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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
High Court reference no: 112/2026
High Court review case no: 122/2026
In the matter between:
THE STATE
and
W[...] D[...] J[...] Accused
Coram: BARENDSE J et ADAMS AJ
Delivered on: 08 September 2026
Summary: Criminal procedure – sentence- District Court – Imposition on
same count of 36 months’ correctional supervision under s 276(1 )(h) of CPA –
combined sentence competent: correctional supervision district from
imprisonment and combination expressly permitted by s276(3)(a) – Magistrate
accordingly not exceeding penal jurisdiction
_________________________________________________________________________
ORDER
________________________________________________________________
1. The conviction and sentence are reviewed and set aside.
2. The matter is remitted to the magistrates’ court for proceedings de
novo before a magistrate other than the magistrate who presided
over the original proceedings.
3. Any further proceedings must be conducted in accordance with the
Child Justice Act 75 of 2008.
4. The accused’s identity must continue to be protected in accordance
with the applicable provisions governing the confidentiality of
child justice proceedings.
________________________________________________________________
JUDGMENT: REVIEW
________________________________________________________________
ADAMS, AJ (BARENDSE J concurring):
[1] This matter came before this Court purportedly by way of automatic
review. The accused, who was 16 years old at the time of sentence, was
convicted following a plea of guilty supported by a written statement in terms of
s 112(2) of the Criminal Procedure Act 51 of 1977 (“the CPA”). A non-custodial
sentence was imposed, and the matter was postponed to a future date so that the
accused’s compliance with the conditions of sentence could be monitored.
[2] Upon consideration of the record, queries were directed to the magistrate
concerning:
(a) whether the proceedings were subject to automatic review under s 85 of
the Child Justice Act 75 of 2008 (“the CJA”);
(b) the application of the CJA during the sentencing proceedings;
(c) material inconsistencies in the accused’s s 112(2) statement concerning
the ownership or lawful possession of the property forming the subject of
the charge; and
(d) the identity and gender of the complainant.
[3] The magistrate responded candidly. She accepted that the sentence
imposed did not fall within the category of sentences contemplated in s 85 of
the CJA and that the matter had therefore been submitted for automatic review
in error. She further accepted that the inconsistencies in the plea statement had
not been clarified and that the requirements of s 112 had not been satisfied. In
her view, the conviction and sentence should be set aside and the matter
remitted for trial de novo before another magistrate.
Review jurisdiction
[4] Section 85 of the CJA provides for the automatic review of certain
sentences imposed upon children. In broad terms, the section applies where a
child is sentenced to any form of imprisonment or to compulsory residence in a
child and youth care centre providing an appropriate programme under the
Children’s Act 38 of 2005. The sentence imposed in the present matter was
neither of those forms. The proceedings were therefore not automatically
reviewable under s 85.
[5] That conclusion does not, however, deprive this Court of the power to
intervene. Section 304(4) of the CPA provides that, where it is brought to the
attention of the High Court that criminal proceedings in a magistrates’ court
were not in accordance with justice, the Court may exercise the same powers as
it possesses in automatic -review proceedings. This is the special -review
jurisdiction exercised by this Division in S v Muridzo; S v Ramafikeng .1[1] The
irregularities in the present matter appear from the record itself and have been
acknowledged by the magistrate. This Court is accordingly entitled, and
obliged, to consider whether the proceedings were in accordance with justice.
The plea proceedings
[6] Section 112(2) of the CPA permits an accused who pleads guilty to
submit a written statement setting out the facts admitted and upon which the
plea is based. A conviction may follow only if the court is satisfied that the
accused admits all the allegations in the charge to which the plea relates and
which is necessary to establish the offence.
[7] In Director of Public Prosecutions, Gauteng v Hamisi ,2 the Supreme
Court of Appeal explained that a court considering a statement under s 112(2)
must determine whether it admits every element of the offence. If it does not,
the court must question the accused to clarify the matter. The written statement
constitutes the factual matrix upon which the accused is convicted and
sentenced.
[8] It follows then that t he presiding officer must examine the statement
carefully and satisfy herself that it contains an unequivocal admission of every
essential element of the offence. The enquiry required by s 112(2) is therefore
not a mechanical one. Neither the prosecutor’s acceptance of the statement nor
the fact that the accused was legally represented relieves the court of that duty.
If the statement contains an ambiguity, qualification or inconsistency casting
doubt upon the accused’s legal guilt, the court must clarify it or act in terms of s
113 of the CPA.
1 S v Muridzo; S v Ramafikeng (325/2022; 324/2022) [2023] ZAWCHC 32 (20 February 2023) at para 1 and 18
to 19
to 19
2 Director of Public Prosecutions, Gauteng v Hamisi 2018 (2) SACR 230 (SCA) at para 8 . See also S v
Mshengu 2009 (2) SACR 316 (SCA) at para 7 for the principle that legal conclusions are insufficient: the
statement must disclose the facts establishing the offence.
[9] Paragraph 3 of the plea statement recorded that the property concerned
was “the property or in the lawful possession of W ….. J…..”. That was the
name of the accused. The charge sheet, however, identified Beryl Windvogel as
the complainant.
[10] This was not an immaterial typographical error which could safely be
disregarded. On its face, the statement conveyed that the property belonged to,
or was lawfully possessed by, the accused himself. It therefore failed to
establish clearly that the property belonged to or was lawfully possessed by
another person. Depending on the offence charged, this bore directly upon the
elements of unlawfulness, ownership or possession and the absence of consent.
[11] The uncertainty was compounded by the inconsistent references to the
complainant as male, notwithstanding the different name reflected in the charge
sheet. The record consequently left unresolved whether the accused, the
prosecutor and the court were referring to the same complainant and the same
property.
[12] These discrepancies required clarification before the plea could be
accepted. The court could have questioned the accused to remove any genuine
ambiguity or, if doubt remained as to his guilt, directed that a plea of not guilty
be entered under s 113 of the CPA. It did neither.
[13] The prosecutor’s acceptance of the statement could not cure the defect.
Nor can the magistrate’s subsequent explanation that the reference to the
accused was probably a typing error. A review court cannot speculate about
what the accused intended to admit. The necessary admissions must appear
from the plea statement and the proceedings at the time the conviction is
entered.
[14] It follows that the court could not properly have been satisfied that the
accused admitted every essential element of the offence. The conviction was
therefore not in accordance with justice.
The sentencing proceedings
[15] The accused was 16 years old when he was sentenced. Section 28(2) of
the Constitution requires that a child’s best interests be of paramount
importance in every matter concerning the child. Section 68 of the CJA
correspondingly requires a child justice court, after convicting a child, to
impose sentence in accordance with Chapter 10 of the Act.
[16] Section 69 requires an individualised sentence which balances the
circumstances of the child, the nature of the offence and the interests of society.
The sentence must promote the child’s reintegration into the family and
community and, where appropriate, secure the supervision, guidance, treatment
and services required by the child. The child justice court must adopt an
approach consistent with the objects and sentencing options expressly provided
for in the CJA.
[17] In S v Snyders and Others ,3[3] this Division emphasised that Chapter 10
gives effect, form and content to the constitutional rights of children in conflict
with the law. In S v L J ,4[4] the Court reaffirmed that the sentencing stage of
child-justice proceedings is governed by Chapter 10 and that a child justice
court must select an appropriate sentence from the sentencing options
specifically provided for in the CJA.
[18] In J A v S 5, the Court held that the CJA requires child offenders to be
treated differently from adults and that a material departure from its procedural
and substantive provisions may render the proceedings not in accordance with
justice. The Court observed that, where the record does not demonstrate
adherence to the CJA, the child may have been treated as though he or she were
an adult.
[19] In S v Dhliwayo 6, this Division held that sentencing a person as an adult
for conduct committed while that person was a child placed the offender on the
wrong side of the beneficial distinction between adults and children created by s
3 S v Snyders and Others 2012 (2) SACR 160 (WCC) at para 25.
3 S v Snyders and Others 2012 (2) SACR 160 (WCC) at para 25.
4 S v L J 2023 (1) SACR 396 (WCC) at para 13 to 14 and para 52 to 53.
5 [2019] ZAECGHC 64
6 (207/2024; A113/2024) [2025] ZAWCHC 139 (25 March 2025) at para 37 to 38 referring with approval to
paragraphs [10] and [11] of SN and Another, [2015] ZAWCHC 5
28 of the Constitution. The Court described such an approach as a
“constitutional failure” in the sentencing process.
[20] More recently, in L N v S,7[5] this Division reiterated the distinct statutory
framework within which the sentencing of a child must occur. A child’s age is
not merely another mitigating factor to be weighed in the ordinary sentencing
enquiry applicable to an adult. The accused’s status as a child determines the
legal framework, objectives and sentencing options which govern the
imposition of sentence.
[21] It follows that a child is not properly sentenced under the CJA merely
because the punishment ultimately imposed is non -custodial or may, in general
terms, be regarded as lenient. The sentencing court must expressly recognise
that it is dealing with a child and must determine sentence within the child -
centred, individualised and restorative framework prescribed by Chapter 10.
[22] Where the record does not demonstrate that the court appreciated that it
was sitting as a child justice court and applied the objects, principles and
sentencing options prescribed by the CJA, the proceedings may convey that the
offender was treated and sentenced as an adult. That concern arises in the
present matter.
[23] The record does not demonstrate a structured application of the
sentencing provisions of the CJA. There is no indication that the sentence was
one imposed under the CJA. Nor does the record disclose a structured
consideration of the sentencing options in Chapter 10. In particular, the legal
basis upon which the matter was postponed for monitoring, the precise
relationship between the sentence imposed and ss 78 of the CJA and 297 of the
CPA, and the consequences of compliance or non -compliance were not stated
with the clarity required of a sentencing order affecting a child. Although the
magistrate states in her response that she had ss 69 and 78 in mind, the statutory
basis of the sentence was not identified and its terms were not expressly linked
basis of the sentence was not identified and its terms were not expressly linked
to the sentencing framework established by the CJA.
7 L N v S (Appeal) (A07/25) [2026] ZAWCHC 7 (19 January 2026).
[24] It follows that a child is not properly sentenced under the CJA merely
because the punishment ultimately imposed is non -custodial or may, in general
terms, be regarded as lenient. The sentencing court must expressly recognise
that it is dealing with a child and must determine sentence within the child -
centred, individualised and restorative framework prescribed by Chapter 10.
The distinction lies not only in the severity of the punishment but also in the
legal framework, principles and objectives governing its imposition. The court
was required expressly to recognise the accused’s status as a child and to
sentence him in accordance with the child -centred and restorative framework
prescribed by Chapter 10 of the CJA.
[25] Section 78 permits the postponement or suspension of sentence in
accordance with s 297 of the CPA, subject to conditions appropriate to the child.
Where that mechanism is employed, the order must identify its statutory basis
and state its terms and conditions with sufficient clarity. The child, the probation
officer and any court subsequently required to determine compliance must be
able to ascertain precisely what is required, for what period, and what
consequences may follow from non-compliance.
[26] In the present matter, the legal basis upon which the proceedings were
postponed for monitoring, the relationship between the sentence imposed and ss
78 of the CJA and 297 of the CPA, the precise conditions imposed, and the
consequences of compliance or non -compliance were not stated with the
required clarity. Viewed objectively, the record creates the impression that the
accused was dealt with under the ordinary adult -sentencing framework rather
than as a child under the CJA.
[27] A sentencing court need not recite every provision of the CJA as a matter
of formula. The record must, however, demonstrate that the child’s status was
recognised and that sentence resulted from the application of the governing
recognised and that sentence resulted from the application of the governing
child-justice principles. The magistrate’s subsequent explanation that she had
the provisions of the CJA in mind is relevant but cannot supply an enquiry
which is not apparent from the proceedings themselves.
[28] Judicial decisions must be supported by the record. An ex post facto
explanation cannot repair material omissions or uncertainty in the sentencing
proceedings nor can it convert what appears to have been an adult sentencing
process into one conducted under Chapter 10 of the CJA . The omission was
material and rendered the sentencing proceedings irregular. In any event, once
the conviction is set aside, the sentence founded upon it cannot stand.
Appropriate remedy
[29] The defects in the plea proceedings go to the foundation of the
conviction. This is not a case in which the review court can correct a clerical
mistake while preserving the proceedings. The accused was convicted without
an unequivocal admission of all the essential elements of the offence.
[30] The appropriate remedy is to set aside both the conviction and sentence
and remit the matter for proceedings de novo before another magistrate. The
setting aside of the conviction does not amount to an acquittal on the merits and
does not preclude the prosecution from proceeding afresh. Given the accused’s
age, any further proceedings must be conducted in accordance with the CJA and
without avoidable delay.
[31] The magistrate’s frank acknowledgment of the irregularities is
appreciated. A heavy workload may explain how an oversight occurred, but it
cannot validate a conviction where the statutory safeguards governing a plea of
guilty—particularly that of a child—were not observed.
Order
[32] The following order is made:
1. The conviction and sentence are reviewed and set aside.
2. The matter is remitted to the magistrates’ court for proceedings de
novo before a magistrate other than the magistrate who presided
over the original proceedings.
3. Any further proceedings must be conducted in accordance with the
Child Justice Act 75 of 2008.
4. The accused’s identity must continue to be protected in accordance
with the applicable provisions governing the confidentiality of
child justice proceedings.
_____________________________
M F ADAMS
Acting Judge of the High Court
I agree and it is so ordered
_____________________________
R Barendse
Judge of the High Court