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[2015] ZAGPPHC 114
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S v Thwala (A92/2015) [2015] ZAGPPHC 114 (26 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Date: 26 February
2015
Case number:
A92/2015
High Court Ref. No.
: 41/15
Magistrates serial
no. : 33/14
Case no. : 662/14
THE STATE
vs
PRECOUS SANELISWE
THWALA
REVIEW
[1] This is a
special review in terms of section 304 A of Act 51 of 1977 (The Act)
at the instance of a magistrate from Bethal.
[2] The accused in
this matter was convicted, of the offence of housebreaking with the
intent to steal and theft, in terms of section
112 (1) (b) of the
Act. A presentence report was requested by the court.
[3] The social
worker who compiled the sentencing report established that the
accused was 14 years old and not 19 years old as indicated
on the
charge sheet.
[4] In view of the
accused’s age, which was placed on the charge sheet, the matter
proceeded and the accused was convicted.
[5] No enquiry was
conducted in terms of section 43 of the Child Justice Act 75 of 2008.
(CJA)
[6] Section 43 of
the CJA stipulates:-
(1) A preliminary
inquiry-
(a) is an informal
pre-trial procedure which is inquisitorial in nature; [Para, (a)
amended by s. 36 (a) of Act 42 of 2013.]
(b)
may
be held in a court or any other suitable place, and [Para, (£>)
amended by s. 36 (a) of Aci No. 42 of 2013].
(c)
must
be presided over by a magistrate of the district within which the
child is alleged to have committed the offence.
[Para, (c) added s.
36 (a) of Act No. 42 of 2013.]
(2) The objectives
of a preliminary inquiry are to -
(a) consider the
assessment report of the probation officer, with particular reference
to -
(i) the age
estimation of the child, if the age is uncertain;
(ii) the view of the
probation officer regarding the criminal capacity of the child if the
child is 10 years or older but under
the age of 14 years and a
decision whether an evaluation of the criminal capacity of the child
by a suitably qualified person referred
to in section 11 (3) is
necessary; and
(iii) whether a
further and more detailed assessment of the child is needed as
referred to in section40 (1) (g);
(b
)
establish
whether the matter can be diverted before plea;
(c) identify a
suitable diversion option, where applicable;
(d)
establish
whether the matter should be referred in terms of section 50 to a
children’s court referred to in section 42 of
the Children’s
Act;
(e)
ensure that
all
available
information relevant to the child, his or her circumstances and the
offence are considered in order to make a decision
on diversion and
placement of the child;
(
f)
ensure
that the views of all persons present are considered before a
decision is taken;
(
g
)
encourage the participation of the child and his or her parent, an
appropriate adult or guardian in decisions concerning the child;
and
(
h
)
determine the release or placement of a child, pending -
(i) the conclusion
of the preliminary inquiry;
(ii) the appearance
of the child in a child justice court; or
(iii) the referral
of the matter to a children’s court, where applicable.
(3) (a) A
preliminary enquiry must be held in respect of every child who is
alleged to have committed an offence, except where -
(i) the matter has
been diverted by a prosecutor in terms of Chapter 6;
(ii) the child is
under the age of 10 years; or
(iii) the matter has
been withdrawn
(b)
A
preliminary enquiry referred to in paragraph (a) must be held -
(i) within 48 hours
of arrest as provided for in section 20 (5) if a child is arrested
and remains in detention; or
(ii) within the time
penods specified in a written notice in terms of section 18 ora
summons in terms of section 19.
(c) A child’s
appearance at a oreliminary inquiry is regarded as his or her first
appearance before a lower court, in terms
of section 50 of the
Criminal Procedure Act.
(4)
Section 90 of the Magistrates’ Court Act, 1944 (Act No. 32 of
1944), applies with the changes required by the context
to subsection
(1) (c) [Sub-s (4) added by s.36 (
b
)
of Act No. 42 of 2013]
[7] Section 43 (3)
directs that a preliminary enquiry must be held. The sub-section is
therefore peremptory.
[8] In view of the
failure to hold an enquiry I am of the view that the section 112
proceedings in terms of the Act were irregular.
Therefore the
proceedings have to be set aside.
[9] Accordingly, I
make the following order:-
9.1 The conviction
of the accused is set aside;
9.2 The matter may
proceed de novo before a different magistrate who shall hold a
preliminary enquiry in terms of
section 43
of the
Child Justice Act
75 of 2008
.
M ISMAIL
THE JUDGE OF THE
GAUTENG HIGH COURT,
PRETORIA
I agree
N. V. KHUMALU
JUDGE OF THE
GAUTENG HIGH COURT, PRETORIA