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[2013] ZAFSHC 97
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S v Sekoere (70/2013) [2013] ZAFSHC 97; 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:
CJ MUSI, J
_____________________________________________________
DELIVERED ON:
27 JUNE 2013
_____________________________________________________
[1] I have read the
judgment of my brother Daffue, J. I agree with his reasoning and
conclusion, which is also supported by the
historical setting and
genesis of section 85 of the Child Justice Act (CJA). This judgment
endeavours to illustrate the aforesaid
proposition.
[2] Genetic
interpretation, we are told, is best employed with circumspection and
that it is mostly not relied on as a primary mode
of construction,
but only to confirm the results arrived at through other methods of
construction. However reports of parliamentary
and other commissions
of investigation recommending the adoption of specific legislation
may more readily be consulted when that
legislation is construed. See
Lourens du Plessis
Re-Interpretation of Statutes
: Lexisnexis Butterworths
2002 at 268 par 12.6.
[3] In
Westinghouse
Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986 (2) SA 555
(A) 562J – 563A the following was said:
“
In
my view it is permissible, in construing Act 105 of 1982, to have
regard to what is stated in the Third Interim Report as to
the
mischief aimed at. In England it has been authoritatively held that
in construing a statute where the words are not clear
and
unambiguous the Court may have regard to the report of a Royal
Commission or committee appointed by the Government which shortly
preceded the passing of the statute in order to ascertain the
mischief aimed at and the state of the law as it was then understood
to be, but not to determine the meaning attached by the
commission or committee to any draft bill recommended in the report
which formed the basis of the statute passed by Parliament (see
Black-Clawson
International Ltd v Papierwerke Waldhof Aschaffenburg AG
[1975] UKHL 2
;
[1975]
AC 591
(HL) ([1975]
1 All ER 810)
;
R
v Bloxham
[1983]
1 AC 109
(HL) at 115 ([1982]
1 All ER 582)
; see also
Re
Eastman Photographic Materials Co Ltd's Application; Eastman
Photographic Materials Co v Comptroller-General of Patents,
Designs
and Trademarks
[1898]
AC 571
(HL);
Assam
Railways and Trading Co Ltd v Inland Revenue Commissioners
[1935]
AC 445
(HL);
Halsbury
4th
ed vol 44 para 901). In
Hleka
v Johannesburg City Council
1949
(1) SA 842 (A)
at
852, this Court, having referred to
Eastman's
case
supra
and
the
Assam
Railways
case
supra, left the point open, but in
S
v Mpetha
1985
(3) SA 702 (A)
at
712H - 713E, GALGUT AJA, delivering a minority judgment (the majority
judgment did not consider the point), held that it was
permissible
for this Court in construing the Internal Security Act 74 of 1982, to
have regard to the report of the Commission of
Enquiry into Security
Legislation in order to ascertain the mischiefs aimed at. The
Black-Clawson
case
supra
has
been followed in Zimbabwe (
Hewlett
v Minister of Finance and Another
1982
(1) SA 490
(ZS) at 496 - 7 and in Canada (
Re
Urman
(1981)
128 DLR (3rd) 33
at 37 - 8). In my opinion, our Courts too are
entitled, when construing the words of a statute which are not clear
and unambiguous,
to refer to the report of a judicial commission of
enquiry whose investigations shortly preceded the passing of the
statute
in order to ascertain the mischief aimed at, provided that
there is a clear connection between, on the one hand, the
subject-matter
of the enquiry and recommendations of the report and,
on the other hand, the statutory provisions in question.”
[4] The South African Law
Commission’s report on juvenile justice (Project 106) was
completed in July 2000 and submitted to
the former Minister for
Justice and Constitutional Development by the Acting Chairperson of
the Commission the Honourable Madam
Justice Mokgoro. That report
recommended the enactment of the CJA.
[5] The mischiefs which
the legislature sought to address and the solutions therefor,
relative to the problem under discussion,
are discussed in paragraph
12.2 and 12.3 of the report which reads as follows:
“
12.2. At
present, appeal and review are the only methods of control over child
sentencing. The present review criteria
418
do not protect children sufficiently... The Commission agreed with
the view expressed by most respondents to the issue paper that
the
present system of automatic review by judges of the High Courts
should be extended, and that in principle all sentences involving
a
residential element should be subject to the review procedure.
419
This conforms to the principle that detention be used as a measure of
last resort.
12.3. In addition to the automatic
review procedures, it was proposed that a superior court’s
inherent right of review of
irregularities in proceedings of lower
courts should continue to be applicable to the child justice system.”
Footnote 418 reads as
follows:
“
...Sentences
of imprisonment imposed by longer serving magistrates, and sentences
falling below other thresholds set in the Criminal
Procedure Act,
frequently escape High Court scrutiny. In addition, sentences imposed
by Regional Courts and sentences where the
accused was legally
represented are not reviewable”
In footnote 419 the
following is stated:
“
The
Discussion Paper proposed that no exceptions should be made for cases
where the magistrate has been in office for a particular
period of
time, nor should the fact that the accused was legally represented at
any time during the proceedings disqualify the
case from being
subject to this type of review. Decisions of regional courts should
also be reviewed. Further, the experiences
with monitoring of the
implementation of section 29 of the Correctional Services Act have
shown that regional courts have often
breached the provisions
intended to protect children, and that children who are tried in
regional courts are frequently faced with
long delays in their cases.
This suggested that in order to ensure the effective implementation
of the protective provisions of
the legislation regional courts
should be included within the ambit of automatic review procedures”.
[6] It is clear that the
legislature wanted to afford children who faced any sentence that
involved incarceration or a residential
element the protection of
having their cases reviewed by a High Court, irrespective whether
they were legally represented in the
lower court.
[7] Although the
legislature, for unclear reasons, decided to distinguish between
children who were under 16 and those who were
16 and 17 years old at
the time of the commission of the offence, the principle that no
child should be sentenced to a sentence
that has a residential
element without the case being reviewed by a High Court has been
retained. This is in accordance with the
express intention of the
legislature to give children in conflict with the law and who have
been convicted and sentenced “special
protection” and
“specific safeguards”. See also
Centre for Child
Law v Minister for Justice and Constitutional Development and Others
2009 (6) SA 632
(CC) paragraph [25].
[8] I find it very
difficult to accept that the mere presence of a legal representative
who, in the district courts, is more often
than not an inexperienced
articled clerk, should override the added safeguard of the child’s
case being reviewed by a High
Court. In my view, it could not have
been the intention of the legislature to deprive a child of his/her
review right, which is
part of the States’ international
obligations, just on account of the fact that the child was legally
represented.
[9] The preamble to the
Child Justice Act makes it clear that the intention was “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 and the International
obligations of the Republic...”
[10] Daffue, J dealt with
the constitutional values in his judgment. I propose to say something
about our international obligations.
Daffue, J pointed out that the
United Nations Convention on the Rights of the Child (CRC) is the
most important international instrument
when dealing with children’s
rights. I agree. South Africa ratified the CRC in 1995.
[11] The relevant parts
of article 40 of the CRC read as follows:
“
1. State
parties recognize the right of every child alleged as, accused of, or
recognised as having infringed the penal law to be
treated in a
manner consistent with the promotion of the child’s sense of
dignity and worth, which reinforces the child’s
respect for the
human rights and fundamental freedoms of others and which takes into
account the child’s age and the desirability
of promoting the
child’s reintegration and the child’s assuming a
constructive role in society.
2. To this end, and having regard to
the relevant provisions of international instruments, States Parties
should, in particular,
ensure that:
a) ...
b) Every child alleged as or accused
of having infringed the penal law has at least the following
guarantees:
(i) To be presumed innocent until
proven guilty according to law
(ii) To be informed promptly and
directly of the charges against him or her, and, if appropriate,
through his or her parents or
legal guardians,
and to
have legal or other appropriate assistance in the preparation and
presentation of his or her defence…
(v) If considered to have
infringed the penal law, to have this decision and any measures
imposed in consequence thereof reviewed
by a higher competent,
independent and impartial authority or judicial body according to
law...”
(
My emphasis
.)
[12] Article 40 clearly
postulates a situation where the child’s case should be
reviewed irrespective of the fact that the
child was legally
represented or not. The bifurcated system whereby the legislature
decided to distinguish between 16 and 17 year
old children and others
was a policy decision taken by the legislature which limits 16 and 17
year old children’s rights.
Whether that is constitutional or
not is not for us to decide in this matter.
[13] It is the bifurcated
system that creates the possibility for “some minor children to
fall into the cracks as far as automatic
review goes”. See
S
v TS
2013 (1) SACR 92
(FB) at paragraph
[13]. Had all children under the age of 18 years been treated like
those under 16, no child would have fallen
through the cracks. The
cracks were designed by the legislature.
[14] The heading to
section 85 which reads “Automatic review in certain cases”
in my view does not assist in solving
the conundrum relating to the
reviewability of sentences where the child was legally represented.
It is at best a neutral factor.
[15] Clearly the phrase
“certain cases” refers to age and sentence imposed and
not legal representation. The intention
was that sixteen and
seventeen year old children who were sentenced to a non-residential
sentence should not enjoy the added protection
of having their cases
automatically reviewed.
[16] In
S
v Nakedi
(12/2012)
[2012] ZANWHC 5
(2
January 2012) reference is made to section 28(2) of our Constitution
which provides that a child’s best interests are
of paramount
importance in every matter concerning the child (par [14]). The court
concluded that the referral of all matters wherein
the minor child is
legally represented for automatic review is not consistent within the
Criminal Procedure Act and Child Justice
Act (par [15]). This
judgment as well as
S v TS
do not indicate how the restricted interpretation
promotes the best interests of the child. Clearly an interpretation
that affords
the child the right to have her/his matter reviewed
irrespective of whether he/she was legally represented is in the best
interests
of the child. In my view, the conclusions in
Nakedi
and
TS
are
inconsistent with our Constitution, the CJA, the historical setting
of section 85 as well as our international obligations.
[17] In
S
v TS
at paragraph [17] it was said that:
“
Had
the Legislature intended to exclude minor offenders from the purview
of section 302(3)(a) of the CPA it would, in my opinion,
have done so
explicitly regard being had to the fact that the provisions of this
section concern an established practice which
has been in existence
for a very long time…”
This conclusion
disregards the fact the CJA represents a break from the past in the
way children are dealt with. It is a new criminal
justice system for
children who are in conflict with the law. I agree with Daffue J that
where there is conflict, between the CJA
and the CPA, the CJA should
prevail.
_______________
C. J.
MUSI, J
/wm/CJM