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[2017] ZAFSHC 202
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S v N and Another (R431/2017) [2017] ZAFSHC 202 (26 October 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R431/2017
In
the matter between:
THE
STATE
and
B.
N.& S. T
CORAM:
MHLAMBI,
J et CHESIWE, AJ
JUDGMENT
BY:
CHESIWE, AJ
DELIVERED
ON:
26 OCTOBER 2017
REVIEW
JUDGMENT
[1]
This is a special review in terms of section 304A (1)(a) of Criminal
Procedure Act 51 of 1977 (CPA). Accused 4 and 5 are charged
with
possession of house breaking implements and the failure to give
satisfactory account of these implements or objects.
[2]
The additional Magistrate Janse van Rensburg stationed at Virginia is
particularly concerned about the fact that at the time
of the
offence: accused 4 and 5 were minors and that the Director of Public
Prosecution (OPP) did not comply with the requirements
of the Child
Justice Act 75 of 2008 (Child Justice Act). Both accused
where
17 years at the time of the commission of the offence.
[3]
The accused where charged with contravening the provisions of section
82 of the Third General Amendment Act 129 of 1993 in that
they were
near the taxi rank in the district of Virginia, where they were
unlawfully found in the possession of implements or objects
including: balaclavas, gloves, a bag and bolt cutter in respect of
which there was reasonable suspicion that it had been used or
intended to be used to commit housebreaking, or to break open a motor
vehicle or gain unlawful entry into a motor vehicle of which
the
accused were unable to give a satisfactory account of the possession
of these items.
[4]
The accused where convicted on 23 June 2017.
[5]
During the trial it transpired that accused 4 and 5 where never
assessed after their arrest and
no
preliminary enquiry was conducted in terms of
section 43(3)(a)
and (b) of the
Child Justice Act.
>
[6]
The issue that the court must determine is whether the non
compliance with the provisions of the
Child Justice Act amounted
to
an irregularity which could result in a failure of justice for
accused 4 and 5.
[7]
Accused 4 and 5 where both legally represented throughout the trial,
as well as their guardians being present. Both accused
raised a
defence that they were not in possession of any house breaking
implements as they were merely found in the shack by the
police while
they were "smoking dagga".
[8]
The record shows that the learned Magistrate on discovering that
accused 4 and accused 5 were never dealt with in terms of the
Child
Justice Act, addressed
this issue at length in the judgment. However
it does appear on the record that accused 4 and 5 were given notices
to appear at
a preliminary enquiry on 25 April 2013 in terms of
section 18
of the
Child Justice Act. These
notices were attached as
Exhibit “8” and “C” of the record. For
reason unknown to the trial
court, it appears that the preliminary
enquiry
was
not done. Criminal proceedings against the accused were instituted
four years later when accused 4 and 5 were summoned to appear
in
court in terms of
section 54
of the CPA, when they were over the age
of 18.
[9]
The
Child Justice Act was
enacted and promulgated on 1
st
April 2010 with a view to establish among other objectives "...a
criminal justice system for children, who are in conflict
with the
law and are accused of committing offences, in accordance with the
values underpinning the Constitution and the international
obligations of the Republic". The Act further aims to provide
for the "holding of a preliminary inquiry and... , the
possibility of diverting matters away from the formal criminal
justice system..." The
Child Justice Act
[1
]
clearly states that the
prosecutor
should
take into consideration the following factors.
a)
The educational level, cognitive ability, domestic and environmental
circumstances, age and
maturity of the child;
b)
The nature and seriousness of the alleged offence;
c)
The impact of the alleged offence on any victim;
d)
The interests· of the community;
e)
A probation officer's assessment report in terms of Chapter 5;
f)
The prospects of establishing criminal capacity in terms of
section
11
if the matter were to be referred to a preliminary inquiry in
terms of Chapter 7;
g)
The appropriateness of diversion; and
h)
Any other relevant factor.
[10]
Chapter 8 of the
Child Justice Act and
particularly
sections 51
-
0c
m; line-height: 200%">
52;
provides for objectives and consideration to be followed for
diversion.
Section
52
(1) provides:
(1)
A matter may, after consideration of all relevant
information presented at a preliminary inquiry, or during
a trial,
including whether the child has a record of previous
diversions, be considered for diversion if-
(a)
The child acknowledges responsibility for the offence;
(b)
The child has not been unduly influenced to acknowledge
responsibility;
(c)
There is a prima facie case against the child;
(d)
The child and, if available, his or her parent, an appropriate adult
or a guardian, consent
to diversion; and
(e)
the prosecutor indicates that the matter may
be diverted in
accordance
with subsection (2) or the Director of Public Prosecutions indicates
that the matter may be diverted in accordance with
subsection (3).
[11]
Section 4(2)(a)
of the
Child Justice Act states
that:
"(2)
The Director of Public Prosecutions having jurisdiction may, in
accordance with directives issued by the National Director
of Public
Prosecutions in terms of
section 97
(4) (a) (i) (aa), in the case of
a person who -
(a)
Is alleged to have committed an offence when he or she was under the
age of 18 years direct
that the matter be dealt with in terms of
sections (2) to
(4)"
[12]
Section 5(2)
states:
"(2)
Every child who is 10 years or older, who is alleged to have
committed an offence and who is required to appear at a preliminary
inquiry in respect of that offence must, before his or her first
appearance at the preliminary inquiry, be assessed by a probation
officer, unless assessment is dispensed with in terms of
section 41
(3) or
47
(5)"
While
section 5(3)
states:
"(3)
A preliminary inquiry must be held in respect of every child referred
to in subsection (2) after he or she has been assessed,
except where
the matter,-
(a)
Has been diverted in accordance with Chapter 6;
(b)
involves a child who is 10 years or older but under the age of 14
years where criminal capacity
is not likely to be proved, as provided
for in
section 10
(2) (b); or
(c)
Has been withdrawn"
[13]
It was established by the DPP that accused 4 and 5 were minors at the
time of the offence and both were 17 years at that stage.
Exhibit B
and C of the record showed that accused 4 and 5 where given notices
to appear at a preliminary inquiry on 25 April 2013.
Exhibit
D of the record Book J546, shows both accused names where entered in
a preliminary enquiry for possession of house breaking
implements.
For reasons unknown to the court, it appears that the
preliminary enquiry was not
conducted even
though accused 4 and 5 were notified to appear at such an enquiry.
[14]
The test to determine whether an irregularity was
gross or not was decided in the matter
of
S
v Felthun
[2]
whereby Vivier JA stated that:
"Generally
speaking, an irregularity or illegality in the proceedings at a
criminal trial occurs whenever there
is
a
departure
from those formalities, rules and principles of procedure with which
the law requires such a trial to be initiated and
conducted. The
basic concept underlying
s 317(1)
is that an accused must be fairly
tried."
[3]
[15]
In the matter of State v Van Wyk, Case No: 803/2016 unreported matter
of the Northern Cape Division, Kgomo JP said:
"the
non-compliance with the
Child Justice Act is
not of such a nature
that it per se results in a failure of justice."
[16]
Having regard to the
S v Felthun,
the irregularity is
not of such a nature that it
per se
results in a failure of
justice, taking into consideration the following factors:
1.
The accused where 17 years old when the offence was committed, no
evidence was adduced whether
they were immature for their age.
2.
However, when the trial commenced the accused were both 20 years
old.
The record shows they clearly understood the court proceedings.
3.
The accused received notices in terms of
section 18
of the
Child
Justice Act to
appear at a preliminary enquiry. On the record it is
unclear why the enquiry was not held. It is unnecessary to act in
terms of
the provisions of
section 24(7)
due to the effluxion of
time.
4.
Accused 4 and 5 where legally represented at the trial and their
legal guardians were present.
5.
The accused raised a defence which they understood and gave a
detailed account of the events leading
up to their arrest as well as
the events after the arrest.
6.
The oversight of their legal representative to bring to the court's
attention the relevant provisions
of the
Child Justice Act is
condonable, as the instructions to represent the accused, were
received four years later when, the accused had already reached
the
age of majority.
[17]
When an irregularity is found, the test is whether the irregularity
is so fundamental that it amounts to a failure of justice.
If it is
so fundamental that it nullifies the proceedings, the result will be
that the proceedings will be set aside.
[18]
The
Child
Justice Act in
its directives rather states that
[4]
"Failure
by· a prosecutor to comply with these Directives and/or any
duty imposed on him/her in terms of this Act may
lead or result in
disciplinary steps being taken against such prosecutor".
It
does not say that the proceeding will be nullified, but rather steps
will be taken against the prosecutor and section 35 of the
constitution provides that -
"Everyone
who is arrested for allegedly committing an offence has the right-
(d)
to have their trial begin and conclude without unreasonable delay;
(o)
of appeal to, or review by, a higher court"
[19]
However the
Child Justice Act is
specific in terms of dealing with
child offenders. Any child's trial should be finalised as speedily as
possible. Any frequent
postponements should be
avoided in order to give the child a fair and speedy trial. In this
matter, the charges
were withdrawn by the state against the accused,
but were then reinstated later.
[20]
It has further been stressed that the underlying reluctance of the
courts
to
interfere
in
unfinished
proceedings
in
a
lower
court
is
the
undesirability
of
hearing
appeals
or
reviews
on
a
piecemeal
basis.
In
S
v Western Areas Ltd and Others
[5]
Howie stated that:
"Long
experience has taught that in general it is in the interests of
justice that an appeal awaits the completion of a case
whether civil
or criminal. Resort to a higher Court during proceedings can result
in delay, fragmentation of the process, determination
of issues based
on an inadequate record and the expenditure of time and effort on
issues which may not have arisen had the process
been left to run its
ordinary..."
[21]
I am therefore of the view that the irregularity is not of such a
nature that
per se
it results in a failure of justice. Accused
4 and 5 were brought correctly before court. The accused legal
guardians were notified
when the accused were arrested at age 17. The
legal guardians signed the written notices that were served on the
accused. The
accused had a legal representative throughout the
trial. The accused's version of the events that was put to the state
witnesses
was an indication that accused 4 and 5, clearly understood
the charges against them and the proceedings of the trial.
[22]
The absence of a preliminary inquiry therefore does not result in a
gross irregularity in respect of accused 4 and 5. Further
that by
prosecuting them four years later did not result
per
se in
failure of justice.
[23]
In the result thereof their conviction is confirmed.
[24]
The following order is made:
1.
The conviction of accused 4 and accused 5 is confirmed.
2.
The matter is referred back to the trial court to sentence accused 4
and 5 in accordance with chapter
9 of the
Child Justice Act 75 of
2008
.
____________________
S
CHESIWE, AJ
I
CONCUR
____________________
JJ
MHLAMBI
J
[1]
Section 10(1)
of the
Child Justice Act 75 of 2008
[2]
S
v Felthun
1999
(1) SACR 481(SCA)
[3]
Ibid at
48Sg-
486e
[4]
GNR252
GG
33067
of
31March
2010,
No:
R.
252
Title:
Child
Justice
Act
(75/2008
):
Directives
in
terms
of
section
97
(4)
Origin:
Justice
and
Constitutional
Development,
Department
of
Class:
Government
Notice
Page:
130
[5]
S
v Western Areas Ltd and Others
2005
(SJ SA 214 (SCA) para 25