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[2012] ZAECPEHC 22
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S v Stander (120037) [2012] ZAECPEHC 22; 2012 (1) SACR 595 (ECP) (30 March 2012)
15
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
CA&R:
Review no:
120037
Date
delivered: 30.3.2012
In the matter between:
S
vs
C S
REVIEW JUDGMENT
SUMMARY- This review is
about the interpretation of
section 85
of the
Child Justice Act 75 of
2008
. It has been sent to me for,
inter alia
, a determination
of whether or not the proceedings in respect of a child who was
legally represented during his or her trial are
reviewable in terms
of the above Act. Decisions from other High Court divisions are
conflicting on this issue.
We have ruled that such
proceedings are reviewable and therefore this judgment should be a
source of guidance for the sake of uniformity
in our division. The
record is returned herewith to the Port Elizabeth Magistrate’s
Court.
TSHIKI J:
A) INTRODUCTION
[1] This case comes
before me by way of review in terms of
section 85
of the
Child
Justice Act (the
CJA)
1
.
According to the magistrate’s note, which accompanies the
record of the proceedings before the Port Elizabeth magistrate
Mr
D.L. Bender, the latter is of the view that the proceedings before
him should not be subject to review in terms of the CJA.
This is so,
continues the note, for the reason that the minor child was legally
represented during the criminal proceedings
before him. The
magistrate has requested this Court to make a determination on
whether or not proceedings of the same nature where
the minor accused
has been legally represented should be subject to review in terms of
section 85
of the CJA.
B) FACTS
[2] The accused herein
was charged in the Magistrate’s Court, Port Elizabeth, with two
counts, the first one of using a motor
vehicle without the consent
of the owner in contravention of the provisions of
section 66(2)
read
with
section 89(1)
of the
National Road Traffic Act 93 of 1996
. The
second count was housebreaking with intent to steal and theft. He
was legally represented by an attorney, pleaded guilty
and was
subsequently convicted on both counts. Both counts having been taken
together for the purposes of sentence he was sentenced
in terms of
section 76(1)
read with
section 71(3)
of the CJA as follows:
“
It is ordered that the
convicted child being under the age of eighteen years be sent to
Bhisho Child and Youth Care Centre for compulsory
residence for a
minimum period of two (2) years and that a programme referred to in
sec 191(2)(i)
of the Children’s Act be provided for.
In terms of
sec 4(a)
Act 75/2008 the
court orders that the child must be taken in the prescribed manner to
the Bhisho Child and Youth Care Centre as
soon as possible but not
later than one month after this order was made.
In terms of
sec 4(b)
Act 75/2008 the
court further orders:
The order must be brought to the
attention of all relevant functionaries in the prescribed manner.
The child must be placed at
Enkuselweni being a child and youth care [c]entre as referred to in
sec 191(2)(h)
of the Children’s Act pending his removal to
Bhisho Child and Youth Care Centre.
The court orders that Mr AH Heilbron
being a probation officer to monitor the movement of the child to
Bhisho Child and Youth
Care Centre and to report to the court in
writing once the child has been admitted to the centre.
The court finds that the age of the
convicted child is 17 years attained on 9 December 2011.”
[3]
Section 85
of the Act
provides:
“
85 Automatic review in
certain cases
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 was, at
the time of the commission
of the alleged offence –
under the age of 16 years; or
16 years or older but under the age
of 18years, and has been sentenced to any form of imprisonment that
was not wholly suspended,
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 the duration of the
sentence.
The provisions of subsection (1) do
not apply if an appeal has been noted in terms of section 84.”
[4] The child in question
in the present case has been sentenced in terms of section 76 of the
CJA which provides:
“
76 Sentence of compulsory
residence in child and youth Care Centre
A child justice court that convicts a
child of an offence may sentence him or her to compulsory residence
in a child and youth
care centre providing a programme referred to
in section 19(2)(j) of the Children’s Act.
A sentence referred to in subsection
(1) may, subject to subsection (3), be imposed for a period not
exceeding five years or
for a period which may not exceed the date
on which the child in question turns 21 years of age, whichever date
is the earliest.”
[5] It follows from the
provisions of section 85 of the CJA that the section deals with two
categories of convicted children. The
first category refers to
children under the age of 16 years and the second category applies to
children who are 16 years or older
but under the age of 18 years and
has been sentenced to any form of imprisonment that was not wholly
suspended, or any sentence
of compulsory residence in a child and
youth care centre. In respect of the first category of children
the provisions of section
85(1) apply automatically irrespective of
the nature of the sentence. With respect to the second category the
child referred to
therein must have been sentenced in terms of
section 76(2) of the CJA whose provisions are detailed in para 4
supra.
In both categories the sentence is automatically reviewable
in
terms of section 304
.
[6] The child in the
present case falls within the second category provided for in terms
of subsection (1)(b) of section 85 of the
CJA.
[7] The concern of the
magistrate who has requested this Court to provide clarity, and for
the sake of uniformity, is whether the
above provisions dealing with
review of sentences apply to a child who was legally represented at
the trial.
[8] It should be noted
that the automatic review of proceedings herein is triggered not by
the application of section 302 of the
Criminal Procedure Act
2
(the CPA) but by the provisions of section 85(1) of the CJA quoted
supra
.
[9] Section 304 of the
CPA deals specifically with the procedure on review which must be
adopted by the Judge when he or she is
reviewing the record of the
proceedings of the case which was heard before the magistrate or any
Court referred to in the CJA.
The section provides:
“
304 Procedure on review
If, upon considering the proceedings
referred to in section 303 and any further information or evidence
which may, by direction
of the judge, be supplied or taken by the
magistrate’s court in question, it appears to the judge that
the proceedings
are in accordance with justice: or that doubt exit
whether the proceedings are in accordance with justice, he shall
endorse
his certificate to that effect upon the record thereof, and
the registrar concerned shall then return the record to the
magistrate’s
court in question.
(a) If, upon considering the said
proceedings, it appears to the judge that the proceedings are not in
accordance with justice
he shall obtain from the judicial officer
who presided at the trial a statement setting forth his reasons for
convicting the
accused and for the sentence imposed, and shall
thereupon lay the record of the proceedings and the said statement
before the
court of the provincial or local division having
jurisdiction for consideration by that court as a court of appeal
...”
Section 304, therefore,
does not sanction the review of the sentence imposed in terms of
section 85 of the CJA as is the case in
review judgments in terms of
section 302 of the CPA, but it provides for the procedure to be
adopted when the case has been referred
to for review in terms of
section 85 of the CJA.
[10] In my view, legal
representation of a child who appears before a Child Justice Court is
compulsory, if not peremptory. It
seems to me that when the
legislature enacted the provisions in terms of section 85 of the CJA
it also had in mind the provisions
of section 83 of the CJA which
provide:
“
83 Child may not waive legal
representation in certain circumstances
No child appearing before a child
justice court may waive his or her right to legal representation.
If a child referred to in subsection
(1) does not wish to have a legal representative or declines to give
instructions to an appointed
legal representative the court must
enter this on the record of the proceedings and a legal
representative must, subject to the
provisions of the Legal Aid
Guide referred to in section 3A of the Legal Aid Act, 1969 (Act 22
of 1969), be appointed by the
Legal Aid Board to assist the court
in the prescribed manner.”
[11] It is apparently
clear from the provisions of the above section that it is compulsory
for a child to be legally represented
during the trial before the
Child Justice Court. Therefore, a legal representative will be
appointed for the child accused even
if he or she refuses to be
legally represented, and this is done in the interests of justice
for the purposes of assisting the
Court with a view to protect the
interests of the child in question. Invariably, the appointed legal
representative would represent
the child in question.
[12] Although it may
appear from some of the relevant sections of the CJA that the Act
itself has not been clearly drafted, in
order to get the true
meaning of the statute or some of its sections, one has to have
regard to the provisions of the whole Act.
The object of
interpretation is to understand the meaning of operative sections in
a statute and this may be achieved by reading
the statute as a whole.
And such reading being merely a step in the process of
interpretation
3
.
[13] Having had the
provisions of section 83 in mind the drafters of the CJA still make
emphasis on the automatic review of certain
cases as provided for in
section 85(1) of the CJA. Although there is nothing to suggest that
the proceedings before the regional
court where the child accused is
being tried are reviewable, it appears from the context that such an
intention can be gleaned
from the sections of the CJA
4
.
[14] Due to lack of
wisdom and maturity a child accused can make blunders in the manner
in which he or she instructs his or her
legal representative. The
legal representative may as well lack the necessary experience and
therefore may find himself or herself
floundering in the process of
representing the child accused. It is for that reason and others,
that the legislature saw it fit
to ensure the proper application of
the administration of justice by not only making provision for the
child’s legal representation
to be in Court for the benefit of
the child, but to have such proceedings reviewed even in cases where
the child is legally represented.
The purpose for the legislation is
to protect the child from the ills of either ignorance, or
immaturity, and to ensure the proper
administration of justice in all
criminal trials which involve the child accused. The High Court is
and will always be regarded
as the upper guardian of all children
whose interests the High Court should jealously protect
5
.
[15] I also endorse the
suggestion that it is important to note the distinction drawn between
a review of criminal proceedings of
lower courts in accordance with
Chapter 30 of the CPA which applies in all instances referred to in
the main part of section 85
of the CJA, and the review of any
sentence referred to in the
proviso
to section 85(1) of the CJA. The fact that all appeals involving a
child accused are automatically noted without having to apply
for
leave to appeal in terms of section 309B of the CPA, is a clear
indication that section 85(1) of the CJA was designed for
the
protection of the child accused against an injustice. And one of the
safeguards for such protection against an injustice is
to make
provision for automatic review of the Magistrate’s Court
criminal proceedings involving a child accused.
[16] I have been referred
to two conflicting judgments from other divisions of the High Court.
In the North West High Court Division
6
this issue was raised and the Court held that a sentence of
imprisonment or compulsory residence imposed upon a child, as
contemplated
in section 85 of the CJA who was represented by a legal
adviser is not subject to automatic review.
[17] I am not sure about
the use of the phrase automatic review and would prefer to use the
words review in terms of section 85(1)
of the CJA. In this case
Gutta J at page 4 para [6] of his judgment remarked as follows:
“
The rationale for excluding
cases where the accused is legally represented from automatic review
is obvious, namely, that the legal
representative will protect the
rights and interests of the accused and avoid injustices and
erroneous decisions and ensure that
the rights of the accused to a
fair trial are protected. An unrepresented accused requires the
protection offered by the system
of automatic review.”
[18] For the above
reasons Gutta J ruled that the automatic review of cases involving
children in terms of section 85 of the CJA
“only applies to
minor children who were not assisted by a legal advisor
7
.”
[19] With due respect, I
find myself unable to agree with the learned Judge’s conclusion
in the above case. The learned Judge
sought to justify his reasoning
on item (p) of Schedule 4 read with section 99(1) of the CJA which
substitutes section 302(1)(a)(i)
of the CPA.
[20] Upon close scrutiny
it appears to me that section 85(1)(a) and (b) of the CJA sanction an
automatic review in circumstances
provided therein. In addition and
most importantly, the review in terms of section 85(1) of the CJA
applies irrespective of the
duration of the sentence imposed. This
in fact is in conflict with the provision in the amendment contained
in item (p) which
reads:
“
(p) Amendment of section 302 by
the substitution for paragraph (i) of subsection (1)(a) of the
following paragraph:
which, in the case of imprisonment
(including detention in a child and youth care centre providing a
programme contemplated in
section 191(2)(j) of the Children’s
Act, 2005, (Act 38 of 2005), exceeds a period of three months, if
imposed by a judicial
officer who has not held the substantive rank
of magistrate or higher for a period of seven years, or which
exceeds a period
of six months, if imposed by a judicial officer who
has held the substantive rank of magistrate or higher for a period
of seven
years or longer.”
[21] It is clear from the
wording of the above amendment that there is a conflict between
section 302 of the CPA as amended by item
(p) of Schedule 4, and the
provisions of section 85(1)(a) and (b) of the CJA. In terms of
section 85(1) of the CJA the sentence
is automatically reviewable
irrespective of the duration of the sentence whereas in terms of item
(p) of Schedule 4, the sentence
can only be reviewed if it exceeds
three (3) months and six months respectively depending on the
experience of the presiding magistrate.
[22] It, therefore,
follows that the review of the proceedings in terms of section 85(1)
of the CJA is an exception and cannot
be said to be done in terms of
section 302 of the CPA. It is a provision
sui generis
and
should be treated as an exception on its own. In terms of section
302 of the CPA, sentences which do not exceed three months
and six
months respectively depending on the experience of the presiding
magistrate are not reviewable whether or not the accused
was legally
represented. Therefore, review cases in terms of section 85(1) of
the CJA cannot be said to be governed by section
302 of the CPA.
This is so for the reason,
inter alia
, that in terms of
section 85(1) of the CJA the reviewability of the sentence does not
depend on the experience or otherwise of
the presiding magistrate but
is sanctioned by the CJA. This is confirmed by the
proviso
that review of the sentence will take place irrespective of the
duration of the sentence.
[23] It is for the above
reasons that I find myself unable to agree with the decision by Gutta
J and I am of the view that the exception
provided for by the
proviso
is not subject to the terms of, and is not governed by Chapter 30 of
the CPA. It applies to all situations that comply with section
85(1)(a) and (b) irrespective of whether the accused is legally
represented or not.
[24] My view becomes more
clear when one has regard to appeals. In the case of appeals in
terms of section 84 of the CJA an accused
person who falls within the
category in section 84(1)(a) and (b) does not have to apply for leave
to appeal before he or she can
note an appeal to the High Court
against the conviction and/or sentence. On the contrary the
amendment introduced by item (q)
of Schedule 4 provides:
“
Amendment of section 309 by the
substitution for paragraph (a) of subsection (1) of the following
paragraph:
Subject to
section 84
of the
Child
Justice Act, 2008
, any person convicted of any offence by any lower
court (including a person discharged after conviction) may,
subject
to leave to appeal being granted in terms of
section 309B
or
309C
,
appeal against such conviction and against any resultant sentence or
order to the High Court having jurisdiction...”
[25] It, therefore,
follows in my view, that on reading the whole CJA, including the
relevant provisions of the CPA, the provisions
of the CJA should be
interpreted by having regard to the provisions of the entire CJA
together with the provisions of the CPA relating
to reviews,
especially
sections 84
and
85
of the CJA and
sections 302
and
304
of
the CPA, read with item (p) of Schedule 4 to the CJA.
[26] It is clear, in my
view, that the provisions of
section 85(1)
provide for automatic
review of the proceedings before the magistrate including the
Regional Court magistrate in cases and circumstances
described in
section 85(1)(a)
and (b) of the CJA. Although in terms of
section
302(3)(a)
of the CPA the provisions of subsection (1) of the same Act
shall only apply with reference to a sentence which is imposed in
respect
of an accused who was not assisted by a legal adviser, the
same cannot be said of a child referred to in section 85(1)(a) and
(b)
of the CJA.
[27] If the legislature
in terms of section 85(1) of the CJA, had intended to exclude from
review, the proceedings where the child
accused was legally
represented, it would have indicated that. Section 302(3) of the
CPA specifically provides that the provisions
of subsection (1) of
the same section shall only apply with reference to a sentence which
is imposed in respect of an accused who
was not assisted by a legal
adviser. This exclusion is absent from the provisions of the CJA,
and in my view, its omission was
deliberate with a view to indicate
that all proceedings before a magistrate involving a child accused
where section 85 (1)(a) and
(b) of the CJA is applicable are
reviewable. That even the Regional Court proceedings involving a
child accused are reviewable
supports my view that all cases tried in
terms of section 85(1)(a) or (b) are automatically reviewable
irrespective of whether
the child accused is legally represented. It
seems to me that the reviewability of the proceedings involving a
child accused is
based on the constitutional provisions
8
.
It should also be noted that in the absence of a clear intention of
the legislature as gleaned from the language used in the
statute,
when one interpretes a statute in cases of any doubt or ambiguity it
should give an interpretation which is least oppressive
to the person
sought to be protected by such statute. We are here dealing with a
statute which protects the interests of the child
and, in my view, a
less oppressive interpretation should be resorted to herein. The
best interests of the child must always be
a primary consideration
9
.
It also follows that the Children’s Act
10
was enacted solely for the purposes of giving effect to the
provisions of section 28(1) of the Constitution. In
S
v Mpumelelo Innocent Zondi
supra
Koen J
at page 6 of the judgment para [14] also cautioned that it is
important to note the distinction drawn between a review of criminal
proceedings of lower courts in accordance with Chapter 30 of the CPA
which applies in all instances referred in the main part of
section
85(1) of the CJA and the review and sentence referred to in the
proviso
to section 85(1). In my view, the importance of the distinction
illustrates and underscores my view for the fact that Chapter
30 of
the CPA may be applicable to review proceedings in the lower courts
but the
proviso
to the same section makes a distinction between such cases and the
review of proceedings provided for in the
proviso
to section 85(1) of the CJA.
[28] One should not read
more to the first sentence of section 85(1) which commences with the
following words:
“
The provision 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.”
[29] Fundamental canons
of construction in interpretation of statutes require that an
excepting or qualifying
proviso
should be construed as excepting (or qualifying) something which,
save for the exception (or qualification) would be included in
the
statutory provision
11
.
It is apparently clear that the
proviso
that follows creates an exception to those cases where Chapter 30
applies. Therefore, in respect of the categories of children
specified in terms of section 85(1)(a) and (b) of the CJA review of
the proceedings will be in terms of the latter Act and no other
Act
or section in conflict therewith would apply in such cases. I am of
the view that if the provisions of Chapter 30 were to
apply
automatically and as they were before the promulgation of the CJA in
all cases involving children there could have been no
need to
introduce the provisions of section 85(1) of the CJA. The purpose of
its introduction was to make an exception to what
is contained in
Chapter 30 of the CPA. In
S
v Ruiter
supra
Dlodlo J made this important remark:
“
The High Court is the upper
guardian of all minors within its jurisdictional area. For that
reason and that one alone I am of the
view that cases provided for or
referred to in section 85 of the Act under consideration should
always be the subject of automatic
review in the ordinary cause
regardless of whether or not the said minor child was legally
represented at trial.”
[30] I agree with the
above important dictum putting emphasis on the fact that the High
Court is the upper guardian of all minors.
I do so based on my
interpretation of section 85(1)(a) and (b) of the CJA. I have no
other interpretation other than to conclude
that section 85(1)(a) and
(b) applies to all cases including the trial proceedings in which the
minor concerned was legally represented
at the trial.
[31] For the above
reasons, I rule that in terms of section 85(1)(a) and (b) of the CJA
the proceedings in this case are reviewable
despite the child having
been legally represented by a legal advisor at his or her trial.
[32] I have, however,
perused the proceedings and I am of the view that they are in
accordance with justice. Consequently, the
proceedings in this case
are confirmed. I also wish to extend my gratitude for the legal
opinion I was provided with by the Port
Elizabeth magistrate, Mr
Bender, which was of valuable assistance to me.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Beshe J:
I agree.
_________________________
N. BESHE
JUDGE OF THE HIGH COURT
1
Act 75 of
2008
2
Act 51
of 1977
3
Jaga v Dönges N.O. and Another; Bhana v Dönges, N.O. and
Another
1950 (4) SA 653
(A); Kellaway – Principles of Legal
Interpretation – Statutes, Contracts & Wills, 1995 ed p 4
4
S v Mpumelelo Innocent Zondi – Kwazulu Natal High Court case
no R717/2011 – unreported judgment by Koen J delivered
on 6
December 2011.
5
S v Ruiter (311/2010)
[2011] ZAWCHC 265
(14 June 2011) Western Cape
High Court judgment by Dlodlo J
6
S v Jan Nakedi – case no 12/2011 unreported judgment by Gutta
J, Landman J concurring, delivered on 2 January 2012
7
Nakedi
supra
at page 6 para [13]
8
Section 28(1) of the Constitution of the Republic of South Africa,
1996
9
Minister for Welfare and Population Development v Fitzpatrick and
Others
[2000] ZACC 6
;
2000 (3) SA 422
(CC) paras 16-18. See also section 28(1) of
the Constitution of the Republic of South Africa, 1996 which
provides:
“
28(1) Every child has the right –
to
name and a nationality from birth;
to
family care or parental care, or to appropriate alternative care
when removed from the family environment;
to
basic nutrition, shelter, basic health care services and social
services;
to
be protected from maltreatment, neglect, abuse or degradation;
to
be protected from exploitative labour practices;
not
to be required or permitted to perform work or provide services
that –
are
inappropriate for a person of that child’s age; or
Place
at risk the child’s well-being, education, physical or
mental health or spiritual moral or social development;
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, and has the right to be –
(i) kept separately from detained persons over the
age of 18 years; and
treated
in a manner, and kept in condition, that take account of the
child’s age;
to
have a legal practitioner assigned to the child by the state, and
at state expense, in civil proceedings affecting the child,
if
substantial injustice would otherwise result; and
(i) not to be used directly in armed conflict; and
to be protected in times of armed
conflict.
(2) A child’s best interests are
of paramount importance in very matter concerning the child.
(3) In this section
‘child’
means a person
under the age of 18 years.”
10
Act 38 of 2005
11
Kelleway on Principles of Interpretation of Statutes, Contracts and
Wills
supra
fn 3