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[2013] ZAFSHC 96
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S v Sekoere (70/2013) [2013] ZAFSHC 96; 2013 (2) SACR 426 (FB) (27 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 70/2013
In the matter between:-
THE STATE
and
THABO SEKOERE
_____________________________________________________
CORAM:
KRUGER, CJ MUSI
et
DAFFUE, JJ
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
27 JUNE 2013
_____________________________________________________
I
INTRODUCTION
[1] This judgment
concerns the question whether a case in which a 16 or 17 year old
child was legally represented at the trial and
sentenced to
imprisonment that was not wholly suspended must be sent on automatic
review to the High Court.
[2] This matter came
before us from the Welkom Magistrates’ Court by way of
automatic review. In view of conflicting judgments
on the issue a
full bench was convened by the acting Judge President of this
division to deal with the matter. Adv Liebenberg of
the Office of the
Director of Public Prosecutions and Adv I van Rhyn of the local Bar
who acted as
amicus curiae
are sincerely thanked for preparing
helpful heads of argument and presentation of oral submissions at
short notice.
[3] The accused, a
17-year-old child, together with a major co-accused were charged with
the offence of housebreaking with the intent
to steal and theft. Both
accused were represented by a legal representative. They pleaded
guilty and written statements in terms
of s 112(2) of the Criminal
Procedure Act, 51 of 1977 (“the CPA”) were prepared on
their behalf, read into the record
and handed in as exhibits. On 6
December 2012 they were convicted as charged.
[4] On 22 February 2013
and only after a pre-sentence report and
viva voce
evidence of
Ms Hans, a probation officer in the employ of the Department of
Social Development, Free State Province had been considered,
the
court
a quo
sentenced the minor accused to twelve months’
imprisonment. His list of previous convictions indicated two previous
convictions
of housebreaking with the intent to steal and theft
committed in 2011 and 2012 respectively and one conviction of
escaping from
custody in 2012. His co-accused was sentenced to nine
months’ imprisonment.
[5] These review
proceedings concern the minor accused only and from now on he will be
referred to as “the accused’.
His co-accused was a major
person when the crime was committed and he was represented by a legal
representative at the trial. Consequently
he is not entitled to
automatic review as the provisions of s 302(3) of the CPA apply.
[6] At the heart of this
judgment is the interpretation of s 85(1) of the Child Justice Act,
75 of 2008, (“the CJA”)
which deals with automatic review
in certain cases. The cardinal question is whether 16 and 17 year old
children who have been
sentenced to any form of direct imprisonment
are entitled to the benefit of automatic review notwithstanding being
legally represented
during the trial. Various contradictory judgments
will be considered
infra
and particular emphasis will be
placed on the development of child justice instruments across the
world and in our country in particular.
II
HISTORICAL
DEVELOPMENT LEADING TO INTERNATIONAL CHILD JUSTICE INSTRUMENTS AND
THE CJA
[7] Section 85(1) of the
CJA reads as follows:
“
85.
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
.”
(emphasis added)
A casual reading of
s
85(1)
makes it clear that not a word is said about legal
representation of the child during his trial. Contrary to this,
s
302(3)
of the CPA stipulates that no right of automatic review exists
in the event of an accused being legally represented at his trial.
In
order to consider this apparent anomaly it is necessary to delve into
the history to establish the
ratio
for the creation of the CJA
and
s 85
in particular. This we are entitled to do to ensure that a
proper approach to interpretation of the conflicting statutes and/or
sections is adopted.
[8]
The following passages in the judgment of Wallis, JA, written for the
full court in
Natal Joint Municipal Pension Fund v
Endumeni Municipality
,
2012 (4) SA 593
(SCA)
are
apposite:
“
[18]
……Interpretation is the process of attributing meaning
to the words used in a document, be it legislation, some
other
statutory instrument, or contract, having
regard
to the context
provided by reading the particular provision or provisions in the
light of the
document
as a whole
and the
circumstances
attendant upon its coming into existence
.
Whatever the nature of the document, consideration must be given to
the
language
used
in the light of the ordinary rules of grammar and syntax;
the
context
in which the provision appear;
the
apparent purpose to which it is directed and the material known to
those responsible for its production
.
Where more than one meaning is possible each possibility must be
weighed in the light of all these factors. The process is objective,
not subjective.
A
sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike results or undermines the apparent purpose
of the
document
.”
“
[19] ….
from the outset one considers the context and the language together,
with neither pre-dominating over the other.
This is the approach that
courts in South Africa should now follow, …”
“
[25] ….
Most words can bear several different meanings or shades of meaning
and to try to ascertain their meaning in the
abstract,
divorced
from the broad context
of their use, is an
unhelpful
exercise. The expression can mean no more than that, when the
provision is read in context, that is the appropriate meaning to
give
to the language used. At the other extreme, where the context makes
it plain that adhering to the meaning suggested by apparently
plain
language would lead to a glaring absurdity, the court will ascribe a
meaning to the language that avoids absurdity. This
is said to
involve a departure from the plain meaning of the words used.”
“
[26] …
In resolving the problem, the
apparent
purpose
of the provision and the
context
in which it occurs will be
important
guides to the correct interpretation
.
An interpretation will not be given that leads to impractical,
unbusinesslike or oppressive consequences or that will stultify
the
broader operation of the legislation or contract under
consideration.”
(emphasis added)
[9]
With due deference to Wallis JA one may add that once a statutory
provision is considered to be reasonably capable of different
meanings, the court confronted with its interpretation should prefer
an interpretation which
better
promotes
the spirit, purport and objects of the Bill of Rights.
See
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd
[2008] ZACC 12
;
2009
(1) SA 337
(CC) paras [46], [84] and [107]. All aspects relating to
the purpose and context of the CJA will be dealt with
infra
whereafter
a critical evaluation of the review procedure of sentenced children
will be undertaken with reference to certain conflicting
judgments.
[10]
In a research report by Ann Skelton and Charmain Badenhorst published
in
Child
Justice Alliance
(2011)
under
the title “The Criminal Capacity of Children in South Africa:
International Developments and Considerations for a Review”,
they held the view that the United Nations Convention of the Rights
of a Child, 1989 and related international instruments provide
the
seminal international framework within which children in conflict the
law should be managed. Prominent in this regard are the
United
Nations Standard Minimum Rules on the Administration of Juvenile
Justice, 1985, (the Beijing Rules), the United Nations
Guidelines for
the Prevention of Juvenile Delinquency, 1990, (the Riyadh
Guidelines), the United Nations Rules for the Protection
of Juveniles
Deprived of their Liberty, 1990, (the UN JDL Rules). Article 3(1) of
the United Nations Convention on the Rights of
a Child provides that
in all actions concerning children, whether undertaken by the public
or private social welfare institutions,
courts of law, administrative
authorities or legislative bodies, the best interests of the child
shall be a primary consideration.
This provision resonates not only
in article 4(1) of the African Charter on the Rights and Welfare of a
Child, 1990, but also in
s 28(2) of the Constitution of the Republic
of South Africa and s 9 of the Children’s Act, 38 of 2005.
[11] Section 28(2) of our
Constitution stipulates that the best interests of a child, to wit a
person under the age of eighteen
years, are of paramount importance
in every matter concerning the child. In
Centre for Child Law v
Minister of Justice
2009 (2) SACR 477
(CC), Cameron J,
writing for the majority, considered children’s rights under
the Bill of Rights in dealing with the minimum
sentences regime, the
Criminal Law Amendment Act, 105 of 1997
. Whilst recognising that
children do commit heinous crimes, he emphasised that the
Constitution draws a “sharp distinction
between children and
adults not for sentimental considerations, but for practical reasons
relating to children’s greater
physical and psychological
vulnerability.” See paras [26] and [29]. The “best
interests” principle is echoed
in the Children’s Act with
reference to s 6 and 7 and 9 thereof in particular, in the CJA with
reference to the preamble,
s 2, as well as the various special
measures introduced to give effect to the aforesaid constitutional
rights of children.
[12] The CJA, according
to its long title, aims to establish a criminal justice system for
children who are in conflict with the
law and are accused of
committing offences, in accordance with the values underpinning the
Constitution as well as our country’s
international
obligations. In the preamble the right of a child not to be detained
except as a measure of last resort and if detained,
only for the
shortest appropriate period of time, is recognised. This is in line
with s 28(1)(g) of the Constitution. If the CPA
is read in its
entirety there can be no doubt that the legislature intended to
create a new criminal justice system for minor accused.
It introduced
a comprehensive system of dealing with child offenders regarding
their treatment and there is no doubt that the legislature
intended a
decisive break with the traditional criminal justice system. The
following should be mentioned in addition to these
remarks
:
(i) in terms of chapter 7
an informal inquisitorial pre-trial procedure is in place;
(ii) children are
assessed in accordance with the provisions contained in chapter 5 of
the Act;
(iii) diversion in terms
whereof children are dealt with outside the formal criminal justice
system may be effected in accordance
with the provisions of chapter
8;
(iv) there are special
guidelines pertaining to trials and sentencing as contained in
chapters 9 and 10;
(v) as will be shown
infra,
special measures have been adopted in chapters 11 and
12 for legal representation, reviews and appeals,
(vi) the expungement of
records of certain convictions and diversion orders in accordance
with the provisions of chapter 13, and
(vii) the establishment
in chapter 14 of One-Stop Child Justice Centres to promote
co-operation between various government departments
and between them
and Non-Governmental organisations and civil society to ensure an
integrated and holistic approach in the implementation
of the CJA.
See in general: Kruger A,
Hiemstra’s Criminal Procedure
,
loose-leaf ed at 28-60
et seq.
[13] Section 82 of the
CJA stipulates that a child should be provided with legal
representation at the State’s expense, whilst
s 83 endorses the
legislature’s concerns pertaining to legal representation for
children as follows:
“
83
Child
may not waive legal representation in certain circumstances
–
No child appearing before a child
justice court may waive his or her right to legal representation;
If the child referred to in
subsection (1) does not wish to have a legal representative or
declines to give instructions to an
appointed legal representative,
the court must enter this on the record of the proceedings and a
legal representative
must
, subject to the provisions of the
Legal Aid Guide referred to in section 3A of the Legal Aid Act, 1969
(Act No 22 of 1969), be
appointed by the Legal Aid Board to assist
the court in the
prescribed manner
.”
(emphasis
added)
[14] Legal assistance in
the “prescribed manner” is set out in detail in reg 48 of
the regulations published in terms
of the CJA in GN 251 of GG 33067
on 31 March 2010:
“
48(1) A
legal representative appointed in terms of section 83 of the Act to
assist the court must –
attend all the court proceedings in
respect of the case unless, excused by the court;
address the court on any matter
requested by the court;
have access to the documents and
statements in the docket to the extent permissible in criminal
proceedings; and
ensure that the best interests of the
child are upheld at all times.
(2) A legal representative appointed
to assist the court may -
(a) address the court on the merits
and procedural aspects of the case;
(b) address the court on the sentence
to be imposed;
(c) cross-examine a witness in
relation to the evidence adduced by the witness;
(d) discredit the evidence of a
witness;
(e) raise an objection to a question
posed to the child or state witness;
(f) question the admissibility of
evidence led by the state;
(g) present evidence that will be in
the best interests of a child;
(h) assist in any other manner as the
court may request.
(3) A legal representative may attend
the proceedings of a preliminary inquiry if so requested by the
inquiry magistrate.”
The effect of the
statutory provisions is that it is unthinkable, or at least highly
unlikely, that a minor accused will ever be
without legal
representation. Section 85(1) must be interpreted not only within
this context, but also in light of the international
instruments
referred to and our Constitution.
[15] Unlike under the CPA
applicable to accused in general, s 84 of the CJA provides for an
automatic right of appeal without the
necessity to apply for leave to
appeal in respect of minor accused and in particular 16 and 17 year
old accused, but only in the
event of a sentence of
imprisonment
in any form
not wholly suspended
. No such proviso applies to
accused under the age of 16 years. The wording “imprisonment
not wholly suspended” is also
contained in s 85. Clearly and
notwithstanding the purpose of the CJA in general and the beneficial
provisions thereof, both s
84 and s 85 limit the rights of minor 16
and 17 year old accused, in situations where sentences of
imprisonment are
wholly
suspended. In the first instance the
minor accused does not have an automatic right of appeal and in the
second instance no automatic
right of review.
[16] Section 302(1)(a) of
the CPA reads as follows:
“
(1)(a) Any
sentence imposed by a magistrates’ court –
(i) which, in the case of imprisonment
(including detention in a child and youth care centre providing a
programme contemplated
in section 191(2)(j) of the Children’s
Act, 2005 (Act 38 of 2005), exceeds a period of three months, if
imposed by a judicial
officer who has not held the substantive rank
of magistrate or higher for a period of seven years, or which exceeds
a period of
six months, if imposed by a judicial officer who has held
the substantive rank of magistrate of higher for a period of seven
years
or longer;
(ii) …………
shall be subject in the ordinary
course to review by a judge of the provincial or local division
having jurisdiction.”
[17] It is instructive to
note that the distinction between unsuspended and suspended or
partially suspended sentences for purpose
of reviewability in
accordance with the provisions of s 302 of the CPA was abolished in
1983. The effect hereof is that if, for
example, a judicial officer
who has held the substantive rank of a magistrate or higher for a
period of 7 years or more imposes
a sentence in excess of six (6)
months’ imprisonment, such sentence shall still be reviewable
irrespective of whether it
is wholly or partially suspended. The
subsection was amended in accordance with s 99(1) of the CJA to
introduce detention in a
child and youth care centre as a reviewable
sentence in certain instances.
III
JUDGMENTS
[18]
The interpretation and application of s 85(1) of the CJA led to two
diametrically opposed views. The one view is that, unless
s 302(1)(a)
applies, a 16 or 17 year old child does not have the benefit of
automatic review if he has been represented by a legal
representative
during the trial, notwithstanding the fact that a sentence of direct
imprisonment or of compulsory residence in
a child and youth care
centre has been imposed. Two judgments support this view, the one
from the North West, being
S v Nakedi
(12/2012)
[2012] ZANWHC 5
(2 January 2012) and the
other from the Free State, to wit
S v
TS
2013 (1) SACR 92
(FB)
. This led
to my knowledge to confusion amongst magistrates in the Free State in
that some of them became aware of the contrary
judgments in other
High Courts referred to
infra
,
but considered them bound by the Free State judgment.
[19] The second view is
that s 85(1) provides for automatic review in the circumstances set
out in the section even if the child
has been represented by a legal
representative during the trial. This approach has been adopted by
the Western Cape High Court
in
S v Ruiter
(311/2010)
[2011] ZAWCHC 265
(14 June 2011) and
S v LM (Faculty of Law,
University of the Western Cape: Children’s Rights Project of
the Community Law Centre and others as
amici curiae)
2013 (1) SACR 188
(WCC), the Northern Cape High Court in
S v
Fortuin
(38/2011)
[2011] ZANCHC 28
(11 November 2011), the
Gauteng North High Court in
S v FM
2013 (1) SACR 57
(GNP), the KwaZulu-Natal High Court in
S v Mpumelelo Innocent
Zondi
and the Eastern Cape High Court in
S v CS
2012 (1) SACR 595
(ECP).
[20] In
S v Nakedi
(North West, above) Gutta J, with whom Landman J concurred, relied on
the amendment of s 302(1)(a)(i) of the CPA, following the
introduction of the CJA, (the inclusion of detention in a child and
youth care centre) for the conclusion in para [12] of the judgment
that the amendment is indicative of the fact that the remaining
provisions of s 302 remain applicable to minor accused and therefore
their right to automatic review remains limited to those cases where
they were not assisted by legal representatives. According
to the
learned judge the referral of all matters where minor accused are
legally represented for automatic review
“
is not
consistent with the CPA and CJA … but also does not call for
the situation where the High Court as upper guardian
needs to
intervene to protect the interests of the minor child.”
(at para [16]).
[21] In the Free State
High Court judgment,
S v TS
, Lekale J, with whom
Molemela J concurred, adopted the approach of the North West High
Court. It was found that even a liberal
interpretation of s 85(1),
“allows some minor children to fall into the cracks as far as
automatic review goes” with
reference to those accused whose
custodial sentences are wholly suspended and below the threshold
specified in s 302(1)(a) of the
CPA. Reliance was also placed on the
heading of s 85 which refers to automatic review “in certain
cases”. The court
endorsed the approach in
S v Nakedi
(North West, above) pertaining to the amendment brought about to s
302(1)(a) of the CPA by the CJA and it finally concluded that
if the
legislature intended to exclude minor accused from the purview of s
302 it would have done so explicitly.
[22] In
S v Ruiter
(Western Cape, above) Dlodlo and Samela JJ found in a concise
judgment that the High Court as upper guardian of all minors within
its jurisdictional area should always be entitled to consider the
cases involving minor accused on automatic review in accordance
with
s 85(1) of the CJA, regardless of whether or not they were legally
represented at the trial. The court did not find it necessary
to
interpret s 85(1) in the context of the history of children’s
rights and the Constitution, but based its conclusion on
the
traditional and pre-constitutional role of our High Courts in respect
of children.
[23] In
S v CS
(Eastern Cape, above) Tshiki J, with whom Beshe J concurred,
considered the judgment of Gutta J in
Nakedi
(North
West, above), but did not agree therewith. The court found that in
terms of the CJA legal representation of a child is peremptory
and
although some of the relevant sections of the Act have not been
drafted clearly, it had to take the provisions of the whole
Act into
consideration. In disagreeing with the North West (and necessarily
also the Free State view point), it found in para [22]
that reviews
in terms of s 85(1) of the CJA are not governed by s 302 of the CPA
and finally concluded as follows in para [30]:
“
I have no
interpretation other than to conclude that section 85(1)(a) and (b)
applies to all cases, including the trial proceedings
in which the
minor concerned was legally represented at the trial.”
[24] The judgment of
Olivier J, with whom Williams J concurred, in
S v Fortuin
(Northern Cape, above) is instructive and I respectfully agree with
the following reasoning and conclusion:
“
[51] The
legislature must be presumed to have been aware of the provisions of
sections 82 and 83 (and of what it intended to be
prescribed in
respect of a representative to assist the court) when enacting
section 85 of the CJA. To interpret section 85(1)
of the CJA as
excluding cases where the child was legally assisted would indeed
render the provisions of the proviso to section
85(1) meaningless to
a large extent, and defeat the clear intention to afford children
additional protection by means of automatic
review.
[52] When the peremptory language used
in section 85(1), and more specifically the use of the word “is”,
is viewed against
this background, the only interpretation that would
give effect to the expressed intention (in the preamble to the CJA)
to afford
children in conflict with the law “special
protection” and “specific safeguards”, is that
cases envisaged
in section 85(1) of the CJA will be automatically
reviewable, regardless of whether or not the child was legally
represented or
the court legally assisted, and that the effect of the
proviso, as a whole and read in context, is to qualify the general
applicability
of Chapter 30 of the CPA by excluding the operation of
section 302(3)(a) of the CPA in cases like this.”
[25] I have been made
aware of the unreported judgment of Koen J in
S v Mpumelelo
Innocent Zondi
, (KZN case No R 717/2011, 6 December 2011)
which was approved in
S v CS
(Eastern Cape, above) and
the fact that the learned judge found that cases falling within the
purview of s 85(1) are subject to
automatic review, even if the
sentences were imposed by the regional court. I could not obtain a
copy of this judgment, but it
apparently supports the second view.
[26] Tuchten J, with whom
Molopa J concurred in
S v FM
(North Gauteng, above),
considered a special review from a regional magistrate under s 304 of
the CPA and also found that proceedings
in the regional courts are
subject to review in terms of s 85(1) of the CJA. He agreed with the
judgments of Olivier J in the Northern
Cape and Tshiki J in the
Eastern Cape when concluding in para [38] that s 85(1) should be
interpreted to provide for automatic
review in respect of all
children 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 s 191(2)(j)
of the Children’s Act, including
children who are so sentenced
in a regional court.
[27] Henney J, writing
for the full bench in
S v LM
(Western Cape, above),
received inputs from various
amici
including an
amicus
on behalf of the Minister of Justice and Constitutional Development,
gave a well-reasoned exposition of the law. The court considered
the
judgments referred to herein and stated in para [32] that “(T)here
is a constant refrain in all the cases referred to
above, apart from
the
Nakedi
case that on a proper interpretation of the
CJA and after having regard to the paramountcy contained in s 28 of
the Constitution,
the CJA must be interpreted in accordance with this
section.” In para [33] the full bench gave cogent reasons why,
in the
event of conflict between the CJA and the CPA, the application
of the CJA should be preferred above the CPA. It also found that
the
provisions of s 85(1) of the CJA are applicable to children convicted
and sentenced in the regional court.
IV
CONCLUSIONS
ON JUDGMENTS
[28] I respectfully
disagree with the reasoning of the judges who hold the first view for
the following reasons:
28.1. The proviso to s
85(1) of the CJA specifically states that the stipulated sentences
are automatically reviewable in terms
of s 304 of the CPA. Unlike
automatic review in terms of s 302 of the CPA, s 85(1) does not
contain a limitation insofar as legal
representation is concerned.
The reference to s 304 of the CPA is merely to indicate the procedure
to be followed on review.
28.2. When considering
the background circumstances and context within which the legislature
adopted the CJA, and not to forget
the overall purpose of this piece
of legislation, the specific purpose was clearly to ensure that all
minor accused should be legally
represented at their criminal trials.
Section 85(1) (and s 84 dealing with appeals), was drafted within
this context whilst everybody
concerned in the process of drafting
and adoption of the legislation would have been aware of this. If the
legislature intended
to exclude minor accused who were legally
represented from automatic appeal or review proceedings, it should
have enacted it in
clear language. This is not the case. In fact, to
hold that s 85(1) applies to unrepresented minor accused only, will
make a mockery
of the constitutional rights of minors and the
introduction of a new criminal justice system for children. The
paramountcy of children’s
rights, especially in the criminal
courts in general and in respect of sentencing in particular, has
been accepted and maintained
as far as possible even before the
promulgation of the CJA on 1 April 2010. See
Director of Public
Prosecutions, Kwazulu-Natal v P
2006 (1) SACR 243
(SCA) at
paras [17] to [19]
.
28.3. Unlike s 302 of the
CPA where the three months and six months periods of imprisonment,
depending on the experience of the
presiding magistrate, are clearly
set out, the duration of imprisonment or compulsory residence in a
child and youth care centre
is irrelevant for purposes of s 85(1). If
the first view point is to be accepted, it would mean that a minor
accused (even if unrepresented),
sentenced to direct imprisonment of
up to three months in the one instance or up to six months in the
other, would not be entitled
to automatic review in terms of s 85(1).
This is clearly untenable and contrary to the aim and spirit of the
international instruments
referred to, the Constitution and the CJA.
28.4. Although as a
general proposition the provisions of Chapter 30 of the CPA dealing
with the review of criminal proceedings
in the lower courts apply in
respect of all minor accused as set out in s 85(1) of the CJA, the
proviso in s 85(1) is intended
to qualify this general proposition
that chapter 30 and s 302 in particular applies. The following
passage relied upon in
Mphosi v Central Board for Co-operative
Insurance Ltd
1974 (4) SA 633
(A) and endorsed in
Strydom
v Engen Petroleum Ltd
[2013] 1 All SA 563
(SCA) at para [15]
is instructive:
“
(T)he effect
of an excepting or qualifying proviso is to except out of the
preceding portion of the enactment or to qualify something
enacted
therein, which but for the proviso would be within it; and such
proviso cannot be construed as enlarging the scope of an
enactment
when it can be fairly and properly construed without attributing to
it that effect.”
If it were not the case,
no cases or hardly any cases involving minor accused sentenced to
direct imprisonment would be subject
to automatic review. Such an
interpretation would render the deemed protection of minors
meaningless and should be regarded as
insensible. It does not promote
the spirit, purport and objects of the Bill of Rights and s 28(2) of
the Constitution in particular.
28.5. Most importantly, a
criminal justice system for children in conflict with the law has now
been created and in interpreting
any section of the CJA or the CPA
this should be appreciated and if any conflict is detected between
the provisions of the two
Acts, those of the CJA should prevail.
Section 85(1) might have been worded more precisely, and the
legislature should accept the
blame for the confusion created, but
there can be no doubt how the section should be interpreted. A
sensible meaning is to be preferred
to one that undermines the
apparent purpose of the section or may lead to insensible results.
V
CONCLUSION ON
REVIEWABILITY
[29] Kim Hawkey, the
editor of De Rebus, raised a valuable point in her editor’s
note in the November 2012 issue of
De Rebus
that conflicting
judgments are not only undesirable, but the result may also infringe
on the rights of the public. The consequent
lack of clarity threatens
one of the basic tenets of our legal system, namely legal certainty.
In
Johannesburg Housing Corporation (Pty) Ltd v Unlawful
Occupiers, Newtown Urban Village
2013 (1) SA 583
(GSJ) at
paras [38] and [39] Willis, J made the point that intrinsic to the
rule of law is predictability, reliability and certainty.
The
criticism of Calli Ferreira in her article, “The Quest for
Clarity: An Examination of the Laws Governing Public Contracts”,
SALJ
, (2011) 172 at 188-192 pertaining to the contradictory
approaches taken by the courts in a totally different context, to wit
administrative
law, is well founded and equally applicable
in
casu
.
[30] In so far as the
stare decisis
doctrine is concerned it is accepted that a
decision otherwise binding can be departed from only if the later
court of equal standing
considers it to be clearly wrong, or is
convinced that it was decided wrongly. See
National Chemsearch
(SA) (Pty) Ltd v Borrowman and Another
1979 (3) SA 1092
(T)
at 1101 B-F. Having considered the different approaches, the
background circumstances, the legislation within their context
and
the purpose of the CJA in particular, I am convinced of the
correctness of the second view point and therefore that the view
of
the North West and Free State High Courts is wrong and should not be
followed. Both counsel who argued the matter before us
made similar
submissions. In conclusion, all matters falling within the provisions
of s 85(1) of the CJA must be referred to the
High Court for
automatic review in accordance with that section, whether or not the
children concerned were represented by legal
representatives.
VI
THE FACTS
OF THIS CASE
[31] The tragic personal
circumstances of the accused have been set out in the pre-sentence
report of Ms Hans which she confirmed
under oath. His parents passed
away and he was placed in the foster care of his paternal uncle. He
started stealing from friends,
family members and from school at a
tender age. His behaviour escalated from stealing bread and
stationary to stealing money and
cell phones and later to shoplifting
and housebreaking. He was removed from his foster family and sent to
an industrial school
during 2010, but the placement failed due to his
uncontrollable behaviour. He was then placed in Bloem Secure Centre,
but escaped
from this institution four times and became involved in
gang related activities. In 2011 he was convicted for housebreaking
with
the intention to steal and theft. The passing of sentence was
postponed for three years. A year later he committed a similar
offence
and was sent to compulsory residence in a child and youth
care centre for a period of three years. He was also convicted of
escaping
from custody and sentenced to five years’ imprisonment
which was wholly suspended. There are several cases pending against
him and it is apparent that he has been involved in criminal
activities since returning to Welkom after escaping from the youth
care centre. It was not in the interest of justice to impose any
other sentence than that imposed by the court
a quo.
In the
circumstances I am satisfied that the proceedings were in accordance
with justice and that the sentence is in order.
VII
ORDER
[32] The proceedings are
confirmed.
_______________
J. P. DAFFUE, J
I concur.
_______________
A. KRUGER, J
/eb/wm