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South Africa: Free State High Court, Bloemfontein
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[2018] ZAFSHC 28
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S v M (38/2016) [2018] ZAFSHC 28 (15 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Review
No. : 38/2018
In
the review between:-
THE
STATE
and
B.
M.
CORAM:
DAFFUE, J
et
REINDERS,
J
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
15 MARCH 2018
[1]
This is a special review in accordance with the provisions of s
304(4) of the Criminal Procedure Act, 51 of 1977 (“the
Act”).
[2]
The accused, a 17 year old minor, was charged in the Thaba Nchu
Magistrate’s Court with housebreaking with intent to steal
and
theft. He pleaded guilty, having been assisted and
represented by his guardian and a legal representative.
On 24
November 2015 the court
a
quo
convicted
him as charged. On 13 May 2016 he was sentenced to compulsory
residence in a Child and Youth Care Centre in terms
of
s 76
of the
Child Justice Act, 75 of 2008
.
[3]
It should have been immediately clear to anyone perusing the record
of proceedings that no term of compulsory residence was
fixed.
The accused was not declared unfit to possess a firearm In terms of
s
103/(2)
of the
Firearms Control Act, 60 of 2000
.
[4]
The matter was sent on automatic review. On 1 July 2016 a judge
of this Division incorrectly certified that the proceedings
were in
order.
[5]
On 26 February 2018 the Head of Judiciary of the Thaba Nchu
Magistrate’s Court forwarded the matter to this court for
the
matter to be considered as a special review. The presiding
magistrate’s accompanying letter is of importance.
The
learned magistrate pointed out that she did not state the duration of
compulsory residence when she sentenced the accused.
This is a
reviewable irregularity.
[6]
The learned magistrate suggested that the review court should impose
a sentence of three (3) years’ compulsory residence.
It
must be taken into consideration that the accused had several brushes
with the law before his conviction
in
casu.
It
appears from the social worker’s report that the accused was
involved in crimes such as burglary and theft since the age
of 13
years. Diversions in terms of Chapter 8 of the
Child Justice
Act were
arranged to keep the accused outside the formal criminal
justice system in order to try and rehabilitate him, but to no
avail.
[7]
Section 76
of the
Child Justice Act reads
as follows and I quote the
first two subsections only:
“
76. Sentence
of compulsory residence in child and youth care centre.
—
(1) 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 191
(2) (
j
)
of the Children’s Act.
(2) 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.”
[8]
I am satisfied that compulsory residence of three (3) years should be
imposed. There can be no prejudice to the accused
and it is
unnecessary to refer the matter back to the court
a
quo
to
reconsider sentence upon receipt of further submissions on behalf of
the accused. If the sentence is not interfered with,
the
accused will have to remain at the compulsory residence until the age
of 21. The accused was born on 5 June 1998 and
will turn 21 on
5 June 2019.
[9]
The sentence shall be ante-dated to 13 May 2016. The accused
will not have reached the age of 21 years by the time the
sentence to
be imposed expires on 13 May 2019 and consequently, such an order
will not be in conflict with
s 76(2)
of the
Child Justice Act.
[10
]
The following orders are made:
10.1 The conviction
is in order and confirmed.
10.2 The
sentence is reviewed, set aside and substituted with the following:
10.2.1 The accused is
sentenced to compulsory residence for a period of three (3) years in
a Child and Youth Care Centre in terms
of
s 76
of the
Child Justice
Act, 75 of 2008
;
10.2.2 The sentence is
ante-dated to 13 May 2016.
10.3 The order in
terms of
s 103(2)
of the
Firearms Control Act, 60 of 2000
, remains
intact.
_____________
J.P. DAFFUE, J
I concur.
____________
C. REINDERS, J