About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 10
|
|
S v K.D (B541/2020) [2021] ZAWCHC 10; 2021 (1) SACR 675 (WCC) (2 February 2021)
In the High Court of
South Africa
(Western Cape
Division, Cape Town)
Case
No: High Court Ref No. 12/21
Magistrate’s
Serial No: 01/2020
Case
No. B541/2020
In
the matter
between:
THE
STATE
and
KD Accused
JUDGMENT
LEKHULENI
AJ
INTRODUCTION
[1]
This case comes before me by way of review in terms of section 85 of
the Child Justice
Act (“
the CJA”
)
read with Chapter 30 of the Criminal Procedure Act 51 of 1977 (“
the
CPA”
). The accused is a child
offender who was 14 years old at the time of the commission of the
offence and was 15 years at the time
of sentencing. He was convicted
on the 26 November 2020 by the District Court sitting at Strand on a
charge of Possession of a
Firearm in contravention of section 3 read
with Schedule 4 and section 151 of the Firearms Control Act 60 of
2000 (“
the Firearm’s Control
Act”
). He was subsequently
sentenced to 12 months compulsory residence in a child and youth care
center providing programs referred
to in section 191(2)(j) of the
CJA.
This
matter is subject to automatic review in terms of the provisions of
section 85 of the CJA. E
ssentially,
this court is enjoined to consider whether the proceedings before the
trial magistrate appear to be in accordance with
justice.
FACTUAL BACKGROUND
[2]
The state alleged that upon or about 25 June 2019 and at or near 11
th
Street Strand the accused did unlawfully have in his possession a
Gecado Revolver without holding a licence, permit or authorization
issued in terms of the
Firearms Control Act to
possess that firearm.
The accused was legally represented by an attorney and assisted by
his mother throughout the proceedings.
He pleaded guilty to the
charge and made a statement in terms of
section 112(2)
of the CPA
upon which his plea was based.
[3]
The facts gleaned from his statement were that on the 25 June 2020
(sic) (should be
2019) he was walking on the Eleventh Street in
Strand on his way to a shop. He knew that it was dangerous in the
area and he had
the Gecado Revolver with serial number 399725 in his
possession. He kept the said firearm in his waist. He received the
firearm
from a friend and took it for safe keeping. Whilst walking to
the shop, he saw a police van which was patrolling the area and he
ran away and this raised suspicion. The Police caught him, searched
him and found the firearm in his possession. He did not have
a
licence or permit to possess the firearm in question.
[4]
The accused confirmed the contents of his statement. The accused was
subsequently
convicted as charged. The Probation Officer Mr E Smith
compiled a pre-sentence report. In his report, the Probation Officer
alluded
to the fact that the accused was a first offender. His
parents are not married. The accused’s parents lived together
until
2014 when they separated. The accused and his mother moved in
to live with his maternal family. The accused however has a good
relationship with his father. The accused was enrolled at Gordon
Senior Secondary School and was in Grade 9 until May 2019 when
he
absconded from school out of his own free will. The accused consumes
alcohol on social basis after being introduced to substance
by his
friends. The Probation Officer recommended that the court sentence
the accused to compulsory residence in terms of
section 76(1)
of the
CJA. The Probation Officer also recommended that if the court was
inclined to impose such a sentence, the accused should
among others,
attend life orientation programs, academic and vocational programs.
[5]
Following these recommendations, the court subsequently sentenced the
accused in terms
of
section 76(1)
of CJA to compulsory residence at
Horrison child and youth care center for a period of 12 months. In
terms of
section 76(4)(b)
of the CJA, the court further ordered that
the order must be brought to the attention of all relevant
functionaries in the prescribed
manner. The Court also ordered that
the head of the child and youth care center Morne Johnson, must on
the child’s completion
of the sentence, submit a report to the
Child Justice Court which imposed the sentence, containing his or her
views on the extent
to which the relevant objectives of sentencing
referred to in
section 69
have been achieved and the possibility of
the child’s reintegration into society without serving the
additional terms of
imprisonment not later than six weeks before the
child completes his or her sentence. In terms of
section 103(2)
of
the
Firearms Control Act, a
consequential order was made to the
effect that the accused is unfit to possess a firearm.
[6]
The record of proceeding was transmitted and received by this court
on 25 January
2021. After perusing the record, I was concerned with
the sentence imposed by the learned magistrate as well as the
ancillary order
made. In particular, I was concerned w
hether
the court in sentencing the accused complied with the provisions of
Chapter 10 of the CJA, in particular, if there was
compliance
with
section
69(1)(a
-e)
and
section
69(3)
.
I was also concerned whether the court considered other sentencing
options enshrined in sections 72, 74 and 75 of the Child Justice
Act.
I was also deeply troubled with the ancillary order made by the
magistrate in terms of
section 103(2)
of the
Firearms Control Act.
>
ANALYSIS
AND APPLICABLE LEGAL PRINCIPLES
[7]
It has often been said that children are the souls of our society and
if we fail them
we have failed as society.
Section 68
of the CJA
provides that a Child Justice Court must after convicting a child,
impose a sentence in accordance with this chapter
(chapter 10). In
S
v LM
2013
(1) SACR 188
(WCC)
at para 19, the c
ourt
referred to Chapter 10 of the CJA and stated that ‘it is
clear from the above provisions that the CJA creates a
separate and
distinct system of criminal justice for children, the legal
mechanisms and processes of which may indeed be different
from those
set out in the CPA.’
Section 69
of the CJA sets out the
objectives and factors that has to be considered by a court in
sentencing a child offender. One of the
prominent objectives in this
section is the
use
of imprisonment only as a measure of last resort and only for the
shortest appropriate period of time. In terms of
section 71(1)
of the
CJA a
Child
Justice Court must request a pre-sentence report prepared by a
Probation Officer unless the child has been convicted of a
Schedule 1
offence, or where the requiring of such a report would cause undue
delay.
[8]
As explained above, this has been complied with. A Probation
Officer’s
report was filed and marked as an exhibit in the
record of proceedings.
The
Probation Officer noted in her pre-sentence report that the accused
is a first offender, still young and vulnerable. He
also noted
that the accused takes responsibility for the offence committed. He
noted that the offence is of a serious nature and
that the court
needs to strike a balance between the circumstances of the accused,
the nature of the offence and the interest of
the community, but also
show mercy. In her report the Probation Officer only considered two
sentencing options, namely a suspended
sentence and a sentence of
committal to a child and youth care center. In his view, a suspended
sentence was not a suitable sentence
for the accused. He did not
consider other sentencing options. I must say with respect that the
report of the Probation Officer
in this regard is very perfunctory
and desultory. The report is not well-considered or motivated on the
question of sentence.
[9]
Unfortunately, the learned magistrate went along with the
insufficient recommendations
of the Probation Officer without
conducting an inquiry in terms of
section 69(1)(a)
to (e) and
69
(3)
of the CJA. It seems to me the court was overwhelmed by the
submissions of the prosecutor that a longer period of incarceration
will be to the benefit of the accused’s mother as she will not
have to struggle with disciplining the accused and that this
will
give the accused an opportunity to attend to programs at the child
and youth care centre.
[10]
In
S
v S
2016
(1) SACR 584
(WCC),
the
court emphasised the importance of
sections 69
of the CJA and stated
that in applying the CJA a court must adhere to ordinary
considerations relating to sentencing, such as the
triad and the
aims of punishment (deterrence, rehabilitation, prevention and
retribution). The court stressed the fact that
a Child Justice Court
should consider the objectives of sentencing in terms of
section
69(1)
of the CJA namely, it should firstly encourage the
child to understand the implications of, and be accountable for the
harm caused. Secondly, it should promote an individualized
response which strikes a balance between the circumstances of the
child, the nature of the offence and the interests of
society. Thirdly, it should promote the reintegration of the
child
into the family and community. Fourthly, it should ensure
that any necessary supervision, guidance, treatment or services which
form part of the sentence assist the child in the process of
reintegration. Lastly, the Court should use imprisonment
only as a measure of last resort and only for the shortest
appropriate period of time. The court went on to say that a court
should
during the sentencing stage consider and address each of these
objectives, as set out in s 69(1) of the Act.
[11]
It is regrettable that the court
a
quo
did not conduct an inquiry as required by these provisions. The court
did not even consider the provisions of section 69(3)
[1]
when it imposed the sentence. The court was persuaded by the report
of the Probation Officer and overlooked the peremptory provision
of
section 69. It must be stressed that the court was not bound by the
deficient recommendations of the Probation Officer in his
pre-sentence report. Imposing a sentence is a judicial function,
which
cannot be abdicated to another authority.
It
is also trite that t
he
essence of the judicial function is the determination of a sentence.
The process requires this to be done by a Judge.
Sibiya
v Director of Public Prosecutions, Johannesburg
2006
1 SACR 220
(CC) para 41. In
Centre
for Child Law v Minister of Justice and Constitutional Development
2009 2 SACR 477
(CC) para 85
the
Constitutional Court observed that ‘our Constitution, envisages
that sentencing is a judicial function and that this function
will be
performed by the courts and only the courts’.
The
CJA is alive to this judicial injunction. Section 71(4) of the CJA
provides:
‘
A
child justice court may impose a sentence other than that recommended
in the pre- sentence report and must, in that event, enter
the
reasons for the imposition of a different sentence on the record of
the proceedings.’
[12]
The court
a qou
did not at all consider alternative sentencing options but only had
the committal of the accused to a child and youth care centre
as the
only available option at its disposal. It is not clear why the
accused is not a suitable candidate for community based
sentence or
for correctional supervision in terms of sections 72 and 75
respectively of the CJA. It is also not clear why a fine
or an
alternative to a fine was not a suitable sentence. These sentencing
options could have been clarified if the court conducted
the
necessary inquiry in terms of section 69. More importantly, from the
record, it appears the recommendations of the Probation
Officer were
unclear and imprecise to the court and the court had to ask the
prosecutor to come to his assistance. In my view,
the court could and
should have called the Probation Officer to present oral evidence and
to engage him on the suitability of the
accused in respect of other
sentencing options.
[13]
It is my considered view that the committal of the accused to 12
months compulsory residence
in a child and youth care centre under
these circumstance is startlingly inappropriate and evokes a sense of
shock. As noted by
the Probation Officer, the accused is still young
and vulnerable and deserved individualised protection. He was a first
offender.
He was found in possession of a firearm. He did not use the
firearm to commit an offence. Gleaned from the record, it seems to me
that the only reason the court below sentence the accused to 12
months compulsory residence at the child and youth care centre
was to
keep him away from his family in particular his mother as she
struggles to discipline him. In my opinion, the provision
of section
28 of our Constitution underscores the paramountcy of minor children
and courts must take cognisance of this provision
when dealing with
children in conflict with the law.
Section
28(1)(g) of the Constitution provides that:
‘
Every
child has the right – not to be detained
except
as a measure of last resort
, in which
case, in addition to the rights a child enjoys under sections 12 and
35, the child may be detained only for
the
shortest appropriate period of time …
’
.(Emphasis
added)
[14]
In
S v B
2006 (1) SACR 311
(SCA) at para 20, the Supreme Court of appeal noted
that ‘In sentencing a young offender, the presiding officer
must be guided
in the decision-making process by certain principles,
including: the principle of proportionality; the best interests of
the child;
and the least possible restrictive deprivation of the
child's liberty, which should be a measure of last resort and
restricted
to the shortest possible period of time.’
[15]
In
casu
,
the presiding magistrate considered the aims of punishment and
briefly referred to the triad in his judgment on sentence.
However,
he did not, as required, state whether he considered other sentencing
options as set out in 69 of the CJA. I
n
my view, the presiding magistrate failed to heed this judicial
injunction and therefore committed a material misdirection which
demands interference by this court. It cannot be said in the
circumstances that a period of 12 months at a child and youth care
centre was a measure of last resort and that it is the shortest
possible period of time for the incarceration of the accused. In
my
view, the court
a quo
should
have conducted an inquiry in terms of section 69 and considered the
sentencing options provided for in chapter 10 of the
CJA. In my
judgment, the sentence imposed by the magistrate is not in accordance
with justice and should be set aside.
[16]
The final issue that requires consideration before I conclude is the
ancillary order made by
the trial court. The court
a
quo
made an order to the effect that in
terms of
section 103(2)
of the
Firearms Control Act, the
accused is
unfit to possess a firearm. In my view, this order is legally
incompetent. The relevant section of the
Firearms Control Act
applicable
in this matter is
section 103(1)
and not 103(2). In terms
of
section 103(1)
, unless the court determines otherwise, a person
convicted of an offence set out in
section 103(1)(a)
- (o) becomes
unfit to possess a firearm. The default position of this section is
that of unfitness to possess a firearm unless
the court, having
regard to relevant facts and circumstances, determines otherwise. The
accused in this case was convicted for
unlawful possession of a
firearm listed in
section 103(1)(a).
The unfitness to possess a
firearm operated
ex lege
upon conviction.
[17]
Notwithstanding,
section 103(2)
of the Fir
earm
Control Act provides as follows:
‘
(a)
A court which convicts a person of a crime or offence referred to in
Schedule 2 and which is not
a crime or offence contemplated in
subsection (1), must enquire and determine whether that person is
unfit to possess a firearm.
(b)
If a court, acting in terms of paragraph (a), determines that a
person is unfit to possess
a firearm, it must make a declaration to
that effect.’
[18]
In terms of this section, a court must enquire and determine whether
a person convicted of a
crime listed in schedule 2 is unfit to
possess a firearm.
Section
103(2)
(a)
of
the
Firearms Control Act makes
it mandatory for the court
seized of the matter to conduct such an enquiry and based on such
enquiry, to determine whether
a declaration of unfitness is
appropriate.
S
v Smith
2006 (1) SACR 307
(W) at para 8. An enquiry in terms of
section
103(2)(a)
is peremptory where an accused has been convicted of a
crime or an offence detailed in paragraph 7(c) of Schedule 2, in
respect
of which the accused has not been sentenced to a term of
imprisonment without the option of a fine.
S
v AR & Others
2020 (1) SACR 580
(WCC).
[19]
During the inquiry the presiding officer is expected to ask relevant
questions to establish whether
the conduct of the accused and/or the
circumstances surrounding the commission of the offence merits taking
away the accused's
right to possess a firearm. In this case, the
learned magistrate was informed that the accused may want t
o
be a police officer when he is old. The court subsequently made an
order in terms of
section 103(2).
The inquiry if any, in this matter
was cursory and carried out without real interest.
[20]
More importantly, the CJA distinguishes imprisonment from a sentence
of compulsory residence
at a child and youth care centre.
Sections
76(1)
and
76
(3)(a)(i) and (ii) set out a clear distinction between
the two sentencing options.
Section 76(1)
provides for a
sentence to be served at a child and youth care centre and not for a
sentence of imprisonment to be served at such
a centre.
A
v S
[2016] ZANCH 5 at para 11. To this
end, I agree with the views expressed in
S
v AR & Others
, where the court
stated that having regard to the provisions of
section 76(3)(a)
of
the CJA the sentence of compulsory residence at a child and youth
care centre does not constitute a sentence of imprisonment
for
the purposes of
section 103(1)
or
section 103(2)
since the CJA
clearly differentiates between imprisonment and compulsory residence
and that this is apparent from the fact
that the Act empowers a court
to impose, in addition to a sentence of compulsory residence, a
sentence of imprisonment to be served
after completion of the period
of compulsory residence.
[21]
From the above, it is abundantly clear that the trial magistrate was
incorrect when he made an
order in terms of
section 103(2)
of the
Firearms Control Act. This
finding does not accord with the
provisions of
section 103(2)(b)
of the
Firearms Control Act and
the
interests
of justice demand that this order should be set aside. In any event,
I am of the view that the accused was still young
and vulnerable when
he committed the offence and that it was not in the interest of
justice in these circumstances to make such
order in terms of
section
103(1)
or
103
(2).
ORDER
[22]
In the result, the following orders is granted:
1.
The conviction of the accused is in
accordance with justice.
2.
The sentence imposed by the magistrate is
hereby set aside.
3.
The accused is sentenced to six months
imprisonment which is wholly suspended for a period of three years on
condition the accused
is not found guilty of possession of a firearm
committed during the period of suspension.
4.
The order in terms of
section 103(2)
of the
Firearms Control Act is
hereby set aside.
5.
No order is made in terms of
section 103(1)
of the
Firearms Control Act.
>
___________________________________
LEKHULENI AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered:
___________________________________
HENNEY J
JUDGE
OF THE HIGH COURT
Date
of Judgment: 2 February 2021
[1]
Section
69(3)
, of the CJA enjoins courts when
considering
the imposition of a sentence involving compulsory residence in a
child and youth care centre in terms of
section 76
, a child
justice court must, in addition to the factors referred to in
subsection (4) relating to imprisonment, consider
the following into
account:
(a) whether the offence
is of such a serious nature that it indicates that the child has a
tendency towards harmful activities;
(b) whether the harm
caused by the offence indicates that a residential sentence is
appropriate;
(c)
the extent to which the harm caused by the offence can be
apportioned to the culpability of the child in causing or risking
the harm; and (d) whether the child is in need of a particular
service provided at a child and youth care centre.