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South Africa: South Gauteng High Court, Johannesburg
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[2013] ZAGPJHC 229
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S v N (57/2013) [2013] ZAGPJHC 229; 2014 (1) SACR 266 (GSJ) (5 September 2013)
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IN THE SOUTH GAUTENG HIGH
COURT JOHANNESBURG
HIGH COURT REF: 57/2013
DATE: 05/09/2013
REPORTABLE
In
the matter between:
THE
STATE
And
S.I.N
Accused
JUDGMENT
VICTOR,
J:
[1] This matter concerns
the diversion of children from the criminal justice system. On 4
March 2013 the accused was convicted of
theft of three Cadbury
chocolate bars from Pick n Pay with a total value of R59, 97.
[2] During mitigation of
sentence it was ascertained that the accused was 16 years old. The
magistrate set aside his conviction
and noted a plea of not guilty.
The matter came by way of review and Tshabalala J made the comment on
27 May 2013 that the magistrate
should have first referred the matter
for review after realising the error and before reversing the
verdict.
[3] At the time of
commencement of the trial in the court a quo there was an error in
the child's age. This fact only became known
after conviction stage.
[4] In terms of the Child
Justice Act No 75 of 2008 (the act) the child must attend a
preliminary enquiry to assess whether the
child can be diverted form
the criminal justice system. The magistrate directed that the child
be sent ot Protea Magistrate’s
court for this assessment.
[5] The appropriate
procedure is for this court to set aside the conviction as the step
by the court a quo to change the plea to
not guilty was a nullity.
[6] All the proceedings
before the court a quo are set aside.
M VICTOR
JUDGE OF THE SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
I
agree:
NONYANE AJ
JUDGE OF THE SOUTH
GAUTENG HIGH COURT, JOHANNESBURG