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[2017] ZAWCHC 41
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S v S.P (RCD117/2016) [2017] ZAWCHC 41 (16 February 2017)
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
(Coram:
Holderness, AJ)
[Not
Reportable]
High Court Ref No: 780
Regional Court Case No: RCD 117/2016
Magistrate’s
serial No: 04/16
THE
STATE
and
S
P
REVIEW JUDGMENT: 16 FEBRUARY
2017
HOLDERNESS
AJ
:
[1]
This matter comes before me by way of special review from the
Magistrate, Khayelitsha, in terms of section 304 (4) of the Criminal
Procedure Act 51 of 1977 (“the CPA”), read with s
85(1)(b) of the Child Justice Act 75 of 2008 (‘the Child
Justice
Act’).
[2] Section 85(1) of the Child Justice
Act provides as follows:
‘
85
Automatic review in certain cases
(1)
The provisions of Chapter 30 of the
Criminal Procedure Act dealing
with the review of criminal
proceedings in the lower courts apply in respect of all children
convicted in terms of this Act: Provided
that if a child has been
sentenced to any form of imprisonment or any sentence of compulsory
residence in a child and youth care
centre providing a programme
provided for in section 191 (2) (j) of the Children's Act,
the sentence is subject to review
in terms of
section 304
of the
Criminal Procedure Act by
a judge of the High Court having
jurisdiction, irrespective of-
(a) the duration
of the sentence;
(b) the period
the judicial officer who sentenced the child in question has held the
substantive rank of magistrate or regional
magistrate;
(c)
whether the child in question was represented
by a legal representative; or
(d) whether the
child in question appeared before a district court or a regional
court sitting as a child justice court.’
[3] One of the
guiding principles of the Child Justice Act, as set out in section
3(a) thereof, is that all consequences arising
from the commission of
an offence by a child should be proportionate to the circumstances of
the child, the nature of the offence
and the interests of society.
[4]
The facts in this matter, briefly stated, are that the accused, a
first offender, pleaded guilty to the charge of robbery with
aggravating circumstances, and admitted all the material facts, which
admissions were properly made in terms of section 112(2)
of the CPA.
He was convicted on the basis of the plea. The accused was
represented by a private attorney throughout the proceedings.
[5]
During the address on sentence, it emerged that the accused gave the
incorrect date of birth to the police when he was arrested,
and that
his date of birth was in fact […] 1999, and not 1997. Earlier
in the proceedings the magistrate asked the accused
how old he was
and he informed the court that he was 19 years of age.
[6]
As soon as it became apparent that the accused was in fact a minor,
the Magistrate, quite correctly, enquired whether a family
member of
the accused was in court, and when this was confirmed, he stood the
matter down.
[7]
The magistrate placed on record that because the accused was a minor,
certain pre-trial procedures should have been considered
in terms of
the Child Justice Act, including an assessment of the juvenile
offender and the possibility of diversion.
[8]
The court was of the view that, notwithstanding the fact that the
accused was not properly assessed in accordance with the Child
Justice Act, no undue prejudice was caused to him, particularly as
the accused was in fact the cause of the error.
[9] The matter was then adjourned and
the sentencing proceedings were conducted as provided for in terms of
section 16 of the Child
Justice Act, which states as follows:
16
Error regarding age of child or adult who is alleged to have
committed offence
(1)
If, at
any stage during proceedings in terms of this Act, a presiding
officer is satisfied on the basis of evidence placed before
him or
her that the age of a child or adult who is alleged to have committed
an offence (hereafter in this section referred to
as person) is
incorrect, the age must be altered on the record of the proceedings
in accordance with section 14 and the proceedings
must be finalised
in accordance with the provisions of-
(a)
this Act, if the person is found to be a child; or
(b)
the
Criminal Procedure Act, if
the person is found to be an adult,
unless the provisions of
section 4
(2) are applicable.
(2)
If a presiding officer is of the opinion that an error regarding age
may have caused any prejudice to a person during the proceedings
in
question, the presiding officer must transmit the record of the
proceedings to the registrar of the High Court having jurisdiction,
in the same manner as provided for in
section 303
of the
Criminal
Procedure Act, in
which event the proceedings must be dealt with in
terms of the procedure on review as provided for in
section 304
of
the
Criminal Procedure Act.
(3)
Subject to subsection (1), if a presiding officer is of the opinion
that an error regarding age has not caused any prejudice
to the
person, the presiding officer must continue with the proceedings in
terms of the provisions of this Act, in accordance with
his or her
age, as altered.’
[10]
A comprehensive pre-sentence report was filed and the accused’s
probation officer recommended that the accused be sentenced
to
compulsory residence in a child youth care centre, as envisaged in s
76(1) of the Child Justice Act.
[11]
When delivering judgment on sentence, the court took proper
cognizance of the fact that the accused was not assisted by a parent
or guardian in the pre-trial proceedings or prior to conviction, but
that he was legally represented at all times and it was clear
from
the outset that he wanted to plead guilty and that his plea was only
made after proper consultation with his attorney, and
was in
accordance with such instructions.
[12]
Another determinative factor was that after the accused had been
released into his guardian’s care at the previous appearance,
he was involved in an altercation during which he was assaulted and
his grandmother, who is his primary caregiver, indicated that
she
could not control him. It was therefore necessary to place him in a
place of safety.
[13]
The magistrate noted, from the probation officer’s report, that
considering the accused’s personal circumstances,
his
involvement in gangsterism, his mother’s poor health and his
occasional use of cannabis and alcohol, he requires professional
help
and intervention. The State and the accused’s attorney agreed
with these recommendations.
[14]
The court further considered the object of sentencing and section 28
of the Constitution in terms of which the best interests
of a child
are paramount in all matters concerning children, and that in terms
of section 2(c) of the Child Justice Act, one of
the objectives is to
make provision for the special treatment of children in a Child
Justice System designed to break the cycle
of crime which will
contribute to safer communities and encourage children to become law
abiding and productive adults.
[15]
After considering the abovementioned factors and the law applicable
to cases such as these, the accused was sentenced in terms
of section
76(1), read with subsection 2 of the Child Justice Act, to a
compulsory youth care centre for a period of three years,
which is
below the statutorily prescribed minimum period of five years.
[16]
In considering whether the matter ought to be remitted to the trial
court and the proceedings should run
de novo,
the review court
needs to consider whether any undue prejudice resulted from the error
in the accused’s age, and whether,
as a result, his right to a
fair trial was infringed.
[17]
After becoming aware of the error the magistrate immediately
adjourned the proceedings and from that point onwards took every
precaution to ensure that there was due compliance with the
provisions of the Child Justice Act.
[18]
In the circumstances I am satisfied that no injustice resulted from
the error and that the proceedings were in accordance with
justice.
In any event the matter had to come
to this court on special review, not only as a result of the error
relating to the age of the
accused, but also because the accused was
sentenced to
compulsory
residence in a child youth care centre.
[19] The
conviction and sentence of the second accused, Sandiso Pepper, is
confirmed.
__________________
M HOLDERNESS AJ
I
agree, it is so ordered
__________________
R
C A HENNEY J