S v Mangwane and Another (913/07) [2007] ZAFSHC 141 (6 December 2007)

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[2007] ZAFSHC 141
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S v Mangwane and Another (913/07) [2007] ZAFSHC 141 (6 December 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. : 913/07
In the review between:-
THE STATE
and
TSHEPO
DAVID MANGWANE
Accused
One
ROBERT
CHARLIE McLOEN
Accused
Two
_____________________________________________________
CORAM:
RAMPAI,
J
et
EBRAHIM,
J
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
6
DECEMBER 2007
_____________________________________________________
[1] The
matter came to this court by way of a special review in terms of
section 304(4)
Criminal Procedure Act, No. 51 of 1977
. The two
juvenile offenders namely Tshepo David Mangwane and Robert Charlie
McLoen were arrested on 14 February 2007. They were
charged with the
crime of burglary and theft. The prosecution alleged that they
committed the crime at Mokwallo, Vredefort during
the night of 12 and
13 February 2007. The victim was a certain Mr. Petrus Hlathi. They
stole a DVD, its components as well as cash
from the victim.
[2] On
9 March 2007 they pleaded guilty. They were convicted on their
pleas. On the same day the magistrate made an order in terms
of
section 290(1)(d)
, Act No. 51/1977 that they be sent to a reform
school in lieu of sentencing them.
[3] Ms Z. Makholwa, a
probation officer at Kroonstad, investigated the social circumstances
of each of these children. On 22 February
2007 she compiled a
professional welfare report in respect of Tshepo David Mangwane. On
19 March 2007 she compiled a similar report
in respect of Robert
Charlie McLoen. She recommended that the juvenile offenders be
referred to a youth care centre called Ithokomala
somewhere in
Mpumalanga Province. Pending their admission to the recommended care
centre, she requested that the two children temporarily
be housed at
Matete Matches, a secure care centre at Kroonstad.
[4] Ms E.M. Vergottini,
the chief probation officer, Department of Welfare, Kroonstad has
apparently been at work trying to facilitate
the transfer of the two
boys from the care centre in the Free State Province to the
recommended care centre in the Mpumulanga Province.
So far her
efforts have being fruitless. See her letters to the magistrate,
Vredefort dated 27 September 2007, 3 October 2007 and
18 October
2007.
[5] In her last letter of
18 October 2007 to the magistrate Ms Vergottini wrote:
“
Na aanleiding van my skrywe
gedateer 3 Oktober 2007 en die nuwe sake wat tans hangende teen die
bogenoemde twee jeugdiges is blyk
dit dat die enigste gepaste opsie
tans sou wees om die twee seuns se sake om te skakel in
kinderhofverrigtinge en hulle na ‘n Nywerheidskool
te verwys.
Volgens
Mev. Carrol van Jimmy Roos is daar tans nie vakante plekke nie, maar
sal daar teen Januarie 2008 weer plek wees vir nuwe opnames.
Ek sou
dan ook aanbeveel dat hierdie prosedure voorrang geniet en so spoedig
moontlik afgehandel word ten einde hulle opname in
Januarie 2008 te
verseker. Beide seuns word tans aan onstabiliteit blootgestel en is
maar in wese op hulleself aangewese wat hulle
betrokkenheid by
misdadigheid bevorder. Die opname in ‘n sentrum soos Jimmy Roos
behoort aan hulle die stabiliteit en dissipline
te voorsien wat in
hulle lewens tans ontbreek.”
[6] On
the same day, 18 October 2007, Mr S.B. Tladi, the assistant manager
of Matete Matches Secure Care Centre wrote to Mr G.C. Prinsloo,
district court magistrate, Vredefort:
“
The above mentioned centre would
like to request the Magistrate and the Prosecutor to reconsider the
alternative placement for the
following minor CHARLIE ROBERT MCLEON
who is being placed at Matete Matches for developmental programmes
whilest attending his court
cases and still being placed at the
centre.
We
wish to inform the court that this child Charlie Robert Mcleon does
no longer fit into our programmes and most of the time he tries
to do
funny thing by non co-operating with the children as well as the
Educators in the class room. He refused to be woken up early
in the
morning for Head count and doesn’t want to go to school after
breakfast every morning. Recently he absconded at the centre
on
Friday the 12 October 2007 to go and sell two blankets at the
location and I only managed to get him on my way to the work.
Currently
the centre is full and there is no space for him at the
moment and this puts us in a predicament situation. Myself as an
Assistant
Manager tried several times to intervene but seems not to
go through to assist her and several interventions methods were tried
like
behaviour session programme, group sessions and group meetings
but to no avail.”
[7] The above
correspondence from Mr. Tladi and Ms Vergottini prompted the district
magistrate to seek the intervention of the High
Court by way of
special review in terms of
section 304(4)
, Act No. 51/1977. In a
letter dated 30 October 2007 addressed to the registrar of this Court
he wrote:
“
1. Beide
beskuldigdes is op 09/03/2007 gevonnis
(sic) i.t.v. art. 290(1)(d) Wet 51/1977
2. Die aangeleentheid is daarna
verskeie kere uitgestel vir aanwysing van ‘n verbeteringskool
3. Die
betrokke proefbeampte ondervind probleme om plek in ‘n
verbeteringskool te kry. Sien skrywes hierby aangeheg. Die saak
is
sedert 14/02/2007 op die rol.
4. A.g.v.
die vertraging was beskuldigdes vrygelaat in sorg van voogde.
Intussen is beide weer gearresteer vir aanklagte van Roof
en
Huisbraak en is tans in hegtenis plek van veiligheid.
5. Omskepping
van verhoor tot ondersoek i.t.v. art. 254 Wet 51/1977 mag dalk gepas
wees in die omstandighede. ‘n Beslissing van
welke aard berus
egter by die Agbare Hersieningsregter en verneem ek graag van u in
die verband.”
[8]
Section 254
Act No.
51/1977 provides:
“
254 Court
may refer juvenile accused to children's court
Cases
(1) If it appears to the court at the
trial upon any charge of any accused under the age of eighteen years
that he is a child as referred
to in section 14 (4) of the Child Care
Act, 1983 (Act 74 of 1983), and that it is desirable to deal with him
in terms of sections
13, 14 and 15 of that Act, it may stop the trial
and order that the accused be brought before a children's court
mentioned in section
5 of that Act and that he be dealt with under
the said sections 13, 14 and 15.
[Sub-s. (1) substituted by s. 8 of Act
26 of 1987.]
(2) If the order under subsection (1)
is made after conviction, the verdict shall be of no force in
relation to the person in respect
of whom the order is made and shall
be deemed not to have been returned.”
[9] It appears that there
is no suitable youth care centre where the two juveniles may be
placed for rehabilitative purposes in order
to comply with the court
order made on 9 March 2007. The juveniles were not sentenced after
their conviction. Instead the court
ordered that they be sent to a
reform school in terms of section 290(1)(d).
[10] Tshepo David
Mangwane was born on 12 August 1992. He is now 15 years of age. His
biological father is unknown. His mother
has died. His stepfather
is unemployed. He is unable to provide the basic material needs for
the boy. The youth left school last
year. He is now on drugs, to
wit, dagga. He is also doing crime. He is no longer in a temporary
care centre at Kroonstad but in
custody. This is undesirable. It
appears that Jimmy Roos Centre can accommodate him early next year.
[11] Therefore, I find:
that T.D. Mangwane to be a child without a parent or guardian; that
he displays behaviour which cannot be
controlled by the persons in
whose custody he was recently released; that he is under the age of
18 years; that it is desirable to
deal with him in terms of section
13, 14 and 15 of the Children’s Act, No. 74/1983 and that it is
necessary to set his conviction
aside so that he may be brought
before the children’s court in terms of section 5, Act No. 74/1983.
[12] Robert Charlie
McLeon was born on 3 September 1992. He too is now 15 years of age.
His parents, who never married each other,
have died. He and his
younger brother have since being living in the care of their maternal
grandmother. He drinks and smokes.
He even smokes dagga. He is now
doing crime. He is presently no longer temporarily accommodated at
Matete Matches Secure Care
Centre at Kroonstad.
[13] As regards McLeon, I
make similar findings as I did in the case of his friend, Mangwane.
He is currently in an undesirable custody
for children.
[14] Accordingly
I make the following order in respect of each juvenile in accordance
with the request by the magistrate:
14.1 The criminal
proceedings which culminated in their conviction at Vredefort on 9
March 2007 are set aside in terms of section
254(2).
14.2 The
magistrate is directed to convert their criminal case into an enquiry
in terms of section 5, Act No. 74/1983 in accordance
with the
provisions of section 254(1).
______________
M.H.
RAMPAI, J
I
concur.
_____________
S. EBRAHIM, J
/sp