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[2018] ZAGPPHC 601
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S v Tshabalala (A54/2018, 293/17, A645/16, 71/12/2016) [2018] ZAGPPHC 601 (12 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE: 12/2/2018
A54/2018
HIGH
COURT REF. NO :
293/17
CASE
NO
: A645/16
MAGISTRATE’S
SERIAL NO: 71/12/2016
IN
THE MATTER BETWEEN:
THE
STATE
Vs
SIYABONGA
GEORGE TSHABALALA
REVIEW JUDGMENT
TOLMAY,
J:
[1]
This
matter came before me for review in terms of
sec 16(2)
of the
Child
Justice Act, no 75 of 2008
.
[2]
The
accused was arrested and appeared on 12 December 2016 in Heidelberg
magistrate's court on a charge of "possible trade in
dagga".
The accused was informed of his right to legal representation and
elected to conduct his own defence. The matter was
then postponed to
23 January 2017 for further investigation and the accused was
released on warning. On 23 January 2017 the accused
was present and
the prosecutor requested another postponement to 30 March 2017 in
order for the substance to be forwarded to the
LAB for analysis.
[3] On
30 March 2017 the accused was warned by the court to apRE3ar on 25
May 2017
since the results were still outstanding. On 25 May 2017,
the accused did not attend court and a warrant for his arrest was
authorized.
The accused arrived at court on his own accord and
appeared on 29 May 2017, an enquiry was held and the warrant was
subsequently
cancelled. The matter was postponed for the case docket
to 6 June 2017. The accused failed to appear on 6 June 217 and a
warrant
of arrest was again issued. The accused was arrested and
appeared on 1 September 2017. He was kept in custody and the matter
was
postponed to 4 September 2107 for the enquiry. On 4 September
2017 no interpreter was available to assist with the enquiry and the
matter was postponed to 5 September 2017. The accused remained in
custody.
[4]
On
5 September 2017 the enquiry was conducted and he was convicted of
contempt of court after his explanation was not accepted.
Only during
mitigation of sentence it emerged that the accused is under the age
of 18 and he was subsequently released on warning
to provide proof of
his age on 6 September 2017. On 6 September 2017 the accused again
appeared with the required proof. The charge
of dealing in drugs was
withdrawn and the accused was "cautioned and discharged" on
the contempt of court.
[5]
The
OPP was approached by the reviewing acting Judge for comment. The
learned Acting Judge did not request reasons from the magistrates
in
terms of
sec 304(2)
of Act 51 of 1977. As a result and in order to
ensure compliance I forwarded the DPP's comments to the learned
magistrate for his
comments.
[6]
The
learned magistrate commented as follows:
"I referred this matter for review in
terms of
sec 16(2)
of the
Child Justice Act no
75
of 2008
, as I am of the opinion that
the error
as
to
the age of the accused caused prejudice to the accused, in that due
to the facts that the accused was under the age during his
arrest and
the fact that the accused was not treated according to the
Child
Justice Act no
75 of
2008
from date
of
his
arrest, I believe that the proceedings from the date of his arrest
were irregular, and must be declared as such and the conviction
should on that basis be set aside."
[7]
The
guardian of the accused was never present throughout the proceedings,
the accused did not have any legal representation, no
preliminary
inquiry was conducted and no pre-sentence report was obtained as
prescribed by the Child Justice Act no 75 of 2008
(CJA). Both the OPP
and the learned magistrate support the view that under these
circumstances the proceedings should be declared
irregular and should
be set aside. I agree with this view.
[8]
In
the light of the aforesaid the proceedings should be declared
irregular and set aside.
[9]
The
following order is made:
a.
The
proceedings are declared irregular; and
b.
The conviction is set aside.
R
G TOLMAY
JUDGE OF THE
HIGH COURT
I
agree
C
PRETORIUS
JUDGE
OF THE HIGH COURT