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2011
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[2011] ZANCHC 17
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S v Thezela (K36/11) [2011] ZANCHC 17 (2 August 2011)
Reportable: Yes / No
Circulate to Judges:
Yes / No
Circulate to
Magistrates: Yes / No
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE HIGH
COURT, KIMBERLEY
CASE NO: K36/11
DATE DELIVERED:
05/08/2011
In the matter
between:
THE STATE
and
GORDAN THEZELA
….................................................................
ACCUSED
REVIEW JUDGEMENT
HUGHES-MADONDO AJ
The accused in this
matter is a seventeen year old youth, GORDAN THEZELA. He is facing a
charged of theft, that took place on
24 June 2011. His first
appearance in the district court Galeshewe was on 27 June 2011.
On 27 June 2011 a
formal bail application was heard. From the record of the
proceedings it is evident that the accused was unrepresented
and his
legal guardian was not present. None the less the Magistrate
continued with the formal bail application. The outcome
of this
application was that bail was refused.
The record indicates
that when the Magistrate enquired as to whether the accused required
legal representation through the auspices
of the Legal Aid Board,
the accused responded in the affirmative. In the face of the
accused’s request the Magistrate continued
with the formal
bail application without the accused being represented.
In terms of Section
35(3) (f) and (g) of the Constitution every accused person has a
right to legal representation. Whether he
opts to choose his own in
terms of (f) or whether he is assigned one by the state in terms of
(g)
supra
.
It therefore stands to
reason that an accused must be granted an opportunity to secure such
representation. This right to legal
representation applies equally
to children and adults.
From the record it is
also evident that the proceedings conducted by the Magistrate were
not held in camera as is required by
Section 56 of the Children’s
Act 38 of 2005. The act provides that proceedings involving children
should be closed and
are to be conducted in the presence of those
persons whose attendance is necessary, such as the accused parents
or legal guardian
and the legal representative, in order to protect
privacy and confidentiality.
According to the
record no preliminary inquiry was conducted as is required on the
accused first appearance at court.
In terms of Section 43
(3) (a) and (b) of the Child’s Justice Act 75 of 2008 (the
Act) “a preliminary inquiry must
be held in respect of every
child who is alleged to have committed an offence”. This
inquiry must be held within 48 hours
of the arrest, if the child is
arrested and remains in detention.
The objectives of this
preliminary inquiry are set out in Section 43 (2) (a) - (h) of the
Act. In a nut shell the inquiry ensures
that all the available
information relevant to the child and his circumstance are before
the court, in order that the court make
an informed decision on how
to deal with the child going forward.
It is evident that
there was a denial of the fundamental rights of the accused. These
fundamental rights being; access to legal
representation, having the
proceedings closed and the holding of a preliminary inquiry by the
Magistrate before proceeding with
the formal bail application. The
denial of the accused aforesaid fundamental rights, results in the
accused not been afforded
the right to a fair trial. This must
ultimately result in the vitiation of the proceedings.
In my view
Section
304(2)
of the
Criminal Procedure Act 51 of 1977
is applicable in
this case, as it is evident that the proceedings of the court below
were not in accordance with justice.
In the circumstances,
the proceedings in the court below may be declared unfair and as
such were not in accordance with justice.
The only result that can
be reached is that the proceedings in the court below must be set
aside in terms of
Section 304
(2) (c) (iii) of the
Criminal
Procedure Act.
In
the circumstances
the following order is made:
The proceedings
against GORDON THEZELA in case number GAL955/11 in the District
Court, held at Galeshewe, is set aside
.
____________________________________
HUGHES-MADONDO
ACTING JUDGE
Northern Cape High
Court, Kimberley
I agree
_____________________________________
B PAKATI
ACTING JUDGE
Northern Cape High
Court, Kimberley