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[2012] ZAGPPHC 27
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S v B.T.L (A125/2012) [2012] ZAGPPHC 27; 2013 (1) SACR 140 (GNP) (2 March 2012)
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER: A125/2012
HIGH COURT REF. NR.: 1217
DATE: 02/03/2012
THE
STATE V
B T L
JUDGMENT
MABUSE
J:
1.
This matter came before me as a special review in accordance with the
provisions of s. 304(4) of the Criminal Procedure Act 51
of 1977
("the CPA"). The crisp issue in this review is whether the
proceedings in the court a quo were in accordance
with the principles
of justice.
2.The
accused, B T (M) L, a juvenile appeared before a regional Court
Magistrate at Benoni where he was charged with, and convicted
of,
robbery with aggravating circumstances as contemplated in S. 1 of the
CPA. It had been alleged by the State that the accused
committed the
aforesaid offence on 6 January 2011 at or near Putfontein when he
assaulted one Alex Mnisi, the complainant and,
by using a firearm,
took his property or such property that was in his lawful possession,
namely, a silver grey Maxwheel bicycle.
3.
The accused, who enjoyed legal representation at the trial, pleaded
guilty in terms of the provisions of S. 112 of the CPA and
his legal
representative handed into court a written plea explanation in
accordance with the provisions of the said section. The
State was
content that the said plea explanation accorded with the facts of the
case as contained in the case docket and the accused
was accordingly
convicted as charged after the State had indicated that it accepted
his plea.
4.
The case was then postponed for a probation officer's and
correctional supervisor's reports to 29 June 2011. When the matter
resumed on 29 June 2011 only the probation officer's report was
available. Same had been handed to the trial magistrate in chambers.
In the aforementioned report, the probation officer had recommended
that the accused could be sentenced in terms of the provisions
of S.
276(1 )(h) of the CPA, which is a sentence of correctional
supervision. The State was satisfied, in its well considered opinion,
that the said recommended sentence was the appropriate one and
accordingly supported it. It urged the court to impose the said
sentence on the accused and the court duly obliged. It sentenced the
accused to three (3) years correctional supervision and, in
addition,
declared him, in terms of the provisions of
S. 103(1)
of the
Firearms
Control Act 60 of 2000
, unfit to possess a firearm. It is only
apposite at this stage to point out that as at 6 January 2011, the
day on which the appellant
allegedly committed the offence with which
he was charged and convicted, the accused was sixteen (16) years old
and was a child
for the purposes of the Child Justice No. 75 of 2008
Act ("the Child Justice Act"). The Child Justice Act
defines a child
as any person under the age of eighteen (18) years
and, in certain circumstances, means a person who is 18 years or
older but under
the age of 21 years whose matter is dealt with in
terms of S. 4(2) of the Child Justice Act.
5.
The senior magistrate, Mrs L. Sheppard, somehow came to know about
the sentence that the court had imposed on the accused and
became
dissatisfied with it. In a letter that she wrote and which letter
accompanied the record of the proceedings of the trial
court, Mrs.
Sheppard recommended that, by reason of the following grounds, the
sentence of correctional supervision should be set
aside: firstly,
the trial magistrate had failed to determine the nature and extent of
the correctional supervision and, secondly,
to comply with the
provisions of
S. 72
of the
Child Justice Act No. 75 of 2008
.
6.
In receipt of the file I sent the whole of it to the office of the
Director of Public Prosecutions and requested him to comment
on the
proceedings, in particular, the sentence imposed on the accused and
the comments by Mrs. Sheppard. The Director of Public
Prosecutions,
to whom I am indebted for his erudite assistance, duly responded to
my query.
7.
He supports Mrs. Sheppard's view and aligns himself with it. He
submitted that although
s. 75(a)
of Act 75 of 2008 allows for
juvenile of fourteen (14) years or older to be sentenced to
correctional supervision in terms of S.
276(i)(h) of the CPA, the
said section must be read subject to
S. 72(2)
of the
Child Justice
Act 75 of 2008
which deals with community based sentences.
S. 72(1)
provides that:
"A
community-based sentence is a sentence which allows a child to remain
in the community and includes any of the options referred
to in
S.
53
, as sentencing options, or any combination thereof and a
sentencing involve correctional supervision referred to in
S. 75.
"
S.
53 of the Child Act deals with various sentencing options.
"(2)
A child justice court that has imposed a community based sentence in
terms of subsection (1) must -
(a)
request the probation officer concerned to monitor the child's
compliance with the relevant order and to provide the court with
progress reports in the prescribed manner including compliance; and
(b)
warn the child that any failure to comply with the sentence will
result in him or her being brought back before the Child Justice
Court for an inquiry to be held in terms of S. 79."
8.
According to the Director of Public Prosecutions, the term
"correctional supervision" does not connote a sentence but
refers to a collective term used to describe various measures which
have in common that they are all applied outside prison such
as
monitoring, house arrest, community service, placement in employment
or rehabilitation programmes. It is for the above reasons
that Mrs.
Sheppard commented that the magistrate did not establish the nature
and scope of the correctional supervision. The Director
of Public
Prosecutions referred me to the authority of S v R 1993(1) SA 476 AA.
In the said authority Kriegler A.J.A, as he then
was, had this to
say:
"By
nadere ondersoek word dit duidelik dat die banaming "korrektiewe
toesig" nie soseer 'n vonnis beskryf nie maar
'n versmeinaam is
vir 'n wye verskeidenheid maatreels waarvan die enkele gemeenskaplike
kenmerk is dat hulle buite die gevangenis
toegepas word."
"The
term "correctional supervision" refers not so much to a
sentence but is a collective term for a wide variety
of measures
which have in common that they are only applied outside prison."
9.
Because the term "correctional supervision" refers to
diverse non-custodial measures, it was not enough, let alone
appropriate, for the trial magistrate just to sentence the accused to
"correctional supervision" in terms of S.276(i)(h)
of the
CPA. What the magistrate should have done, according to the Director
of Public Prosecution, was to identify the specific
measures
applicable to the accused and thereafter formulate a general
framework in which the measures would be implemented. I was
referred
in this regard to S v. Ndaba 1993(1)
SACR 637(A) at 6411-6426. The
trial magistrate should have complied with the provisions of
S. 75
of
the
Child Justice Act.
>
In
the result, I make the following order:
(1)
The sentence imposed by the magistrate on the accused is hereby set
aside.
(2)
The matter is remitted to the magistrate court for the purposes of
determining the nature and scope of the correctional supervision
and
for compliance with the provisions of
S. 75
read with
S. 72
of the
Child Justice Act 75 of 2008
.
P.M.
Mabuse J
Judge
of the High Court
I
Agree
N.
M. Mavundla J
Judge
of the High Court