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

CA 38/2003

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

VS

OAGILE

ABEL MOTHIBEDI

REVIEW

JUDGMENT

PISTOR AJ:

The accused in this matter was charged with and convicted of a contravention of Section 51(1) of the Criminal Procedure Act , 1977 (Act 51 of 1977- herein referred to as the Code) in that “upon or about 6 December 2002 and at or near ....... the accused after he had been lawfully arrested and before being lodged in a police cell or lock up did wrongfully escape from such custody”.

The accused pleaded guilty and explained to the trial court that he had been taken into lawful custody and that he was locked up in the Pampierstad court cells as an “awaiting trial” to appear in the magistrates court. Whilst he was in the cells he was taken to an office in order to lodge an application for legal aid. Whilst apparently at the office where such application had to be lodged, he went out of the door and fled. He was convicted as charged and sentenced to eight months imprisonment.

The matter was submitted to me for review and I directed the following query to the learned presiding magistrate:

“Could the learned presiding magistrate please indicate whether a conviction in respect of section 51 of Act 51 of 1977 was proper after the accused had already been kept in custody in the court cells. Is the proper section in such circumstances not section 48 of The Correctional Services Act, 1959 (Act 8 of 1959)?” The presiding magistrate has now responded as follows: “I do concede that the appropriate section the accused should have been convicted of is section 48 of Act 8 of 1959. May the honourable Judge take the appropriate action under the circumstances”. Section 51 (1) of the Code provides (in so far as it is relevant): “ Any person who escapes ..... from custody after he has been lawfully arrested and before he has been lodged in any prison, police cell or lock up, shall be guilty of an offence ......” (My underlining) From the wording of the section it is in my view clear that a person does not contravene the section after he has been lodged in a police cell or lock up. An escape by a person after he had been duly lodged in a prison, police cell or lock up is an offence in terms of Section 48 (1) (a) of the Correctional Services Act, 1959 (Act 8 of 1959 herein referred to as the 1959 - Act). The latter section provides (in so far as it is relevant): “Any prisoner who escapes ...... from the prison in which he or she is placed ...... or while in the course of removal in custody from one place to another shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding five years” The term “prisoner” in terms of the 1959 Act means “any person, whether convicted or not, who is detained in custody in any prison or who is being transferred in custody from one prison to another prison and ........”

“Could the learned presiding magistrate please indicate whether a conviction in respect of section 51 of Act 51 of 1977 was proper after the accused had already been kept in custody in the court cells.

Is the proper section in such circumstances not section 48 of The Correctional Services Act, 1959 (Act 8 of 1959)?”

The presiding magistrate has now responded as follows:

“I do concede that the appropriate section the accused should have been convicted of is section 48 of Act 8 of 1959. May the honourable Judge take the appropriate action under the circumstances”.

Section 51 (1) of the Code provides (in so far as it is relevant):

“ Any person who escapes ..... from custody after he has been lawfully arrested and before he has been lodged in any prison, police cell or lock up, shall be guilty of an offence ......” (My underlining)

From the wording of the section it is in my view clear that a person does not contravene the section after he has been lodged in a police cell or lock up.

An escape by a person after he had been duly lodged in a prison, police cell or lock up is an offence in terms of Section 48 (1) (a) of the Correctional Services Act, 1959 (Act 8 of 1959 herein referred to as the 1959 - Act). The latter section provides (in so far as it is relevant):

“Any prisoner who escapes ...... from the prison in which he or she is placed ...... or while in the course of removal in custody from one place to another shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding five years”

The term “prisoner” in terms of the 1959 Act means “any person, whether convicted or not, who is detained in custody in any prison or who is being transferred in custody from one prison to another prison and ........”

The term “prison” in terms of the latter act means (in so far as it is relevant): “any place established or deemed to have been established under this act as a place for the reception, detention, confinement, training or treatment of persons liable to detention in custody...... and for the purposes of any offence under this act or any contravention of or failure to comply with any provision of this act, further includes every place used as a police cell or lock up, and further includes a contracted out prison”.

In my view, court cells, used as a lock up in respect of people in custody whilst they are awaiting their appearance in court, is a “lockup” as contemplated in the definition of “prison” that I have just referred to. Therefore, should a person escape from custody after having been duly locked up in such a court cell, that person contravenes (subject to what is said herein below) section 48 (1) of the afore-said Correctional Services Act and not Section 51 (1) of the Code.

When I directed the afore-said query to the presiding magistrate, I referred to Section 48 of the 1959 Act. I then lost sight of the provisions of the Correctional Services Act, 1998 (Act 111 of 1998 - herein after referred to as the New Act). The latter Act creates an interesting situation to which I now refer.

Section 137 of the New Act provides:

“The Acts said out in the Schedule are hereby repealed or amended to the extend set out in the third column of the Schedule”

In terms of the third column of the Schedule the whole of the 1959 Act was to be repealed by the said Section 137 of the New Act. However, Section 137 of the New Act has itself not been put into operation.

Section 138 of the New Act in this regard provides:

“138 Short title and commencement

This Act is called the Correctional Services Act, 1998, and comes into operation on a date fixed by the President by proclamation in the Gazette.

Different dates may be fixed under subsection (1) in respect of different provisions of this Act. Different dates may be fixed by the President by proclamation in the Gazette for the repeal of different provisions of the Correctional Services Act, 1959 (Act 8 of 1959).” Section 11 of the Interpretation Act, 1957 (Act 33 of 1957) provides: “When a law repeals wholly or partially any former law and substitutes provisions for the law so repealed, the repealed law shall remain in force until the substituted provisions come into operation.”. Consequently the provisions of the 1959 Act remain in force until such time as they have been repealed (entirely or partially) in terms of the provisions of Section 138 of the New Act. Some of the Sections of the New Act were put into operation by Proclamation R20 of 1999, published in Government Gazette No. 19778 of the 19 February 1999. The Proclamation reads (in so far as it is relevant) as follows:- “COMMENCEMENT OF CERTAIN PROVISIONS OF THE CORRECTIONAL SERVICES ACT, 1998 (ACT No. 111 OF 1998) AND REPEAL OF CERTAIN PROVISIONS

OF THE CORRECTIONAL SERVICES ACT, 1959 (ACT No. 8 OF 1959 In terms of Section 138 of the Correctional Services Act, 1998 (Act No. 111 of 1998), I hereby determine 19 February 1999 as the date on which sections 1,...117 ...... of Act No. 111 of 1998 shall come into operation and I further hereby determine 19 February 1999 as the date on which sections 5,..... 25J, 61 and 64 of Act No. 8 of 1959 shall be repealed ......” Section 117 of the New Act is thus one of the sections of the New Act that has been put into operation by virtue of the aforesaid Proclamation. However, Section 48 of the 1959 Act was not repealed by the Proclamation.

Different dates may be fixed under subsection (1) in respect of different provisions of this Act.

Different dates may be fixed by the President by proclamation in the Gazette for the repeal of different provisions of the Correctional Services Act, 1959 (Act 8 of 1959).”

Section 11 of the Interpretation Act, 1957 (Act 33 of 1957) provides:

“When a law repeals wholly or partially any former law and substitutes provisions for the law so repealed, the repealed law shall remain in force until the substituted provisions come into operation.”.

Consequently the provisions of the 1959 Act remain in force until such time as they have been repealed (entirely or partially) in terms of the provisions of Section 138 of the New Act. Some of the Sections of the New Act were put into operation by Proclamation R20 of 1999, published in Government Gazette No. 19778 of the 19 February 1999. The Proclamation reads (in so far as it is relevant) as follows:-

“COMMENCEMENT OF CERTAIN PROVISIONS OF THE CORRECTIONAL SERVICES ACT, 1998 (ACT No. 111 OF 1998) AND REPEAL OF CERTAIN PROVISIONS

OF THE CORRECTIONAL SERVICES ACT, 1959 (ACT No. 8 OF 1959

In terms of Section 138 of the Correctional Services Act, 1998 (Act No. 111 of 1998), I hereby determine 19 February 1999 as the date on which sections 1,...117 ...... of Act No. 111 of 1998 shall come into operation and I further hereby determine 19 February 1999 as the date on which sections 5,..... 25J, 61 and 64 of Act No. 8 of 1959 shall be repealed ......”

Section 117 of the New Act is thus one of the sections of the New Act that has been put into operation by virtue of the aforesaid Proclamation. However, Section 48 of the 1959 Act was not repealed by the Proclamation.

Section 117 of the new Act provides, in so far as it is relevant:

“117 Escaping and absconding

Any person who

(a) escapes from custody;

(b) ..................................;

(c) ...................................;

(d) ...................................; or

(e) ...................................,

is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding ten years or to imprisonment without the option of a fine or both.”

The term “custody” has not been defined in the New Act. It must therefore be given its ordinary meaning (Steyn: Uitleg van Wette, fifth edition p.4). which includes “safekeeping, protection, care, confinement and imprisonment” (The Shorter Oxford English Dictionary volume 1 p. 477).

The term “prison” has been defined in section 1 of the New Act (which section has also been put into operation) and in terms of which “prison” (in so far as it is relevant) means:

“ any place established under this Act as a place for the reception, detention, confinement, training or treatment of persons liable to detention in custody..... and for the purposes of sections 115 and 117 of this Act includes every place used as a police cell or lock up” ( my underlining).

Section 117 of the New Act, therefore, creates an offence similar to the offense created by Section 48 of the 1959 Act and it also includes escape from a “police cell or lock up”

The question that arises, is whether Section 48 is still in force.

In view of the expressed provisions in Sections 138 of the New Act to the effect that different dates may be fixed by Proclamation for the repeal of different provisions of the 1959 Act and in view of the fact that the aforesaid Proclamation has repealed a specified number of Sections of the 1959 Act with the exclusion of Section 48 of that Act, I am of the view that Section 48 is still in force. However, since section 117 of the New Act read with section 1 thereof creates provisions similar to Section 48, it would in the circumstances in my view be proper to substitute the conviction in this matter with a conviction in respect of section 117 of the New Act. In the circumstances the conviction is set aside and replaced with the following: “Convicted of Section 117 (a) of the Correctional Services Act, 1998 (Act No. 111 of 1998).” The sentence is in order and is confirmed.

JHF PISTOR

ACTING JUDGE OF THE

HIGH COURT I agree. B.E. NKABINDE

JUDGE OF THE HIGH

COURT DATE : 03 APRIL 2003

In view of the expressed provisions in Sections 138 of the New Act to the effect that different dates may be fixed by Proclamation for the repeal of different provisions of the 1959 Act and in view of the fact that the aforesaid Proclamation has repealed a specified number of Sections of the 1959 Act with the exclusion of Section 48 of that Act, I am of the view that Section 48 is still in force. However, since section 117 of the New Act read with section 1 thereof creates provisions similar to Section 48, it would in the circumstances in my view be proper to substitute the conviction in this matter with a conviction in respect of section 117 of the New Act.

In the circumstances the conviction is set aside and replaced with the following:

“Convicted of Section 117 (a) of the Correctional Services Act, 1998 (Act No. 111 of 1998).”

The sentence is in order and is confirmed.

JHF PISTOR

ACTING JUDGE OF THE

HIGH COURT

I agree.

B.E. NKABINDE

JUDGE OF THE HIGH

COURT

DATE : 03 APRIL 2003