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[2016] ZAFSHC 49
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S v Dibetso (09/2016) [2016] ZAFSHC 49 (23 March 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
number: 09/2016
In the
matter between:
THE
STATE
Applicant
and
MPHO
GIFT
DIBETSO
Respondent
JUDGMENT
BY:
HINXA,
AJ
DELIVERED
ON:
23
MARCH 2016
HINXA
AJ:
[1]
This matter served before this court as a special review in terms of
Section 304 (A)1(a) of the Criminal Procedure Act No 51
of 1977 (the
“CPA”).
[2] The accused was
charged in the Regional Court, Thaba Nchu for having sexual
intercourse with a 14 year old child in contravention
of Section
51(1) read with relevant sections of the Criminal Law (Sexual
Offences and Related matters) Amendment Act, 32 of 2007
(“Act
32 of 2007”).
[3] On
17 September 2015 the accused person who was legally represented
pleaded guilty to the charge and tendered an explanatory
statement in
terms of Section 112 (2) of the CPA. He was duly convicted on his
plea on the same date, after which the court adjourned.
The rationale
behind the adjournment was for the trial court to be provided with a
pre-sentence report.
[4]
The Regional Magistrate (“Magistrate”) thereafter
harboured some doubts about the propriety of the conviction she
had
pronounced. She (Magistrate) then summed up her reasoning in
forwarding the matter on special review as follows, “Accused
was 17 years of age when the offence was committed … case was
remanded to obtain a pre-sentence report. It later came to
light that
the requirements as set out in section 15 (2) (a) of Act 32/2007 were
not complied with …”. She then cited
the aforesaid
section though not verbatim and prayed that the conviction be set
aside.
[5] At
this juncture I consider it prudent to refer to the relevant section
in full. It reads as follows:
“
The
institution of a prosecution for an offence referred to in subsection
(1) must be authorised in writing by the [National] Director
of
Public Prosecutions if
[both]
A [and B were children]
was
either 16 or 17 years of age
at
the time of the alleged Commission of offence
and
the age difference between A and B was more than two years
…”
[6] In
this connection I need refer only to the
ratio
decidendi
of Khampepe J in
The
Teddy Bear Clinic for Abused Children and Ano v Minister of Justice
and Constitutional Development and Another
[2013] ZACC 35.
Dealing with the prosecutional discretion ordained by
this section at paragraph 83 she opined that whilst the rationale was
to
ensure that the prosecutor would choose to act with circumspection
(in the prosecution of the child), that does not do enough to
alleviate the invasion of the children rights.
[7]
Reverting to the facts of this case, it is common cause that both
children fell within the category envisaged by Section 15
(2) and no
written authority was first solicited from the Director of Public
Prosecutors (“DPP”). On this ground alone,
the conviction
cannot stand.
[8]
That having been said, another aspect still warrants scrutiny.
Section 15 of Act 32 of 2007 relied upon by the prosecution in
sustaining conviction herein and also cited by the magistrate in
forwarding this matter on special review was, in its entirety,
declared unconstitutional and invalid in The Teddy Bear case (supra)
(paragraph [117] (I)). Pursuant thereto, section 2 of Act
No 5 of
2015 was substituted for Section 15. It follows therefore that even
if the DPP’s written authority had been secured,
the conviction
would still not be sustainable due to constitutional impropriety
thereof.
[9] I accordingly make
the following order:
9.1
The conviction is set aside.
9.2
I leave it to the discretion of the DPP whether to re-instate
prosecution or not.
_____________
M.D
HINXA AJ
I
concur
________________
B.C. MOCUMIE, J