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[2024] ZAFSHC 213
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S v I.S (R21/2024) [2024] ZAFSHC 213 (23 July 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/
Not
reportable
Case
number: R21/2024
Sasolburg
Case No: A164/2024
In
the matter between
THE
STATE
And
I[…]
S[…]
Heard:
8 July 2024
Delivered:
23
July 2024
Summary:
Accused found to be a child aged 17 years after
plea of guilty and conviction on charge of entering and remaining in
RSA illegally
– steps to be taken in the circumstances
ORDER
1.
The proceedings in the Sasolburg Magistrate’s Court and the
subsequent conviction of the accused
under case number A164/2024 are
hereby reviewed and set aside.
2.
The prosecution of the accused must commence de novo in terms of the
provisions of the
Child Justice Act 75 of 2008
.
JUDGMENT
LOUBSER
PJ
[1]
This
is a matter that was referred to the High Court by the presiding
Magistrate for a review in terms of
Section 304A
of the Criminal
Procedure Act.
[1]
The need for a
review of the proceedings before the Magistrate arose when it
transpired after the conviction of the accused on
15 March 2024, but
before he was sentenced, that he was in fact under the age of 18
years when he committed the offence and when
he was found guilty of
the offence.
[2]
It
appears from the record of the proceedings that the accused was
charged with a contravention of the provisions of
Section 49(1)(
a
)
of the Immigration Act
[2]
in
that he had unlawfully entered and remained in the Republic of South
Africa without the required documents, visa or passport
to do so. The
accused was unrepresented in the Court and his age was indicated as
20 years on the charge sheet. He pleaded guilty
to the charge, and
during questioning by the Magistrate in terms of Section 112(1)(
b
)
of the CPA, it transpired that the accused entered South Africa
during October 2023 from Mozambique. The accused told the Court
that
he had paid a taxi driver to bring him across the border without any
papers which would entitle him to be in South Africa.
[3]
The accused further informed the Court that
there is no work in Mozambique and that he had to come to South
Africa ‘to look
for greener pastures’. He knew, however,
that his actions were unlawful and punishable by law.
[4]
After the questioning, the Magistrate was
satisfied that the accused had admitted all the elements of the
offence, and he then found
him guilty as charged. During the
sentencing stage, the accused informed the Court of his personal
circumstances, but he then revealed
that he was only 17 years of age.
Since there was nothing before the Court that could confirm the age
of the accused, the Magistrate
quite correctly postponed the
sentencing of the accused and referred him to the district surgeon
for an age determination.
[5]
On the date of postponement the prosecutor
handed in the report of the district surgeon, from which it appeared
that the accused
was between the ages of 16 and 18 years, but that he
was ‘most probably plus minus 17 years of age’. It was at
this
point that the Magistrate decided to refer the matter for a
review, and the accused was released on warning to allow for the
review
to be dealt with by the High Court.
[6]
Now
having regard to all the circumstances, it may well be argued that
the accused was not subjected to any prejudice so far, and
that the
present proceedings should simply continue under the principles
governing the sentencing of a child. Such an argument,
however, would
lose sight of the principles and provisions of the child justice
system introduced by the
Child Justice Act
[3]
since 1 April 2010. It is one of the main aims of this Act to divert
as many children as possible from the criminal justice process.
A
child is defined in the Act as any person under the age of 18 years.
[7]
In
terms of the Act, an accused falling in the age category of the
present accused, may be diverted in accordance with Chapter 6
of the
Act. If not, he must be assessed by a probation officer, whereafter
he must appear at a preliminary inquiry.
[4]
At the preliminary inquiry, the accused may be considered for
diversion. If he is not so diverted, the matter must then be referred
to a child justice court for plea and trial.
[5]
Once again, the child justice court may consider the matter for
diversion before the conclusion of the case for the prosecution.
[6]
[8]
It speaks for itself that so far, the
accused has been deprived of all these mechanisms and benefits to
which accused persons of
his age are entitled to. It follows that his
prejudice so far cannot be in any doubt. The proceedings in the
Magistrates Court
and the subsequent conviction of the accused
therefore stand to be reviewed and set aside.
[9]
In the premises, the following order is
made:
1.
The proceedings in the Sasolburg
Magistrate’s Court and the subsequent conviction of the accused
under case number A164/2024
are hereby reviewed and set aside.
2.
The prosecution of the accused must commence
de novo
in terms
of the provisions of the
Child Justice Act 75 of 2008
.
P.J. LOUBSER, J
I
concur:
J.J.
MHLAMBI, J
[1]
Act
51 of 1977
[2]
Act
13 of 2002
[3]
Act
75 of 2008
[4]
Section
5(2) and (3)
[5]
Section
5(4)(
b
)
[6]
Section
5(4)(c)