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
(EASTERN CAPE DIVISION, MAKHANDA)

[Reportable]
Case No:CA&R113/2025
Date delivered: 22 July 2025

In the matter between:

THE STATE

and

C[...] K[...]

JUDGMENT

Introduction

1. This matter was sent on special review by the Regional Magistrate, sitting in
Fort Beaufort. The accused child (the child), who was 14 years' old at the time of his
trial, was convicted of the murder of a 14 year old boy. The child was 12 years' old at
the time of the alleged commission of the offence. In her memorandum

accompanying the record, the magistrate said that she erred in convicting the child of
murder because the child had pleaded to the competent verdict of culpable
homicide. She requested that the conviction for murder be set aside and that another
verdict be substituted.

2. The record of the proceedings reflects that when the charge of murder was
put to the child, who was legally represented, he pleaded guilty. His legal
representative, presumably from LegalAid South Africa because the child had
elected to apply for legal aid, informed the court that the plea was not in accordance
with his instructions and that the child intended to plead guilty to culpable homicide,
having indicated as much during consultation. The magistrate then established from
the child that his plea of guilty was to a charge of culpable homicide.

3. A statement in terms of s 112 (2) of the Criminal Procedure Act 51 of 1977
(the CPA) was then read into the record. I shall not reproduce the whole statement
but it is relevant to mention that the child stated that he wrongfully and negligently
stabbed the deceased by stabbing him with a knife on his body. He further stated
that after the deceased had pushed him and hit him, and he fell down, he was angry
and went home and grabbed a knife. He returned to where the deceased was. The
deceased picked up some stones and the child went to him with the intention to
scare him. The child struck a blow on the deceased's body but did not intend to kill
him. The prosecutor accepted the plea to culpable homicide.

4. What happened thereafter is a little difficult to follow. The magistrate said, and
I paraphrase, that she was not accepting the plea, and that it was “not holding up"
even for a conviction of culpable homicide. The following exchange took place
between the magistrate and the legal representative:

“Legal representative: Even on culpable homicide?

Court: No, remember you said you are pleading on culpable homicide. Legal
representative: Yes, your Worship.

Court: The State put the charge of murder.

Legal representative: Of murder, yes your Worship.

Court: So the plea as it stands at the moment on what you are saying you are
pleading on, the court is satisfied with that.”

5 The matter then stood down after the legal representative asked if he and the
prosecutor could approach the magistrate in chambers. When the matter resumed,
the legal representative placed on record that the proceedings had been adjourned
for he and the prosecutor to “find each other and also to approach the court”. The
magistrate recorded that a statement had been handed in earlier with which she was
not satisfied, particularly on the charge that it was said the child was pleading to, and
it was not accepted. Nothing was placed on record of what took place in the
magistrate's chambers.

6. The legal representative, on behalf of the child, then made the following
written admissions in terms of s 220 of the CPA:

“1. I admit that I stabbed the deceased on the chest with a knife.
2. I further admit that I foresaw that by stabbing him on the chest I
might kill him.
3. I therefore accept full responsibility for my actions, furthermore I
don't have a defence thereto.”

7. The post mortem examination report and a photograph album were submitted
as exhibits.

8. The prosecutor closed the State case and submitted that the child should be
found guilty of murder. On behalf of the child the legal representative closed his
case. He did not address the court other than to say that the child took full
responsibility for his actions.

9. In her judgment the magistrate said that she was satisfied that the child was
not pleading guilty to the charge of murder and that the evidence was satisfactory for
the offence of murder. She accordingly convicted the child of murder.

10. It does not appear from the record that the child formally pleaded not guilty to
the charge of murder.

11. The child has not yet been sentenced.

12. In her memorandum accompanying the record, the magistrate stated that
she erred in convicting the child of murder as he had pleaded to culpable homicide,
and that when she read the s 112 (2) statement she wrongly interpreted the fetching
of the knife as some sort of intent.

13. Once the State has restricted the lis between it and an accused person, by
an acceptance of a plea of guilty on an alternative charge or competent verdict, the
court does not have the power to reject the plea. See Tshilidzi v S [2013] ZASCA 78
and the authorities referred to therein. Such rejection constitutes a gross irregularity
(Tshilidzi at paragraph [4]).

14. It is not altogether clear wh ether the magistrate rejected the plea because it
did not support a conviction of culpable homicide, or because the child appeared to
be admitting intent and was therefore pleading guilty to murder. Her rejection of the
plea and the subsequent meeting in chambers appear to have precipitated the child's
s 220 admissions.

15. I was concerned about the conduct of the trial, particularly because this was
a very young child and because the s 220 admissions were radically opposed to the
s 112 (2) statement. I was of the view that at least the prosecutor and the legal
representative had not served the best interests of the child. A trial in which the
prosecutor was prepared to accept a plea on the competent verdict of culpable

homicide effectively c hanged into a murder trial. I was concerned that once the
proceedings had been reviewed and set aside, as they had to be, the child would
face a charge of murder when in previous proceedings the State had restricted the
lis to culpable homicide.

16. I requested an opinion from the Director of Public Prosecutions, Makhanda. I
received a prompt, thorough and helpful response from Ms Vos, Deputy Director of
Public Prosecutions. She agreed that the proceedings should be reviewed and set
aside. She pointed to deficiencies in the s 112 (2) statement and expressed the view
that the prosecutor should not have accepted the plea, that the magistrate should
have realised that all the elements of culpable homicide were not admitted and
should have entered a plea of not guilty in terms of s 113 (1) of the CPA. I note that
although she did not say so on record, the magistrate recorded, on the J15 charge
sheet, a plea of guilty to the competent verdict of culpable homicide, and that it was
changed in terms of s 113 of the CPA. The judgment recorded on the J15 was guilty
as charged on the main count. If indeed the magistrate intended to enter a plea of
not guilty in terms of s 113 (1) of the CPA, the charge would have remained as
culpable homicide and not murder. Reintroduction of the charge of murder was not
permitted. The subsequent events after the rejection of the plea to culpable homicide
were in my view grossly irregular and severely prejudicial to the child.

17. This court cannot substitute the verdict with one of culpable homicide. The s
112 (2) statement is insufficient to sustain a conviction of culpable homicide. There is
no elaboration of the bare admissions of negligence and unlawfulness, and
causation of death is not admi tted. It is also worth mentioning that the s 220
admissions were insufficient to warrant a conviction of murder. Intention in the form
of dolus eventualis was not fully admitted, in that having foreseen the possibility that

of dolus eventualis was not fully admitted, in that having foreseen the possibility that
by stabbing the deceased he might cause his death, the child did not state that he
reconciled himself to this possibility.

18. Most important of all, Ms Vos stated that she could not find in the record any
indication that criminal capacity on the part of the child had been established.

Section 7 (2) of the Child Justice Act 75 of 2008 (the CJA) provides:

“A child who is 12 years or older but under the age of 14 years and who
commits an offence is presumed to lack criminal capacity, unless the State
proves that he or she has criminal capacity in accordance with section 11.”

19. Section 11 (1) provides:

“The State must, for purposes of plea and trial, prove beyond reasonable
doubt the capacity of a child who is 12 years or older but under the age of 14
years to appreciate the difference between right and wrong at the time of the
commission of an alleged offence and to act in accordance with that
appreciation."

20. The record of the proceedings does not reflect any reference to proof of
criminal capacity on the part of the child. This defect in itself warrants the setting
aside of the proceedings.

21. There was yet a further defect in the proceedings. Section 63 (3) of the CJA
provides:

“Before plea in a child justice court, the presiding officer must, in the
prescribed manner—
(a) inform the child of the nature of the allegations against him or
her;
(b) inform the child of his or her rights; and
(c) explain to the child the further procedures to be followed in
terms of this Act.”

22. Before the child pleaded, the magistrate asked the legal representative if the
explanations in terms of the CJA had been given to the child, including competent
verdicts and the provisions of s 103 of the Firearms Control Act 60 of 2000. The legal

representative informed the magistrate that these requirements had been observed.

23. This was insufficient. Section 63 (3) of the CJA specifically requires the
explanation and information to be provided by the presiding officer. Regulation 37 of
the CJA sets out in detail the prescribed manner in which the information and
explanations must be provided by the presiding officer.

24. It must be remembered that amongst the objects of the CJA are the
protection of the rights of children and provision for the special treatment of children
in a child justice system. There are no shortcuts.

25. The following order will issue:

(a) The proceedings and conviction for murder under case number
S/R 1/2025 held in the Regional Court sitting in Fort Beaufort are reviewed
and set aside.

(b) If the prosecuting authority decides to prosecute the child de
novo, the proceedings must be heard by a different magistrate.

(c) The Registrar is requested to forward this judgment to Ms W Vos,
Deputy Director of Public Prosecutions, Makhanda, and to Ms Imkitha
Salman-Kiva, email address I[...].


____________________
J M ROBERSON
JUDGE OF THE HIGH COURT

I agree

____________________

J G A LAING
JUDGE OF THE HIGH COURT