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South Africa: Free State High Court, Bloemfontein
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[2022] ZAFSHC 255
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S v L.M (R33/2022) [2022] ZAFSHC 255 (6 October 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R33/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THE
STATE
and
L[....]
M[....]
CORAM
:
LOUBSER, J et BOONZAAIER,
AJ
REVIEW
RECEIVED ON:
23
SEPTEMBER 2022
JUDGEMENT
BY
: LOUBSER,
J
DELIVERED
ON:
6
OCTOBER 2022
[1]
This matter came before me in the form of a review in terms of the
provisions of
Section 304A
of the
Criminal Procedure Act 51 of 1977
.
This section provides that when the magistrate is after conviction,
but before sentence of an accused, of the view that the proceedings
were not in accordance with the law, he must submit his views
together with the record of proceedings to the High Court for a
review thereof.
[2]
The matter was submitted to the
High Court by the additional magistrate of Phuthaditjhaba.
The
accused appeared before him on a charge of contravening of
Section
49(1)(a)
of the
Immigration Act 13 of 2002
. The accused pleaded
guilty to this charge, and he was subsequently found guilty as
charged. At the sentencing stage, however,
it transpired that the
accused was still a minor. The magistrate then did not proceed to
sentence the accused, but decided to act
in terms of the
abovementioned
Section 304A.
The accused was released into the care
of his guardian and the matter was postponed pending the outcome of
the review.
[3]
At the stage of pleading guilty, the magistrate was under the
impression that the
accused was a major since the police docket
suggested as such. At the sentencing stage, however, the original of
the ID document
of the accused was produced in court. It transpired
from this document that the accused was born on 28 August 2006 in
Mozambique.
The plea proceedings took place on 29 July 2022, which
means that the accused was 15 years and 11 months old when he was
found
guilty as charged. The magistrate now suggests that the plea
proceedings and the conviction be reviewed and set aside, because the
proceedings against the accused should have been held in the Child
Justice Court in terms of the
Child Justice Act 75 of 2008
, and not
in the Magistrate’s Court.
[4]
In terms of the
Child Justice Act, a
child is a person under the age
of 18 years.
[1]
If such a child is 10 years or older, then the Act makes provision
for certain procedures to be followed, including a preliminary
inquiry after assessment by a probation officer, and a referral to a
Child Justice Court for plea and trial.
[2]
The accused in this matter falls in this category. It follows that
his appearance and conviction in the Magistrate’s
Court was not
in accordance with the law, and stands to be set aside on review.
[5]
The following order is therefore made:
1.
The plea
proceedings and the conviction of the accused in the Phuthaditjhaba
Magistrate’s Court under case number A243/2022
is hereby
reviewed and set aside.
2.
Any further
proceedings against the accused must be held in terms of the
Child
Justice Act 75 of 2008
.
P.
J. LOUBSER, J
I
concur:
A.
S. BOONZAAIER, AJ
[1]
Section
1
[2]
Section
5(2)
, (3) and (4)