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[2012] ZAGPPHC 217
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S v Vilakazi (A625/2012) [2012] ZAGPPHC 217 (4 September 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Magistrate:
Bethal
Review
Case no.: 303/2012
Magistrate's Serial no: 29/2012
High
Court Ref no.: 789
Case
Number:A625/2012
DATE:04/09/2012
THE
STATE
VS
MLAMBI
BONGANI INNOCENT VILAKAZI
REVIEW
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
Mr C.F. Nieuwoudt the Magistrate in Bethal, has in this special
review, requested this court to set aside the conviction in
this
matter to enable the court to start the proceedings de novo.
BRIEF
FACTS
[2]
Mlambi Bongani Innocent Vilakazi, the accused, stood trial on a
charge of housebreaking with the intention to steal and theft.
Legally represented he pleaded guilty to the charge. His Attorney
prepared a plea in terms of Section 112 (2) of Act 51 of 1977
which
was handed into court. The court, accordingly, convicted the Accused
as charged. Before sentence, the accused informed his
Attorney that
he, at the time, was (seventeen) 17 years old and not (twenty-two) 22
as the charge sheet disclosed. The Attorney
duly communicated this to
the court which decided that the age of the accused had to be
established. The matter was then postponed.
It was established that
the accused was indeed, (seventeen) 17 years old. The court
immediately realised that the procedure prescribed
in the
Child
Justice Act no 75 of 2008
had to be followed and that that had not
been done, that according to him, and that that had resulted in a
failure of justice.
The problem prompted the magistrate to approach
this court with the request referred to above which, in my view, is
proper.
[3]
The
Child Justice Act 75 of 2008
has been enacted with a view to
dealing with aspects which relate to children depending on their
ages. Procedures have been provided
for for dealing with children who
are alleged to have committed offences. Section 5 (2) of the Act, for
instance, provides:
"
Every child who is (ten) 10 years or older, who is alleged to have
committed an offence and. who is required to appear at
a preliminary
inquiry in respect of that offence must, before his or her first
appearance at the preliminary inquiry, be assessed
by a probation
officer, unless assessment is dispensed with in terms of Section 41
(3) or 47 (5)." (My emphasis).
This
section clearly demonstrates that certain procedures are to be
followed before the matter is heard. This, obviously, was not
done
and the Honourable magistrate was right when he stopped the
proceedings in order to seek assistance. The conviction, therefore,
has to be set aside so that same can start de novo and in the correct
manner.
[4]
I, in the result, make the following order:
1.
the conviction against the accused is set aside.
2.
the matter is referred back to the magistrate's court, Bethal for
the proceedings to start de novo and in the correct manner.
MW.
MSIMEKI
JUDGE
OF THE HIGH COURT
I
agree.
And
it is so ordered.
M.
MAVUNDLA
JUDGE
OF THE HTGH COURT