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[2016] ZAGPPHC 726
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S v E.N (A561/2016) [2016] ZAGPPHC 726 (19 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
2016-08-18
Reportable:
No
Of
interest to other judges: No
Revised.
HIGH
COURT REF. NO.: 119/16
MAGISTRATE'S
CASE NO.: SH278/15
MAGISTRATE'S
SERIAL NO.: REVIEW 3/16
DATE:
18/8/2016
THE
STATE
And
E.
N.
REVIEW
JUDGMENT
MABUSE
J:
[1]
This matter came before me as a review in terms of special
legislation of s 85(1)(a) of the Child Justice Act No. 75 of 2008
("the
Child Justice Act"
;).
[2]
The accused, a child as envisaged by
s 1
of the said Act, appeared
before a regional court in Benoni where he was charged with, and
convicted of, rape in contravention
of s 3 of Act 32 of 2007
following his plea of guilty to the said charge. Upon conviction he
was sentenced to twelve (12) years'
imprisonment and in addition
declared unfit, in terms of the provisions of s 103 of the Firearms
Control Act 60 of 2000 ("the
Firearms Control Acf'), to possess
a firearm.
[3]
Upon receipt of the relevant file I requested the office of the
Director of Public Prosecutions to comment on the proceedings.
I am
indebted to the said office, in particular to both Ms S Scheepers and
Mr HM Meintjies for their incisive memorandum.
Section 5
of the
Child
Justice Act reads
as follows:
"5 (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 enquiry in
respect of that offence must, before his or her first appearance at a
preliminary enquiry, be assessed by
a probation officer, unless
assessment is dispensed with in terms of
section 41(3)
or
47
(5).
(3)
A
preliminary enquiry 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has been withdrawn.”
In
the present proceedings the accused appeared for the first time in
the regional court on 10 July 2015. During this appearance
of 10 July
2015 he was asked how old he was and he informed the court that he
was twenty (20) years old. He was also asked if he
had any passport
or papers and he indicated that he did not have any such documents.
[4]
His next appearance was on 16 July 2015. On this date he told the
Court that he was fifteen (15) years old and that his parents
have
passed away. According to information made available to the Court, he
was born on 7 January 1995. Arrangements were made for
the accused to
be taken to the district surgeon for the determination of his age.
The accused age was thereafter determined at
seventeen (17) years.
[5]
On 20 August 2015, the matter was remanded for the accused to be
assessed. Immediately when the accused indicated that
he was
fifteen (15) years old the regional court magistrate directed that he
be held in a single sell at Benoni Police Station.
Arrangements were
also made for his guardian to appear with him. The accused also had
legal representation during the entire proceedings.
[6]
The magistrate referred to the preliminary enquiry. The office of the
Director of Public Prosecutions made enquiries at magistrate
court
Benoni with the senior public prosecutor who confirmed that a
preliminary enquiry had indeed been held after the age assessment
indicated that the
Child Justice Act was
applicable in the instant
matter. Before the imposition of sentence a probation officer's
report, compiled in respect of the accused,
was handed in as an
exhibit. It is clear that at the time of the assessment by the
probation officer for purpose of sentence at
the stage when a plea
bargain was considered that the accused did not accept responsibility
for the rape.
[7]
I am satisfied that the accused had indeed been dealt with by the
Court
a quo
in accordance with the provisions of the
Child
Justice Act and
in particular
s 5
thereof.
[8]
Section 77
of the
Child Justice Act provides
as follows:
"(1) A Child
Justice Court
-
(b) when sentencing a
child who is 14 years or older at the time of being sentenced for the
offence, must only do so as a measure
of last resort and for the
shortest appropriate period of time.
(3)
A child who
is 14 years or older at the time of being sentenced for the offence
may only be
sentenced to imprisonment, if the child is
convicted of an offence referred to in
-
(a)
Schedule 3;
(b)
Schedule 2, if substantial and compelling reasons exist for
imposing a sentence of imprisonment,·
(c)
Schedule 1, if the child has a record of relevant previous
convictions and
substantial and compelling reasons exist for
imposing a sentence of imprisonment.
(4)
A child
referred to in subsection (3) may be sentenced to a sentence of
imprisonment -
(a)
for a period not exceeding 25years; or
(b)
envisaged in s 276(1)(i) of the Criminal Procedure Act."
[9]
Rape is listed in schedule 3. Accordingly a sentence of imprisonment
as referred to in
s 77(3)(a)
of the
Child Justice Act, is
a competent
sentence. The court
a quo
was provided with a psycho-social
report as enjoined by
s 71(1)(b)
of the
Child Justice Act and
in line
with the decision in S v Phulwane and Others 2003(1) SACR 631 T where
it was held that when the youth or juvenile strays
from the path of
rectitude to that of criminal conduct, it is the responsibility of
the judicial officer bestowed with the task
of sentencing such a
youth offender to obtain all the relevant information pertaining to
such a juvenile, in order to structure
a sentence that will best suit
the needs and interest of the particular youth. See p. 634 h-i.
[10]
The court
a quo
considered all the sentencing options and
after careful consideration of all relevant factors placed before it,
rejected the sentence
proposed by the probation officer and chose to
impose a sentence based on its discretionary powers. On the other
hand
s 71(4)
of the
Child Justice Act provides
that the reason for
imposing the sentence other than that recommended in the pre-sentence
report must be entered into the record.
I am satisfied that the
magistrate has complied with the requirements of
s 71(4)
of the
Child
Justice Act in
that she has given reasons for the sentence that she
had contemplated imposing on the accused person.
[11]
Considering the aggravating circumstances set out in the
pre-sentencing report and the medico- legal report in respect of the
complainant I find nothing wrong with the sentence that was imposed
on the accused by the magistrate.
[12]
In terms of s 50 of the Criminal Law Amendment Act 32 of 2007 the
accused's name was entered into the sexual offences register.
Section
50(1) states that:
"S 50(1) The
particulars of the following persons must be entered in the Register:
(a)
a person who in terms of the Act or any other law
–
(i)
has been convicted
of a sexual offence against a child or a person who is mentally
disabled
“
The
accused has been convicted of a sexual offence referred to in s 3 of
Act 32 of 2007. He is therefore a person referred to in
s.
50(1)(a)(i) of the said Act.
S
50(2)(a) of the [Criminal Law (Sexual Offences Related Matters)] said
Act provides as follows:
"2 (a) A court
that has in terms of this Act or any other law
-
(i)
convicted a person
of a sexual offence against a child or a person who is mentally
disabled, after sentence has been imposed by
that court for such
offence, in the presence of the convicted person; or
(ii)
made a finding
and given a direction in terms of
section 77(6)
or
78
(6) of the
Criminal Procedure Act 1977
, that the person is by reason of mental
illness or mental defect not capable of understanding the proceedings
so as to make a proper
defence was, by
reason of mental
illness or mental defect, not criminally responsible for the act
which constituted a sexual offence against a child
or a person who is
mentally disabled, in the presence of that person,
must,
subject to paragraph (c), make an order that the particulars of the
person be included in the Register.
(b) When making an
order contemplated in paragraph (a), the court must explain the
contents
and implications of such an order, including
section
45
, to the person in question.”
The
following paragraphs 50(2)(c) and 50(2)(d) were introduced by
section
7(b)
of Act 5 of 2015 on 7 July 2015. These amendments followed upon
the decision of J v National Director of Public Prosecutions and
Another 2014(2) SACR 1 CC: ("J v NDPP")
“
(c) If a court
has, in terms of this Act or any other law, convicted a person
"A
"
of
a sexual offence referred to in paragraph (a)(i) and
"A
"
was
a child at the time of the commission of such offence, or if the
court has made a finding and given a direction referred to
in
paragraph (a)(ii) in respect of
"A”
who was
a child at the time of the alleged commission of the offence, the
court may not make an order as contemplated in paragraph
(a) unless
–
(i)
the prosecutor has
made an application to the court for such an order,·
(ii)
the court has
considered a report by the probation officer referred to in
s 1
of
the
Child Justice Act, 2008
which deals with the probability of
“A”
committing another sexual offence against a child or a person who
is mentally disabled, as the case may be, in future;
(iii) “
A”·has
been given the opportunity to address the court as to why his or her
particulars should not be included in the
register,·and
(iv)
the court is
satisfied that substantial and compelling circumstances exist based
upon
such report and any other evidence, which justify the
making of such an order.
(d) In the event that
a court find that substantial and compelling circumstances exist
which justify the making of an order as contemplated
in paragraph (a)
the court must under such circumstances on the record of the
proceedings.”
[13]
The problems with the proceedings before the regional court can be
identified as follows. The amended provisions of
s 50(2)(c)
of Act 32
of 2007 which came into operation on 7 July 2015 were not adhered to.
Firstly, the state, through the public prosecutor,
did not make an
application for the accused's details to be entered in the register.
There was also no probation officer's report
dealing with the
probability of the accused committing another sexual offence against
a child. The accused was also not given an
opportunity to address the
court as to why his particulars should not be included in the
register. It is uncertain if the court
found that substantial and
compelling circumstances existed which justified the making of such
an order. However, this should have
been entered on the record of
proceedings. This was not done. It would appear that the only remedy
to the situation is to set aside
the order that the magistrate court
made in terms of s 50 of Act 32 of 2007 and to refer the matter back
to the magistrate in order
to enable her to comply with the
provisions of s 50(2)(c) and (d) of Act 32 of 2007.
[14]
The court made a further order that the accused may not work with
children. Section 114(1) of the Children's Act 38 of 2005
(''the
Children's Act"
;) states as follows:
"114 Contents of
Part A of register -
(1)
Part A of the register must be a record of-
(a)
all
reports of abuse or deliberate neglect of a child made to the
Director General in terms of this Act,·
(b)
all
convictions of all persons on charges involving the abuse or
deliberate neglect of a child;
(c)
all
findings by Children's Court that a child is in need of care and
protection because of abuse or deliberate neglect of the child.
"
[15]
Section 120(1)(b) of Act 38 of 2005 states that any court in any
criminal proceedings may make a finding that the accused is
unsuitable to work with children. According to s 120(2) the court may
make such a finding on its own volition or an application
by the
prosecutor. Section 120(4)(a) indicates further that in any criminal
proceedings, a person must be found unsuitable to work
with children
on conviction of murder, attempted murder, rape, indecent assault or
assault with the intent to do grievous bodily
harm with regard to a
child. Accordingly upon a conviction of, among others, rape, a
criminal Court must make a finding that the
person concerned is
unsuitable to work with children. It is therefore not enough to
inform such a person that the National Child
Protection Register will
be informed of such a conviction nor is sufficient to inform the
National Child Protection Register of
such person's conviction.
Consequently, it must appear
ex facie
the record that the
finding referred to in s 120(4) was made by a court seized with
criminal case in respect if the person affected
by such a finding.
Failed to do so is not fatal and cannot render the proceedings
abortive. The situation can be recovered by the
setting aside the
magistrate failure to do so and by requesting the magistrate to
follow the prescripts of the said s 120(4). As
the law stands the
order made by the magistrate that the accused may be entered in the
child protection register is in order ...
[16]
Mr. HM Meintjies (SC), the Deputy Director of Public Prosecutions at
the office of the National Director of Prosecutions and
who is the
co-author of the memorandum from that office, has expressed his
opinion that while a sentence per se cannot be faulted,
the
magistrate did not refer to the prescripts of
s 77(1)(b)
of the
Child
Justice Act. This
section provides that:
"77(1) A Child
Justice Court -
(b) when sentencing a
child who is 14 years or older at the time of being sentenced for the
offence, must only do so as a measure
of last resort and for the
shortest appropriate period of time.”
[17]
Furthermore, Mr. Meintjies has taken a point that the Magistrate, in
considering a sentence to be imposed on the accused, made
no
reference to the paramountcy of the child's best interest in terms of
s 28(2)
of the Constitution of the Republic of South Africa Act 108
of 1996 ("the Constitution"), which is the starting point
in matters relating to the child. In this regard Mr. Meintjies placed
reliance on the case of J vs NDPP [2014(2) SACR 1 CC].
[18]
He opined that the order made by the magistrate in terms of s 50 of
Act 32 of 2007 did not comply with the decision of J v
NDPP supra.
According to him it is the decision of J v NDPP that led to the
amendment of s 50 of Act 32 of 2007 and that the relevant
amendment
was introduced by Act 5 of 2015.
[19]
Before proceeding further with the views expressed by Mr. Meintjies,
and I will return to the rest of them, I need to deal
with first with
the three problems he has raised namely:
1. that the magistrates
did not refer to the prescripts of s 77(1)(b);
2. that no reference to s
38(2) of the Constitution was made; and
3. that the order made by
the magistrate in terms of s 50 of Act 32 of 2007 does not meet the
requirements of the authority of J
vs NDPP supra.
[20]
The magistrate did not refer to the prescripts of
s 77(1)(2)
of
the
Child Justice Act 75 of 2008
I
have dealt with these issues sufficiently in paragraph 9 supra. In
the first place, it will be recalled that the court, in R v
Dhlumayo
and Another 1948(2) 677 AD at page 706 said that:
"12 An Appellate
Court should not seek anxiously to discover reasons adverse to the
conclusions of the trial judge. No judgment
can ever be perfect and
alI-embracing,
and it does not necessarily follow that because
something has not been mentioned, therefore it has not been
considered
"
In
my view, it is not necessary that the magistrate should have
specifically referred to the provisions of
s 77(1)(b)
of the said
Act. It is enough if the magistrate consciously dealt with the
determination of the sentence in terms of the prescripts
of the said
section. That she did so can be gleaned from the fact that she had
before her a psycho-social report prepared by Mr.
A Sihlangu. The
report itself indicates quite clearly that it was a pre-sentencing
report of a child offender. This report contained
all the relevant
information pertaining to the accused as a child. Secondly, the fact
that the court took steps to have the accused's
age expertly
assessed, in my view, showed that the magistrate was at all material
times conscious of the fact that she was dealing
with a child as
envisaged by the
Child Justice Act. It
is in the circumstances highly
unlikely that the magistrate could have omitted to have regard to the
prescripts of
s 77(1)(b)
when she determined the appropriate sentence
to be imposed on the accused or when she considered the steps that
has to precede
the imposition of an appropriate sentence on the
accused as a child. Moreover
s 77(3)
of the
Child Justice Act
pro
vides otherwise. Reference to this section has already been made
in paragraph 9 supra. Accordingly I would accept the approach of
Ms.
S Scheepers in this regard.
[21]
The magistrate did not refer to the best interest of the child in
terms of
s 28(2)
of the constitution
In
the cause of their argument and in particular in support of their
approach, the amity in J v NDPP and Another supra referred
to the
provisions of
s 28(2)
of the constitution. The said section provides
that:
"A
child's
best interests are of paramount importance in every matter conceming
the child”
Then
the court itself followed and stated that:
'The amici is correct
that the starting point for matters concerning the child is
section
28(2).
This Court has held that the "best
–
interests”
or "paramountcy” principle creates a right that is
independent and extends beyond the recognition of
other chosen the
right in the Constitution**.”
What
the amici stated was a constitutional principle enshrined in the
constitution itself. What followed thereafter was confirmation
by the
Court of that constitutional principle. When the amici restated the
said principle and the court confirmed it they were
not prescribing
what a court that deals with child-related issues should quote. In
other words it is not necessary, as suggested
by Mr. Meintjies, that
a court should refer to s 28(2) of the Constitution. In my view it is
enough if the court is at all material
times conscious of the fact
that it deals with a child and that the prescripts of 28(2) of the
Constitution are obeyed.
[22]
The order made by the Magistrates in terms of s 50 of Act 32 of
2007 does not meet the requirements of J v NDPP 2014(2) SACR 1 CC
The
issue that Mr. Meintjies raised in respect of this
aspect have already been covered in paragraphs 11
and 12 supra.
[23]
It is opined by Mr. Meintjies that in terms of
s 120(4)
of the
Childrens' Act 38 of 2005
the finding that a person is unsuitable to
work with children must be made upon a conviction of rape of a child.
Mr. Meintjies
states that, in this instant matter, the magistrate
failed to make such a finding. Instead of doing so the magistrate
informed
the accused that the National Child Protection Register
would be sent a notification of the conviction.
S 120(1)
of the
Children's Act 38 provides
that:
"(1) A finding
that a person is unsuitable to work with children may be made by –
(a)
a children's court;
(b)
any other court in any criminal or civil proceedings in which that
person is involved; or
(c)
…
A finding in terms of
subsection (1) may be made by a court or forum contemplated in
subsection (1) on its own volition or on application
by –
(a)
an organ of state involved in the implementation of this Act,·
(b)
a prosecutor, if the finding is sought in criminal proceedings; or
(c)
a person having a sufficient interest in the protection of
children.
(3) Evidence as to
whether a person is unsuitable to work with children may be heard by
the court or forum either in the course
of or an the end of its
proceedings."
[24]
In terms of s 120(1) a discretion to make a finding that a person is
unsuitable to work with children is granted to a children's
court,
any court dealing with either criminal or civil proceedings in which
an affected person is involved or any forum established
for this
purpose. This finding may be made by the court on its own or by a
forum as contemplated in (1) or on an application by
an organ of
state involved in the implementation of the Act; a prosecutor in
criminal proceedings or a person having sufficient
interest in the
protection of children.
[25]
Section 120(4) imposes a duty on the court in criminal proceedings to
make a finding that such a person involved in the criminal
proceedings is unsuitable to work with children. It provides as
follows:
"120(4) In
criminal proceedings a person must be found unsuitable to work with
children
–
(a)
on conviction of murder, attempted murder, rape, indecent assault
or assault with intent to do grievous bodily harm with regard to
a
child; or
(b)
if a court makes a finding and gives a direction in terms of s
77(6) or 78(6) of the Criminal Procedure Act 1977 (Act No. 51 of
1977) that the person is by reason of mental illness or mental defect
not capable of understanding the proceedings so as to make
a proper
defence or was by reason of mental illness or mental defect not
criminally responsible for the Act which constituted murder,
attempted murder,
rape, indecent assault or assault with
intent to do grievous bodily harm with
regard to a child."
I
agree with Mr. Meintjies that the magistrate failed to make such a
finding. This aspect has been dealt with in paragraph
14 supra.
[26]
Accordingly the following order is made:
1. the order in terms of
section 50 of Act 32 of 2007 made by the magistrate is hereby set
aside;
2. the magistrate is
hereby ordered to make a proper order in terms of section 50(2)(c)
and (d) of Act No 32 of 2007 as amended
by section 7 of Act 5 of
2015;
3. the order made by the
magistrate in terms of
section 120
of the
Children's Act 38 of 2005
is hereby set aside;
4. the magistrate is
ordered to comply with the provisions of
section 120(4)
of the
Children's Act 38 of 2005
;
5. the record must be
returned to the Registrar of this Court as soon as the magistrate has
complied with the orders as set out
in 1-3 supra for further review.
__________________
P.
M. MABUSE
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered.
_____________________
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
-oOo-