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[2015] ZAGPPHC 215
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S v Taliwe and Another (A221/15) [2015] ZAGPPHC 215 (30 March 2015)
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
HIGH COURT
REFERENCE NO. 354/2014
MAGISTRATE’S
SERIAL NO. 05/2014
REVIEW CASE
NO.K858/2013
DATE: 30 MARCH
2015
CASE NUMBER:
A221/15
THE STATE v
THAPELO TALIWE AND ANOTHER
REVIEW JUDGMENT
JANSEN J
[1] The two accused,
Thapelo Taliwe and Omotemo Monare were convicted of housebreaking
with the intent to steal and theft and sentenced
to six months
imprisonment. The accused were not declared unfit to possess
firearms. They were convicted and sentenced by the regional
magistrate of the Oberholzer area on 5 March 2014.
[2] The items that
were stolen by the accused were a laptop worth R7 000.00, a Sony
camera worth R700.00, a set shaving machine
worth R200, a Lumia
cellullar phone worth R3000.00 and R180 cash.
[3] Both accused
were in custody from October 2013, apparently at the request of their
guardians.
[4] On 20 January
2014 both accused pleaded guilty regarding the charge of theft.
[5] The usual
section 112(2) questions were asked of the two accused and it
transpired that they admitted all the elements of the
charge of
housebreaking and theft in terms of
section 112(2)
of the
Criminal
Procedure Act 51 of 1977
.
[6] The two accused
openly admitted that Omotemo Monare climbed through a small window of
the house of a Mr Pooe, upon or about
the morning of either the 13
th
or the 15
th
of August 2013, who opened a larger window for
Thapelo Taliwe to climb through. They took all the items referred to
above and had
sold some of the stolen items but which were later
recovered. They were arrested on the 30
th
of September
2013 by the police. They were detained from that date. They expressed
their remorse.
[7] No judgment on
conviction was delivered. It was simply stated by the magistrate that
both accused were guilty as charged.
[8] As a result,
question were posed to the magistrate regarding the reasons why the
two accused, 15 and 14 years of age, respectively,
were given a
sentence of direct imprisonment of six months during May 2014. The
magistrate indicated that she waited a long time
for the record and
did not realise that she had to respond to the reviewing judge’s
questions.
[9] The reasons for
the sentence are the prevalence of crime in the area and the value of
the goods stolen. The magistrate admitted
to sentencing them without
pre-sentence reports (because they were not forthcoming) in a
juvenile facility. The magistrate alleged
because of the high number
of juveniles appearing for the offence of theft, an alternative
sentence had to be considered other
than the normal sentence of
section 297(1
)(a)(ii) of Act 51 of 1977, but acknowledged that
prison should be the last resort for juveniles.
[10] On 5 May 2014
it was ordered by the reviewing judge that the accused be released at
once.
[11] The matter was
referred to the National Director of Public Prosecutions seeking
commentary on the following questions: —
“
1
.
The reasons provided by the magistrate for giving
the accused, two youngsters aged 15 and 14 juvenile detention are,
inter alia,
his knowledge of the prevalence of the crime in that
area. Both are first offenders. There were no proper sentencing
procedures
and it would seem as though no pre-sentencing reports were
obtained.
2. It appears
that both youngsters have been in custody since October 2013 (at page
7
with the heading “previous convictions”
at the end of the record).
3. It appears
to the judge in chambers, Judge Jansen, that the sentence is too
harsh. Your input would be appreciated.”
[12]
In paragraph 5 of the report written by the senior state advocate PN
Ngcobo and SR Mlombo the deputy director of Public Prosecutions
the
magistrate was criticised for taking two months to refer the matter
for review after sentencing and another two months to answer
the
reviewing judge’s questions. Reference was made to
S
v VC
2013
(2) SACR 146
(KZP).
[13] Emphasis was
also placed on the fact that the accused are both children as defined
by the
Child Justice Act 75 of 2008
. In terms of this Act, section 71
makes it obligatory for a magistrate to request a pre-sentence report
before sentencing a child.
The probation officer sought a
postponement to prepare a pre-sentence report but the magistrate
disregarded her request.
[14]
Reference was made to
S v RS and Others
2012 (2) SACR 160
(WCC)
at
page 164 where the following is stated: —
“
The
sentencing court in respect of a child - the child justice court - is
encouraged to adopt a ‘restorative approach ’
in order to
promote these objectives
[1]
Further reference was made to
S v F M
2013 1 SACR 57
(GNP)
where
the following is stated: —
“
...the
choices he made were juvenile choices and the primary purpose of the
sentence imposed on the accused must be,
not to
punish him for those choices, but to facilitate every effort
to
brins him to understand that the choices he
made, which
landed him in his present
predicament, are the wrons choices,
and that the
world in which he lives does offer other choices
and
a wav of life other than that in which he grew up
[emphasis
added]
[15]
It was also pointed out in the report that upon sentencing the two
accused the magistrate did
not
take
the provisions of the
Child Justice Act 75 of 2008
into account, and
that in itself constituted a misdirection.
[16]
In
S v VC
2013
(2) SACR 146
(KZP)
Steyn
J held: —
“
The
preamble to the Act emphasis the break with the past, and the Act
itself provides for a paradigm shift from the practises of
the past
to the current procedures when children are in conflict with the
law.”
[17]
The court further states the following in
S
v
VC
supra
:
—
“
The
sentence imposed is not in the interests of justice; it appears to be
excessively retributive; moreover it merely
pays lip
service to
the oblisations imposed by the
Child
Justice Act 75 of 2008
.”
[emphasis
added]
[18] The factors
which should have taken into account are the following: —
[18.1] They are 15
and 14 years of age respectively.
[ 18.2] They were
both scholars.
[ 18.3] They were
both first offenders.
[18.4] They both
pleaded guilty.
[19] It was
submitted in the report that the sentence imposed by the magistrate
induces a sense of shock in the circumstances of
this case and we
recommend that matter be referred back to the magistrate to conduct
the sentencing proceedings according to the
prescript of the law as
set out in
section 71
of the
Child Justice Act 75 of 2008
.
Alternatively that the sentence imposed be substituted by the
following: —
“
six
months correctional supervision in terms of
section 276(1)
(h) of the
Criminal Procedure Act 51 of 1977
."
[20] Due to the
non-compliance with
section 71
of the
Child Justice Act 2008
and the
fact that the children have effectively served the six months’
prison sentence imposed on them, the following order
is made: —
The sentence imposed
by the magistrate is hereby set aside.
JANSEN J
JUDGE OF THE HIGH
COURT
I agree
RABIE J
JUDGE OF THE HIGH
COURT