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[2022] ZAMPMBHC 86
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S v L.C (R12/2022;R13/2022) [2022] ZAMPMBHC 86; 2023 (1) SACR 578 (MM) (30 November 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
OF
INTERESTS TO MAGISTRATES: YES
REVISED.
30
November 2022
HIGH
COURT REF NO: R12/2022
MAGISTRATE
CASE NO. N03/2022
MAGISTRATE
REFERENCE NO. 02/2022
In
the matter between:
THE
STATE
And
LC
(THE
ACCUSED)
HIGH
COURT REF NO: R13/2022
MAGISTRATE
CASE NO. N04/2022
MAGISTRATE
REFERENCE NO. 01/2022
THE
STATE
And
CM
(THE ACCUSED)
REVIEW
JUDGMENT
RATSHIBVUMO J
[1].
These
two matters came before me by way of special review in terms of
section16(2) of the Child Justice Act, no. 75 of 2008 (the
Child
Justice Act) read
with 304(4) of the
Criminal Procedure Act, no. 51
of 1977
. The two accused appeared in separate cases before the same
Magistrate at Mbombela District Court on 19 January 2022. They were
charged with contravening
section 49(1)(a)
of the
Immigration Act,
no.13 of 2002
. They all pleaded guilty to the charge. Although they
were all legally represented, their plea was dealt with summarily in
terms
of
section 112(1)(a)
of the
Criminal Procedure Act, at
the
request by the Public Prosecutor. No statement was handed in by the
legal representative as envisaged in
section 112(2)
of the
Criminal
Procedure Act. After
hearing submissions from the State and the
defence for purposes of sentence, the Magistrate proceeded to hand
down a sentence of
“cautioned and discharged” in both
cases.
[2].
Although
the accused’s ages were reflected on the charge sheets as
adults, they were in actual sense children who should have
been dealt
with in terms of the
Child Justice Act. In
case no. N04/2022
involving CM, the Magistrate was alerted during the address in
mitigation by the accused’s legal representative
that the she
was not 22 as the charge sheet reflected, but 17. The Magistrate
however proceeded to finalise the matter in terms
of the
Criminal
Procedure Act and
imposed the sentence referred to above.
[3].
As
for matter no. N03/2022 involving LC, the charge sheet reflected that
the accused was 18. It was only after the Magistrate had
sentenced
her that an Immigration Officer attending to both accused persons,
raised her concerns with the Magistrate saying the
two accused
appeared to be children. The Magistrate then took the two charge
sheets to the Senior Magistrate who sent the two cases
on special
review for reason that the Magistrate failed to act in terms of
section 15
of the
Child Justice Act when
he became uncertain about
the ages of the accused persons.
[4].
Discussion.
The fact that
the Magistrate was informed in case N04/2022 of the accused’s
age which was different to the age reflected on
the charge sheet,
suggesting that the accused was a child, should have created
uncertainty in his mind for simple reason that the
accused could not
have been aged both 22 and 17. The Magistrate should have attended to
a determination of the age and decide which
one of the two he was
accepting as the accused’s age. Making no determination is as
if the two ages make no difference. However,
for reason that one age
(22) demands that a trial be conducted under the
Criminal Procedure
Act while
the other (17) demands that a trial to be conducted under
the
Child Justice Act the
age difference therefore matters.
[5].
As
for matter N03/2022, the uncertainty regarding the accused’s
age can be deduced from the conduct and words expressed by
the
Magistrate during and after the trial. After the court adjourned, the
Magistrate went to see a Senior Magistrate with a view
to start the
review proceedings. In the words of Senior Magistrate Van der Merwe,
the Magistrate “
raised
his concerns regarding the age of the accused persons and the fact
that they appeared to be very young.”
The record of proceedings was sent without the comments by the
Magistrate. The record was therefore sent back with a request that
the Magistrate should comment on what the Senior Magistrate wrote in
the covering letter. The Magistrate then confirmed everything
alluded
to him in the covering letter.
[6].
Over
and above what the Magistrate conveyed to his senior, the record of
proceedings confirms his views and misgivings about the
accused’s
age. On page 9 of the transcribed record, the following is recorded
as part of the judgment on sentence,
“
You
informed this court that you are 18 years of age, that you still
attend school, Grade 6. And I see at your face that you are
still
very, very young, you are actually a child. And it is difficult for
the court to deal with this type of matters where you
have to
sentence children in court. But the court has to make this, has to
sentence you today, that is the only thing that I can
do now…”
[7].
From
the above, it is apparent that the Magistrate was uncertain about the
age of the accused and that he found it difficult to
have to sentence
a child. He however believed that he had no other choice but to
proceed and hand down the sentence. Clearly, he
was unaware of the
options availed by
section 15
of the
Child Justice Act. I
am of a
view that it would have been prudent of him to have approached his
senior right at that stage as opposed to finalising
the cases and
seek help later. It is however pleasing to note that he received
guidance from his senior regarding how to handle
such cases going to
the future. The two cases must have been a learning curve for him
too.
[8].
The
law.
Section 15
of
the
Child Justice Act provides
,
“
15.
Age determination by any other court.
Where there is
any uncertainty as to whether a person appearing before any other
court was over or under the age of 18 years at
the time of the
commission of the alleged offence, the court must-
(a) determine
the age of that person in accordance with
section
14
;
and
(b) where
necessary, alter the record to reflect the correct age of that
person, in accordance with the provisions of
section
16
,
which apply with the changes required by the context.
”
[9].
Section
14
of the
Child Justice Act provides
as follows,
“
14. Age
determination by inquiry magistrate or child justice court.
(1) If,
during a preliminary inquiry or during proceedings before a child
justice court, the age of a child at the time of
the commission of
the alleged offence is uncertain, the presiding officer must
determine the age of the child.
(2) In
order to determine the age of a child, a presiding officer may-
(a) consider
the form and any documentation submitted by the probation officer in
terms of
section
13
(3);
(b) require
any relevant documentation, information or statement from any person;
(c) subpoena
any person to produce the documentation, information or statements
referred to in paragraph (b); or
(d) if
necessary, refer the child to a medical practitioner, in the
prescribed manner, for an estimation of age.
(3)
(a) The
presiding officer must enter the age determined in terms of
subsection (1) into the record of the proceedings as the age
of the
child.
(b) Should
evidence to the contrary emerge, the presiding officer must alter the
record to reflect the correct age
.”
[10].
Submissions
by the DPP.
I have sought
and received an opinion from the Office of the Director of Public
Prosecutions (DPP), Mpumalanga. I am grateful to
Adv Mpolweni, the
Deputy Director of Public Prosecutions and Adv Phungula who carefully
crafted an opinion based on facts and the
law. It is those
capitulations that finally gave silhouette to this judgment.
[11].
The
DPP, laments that in failing to have the correct age determined, the
children in conflict with the law missed the opportunities
that are
available to them in terms of the
Child Justice Act. It
was submitted
that the Magistrate erred in not applying the provisions relating to
age determination which in the long run would
have exposed the
children to diversion programs as provided in
section 51
of the
Child
Justice Act.
[12
].
The
court was also referred to
S
v Gani
[1]
and
S
v Thwala
[2]
where the convictions of children in conflict with the law were set
aside on review by the High Court after the trial courts failed
to
hold inquiries in terms of
section 43
of the
Child Justice Act.
Section
43 of the
Child Justice Act makes
it peremptory to hold a
preliminary inquiry in all the cases where a child is alleged to have
committed an offence. Failure to
do this would render proceedings
irregular and not in accordance with justice. I agree with this view.
[13].
In
S
v Gxaleka
,
[3]
the High Court set aside unterminated proceedings after the trial
court referred the matter on review while the trial was underway.
This was after it came to the attention of the Magistrate during the
cross examination of a witness that the accused was under
the age of
18. The High Court held that the failure to deal with the accused as
a child in terms of the
Child Justice Act
was
a serious irregularity that had the potential to lead to a
miscarriage of justice. It remarked that it was inexplicable how the
question of the age of the accused had escaped the notice of the
members of the police and public prosecutor, and that the accused’s
only legal representative had failed to disclose this fact to the
court.
[14].
It
has now come to the court’s attention that the two children
involved here were deported back to their country of origin
with the
help of the Immigration Officer who was present in court the day they
were sentenced. I had implored the Magistrate to
seek their
participation in these proceedings in line with the
audi
alteram partem
rule, but for this reason, this was not possible. This was confirmed
by the DPP. This will also be a hindrance for the court to
remit the
proceedings to start
de
novo
with adherence to the provisions of the
Child Justice Act referred
to
above. It was for this reason that the DPP requested that the
convictions and the sentence imposed in the two cases should be
set
aside.
[15].
For
the aforesaid reasons, the following order is proposed.
[15.1] The
convictions and sentences imposed in cases N03/2022 and N04/2022 are
hereby set aside.
TV
RATSHIBVUMO
JUDGE OF THE
HIGH COURT
I agree
D
GREYLING-COETZER
ACTING JUDGE
OF THE HIGH COURT
30 NOVEMBER
2022
[1]
ZAGPJHC 154;
2012
(2) SACR 468
(GSJ).
[2]
(A92/2015)
[2015] ZAGPPHC 114 (26 February 2015)
.
[3]
2013 (2) SACR 399
(ECB).