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S v Mokgwatlheng (42/2002) [2002] ZANWHC 21 (6 June 2002)

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CA NO. 42/2002


IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION


THE STATE


VS


SYDNEY MOKGWATLHENG


REVIEW


On the 18 December 2001 the accused appeared in the magistrate’s court on a certain criminal charge. He was remanded in custody. He then escaped from custody in the process of being taken to the court holding cells. After his arrest he was charged with and convicted of contravening section 117 of the Correctional Services Act (Act 111 of 1998), that is, escaping from lawful custody. He was sentenced as follows:


“One (1) year imprisonment wholly suspended for 5 years on condition accused is not found guilty of escaping from custody, defeating the ends of justice or contravening section 115 or 117 of Act 111 of 1998 committed during the period of suspension”.


When the matter came before me on automatic review, I was satisfied with the conviction. My concern was only in regard to the following issues:


  1. The accused was charged with and convicted of contravening section 117 of Act 111 of 1998 which creates five different offences including escaping from custody, whereas the correct citation of the section he contravened is section 117(a) of Act 111 of 1998.

  1. The condition of the suspended sentence is onerous because it includes reference to a number of different offences and some of which have no nexus with the offence with which the accused has been convicted.


The presiding magistrate in responding to a query I raised regarding the afore-mentioned issues, quite correctly conceded that the condition of the suspended sentence can be amended as recommended. The same applies to the section which the accused contravened.


I am satisfied that the accused will not suffer any prejudice if the charge is amended by deleting “section 117 of Act 111 of 1998" and substituting it with “section 117(a) of Act 111 of 1998". The conviction also has to be amended by making reference to the correct section. Because the conditions of suspension are not legally competent in the light of the decisions in S v Maluleka 1977(4) SA 545 (T), S v Titus 1977(1) SA 74 (NC) and S v Mjware 1990(1) SACR 388 (N) the sentence has to be amended as well.


I, accordingly make the following order:


    1. The charge is amended by substituting “section 117 of Act 111 of 1998" with “section 117 (a) of Act 111 of 1998"


    1. The conviction is set aside and is substituted with a conviction of “guilty of contravening section 117(a) of Act 111 of 1998 (Escape from lawful custody).


  1. The sentence is set aside and is substituted with the following sentence:



“One (1) year imprisonment wholly suspended for five (5) years on condition that the accused is not found guilty of contravening section 117(a) of Act 111 of 1998 or an attempt to escape from custody committed during the period of suspension”.






O.A. PAKO

ACTING JUDGE OF THE HIGH COURT


I agree






H.N. HENDLER

JUDGE OF THE HIGH COURT


DATED: 06 JUNE 2002