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[2016] ZAGPPHC 5
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S v Kopanye and Others (633/15) [2016] ZAGPPHC 5 (21 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
A33/2016
21/01/2016
REVIEW
633/15
In the matter of:
THE STATE
Vs
KHUTSO
KOPANYE and Others
(Magistrate
Pretoria Reference: Case 61/890/14 Atteridgeville)
REVIEW
JUDGMENT
BAM
J
1.
This matter was sent on special review by the Senior Magistrate,
Tshwane Central, Atteridgeville. It concerns a trial where the
accused were charged with contravention of the Animal Protection Act.
2.
During the trial it transpired, before judgement, that the second
accused, to whom I will refer as LM, was a minor. The other
four
accused were adults. The magistrate then separated LM's case from the
others and removed it from the roll. The case against
the other four
proceeded. All the accused were legally represented.
3.
The trial magistrate, Mrs E van Biljon, was clearly correct in
arriving at the conclusion that the Child Justice Act, Act 75
of
2008, was applicable, and that the relevant provisions should have
been complied with. It involves that LM's situation should
have been
investigated in terms of that act before he was charged with the
other accused. That did not happen.
4.
It appears that the senior prosecutor, at the time the five accused
were charged, did not consider whether LM's situation had
been dealt
with in accordance with provisions of the Child Justice Act. This was
unfortunate, and, to say he least, it clearly
prejudiced LM, in view
thereof that he may be charged again.
5.
The trial magistrate's suggestion that the proceedings, as far as LM
is concerned, should be declared null and void, is correct
in law,
and is supported by representatives of the Director of Public
Prosecutions ,Advocates Wilsenach and Erasmus.
6.
Accordingly the following order is made:
(a) The proceedings in
case number 61/890/14, Atteridgeville, concerning the erstwhile
accused 2, referred to as LM, is reviewed
and set aside.
(b) The matter of LM is
remitted to the Senior Magistrate, Tshwane Central, Atteridgeville,
to be dealt with in accordance with
the applicable provisions of the
Child Justice Act.
_________________
A
J BAM JUDGE
I
agree,
_________________
S
POTTERILL JUDGE
19
January 2016