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[2015] ZAKZDHC 72
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S v H.J (DR 162/15, 44/15, 23/14112/2015) [2015] ZAKZDHC 72; 2016 (1) SACR 629 (KZD) (15 September 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
High Court
Ref. No. DR 162/15
Magistrate’s
Serial No. 44/15
Case
no: 23/14112/2015
DATE:
15 SEPTEMBER 2015
In the matter
between:
THE STATE
Versus
[H……..]
[J……...]
Coram:
Chetty J and Jeffrey AJ (in chambers)
Date of judgment:
15 September 2015
SUMMARY: Juvenile
offender
17 years old – Malawian
– both parents deceased - charged with unlawfully entering and
remaining in South Africa without
a permit - age of accused
established only after conviction – matter remitted to court
a
quo
to commence
de
novo
to comply with
Child Justice Act
75 of 2008
including a preliminary inquiry and an investigation into
the diversion of matter from criminal justice system –
Immigration Act 13 of 2002
s 49(1)(a)
;
Child Justice Act 75 of 2008
Chapters 7 and 8.
JUDGMENT
Jeffrey AJ
[1]
This is a special review referred to this
Court by the presiding magistrate, Mr P B Bhengu, at the Durban
Magistrate’s Court,
who has requested that the conviction he
imposed on the accused be set aside and that the matter be referred
to the relevant children’s
court.
[2]
The accused was arrested on 9 August 2015
on a charge of contravening
s 49(1)(a)
read with ss 1, 9, 10, 25, 26
and 32 of the Immigration Act No. 13 of 2001. It was alleged that he
was from Malawi and he entered
or remained in South Africa without a
valid permit.
[3]
The matter came before the presiding
magistrate on 11 August 2015. The accused conducted his own defence,
pleaded guilty and was
convicted as charged. The charge sheet stated
that he was 18 years of age; but, before being sentenced, he informed
the presiding
magistrate that he was 17 years of age. Upon being so
informed, the presiding magistrate properly remanded the case to
enable the
Westville Youth Centre to assess the accused’s age.
This assessment was done and on 20 August 2015 the presiding
magistrate
was informed that it had been established that the accused
was indeed 17 years of age. In addition he was informed that the
accused’s
parents were dead and that the accused was living
with a friend in Sydenham. The presiding magistrate then ordered that
the accused
be detained at the Westville Youth Centre and he referred
the matter on special review to this Court.
[4]
The presiding magistrate properly concedes
that the conviction that he imposed does not comply with the
provisions of the
Child Justice Act, No. 75 of 2008
.
[5]
It is clear that the conviction cannot
stand.
[6]
But more than that, on the facts before us,
the accused is a minor, a foreign child whose parents are both dead
and his only brush
with the law, as far as we know, is his failure to
be in possession of a valid permit to be in South Africa. The
accused’s
background, what became of his parents, how he
entered South Africa, for what reason, how long he has been here, and
who, if anyone,
is caring for him are just some of the matters that
require thorough investigation.
[7]
I respectfully agree with what Victor J
said in
S v Ganie NO
2012
(2) SACR 468
GSJ 468j – 469a at para [1] -
‘
Deeply
embedded in the soul of our nation have been the protection and
appropriate care of our children in situations of acrimonious
matrimonial dispute, in wide-ranging forms of abuse, in orphanages,
and amongst child refugees and those who clash with the law.’
The
Child Justice
Act, No 75 of 2008
, which commenced on 1 April 2010, was enacted with
the specific objective of protecting the rights of children that are
entrenched
in the Constitution. Section 28(2) of the
Constitution requires that a child’s best interests have
paramount importance
in every matter concerning a child, subject to
any justifiable limitation under s 36: see
S
v M
[2007] ZACC 18
;
2008 (3) SA 232
(CC) 249E-250C at
para [26]. The first guiding principle set out in
s 3(a)
of the
Child Justice Act to
be taken into account in its application states
that 'all consequences arising from the commission of an offence
should be
proportionate
to
the circumstances of the child, the nature of the offence and the
interests of society'. Importantly the Act also provides
a mechanism
for diverting any matter concerning a child from the criminal justice
system. In my view, on the facts of this
case, a diversion of
this matter would seem to be appropriate and in the interests of
justice. But this must be thoroughly
investigated in terms of
Chapters 7 and 8 of the Act.
[8]
The order, therefore, that I propose is:
1. The conviction is
set aside.
2. The matter is
remitted to the court
a quo
to be commenced
de novo
and in compliance with the provisions of the
Child Justice Act, No.
75 of 2008
and in particular Chapters 7 and 8 of that Act.
JEFFREY AJ
I concur and it is so
ordered.
CHETTY J