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[2013] ZAECBHC 1
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S v Mbane and Others (CA&R 26/2012) [2013] ZAECBHC 1 (1 January 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO: CA&R 26/2012
In
the matter between:
THE
STATE
vs
ODWA
MBANE
LUVUYO
KHAWULELA
MPUMELELO
BUSIKO
KHULASANDE
VIKANI
REVIEW
JUDGMENT
DUKADA
J:
[1]
This matter was referred to this Court by the Magistrate of the
Magistrate’s
Court, Mdantsane, Mr C. Jacks, requesting that the
proceedings be reviewed and conviction set aside in respect of
accused no.1.
[2]
In his letter of referral the Magistrate states that the accused no.1
together with
three others appeared in the Mdantsane Magistrate’s
Court on 12 September 2012. They pleaded guilty and were
convicted
of the offence of housebreaking with intent to steal and
theft. At the commencement of the sentencing proceedings it
transpired
that accused no.1 is still a juvenile, aged 17 years, and
that the provisions of the
Child Justice Act 75 of 2008
were not
complied with. The accused were represented from the start of
the trial by an attorney Mr Bonani.
[3]
From the record it appears that accused no.1 appeared with accused
no.2 for the first
time in Court on the 29 June 2012 and both were
remanded in custody to the 17
th
July 2012. Their
case was remanded thereafter a number of times. Accused No.3
and 4 were joined on the 8
th
August 2012 and were all
remanded in custody to the 12 September 2012. On the face of
the charge sheet the age of accused
no.1 was changed from 18 years to
17 years with a signature effected next thereto and the date 12
September 2012 written next to
the signature. I assume that
such change was made on the 12 September 2012. If my assumption
is correct, it means that
accused no.1 was 17 years of age when he
first appeared in court and was remanded in custody.
[4]
That accused no.1 was 17 years of age was only raised by his attorney
during the sentencing
proceedings.
[5]
The proceedings in this matter were conducted in terms of the
Criminal Procedure Act 51 of 1977
whereas the
Child Justice Act 75 of
2008
aplies to the accused no.1 in terms of
section 4
(1)(b) of that
Act. That section provides as follows:
“
Subject to
subsection (2), this Act applies to any person in the Republic who is
alleged to have committed an offence and
(a)
..............
(b)
was 10 years or older but under the age of 18 years when
he or she was-
(i)
handed a written notice in terms of
section 18
or
22
;
(ii)
served with a summons in terms of
section 19
; or
(iii)
arrested in terms of
section 2
for that offence.”
[6]
Section 2
(c) and (d) of the
Child Justice Act sets
out one of
its objectives as follows:-
“
(c)
provide the special treatment of children in a child justice system
designed to break cycle of
crime, which will contribute to safer
communities and encourage these children to become law abiding and
productive adults;
(d)
prevent children from being exposed to the adverse affects of the
formal criminal justice
system by using, where appropriate,
processes, procedures, mechanism, services or options more suitable
to the need of children
and in accordance with the Constitution,
including the use of diversion”.
[7]
In the case of the
State v Mihlali Gxaleka, Bhisho CA&R
21/2012
, a matter which concerned a child accused who was
under 18 years of age at the time of the commencement of his trial in
terms of
the
Criminal Procedure Act and
referred for review to this
Court I remarked as follows in paragraph 17 of my judgment:
“
The Act
provides for processes, procedure, mechanism, services or options
when dispensing with justice with a child as an accused,
to mention a
few:- holding of a preliminary enquiry, diversion process, legal and
parental assistance, sentencing procedures, options
in sentences,
etc. From the preamble and right across the Act the
intention of the legislative comes out clearly that
it is to provide
a special justice dispensation in respect of the child accused in
line with the Constitution of this country and
the United Nations
Charters, Conventions and Declarations on the rights and welfare of
children.”
(See
also
the comments by
Moses AJ in sv RS 2012
(2) SACR (WCC) at 164 a-c)
.
Those remarks apply
squarely to this matter.
[8]
After accused no.1 was arrested and later dealt with in terms of the
Criminal Procedure Act 51 of 1977
instead of the
Child Justice Act 75
of 2008
, in my view, he was denied the special justice dispensation
provided for in the latter Act. In my view that was a gross
irregularity
which has a great potential to result in a miscarriage
of justice, and consequently, this Court has an inherent jurisdiction
to
review these proceedings.
(See
Wahlhaus v
Additional Magistrate, Johannesburg
1959 (3) SA 113
(A) at 119
A-120A;
Sv Burns and Another
1983 (3) SA 366
(C
);
Levack v Regional Magistrate, Wynberg
1992
(2) SACR 151
(C) at 157 e-158 a
;
Nourse v Van
Heerden
1999 (2) SACR 198
(W) at 207 b-e
;
Sv The
Regional Magistrate Wynberg and Another
1992 (2) SACR 13
(C
);
Sv Mathemba
2002 (1) SACR 407
(ECD) at 408 d-l; Khalema and
five similar cases
2008 (1) SACR 165
(CPD) at 170-171 c and Moodley
and Others v NDPP and Others
2008 (1) SACR 560
(NPA) at 568 f-s
69 d
).
[9]
In a similar review matter
Sv Mazibuko
[2011] Jol 26689
(ECG
)
in which it transpired during the sentencing stage that the accused
was 16 years old at the time of the commission of the offence
of
theft, the Court per Dambuza J with Sangoni JP concurring, set aside
the conviction and remitted the matter to the Magistrate’s
Court for the accused to be dealt with in terms of the relevant
provisions of the
Child Justice Act 75 of 2008
. In my view a
similar order would be appropriate in this matter.
[10]
As accused Nos 2, 3 and 4 appear to have been above the age of 18
years at the time of the commission
of the offence, the proceedings
in respect of them appear to me to be in accordance with justice and
should proceed in terms of
the
Criminal Procedure Act, as
before.
[11]
In the result:
The conviction of accused
no 1 (Odwa Mbane) is set aside and the matter is remitted to the
Magistrate’s Court, Mdantsane for
the accused no 1 to be
dealt with in terms of the relevant provisions of the
Child Justice
Act 75 of 2008
.
D.Z DUKADA
JUDGE OF THE HIGH
COURT
I agree
N.G.BESHE
JUDGE OF THE HIGH
COURT