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[2011] ZANCHC 28
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S v Fortuin (38/2011) [2011] ZANCHC 28 (11 November 2011)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
38/2011
Datum gelewer: / Date
delivered:
11 / 11 / 2011
In
the matter of:
THE
STATE
and
WILDENE
FORTUIN
.....................................................
Accused
Coram:
Williams
J
et
Olivier J
JUDGMENT ON REVIEW
OLIVIER, J
[1]
The accused in this matter was convicted on two counts of theft
1
.
The two counts were taken together for purposes of sentence and the
magistrate postponed the passing of sentence for a period
of 6 months
on condition that the accused reported to the De Aar Youth Centre
2
for
a period of 6 months. The accused was ordered to appear in court
again on 2 January 2012.
[2]
The accused was 14 years old at the time of the commission of these
crimes. The magistrate has submitted the proceedings for
automatic
review and has in this regard referred to the provisions of section
85(1)(a) of the Child Justice Act
3
,
as well as to the as yet unreported judgment of Dlodlo, J in
S
v Ruiter
4
.
For the sake of convenience the Child Justice Act will hereinafter be
referred to as “
the
CJA
”
and
the Criminal Procedure Act
5
as
“
the
CPA
”
.
[3] The provisions of
section 85 of the CJA read as follows:
“
Automatic review in
certain cases
The provisions of Chapter 30 of
the Criminal Procedure Act dealing with the review of criminal
proceedings in the lower courts
apply in respect of all children
convicted in terms of this Act: Provided that if a child was, at the
time of the commission
of the alleged offence –
under the age of 16 years; or
16 years or older but under the
age of 18, and has been sentenced to any form of imprisonment that
was not wholly suspended, or
any sentence of compulsory residence in
a child and youth care centre providing a programme provided for in
section 191(2)(j)
of the Children’s Act
the sentence is subject to review
in terms of section 304 of the Criminal Procedure Act by a judge of a
High Court having jurisdiction,
irrespective of the duration of the
sentence.
(2) The provisions of subsection
(1) do not apply if an appeal has been noted in terms of section 84.
”
[4] The wording of
these provisions, and the facts of this matter, raise several
questions:
4.1
The words “
irrespective
of the duration of the sentence
”
,
and their position within the layout of section 85(1), raise the
question whether they may have been intended to apply also in
respect
of the sentence of a child who was under the age of 16 years at the
time of the offence. If so, does the reference to the
“
duration
”
of a
sentence suggest that, even in the case of such children, only
sentences involving some form of custody or detention would
be
reviewable
6
,
or that the reference to imprisonment and compulsory residence
applies to such a child as well?
4.2
What
was the intention behind the reference to imprisonment “
not
wholly suspended
”
?
4.3
Would
orders postponing the passing of sentences
7
also
be reviewable in terms of the provisions of section 85 (1) (a) of the
CJA?
4.4
Should
the provisions of section 85 of the CJA be interpreted to mean that
the sentences envisaged there will be automatically reviewable,
irrespective of whether or not the accused was legally represented
8
.
DURATION OF THE
SENTENCE
[5]
In my view the words “
and
has been sentenced to any form of imprisonment that was not wholly
suspended, or any sentence of compulsory residence in a child
and
youth care centre
”
could
only have been intended to apply to accused persons as envisaged in
subsection (b) of section 85(1) of the CJA
9
.
Not only is this apparent from the layout of the provisions of
section 85(1) as a whole, but any other interpretation would fail
to
distinguish between the two age groups mentioned in subsections (a)
and (b) of section 85(1) of the CJA; a distinction which
the
legislature in my view quite clearly intended to draw.
[6]
This would then mean that, in the case of children of 16 or 17 years
old at the time of the offence, the proceedings would in
terms of
section 85 of the CJA also be reviewable where such a child “
has
been sentenced to any form of imprisonment that was not wholly
suspended, or any sentence of compulsory residence in a child
and
youth care centre
”
10
.
[7]
It is equally clear, in my opinion, that the provisions of section
85(1) of the CJA were intended to widen, in cases involving
children,
the range of cases where proceedings will be automatically
reviewable. In the preamble to the CJA the fact is acknowledged
that
the Constitution “
singles
(children)
out
for special protection, affording children in
conflict
with the law specific safeguards
”
,
including the right “
to
be treated in a manner … that
(takes)
account
of the child’s age
”
.
[8] The proceedings in
criminal trials of accused persons who were 16 or 17 years old at the
time of the offences would therefore
not only be automatically
reviewable in the case of the sentences envisaged in section 85(1)(b)
of the CJA, but also in the case
of sentences exceeding the limits
laid down in terms of section 302(1) of the CPA generally. A contrary
interpretation would produce
the result that a sentence of a fine
exceeding the limits prescribed in section 302(1)(a)(ii) of the CPA
would be automatically
reviewable in the case of an adult offender,
but not in the case of a 16 or 17 year old child.
[9]
Such a result would in my view be absurd and in conflict with the
constitutional need to provide “
special
protection
”
and
“
specific
safeguards
”
for
children
11
.
An interpretation that fails to recognise the need to distinguish
between adults and children in this regard would be contrary
to the
fundamental right of children to be “
treated
in a manner… that
”
(takes)
account
of
(their)
age
”
12
.
[10]
The provisions of section 85(1)(b) of the CJA can be compared with
those of section 84(1)(b) of that Act, which provide accused
persons
of 16 and 17 years old (at the time of the offence) with an automatic
right of appeal
13
where
such a person “
has
been sentenced to any form of imprisonment that was not wholly
suspended
”
.
[11]
Not only does the layout of section 84(1) of the CJA also make it
clear that the qualifying words “
and
has been sentenced to any form of imprisonment that was not wholly
suspended
”
apply
only to accused envisaged in section 84(1)(b), but its wording leaves
the possibility open for such an accused to apply for
leave to appeal
where any other type of sentence has been imposed. The intention was
therefore clearly to broaden the right of
appeal of accused persons
who were 16 or 17 years old at the time of the crime, and not to
limit it.
[12]
In the same way section 85(1)(b) was, in the case of accused persons
who were 16 or 17 years old at the time of their offences,
in my view
intended to in effect add to the sentences that are already subject
to automatic review in terms of section 302(1) of
the CPA, those
sentences set out in section 85(1) of the CJA. The result would
therefore be that, for example, in the case of an
accused who was 16
or 17 years old at the time of the crime, any form or duration of
imprisonment, and not just a term of imprisonment
as envisaged in
section 302(1) of the CPA, would entitle such an accused to an
automatic review. Also “
any
”
sentence
of “
compulsory
residence in a child and youth centre
”
,
would entitle such an accused to automatic review.
[13]
Once it is accepted that the words “
and
has been sentenced to any form of imprisonment that was not wholly
suspended, or any sentence of compulsory residence in a child
and
youth care centre
”
were
intended to qualify only the additional rights (created in section
85(1)(b) of the CJA) of accused persons who were 16 or 17
years old
at the time of the crime, it follows that, in respect of a child who
was under the age of 16 years old at the time of
the offence, the
intention was to have any sentence
14
subject
to automatic review
15
.
[14] The words
“
irrespective of the duration of the sentence
” in
my view refer to, and should be read with, the words “
and
has been sentenced to any form of imprisonment that was not wholly
suspended or any sentence of compulsory residence in a child
and
youth care centre
”. It is only a sentence involving some
form of custody or detention that could conceivably have a
“
duration
”. What the legislature intended to
provide, in my view, was therefore that a sentence to any term of
imprisonment, irrespective
of its duration, and to any term of
“
compulsory residence in a child and youth care centre
”,
once again irrespective of the duration of such compulsory residence,
would lead to the automatic review of such a sentence
in a case where
the accused person was 16 or 17 years old at the time of the offence.
[15] The words
“
duration of the sentence
” therefore in my view
has no reference to the sentences of accused persons who were younger
than 16 years old when the offences
were committed. All sentences of
such persons – and not only those which would have a “
duration”
–
are now in terms of section 85(1)(a) of the CJA
automatically reviewable.
[16] It is of some
significance that there is no such qualifying reference to the
duration of a sentence in the provisions of section
84(1) of the CJA.
In my view such a qualification would in any event be unnecessary,
because the words “
any form of imprisonment
” (not
wholly suspended) would make it clear that the duration of
imprisonment would be irrelevant. The same applies, in my
view, to
the provisions of section 85.
[17]
The words “
irrespective
of the duration of the sentence
”
could
never apply to accused persons who were under the age of 16 years at
the time of the offences, because such an interpretation
would limit
the rights of accused persons like that to cases where a sentence was
imposed that has some sort of duration. Such
an interpretation would
fail to distinguish between the two age groups created by subsections
(a) and (b) of section 85 (1) of
the CJA. That, as I have already
concluded, could not have been the intention of the legislature. As
regards children who were
16 or 17 years old at the time of the
crime, the words “
any
form of imprisonment
”
and
“
any
sentence of compulsory residence
”
,
would in my view already in themselves have conveyed that any
duration at all of imprisonment or of compulsory residence would
entitle such an accused to automatic review.
[18]
It is so that the introductory words of section 85(1) of the CJA make
the provisions of chapter 30 (which would include section
302) of the
CPA applicable to proceedings in which children are involved. Those
words are clearly qualified, however, by the proviso
following upon
them. The proviso begins with the words “
Provided
that
”
and
qualifies the general application of chapter 30 of the CPA when it
comes to the sentence of a child who was under the age of
16 years
old at the time of the offence
16
and
to the sentence of a child who was 16 or 17 years old at the time of
the offence and who is sentenced to imprisonment or compulsory
residence in a child and youth care centre
17
.
It must be borne in mind, however, that a proviso does not always
qualify in the sense of limiting the preceding part. It sometimes
provides “
something
additional
”
18
.
In this case the proviso expands the scope of the automatic
reviewability of sentences in the case of accused persons and
sentences
as envisaged in section 85(1) of the CJA, and it therefore
provides for the benefits of automatic review in more instances than
provided for in section 302(1) of the CPA (as incorporated into
section 85(1) of the CJA).
SUSPENSION
OF SENTENCE
[19]
This brings me to the question what the legislature intended to
achieve by including the words “
that
was not wholly suspended
”
as
a qualification to the words “
any
form of imprisonment
”
in
section 85(1)(b) of the CJA. Since the repeal of subsection (2)(b) of
section 302 of the CPA
19
the
suspension or part suspension of a sentence of imprisonment makes no
difference when determining the duration of such a sentence
for the
purposes of automatic review:
“
If
the sentence exceeds the limit, it is reviewable, whether it is
suspended or not
”
20
.
[20]
It must nevertheless be assumed that the intention, in section
85(1)(b) of the CJA, was to make it clear that any form of
imprisonment, which is not wholly suspended and which is imposed on
an accused who was 16 or 17 years old at the time of the offence,
will be automatically reviewable, irrespective of the duration of
such a sentence.
[21]
This would mean that any sentence of imprisonment that is not wholly
suspended will
21
be
automatically reviewable, even if its total duration or period (both
suspended and unsuspended) would not exceed the limits in
section 302
(1) of the CPA.
POSTPONEMENT OF
PASSING OF SENTENCE
[22]
This brings me to the question whether the postponement of the
passing of a sentence would be a “
sentence
”
for
the purposes of section 85(1) of the CJA.
I
must immediately say that in my view this question can only be
relevant as far as the “
sentence
”
of a
child under the age of 16 years old (at the time of the offence) is
concerned. Even if the postponement of the passing of sentence
is to
be regarded as a “
sentence
”
it
could never be regarded as a “
form
of imprisonment
”
or
“
as
a sentence of compulsory residence in a child and youth care centre
”
,
as envisaged in subsection (b) of section 85(1).
[23]
In
S
v Kiewiet
22
an
order postponing the referral or committal of the accused to a
rehabilitation centre
23
was
held to be not subject to automatic review. The effect of such an
order was equated to that of the suspension of a sentence
and it was
held that the order of referral or committal would become
automatically reviewable once it was put into operation. I
have
already referred to the fact that the suspension of a sentence, or of
any part thereof, no longer makes any difference in
determining
whether it is automatically reviewable.
[24]
In
In
re Doubell
24
the
Court was again concerned with the postponement of an order that the
accused be committed to a rehabilitation centre. It was
once again
held that such an order was not subject to automatic review:
“…
:
’n bevel waardeur vonnisoplegging
uitgestel
word is
iets anders as ‘n
vonnis
,
hetsy opgeskort al dan nie, waardeur ‘n persoon tot een van die
strawwe waarop outomatiese hersiening betrekking het,
veroordeel
word en
slegs sodanige
veroordelings
is
aldus hersienbaar. Insgelyks, ‘n
bevel
ingevolge
art 31(1) waardeur die uitreiking van ‘n bevel vir die
aanhouding van ‘n persoon in ‘n rehabilitasiesentrum
uitgestel
word,
is iets anders as ‘n
bevel
ingevolge
arts 30(6) en 31(5) waardeur die
aanhouding
van ‘n
persoon in ‘n sodanige sentrum
gelas
word en
slegs laasgenoemde bevele is outomaties hersienbaar
”
25
.
[25]
A similar order
26
was
the subject of the judgment in
In
re Afrikaner
27
.
It was held not to be automatically reviewable and was,
significantly,
also compared to the postponement of the passing of a sentence:
“
Dit is,
soos ‘n bevel wat ‘n vonnis uitstel, iets anders as ‘n
bevel vir gevangesetting waarop art 302(1)(a) nie
toegepas kan word
nie, ook nie met noodsaaklike wysigings nie. Om, wat outomatiese
hersiening betref, ‘n verskil te maak
tussen ‘n
uitstelbevel sonder enige voorwaardes en een met voorwaardes wat in
elk geval kan verskil, is in my oordeel nie
geregverdig nie
”
28
.
[26]
In contradistinction, however, reference may be made to
S
v Strauss: In re Strauss
,
where the desirability of the automatic review of the postponement of
orders of committal to rehabilitation centres was expressed,
although
only
obiter
.
It was pointed out, in my respectful view correctly, that such a
postponement could be made subject to very onerous conditions
29
.
[27]
In the present matter the postponement of the passing of sentence was
also made subject to a condition that would seriously
impact upon the
accused’s right to freedom. Compulsory residence in such a
child and youth care centre may be imposed by
a child justice court
as a sentence in itself
30
.
Such a sentence would then,
inter
alia
in
the case of an accused who was 16 or 17 years old at the time of the
crime, be automatically reviewable in terms of section 85(1)(b)
of
the CJA. It would be an anomaly if a condition of postponement with
for all practical purposes a similar effect,
viz
compulsory
residence in such a centre, would then not be regarded as a
“
sentence
”
and
not be automatically reviewable where the accused was under the age
of 16 years old at the time of the offence; this while it
is clear
that the legislature intended to create wider automatic review rights
for such children than for those who were already
16 or 17 years old
at the time of the offence.
[28]
In my view, therefore, a postponement of the passing of sentence on
condition that the accused “
reside
”
in a
child and youth care centre for a period of time should be regarded
as a “
sentence
”
for
the purposes of automatic review in terms of section 85(1)(a) of the
CJA. Such an approach would give recognition to the ”
paramount
importance
”
of
a child’s interests
31
and
would ensure that the desirability and suitability of such a
condition, and its possible effect on the child, will be scrutinised
by means of automatic review.
[29] On the facts of
this matter it is not necessary for me to decide whether even an
unconditional postponement of the passing
of sentence would be
automatically reviewable in the case of a child who was under the age
of 16 years old at the time of the offence.
I will only make the
following two remarks in this regard:
29.1
If an accused in such a case is not called upon to appear again, such
an accused shall be deemed to have been cautioned and
discharged. The
conviction, however,
“
shall
be recorded as a previous conviction
”
32
.
I doubt, however, whether the legislature intended the mere fact that
criminal proceedings against a child resulted in a previous
conviction, to be a justification for automatic review.
29.2
The automatic review of an unconditional postponement of the passing
of a sentence may result in the same proceedings
33
being
reviewed twice if a reviewable sentence is then later imposed.
[30] Lastly, and as far
as children who were 16 or 17 years old at the time of the offence
are concerned, I think the legislature
should consider providing for
automatic review not only where the child is sentenced to compulsory
residence in a child and youth
care centre, but also where such
residence is made a condition of the postponement or even suspension
of sentence. In both such
cases the only way to avoid the more
serious consequences of either the imposition of sentence or, in the
case of a suspended sentence,
the sentence itself, would be to reside
in such a centre for the period determined by the court.
[31]
The
Concise
Oxford English Dictionary
34
defines
the word “
compulsory
”
as
meaning “
required
by law or a rule; obligatory, involving or exercising compulsion;
coercive
”
.
The imposition of such a condition of postponement or of suspension
of sentence could probably not be regarded as a form of compulsion
or
coercion, in the strict sense of the word, but the offender is at the
same time not really left much choice. Either he/she submits
to the
condition or he/she faces the imposition of an impliedly more severe
sentence or the reality of having to serve a more serious
sentence.
LEGAL
REPRESENTATION
[32]
This finally brings me to the issue of legal representation. Section
302(3)(a) of the CPA limits the right to an automatic
review to an
accused who was “
not
assisted by a legal adviser
”
.
Section 85 of the CJA contains no such limitation. The question is
therefore whether an accused person falling within the age
categories
created by subsections (a) and (b) of section 85(1) of the CJA, and
whose sentence would otherwise qualify for automatic
review because
of the extended protection afforded by those provisions, will be
entitled to the additional automatic review protection
even though he
or she was legally represented at the trial.
[33]
In the
Ruiter
judgment
referred to by the magistrate
35
Dlodlo
J answered the question in the affirmative. As the only reason for
this finding Dlodlo J referred to the fact that the “
High
Court is the upper guardian for all minors within its jurisdictional
area
”
and
said that “
For
that reason and that one alone
”
cases
envisaged in section 85 “
should
always be the subject of automatic review in the ordinary cause
(
sic
)
regardless
of whether or not the said minor child was legally represented at
trial
”
36
.
[34]
Dlodlo J made no reference to the fact that section 302(3)(a) –
a part of chapter 30 of the CPA that is in terms of the
introductory
words of section 85(1) of the CJA specifically made applicable to
“
criminal
proceedings in the lower courts in respect of all children
”
–
exclude
automatic review in cases where the accused person was legally
represented.
[35] The question is
whether the legislature intended the proviso in section 85(1) of the
CJA not only to prescribe sentences which
would (in addition to those
provided for in section 302(1) of the CPA) be automatically
reviewable in the case of accused persons
who were children at the
time of the offences, but also to create an exception to section
302(3)(a) of the CPA when it came to
the review of those sentences.
[36] It is so that the
wording of the proviso, and more specifically the provision that a
sentence in a case like that “
is
” reviewable,
could be argued to lay down an immutable rule that sentences in the
cases envisaged in subsections (a) and (b)
of section 85(1) of the
CJA will always be automatically reviewable, in other words even in
cases where such an accused was legally
represented at the trial.
[37] The proviso
cannot, however, be read in isolation and as if it is an independent
clause or section.
“
There
is a fundamental rule of construction for an ambiguous proviso in a
statutory provision, namely that the proviso must be interpreted
in
relation to the principal matter to which it stands as a proviso. It
cannot be treated as an independent enacting clause in
that it is a
component of the enacting provision
”
37
.
“
The
plaintiff’s case,
therefore,
so it was argued, falls squarely within the language of para. (aa) of
the second proviso to sec. 11(1), and the defendant
is, therefore,
liable towards the plaintiff to the extent therein set out
notwithstanding the general provisions of the first proviso.
This argument
altogether overlooks the true function and effect of a proviso.
According to Craies,
Statute
Law
,
7
th
Ed., at p. 218
–
‘
the
effect of an excepting or qualifying proviso, according to the
ordinary rules of construction, is to except out of the preceding
portion of the enactment, or to qualify something enacted therein,
which but for the proviso would be within it; and such proviso
cannot
be construed as enlarging the scope of an enactment when it can be
fairly and properly construed without contributing to
it that effect’
In
R. v. Dibden
,
1910 P.
57
, Lord Fletcher Moulton at p.125, in the Court of Appeal, said –
‘
the
fallacy of the proposed method of interpretation (i.e. to treat a
proviso as an independent enacting clause) is not far to seek.
It
sins against the fundamental rule of construction that a proviso must
be considered in relation to the principal matter to which
it stands
as a proviso. It treats it as if it were an independent enacting
clause instead of being dependent on the main enactment.
The Courts,
…, have frequently pointed out this fallacy, and have refused
to be led astray by arguments such as those which
have been addressed
to us, which depend solely on taking words absolutely in their strict
literal sense, disregarding the fundamental
consideration that they
appear in a proviso’”
38
.
[38] In this case the
principal matter is the introductory part of section 85(1) of the
CJA, which specifically provides that chapter
30 of the CPA, insofar
as it deals with the review of criminal proceedings in the lower
courts, will apply also in the case of
convictions of children in
terms of the CJA.
[39]
Section 302 of the CPA is a part of chapter 30. It is titled
“
Sentences
subject to review in the ordinary course
”
.
It provides for the automatic review of criminal proceedings in
certain cases. In subsection (3)(a) it specifically excludes cases
where the accused were legally represented. The
ratio
behind
this is easy to understand. The system of automatic review creates an
additional workload for judges and automatic review
is regarded as
unnecessary where the accused were legally “
assisted
”
39
.
[40]
As a consequence of the introductory words of section 85(1) of the
CJA the provisions of chapter 30 of the CPA, including those
of
section 302(3)(a) – which exclude automatic review in cases
where the accused was legally represented, were incorporated
into,
and should be read as a part of, the CJA
40
.
[41]
The question is therefore really whether the proviso in section 85(1)
of the CJA can be interpreted as widening the scope of
automatic
review to not only include sentences that would not normally have
been automatically reviewable, but to also do so even
where the
accused in those cases were legally represented (and therefor to
qualify and limit the application of chapter 30 of the
CPA as far as
the issue of legal representation is concerned).
[42]
This
is certainly not specifically provided for. The proviso adjusts the
scope of sentences which will be subject to automatic review
with
reference to the age of the accused and, in respect of a certain age
category of accused persons, the type of sentences imposed.
It makes
no mention of the issue of legal representation.
[43] The fact that the
wording of the proviso, when read in isolation and as if it is an
independent enactment, simply renders the
envisaged sentences or
proceedings automatically reviewable, without reference to an
exception where the accused was legally represented,
would not in
itself justify the inference or implication that this rule was
intended to be immutable and not subject to any exception
(like in
cases where the accused were legally represented).
[44] The wording of the
proviso is in this sense similar to that of section 302(1) of the
CPA, which provides that the sentences
prescribed in terms of that
section “
shall
” be subject to automatic review.
The wording of that section also does not contain any qualification
in respect of accused
persons who were legally represented. The
exception, to the general provisions in section 302(1), is however to
be found in subsection
(3)(a) of section 302 of the CPA, where cases
in which the accused were legally presented are specifically excluded
from automatic
review.
[45] On the face of it
there is no indication in the wording of section 85(1) of the CJA
that this exception would not, by incorporation,
also apply in
respect of the general rule laid down by the proviso regarding
certain sentences not otherwise covered by section
302(1) of the CPA.
“
When a
later statute is to be construed that incorporates an earlier one,
the later statute is not to be interpreted as being of
wider
application than the earlier one
”
41
.
[46] Adv Barnard of the
local office of the Director of Public Prosecutions, to whom I am
indebted for his legal opinion in this
matter, drew my attention to
the provisions of sections 82 and 83 of the CJA. In section 82(1) it
is provided that, should a child
not have his/her own legal
representative, the magistrate must refer the child to the Legal Aid
Board.
[47]
The provisions of section 83 are somewhat difficult to follow. In
subsection (1) it is provided that a child appearing before
a child
justice court may not waive the right to legal representation.
Subsection (2), however, does envisage that the child may
“
not
wish to have a legal representative
”
or
may decline “
to
give legal instructions to an appointed legal representative
”
,
and provides that in such a case the Legal Aid Board must appoint a
legal representative “
to
assist the court in the prescribed manner
”
.
[48]
The “
prescribed
manner
”
can
be found in regulation 48
42
in
chapter 10
43
of
the regulations published in terms of the CJA
44
:
“
(1)
A
legal representative appointed in terms of section 83 of the Act to
assist the court must —
(a) attend all the
court proceedings in respect of the case unless, excused by the
court;
(b) address the
court on any matter requested by the court;
(c) have access to
the documents and statements in the docket to the extent permissible
in criminal proceedings; and
(d) ensure that the
best interests of the child are upheld at all times.
(2) A legal
representative appointed to assist the court may—
(a) address the
court on the merits and procedural aspects of the case;
(b) address the
court on the sentence to be imposed;
(c) cross-examine a
witness in relation to the evidence adduced by the witness;
(d) discredit the
evidence of a witness;
(e) raise an
objection to a question posed to the child or state witness;
(f) question the
admissibility of evidence led by the state;
(g) present evidence
that will be in the best interests of a child; or
(h) assist in any
other manner as the court may request.
(3)
A legal representative may attend the proceedings of a preliminary
inquiry if so requested by the inquiry magistrate.
”
[49] When regard is had
to these provisions it is indeed clear that, as submitted by Mr
Barnard, 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]
It is clear that the intention was that a child should at all costs
be legally assisted, either directly by his/her own representative
or
indirectly by a representative appointed in terms of section 83. Even
if one should adopt a technical approach and view a representative
who was appointed in terms of section 83 as somebody who “
assisted
”
the
court, and not the accused
45
,
children will clearly be legally assisted in the majority of cases.
[51]
The legislature must be presumed to have been aware of the provisions
of sections 82 and 83 (and of what it intended to be
prescribed in
respect of a representative to assist the court) when enacting
section 85 of the CJA
46
.
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
”
47
,
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.
[53] The conclusion to
which I have therefore come is that cases where the accused were
legally represented would be included in
the extended automatic
review provided for in the proviso to section 85(1) of the CJA.
CONCLUSION
[54] I have therefore
reviewed the proceedings in this matter and found them to be in
accordance with the law.
[55] In the premises
the following order is made:
THE CONVICTIONS AND
SENTENCE ARE CONFIRMED.
_________________
C.J.
OLIVIER
JUDGE
I agree.
__________________________
C.C.
WILLIAMS
JUDGE
1
The
second count involved the theft of articles from a motor vehicle.
2
Presumably
a centre as envisaged in Section 191 of the Children’s Act, 38
of 2005.
3
75
of 2008
4
A
review judgment delivered on 14 June 2011 in the Western Cape High
Court (Cape Town) under case number 101499.
5
51
of 1977
6
In
addition, of course, to sentences that would in any event in terms
of section 302(1) of the CPA have been automatically reviewable,
irrespective of the age of the accused.
7
In
terms of section 78 of the CJA, read with section 297(1)(a) of the
CPA
8
c
ompare
section 302(3)(a) of the CPA
9
a
nd
not to the accused persons envisaged in section 85(1)(a) of the CJA
10
O
nce
again, obviously, in addition to sentences which would in any event
in terms of section 302(1) of the CPA be reviewable
11
Over
and above those applicable in the case of adult accused.
12
s
ection
28(1)(g)(ii), read with section 39(2) of the constitution.
13
I
n
other words without having to apply for leave to appeal.
14
a
nd
not only those envisaged in section 302(1) of the CPA in respect of
all other accused persons
15
I
will revert to whether a postponement of a sentence would constitute
such a “
sentence
”
16
Section
85(1)(a) of the CJA
17
Section
85(1)(b) of the CJA
18
S
v Rosenthal
1980 (1) SA 65
(AD) at 81
19
by
section 22 of the Criminal Law Amendment Act, 59 of 1983
20
Hiemstra’s
Criminal Procedure
, Kruger, 30-17
21
In
the case of the children as envisaged in section 85 (1) (b) of the
CJA
22
1980(1)
SA 535 (C)
23
in
terms of section 16 of Act 1 of 1971
24
1985(1)
SA 274 (T)
25
In
re: Doubell, supra
, at 280B to D
26
a
lthough
then in terms of section 23(1) of Act 20 of 1992
27
1996(1)
SASV 359 (K)
28
Ibid,
at 365(b)
29
1970
(2) SA 18
(NKA) at 20 to 21
30
section
76 of the Child Justice Act
31
s
ection
28(2) of the Constitution
32
s
ection
297(3), read with section 297(1)(c), of the CPA
33
a
t
least as far as the conviction is concerned
34
10
th
edition, p294
35
s
ee
paragraph 2 and footnote 4 above
36
p
ara
[3] of the judgment
37
Principles
of Legal Interpretation: Statutes, Contracts & Wills
,
Kellaway, page 244
38
Mphosi
v Central Board for Co-operative Insurance Ltd
1974
(4) SA 633
(AD) at 645
39
Compare
S v Mboyany en ‘n Ander
1978 (2) SA 927
(T) at 930;
S
v Van Wyk
(1) 2000 (1) SASV 79 (T) at
80j
40
Principles
of Legal Interpretation, supra
page
248; and compare
Ringrose v Rex
1907 TS 46
41
Principles
of Legal Interpretation, supra
, page
248; see also the passage quoted from Craies’
Statute
Law
in
Mphosi
v Central Board for Co-operative Insurance Ltd, supra
,
at 645
42
titled
“
Legal representative appointed
to assist court
”
43
t
itled
“
Legal representation
”
44
p
ublished
in GN 251 on 31 March 2010 (GG 33067)
45
s
ection
302(3)(a) of the CPA
46
Stellenbosch
Wine Trust v Oude Meester Group Ltd
1977
(2) SA 221
(C) at 240D
47
Centre
for Child Law v Minister of Justice and Constitutional Development
and Others
2009 (6) SA 632
(CC) para
[25]