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S v T.O (7/2023; C547/2022) [2023] ZAWCHC 187; 2023 (2) SACR 507 (WCC) (4 August 2023)

85 Reportability
Criminal Law
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Brief Summary

Criminal Law — Children — Previous convictions — Judicial officer previously dealing with accused in Children’s Court proceedings presiding over subsequent criminal trial — Such a situation amounts to a gross misdirection vitiating the proceedings — Conviction and sentence set aside in terms of the Child Justice Act 75 of 2008. The accused, a 19-year-old male, was charged with housebreaking and theft, having previously been dealt with in Children’s Court for similar offenses. The presiding magistrate, who had previously interacted with the accused, failed to recuse himself, leading to a review of the proceedings. The court held that the magistrate’s prior involvement constituted a misdirection, resulting in the conviction and sentence being set aside.

Comprehensive Summary

Summary of Judgment


Introduction


This was a high court review of criminal proceedings conducted in the Caledon Magistrate’s Court. The matter concerned the validity of the accused’s conviction and sentence, viewed through the lens of fair-trial requirements and the proper treatment of prior involvement of a judicial officer with an accused person in Children’s Court proceedings.


The parties were the State as prosecutor and T[...] O[...] as the accused, a 19-year-old male at the time of the magistrate’s court proceedings. The review was determined in the Western Cape High Court, Cape Town, by Henney J (with Gamble J concurring).


Procedurally, the accused was charged with housebreaking with intent to steal and theft, ultimately pleaded guilty, and was convicted and sentenced by the magistrate to two years’ imprisonment. During sentencing, the prosecution produced a SAP69 criminal record reflecting, among other entries, Children’s Court outcomes from 2020 as “previous convictions”. On review, the High Court raised a query with the magistrate regarding the propriety of his presiding given his prior interaction with the accused in Children’s Court proceedings and the apparent reliance on that interaction during sentencing.


The general subject matter was the intersection between child justice/children’s court confidentiality, the lawfulness of recording Children’s Court outcomes as prior convictions, and whether a magistrate who previously dealt with an accused as a child in Children’s Court proceedings may thereafter preside in a later criminal trial involving the same person.


Material Facts


The accused was charged with housebreaking with intent to steal and theft, arising from an incident alleged to have occurred on 1 October 2022, in which the accused broke into the complainant’s premises and stole eight cellular phones.


The accused chose to conduct his own defence after being informed of his right to legal representation. After several appearances, on 11 January 2023 he tendered a plea of guilty. During questioning under section 112(2) of the Criminal Procedure Act 51 of 1977, the accused admitted that entry was gained by forcing open a door using a screwdriver, that the eight phones were stolen, and that there was an intention to sell them. The accused stated that only two phones were sold for R1 500.


At sentencing, the State proved entries from the accused’s SAP69 record, including offences recorded as follows. First, a matter recorded as theft (committed in August 2020) together with a contravention linked to section 45(1) of the Sea Fisheries Act 12 of 1988 (committed March 2020), both finalised on 14 December 2020 and reflected as having been dealt with in the Children’s Court, where the accused was referred to a Child and Youth Care Centre. Second, a later matter for contravention of section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 (committed January 2022), for which a fine was imposed with an alternative of imprisonment.


A further material fact, drawn from the sentencing record, was that the presiding magistrate expressly referred to his prior familiarity with the accused from before the accused turned 18 or 19, referred to the accused’s mother, and referred to the earlier Children’s Court referral to a Child and Youth Care Centre. The High Court regarded this as demonstrating that the magistrate was the source of personal knowledge of the accused’s prior Children’s Court involvement, and that this knowledge bore upon sentencing.


The magistrate confirmed in response to the review query that he had presided in the Children’s Court matter in 2020, which resulted in an order under the Children’s Act 38 of 2005 placing the accused at a Child and Youth Care Centre, after the matter had been transferred from the child justice process on the basis that the accused appeared to be a child in need of care and protection. He further stated that he did not deem recusal necessary, particularly because the matter proceeded on a guilty plea.


Legal Issues


The review court was required to determine whether it was appropriate and lawful for a judicial officer who had previously dealt with an accused in Children’s Court proceedings to preside in a later criminal trial involving the same person, particularly where the judicial officer referred to and relied on personal knowledge derived from those earlier proceedings.


A related legal question was whether an order made under section 156 of the Children’s Act 38 of 2005, following referral in terms of the Child Justice Act 75 of 2008, could lawfully be recorded and later proved as a previous conviction on a SAP69 criminal record, and whether such proof and reliance was permissible in later criminal sentencing.


The dispute largely concerned questions of law and the application of statutory provisions to undisputed facts (including the content of the record and the magistrate’s own admissions about prior involvement). The court also made an evaluative determination about whether the magistrate’s conduct amounted to a gross misdirection and whether the proceedings were in accordance with justice, implicating the accused’s fair-trial rights.


Court’s Reasoning


The court approached the matter by first identifying the nature and consequences of Children’s Court involvement arising from the Child Justice framework. It considered the mechanism in the Child Justice Act 75 of 2008 by which criminal proceedings involving a child may be halted and the child referred to the Children’s Court where the child appears to be in need of care and protection, specifically with reference to section 64 read with section 50. On the court’s interpretation, once such a referral occurs and the Children’s Act regime applies, the criminal process that had been initiated against the child is effectively stopped.


From this, the court reasoned that an order made by a Children’s Court under section 156 of the Children’s Act 38 of 2005—including an order placing a child in a Child and Youth Care Centre—is not a criminal conviction, because it follows a process concerned with the child’s care and protection and is made after the criminal proceedings are halted. On that footing, the court concluded that such an order cannot lawfully be recorded as a “previous conviction” and cannot lawfully appear on a document purporting to be the child’s criminal record, because the child did not incur a criminal conviction and did not acquire a criminal record from that Children’s Court outcome.


The court further held that it was unlawful and inadmissible to prove, as a previous conviction in later criminal proceedings, an entry on a SAP69 that reflected a Children’s Court order under section 156 of the Children’s Act. The court treated the inclusion of those entries on the SAP69, and their use in sentencing, as contrary to the statutory framework and purpose of the Children’s Act and Child Justice Act.


A further strand of reasoning concerned the confidentiality of Children’s Court proceedings and the protection of a child’s identity and information. The court referred to statutory measures aimed at protecting confidentiality, including that Children’s Court proceedings are closed (section 56 of the Children’s Act) and that access to Children’s Court records is restricted (section 66). It also relied on the prohibition on publishing identifying information relating to Children’s Court proceedings without court permission (section 74). The court emphasised that disclosure of information from Children’s Court proceedings is not generally permitted and is tightly regulated to protect the best interests of the child, and it noted that contraventions may constitute offences under the Children’s Act.


Against that statutory background, the court viewed the magistrate’s conduct as problematic for two connected reasons. First, the magistrate had previously presided over the accused’s Children’s Court matter and thus held personal knowledge of the accused’s earlier involvement and outcome. Second, in the later criminal sentencing proceedings, the magistrate referred to those prior proceedings and engaged the accused on the basis of that prior knowledge, in circumstances where such information was confidential and where it should not have been treated as a previous conviction or aggravating factor.


In evaluating the impact on fairness, the court considered authority dealing with improper reliance on prior matters involving child offenders. It referred to S v S.M (R03/2022; PCJC01/2021;01/2022) [2022] ZAMPMBHC 27 (26 April 2022), where reliance on prior diverted matters as if they were previous convictions was treated as a misdirection. While acknowledging that the context differed, the court considered the reasoning relevant insofar as it stressed the unfairness and prejudice that arises when non-conviction outcomes from child justice processes are treated as aggravating “previous convictions”.


The court also noted that prior knowledge of an accused’s previous convictions or conduct does not in every case require recusal or vitiate proceedings, including in situations where a plea of guilty is later altered under section 113 of the Criminal Procedure Act 51 of 1977, and it referred in that connection to S v Moses 2019 (1) SACR 75 (WCC) and S v Sass 1986 (2) SA 146 (NC). However, it distinguished the present matter on the basis that the magistrate was the primary source of the information, actively introduced it during sentencing, and did so in a setting where the information related to confidential Children’s Court proceedings and where the SAP69 entries themselves were regarded as unlawfully recorded as convictions.


In the court’s overall assessment, these features amounted to a gross misdirection that undermined the fairness of the proceedings. It held that the proceedings were not in accordance with justice and should be set aside.


Outcome and Relief


The High Court set aside both the conviction and the sentence imposed by the magistrate.


In addition, the court directed the Office of the Director of Public Prosecutions to request the South African Police Service: Criminal Record Centre to remove forthwith any Children’s Court order made under section 156 of the Children’s Act 38 of 2005 that had been recorded against the accused’s name as a purported previous conviction.


The judgment did not make a separate order as to costs.


Cases Cited


S v Zinn 1969 (2) SA 537 (A) was referenced in the magistrate’s explanation as part of the conventional sentencing triad.


S v S.M (R03/2022; PCJC01/2021;01/2022) [2022] ZAMPMBHC 27 (26 April 2022) was relied upon by the review court in addressing the improper treatment of child-justice outcomes as “previous convictions”.


S v Moses 2019 (1) SACR 75 (WCC) was referred to in discussing circumstances in which prior knowledge of previous convictions does not necessarily vitiate proceedings.


S v Sass 1986 (2) SA 146 (NC) was likewise referred to regarding prior knowledge and the operation of section 113 of the Criminal Procedure Act.


Johncom Media Investments Ltd v M and Others (Media Monitoring Project as Amicus Curiae) 2009 (4) SA 7 (CC) was mentioned in relation to restrictions on publication of identifying information concerning children, in the broader discussion of confidentiality.


Legislation Cited


The Criminal Procedure Act 51 of 1977 was applied, including section 112(2) (questioning after a guilty plea) and section 113 (alteration of a plea). The judgment also referred to section 154(3) in the context of restrictions on publication identifying child accused persons or witnesses.


The Child Justice Act 75 of 2008 was central to the analysis, including sections 50 and 64 (referral of children in need of care and protection to a Children’s Court), and references to sections 43, 47(9), 49(2), and 63 in explaining the procedural pathway by which the child’s matter could be handled and transferred.


The Children’s Act 38 of 2005 was applied extensively, including section 156 (orders after a finding that a child is in need of care and protection), and references to sections 42, 56, 66, 74, 150, 155, 158, and 305(1)(b) in relation to Children’s Court jurisdiction, confidentiality, access to records, and consequences for contraventions.


The Sea Fisheries Act 12 of 1988 was referenced in the description of an offence recorded on the SAP69, with reference to section 45(1).


The Drugs and Drug Trafficking Act 140 of 1992 was referenced in the description of an offence recorded on the SAP69, with reference to section 4(b).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that it was inappropriate and unlawful for the magistrate to preside in the subsequent criminal matter in circumstances where the magistrate had previously dealt with the accused in Children’s Court proceedings and then relied on personal knowledge of those proceedings during sentencing.


The court held that a Children’s Court order made under section 156 of the Children’s Act 38 of 2005, following referral from the Child Justice process because the child appeared to be in need of care and protection, does not constitute a criminal conviction and therefore may not lawfully be recorded as a previous conviction on a SAP69 criminal record or proved as such in later criminal proceedings.


The court held that the magistrate’s conduct and reliance on the Children’s Court history, together with the unlawful treatment of the Children’s Court outcome as a “previous conviction”, constituted a gross misdirection that vitiated the proceedings, with the result that the conviction and sentence were not in accordance with justice and had to be set aside.


LEGAL PRINCIPLES


The judgment applied the principle that where a child accused person is referred from child justice proceedings to the Children’s Court because the child appears to be in need of care and protection, and the Children’s Court makes an order under section 156 of the Children’s Act 38 of 2005, the criminal proceedings are effectively halted, and the outcome is not a criminal conviction and should not generate a criminal record entry as a prior conviction.


It applied the principle that the confidentiality protections governing Children’s Court proceedings restrict the disclosure and use of information from those proceedings, including restrictions on access to records and publication of identifying information, and that disclosure outside the statutory permissions is not permitted.


It further applied the principle that where a presiding officer’s prior involvement with an accused person, and the use of personal knowledge derived from earlier confidential Children’s Court proceedings, creates prejudice and undermines fair trial requirements, this may constitute a gross misdirection that renders the proceedings not in accordance with justice, warranting the setting aside of conviction and sentence.

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S v T.O (7/2023; C547/2022) [2023] ZAWCHC 187; 2023 (2) SACR 507 (WCC) (4 August 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
CRIMINAL – Children –
Previous
convictions
–
Convicted of
housebreaking and theft – Previous convictions in Children's
Court – Not appropriate for a judicial
officer that
previously dealt with a child in Children’s Court
proceedings to preside in a subsequent criminal trial
of that same
person – Amounts to a gross misdirection which vitiates
proceedings – Not in accordance with justice
–
Conviction and sentence set aside –
Child Justice Act 75 of
2008
.
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
(Coram:
Gamble, J
et
Henney, J)
[Reportable]
High Court Ref No:
7/2023
Magistrate’s
Case No: C547/2022
In the matter between:
THE STATE
vs
T[...] O[...]
REVIEW JUDGMENT:
4 AUGUST 2023
HENNEY, J
Introduction.
[1]
The accused, a 19-year-old male, appeared in the Caledon Magistrate’s
Court on a charge
of House Breaking with Intent to Steal and Theft.
It is alleged in the charge sheet that on 1 October 2022 he broke
into the property
of the complainant and stole eight cellular phones
belonging to the complainant.
[2]
The accused elected to conduct his own defence after his right to
legal representation had been
explained. After several appearances in
the Magistrate’s Court, on the 11 January 2023 he tendered a
plea of guilty to the
alleged charge. The Magistrate questioned him
in terms of the provisions of section 112(2) of the Criminal
Procedure Act 51 of
1977 (“the CPA”).
[3]
During the questioning, the accused admitted that he gained entry by
breaking open the complainant’s
house, using a screwdriver to
force open the door. He further admitted that after having entered
the house, he stole 8 cellular
phones belonging to the complainant.
They left the house of the complainant afterwards with the intention
to sell the cellular
phones. They however only managed to sell two of
the phones for an amount of R1500,00.  The Magistrate, after
having given
the state as well as the accused an opportunity to
address the court, sentenced him to a period of Two (2) years
imprisonment.
[4]
During the sentencing proceedings, the prosecutor proved the
following “previous convictions”
as reflected on the
SAP69 Criminal Record against the accused:
- Theft –committed
on 19 August 2020 and the contravention of the provisions of section
45(1) of Sea Fisheries Act 12 of 1988,
committed on 21 March 2020.
Both matters were referred to the Children’s Court and on 14
December 2020, the accused was referred
to a Child and Youth Care
Centre.
- Contravention of the
provisions of section 4(b) of the Drug and Drug Trafficking Act 140
of 1992- committed on 8 January 2022.
Accused was sentenced to a fine
of R200 with the option of 20 days imprisonment.
[1]
[5]
What is apparent from the SAP69’s is that both the matters on
14 December 2020 were finalised
in the Children's court. The accused
who at that stage was still a child, was referred to a Child Youth
Care Centre, by the same
Magistrate who conducted the criminal
proceedings in this matter. This is also apparent from a reading of
the sentencing proceedings,
where the following exchange took place
between the accused and the Magistrate
[2]
:
Hof: “Kyk T[...],ek
ken mos nou vir jou van voor jy 18 of 19 geraak het, jou en jou
broer.
Beskuldigde: Ja meneer.
Hof:  En ek meen mos
nou ek ken julle Ma, en ek kan onthou die eerste keer wat jy hier in
gekom het, skoon gesig, die klonkie.
Nou is jy ge-tattoo en jy
het chappies op jou arm en jou voorkop en goed, en dit lyk net vir my
jy beweeg, ek wil amper sê
terug in tyd.  Asof jy nie
vorentoe gaan nie, jy is dan nog so jonk jy weet jou hele lewe lê
voor jou.
Beskuldigde:  Ek wil
graag vorentoe gaan, meneer.
Hof:  Ja, maar nou
jy sien jy wys nie vir mens jy wil vorentoe gaan nie, jy wys nie jy
wil verander nie, jy wys nie jy wil
‘n beter mens word nie.
Ek luister nou die name wat jy genoem het nê, wat nou saam met
jou was, daardie is manne
wat twee, drie keer ‘n jaar by die
Hof kom vir huisbraak en vir diefstalle, en daardie is nou die klas
element wat jy glad
nie meer moet meng nie … [onduidelik],
maar dit is keuses wat jy mos maak T[...] oor wie jy meer moet
uithang en daardie
tipe ding.
En ongelukkig is dit so,
jy ken die Afrikaanse spreukwoord; meng jou met die varke, of meng
jou met die semels dan vreet die varke
jou op as kos.  Maar, nou
daardie ouens moet jy vanaf weg bly, jy is nog so jonk ten spyte van
jou tattoos en al die chappies
wat jy het op jou arms en jou gesig.
Jy is so jonk, jy kan net so besluit om jou lewe om te draai, so
eenvoudig soos dit.
Maar, nou weet ek ook al jou Ma is half
raad op met jou en jou broer, ek dink die een was ook nou die dag
hier.  Wat is hom
naam?
Beskuldigde: E[...]
O[...].
Hof:  E[...], ja.
Beskuldigde:  Hy
moet die 17de kom.
Hof: Ja, en jou Ma was
hier gewees en jou Ma was ook raad op met julle, en ek het so gehoop
dat daardie Kinder Hof waar julle na
die jeug-sentrum toe gegaan het
vir julle gaan change, maar dit het nie.  In teendeel ek dink
dit het dit erger gemaak.”
[3]
[6]
It was for these reasons, that when I received the review, I
addressed the following query to
the Magistrate:
“
The
Magistrate should provide the review court with reasons why he was of
the view that it was appropriate for him to preside in
this matter
given his previous interaction with the accused in court, on page 12
and 13 of the record.
From the record it
also seems that the Magistrate was aware of the fact that the accused
had previous convictions prior to it being
presented to court during
the sentencing proceedings.  He was cognizant of the fact that
the accused had previously been referred
to a Child and Youth Care
Centre for the offences as stipulated on his SAP 69’s.
These facts it seems had a direct
bearing on the sentence the
Magistrate had imposed on the accused.”
In his
reply, the
Magistrate said the following:
“
The trial
Magistrate encountered the accused as (sic) 16 year old child in
conflict with the law during 2020. The accused at that
stage had two
criminal cases and(sic) were (sic) these matters transferred to the
Children’s Court in terms of section 64
of Act 75 of 2008
(Child Justice Act) as it was deemed that the accused (at that
stage(sic) still only 16 years old) was “a
child in the need of
care and protection.”
The child (accused
T[...] O[...]) ended in the Children's Court on file 14/1/3- 43/2020.
The Children’s
Court Magistrate (in the current matter(sic) trial Magistrate)
ordered in terms of section 156 of Act 38 of
2005 Children’s
Act to a Child and Youth Care Centre. This decision was taken in
light of all the available evidence which
included the Social Workers
Reports and the child's mother's input. That was the only contact the
trial Magistrate had with the
accused prior to his appearance on the
current case. The trial Magistrate also had an encounter with the
accused sibling as can
be seen from record Page 12 paragraph 10 “…jou
en jou broer”. And Page 13 paragraph 10 “… met jou

en jou broer…’’ That is how far the trial
Magistrate’s knowledge of the accused goes.
The trial Magistrate
did not have any prior knowledge of the accused previous convictions
as the Children's Court proceedings were
not criminal court of nature
and would no criminal record be available on those proceedings. (sic)
The criminal record of the accused
relates to convictions after the
Children’s Court in 2020. The proceedings in the Children's
Court gave the trial Magistrate
a better insight into the personal
circumstances of the accused. Those proceedings did have a direct
bearing on the sentence imposed,
but not to the prejudice of the
accused as the sentencing court took other factors as provided for in
Zinn 1969(2) SA 537 (A) into
account during the sentencing
proceedings. The trial Magistrate did not deem it necessary to recuse
himself from the proceedings
as it was a guilty plea in terms of
section 112 (1) (b) of the CPA with the safeguards if the court had
to apply section 113 of
the CPA. The trial Magistrate is not aware of
any legislation which requires the presiding officer to recuse
him/herself from proceeding
is(sic) such officer presided over
Children Court proceedings a few years prior when the accused was to
the juvenile in conflict
with the law. However, the trial Magistrate
will take the guidance from the Honourable Review judge if such
precedent do exist.”
[7]
The first question that arises in this matter is whether it is
appropriate for a judicial officer
that previously dealt with a child
in Children’s Court Proceedings to preside in a subsequent
criminal trial of that same
person.
[8]
In this regard, it would be appropriate to look at the provisions of
the CA which regulates Children’s
Court proceedings and the
relevant provisions of the Child Justice Act 75 of 2008 (“the
CJA”) as well as the CPA which
regulates all the proceedings
involving a child.
[9]
A further aspect of concern is the fact that on the SAP 69’s
handed in at court during the
sentencing proceedings, referred to 14
December 2020 that were referred to Children’s Court when the
accused was 16 years
old. Even though the accused was a child at the
when he allegedly committed these offences, it seems that the crimes
and the Children’s
Court order were recorded against his name
at the Criminal Record Centre in the register of the South African
Police as a previous
conviction. From the explanation given by the
Magistrate as referred to above, it clearly is without a doubt, these
matters which
he referred to during the sentence proceedings.
[10]
The magistrate further asserts that in the initial proceedings in
2020 when the accused was still regarded
as a child he appeared in
the Criminal Court and was dealt with in terms of the provisions of
the CJA. The accused then appeared
before a different Magistrate in
the Child Justice Court on a criminal charge in terms section 63 of
the CJA. Upon being found
that the accused was a child in need of
care and protection the matter was then referred to the Children’s
Court in terms
section 64 of the CJA.
[11]
Section 64 of CJA states, that ‘
if it appears to the
presiding officer during the course of proceedings at the Child
Justice Court, if the child is a child in need
of care and protection
referred to in section 50 the court must act in accordance with that
section
.’ If the presiding officer in the child justice
court is of the view that the child is in need of care and protection
the
presiding officer may refer that child to the Children’s
Court.
Section
50 of the CJA further
provides
as follows:
'50
Referral of children in need of care and protection to children’s
court
If
it appears to the inquiry magistrate during the course of a
preliminary inquiry that—
(a)
a child is in need
of care and protection referred to in section 150(1) or (2) of the
Children’s Act, and it is desirable
to deal with the child in
terms of sections 155 and 156 of that Act; or
(b)
the child does not
live at his or her family home or in appropriate alternative care; or
(c)
the child is alleged to have committed a minor offence or offences
aimed at meeting the child’s basic
need for food and warmth,
the inquiry magistrate
may stop the proceedings and order that the
child be brought before a children’s court referred to in
section 42 of that Act
and that the child be dealt with under the
said sections 155 and 156.’(emphasis added)
[12]
Whilst this section refers to the “inquiry magistrate”
which refers to a preliminary inquiry
that must be conducted in terms
of section 43 read with section 49 of the CJA, it is also applicable
in cases where a child accused
had been referred to trial in terms of
section 47(9) read with 49(2) of the CJA.
[13]
The  consequences of an order in terms of section 64 of the CJA
to deal with a child who appears to
be in need of care and protection
referred to in section 150 (1) or (2)  of the CA to be dealt
with in terms of section 155
and 156 of the CA, effectively brings to
an end or stops any criminal proceedings against the child in terms
of which he had been
prosecuted and subsequently arraigned before the
Child Justice Court in terms of section 63 of the CJA.
Thereafter, the provisions
of the CA take effect. And the provisions
of Section 156 of the CA states that:
(1)
If a children's
court finds that a child is in need of care and protection the court
may make any order which is in the best interests
of the child, which
may be or include an order–
(a)   …
(b)   …
(c)   …
(d)   …
(e) …
(i) …
(iii)   …
(iv)  …
(v)   …
(f)
(g)   …
(i)   …
(ii)   ..
(h)
that the child be placed in a Child and Youth Care Centre selected in
terms
of
section
158
which
provides a secure care programme suited to the needs of the child, if
the court finds–
(i)
that the parent or
care-giver cannot control the child; or
(ii)
that the child
displays criminal behaviour
.
[14]
This brings me to the second question in this matter, which is,
whether it was lawful to record such an order
as a previous
conviction against the name of such a child.  For obvious
reasons such a child
cannot incur
any criminal conviction neither does such a child acquire a criminal
record, because all criminal proceedings against
such a child from
the moment such an order is made is effectively stopped. Any order
therefore made in terms of the provisions
of section 156 of the CA
shall not appear on any document which purports to be the criminal
record of such a child as has happened
in this case, because the
prosecution was stopped against such a child.
[15]
It follows therefore that the entry of any order in terms of section
156 of the CA onto the criminal record
against the name of a child is
therefore unlawful, as has happened in this case. Which brings me to
the second issue that as such
any reference in the SAP 69’s to
the order that was made in terms of section 156 of the CA, as in this
particular case, which
the order that the child be placed in a Child
and Youth Centre was unlawful. Furthermore, the proof thereof as a
previous conviction
in subsequent criminal cases was not only
inadmissible, but also unlawful and in contravention with the
provisions of the CA.
[16]
The other difficulty I have is, with the fact that the Magistrate was
also the Magistrate that dealt with
the Children’s Court
proceedings. The references to those proceedings during the current
proceedings by the very same Magistrate
is not only inappropriate but
also unlawful. The CA does not permit the disclosure of any
information of those proceedings which
remains confidential to
protect the best interest of the child.
[17]
It is for these reasons that certain provisions of the CA seek to
protect the identity of a child and prohibits
the publication or
disclosure of any information concerning Children’s Court
Proceedings. In terms of section 56
[4]
of the CA proceedings in the Children’s Court are closed and
not open to the public.
Section
66 of the CA further provides that no person has access to children’s
court records except for performing official
duties in terms of the
act; or in terms of an order of court, if the court finds that such
access would not compromise the best
interest of the child; for the
purpose of any review or appeal; or for the purpose of bona fide
research or the reporting of cases
in law reports, provided the
provisions of section 74 are complied with.
[18]
A further important provision of the CA is to protect the
confidentiality of Children’s Court proceedings,
the identity
of a child or any information relating to those proceedings.
This is found in section 74 which states that ‘
no
the person may without the permission of a court in any manner
publish any information relating to the proceedings of a Children’s

Court which reveals the name or may reveal the name or identity of a
child who is a party or a witness in the proceedings
.’
Davel
and Skelton
under
Chapter 4 on their discussion of this provision states the
following:
[5]
“
A
very important provision is contained
in
s
74
of
the Act, which specifies that no information relating to the
proceedings or the identity of a child who is or was concerned may
be
published. The court may, however, authorise the publication of such
information. Whereas the Child Care Act had the proviso
that this
authorisation could only be granted if such publication would in the
opinion of the commissioner of welfare be just and
equitable and in
the interest of any particular person, this has not been included in
the present Act.
A
similar provision is
s 154(3)
of the
Criminal Procedure Act, which
prohibits the publication of any information that reveals or may
reveal the identity of an accused or witness under the age of
18 at
criminal proceedings. The presiding officer is the only person who
can authorise such publication if he or she is of the
opinion such
publication is just and equitable and in the interest of any
particular person.
Media
reports that can lead to the identification of child victims are
therefore unlawful. The media may respond by saying that
the parents
or school consented to being interviewed, but the question then
arises as to whether that was informed consent. The
identification of
child victims, who may or may not testify, is very serious and has
enormous consequences for the healing of a
victim. This is a
justifiable limitation on the right to free speech.
The
protection of children's identity from media reports was the subject
matter in the case of Johncom Media Investments Ltd
v M and
Others (Media Monitoring project as Amicus Curiae)
[6]
in
which the Constitutional Court, albeit in relation to the Divorce
Act, declared that the publication of the identity of and any

information that could make known the identity of any party or child
in divorce proceedings is prohibited. The prohibition stands
as the
general rule and may only be deviated from in exceptional
circumstances when the court's authorisation has been granted.”
[19]
It is therefore also not open to anyone to disclose any information
of those proceedings by any person, including
the presiding officer,
unless permitted to do so by the relevant provisions of the CA as
referred to above, and even more so in
subsequent criminal
proceedings in which that very same Magistrate presides.  No
person with any knowledge of those proceedings
may reveal what
happened during those proceedings to anyone or in any other
proceedings where that child may be involved. Section
305(1) (b) of
the CA makes any contravention of this section a criminal offence.
[20]
The Magistrate in his reply to my query submits that he did not have
prior knowledge of the accused’s
previous convictions as the
Children Court proceedings were not of a Criminal Court in nature and
in the result, there would be
no criminal record of those
proceedings. That may well be so, but he had prior knowledge of the
fact that the accused was a child
in conflict with the law, with whom
he had dealt during Children’s Court proceedings after the
child was referred to that
court by the Child Justice Court. This
fact is evident during his interaction with the accused during the
sentencing proceedings.
He was the source of that information.
[21]
The Magistrate furthermore either failed to observe or was aware that
the order which he made in the Children's
Court referring the accused
(as a child) to a Child and Youth Care Centre, somehow was entered
against the name of the child by
the South African Police Services’
Criminal Record Centre, as a “previous conviction”. The
SAP 69’s subsequently
formed part of the record to prove the
accused’s previous convictions. Afterwards this was signed by
the accused as well
as the Magistrate. Both of the offences that
ought not to have appeared on the SAP 69’s are recorded on the
SAP 69’s
as follows:
GUILTY
OFFENCE
SENTENCE
2020-12-14
THEFT
-DATE COMMITTED
2020-08-09
GEFINALISEER
IN KINDERHOF
GESTUUR
NA CYC (CHILD AND
YOUTH
CARE CENTRE
[7]
CALEDON
C217/20 (SENTENCE DATE, COURT AND COURT CASE NR
DATE
GUILTY OFFENCE
SENTENCE
2020-12-14
ACT/ORD 12 of 1988
ACCUSED
SENT TO CHILD YOUTH CENTRE
SEC/REG
45 SUBSEC (1)
DATE
COMMITTED
03/21/20
SEA
FISHERIES ACT
BAG
RESTRICTIONS GENERAL
[22]
It is apparent that the Magistrate was aware of this fact if not at
the commencement of the hearing, at the
very least at the time when
he sentenced the accused. This, in my view, disqualified the
Magistrate from presiding over the matter
and infringed the accused’
right to a fair trial. In
S v S.M
(R03/2022; PCJC01/2021;01/2022) [2022] ZAMPMBHC 27
(26 April 2022),
RATSHIBVUMO
J said the following about references to prior criminal cases of a
child offender that cannot be regarded as a previous
conviction
albeit in the context of diversion in terms of section 59 of the CJA.
There are nevertheless a number of similarities
between what
transpired in that case and this case.  In that case, the source
of the previous brushes with the law of the
accused when he was a
child, was the probation officer who compiled a pre-sentence report
in the criminal case.
“
[9].     In
casu,
the
source of information regarding previous cases was
the Probation Officer who had
dealt
with
the child offender in the past
.
To the Probation Officer’s credit, these were not reflected as
previous convictions as it was clear from the record that
they were
diverted.
In
his response, the Magistrate seemed to be aware that cases that were
diverted could not be considered as previous conviction
.
The DDPP agrees with this approach. The DDPP however questions
whether the Magistrate was alive to this at the time of trial and

sentencing of the child offender. The DDPP remarked,
“
Although
the Learned Magistrate in his reply states that when sentencing the
child offender, he considered the case before him as
the first
conviction of the child offender, the record of proceedings depicts a
different picture
.
From the
case
record it appears the Learned Magistrate certainly took into account
the previous incidences mentioned in the Probation Officer’s

report
…
as
previous
convictions
against the child offender, this despite the fact that the State did
not prove any previous conviction against him.
”
[10].
The
assertions by the DDPP are based on the utterances on record wherein,
before the sentence was pronounced, the court said the
child offender
“previously committed similar offences.” I cannot think
of any other way that a court would refer to
previous convictions of
the offender as aggravating circumstances than this statement
.
Another reason why these cannot be considered as previous convictions
is that one would never know how the diverted matters would
have been
finalised had they gone through trials. Like in any other criminal
trial, there are two possible end results, to wit,
a conviction or an
acquittal. It would be unfair if any case of arrest was to be
considered as a conviction.
Diversion
of criminal cases against children is meant to help them avoid
criminal records and start on a good foundation. If these
would still
be considered as previous convictions against them, it puts them in a
worse situation than adults and it defeats the
purpose
.
It suffices to state that considering the diverted cases as previous
conviction was a misdirection on the part of the Learned
Magistrate.”
(own
emphasis)
[23]
Similarly, in a case like this, where prior knowledge of the
involvement of an accused when he was as a child
in conflict with the
law is considered as an aggravating factor in a later criminal case
it is prejudicial to an accused.
Even more so, where the same
Magistrate who has previously presided over the Children’s
Court matter of an accused person,
also in a later criminal trial,
was the primary source of that information when he referred to it in
the sentencing proceedings,
when it was considered as a factor or
aggravating circumstance during sentencing.  Although prior
knowledge of the previous
conviction or prior conduct of an accused
may not always result in the recusal of a presiding officer,
especially in cases where
an accused had pleaded guilty and the court
convicts such a person on the strength of that guilty plea, and at a
later stage, after
previous conviction had been proven alters the
plea to one of not guilty in terms of the provision of section 113
(See
S v Moses
2019 (1) SACR 75
WCC,
S v Sass
1986 (2)
SA 146
(NC). It may not always vitiate those proceedings and lead to
an injustice.
The
circumstances in this particular case are different, for the reasons
cited and in particular, where the Magistrate was the source
of the
information regarding the accused’s previous criminal conduct
in circumstances where he actively engaged with the
accused about
it.  This amounts to a gross misdirection.  Such gross
misdirection in my view would vitiate the proceedings.
And the
proceedings would clearly not be in accordance with justice and fall
to be set aside.
[24]
In the result, I would make the following order:
1)
The conviction and
sentence are set aside;
2)
The Office of the Director
of Public Prosecutions is directed to request the South African
Police Service: Criminal Record Centre
to forthwith remove any order
of the Children’s Court in terms of section 156 of the
Children’s Act, 38 of 2005 recorded
against the name of the
accused, which purports to be a previous conviction.
RCA HENNEY
Judge of the High Court
I agree and it is so
ordered.
PAL GAMBLE
Judge of the High Court
[1]
Record page 9
[2]
Court:
Look T[...], I knew you before you turned 18 or 19, you and your
brother.
[3]
Accused:
Yes,sir
Court:
What I actually say is that I know your mother.  I can remember
the first time you came in here, clean face, this
boy. Now you have
tattoos on your arm and forehead, and it seems to me as if you
are moving back in time. It is like you are not
moving forward, you are still so young and you know, your whole life
lies ahead
of you.
Accused: I would really
like to move forward, sir.
Court: Yes, but you are
not showing me that you want to move forward, you do not show that
you want to change, you do not show
that you want to become a better
person. I have listened to the names of the people that you had
mentioned, that were with you,
those are men that come to court two,
three times a year for housebreaking and theft, and this is the type
of persons that you
should not mix with anymore…[unclear],
but that is the choices you make. T[...], with whom you associate
and are involved
with. Unfortunately if you associating   with
the wrong people, you will end up like them.  You must stay
away
from these kind of people, you are still so young despite your
tattoos that you have on your arms and face. You are so young, and

can decide in an instant to turn your life around, as easy as that.
But, I now already know that your mother is at her wits end
with you
and your brother, I think that he was also at court, the other day.
What is his name?
Accused: E[...] O[...]
Court: E[...], yes.
Accused: He must come on
the 17
th
.
Court: Yes, and your
mother was here and your mother is at her wits end with you, I had
so hoped that the Children’s Court,
where you were sent to the
Child and Youth Care Centre, would make you change, but it didn’t
. On the contrary, I think
it had made it worse.
[4]
Section
56:
Attendance at proceedings
Proceedings
of a children's court are closed and may be attended only by-
(a)
a
person performing official duties in connection with the work of the
court or whose presence is otherwise necessary for the
purpose of
the proceedings;
(b)
the
child involved in the matter before the court and any other party in
the matter;
(c)
a
person who has been instructed in terms of
section
57
by
the clerk of the children's court to attend those proceedings;
(d)
the
legal representative of a person who is entitled to legal
representation;
(e)
a
person who obtained permission to be present from the presiding
officer of the children's court; and
(f)
the
designated social worker managing the case.
[5]
Commentary on the
Children’s Act RS 13 2022 at
Part
4 Miscellaneous matters (ss 74–75)
[6]
2009
(4) SA 7 (CC)
.
[7]
Loosely
translated – “Finalised in Children’s Court;
referred to CYC”

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