from court cells.
  2. 2 Whether section 48 of the Correctional Services Act, 1959, or section 117 of the Correctional Services Act, 1998, is the correct statutory provision for escape from custody after being lodged in a police cell or lock up.
  3. 3 Whether the conviction should be substituted under the correct statutory provision.

Ratio Decidendi

The reviewing court found that section 51(1) of the Criminal Procedure Act, 1977, does not apply to escapes after an accused has been lodged in a police cell or lock up. The correct statutory provision for such escapes is section 48(1)(a) of the Correctional Services Act, 1959, or section 117 of the Correctional Services Act, 1998, which both criminalise escape from custody after being placed in a police cell or lock up. Although section 117 of the 1998 Act has come into operation, section 48 of the 1959 Act remains in force until repealed by proclamation. Since section 117 creates similar provisions and is operative, the court substituted the conviction under section 51(1) with a...

Court Disposition

Conviction under section 51(1) of the Criminal Procedure Act, 1977, set aside and substituted with conviction under section 117(a) of the Correctional Services Act, 1998. Sentence of eight months' imprisonment confirmed.

Orders

  • The conviction under section 51(1) of the Criminal Procedure Act, 1977, is set aside.
  • The conviction is substituted with a conviction under section 117(a) of the Correctional Services Act, 1998 (Act No. 111 of 1998).