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[2015] ZAFSHC 214
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T and Another v S (184/2015) [2015] ZAFSHC 214 (5 November 2015)
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Special Review
Number: 184/2015
In the review
between:
T. T.
M. M.
and
THE STATE
First Appellant
Second Appellant
Respondent
CORAM:
MOLEMELA, JP et REINDERS, AJ
JUDGMENT
BY:
REINDERS, AJ
DELIVERED
ON:
5 NOVEMBER 2015
[1]
This matter has been sent on special review in terms of
Section
304(4)
of the
Criminal Procedure Act, 51 of 1977
, from the Clocolan
Magistrate’s Court.
[2] Ms
PP Miti, Magistrate (Clocolan) in a letter attached to the special
review, briefly set out the following summary of the relevant
circumstances and facts:
“
The
accused in this matter appeared before the Magistrate on the 19th
August 2015 on a Charge of Housebreaking with the intent to
steal and
Theft.
The
Public Prosecutor put the charge to them and they both pleaded guilty
to the charge.
Their
Attorney (Mr Khumalo) read their statements in terms of
Section
112(2)
of the
Criminal Procedure Act 51 of 1977
into the record.
When
the Magistrate asked the Public Prosecutor if the State accepts the
Plea, the Public Prosecutor only then informed the court
that both
accused are still minors, both of them being 17 years old.
It
was not apparant from the J15 that they were minors.
Both
accused have pleaded guilty before the Magistrate but were not yet
convicted.
In
light of the above information, there was non-compliance with the
provisions of the
Child Justice Act 75 of 2008
.
The
Magistrate therefore requests the Honourable Judge in Chamber to set
aside the proceedings and the case to start
de
novo
in accordance
with provisions of the
Child Justice Act 75 of 2008
.
Original
Charge sheet and the transcribed record attached.
Awaiting
the Honourable Judge’s decision.”
[3]
Having read the record of the transcriptions together with the
supporting documentation attached thereto, it is evident that
Ms Miti
acted in accordance with the peremptory provisions of the Child
Justice Act 75 of 2008 (the Act). Section 16(2) of the
Act reads as
follow:
“
If
a presiding officer is of the opinion that an error regarding age may
have caused any prejudice to a person during the proceedings
in
question, the presiding officer must transmit the record of the
proceedings to the registrar of the High Court having jurisdiction,
in the same manner as provided for in
Section 303
of the
Criminal
Procedure Act, in
which event the proceedings must be dealt with in
terms of the procedure on review as provided for in
Section 304
as
the
Criminal Procedure Act.”
[4
] One
of the objects of the Act in terms of Section 2 (d) include the use
of diversion as a means of preventing minors being exposed
to the
adverse effects of the formal justice system. It is clear from the
record that neither the magistrate, prosecutor or legal
representative of the accused was aware of the fact that the accused
were minors at the onset of the proceedings. Only after the
accused
had pleaded guilty to the charges and their statements in terms of
Section 112(2) of the Criminal Procdure Act 51 of 1977
were read into
the record, it was brought to the attention of the magistrate that
the accused might be minors (which fact was later
confirmed). The
legal representative of the accused then indicated that he was
advised by his clients that they were eighteen years
of age. It is
thus clear that the prejudice that might have been caused to accused
can be found in the fact that the option of
diversion as is
contemplated in Section 52 of the Act, could not have been considered
by the prosecutor either at a preliminary
enquiry or at the trial.
Furthermore, Section 80(1) of the Act sets out the requirements that
the legal representative of minors
must comply with in order to act
on their behalf in criminal proceedings, including promoting
diversion. It follows that the legal
representative could not have
promoted diversion to the accused as he was unaware of the fact that
they were indeed minors, thus
also leading to possible prejudice that
might have been caused to the accused.
[5] It
is trite that a distinction is drawn between children and adults in
our criminal justice system as was confirmed once more
recently by
the Constitutional Court in
Mpofu v
Minister of Justice and Constitutional Development
2013 (2) SACR 407
(CC), referred to in
S
v Melapi
2014(1) SACR 363 (GP) at
369 paragraph [33]. In view of the fact that it was established that
the accused were under the age of
eighteen years when the alleged
crimes occured, (according to the record they have since turned 18 on
respectively 1 September
and 12 October 2015), the provisions of the
Act should indeed have been followed.
[5]
Consequently the following order is made:
4.1
The proceedings are set aside.
4.2
The matter is remitted back to the magistrate’s court to be
dealt with
de novo
in
accordance with the provisions of the
Child Justice Act 75 of 2008
.
_________________
C. REINDERS, AJ
I
concur.
____________________
M.B.
MOLEMELA, JP