About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 520
|
|
S v C.S (A74/14, A395/15, 06/2014) [2015] ZAGPPHC 520 (11 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
(REPUBLIC OF SOUTH AFRICA)
IN
THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION: PRETORIA
Case no: A74/14
11/6/2015
Magistrate Serial
No:
06/2014
THE STATE
and
C.
S.
REVIEW
[1] The matter serves before me on automatic review. The
accused, a juvenile offender, was on 8 September 2014 indicted for
theft and robbery in the Magistrate Court for the district of Mbabane
sitting in terms of the Child Justice Act 75 of 2008 ("the
Act")
as a Child Justice Court, and upon his plea of guilty and submission
of an s 112 (2) explanation of plea statement,
convicted on both
charges. The court was satisfied based on the evidence of the
probation officer that the accused is a person
as described in s 21
(1) of Act 20 of 1992 with a substance abuse problem and made an
order in terms of s 296 (1) of the Criminal
Law Act 51 of 1977 ("the
CPA"), for the accused to be detained at a treatment centre
established under the Prevention
and Treatment of Drug Dependency Act
20 of 1992. The accused is still to be admitted at such a centre.
[2] At the time he committed both offences and of his conviction and
sentence, the accused was 17 years old, born on 21 October
1996.
After sentencing, he had to await his admission at Mkhondo
Rehabilitation Centre therefore the Probation Officer in the
meanwhile referred him to Hendrina Secure Centre where he was
previously detained whilst awaiting trial and attended a life skills
programme after his arrest on the first charge of theft. During that
time accused turned 18 on 21 October 2014 and his placement
at
Mkhondo Treatment Centre was regarded as no longer suitable. The
probation officer consequently applied for his admission at
Swartfontein Treatment Centre. She also applied that the accused be
released under the care and supervision of his father whilst
awaiting
his admission at the facility.
[3] When the matter served before me on review in November 2014, I
requested an update on the accused's placement at Swartfontein
Centre
as part of the review process. A report was presented by the
probation officer that three months after the application for
the
accused's admission at the centre was made, he was still not
admitted. The report stated that provision was made for accused's
admission at the centre on 8 December 2014 but the centre required
the accused to be detoxed prior to admission as it no longer
offers
the service. On the date of admission the accused told the sister in
charge during a pre- admission interview that
he smoked dagga
that morning before being transported to the centre and also 3 times
over the weekend. The centre refused him admission.
It is remarkable
that no tests were conducted to verify the allegations.
[4] In her report the Probation Officer also detailed her subsequent
futile attempts to find a facility that offers detoxification
services and to get the accused to be admitted at the centre. The
probation officer secured another date for his admission, namely
2 of
January 2015 however again the accused was not admitted. This time
she requested the accused's father to take the accused
for
detoxification at
a private hospital before his admission date since the father has a
medical aid. Regrettably nothing was done.
The accused is yet to be
admitted at any facility and remains under the care of his father.
[5] Even though the proceedings were in terms of the
Child Justice
Act, no enquiries
were conducted by the Child Justice Court or any
attempts made to monitor its order.
THE PROCEEDINGS
[6] The charges against the accused as formulated in the charge sheet
were, in respect of theft, that 'he on 23 February 2014 unlawfully
and intentionally stole 6x2 litres of soft drinks valued at R144, 00
from Thibethe Wintum'. In respect of robbery, that 'on 6 July
2014 he
unlawfully and intentionally assaulted one Percival Mamporo and
took from him with force R50.00 cash.' The accused
was legally
represented throughout the trial.
[7] Evident from the charge sheet and the J15 is that the accused was
arrested on two different times for each of the offences.
He was
arrested on 23 February 2014 for theft and appeared in court the next
day, whereupon the provisions of
s 60
(11B) of the CPA were invoked.
The probation officer, Ms T A Mareme, ("Mareme") compiled
an assessment report on the
date of his first appearance on his
background and offence that accused acknowledged to have committed.
Ms Mareme recommended that
accused be ordered to attend a diversion
programme. The accused was sent
to Hendrina
for observation at
a place of safety and further investigation in accordance with the
Act. The court also ordered the accused,
as recommended,
to
attend a diversion programme on life skills for a month. The
necessary arrangements for attending the programme were made by
the
probation officer conferring with the accused's legal guardian.
[8] On the accused's next appearance on 24 March 2014, after he had,
according to the probation officer's report, successfully
completed a
Life Skill Programme at Hendrina Secure Care, the diversion process
was not finalised and the proceedings
withdrawn or
stopped, but instead the matter was
postponed for a period of more
than 3 months to 26 June 2014,
supposedly for a social worker's report. On recommendation of the
probation officer the accused
was released under the supervision of
his mother. He had legal representation at that time.
[9] On 26 June 2014 neither the accused nor his guardian were at
court, apparently having forgotten the date as reported by their
legal representative. A warrant of arrest was issued against both and
the matter postponed to 2 July 2014. On that day the guardian
was at
court and the arrest warrant against her was withdrawn. The accused
however remained at large and consequently the court
postponed the
matter to 5 August 2014 purportedly
for
holding
of
an enquiry.
[10] On 6 July 2014, the accused was arrested for robbery and
appeared in court with his grandmother on 7 July 2014. The warrant
of
arrest was withdrawn and he was remanded to a place of safety at
Hendrina until 5 August 2014, the date of enquiry. On 5 August
2014
no enquiry was held instead the accused was again remanded to the
place of safety for nearly a month by arrangement between
the
prosecution, Mareme and his legal representative and the matter
postponed to 4th of September 2014, yet again for an enquiry.
[11] On 4 September 2014, the prosecutor informed the court that he
was awaiting a report related to the accused addiction to drugs
from
the probation officer. The prosecutor then sought a postponement of
the matter to 8 September 2014, this time for a plea,
abandoning the
holding of an enquiry. The accused was once again remanded in custody
at the place of safety.
[12] At the
commencement of the trial on 8 September 2014, the magistrate started
by announcing to the prosecutor that the accused
was going to plead
guilty. Both charges were put to the accused and he indeed pleaded
guilty to both upon which, after his s112
(2) statement, he was
convicted on both counts. The probation officer then submitted her
report titled "Assessment report
for children in conflict with
the law/pre-sentence report. According to the report the assessment
took place on 7
th
July 2014 on the accused's first
appearance, within 48 hours after his arrest for robbery. However it
was signed off on 4 September
2014, seemingly prepared prematurely as
a pre-sentence report. It practically contained the same information
presented at accused's
first appearance on the charge of theft in
February 2014. It confirmed like in the first report, that the
accused is a substance
abuser and slightly improved to accommodate
comments on the second offence. The assessment on 7 July 2014 was
very significant
as it was accused's first appearance on the charge
of robbery. It is a date on which a preliminary enquiry was supposed
to have
been held.
[13] In proceedings envisaged to be in terms of the
Child Justice
Act, when
a prosecutor contemplates not to divert a matter,
s 41
(6)
of Chapter 6 of the Act applies. In terms thereof a preliminary
enquiry must be held, as provided for in Chapter 7 of the Act.
The
purposes thereof being,
inter
alia,
to
establish if a matter can be diverted before plea and a suitable
diversion option identified, where applicable (see s 43 (2)
(b) and
(c)). The enquiry preceded by an assessment of the child is to take
place within 48 hours of the child's first appearance
in court. The
purpose of the assessment is to assist the role players to have the
general understanding of the makeup of the juvenile
or child being
dealt with, so that they can from the outset of the case agree on how
to proceed with the matter.
[15] In terms of the Act all children are legible to be considered
for diversion. The Act also provides a framework to facilitate
diversion at every level of the child justice process and finally
ensures that diversion is regulated to ensure consistency of
practice
and legal certainty. Diversion can occur in three ways: first,
through prosecutorial diversion of children charged with
Schedule 1
offences; second, a child's diversion may be ordered by the
magistrate at the preliminary inquiry; and finally if not
yet
diverted a child may still be diverted at the child justice court
before the finalisation of the case.
[16] As highlighted by the National Director of Public Prosecution in
their response to a request for a comment on the proceedings
and
failure of the probation officer to get the order of the court to be
implemented, the two offences (theft and robbery) the
accused was
charged with fall under Schedule 1 and Schedule 2 offences,
respectively, of the Act. Section 53 (2) (a) thereof accords
an
option of a level one diversion under Schedule 1 or a level two
diversion in respect of the Schedule 2 offences. The diversion
processes are dealt with in Chapter 8.
[16] Upon the accused's arrest for theft, a level one diversion
option was available, that is the prosecutorial diversion. That
kind
of diversion occurs based on the common law principle that a
prosecutor is
dominus
litis
(see s 179 (2) of the Constitution and
s 20
(1) of the
National Prosecuting Authority Act 32 of 1998
) and therefore has the
discretion to prosecute a particular matter. He or she, as a result,
can decide whether a child can be diverted
instead of being
prosecuted. The view was also sustained in
S
v
D
1997
(2) SACR 671
, where the court found that even though the diversion
was regularly being used in the province for the type of offence in
question,
the prosecutor was
dominus
fitis, and therefore
had the right to proceed with the
criminal charges.
[17] Be as it may, even though the discretion is within the
prosecutor's domain as
dominus
litis,
the fair administration of justice demands that it be
exercised rationally, and properly. In this context it also has got
to be
exercised in the best interest of the child in conformity with
the Bill of Rights that demands the treatment of children to take
into account their age and discourages the unsystematic general
incarceration of children, which has got to happen as a measure
of
last resort. In
M v The
Senior Public Prosecutor
Randburg
&
Another
unreported case no 3284/2000 (WLD) referred to in Juta's
Child
Law
in
South Africa
by
Trynie Boezaart (ed), the court on examining the exercise of
the prosecutorial discretion found that there was no evidence
that
the prosecutor applied his or her mind to the possibility of
diversion ("not to prosecute"), and in the absence
of such
evidence, the court found that the discretion has not been
properly
exercised.
[18] For that reason, where the prosecution has decided to dispense
with or abandon the diversion after initiation thereof, he
or she
must explain the decision by placing on record the reasons for having
abandoned or dispensed with it in order for the court
to be able to
determine if the discretion was exercised reasonably and properly.
Since an improper and/or irrational exercise of
the discretion that
results in the accused child suffering any prejudice and therefore an
injustice might result in the vitiation
of the proceedings.
[19] On the accused's first appearance on the Schedule 1 charge, the
assessment report was made available to the court, recommending,
with
the consensus of all the role players, that the accused attend a
diversion programme at the same time as the observation and
the
investigation was continuing. He successfully completed the programme
as confirmed by the probation officer. The further postponement
of
the case for an enquiry following the successful completion of the
programme, instead of the withdrawal or cessation of proceedings,
seeking also to refer the matter for a fresh enquiry after his arrest
on robbery, and the subsequent prosecution of the accused
on the
theft charge without any reasons recorded for abandoning the
diversion, all amounted to a gross irregularity. This does
not accord
with a proper and rational exercise of the prosecutorial discretion
or a fair administration of justice by the court
and it was without a
doubt not in the best interest of the child or that of justice.
Erasmus AJ with Kgomo J concurring highlighted
in
S
v
EA
2014 (1) SACR 183
at 186d-e, that 'in terms of
s 59
(1)
(a), which specifically deals with the legal consequences of a
decision to divert an accused, a prosecution based on the same
facts
may not be instituted against an accused who has completed a
diversion programme successfully. As a result it would be in
the
interest of justice to set aside the conviction on that charge.
[20] In respect of the charge of robbery, upon the accused's first
appearance on the day following his arrest on 7 July 2014, although
an assessment was conducted the same day and the accused remanded in
custody, the matter postponed to 5 August 2014 without holding
a
preliminary enquiry and with no report submitted. The case was again
postponed on 5 August 2014 without holding an enquiry or
an
assessment report submitted. The prosecutor informed the court that
the accused is addicted to drugs and is awaiting a report
in that
regard. The report was only signed off by Mareme on 5 September 2014
and presented to court for sentencing.
[21] Sec 43 (a) of the Act is clear that a preliminary enquiry must
be held in respect of every child alleged to have committed
an
offence, except where,
inter
alia,
the
matter has been diverted by a prosecutor in terms of Chapter 6. The
preliminary enquiry must be held within 48 hours of the
arrest as
provided for in s 20 (5) if a child is arrested and remains in
detention. Section 40 provides that where it is likely
that a child
could be detained after the first appearance at the preliminary
inquiry or that a further and more detailed assessment
of the child
is required in order to consider the circumstances, inter alia, where
the child has a history of repeatedly committing
offences or
absconding or the possibility that the child may be admitted to a
substance abuse programme or other intensive treatment
programme, on
that first appearance the probation officer must complete an
assessment report with recommendations on those issues,
which must
then be submitted to the prosecutor before the commencement of the
preliminary inquiry. As shown none of this happened
on 7 July or 4
August 2014. On 4 September 2014, the prosecutor was still awaiting
the report.
[22] The enquiry magistrate may dispense with assessment but only if
it is in the best interest of the child to do so. It must
however
enter the reasons for that decision on the record of the
proceedings. He may also postpone the proceedings of a
preliminary inquiry for the purposes of further investigation of the
matter but not for a period exceeding 48 hours. This matter
was twice
after the arrest of accused on July 7 postponed on each period for
approximately a month whilst the accused was kept
in detention.
[23] To add to the woes of the accused, although s 45 (2) provides
that no information furnished by any person at a preliminary
inquiry
in relation to the child may be used against that child in any bail
application, plea, trial or sentencing.
proceedings, what took place at the commencement of the trial on 8
September 2014 was contrary to those provisions. No alternatives
were
as a result considered and yet children who have re-offended have
been diverted, depending on the circumstances. The court
proceeded
with the trial without a recordal of the reasons for failure to hold
an enquiry.
[24] After conviction the accused was further prejudiced in that he
was not afforded the benefit of the sentences prescribed in
Chapter
10 of the Act that are to be imposed on conviction of the child that
has been tried under the Act, which extends the sentencing
option
available in respect of such children that encourages restorative
justice. Instead, with the recommendation of the probation
officer
who confirmed the accused status as a drug abuser, imposed a sentence
in terms of s 296 (1) of Act 51 of 1977. The recording
is of a poor
quality making it difficult to follow the exact process followed.
[25] In Hiemstra's Criminal Procedure; an order in terms of s 296 (1)
of the CPA for the detention of the accused in a treatment
centre is
in itself a "sentence" or "punishment". The order
entails involuntary and possibly lengthy detention,
being a
substantial encroachment by the authorities by means of the criminal
procedure on the freedom of an individual, inherently
a sanction of a
punitive nature, a sentence (S
v
Tolmay
1980 (1) SA 182
-184A-B (NC);
S
v Reay
1987
(1) SA 873
(A); S v M
1991 SACR 91
(T)).
[26] As a result the sentence that was imposed is against the tenents
of the Child justice Act which recognises that before a sentence
of
incarceration or detention can be imposed, due regard should be taken
of the provision of s 28 (1) (g) of the Constitution.
The section
gives every child the right "not to be detained except as a
measure of last resort, in which case in addition
to the rights the
child enjoys under s 12 and 35 of the Constitution, the child may be
detained only for the shortest appropriate
period of time, and to be
kept separate from detained persons over the age of 18 years; and
treated in a manner and kept in conditions,
that take account of the
child's age, taking into consideration that the accused was 17 even
at the time of sentencing.
[27] The appropriate procedure is to set aside the proceedings in the
court a quo or the order sentencing the accused to a detention
centre
and to remit the matter back to the magistrate court for a proper
enquiry to be held and a proper sentence in terms of Chapter
10 to be
considered should it be necessary.
[28] I therefore make the following order:
[28.1] The order sentencing the accused in terms of s 296 (1) of the
Criminal Procedure Act is hereby set aside and the matter
is remitted
to the court a quo for a sentence to be dealt with in terms of
Chapter 10 of the
Child Justice Act.
>_____________
N
V
KHUMALO
Judge
of the High Court
Gauteng
Divion Pretoria
I
agree and it is so
ordered
_____________
N
KOLLAPEN
Judge of the High Court
Gauteng Division: Pretoria