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[2014] ZAFSHC 89
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S v P (322/2013) [2014] ZAFSHC 89 (5 June 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Review
No.: 322/2013
In
the review between:
THE
STATE
versus
S[…]
B[…] P[…]
CORAM:
LEKALE, J
et
MBHELE, AJ
JUDGMENT
BY:
MBHELE, AJ
DELIVERED
ON:
5 JUNE 2014
[1]
On the 27
th
March 2013 the accused, who was born on […], was convicted, on
his plea of guilty, of theft by the child justice court at
Bethulie
and eventually sentenced as follows on the 5
th
August 2013 in the light of,
inter alia
,
his previous conviction for housebreaking with intent to steal and
theft :
“
In
terms of the provisions of
section 76
of the
Child Justice Act No 75
of 2008
the accused is hereby sentenced to compulsory residence or
placement at a reform school to wit, Ethokomala Youth Care Centre,
Kinross
in Mpumalanga.
”
[2]
The matter, eventually, served before Lekale, J on automatic review.
He, directed the following query to the trial court:
“
Has
the accused been sentenced to compulsory residence or placement at
the Child and Youth Care Centre for an indefinite period
of time?
If so, why and on what legal basis?
”
[3]
The learned magistrate has gratefully since responded that:
“►
The
sentence that the Court envisaged was in terms of the provisions of
Section 76[1]
and [2] of the
Child Justice Act 75 of 2008
–
compulsory residence at a child and youth care centre for a period of
not exceeding 5 years OR until the child reach the
age of 21
whichever is the soonest
.
►
By
mistake, this was however not included in the final wording of the
sentence.
►
It
would be appreciated if you could amend the wording of the sentence
imposed on 05 August 2013 to make provision for such.
”
[4]
I am in respectful agreement with the learned magistrate that the
sentence must be corrected insofar as it is not in accordance
with
the law and it, effectively, exceeds the trial court’s penal
jurisdiction in terms of section 76 of the Child Justice
Act 75 of
2008(the CJA).
[5]
Lekale J returned the matter to the trial court with a further query
, requesting to be furnished with complete record of the
plea
proceedings herein as the record did not reflect same.
It
is not apparent ex facie the magistrate’s notes that the
accused’s guardian confirmed his plea of guilty . In this
regard it is noted that the section 112(2) statement is only signed
by the legal representative and the accused. It is not co-signed
by
the guardian.
It
is further apparent form the pre-sentence report viz. paragraph E. 4
that the accused could not be controlled by his grandmother,
father
and step-mother. It is, thus, difficult to see how confirmation of a
guilty plea by any such guardian could stand scrutiny.
The name of
the guardian is also not apparent form the report and someone who
identified the accused as her son testified for
the state on charge
2.
Even
if the guilty plea was confirmed by the guardian, would it not have
been proper to invoke the provisions of section 304 A
OF THE
Criminal Procedure Act after receipt of the pre-sentence report in
order to enter a plea of not guilty on charge no. 1
viz. theft
regard being had to paragraph E. 4 of such report?
[6]
The learned magistrate has gratefully responded as follows:
“
Add
Paragraph 1:
The
plea proceedings dated 27 March 2013 was indeed mechanically
recorded by way of the DCRS recording machine.
Upon
receipt of the reviewing judge’s queries the relief DCRS
operator was requested to locate said recording and burn a
CD for
despatch to the transcribers.
She
was able to trace the recording made on 27 March 2013 on the DCRS
machine.
Every
attempt thus far to open the recording and to listen to same or to
burn same to a CD was unsuccessful.
The
relief DCRS operator informed me that she has locked a call to
Helpdesk to have this problem addressed as speedily as possible.
Unfortunately
the recording could not be opened, retrieved or burned to a cd for
transcription.
I
could however trace my personal handwritten notes on the proceedings
and was able to reconstruct the missing record from that,
in
conjunction with the Legal Representative of the accused as well as
the Prosecutor.
I
also include my original handwritten notes for easier reference.
I
humbly request you to accept same as a true reflection of what
transpired in court on 27 March 2013.
Add Paragraph 2:
Signature
of guardian not on Section 112[2] Act 51/1977 statement:
Section
112[2] Act 51/1977 allows an accused or his legal adviser to hand in
a written statement by the accused into court;
It
is trite that the accused must set out the facts which he admits and
on which he wants plead guilty.
If
there is anything unclear in the contents of such statement, the
presiding officer may put any question to the accused in order
to
clarify same.
If
the presiding officer may on the strength of such statement convict
the accused if he is satisfied that the accused is guilty
of the
offence so pleaded guilty to, and after an indication by the State
that the plea is excepted on the basis as submitted
by the accused.
Criminal
Procedure Act does not expressly provide that such statement should
be signed by the accused or his representative.
It
has however become practise that the accused and the representative
sign the said statement.
When
the
Child Justice Act 75 of 2008
is perused is clear that such
legislation does not place further and or additional requirements on
the proceedings of a guilty
plea in terms of section 112[2] of the
Criminal Procedure Act.
In
the matter in question I was satisfied that the section 112[2]
statement prepared by the legal representative conformed to
all the
requirements sets out by the Criminal Procedure Act, as accepted by
the State on the facts set out by the accused.
The
accused has also confirmed the contents of said statement as true
and correct as well as his signature on the last page of
same, and
that the plea was enlisted the plea freely and voluntarily.
Neither
the Criminal Procedure Act [51/1977] nor the
Child Justice Act
[75/2008
] expressly requires the guardian to co-sign the plea.
However
the signature of the legal representative confirms assistance to the
minor.
The
guardian did however confirm that he is satisfied with the plea
entered.
The
absence thereof could therefore, in my humble opinion, not vitiate
the legality of the plea proceedings.
Even
if the Honourable Review Court is of the opinion that the Presiding
Officer misdirected herself in this regard, the conviction
can still
be confirmed as set out in
S v
Bernardus
1965 [3] SA 287 [A];
S
v Pillay
1977 [4] SA 531 [A],
S
v Pieters
1987 [3] SA 717 [A].
Add Paragraph 3:
Accused
being assisted by his biological father who is also the complainant
in regard to the charge of theft:
According
to the provisions of the
Child Justice Act 75 of 2008
an accused
child must be assisted by an appropriate adult or guardian.
If
good cause is shown the Presiding Officer can dispense with this
requirement if it is in the interest of child, or is not prejudicial
to the administration of justice.
Child
Justice Act 75 of 2008
also provides that the parent, guardian or
appropriate adult can also apply to be exempted from attending the
court proceedings
against the child.
It
is required that such exemption is granted, it must be in writing.
In
exceptional circumstances the Presiding Officer can even appoint an
independent observer to assist a minor.
“
Appropriate
adult
” means any member of a child’s family,
including a sibling who is 16 years or older, or care-giver referred
to in
section 1 of the Children’s Act;
Guardian in terms
of the Children’s Act means a parent or other person who has
guardianship of a child;
Under
normal circumstances
I would be very hesitant to allow a
guardian who is also the complainant in one of the charges to assist
a minor accused.
In
allowing the biological father to stand as guardian. I have
taken in consideration the minor accused’s household
and
personal circumstances.
The
biological father, Mr V[…] G[…] S[…] assisted
the minor during the proceedings and his second wife; the
accused
step-mother P[…] A[…] M[…]; accompanied the
latter at each and every court appearance.
Every
single time the minor accused found himself in trouble with the law,
his biological father and step-mother step up to the
plate to assist
him, despite the fact that he has left his parental home [1814 B[…]]
to stay at House 171 Extention 7
B[…].
I
was also satisfied that the best interests of the minor world also
be suitably protected by the fact that the minor accused
was legally
represented by Mr. J. Jantjies – one of the more senior
attorneys of LASA.
That
coupled with the part that Mr. B[…] S[…] P[…]
was able to positively engage with the legal representative
and to
articulate his wishes and instructions with referene to the court
proceedings would in my view mitigate and prevent any
possibility of
the biological father trying to pressurize or persuade the child to
conform to the father’s wishes.
It
is also necessary to note in this regard that up until now, the
biological father could not succeed in convincing the said
minor to
conform to his wishes or to submit to his control or to listen to
his instructions and or advise.
When
the contents of the last paragraph on page 7 of the pre-sentence
report is considered:
“
S[…]
feels that he is old enough and able to care for himself”
and the first line of the paragraph marked as “
Evaluation”
on page 8: “
S[…] is a
teenager and knows what is best for himself”
one is left with the realization that he [S[…]] knows what he
wants, and that he would not be influenced by any opinion
of his
biological father or step-mother would have had in this regard.
This
is also underlined by the fact that despite various social workers
best efforts and instructions, Mr. B[…] S[…]
P[…]
steadfastly chose to ignore their inputs.
It
is my humble opinion that the presence of the biological father, Mr.
V[…] G[…] S[…] [who is also the complainant
with reference to the charge of theft] as the accused’s
guardian cannot vitiate the legality or fairness of the proceedings.
I
actually feel sorry for this child because he is really clever and
have the potential to make something of his life. If
he puts
as much effort into his life and future as he put into his criminal
and gang related behaviour, he could be anything
he could imagine.
Application
of Section 304A Criminal Procedure Act 51/1977:
I
did not consider said provisions since I was not of the opinion that
the proceedings in respect of which I noted a plea of guilty
and
brought in a conviction was not in accordance with justice.
Based
on what was said before, I am still of the opinion that Mr. B[…]
S[…] P[…] intended to plead guilty
to the theft
charges, and that the plea was in accordance with the prescripts of
the law and the interests of justice and that
he was duly
represented by one of the more senior legal representatives of LASA
Colesberg.
Furthermore
according to S v Klaase 1998 [1] SASV 317 [K] section 304A [Act
51/1977] is not applicable in instances where an accused
is being
assisted by a legal represented during trial proceedings.”
[7]
I am satisfied, owing to the reasons advanced by the learned
magistrate that the record inclusive of notes provided are a true
reflection of the plea proceedings of the 27 March 2013.
[8]
The
Child Justice Act 75 of 2008
provides that an accused child must
be assisted by an appropriate adult or guardian. The Act further
allows Presiding Officers
to dispense with the above requirement if
it is in the interest of a child or it is not prejudicial to the
Administration of Justice.
[9]
I accept the explanation by the magistrate on why she allowed the
biological father to stand in as a guardian of the accused
although
he was the complainant on a charge wherein the accused was convicted,
regard being had to the accused’s family set
up and the fact
that he was legally represented throughout the proceedings.
[10]
After having considered all relevant factors in this case , I am
convinced that the conviction cannot be faulted and stands
to be
confirmed regard being had to the accused’s statement submitted
in terms of section 112(2) of the Criminal Procedure
Act, 51 of 1977
(the “CPA”) co-signed by his legal representative.
[11]
In the letter referring the matter for review the learned magistrate
laments the delay in dispatching the record and points
out that:
“
Verrigtinge
in bogemelde saak is meganies genotuleer en is die CD’s na
afloop van die verrigtinge deur die hofklerk gebrand
vir versending
na Krino Transkripsies.
·
Ten einde die prosesse rondom
Hersienings en die effektiewe hantering daarvan te vergemaklik het ek
‘n handleiding vir die
Kantoorbestuurder opgestel.
·
Huidiglik werk die Bethulie kantoor met
die 5de Waarnemende Kantoorbestuurder in die kwessie van ongeveer 2
jaar.
·
Ek self het verskeie navrae gerig ten
aansien van die vordering hierin en is ek telkens meegedeel dat die
transkripsies nog nie
vanaf Krino Transkripsies ontvang is nie en dat
die Hersiening gevolglik nie gefinaliseer kon word nie.
Afskrifte van die
e-posse wat hierop betrekking het word aangeheg vir
u aandag.
·
Uit die aangehegte e-posse sal u opmerk
dat des ondanks my navrae rondom die vordering van die Hersienings;
dit eers op 16 Oktober
2013 na vore gekom, nadat ek op afskrifte van
die J 33 dokumente aangedring het, waarmee die CD’s weggestuur
sou gewees het,
het dat die Hersieningsklerk nooit die CD’s met
die verrigtinge op na Krino Transkripsies versend het nie.
·
Hierdie situasie is gerapporteer aan …,
die waarnemende ‘Area Court Manager’ - geen terugvoer is
nog ontvang
nie.
·
Ek het persoonlik weer twee weke gelede
navraag gedoen en vasgestel dat die getikte oorkonde deur Krino
Transkripsies na die Bellville
Landdroskantoor versend is. Geen
redes hiervoor kon aan my verskaf word nie.
·
Gemelde notules is gister vanaf
Bellville Landdroskantoor ontvang.
·
Met ontvangs daarvan het ek onmiddellik
al die stukke gevra sodat ek dit self kon bind, net om uit te vind
dat die getikte notule,
waarop die klerk die tikfoute moes reg maak
op die vorige waarnemende Kantoor Bestuurder se rekenaar is en hy
sedert hy weg is
by hierdie kantoor op siekverlof in die Oos-Kaap is.
·
Al uitweg wat oor was, was om self maar
weer die notules oor te tik.
·
Die gevolg van al bogemelde gebeure is
dat die hersiening vandag op ‘n baie laat stadium aan u
beskikbaar gestel word vir
oorweging. Ontvang asseblief my
verskoning en ook die van die klerklike personeel hiervoor.
·
Dit is my versoek dat u my verskoning
hierin sal aanvaar. Op hierdie stadium kan daar nie werklik
melding gemaak word van
administratiewe ondersteuning vir die
Landdros nie, en ten einde ‘n deurlopende diens aan die publiek
te lewer, moet ek op
‘n daaglikse basis ook klerklike pligte
verrig, benewens my pligte in die hof. Twee van die klerklike
poste by hierdie
kantoor sowel as die pos van die Kantoorbestuurder
is ook al baie lank vakant.
”
[11]
In her response to the initial query referred to earlier, the learned
magistrate, further, points out as follows in the covering
letter
“
Due
to yet another shift in the appointment of an Acting Office Manager
for this office the queries were only brought to my attention
today.
Therefore the late response. Please receive my apologies in
this regard.
”
In
this regard it should be noted that the query concerned was directed
to the learned magistrate on the 17
th
December 2013 and her response bears the date stamp of the 31
st
January 2014.
[12]
The importance of timeous despatch of the record for automatic review
purposes cannot be overemphasised. Section 303
of the CPA
enjoins the clerk of the court to despatch the record of the
proceedings to the registrar of the relevant High Court
within one
week of the determination of the case which is reviewable in the
ordinary course. The automatic review procedure,
as provided
for by our criminal justice system, forms an integral part of the
constitutional right to a fair trial and demands
that the process
unfold expeditiously. Failure to oblige may lead to serious
injustices and may lay the basis for civil litigation.
(See:
S v Lewies
1998 (1) SACR 101
(C);
S
v Maluleke
2004 (2) SACR 577
(T);
and
S
v Mekula
2012 (2) SACR 521
(ECG).)
[13]
I am satisfied that, on the part of the trial magistrate, cogent and
convincing reason has been advanced for the delay with
the accusing
finger firmly pointing in the direction of the service provider and
members of the trial court’s support staff.
The CPA does
not saddle such a service provider with any duty towards the court.
Its obligations arise
ex contractu
towards the Department of Justice and
Constitutional Development. It is, thus, for the Department to
take the matter up with
the relevant service provider. As for the
tardiness on the part of one or more members of the support staff
attached to the trial
court, I can only point out that it is totally
unacceptable that the administration of justice should be compromised
and allowed
to suffer because of instabilities in personnel
placements and sheer lack of appreciation for the nature and
importance of the
role one’s position serves in such
administration.
[14]
The Department is, further, urged to give magistrates the necessary
support and always to remember that, for optimal performance
on their
part and efficient service to the public, an atmosphere conducive to
proper administration of justice in the form of,
inter
alia
, dependable and dedicated support
staff is a
sine qua non
.
On our part we can only commend the learned magistrate for the
dedicated and sterling service she renders, inclusive of the manual
she has developed for the purposes of skilling and empowering members
of her support staff.
[15]
The Department is, furthermore, encouraged to give this matter and
others like it, if any, the urgent attention they desperately
scream
out for with a view to promoting and enhancing efficiency in the
administration of justice. For all these reasons it is,
in our view,
imperative for the Registrar to bring this judgment to the attention
of the Office of the Regional Director of the
Department in
Bloemfontein.
ORDER
[16]
The conviction is confirmed, but the sentence is corrected to read as
follows:
“
The
accused is sentenced to 3 (three) years’ compulsory
residence/placement at a reform school, namely Ethokomala Youth Care
Centre in Kinross, Mpumalanga in terms of
section 76
of the
Child
Justice Act No 75 of 2008
.
”
[12]
The order relating to the provisions of
section 103
of
Firearms
Control Act No 60 of 2000
remains in place.
[13]
The sentence is antedated to 5 August 2013.
[14]
The Registrar shall make a copy of this judgment available to the
office of the Regional Director: Department of Justice and
Constitutional Development in Bloemfontein.
________________
N.M. MBHELE, AJ
I
concur.
______________
L.J. LEKALE, J