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[2022] ZAMPMBHC 27
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S v S.M (R03/2022;PCJC01/2021;01/2022) [2022] ZAMPMBHC 27 (26 April 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
.
SAFLII
does not include ID numbers and birthdates as a rule but have
amended in line with the Judge’s directions.
THE
HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT)
HIGH
COURT REF NO: R03/2022
MAGISTRATE
CASE NO. PCJC01/2021
MAGISTRATE
SERIAL NO. 01/2022
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: NO
OF
INTERESTS TO MAGISTRATES: YES
REVISED.
26
April 2022
In
the matter between:
THE
STATE
And
SM
(THE ACCUSED)
REVIEW
JUDGMENT
RATSHIBVUMO
J
[1].
The accused (SM) is a child offender who was convicted by the Child
Justice
Court for the District of Chief Albert Luthuli sitting in
Mayflower. The conviction followed a guilty plea tendered on his
behalf
by his legal representative on a charge of housebreaking with
the intention to steal and theft. He was sentenced on 14 June 2021
in
terms of section 76(1) of Act 75 of 2008 (the Child Justice Act) to
“compulsory residence at Ethokomala Child and Youth
Care Centre
until he completed his school education or turns 21 years of age.”
In light of this sentence, the proceedings
are subject to automatic
review in terms of section 85 of the Child Justice Act read with
section 303 of Act 51 of 1977 (the Criminal
Procedure Act).
[2].
The State alleged that this crime was committed on 25 November 2020
when the
child offender broke into a shop and stole items comprising
mainly in cigarettes and alcohol the total value of which was
R32 665.00.
In his plea, the child offender disclosed that the
crime was committed by him and his friends at night and they
proceeded to consume
the alcohol that night and the following day
with more friends invited. It was after they were drunk and were
walking about that
the victim to the crime was alerted and the police
were called and arrested him.
[3].
The pre-sentence report reflected that he was born on 13 November
2005, meaning
he was 15 years old at the time of his sentence. The
State proved no previous convictions against the child offender. The
pre-sentence
report however reflected that it was not the first time
the child offender was arrested. The cases he was arrested for were
diverted
and did not proceed to trials. The court a quo seemed to
have taken these as previous convictions when imposing the sentence.
I
raised a query based on this formulated as follows,
“
The trial record
reflects that the court
a
quo
upon sentencing the child offender, concluded that “he
previously committed similar offences” based on the
pre-sentencing
report prepared by the Probation Officer. The said
report refers to an instance where in the past, there was a diversion
of a criminal
case faced by the child. Since the child was not
convicted at the time and one cannot tell how the trial would have
gone had he
been charged; was the child not supposed to be sentenced
as a first offender as opposed to repeat offender?”
[4].
To this, the Learned Magistrate responded as follows,
“
The
court took note of the fact that this was the first conviction of the
child offender and that in fact he was a first offender,
however the
court could not turn a blind eye to the fact that the court had to do
with a child offender that has been displaying
uncontrollable
behavior for the last three years, all previous interventions did not
yield any positive results. He is no longer
attending school and
spends most of his time with friends and that he displays behavioral,
psychological and emotional difficulties.
The court took note of the
profile of the child and concluded that in order for the child to
receive the reception, development
and secure care. It would be in
the best interest of the child and the community and would help to
build him holistically. In order
for the court to accomplish this the
court had to place the child in a Youth Care Centre in terms of
section 76(1) of Act75 of
2008.”
[5].
The other query raised together with the one above related to the
sentencing
jurisdiction. To avoid ambiguity, I will quote it in full:
“
The child offender
was sentenced to “compulsory residence at Ethokomala Child and
Youth Care Centre until he completed his
school education or turns 21
years of age.” This sentence was imposed in terms of section 76
of Act 75 of 2008 (the Child
Justice Act) which also provides that a
sentence of compulsory residence shall “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.”
(i) The Probation
Officer’s report reflects that the child offender was 15 years
old at the time the report was compiled.
That age is also reflected
on the J15. It is also recorded in the same report that the child
offender dropped from school while
doing Grade 4 because he could not
understand the teachers. The sentence imposed means that if the child
offender will start at
Grade 4 and finish school in Grade 12,
presuming he will not fail any grade, this would translate to 7
(seven) years of compulsory
residence, unless he turns 21 before
that. At the age of 15, it would seem that the child will turn 21,
some 6 (six) years from
the date of sentence. It would appear that
the child would have been in compulsory residence for longer than the
Child Justice
Act permits. The Learned Magistrate is requested to
comment.
(ii)
Does the Child Justice Court presided over by a District
Magistrate have the sentencing jurisdiction to impose the maximum
period
of compulsory residence, permissible in terms of this section
(five years), the same as the Regional Court would have?”
[6].
The Learned Magistrate responded as follows,
“
(i)
The court took note of the fact that according to the charge sheet [
J15] the child offender was 15 years of age and that the
date of
arrest was indicated to be 20 February 2020. According to the report
compiled by Mrs. Q F Mkhanazi a Social worker stationed
at Mayflower,
the child offender’s ID number is 051113[....], this report was
compiled during December 2020. Taking that
into account as well as
the fact that the mother indicated that she wanted to apply for an ID
for the child and the fact that according
to the defense attorney
Miss Lungwana, the child was 16 years of age. Therefore, there was no
doubt in the mind of the court that
the child offender was in fact 16
years of age. In the light of the above reasoning the child will turn
21 years of age in 5 years
which falls within the time period
mentioned in section 76 of Act 75 of 2008.
(ii) A Child Justice
Court is defined as ‘any court provided for in the Criminal
Procedure Act, dealing with bail application,
plea, trial or
sentencing of a child.’
‘Therefore I am of opinion
it was the intention of the legislature that any court could impose
compulsory residence in terms
of section 76 when it had to do with
the sentencing of a juvenile. The Honorable Reviewing Judge is
requested to confirm abovementioned
review case.
[7].
The court is indebted to the Deputy Director of Public Prosecutions,
Mpumalanga
(the DDPP), Advocate Mpolweni who together with the
assistance of Advocate Mata, was able to research and formulate an
opinion
regarding this matter. I will refer to these views and
remarks as they are relevant and important.
[8].
Previous convictions.
It
is common cause that the State did not prove any previous conviction
against the child offender in this case. It is trite that
the duty to
prove previous convictions falls squarely on the shoulders of the
State. The accused does not have a duty to prove
previous convictions
against himself. Even when the same is volunteered by the accused, it
is irregular for the court to elicit
such information from him or
even attach any weight thereto as there could be mistakes,
misunderstanding or even deliberate intention
to mislead the court on
the part of the accused.
[1]
It
is well settled that the State should be the only source of previous
convictions proved against an accused person.
[9].
In casu
, the source of information regarding previous cases
was the Probation Officer who had dealt with the child offender in
the past.
To the Probation Officer’s credit, these were not
reflected as previous convictions as it was clear from the record
that
they were diverted. In his response, the Magistrate seemed to be
aware that cases that were diverted could not be considered as
previous conviction. The DDPP agrees with this approach. The DDPP
however questions whether the Magistrate was alive to this at
the
time of trial and sentencing of the child offender. The DDPP
remarked,
“
Although the
Learned Magistrate in his reply states that when sentencing the child
offender, he considered the case before him as
the first conviction
of the child offender, the record proceedings depicts a different
picture. From the case record it appears
the Learned Magistrate
certainly took into account the previous incidences mentioned in the
Probation Officer’s report…
as previous convictions
against the child offender, this despite the fact that the State did
not prove any previous conviction
against him.”
[10].
The assertions by the DDPP are based on the utterances on record
wherein before the sentence
was pronounced, the court said the child
offender “previously committed similar offences.” I
cannot think of any other
way that a court would refer to previous
convictions of the offender as aggravating circumstances that this
statement. Another
reason why these cannot be considered as previous
convictions is that one would never know how the diverted matters
would have
been finalised had they gone through trials. Like in any
other criminal trial, there are two possible end results, to wit, a
conviction
or an acquittal. It would be unfair if any case of arrest
was to be considered as a conviction. Diversion of criminal cases
against
children is meant to help them avoid criminal records and
start on good foundation. If these would still be considered as
previous
convictions against them, it puts them in a worse situation
than the adults and it defeats the purpose. It suffices to state that
considering the diverted cases as previous conviction was a
misdirection on the part of the Learned Magistrate.
[11].
The child offender’s age.
The
Learned Magistrate proceeded to deal with the question of age of the
child offender in an inexplicable way. In his response,
he noted that
the child offender’s ID number was 051113
[…], as contained in the report compiled by the Probation
Officer. As if
to suggest that the ID number (and not the age) was
changing with time passage, he goes on to say, “but the report
was prepared
during December 2020.” The child offender was only
sentenced in June 2021. What I fail to comprehend in this response is
how the passage of time would affect the ID number. One’s ID
number does not change a year or two after it is scribed. There
is no
way a court would think that a child with ID numbers noted above
would be 16 years old on 14 June 2021, unless it did not
note it. But
to the contrary, he avers that he noted it.
[12].
Just as the DDPP pointed out, the Learned
Magistrate missed an opportunity to clarify the issue of age which he
could have done
by simply requesting the birth certificate from the
mother of the child offender who was present in court, or call her to
give
evidence over this aspect. If by any chance, there was
uncertainty about the child offender’s age (of which there was
not
given the fact that nobody challenged the ID number provided in
the report), then section 14 of the Child Justice Act enjoins the
presiding officer to hold an inquiry regarding the child offender’s
age, which he failed to do.
[13].
Incompetent sentence.
The
sentence imposed by the court
a quo
is in terms of section
76 of the Child
Justice Act which provides that a sentence of compulsory residence
shall “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.”
[My emphasis]. The sentence imposed by the court a quo is not only
ambiguous for not being clear and precise on the date on which
the
child offender would be released, but it is incompetent.
[14].
The Probation Officer’s
report reflects that the child offender was 15 years of age on the
date of sentence and that he dropped
from Grade 4 at school.
Presuming that the child would turn out to pass all the grades up to
Grade 12, this child offender has
a minimum of nine years before
finishing school education. Given the Probation Officer’s
report regarding his school performance,
he is likely going to
require more than nine years to complete his Grade 12. If the Learned
Magistrate’s intention was that
the child offender would have
to stay in compulsory residence for this long, then the sentence is
incompetent because this exceeds
the maximum period allowed by the
legislature which is five years.
[2]
[15].
The alternative to the completion of school does not help salvage the
situation either. By the
time the child offender turns 21, he would
have served longer that the five-year period which is the maximum
permissible in terms
of the Child Justice Act. If he was 15 on the
date of sentence, he will turn 21 in six’ years’ time
from the date of
sentence. In whichever angle the sentence is viewed,
it is incompetent in that a simple calculation would reflect that the
child
offender would serve a period longer than five years in
compulsory residence. What is saddening is that even when this is
raised
as a query, the Magistrate cannot see anything wrong with the
sentence. Even with hind sight opportunity to sit down and
re-calculate
based on the ID numbers that demonstrate that the child
offender will not be released until after serving six years; one
would
have expected him to ask for an opportunity to rectify this. He
is rather asking that the Review Court should confirm the sentence
he
imposed.
[16].
Sentence jurisdiction.
Presuming
that the Learned Magistrate did not impose a sentence in excess of
five years of compulsory residence on the child offender,
the
question is whether a Magistrate appointed for the District has
jurisdiction to impose a sentence of five years’ compulsory
residence envisaged by section 76 of the Child Justice Act. The
Magistrate’s view is in affirmation. In his view, “[
a]
Child Justice Court is defined as ‘any court provided for in
the Criminal Procedure Act, dealing with bail application,
plea,
trial or sentencing of a child.’ ‘Therefore I am of
opinion
it was the intention of the
legislature that any court could impose compulsory residence in terms
of section 76
when it had to do with
the sentencing of a juvenile.”
[17].
It is the reading of the Learned Magistrate that if section 76 of the
Child Justice Act provides
that “a Child Justice Court that
convicts a child… may sentence him to compulsory residence…
for a period not
exceeding five years…” then any court
sitting as a Child Justice Court can impose the said sentence
irrespective of
whether it is the District, Regional or High Court.
If this reading is true, then it would also be true for section
77(4)(a) of
the same Act which provides that “a Child Justice
Court… may sentence a child… for a period of
imprisonment
not exceeding 25 years.” This may be an extreme
example but it demonstrates well that such could not have been the
intention
of the Legislature. There are many other legislations that
make provision for the sentence without categorising as to which
court
has jurisdiction to impose such sentence.
[18].
Once the legislation
provides that a court that convicts an accused for a particular
offence, it can sentence him/her to a fine
or imprisonment for
life,
[3]
it does not confer the
jurisdiction to any court that would have convicted such accused
person. It is expected of each judicial
officer to know his/her
position in judicial hierarchy and the maximum penal jurisdiction
allowed for the office he/she is appointed.
Section 92(1)(a) of Act
32 of 1944 (the Magistrate Court Act) provides, “save as
otherwise in this Act or in any other law
specially
provided
,
the court, whenever it may punish a person for an offence by
imprisonment, may impose a sentence of imprisonment for a period
not
exceeding three years
,
where the court is not the court of a regional division, or not
exceeding 15 years, where the court is the court of a regional
division.” [Own emphasis].
[19].
I agree with the
submissions by the DDPP to the effect that the Child Justice Act does
not explicitly establish the child justice
courts. Instead, the Act
defines it as “any court provided for in the Criminal Procedure
Act, dealing with the bail application,
plea, trial or sentencing of
a child.” I can add that there is no ‘special provision’
in the Child Justice Act
for penal jurisdiction of the various courts
or where an increased penal jurisdiction is made. The limited
instances where a legislation
makes a special provision for increased
penal jurisdiction, such is done expressly and without any
ambiguity.
[4]
[20].
The DDPP recommends that the sentence be set aside and the matter be
remitted back to the trial
court for sentencing of the child offender
afresh in accordance with the penal jurisdiction of that court. This
in my view is the
appropriate remedial action in this case.
[21].
I therefore propose the following order.
21.1 The
conviction is confirmed.
21.2 The
sentence imposed by the trial court is hereby set aside.
21.3 The
matter is remitted back to the trial court for sentence to be imposed
afresh.
21.4 The
Magistrate should receive any evidence in mitigation and aggravation
for the sentence as the Defence and the
State may wish to present.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
I
agree
D
GREYLING-COETZER
ACTING
JUDGE OF THE HIGH COURT
26
APRIL 2022
[1]
See
S
v Kqawane
2004
(2) SACR 80
(T) and
S
v Petkar
1988
(3) SA 571 (A).
[2]
S
v Bangiso
2013
(1) SACR 558 (GNP)
[3]
See
for example section 4(2) of the
Prevention
and Combating of Trafficking in Persons Act no. 7 of 2013 which
provides for a sentence of a fine not exceeding R100
million or
imprisonment for life.
[4]
See
section 64
of the
Drugs and Drug Trafficking Act, no. 140 of 1992
which provides, “[
A]
magistrate’s court shall have jurisdiction to impose any
penalty mentioned in
section
17
,
even though that penalty may exceed the punitive jurisdiction of a
magistrate’s court.