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[2011] ZAGPJHC 154
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Gani NO v S (H47/11) [2011] ZAGPJHC 154; 2012 (2) SACR 468 (GSJ) (14 October 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO
:
H47/11
DATE:14/10/2011
In the matter between:
AYSHA ISMAIL GANI N.O
on behalf of Ms P
S
...................................................................................................
APPLICANT
and
THE
STATE
....................................................................................................
RESPONDENT
REVIEW JUDGMENT
[1] Deeply embedded in the soul
of our nation has been the protection and appropriate care of our
children from situations of acrimonious
matrimonial dispute, wide
ranging forms of abuse, the care of orphans, child refugees and those
who clash with the law. The evolution
of penal jurisprudence
pertaining to children who have clashed with the law from ancient
times to the present is amply demonstrated
in the crucial balance
reached between the introduction of statutes and the general
discourse on the concept of the philosophy
of childhood. The
enactment of statutes such as our Bill of Rights in the Constitution
of South Africa, the Children’s Act
No 38 of 2005 and of
critical importance the Child Justice Act No 75 of 2008 (the act)
demonstrates the pinnacle reached in South
Africa on the protection
of children. South Africa is a signatory to a number of significant
international charters and conventions
thereby confirming our
consistent commitment to the welfare and protection of our children.
[2] The African Charter on the
Rights and Welfare of the Child to which South Africa is a signatory
expressly recognizes that the
“child occupies a unique and
privileged position” and needs to grow up in an “atmosphere
of understanding”.
Article 17 of this Charter specifically
provides that every child accused or found guilty of infringing a
penal law shall have
the right to appropriate treatment.
[3] The practical application of
this jurisprudence is a critical step guiding the outcome of this
review.
RELEVANT
BACKGROUND FACTS
[4] This judgement reviews the
fate of a young female offender who was under the age of 18 years
when she clashed with the law.
Although it was initially assumed that
she was 18 years of at the commencement of the trial it ultimately
transpired that she was
17 years old at the time of the offence.
Accordingly she is still a child. (See Section 1 of the act).
Unfortunately the review
file was sent to me in incomplete format. I
have established purely by chance that an application was made to the
High Court under
case number 2011/18156 by one Aysha Ismail Gani N.O.
Van Oosten J appointed her as curator ad litem and directed that the
matter
be sent for review in terms of the provisions of Section 16(2)
of the act). The application contains a number of important
procedural
facts highly relevant to the review procedure envisaged in
the act. I respectfully agree with the orders given by Van Oosten J.
[5] Since the procedural
application of the many intricate facets of the act are
res
nova
,
the appointment of
curator ad litem to young offenders and the unique and valuable role
they will play in conjunction with the young
offender’s legal
representatives in the proper implementation of procedures consistent
with our modern penal jurisprudence,
is to be encouraged and
commended.
[6] At the time of commencement
of the trial in the court a quo there was an error in the child’s
age as described above.
This fact only became known after pleading
stage. In terms of s16(3) of the act notwithstanding an error in age
if the presiding
officer finds that there is no prejudice he may
continue with the trial. Section 16 (3) provides:
“
16 (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.”
[7] In
this case it is not clear from the record what the court a quo’s
opinion was on prejudice but the matter was very properly
adjourned
for the matter to be sent for review as the child had already pleaded
guilty.
DIVERSION
F
ROM
THE CRIMINAL JUSTICE SYSTEM
[
8] It
would seem that the submission by the child’s counsel was that
she should have been diverted from the criminal justice
system. This
approach found favour and hence the stay of the proceedings in the
court a quo and referral of the proceedings to
the High Court. In the
addition the child has already found guilty and diversion from the
criminal justice system would require
a setting aside of the
conviction. Ultimately the order of review in terms of S 16(3) of the
act was granted. S 1 of the act defines
the diversion of a child
from the criminal justice system as:
'diversion' means diversion of a matter involving a
child away from the formal court procedures in a criminal matter by
means of
the procedures established by Chapter 6 and Chapter 8;”
[9] In terms of S 14(3)(a) of the
act, the age was changed on the charge sheet. The child had stolen
toiletries to the value of
R446.02 from Checkers Hyper. She
understood the charges and pleaded guilty. The facts were very
simple and it was clear that
the plea of guilty was done voluntarily.
[10] The child is a Zimbabwean
citizen and both her parents are deceased. She appears to have a
sister here in South Africa. Her
sister refused to attend court. The
child does not have a fixed address and has a previous conviction for
theft. On 15 June 2010
she was sentenced to R2000 or 4 months
imprisonment of which R500 or 1 month imprisonment was suspended for
5 years on condition
that she does not commit a similar offence. On
7 September 2010 she was released on parole. She has committed the
current offence
during the period of suspension. There is no evidence
as to what her legal status is in this country. The South African
justice
system is charged with implementing our criminal
jurisprudence whatever her residential status in this country.
[11] After entering her correct
age on the record the approach which the court a quo adopted when
considering her release or continued
detention as envisaged in terms
of section 21 and section 32 of the act was appropriate.
[12] The presiding officer from
the outset took the view that a pre sentence report was required.
Her continued detention at the
Walter Sisulu Place of Safety was
appropriate. This approach although not expressly stated by the court
a quo took account of the
objects of the act
1
.
[13] The question of diversion
from the justice system was not specifically addressed by the court a
quo when the child’s
plea of guilty was accepted. The input of
a probation officer’s report would have been helpful at the
point prior to the
plea. The failure to consider diversion from the
criminal justice is of itself a fatal factor in the conviction
process. The conviction
cannot stand. I must state however that
except for this factor the court a quo acted in a commendable manner
in making sure that
the child understood the process.
[14] This matter must be referred
back to the court a quo for consideration. Hopefully in these
circumstances there will be enough
information in the pre sentence
report which has already be requested for the fact of diversion to be
considered and assessed by
the court a quo. If not then an
appropriate report will have to be obtained to assist the court a quo
in the proper application
of the act.
[15] T
his
is the child’s second conviction. If the principle of diversion
had been applied in relation to the first charge she could
well have
been diverted away from the criminal justice system at that stage.
Two criminal convictions before reaching the age of
18 years is the
very kind of problem which the act aims to address.
[16] It
is clear in my view that the court a quo must give consideration to
diverting this child from the criminal justice system.
The
period of suspension for the first crime of theft is still current.
The curatrix ad litem may want to re-visit the first conviction
as
well in the light of this judgement.
[17] The facts in this case call
for a proper application of the guiding principle as set out in s 3
of the act and provides
“
(a)
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.”
[18] The objectives of diversion
are set out very clearly in section 51 of the act. It is now
incumbent on the criminal justice
system including the presiding
officers to give consideration to the objectives of diversion and to
remove children from the system
where appropriate. The jurisdictional
principles to be applied are clearly set out.
“
The
objectives of diversion are to—
(a)
deal
with a child outside the formal criminal justice system in
appropriate
cases;
(b)
encourage
the child to be accountable for the harm caused by him or her;
(c
)
meet the particular needs of the individual child;
(d)
promote
the reintegration of the child into his or her family and community;
(e)
provide
an opportunity to those affected by the harm to express their views
on
its
impact on them;
(f)
encourage
the rendering to the victim of some symbolic benefit or the delivery
of
some object as compensation for the harm;
(g)
promote
reconciliation between the child and the person or community
affected
by the harm caused by the child;
(h
)
prevent stigmatizing the child and prevent the adverse consequences
flowing
from
being subject to the criminal justice system;
(i)
reduce
the potential for re-offending;
(j
)
prevent the child from having a criminal record; and
(k)
promote
the dignity and well-being of the child, and the development of his
or
her
sense of self-worth and ability to contribute to society.
[19
]
In
this case the child has acknowledged responsibility for the offence
as envisaged in section 52 (1) (a)
(a)”
the
child acknowledges responsibility for the offence”.
She pleaded guilty. Although the diversion options as envisaged in
S53 may be limited as the child has no family in this country
who has
displayed an interest in her, nonetheless S 53(1) diversion options
must be considered. These may include a
“
(e)
‘‘a
reporting order’’ means an order issued in the prescribed
manner, requiring
a
child to report to a specified person at a time or at times specified
in the order
so
as to enable that person to monitor the child’s behaviour; and
(f)
‘‘a
supervision and guidance order’’ means an order issued in
the prescribed
manner,
placing a child under the supervision and guidance of a mentor or
peer
in order to monitor and guide the child’s behaviour. Or
(k)
compulsory
attendance at a specified centre or place for a specified vocational,
educational or therapeutic purpose. Presiding officers
are required
to take all relevant factors into account when selecting a diversion
option as envisaged in section 54(1) of the act
The relevant minimum
standard applicable to diversion must give consideration to the
provisions of section 54 (2) where “diversion
programmes must,
where reasonably possible—
(a)
impart
useful skills;
(b)
include
a restorative justice element which aims at healing relationships,
including
the relationship with the victim;
(c)
include
an element which seeks to ensure that the child understands the
impact
of
his or her behaviour on others, including the victims of the offence,
and
may
include compensation or restitution;
(d)
be
presented in a location reasonably accessible to the child;
(e)
be
structured in a way that they are suitable to be used in a variety of
circumstances
and for a variety of offences;
(f)
be
structured in a way that their effectiveness can be measured;
(g)
be
promoted and developed with a view to equal application and access
throughout
the country, bearing in mind the special needs and circumstances
of
children in rural areas and vulnerable groups; and
(h)
involve
parents, appropriate adults or guardians, if applicable.”
[20] The statutory introduction
by parliament of a new approach to the criminal jurisprudence
pertaining to children makes it peremptory
that provisions of the act
be applied. In these circumstances I find that the conviction should
be set aside and the process envisaged
in terms Chapters 6 and 8 of
the act be considered afresh.
The order I would make is:
The conviction is set aside and
the matter is referred back to the court a quo for proper
implementation of the relevant provision
of the act.
BY THE COURT
________________
VICTOR J
JUDGE OF THE HIGH COURT
I concur
__________________
JUDGE OF THE HIGH COURT
1
Objects
of Act
2.
The
objects of this Act are to—
(a)
protect
the rights of children as provided for in the Constitution;
(b)
promote
the spirit of
ubuntu
in
the child justice system through
(i)
fostering children’s sense of dignity and worth;
(ii)
reinforcing children’s respect for human rights and the
fundamental
freedoms
of others by holding children accountable for their actions and
safe-guarding
the interests of victims and the community;
(c)
provide
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
these children to become law-abiding and productive adults;
(d)
prevent
children from being exposed to the adverse effects of the formal
criminal
justice system by using, where appropriate, processes, procedures,
mechanisms,
services or options more suitable to the needs of children and in
accordance
with the Constitution,