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[2015] ZAGPPHC 730
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S v P E (A178/15) [2015] ZAGPPHC 730 (17 March 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number: A178/15
Date: 17 March 2015
High Court Reference
No: 61/15
Case No: 708/14
Magistrate’s
serial number: H01/15
Reportable
Of interest to other
judges
MAGISTRATE
CULLINAN
THE
STATE V P E
REVIEW JUDGMENT
POTTERILL J
[1]
This matter was sent on special review because there was
non-compliance with section 85(1 )(b) of the Child Justice Act,
7
5
Of 2008 (“the Act”); the trial Magistrate should have
forwarded the matter for review to a Judge because the accused
was
younger than 18 years old at the time of the commission of the
offence. A further leg of the review relates to the declaration
by
the Magistrate that “no order is made in terms of section
103(1) Act 60 of 2000 (sic)”.
[2] The matter was
referred to the Deputy Director of Public Prosecutions for their
comment. In terms of the Act procedurally the
following defects were
highlighted:
2.1 A preliminary
enquiry must be held. If it is not held then the proceedings have to
be set aside due to a gross irregularity.
From the record it cannot
be gleaned whether such enquiry was held or not. HM Meintjies SC of
the National Director of Public Prosecutions
enquired from the
control prosecutor and confirmed that a preliminary hearing was in
fact held.
2.2 There was no
indication that this matter was referred to a Child Justice Court for
plea and trial in terms of chapter 9 of the
Act.
2.3 The accused was
not assessed by a probation officer (section 3U).
[3] FW van der
Merwe, Senior State Advocate for the Director of Public Prosecutions
proffered the opinion that although the matter
did not comply with
all the procedural requirements the ultimate question is whether
justice had prevailed and whether it would
be in the interests of
justice to set aside the conviction and sentence. The accused pleaded
guilty and he was legally represented.
It was his opinion that the
accused was thus correctly convicted.
[4] HM Meintjies SC
however upon a proper analysis respectfully submitted that there be
substitution of the conviction of contravening
section 117(1)(a) of
the Correctional Services Act, No. Ill of 1998 with the common law
offence of escaping from lawful custody
as provided for in section
270 of the Criminal Procedure Act. The reasons for this are set out
below:
4.1 Section 107(a)
of the Correctional Services Act describes a “correctional
centre" as “any place established
under this Act ... and
for the purpose of section 117 includes every place used as a police
cell or lock-up”; a child and
youth centre is thus excluded.
4.2 In terms of the
Child Justice Act sections 27(b) and 28(5) refer to a child kept in
police custody as distinct from a child
placed in a child and youth
care centre.
4.3
Similarly the Children’s Act has no provision for the offence
of absconding/escaping from a child and youth care centre.
In fact
section 191(1) (e) of the Children’s Act explicitly excludes a
child and youth care centre as a prison. Section 170
of the
Children’s Act provides for a child who absconds to be arrested
and brought before a Children's Court. An anomaly
arises where the
placement order was made by a criminal court as the criminal court’s
jurisdiction certainly cannot be ousted
by section 170 of the
Children’s Act. Section
Wl
of
the Children’s Act can be utilised as defining Children’s
Court as every magistrates court but then only at a district
level.
Section
U5(2)
provides
that a Children’s Court may try or convict a person for
non-compliance with any order of the Children’s Court
or
contempt of such court, but is clearly not applicable where an order
of the criminal court was not complied with.
From
section 51
of
the
Criminal Procedure Act No 51 of 1977
the intention is clear to
provide for a situation where the escapee is in police custody,
rather than in the custody or care of
any other person or
institution.
[5] I agree with the
submission of HM Meinjties SC that the legislature could not have
intended to no longer hold child offenders
criminally accountable for
absconding. I agree with her contention that where there are no
statutory provisions finding application
the common law offence of
escaping will have to be invoked.
“
In
Milton’s
South
African Criminal Law and Procedure
Vol
111, 2
nd
ed
by Milton and Cowling at CU-11 and further, the common law offence of
escaping from custody is extensively discussed. The mischief
aimed at
is that the ‘necessary processes of the criminal justice system
are defeated if the detainee escapes from the custody
in which he or
she is held’. The learned authors refer
inter
alia
to
R
v Msuida
1912
TPD 419
at
U22
in
which Wessels J held that:
‘
The
essence of the offence does not lie in the fact that the escaped
prisoner was surrounded by a wall or by a fence, but in the
fact that
he escaped from lawful custody’ and that, at common law, ‘To
escape from lawful custody’ and that at
common law, ‘To
escape from lawful custody, however you have got into that lawful
custody, is a crime’”.
[6] I am satisfied
that on special review the provision of
section 270
of the
Criminal
Procedure Act can
be utilised to substitute the conviction of
contravening
section 117(1)(a)
with the common law offence of
escaping to bring the proceedings in accordance with justice. This is
so because the elements of
the offences are similar, the accused had
legal representation and all the elements of the common law offence
were admitted. There
will be no prejudice to the accused.
[7]
Ad
sentence
The sentence is
however not in accordance with justice.
7.1 A pre-sentence
report as compelled by section 71(1)(b) of the Child Justice Act was
not obtained.
7.2
The sentence was not ante-dated with the number of days the child
spent in prison or a child and youth care centre pending sentence
as
compelled by section
77(5).
73
The
Magistrate disregarded sections 77(1 )(b) and 77(3) imposing a
shocking inappropriate sentence for an accused younger than 18
years,
whom had pleaded guilty and was a first offender. No pre-sentencing
report was obtained and the Magistrate accordingly disregarded
sections 77(1 )(b) and 77(3) of the Act.
[8] I accordingly
make the following order:
1. The conviction is
set aside and replaced with a conviction of escaping in terms of the
common law.
2. The sentence is
set aside and the matter is remitted to the Magistrate to impose a
sentence afresh with the Magistrate to take
account of and comply
with the relevant sentencing provisions in the Child Justice Act,
including obtaining a pre-sentence report.
S.POTTERILL
JUDGE OF THE HIGH
COURT
I agree
K.E. MATOJANE
JUDGE OF THE HIGH
COURT