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[2024] ZANCHC 102
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S v B.T (R14/2024) [2024] ZANCHC 102 (13 September 2024)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
High Court Ref No:
R14/2024
Magistrate’s
Serial No: 1/2024
Magistrate’s
Court No: 29/2024
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES/NO
In
the matter between:
THE
STATE
and
B[...]
T[...]
Accused
Coram: Stanton J
et
Chwaro AJ
Delivered on:
13/09/2024
Summary:
Review-
section 85
of the
Child Justice
Act 75 of 2008
read with
section 304
of the
Criminal Procedure Act 51
of 1977
- child offender - 17 years at the time of arrest and turned
18 years during the course of the proceedings-sentenced to 2 years
imprisonment-trial court not considering sentencing options
contained in Chapter 10 of the
Child Justice Act- sentence
imposed
not in accordance with justice-sentence imposed by trial court
reviewed and set aside-remitted to Magistrates’ Court
for
sentencing afresh before another Magistrate.
ORDER
1.
The sentenced imposed by the trial court is reviewed and set aside.
2.
The matter is remitted to the Magistrates’ Court for the
District of Pixley Ka Seme
sitting at Hopetown for urgent
consideration of sentence
de novo
before another Magistrate in
accordance with the sentencing principles contained in Chapter 10 of
the
Child Justice Act 75 of 2008
, including hearing of oral evidence
from the probation officer and any other relevant witness.
3.
The child offender, B[...] T[...], should forthwith be released from
any Correctional Centre
where he is presently incarcerated and to be
transferred for placement at Molehe Mampe Child and Youth Care Centre
pending the
finalisation of the sentencing procedure referred to in
paragraph 2 above.
REVIEW JUDGMENT
CHWARO
AJ
:
Introduction
[1]
This
review serves before me pursuant to the provisions of
section 85
of
the
Child Justice Act 75 of 2008
[1]
,
read with
section 304
of the
Criminal Procedure Act 51 of 1977
[2]
following the conviction and the imposition of a custodial sentence
upon the child offender by the Magistrates’ Court for
the
District of Pixley Ka Seme sitting at Hopetown. For the sake of
completeness,
section 85
of the CJA provides thus:
‘
85
Automatic review in certain cases
(1)
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 has been sentenced to any form of imprisonment 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 the High
Court having jurisdiction, irrespective of-
(a)
the duration of the sentence;
(b)
the period the judicial officer who sentenced the child in question
has held the substantive rank
of magistrate or regional magistrate;
(c)
whether the child in question was represented by a legal
representative; or
(d)
whether the child in question appeared before a district court
or a regional court sitting
as a child justice court.
(2)
The provisions of subsection (1) do not apply if an appeal has been
noted in terms of
section 84.
’
[2]
At the time of his arrest and during his
conviction on 19 March 2024 on the charge of robbery following his
plea, the child offender
was 17 years old. On 15 July 2024, he was
sentenced to two (2) years imprisonment coupled with an ancillary
order declaring him
unfit to possess a firearm in accordance with the
provisions of
section 103
of the
Firearms Control Act 60 of 2000
.
The charge and plea
[3]
The child offender was arraigned on a charge of robbery. The charge
sheet alleged that on or about
11 February 2024 and at Hopetown, he
unlawfully and intentionally assaulted one John Frederick and with
force took cash in the
amount of R560.00, which was the latter’s
property or was in his lawful possession.
[4]
On 19 March 2024, the child offender, who was legally represented
throughout the proceedings,
pleaded guilty to the charge of robbery.
He tendered a plea explanation contemplated in
section 112(2)
of the
CPA where he admitted having unlawfully and intentionally assaulted
John Frederick by hitting him with a fist on his mouth
and took an
amount of R160.00 from his wallet.
[5]
The trial court questioned the child offender on his plea explanation
and after having satisfied
itself that he admitted all the elements
of the offence, and pursuant to the acceptance of the plea by the
State, including the
amount of cash reflected in the plea explanation
referred to in paragraph 4 above, the trial court convicted the child
offender
on his plea.
Sentencing of the
child offender
[6]
As he was enjoined by the provisions of
section 71(1)(a)
of the CJA,
the Learned Magistrate requested and obtained a pre-sentence report
from a probation officer detailing the personal
circumstances of the
child offender. The report was compiled by Mr V Ntshebethu, a
probation officer of 26 years’ experience
and employed by the
Northern Cape Department of Social Development.
[7]
In terms of the pre-sentence report, the child offender was born on
25 April 2006 and dropped
out of primary school after completing
grade 3. He resides with his mother and his two siblings in
Steynville, Hopetown, whereas
his father, who has been absent in his
life since at a young age, resides with his family in Laingsburg,
Western Cape. Due to his
adolescent age, the child offender is not
spared from exposure to drugs within his community. He started using
dagga and later
resorted to mandrax and methamphetamine, commonly
known as “tik”.
[8]
The probation officer indicated that the child offender had previous
brushes with the law, being
two convictions of theft in 2022 and 2023
respectively, where in both instances, his sentenced was postponed
for a period of five
years in terms of
section 279(1)
of the CPA. The
probation officer discarded other sentencing options but recommended
that due to the seriousness of the offence
in casu
, the child
offender be sentenced to direct imprisonment in terms of
section 77
of the CJA where he will subject himself to all programmes rendered
by a correctional centre.
[9]
In mitigation of sentence, Ms Gerrits for the child offender,
submitted that he was 18 years old,
unmarried with no children and
unemployed. He relies on his mother for a living and requested that
he be granted a suspended sentence.
[10]
The State urged for direct custodial sentence as recommended by the
probation officer having regard to the
fact that the victim in the
case was a 75-year-old who was assaulted by the child offender and
robbed of his money and that robbery
was prevalent in the area. The
child offender did not learn from his previous convictions and kept
on reoffending.
[11]
Prior to imposing sentence, the Learned Magistrate enquired from both
the State and the child offender’s
legal representative as to
whether the provisions of
section 77
of the CJA were applicable to
the child offender in that he was 17 years old at the time of his
arrest but has since turned 18
years during the course of the
proceedings. Both could not pronounce themselves firmly and
adequately on the matter and the Learned
Magistrate indicated that he
was going to look it up.
[12] In
passing sentence, the Learned Magistrate only confined himself to the
provisions of
section 85
of the CJA relating to automatic review of a
sentence imposed on the child offender. He considered the
pre-sentence report dealing
with the child offender’s personal
circumstances, the crime and its impact on society. The Learned
Magistrate concluded that
the sentence recommended by the probation
officer was suitable and thereupon sentenced the child offender two
years imprisonment,
with an ancillary order declaring him unfit to
possess a firearm.
Discussion
[13] A
query was directed to the Learned Magistrate soliciting his
sentiments on his omission to apply the provisions
of Chapter 10 of
the CJA in sentencing the child offender and to articulate that the
offence upon which the child offender was
convicted, was one of the
offences contained in
section 77(3)
of the CJA.
[14] In
his commendably prompt response to the above query, the Learned
Magistrate admitted that he did not make
mention of any of the
provisions of Chapter 10 of the CJA in passing sentence and solely
relied on the probation officer’s
recommendation for a
custodial sentence. On the issue relating to offences detailed in
section 77(3)
of the CJA, the learned Magistrate admitted that he did
not refer to the said section but submitted that the aggravating
circumstances
that were placed before the trial court clearly
indicate that the child offender was sentenced in terms of
section
77(3)(b)
read with schedule 2(3) of the CJA.
[15]
Section 28(2) of the Constitution provides that the best interests of
the child are of paramount importance
in every matter that concerns
the child. In respect of children who are accused of committing
offences, section 28(1)(g) provides
for measures that are aimed at
ensuring minimum detention period for children under conducive
circumstances suitable to the age
of the child.
[16]
In line with its international obligations established by various
protocols
[3]
and giving effect
to the rights of children as contained in section 28 of the
Constitution, the CJA was enacted to give direction
and impetus on
the realisation of the rights of children who are accused of
committing offences. Chapter 10 of the CJA contains
elaborate
provisions which serve to guide those dealing with child offenders on
the sentencing options that ought to be imposed
under different
circumstances.
[17]
The constitutional values underpinned in these constitutional and
legislative prescripts require of judicial
officers dealing with
sentencing of children to be alive to the separate and distinct
system of criminal justice for children as
opposed to those provided
for in the CPA for it is a constitutional failure for a court to
disregard to appreciate and accord child
offenders different
treatment in considering and imposing an appropriate sentence
[4]
[18]
In
S
v CKM and Others
[5]
the court described the introduction of the present juvenile criminal
justice system as embodied in the CJA in the following terms:
‘
[I]t
introduced a comprehensive system of dealing with child offenders and
children coming into conflict with the law that represents
a decisive
break with the traditional criminal justice system. The traditional
pillars of punishment, retribution and deterrence
are replaced with
continued emphasis on the need to gain understanding of a child
caught up in behaviour transgressing the law
by assessing her or his
personality, determining whether the child is in need of care, and
correcting errant actions as far as
possible by diversion,
community-based programmes, the application of restorative justice
processes and reintegration of the child
into the community’.
[19] On
the facts established
ex facie
the record, it is common cause
that the child offender was convicted of robbery and sentenced to 2
years direct imprisonment. In
terms of section 77(1)(b) of the CJA, a
sentence of imprisonment may only be imposed on a child who is
14 years or older at
the time of being sentenced for the offence, as
a measure of last resort and for the shortest appropriate period.
[20]
Section 77(3) of the CJA provides as follows regarding sentence of
imprisonment of a child offender who is
14 years or older at the time
of sentencing:
‘
(3)
A child who is 14 years or older at the time of being sentenced for
the offence may only be sentenced to
imprisonment, if the child is
convicted of an offence referred to in-
(a)
Schedule 3;
(b)
Schedule
2, if substantial and compelling reasons exist for imposing a
sentence of imprisonment;
(c)
Schedule 1, if the child has a record of relevant previous
convictions and substantial and compelling reasons
exist for imposing
a sentence of imprisonment.’
[21]
The definition section of the CJA defines a “child” as
“
any
person under the age of 18 years and, in certain circumstances, means
a person who is 18 years or older but under the age of
21 years whose
matter is dealt with in terms of section 4 (2)
”
.
In terms of section 4(1)(b) of the CJA, the provisions of the Act
apply to a child offender
if
such child was between the ages of 10 and 18 when the child was
handed a written notice, served with a summons, or arrested.
This
much was confirmed in
S
v Nteta
[6]
where the court reasoned as follows:
‘
In my view, there
is a perfectly logical and rational reason as to why the legislature
required that the child offender should have
been under the age of 18
years when he is alleged to have committed the offence and similarly
also have been under the age of 18
years when he was arrested in
order for the CJA to find application. The very purpose of the CJA
was clearly to establish a criminal
justice system for children, and
children only, who are in conflict with the law and accused of
committing offences.....’
[22] In
the present case, it is common cause that the child offender was
arrested on 13 February 2024, before
turning 18 years and thus the
provisions of the CJA applied to him. It is further undisputable that
at the time of imposition of
sentence on 15 July 2024, the child
offender was 18 years old. The question whether sentencing of a
child offender who was
arrested whilst under 18 years of age but
turned 18 before the imposition of sentence is supposed to be dealt
with in accordance
with the provisions of the CJA has been
authoritatively answered.
[23] In
S v
Melapi
[7]
the court held that a purposive interpretation of the provisions of
section 28 of the Constitution favours that the sentencing
provisions
of the CJA should remain applicable
for
a child who turned 18 during the course of the proceedings, rather
than an interpretation that excluded a child from the protection
of
that Act if he turned 18 during the course of proceedings.
[24]
In
S
v RS and Others
[8]
the court held that the sentencing principles and considerations
contained in Chapter 10 of the CJA have legal force and
effect and
non-compliance therewith will result in the sentence imposed by a
court to be not only irregular but also unlawful and
a violation of
the principle of legality.
[25]
The record reveals that the Learned Magistrate failed to apply any
provision of Chapter 10 of the CJA when
sentencing the child offender
in this case and provided no reasons for such failure. The Learned
Magistrate’s response to
the query directed to him on this
aspect puts this matter to rest. The Learned Magistrate only
considered the fact that the imposition
of the sentence was
reviewable in terms of section 85 of the CJA.
[26]
The Learned Magistrate failed to exercise a judicial discretion in
determining an appropriate sentence for
the child offender and, as
indicated in his response to this Court’s query, solely relied
on the probation officer’s
recommendation without giving
reasons on why other sentencing options contained in Chapter 10 of
the CJA could not be considered.
This amounts to a misdirection and a
gross irregularity that vitiates the sentence imposed by the trial
court. It follows that
the sentence cannot stand and falls to be
reviewed and set aside.
[27] In
conclusion, the Learned Magistrate’s reply to this Court’s
query as adumbrated above contains
a statement to the effect that
Child and Youth Care Centres are reluctant to accommodate a person of
18 years or older. This cannot
be a reason to impose a custodial
sentence effectively committing and exposing a child offender to
older offenders accommodated
at various correctional centres.
[28]
In
Melapi
[9]
,
the court clearly set out the interpretation of section 76 of the CJA
and concluded that it allows a child to remain in a child
and youth
care centre up to the age of 21 years. It follows that any reluctance
by the management of these centres to accommodate
child offenders who
have not reached the age of 21 years is an affront to the provisions
of the CJA and thus not permissible.
Order
[29] In
the circumstances the following order is made:
1.
The sentenced imposed by the trial court is
reviewed and set aside.
2.
The matter is remitted to the Magistrate’s
Court for the District of Pixley Ka Seme sitting at Hopetown for
urgent consideration
of sentence
de novo
before another Magistrate in accordance with the sentencing
principles contained in Chapter 10 of the
Child Justice Act, No. 75
of 2008
, including hearing of oral evidence from the probation
officer and any other relevant witness.
3.
The child offender, B[...] T[...], should
forthwith be released from any Correctional Centre where he is
presently incarcerated
and to be transferred for placement at Molehe
Mampe Child and Youth Care Centre pending the finalisation of the
sentencing procedure
referred to in paragraph 2 above.
OK
CHWARO
ACTING
JUDGE OF THE HIGH COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
I
concur.
A
STANTON
JUDGE
OF THE HIGH COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
[1]
(“the
CJA”)
[2]
(“the
CPA”)
[3]
Article
3(1) of the United Nations Convention of the Rights of the Child,
1989 and Article 4(1) of the African Charter on the
Rights and
Welfare of the Child, 1990
[4]
Mpofu
v Minister of Justice and Constitutional Development and Others
2013
(2) SACR 407
(CC) para 58
[5]
2013
(2) SACR 303
(GNP) para 7
[6]
2016
(2) SACR 641
(WCC) para 11
[7]
2014
(1) SACR 363
(GP) para 53
[8]
2012
(2) SACR 160
(WCC) para 30
[9]
Footnote
7 above, para 54