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[2018] ZAWCHC 139
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S v B O; S v K P (181000; 181002) [2018] ZAWCHC 139 (2 November 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
SPECIAL
REVIEW 181000
SPECIAL
REVIEW 181002
Date
of judgment: 2 November 2018
In
the matter between
THE
STATE
V
B
O
And
THE
STATE
V
K
P
CORAM:
THULARE AJ; DOLAMO J
JUDGMENT
ON REVIEW
THULARE
AJ
[1]
Both matters were sent by the respective trial magistrates for review
after proceedings were conducted on the understanding
that the
accused were a major when the offence were committed, when in fact
and in truth the accused were children.
[2]
B O (O) elected to conduct his own defence and pleaded guilty to a
charge of wrongful possession of two bankies of dagga weighing
5.3
grams at his first appearance on 26 September 2017. The State
accepted the plea and the court in the district of Knysna found
him
guilty in terms of section 112(1)(a) of the Criminal Procedures Act,
1977 (Act No. 51 of 1977) (CPA). It was in his address
in mitigation
of sentence that he told the court that he was 17 years of age.
Although the charge sheet indicated the age of the
accused as 17, the
Prosecutor had indicated to the magistrate that information at the
State’s disposal gave his age at 18.
[3]
The matter was postponed for the determination of the correct age of
the accused and he was released on warning. A copy of the
accused’s
identity document was subsequently availed to the court a quo and it
was determined that the accused was indeed
17 years of age. The
accused was referred for assessment for purposes of diversion. The
record reflects that a preliminary enquiry
was held on 31 October
2017. He was placed under a programme following a supervision and
guidance order made by the magistrate
on 28 March 2018. The
matter was then submitted for review.
[4]
In the second matter, K P (P) was arraigned together with two others
in the Regional Court in Parow and was found guilty of
murder, three
counts of attempted murder, one count of unlawful possession of
firearms and one count of unlawful possession of
ammunition. He was
sentenced to fifteen (15) years imprisonment on the count of murder,
five (5) years imprisonment on each count
of attempted murder, five
(5) years imprisonment on the count of unlawful possession of
ammunition and six (6) months imprisonment
on the count of unlawful
possession of ammunition. Count 5 and 7 were ordered t run
concurrently with the sentence on count 4 and
the sentences on count
8 and 9 were ordered to run concurrently with the sentence on count
1. The accused was also deemed unfit
to possess a firearm.
[5]
P’ legal representative had requested a probation officer’s
report for purposes of sentencing. The following discussion
between
the court and Mr Smith on behalf of P appears on record in respect of
the probation officer’s report:
“
MR SMITH: I
have received the report, Your Worship. I’ve read through it,
Your Worship, and there’s certain aspects
in the report that
I’m not particularly happy with, Your Worship. I’ve
consulted … (intervention).
COURT: What are you
not happy with?
MR SMITH: They’re
saying the age of the accused, now I spoke to the family and the
family says that the age does not reflect,
the age on the report does
not reflect the same age as his birth certificate, Your Worship.
COURT: I mean if he
was 21 in 2016, what was he in 2016, how old was he?
MR SMITH: 18,19.
COURT: He’s 23
now.
MR SMITH: So it’s
probably 20, 21, round about that age.
COURT: Ja, was 21.
This is what the report is saying and this is what the docket is
saying and the report was compiled from the
information given by the
accused as well as the family.
MR SMITH: (Indistinct)
If I can just turn my back to you for one second, Your Worship.
COURT: Ja, he knows
his age, he must tell you the correct age. He knows he was born …
(Intervention).
MR SMITH: (Indistinct)
clarify one issue with him, Your Worship.
COURT: … he was
born in 1995 […] April.
MR SMITH: Court
please, Your Worship.
COURT: Yes, he confirm
the age?
MR SMITH: He confirms
it, Your Worship.
COURT: […]
April 1995, 23 years. It means he was 20 … (intervention).
MR SMITH: I will have
to then accept the report’s age which he is averring to, Your
Worship.”
[6]
The statement of the magistrate to the review judge reads as follows
at paragraphs 3 and 4:
“
3. A week after
the sentencing of the accused, it came to my attention that the age
that the accused provided was incorrect and
he was in fact born on
the 26/04/1999. A copy of the accused’s birth certificate was
provided to me as proof.
4. It is now clear
that when the offences were committed the accused was still under the
age of 18 years and therefore a minor.
Had this information been
before court when it sat, it would have sat as a Child Justice Court
as provided by the
Child Justice Act 75 of 2008
. I am also of the
view that the accused would have been sentenced differently. The
provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
would not have been applicable to the accused had his correct
age been brought to the attention of the court. The accused
apparently
also provided the wrong date of birth to the probation
officer.”
[7]
The two cases, and a number of other reviews considered in this
Division for the same reasons, in my view, clearly indicated
that the
terminology employed in
section 12
,
13
and
14
in
Part 3
of Chapter 2
of the Child Justice Act, 2008 (Act No. 75 of 2008) (CJA) were not
being interpreted and applied in the
best interests of
children.
[8]
The relevant provisions of section 12, 13 and 14 read as follows:
“
12
Responsibility of police official where age of child is uncertain
If a police official
is uncertain about the age of a person suspected of having committed
an offence but has reason to believe that
–
(a)
The person may be a child under the age of
10 years, the official must act in accordance with the provisions of
section 9; or
(b)
The person may be a child who is 10 years
or older but under the age of 14 years, or a child who is 14 years or
older but under
the age of 18 years, the police official must treat
the person as a child with due regard to the provisions relating to-
(i)
Arrest in terms of Chapter 3; or
(ii)
Release or detention in terms of Chapter
4, and, in particular, section 27 relating to placement options
before a child’s
first appearance at a preliminary inquiry,
until a probation officer or medical practitioner has expressed an
opinion on the age
of the person or until the determination of that
person’s age at the preliminary inquiry or child justice court,
after which
the police official must treat the person in accordance
with the opinion or determination.
13 Age estimation by
probation officer
(1)
If, during an assessment of a child in
terms of Chapter 5, the age of a child, at the time of the commission
of the alleged offence,
is uncertain, the probation officer must make
an estimation of the child’s age and must complete the
prescribed form.
14. Age determination
by inquiry magistrate or child justice court
(1) If, during a
preliminary inquiry or during proceedings before a child justice
court, the age of a child at the time of the commission
of the
alleged offence is uncertain, the presiding officer must determine
the age of the child.”
[9]
Section 12 envisages that a police official should have information
on which such official is able to firmly rely on in respect
of what
was the correct age of the youngster. It envisages an investigation
by the police official which produced evidence upon
which the police
official would be completely convinced of the right age of the
youngster. It envisages the police official entering
the age of the
youngster on record as a true fact.
[10]
In my view, the section envisaged that where a police officer
arrested a youngster, the police officer should treat such youngster
as a child unless the police officer is satisfied that some factual
or medical basis existed for him or her to be certain that
the person
is not a child. In the absence of the state of being certain of the
age, the youngster should be treated as a child
by the police
official. The arresting officers and the investigating officers
in both matters clearly failed the two children.
Contrary to the
provisions of the section, where there was no certainty as to the age
of the youngsters, they were treated as adults.
[11]
I understand the obligation imposed by section 14 of the CJA on the
inquiry magistrate or child justice court to be that where
the age of
the youngster is unknown, is based on unreliable evidence or cannot
be precisely determined, the presiding officer should
hold an enquiry
and determine the age of the youngster. The age determined after such
enquiry is deemed to be the age of the youngster.
The age so
determined can only be substituted by evidence of the age of the
youngster to the contrary. Clearly, the presiding officers
before
whom the youngsters made their first appearance, did not enquire as
to the age of the children, and therefore failed to
protect the
children.
[12]
Unless magistrates are deliberate in their approach to child justice,
children will enjoy special protection on paper only
and not in
practice, fact and in deed. Our laws will remain paper tigers with no
teeth to bite away children’s vulnerability
in a criminal
justice system meant for adults. The criminal justice system would
not pave a way for children to move to the child
justice courts and
they would remain within the mainstream of the criminal justice
system and continue to be dealt with like adults.
[13]
Section 14 of the CJA calls for a paradigm shift. It envisages a
change of mindset and alertness to the judicial officer as
regards
the distinction between an adult and a child. At entry level, at the
first appearance of every youngster, the presiding
officer has a duty
to determine whether the accused before him or her is a child or not.
In my view, section 14 (2) of the CJA
envisages an enquiry into the
age of every youngster who appears, for the presiding officer to
determine the age of the person
so appearing, for it is at this
point that the trajectory of the forum for trial is determined.
[14]
As regards O, the central feature of the inquisitorial nature of a
preliminary enquiry, and the facility of that feature to
dispose of
such minor misdemeanours by allowing for diversion of such matters
out of criminal proceedings and the risk of a criminal
record during
childhood, was denied him at the inception of the proceedings
.
I am satisfied that the magistrate was correct in her
view that the error regarding the age of the child caused prejudice
to the
child during the proceedings in question and correctly caused
the matter to be transmitted for review –[section 16(2) of
CJA]. In my view, the conviction of the child, under the
circumstances, should not be allowed to stand. On the face of it, had
the accused been dealt with in accordance with the CJA, he would in
all probability have been diverted. Furthermore, in terms of
section
83 of the CJA, he would have had legal representation, and would have
been advised on the appropriate way to deal with
the charges against
him.
[15]
As regards P, there was a departure from the formalities, rules and
principles of procedure which the law requires that the
trial of a
child should be initiated and conducted under as envisaged in the
CJA. An irregularity occurred in the trial of the
child. Having
considered the record of proceedings, I am unable to come to a
conclusion that P was tried unfairly. I am unable
to conclude that a
failure of justice has in fact resulted from such irregularity
leading to his conviction. In my view, the case
against him was
proved beyond reasonable doubt and there was no resultant failure of
justice – [
S v Felthun
1999
(1) SACR 481
(SCA) at p. 485g -486a].
[16]
The position is different as regards sentence. A child must be
sentenced in accordance with Chapter 10 of the CJA. P was not
sentenced in accordance with the Chapter. Furthermore, he would have
benefited from the provisions as regards minimum sentences
as regards
children as envisaged in the Criminal Law Amendment Act, 1997 (Act
No. 105 of 1997). In my view, the irregularity of
a departure from
the formalities, rules and principles applicable to sentencing
children resulted in a failure of justice leading
to the
inappropriate sentences imposed.
[17]
In my view, probation officers are not helping much in the process of
individualisation, which is calculated to ensure a comprehensive
image of the social, personal and psychological background of accused
persons, especially children. An interview with the child
and a few
minutes with its mother alone can never amount to a thorough research
with regard to the person, character and environment
of the child
sufficient to gain a deeper understanding of the child. In the case
of P, the probation officer was unable to investigate
and truthfully
report on something as elementary as the correct age of the child, in
circumstances where a birth certificate of
the child was available.
[18]
For these reasons, I would make the following order:
(a)
The conviction of B O is set aside.
(b)
The sentences imposed on K P are set aside.
(c)
The matter of K P is remitted back to the
magistrate for consideration of sentence as envisaged in Chapter 10
of the
Child Justice Act, 2008
.
…………………………………………………………
.
DM THULARE
ACTING JUDGE OF THE HIGH
COURT
I
agree and it is so ordered
…………………………………………………………
.
MJ
DOLAMO
JUDGE
OF THE HIGH COURT