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[2013] ZAGPPHC 192
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S v C.T (A506/2013) [2013] ZAGPPHC 192 (9 July 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: B168/2012
CASE
NO:A506/2013
DATE:09/07/2013
In
the matter between:
THE
STATE
and
CT
REVIEW
J U DG M E NT
Date
of Judgment: 3 July 2013
KUBUSHI,
J
[1]
The accused, a fifteen year old male, was convicted in the Tonga
regional court of the offence of murder. He was on 1 August
2012
sentenced to be detained for a term of five years at the Thokomale
Child Youth Care Centre. After sentencing the matter was
referred by
the trial magistrate to this court for a review of the proceedings in
terms of
section 304
of the
Criminal Procedure Act 51 of 1977
.
[2]
The matter was initially placed before Legodi J in chambers for a
review of the proceedings. Legodi J sent the matter back to
the trial
magistrate, W J Wilken, with a certain enquiry. When the trial
magistrate's response was received by this court, the
matter was
referred to Ledwaba J for finalisation. Ledwaba J also sent a query
to the trial magistrate. The queries of Legodi and
Ledwaba JJ
together with the trial magistrate's response thereto were sent to
the Office of the Director Public Prosecution (DPP)
for their
comments. The Deputy Director Public Prosecution (DDPP) in the office
of the DPP commented on the queries and sent them
back to Ledwaba J.
The matter was then placed before me in chambers to proceed with the
review.
[3]
The facts of the case are that the deceased together with the accused
and two of his friends W P N and B P N were swimming at
the gravel
dam at Langeloop Trust. There were other people at the dam including
Solomon. The accused pulled Solomon in and pushed
his head under
water. B and one M jumped into the water to rescue Solomon from
drowning.
The
deceased who was unable to swim, was sitting next to the dam and
assisted to pull Solomon out of the water. The accused then
left
Solomon, grabbed the deceased and pushed his head five times under
the water. After the fifth time the deceased did not reappear
above
the water surface. He eventually drowned. The accused warned the
others not to say that he caused the deceased to drown.
[4]
The enquiry by Legodi J sent to the trial magistrate read as follows:
'1.
The accused in this case was convicted of murder and sentenced as it
appears on pages 44 - 45 of the transcribed record.
2.
It is not clear as to why this case has been laid before the judge as
automatic review matter? Please clarify'
[5]
The response by the trial magistrate was that he/she was in terms of
section 85 of the Child Justice Act 75 of 2008 (the Act),
obliged to
send the matter on review irrespective of whether the accused was
legally represented or not. According to the trial
magistrate the
matter was referred for review in terms of section 85 of the Act
which states that -
'Automatic
review in certain cases: -
(1)
The provisions of Chapter 30 of the Criminal procedure Act dealing
with the review of criminal proceedings in the lower courts
apply in
respect of all children convicted in terms of this Act: Provided that
if a child was, at the time of the commission of
the alleged offence
-
(a)
Under the age of 16 years; or
(b)
16 years or older but under the age of 18 years, and has been
sentenced to any form of imprisonment that was not wholly suspended,
or any sentence of compulsory residence in a child and youth care
centre providing a programme provided for in section 191 (2)
(j) of
the Children's Act,
The
sentence is subject to review in terms of
section 304
of the
Criminal
Procedure Act by
a judge of the High Court having jurisdiction,
irrespective of the duration of the sentence.'
The
DDPP also confirmed that the matter was correctly referred for
review.
[6]
The trial magistrate also referred the reviewing judge to the
judgments in S v
S 2012
(1)
SACR 595 ECP and S v FM
2013 (1) SACR 57
GNP, wherein it was held
that section 85 (1) of the Child Justice Act 75 of 2008 (GA) provides
for the automatic review in respect
of all children convicted in
terms of the GA who are sentenced to any form of imprisonment not
wholly suspended, or any sentence
of compulsory residence in a child
and youth care centre providing a programme provided for in
section
191
(2) (j) of the
Children's Act 38 of 2005
, including children who
are so sentenced in a regional court.
[7]
The trial magistrate was indeed correct to have sent the matter on
review. The accused was fifteen years old at the time of
sentencing
and was sentenced to compulsory residence in a child and youth care
centre at Thukumula Child and Youth Centre. The
sentence was,
therefore, subject to review in terms of
section 304
of the
Criminal
Procedure Act.
[8
] Ledwaba J made the following
enquiry to the trial magistrate:
‘
1.
Having regard to the following:
1.1
W P N and BPN testified that the accused was pushing the deceased
into the water for some seconds and made him re-surface again
(See
page 11 - 12 and page 17 lines 1- 2).
1.2
Accused also pulled Solomon who was rescued by B and M, into the
water openly in view of other 15 boys.
2.
Has the state proved beyond reasonable doubt that the accused had the
intention to kill the deceased?
3.
Was the court not suppose [sic] to at least convict the accused on
culpable homicide?'
[9] The trial magistrate responded as
follows -
'The
Court considered the competent verdict of Culpable Homicide but on
the accepted evidence
drew
the inference that accused had the necessary intent (dolus evestualis
[sic]) to kill the deceased
in
special regard to the following facts:
(a)
B and M realised that S was drowning and had to use force to rescue S
(8 years) from being drowned by the accused. Accused held
him by his
arms and forced him under the water.
(b)
The deceased fought with accused not to press his head under the
water and screamed for help, yet accused persisted to push
his head
under the water. For anyone to be pushed under water without being
able to breath will result in him gasping for air and
will swallow
water. Anyone in his right mind will foresee that if this is repeated
for 5 times it will result in drowning.
(c)
After the 5th time deceased did not surface yet accused did nothing
to rescue him.
(d)
Accused knew that the deceased could not swim.
(e)
Accused warned the other children not to say he caused the deceased
to drown.
(f)
The fact that accused said that if deceased went to the dam he will
drown him is hearsay evidence. The court expected the state
to call
this witness which was not done, which result the accused attention
was not drawn to the hearsay evidence. The court ruled
this evidence
to be inadmissible.
(g)
The inference which the court drew that the accused was an aggressive
person and tended to bully children was later confirmed
in Exh A (pre
sentence report) Par 5.2, where it is stated.
"..
. he was ill treating other learners. It is also mentioned that he
formed a gangster inside the school premises known as
TS, meaning "T
S" we are beating. Accused was the leader of the group which was
very disruptive at school . . . and the
learners were no longer safe
in the school."
As
mentioned in 5 v Lloyd Supra of my judgment page 39 line 25 and page
40, top paragraph - there need not be a purpose to kill
proved as an
actual fact, it is sufficient if there is an appreciation that there
is some risk to life involved in the action contemplated
coupled with
recklessness as to whether or not risk is fulfilled in death. See
also S v Segwala Supra page 39 of my judgment.
Accordingly
the court inferred that the only reasonable inference the court can
draw, including any other reasonably inference,
is that the accused
had the necessary intent (dolus eventualis) to drown and kill the
deceased and convicted him of murder.'
[6]
The DDPP, correctly so in my view, confirmed that the trial
magistrate was correct to convict the accused of murder on the basis
of dolus eventualis or legal intention. According to the DDPP, the
conduct of accused fulfilled the prerequisites for the presence
of
legal intention or dolus eventualis in that: It was the state's
evidence that the accused initially grabbed Solomon and dunked
him in
the water. Solomon had to be rescued from the accused by B and M.
Thereafter the accused left Solomon and grabbed the deceased,
Sabelo,
and proceeded with the same conduct of dunking him in the water at
least three times until Sabelo failed to resurface.
The conduct of
the accused in dunking the deceased was not an isolated incident but
one that followed upon the dunking of another
child. Despite being
aware that Solomon had been rescued, the accused recklessly persisted
in dunking the deceased. This conduct
shifted what could have been
construed as childish horseplay to one of reckless endangerment to
life which endangerment subsequently
translated into the loss of
life. The DDPP submitted that when Solomon had to be rescued the
accused must have had an appreciation
of the risk to life that his
conduct of dunking posed. He nonetheless recklessly persisted in the
same conduct with the deceased.
In addition, both state witnesses
testified that the deceased could not swim well. The accused's
version also indicated that the
deceased could not swim well. Despite
knowing that the deceased was not a good swimmer, the accused
persisted with dunking him.
The state proved beyond reasonable doubt
that the accused had the intention in the form of dolus eventualis to
murder the deceased
and was therefore correctly convicted.
[7]
The DDPP referred the reviewing judge to the judgments in S v De
Bruvn en 'n Ander
1968 (4) SA 498
(A) at 500, 502 - 503, 506 and 511,
Llovd v The State 1963 (2) PH 343 H157, S v Shaik and Others
1983 (4)
SA 57
(A) at 62A - B and Tshokolo David Radebe vThe State case NO.
45/2009. A178/10, Free State High Court: Bloemfontein, 28 July 2011.
It was stressed in those judgments that legal intention to murder
does not per se connote a lesser degree of blameworthiness than
actual intention. It is sufficient if the accused foresaw the
possibility of the existence of the circumstance and was reckless
as
to whether it existed or not, that is, if he had legal intention or
dolus eventualis.
AD
SENTENCE
[8]
The DDPP raised the following issues in respect of the sentence:
'The
accused was convicted of a schedule 3 offence and in terms of
section
77
(3) (a) of the
Child Justice Act 75 of 2008
he could have been
sentenced to a term of imprisonment. However, in the circumstances of
this case, it is respectfully submitted
that the imposed sentence is
fair. It further accords with the provisions of
sections 76
(1) and
76
(2) of Act 75 of 2008. It is however noted that the imposed
sentence differs from that which had been recommended by the
probation
officer. The provisions of section 71 (4) of Act 75 of 2008
enjoins the presiding officer who imposes sentence other than that
recommended by the probation officer to enter the reasons for the
imposition of the different sentence on the record. The learned
magistrate failed to do so. However, the imposed sentence is in fact
more lenient than that recommended by the probation officer
and as
such does not prejudice the accused. Accordingly therefore, the
sentence is not vitiated by the omission. Of further concern
is the
probation officer's report which states that the accused was
previously removed from school because it was felt that the
learners
were no longer safe due to the accused behavioural problems. In terms
of section 29 (2) (c) of Act 75 of 2008, the learned
magistrate ought
to have determined if the accused's behavioural problems placed other
children at the Youth Centre at risk or
danger. It is respectfully
submitted that this concern does not vitiate the imposed sentence.'
The
DDPP further recommended that the record be remitted to the trial
magistrate to determine whether the accused's behavioural
problems
would not place other children at the Youth Centre at risk or in
danger.
[13]
I am in agreement with the DDPP that -
a.
the sentence imposed upon the accused is fair in the circumstances
of this matter and that it accords with the provisions of
sections 76
(1) and (2) of Act 75 of 2008.
b.
the sentence imposed is not vitiated by the trial magistrate's
omission to record the reasons why he/she deviated from the sentence
recommended by the probation officer.
c.
the sentence is not vitiated by the trial magistrate's failure to
determine whether the accused behavioural problems would place
the
other children at the Youth Centre under risk or danger.
d.
the record should be remitted to the trial magistrate for such
determination.
[14]
Consequently I make the following order: a. the conviction is
confirmed.
b.
the sentence imposed is confirmed.
c.
the record is remitted to the trial magistrate for a determination of
whether the accused's behavioural problems would place
the other
children at the Youth Centre under risk or danger.
E.
M. KOBUSHI
JUDGE
OF THE HIGH COURT
I
concur and it is so ordered
E.
M. MAKGOBA
JUDGE
OF THE HIGH COURT