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[2012] ZAFSHC 114
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S v Sekoere (141/2012) [2012] ZAFSHC 114; 2013 (1) SACR 92 (FB) (14 June 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 141/2012
In the review between:
THE STATE
…................................................................................
Applicant
and
THABO ESIA SEKOERE
…......................................................
Respondent
CORAM:
MOLEMELA, J
et
LEKALE, J
JUDGMENT:
LEKALE, J
_______________________________________________________
DELIVERED ON:
14 JUNE 2012
_______________________________________________________
[1] On the 14th March
2012 the accused, a 16-year old boy, appeared before the magistrate’s
court at Dewetsdorp and pleaded
guilty to housebreaking with
intention to steal and theft. He was, thereupon, sentenced in terms
of section 76(1) of the Child
Justice Act 75 of 2008 (CJA) to 3
years’ compulsory residence at a child and youth care centre
providing a programme designed
for the reception, development and
secure care of children as contemplated in section 191(2)(j) of the
Children’s Act, 38
of 2005 (CA).
[2] The matter now serves
before this court on automatic review in terms of section 85 of CJA
read with the provisions of
section 302(1)
of the
Criminal Procedure
Act of 1977
as amended (CPA).
[3] In referring the
matter for review, the trial magistrate cites conflicting decisions
on whether or not matters of the present
nature, where the accused
was legally represented when the sentence was imposed, are reviewable
in the ordinary course and concludes
that:
“
As far as
I am aware there is no specific judgment of the Free State High Court
on the subject matter and I would request the honourable
Reviewing
Judge to provide some guidance with regard to the interpretation to
be followed in the Free State province.”
[4] The automatic review
regime, which our criminal justice system provides, is limited, in
its application, to cases in which the
accused was not legally
represented at the proceedings which resulted in the sentences
envisaged in
section 302(1)
of CPA. (See
section 302(3)(a)
of CPA).
[5] At the forefront of
decisions that hold that the envisaged sentences imposed on minor
children in terms of the CJA are automatically
reviewable
notwithstanding the fact that such children were assisted by legal
advisers at the relevant trials is the Western Cape
judgement in
S
v RUITER
[2011] ZAWCHC 265
in which Dlodlo J pronounced that:
“
The High
Court is the upper guardian of all minors within its jurisdictional
area. For that reason, and that one alone I am of the
view that cases
provided for or referred to in section 85 of the Act under
consideration should always be the subject of automatic
review in the
ordinary cause regardless of whether or not the said minor child was
legally represented...”
[6] In endorsing the
aforegoing Olivier J, sitting as the reviewing judge in the Northern
Cape High Court, referred to sections
82 and 83 of CJA and held as
follows in
S v WILDENE FORTUIN
[2011] ZANCHC 28:
“
[49] When
regard is had to these provisions it is clear that … a child
appearing before a child justice court will in effect
never be
without legal representation. The duties and rights of a legal
representative appointed to assist the court will, for
all practical
purposes, be the same as in the case of an own legal representative.”
“
[50] …
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.”
[7]
Taking the opposite view and finding that the cases envisaged in
section 85(1)(a) and (b) of CJA are not automatically reviewable
when
the accused minor child was legally assisted at the relevant trial,
the North West High Court found as follows, among others,
in
S
v JAN NAKEDI
[2012]
ZANWHC
5:
“
[12] This
problem is solved by a reference to Item (p) of Schedule 4 read with
Section 99(1) of the CJA, which in essence substitutes
Section
302(1)(a)(i) of the CPA. The amendment is indicative of the fact that
the remaining provisions of Section 302 are applicable,
which
includes referral for automatic review where the accused is not
assisted by a legal adviser.
…
[16]
The
referral of all matters wherein the minor child is 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.”
[8] In my view the best
place to start at, in this matter, is to appreciate the literal
effect of the provisions of section 85 of
the CJA. As observed in
S
v FORTUIN
(supra)
the proviso to the section in
question qualifies the applicability of the provisions of Chapter 30
of the CPA by prescribing, in
addition to those sentences specified
in section 302(1) of the CPA, sentences which are automatically
reviewable.
[9] The proviso, in my
judgment, strikes at the sentences set out in
section 302(1)(a)(i) of
CPA insofar as it provides that the sentences imposed on minor
children specified in section 85 of CJA are
“
subject
to review in terms of section 304 of the Criminal Act, …
irrespective of the duration of the sentence.”
In
this regard, it is worth noting that section 302(1)
of
the CPA identifies the sentences envisaged with reference to their
duration and the rank of the judicial officer who imposed
them. The
proviso adds to the list of automatically reviewable sentences in as
far as minor accused children are concerned and
expressly removes
sentence duration as a determining factor in their case. The rank or
experience of the presiding magistrate who
imposed the relevant
custodial sentence is, thus, not a factor in the relevant children’s
case.
[10] The import of the
proviso in issue, in my opinion, can be better appreciated when one
considers that it is to the effect that:
10.1 all sentences of
imprisonment, including compulsory residence in a child and youth
care centre contemplated in section 191(2)(j)
of CA, imposed in
respect of offences committed when the minor accused child was under
the age of 16 are automatically reviewable;
10.2 sentences of any
form of imprisonment which are not suspended in whole and which are
imposed in respect of offences committed
when the minor accused child
was 16 years or older but under 18 years of age are automatically
reviewable;
10.3 all sentences of
compulsory residence in a child and youth care centre providing a
programme provided for in section 191(2)(j)
of the CA imposed on a
child who was 16 years or older but under the age of 18 at the time
of the commission of the relevant offence
is reviewable in the
ordinary course.
[11] As correctly found
in
S v NAKEDI
(supra)
the CJA amends section 302
of CPA only as far as section 302(1)(a)(i) is concerned and does not
impact on other provisions of section
302 of the CPA. (
See item p
of schedule 4 read with section 99(1) of CJA which identifies the
extent to which 302 of the CPA is amended)
.
[12] In my view, any
argument to the effect that an interpretation which excludes a child
who was legally assisted at the relevant
trial from the purview of
section 302(1) of the CPA as read with section 85(1) of CJA defeats
the clear intention of the legislature
to afford children additional
protection, with respect, loses sight of the fact that not all
children in conflict with the law
are afforded additional protection
in the form of automatic review.
[13] Even a liberal
interpretation, which accommodates minor children who were legally
represented at relevant trials, allows some
minor children to fall
into the cracks as far as automatic review goes. In this regard, it
is worth noting that wholly suspended
custodial sentences of
durations below the threshold specified in section 302(1) of the CPA
imposed on a child who was 16 or older
but under 18 years of age at
the time of the commission of the relevant offence are not
automatically reviewable. The same applies
to fines which are below
the amounts determined by the Minister of Justice and Constitutional
Development for respective judicial
officers referred to in section
302(1)(a)(i) of CPA.
[14] The heading to
section 85 of the CJA also suggests, as an aid to juridical
interpretation, that not all sentences imposed on
minor offenders are
intended to be automatically reviewable insofar as it proclaims as
follows:
“
Automatic
review in certain cases.”
(See
President of
the Republic of South Africa and another v Hugo
1997 (4) SA 1
at para [12].
[15] It is correct, as
found in
S v NAKEDI
(
supra),
that a construction
which excludes legally assisted minor offenders from the automatic
review provisions of CPA neither offends
the Constitution of the
Republic of South Africa nor is it inconsistent with the CPA and the
CJA.
[16] In my view the clear
intention of the legislature was to amend the provisions of section
302 of CPA to the extent set out in
the CJA. A contention that the
effect of sections 82 and 83 of CJA is that no child appearing before
the Child Justice Court will
ever be without legal representation,
with respect, ignores the fact that a legal representative appointed
to assist the court
in terms of section 83(2) of CJA gets appointed
simply because the relevant minor child does not wish to have legal
representation
or declines to give instructions to an appointed legal
representative. Such a legal representative is, in the very nature of
the
reason for his appointment, deprived of the accused’s
co-operation and vital instructions. The duties and rights of such a
representative in terms of Regulation 48 of the
“
Regulations
Relating to Child Justice, 2010”
do not, in my
view, cure such a defect because in order to represent the accused
minor child effectively the legal representative
needs to get
instructions from the child in question as a port of first call.
[17] Had the legislature
intended to exclude minor offenders from the purview of section
302(3)(a) of 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. (See generally
S v MBONYANY
EN ANDER
1978 (2) SA 927
(T) and
S
v MAFIKOKOANE
;
S
v MOKHUOANE
1991 (1) SACR 597
(O).
[18] In conclusion it is
my judgment that cases involving minor children sentenced in terms of
CJA, like all other cases envisaged
in section 302 of CPA, are not
automatically reviewable where the accused minor child was legally
represented.
[19] The present matter,
further, does not call for the exercise of the court’s inherent
powers of review.
ORDER
[20] In consequence the
matter is not reviewable in the ordinary course and the court,
therefore, has no jurisdiction over it.
_______________
L. J. LEKALE, J
I concur.
_________________
M. B. MOLEMELA, J
/eb