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[2012] ZAWCHC 176
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L.M v S (A390/2011) [2012] ZAWCHC 176; 2013 (1) SACR 188 (WCC); [2013] 1 All SA 110 (WCC) (23 October 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
(Coram: Desai J,
et Gamble J, et Henney J)
[Reportable]
Case
Number: A390/2011
In the Special
Review of:
LM
...................................................................................................................................
Accused
and
THE STATE
..................................................................................................................
Respondent
1) The Faculty of
Law, University of the Western Cape: Children
Right's project of
the Community Law Centre 1st Amicus
2) Centre for Child
Law 2nd Amicus
3) Minister of
Justice and Constitutional Development
Coram: Desai J, et
Gamble J, et Henney J
Judgment by: Henney,
J
For the Accused: Adv
M. Calitz
Instructed by: Legal
Aid South Africa
Cape Town Justice
Centre
5th Floor Nedbank
Building
St. George's Mall
Cape Town
Tel: (021) 426 4126
For the Respondent:
Adv S Raphels
Instructed by: The
Director of Public Prosecutions:
Western Cape
115 Buitengracht
Street
Cape Town
For the 1st Amicus:
Ms M Mudarikwa
The Faculty of Law,
University of the Western Cape: Children Right's project of the
Community Law Centre
For the 2nd Amicus:
Ms Ann Skelton
Centre for Child Law
Minister of Justice
and Constitutional Development: Adv D Potgieter SC
Date(s) of Hearing
28 MAY 2012
Judgment delivered
on 23 OCTOBER 2012
[Reportable]
Republic
of South Africa
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
(Coram: Desai J, et
Gamble J, et Henney J)
Case Number:
A390/2011
In the Special
Review of:
LM
............................................................................................................................................
Accused
and
THE STATE
.........................................................................................................................
Respondent
1) The Faculty of
Law, University of the Western Cape: Children Right's project of the
Community Law Centre 1st Amicus
2) Centre for Child
Law 2nd Amicus
3) Minister of
Justice and Constitutional Development
JUDGMENT DELIVERED
ON 23 OCTOBER 2012
HENNEY, J
Background:
[1] The accused in
this matter, a 15 year old teenager, was convicted in the Child
Justice Court held at the Magistrates Court in
Cape Town of
possession of one "stop" of dagga in contravention of
Section 4(b) of Act 140 of 1992. He was legally represented
and
assisted by his mother during the proceedings.
[2] In terms of
Section 78(1) of the Child Justice Act 75 of 2008 ("CJA")
read with Section 297 (1)(a)(i) of the Criminal
Procedural Act 51 of
1977 ("CPA"), the passing of sentence was postponed for a
period of one (1) year on the following
conditions: (i) the accused
submits himself to the control of a probation officer; and (ii) in
terms of Section 297 (1)(a)(i) of
the CPA the accused is ordered to
appear before the court, if called upon to do so, before the
expiration of the period of postponement.
This specific matter
was referred by the Cape Town Magistrate's Court to this court by
means of a Special Review.
[3] The Magistrate
of Cape Town in his submission raises several important questions
about the reviewability of matters under the
CJA and specifically,
whether this matter is subject to automatic review. Some of the
important questions raised were the following:
(a) Are all matters
in which children under the age of 16 years at the time of the
commission of the offence are sentenced to any
sentence subject to
review, notwithstanding that the accused was legally represented?
(b) in cases where
children of 16 years or older but under the age of 18 years at the
time of the commission of the offence, are
sentenced to any form of
imprisonment that is not wholly suspended or where they are sentenced
to an order of compulsory residence
in a child or Youth Care
sentence, and irrespective of the duration of the sentenced, are such
matters subject to review notwithstanding
that the accused was
legally represented?
(c) Are the
provisions of section 85 of the CJA applicable to children convicted
and sentenced in the Regional Court?
(d) What is the
effect of section 85 of the CJA on a suspended sentence imposed on a
child who was 16 years or older but under 18
years at the time of the
commission of the offence where such sentence would otherwise be
reviewable in terms of the CPA?
(e) Is a fine
imposed on a child subject to review?
[4] A further
question that was raised during argument before us is whether a
suspended sentence of imprisonment, which when put
into operation,
would result in the imposition of a sentence of imprisonment not
wholly suspended, would be subject to review
in terms of section 85.
[5] A Full Bench of
this court was convened by the Judge President of this Division to
decide upon issues which were raised. This
was as a result of a
decision by Dlodlo J in the matter of State v John Pierre Ruiter
[2011] ZAWCHC 265
(14 June 2011) where the learned judge came to the
following conclusion (at para "3") regarding the
reviewability of
cases where children are involved (and are legally
represented) in terms of
section 85
of the
Child Justice Act, Act
75
of 2008 ("CJA").
"The High
Court is the upper jurisdiction of all minors within its
jurisdictional area. For that reason and that one alone
I am of the
view that cases provided for or referred to in Section 85 of the Act
under consideration should always be the subject
of automatic review
in the ordinary course regardless of whether or not the said minor
child was legally represented at trial".
[6] This Court, due
to the importance of the issues that had to be considered, invited
certain parties to join as amici and to
present arguments, namely,
the Faculty of Law - University of the Western Cape, Children's
Right Project of the Community Law
Centre, and The Centre for Child
Law. The Minister of Justice and Constitutional Development also
elected to join the proceedings
due to the importance of the issues
raised and the impact the Court's decision would have on the
administration of justice.
[7] This Court
requested Counsel to address it on a number of questions in order to
fully understand the implications of section
85 of the CJA and how
it should be interpreted in accordance with the provisions of
Section 302 of the CPA. We are indebted to
counsel for their useful
assistance to the court in this regard.
[8] The questions
posed in this case, revolve around one single issue, namely, under
what circumstances the CPA, as opposed to
the CJA, would be
applicable in cases involving children who are in conflict with the
law and who are accused of committing offences.
Applicable Legal
Provisions
[9] It will
therefore be convenient to firstly deal with this issue with
reference to the applicable legal provisions in the CJA
as well as
the CPA. The purpose of the CJA is set out in the preamble
1
.
[10] In order to
achieve this purpose, the CJA repealed any law to the extent where
such law is inconsistent with its terms.
[11] Section 99(1)
of the CJA provides that all laws specified in Schedule 4 of the CJA
are repealed or amended to the extent
set out in the third column of
Schedule 4.
[12] Section
4(3)(a) of the CJA states that, "The Criminal Procedure Act
applies with the necessary changes as may be required
by the context
to any person referred to in this section, except insofar as this
Act provides for amended, additional or different
provisions or
procedures in respect of that person".
SS 4(3)(b) of that
Act states that, ... "For the purposes of paragraph (a),
Schedule 5 to this Act, which is not part of
this Act and does not
have the force of law, contains an exposition of the interface
between the Criminal Procedure Act and this
Act".
[13] In an
explanatory note to Schedule 5, it is stated that the said section
should be seen in the context of the CJA creating
numerous new
procedures which are not evident from the exposition.
[14] The
explanatory note stresses that the Schedule does not form part of
the Act, does not have the force of the law and that
it is merely
intended to provide guidance and clarity in respect of the procedure
contained in both acts. Schedule 5 is divided
into 3 columns. The
first two columns refer to the particular section and the third
column refers to the extent that the CPA
had been affected by the
CJA. If there is no indication in the third column to what extent an
applicable section of the CPA would
be affected by the CJA, that
section of the CPA would still apply in respect of children. As
such, in the light of Schedule 5
read together with sec 4(3)(a) at
the CJA, it is clear that where the CJA omits to lay down a specific
procedure, the CPA would
be applicable.
[15] Elsewhere in
the CJA, with specific relevance to this case, Chapter 9 (and in
particular sec 63(1 )(b)) provides that the
Child Justice Court must
apply the relevant provisions of the CPA relating to the plea and
trial of accused persons as extended
or amended by the provisions
set out in Chapter 9 and 10. It is further stated (sec 63(2)) that
where a child and adult are charged
together in the same trial in
respect of the same facts in terms of Section 155, 156 and 157 of
the CPA, the court must apply
the provisions of the CJA in respect
of the child and the provisions of the CPA in respect of the adult
accused.
[16] In terms of
sections 83(1) a child may not waive his right to legal
representation in certain circumstances. Section 83(1)
however
provides that where a child does not wish to have a legal
representative or declines to give instructions, a legal
representative must be appointed by the Legal Aid Board (Legal Aid
South Africa) to assist the court in the prescribed manner.
What
"Assistance in a prescribed manner entails is set out in
Chapter 10 Regulation 48 of the Regulations relating to Child
Justice published under GN R251 in GG 33067 dated 31 March 2010.
"48. Legal
representative appointed to assist court
(1) A legal
representative appointed in terms of section 83 of the Act to assist
the court must—
(a) attend all the
court proceedings in respect of the case unless excused by the
court;
(b) address the
court on any matter requested by the court;
(c) have access to
the documents and statements in the docket to the extent permissible
in criminal proceedings; and
(d) ensure that the
best interests of the child are upheld at all times.
(2) A legal
representative appointed to assist the court may—
(a) address the
court on the merits and procedural aspects of the case;
(b) address the
court on the sentence to be imposed;
(c) cross-examine a
witness in relation to the evidence adduced by the witness;
(d) discredit the
evidence of a witness;
(e) raise an
objection to a question posed to the child or state witness;
(f) question the
admissibility of evidence led by the state;
(g) present
evidence that will be in the best interests of a child; or
(h) assist in any
other manner as the court may request.
(3) A legal
representative may attend the proceedings of a preliminary inquiry
if so requested by the inquiry magistrate".
[17] The practical
effect of Chapter 11 is that a child who appears before a Child
Justice Court is effectively never without
some form of legal
representation. Even if the child waives the right to legal
representation, a legal representative will be
appointed, whose role
would be to proactively assist the court in the manner as set out in
regulation 48 in order to ensure that
a child accused has a fair
trial.
[18] An important
deviation from the provisions of the CPA is contained in Chapter 10,
which deals with the sentencing of a child
in terms of the CJA in
terms of section 68. A Child Justice Court is obliged to impose a
sentence in accordance with Chapter
10. Only where the CJA expressly
empowers a court to do so, may a child be sentenced in accordance
with the provisions of the
CPA.
[19] It is clear
from the above provisions that the CJA creates a separate and
distinct system of criminal justice for children,
the legal
mechanisms and processes of which may indeed be different from those
set out in the CPA. Against this background it
would be prudent to
discuss the reviewability of cases where a juvenile has been
convicted and sentenced in terms of the CJA.
Reviewability of
matters in terms of the CJA and the CPA
[20] Section 85 of
the CJA deals with the review of criminal matters involving a child
accused.
Section 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 was, at the time of the commission
of the alleged
offence—
(a) under the age
of 16 years; or
(b) 16 years or
older but under the age of 18 years, and has been sentenced to any
form of imprisonment that was not wholly suspended,
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 the duration of the sentence".
[21] Section 302 of
the CPA deals generally with reviews in cases of criminal
proceedings in Magistrate's Courts.
"302 (1) (a)
Any sentence imposed by a magistrate's court
(i) which, in the
case of imprisonment (including detention in a child and youth care
centre providing a programme contemplated
in section 191 (2) (j) of
the Children's Act, 2005 (Act No. 32 of 2005)), exceeds a period of
three months, if imposed by a judicial
officer who has not held the
substantive rank of magistrate or higher for a period of seven
years, or which exceeds a period
of six months, if imposed by a
judicial officer who has held the substantive rank of magistrate or
higher for a period of seven
years or longer; [Sub para(i)
substituted by S13(a) of Act No 26 of 1987 and para (p) of the 4th
schedule of Act 75 of 2008]
(ii) which, in the
case of a fine, exceeds the amount determined by the Minister from
time to time by notice in the Gazette for
the respective judicial
officers referred to in subparagraph (i),
(iii) ...
shall be subject in
the ordinary course to review by a judge of the provincial or local
division having jurisdiction.
(2) For the
purposes of subsection (1)—
(a) each sentence
on a separate charge shall be regarded as a separate sentence, and
the fact that the aggregate of sentences
imposed on an accused in
respect of more than one charge in the same proceedings exceeds the
periods or amounts referred to in
that subsection, shall not render
those sentences subject to review in the ordinary course
(b) ....
(3) The provisions
of subsection (1) shall only apply—
(a) with reference
to a sentence which is imposed in respect of an accused who was not
assisted by a legal adviser."
[22] Section 99 of
the CJA provides that the laws specified in Schedule 4 to the CJA
are repealed or amended to the extent set
out in column 3 of the
Schedule. Schedule 4, item (p) amends section 302(1 )(a) of the CPA
by substituting paragraph (i).
[23] The effect of
the amendment, it seems, was only to include detention in a Child
and Youth Care Centre, as a reviewable sentence.
It does not
effectively exclude those cases referred to in section 85 of the CJA
from automatic review. These are the reviewability
of all cases
sentenced by a Child Justice Court in respect of accused who are,
(i) under the age of 16 years at the time of the
commission of the
offence and (ii) 16 years or older but under the age of 18 years and
have been sentenced to any form of imprisonment
not wholly
suspended, or (iii) 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, irrespective
of the duration of
the sentence.
[24] The question
that remains to be answered is the following. To what extent does
section 85
of the
Child Justice Act provide
children in conflict
with the law with the right of automatic review in situations where
section 302 of the Criminal Procedure
Act does not provide such
protection? More specifically, would the CJA provide protection in
the following instances:
(a)Where a child
has enjoyed legal representation?
(b) Where the
criminal matter involving the child was heard in a Regional Court?
(c) Where the
duration of the sentence handed down, firstly, is less than three
months, (if imposed by a judicial officer who
has not held the
substantive rank of magistrate or higher for a period of seven
years), and secondly, if the duration of the
sentence is less than
six months, if the sentence is imposed by a judicial officer who has
held the substantive rank of magistrate
or higher for a period of
seven years or longer?
[25] In the
judgment of S v Fortuin
[2011] ZANCHC 28
(11 November 2011) Olivier
J addressed in detail the extent of a child's automatic right of
appeal, and in particular, the question
whether the provision in
section
302(3)(a) that
legally represented minors do not have an automatic right of review
also has a bearing on
Section 85
of the
Child Justice Act. The
Court
pointed out at paragraph [49] that "a child appearing before a
Child Justice Court will in effect never be without
legal
representation". In arriving at such conclusion, the Court
pointed out that in terms of the CJA, should a child not
have legal
representation, the Magistrate must refer the child to the Legal Aid
Board
2
.
Further, the CJA provides that a child may not waive the right to
legal representation
3
,
while, at the same time, acknowledging that a child may "not
wish to have a legal representative"
4
or may decline "to give instructions to an appointed legal
representative"
5
.
In such circumstances, the Legal Aid Board must appoint a legal
representative "to assist the court in the prescribed manner".
As such, the Court held (at paragraph [49]) that "a child
appearing before a Child Justice Court will in effect never be
without legal representation. The duties and rights of a legal
representative appointed to assist the court will, for all practical
purposes, be the same as in the case of an own legal
representative."
[26] The Court
concluded:
"[51] The
legislature must be presumed to have been aware of the provisions of
sections 82
and
83
(and of what it intended to be prescribed in
respect of a representative to assist the court) when enacting
section 85
of the CJA. To interpret
section 85(1)
of the CJA as
excluding cases where the child was legally assisted would indeed
render the provisions of the proviso to
section 85(1)
meaningless to
a large extent, and defeat the clear intention to afford children
additional protection by means of automatic
review".
[27] By
interpreting
section 85(1)
in such a manner that cases where a child
is legally represented would also be subject to review in terms
thereof would be to
give effect to the express intentions as set out
in the preamble of the CJA to afford children in conflict with the
law "special
protection" and "special safeguards".
[28] The judgment
in S v Nakedi
[2012] ZANWHC 5
(2 January 2012) also dealt with the
question as to whether cases involving children who are legally
represented are subject
to automatic review in terms of
section 85
,
particularly in the light of
section 302
of the CPA. Gutta J drew
attention to item (p) of Schedule 4 read with
section 99(1)
of the
CJA, which in essence substitutes or amends
section 302C
(1)(a)(ii)
of the CPA, and held that this amendment is indicative of the fact
that the remaining provisions of
section 302
are applicable, thereby
excluding the referral of cases for automatic review where the
accused are legally represented. She therefore
concluded that the
automatic review provisions involving children in terms of
section
85
of the CJA only apply to children who were not assisted by a
legal representative. In S v Sekoere [2012] ZAFSHC (14/06/2012)
Lekale J endorsed the view as expressed by Gutta J.
[29] In the
judgment in S v Stander
2012 (1) SACR 595
(ECP) in the Eastern Cape
Division of the High Court, the court followed the decision and
reasoning in the Fortuin case and disagreed
with the conclusion of
Gutta J in the Nakedi decision.
[30] In the recent
decision of the North Gauteng High Court in S v FM [2012] ZAGPPHC
180 (20 August 2012) Tuchten J, also writing
for a Full
Bench, had to deal
with the question whether a matter in which the child accused was
legally represented and had been sentenced
in the Regional Court was
subject to automatic review under
section 85
of the CJA, the matter
having been referred for consideration to the High Court by the
Regional Magistrate.
[31] The court
concluded at paragraph [38] of the judgment that
section 85(1)
of
the CJA should be interpreted so as to provide for automatic review
in respect of all children who are sentenced to any form
of
imprisonment not wholly suspended, or any sentence of compulsory
residence in a Child and Youth Care Centre. This would include
children who are sentenced in the Regional Court.
Analysis
[32] There is a
consistent refrain in all the cases referred to above, apart from
the Nakedi case, that on a proper interpretation
of the CJA and
after having regard to the paramountcy principle contained insection
28 of the Constitution
6
,
the CJA must be interpreted in accordance with this Section.
In interpreting the
CJA in this manner it would be consistent with the approach laid
down by Constitutional Court in Investigating
Directorate: SEO v
Hyundai Motor Distributors 2001 (1)
7
SA 545 where Langa DP (as he then was) stated at [22] - [23] the
following:
"[22] The
purport and objects of the Constitution find expression in s 1,
which lays out the fundamental values which the
Constitution is
designed to achieve. The Constitution requires that judicial
officers read legislation, where possible, in ways
which give effect
to its fundamental values. Consistently with this, when the
constitutionality of legislation is in issue, they
are under a duty
to examine the objects and purport of an Act and to read the
provisions of the legislation, so far as is possible,
in conformity
with the Consitution.
[23] In De Lange v
Smuts NO and Others, Ackermann J stated that the principle of
reading in conformity does
'no more than give
expression to a sound principle of constitutional interpretation
recognised by other open and democratic societies
based on human
dignity, equality and freedom such as, for example, the United
States of America, Canada and Germany, whose constitutions,
like our
1996 Constitution, contain no express provision to such effect. In
my view, the same interpretative approach should
be adopted under
the 1996 Constitution.'
Accordingly,
judicial officers must prefer interpretations of legislation that
fall within constitutional bounds over those that
do not, provided
that such an interpretation can be reasonably ascribed to the
section."
[33] Where there is
a conflict between the CJA and CPA, the application of the CJA
should be preferred above the CPA. I say so
for the following
reasons
[33.1] As a
starting point it would seem that children who are in conflict with
the law and are accused of having committed an
offence, should be
dealt with in terms of the CJA;
[33.2] Where the
CJA expressly states so, the CPA is applicable;
[33.3] Where the
CJA does not expressly state that the CPA would be applicable, and
makes provision for a specific procedure,
the CJA enjoys preference;
[33.4] Where the
CJA and the CPA contain provisions dealing with a similar issue, the
provision referred to in the CJA is applicable
if there is a
conflict between the two provisions.
[34] By applying
these principles, content will be given to the purpose of an Act
that seeks to establish a separate criminal
justice system for
children. This is evident on a reading of the whole CJA.
[35] It is clear
that the CJA must take precedence over the CPA to the extent that
the former specifically provides for different
procedures in respect
of children. This must be borne in mind when evaluating the
interaction between section 85 of the CJA and
section 302 of the
CPA.
[36] Section 85(1)
of the CJA distinguishes between two classes of children: on the one
hand, a child under the age of 16 years,
and on the other, a child
who is "16 years or older but under the age of 18 years, and
has been sentenced to any form of
imprisonment that was not wholly
suspended, 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"
;.
[37] The proviso to
this section provides that in respect of both of these classes of
children, "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 the duration of the
sentence." (emphasis added). I would suggest that in respect of
the second group of children, it
is the clear intention of the
legislature that in relation to a sentence of any form of
imprisonment or "compulsory residence",
no matter what the
length of the sentence, and irrespective of the experience of the
judicial officer imposing such sentence,
the accused is granted a
right of automatic review.
[38] In my view,
the use of the words, "irrespective of the duration of the
sentence", in the proviso which clearly
refer to sentences
involvingsome form of detention, and the fact that no mention is
made of the years of experience of the judicial
officer imposing
sentence, must now mean that an accused who has been given a
sentence of imprisonment or "compulsory detention"
is no
longer restricted in the right of automatic review in the manner
envisioned in terms of section 302 of the CPA. In other
words, in
sentences in which imprisonment either (a) "exceeds a period of
three months, if imposed by a judicial officer
who has not held the
substantive rank of magistrate or higher for a period of seven
years", or (b) exceeds a period of six
months, if imposed by a
judicial officer who has held the substantive rank of magistrate or
higher for a period of seven years
or longer", the right to
automatic review is available.
[39] I am further
of the view that in respect of children under the age of 16 years,
all sentences, including non-custodial sentences,
are now
automatically reviewable.
8
I say so having regard to the clear wording of section 85(1) of the
CJA which provides that if a child was at the time of the
offence
"under the age
of 16 years . . . 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 the duration of
the
sentence."(emphasis added)
[40] It will be
noted that the form of sentence referred to in respect of children
under the age of 16, is not restricted to a
term of imprisonment or
detention. And the words "irrespective of the duration of the
sentence", clearly apply specifically
to the category of
accused described in section 85(1 )(b). I agree with Olivier J in
Fortuin, that to hold otherwise would be
to render the express
distinction between two age groups by the Legislature meaningless.
"Therefore, in deciding whether
a sentence granted to children
falling under the two categories listed in section 85 would be
automatically reviewable, neither
the duration of the sentence
granted, nor the length of time a judicial officer had held the
substantive rank of Magistrate,
are relevant considerations."
9
[41] Furthermore, I
agree with the finding of Oliver J in Fortuin that matters falling
under section 85(1) will be automatically
reviewable irrespective of
whether the child accused was legally represented or not. The reason
provided for such a finding,
I believe, is convincing.
[42] As I have
previously mentioned, the effect of such provisions and regulations
in relation thereto is that no child appearing
in a Child Justice
Court will ever be without legal representation or legal assistance.
The question then is why the legislature,
knowing of the peremptory
provisions of section 82 and 83, would still provide for the
automatic review of cases in terms of
section 85 if there was no
need to do so, particularly since all children appearing in a Child
Justice Court would be legally
represented or legally assisted? This
is therefore a clear indication that only in those instances
mentioned in terms of section
85(1) and 85(2) that section 302(3) of
the CPA would not be applicable.
[43] Of course, not
all matters involving children will be automatically reviewable in
terms of section 85(1) of the CJA - the
right of automatic review is
limited to those children falling under the categories set out at
section 85(1 )(a) and section
85(1 )(b), namely: children under the
age of 16 years, and children "16 years or older but under the
age of 18 years"
and who have been "sentenced to any form
of imprisonment that was not wholly suspended, 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"
;.
[44] Accordingly,
in the case of any suspended sentence (regardless of the length
thereof) imposed on children of 16 years or
older but under 18
years, such a child would not have an automatic right of review
under
section 85
of the CJA.
[45] In a case
where a sentence had been imposed on a child between the ages of 16
years and 18 years other than that referred
to in terms of
section
85(1
)(b), the provisions of
section 302
would be applicable to a
child accused. In a case, where such a child is legally represented
and a suspended sentence is imposed
in terms of
section 78
10
anc" HREF="#sdfootnote10sym">
10
of the CJA read with
section 297
11
anc" HREF="#sdfootnote11sym">
11
of the CPA, such a sentence would not be subject to automatic
review, because it is not a sentence as referred in terms of
section
85(1
)(b).
[46] Accordingly
all sentences not falling within the ambit of
section 85
are not
subject to automatic review because of the fact that in ail cases
where a child appears in a Child Justice Court such
child would
either be legally represented or assisted in the manner set out in
regulation 48
of the Regulations.
Reviewability of
suspended sentence of imprisonment after it has been put into
operation
[47] It is trite
that when a suspended sentence is put into operation after it is
found that the conditions thereof have been
breached, such an order
enforcing the suspended sentenced is not subject to automatic
review. No appeal lies against such enforcement
either.
Hiemstra's Criminal
Procedure at 28 - 29 states:
"A/o appeal
against or automatic review of putting into operation—The view
has long been held that the putting into
operation of a suspended
sentence is not automatically reviewable (S v Helm
1980 (3) SA 605
(T) at 605H; Gasa v Regional Magistrate for the Regional Division of
Natal
1979 (4) SA 729
(N) at 732E-F)".
[48] The question
which is unclear is whether, in respect of children of 16 years or
older but under 18 years, a suspended sentence,
after it has been
put into operation after a breach of the conditions thereof can be
considered a sentence in the form of imprisonment
that is not wholly
suspended for the purposes of automatic review in terms of
section
85(1
)(b) of the CJA.
[49] It is clear
that there is a difference between the actual imposition of a
sentence of imprisonment and the putting into operation
of a
sentence that was suspended in terms of
section 297(9)(a)(ii)
of the
CPA. The effect, however, of imposing a sentence of actual
imprisonment and the putting into operation of a sentence that
was
suspended would be the same, i.e. the imposition of a term of
imprisonment that is not wholly suspended.
[50] In my view, if
the purpose of the CJA was to afford children in conflict with the
law "special protection" and
"special safeguards",
such purpose would be defeated if a sentence of imprisonment which
came about as a result of
the putting into operation of suspended
sentence is out of reach of a special review in terms of
section 85.
[51] The very
essence of the protection afforded by
section 85(1
)(b) is to
subject any sentence of imprisonment not wholly suspended to
automatic review by a Judge of the High Court. It would
therefore be
absurd and not in keeping with the spirit of the CJA and the
provisions of section 28 of the Constitution to exclude
such a
sentence from automatic review when all other sentences of
imprisonment not wholly suspendedare subject to review.
Reviewability of
Fines in terms of the CJA
[52] If a fine is
imposed as a sentence on a child, such fine would be imposed in
terms of section 74 of the CJA. The provisions
of section 276(1 )(f)
of the CPA that empower a court to impose a fine are not applicable.
This would mean that where a child
is in default of the payment of a
fine a period of imprisonment cannot be used as an alternative to
the payment of such fine
as provided for in terms of section 287 of
the CPA, or any of the other mechanisms to recover or enforce a fine
in terms of the
CPA
12
.
[53] I consider
that the provisions of section 79 of the CJA would be applicable
where a child is unable to pay a fine. In terms
of section 79:
"[79] Failure
to comply with certain sentences.—(1) If a probation officer
reports to a child justice court that a
child has failed to comply
with a community-based sentence imposed in terms of section 72, or a
restorative justice sentence
imposed in terms of section 73, or has
failed to pay a fine.
restitution or
compensation provided for in section 74, the child may, in the
prescribed manner, be brought before the child justice
court which
imposed the original sentence for the holding of an inquiry into the
failure of the child to comply, (own underlining)
(2) If, upon the
conclusion of the inquiry, it is found that the child has failed to
comply with the sentence provided for in
subsection (1), the child
justice court may confirm, amend or substitute the sentence".
[54] Where a
sentence of a fine has been imposed on a child who was under the age
of 16 years when the offence was committed,
such a case would be
subject to automatic review in terms of section 85(1 )(a) of the CJA
because, as I have demonstrated above,
all cases involving children
under the age of 16 years, irrespective of the sentence or order
imposed, are subject to automatic
review in terms of section 85(1
)(a) of the CJA.
[55] In the case of
a child who is 16 years or older but under the age of 18 years at
the time of the commission of the offence
and in respect of whom a
sentence of a fine has been imposed in terms of section 74 of the
CJA, such sentence is not subject
to automatic review, because it
cannot be enforced with a term of imprisonment which is not wholly
suspended. Furthermore, the
mechanism created in terms of section
79of the CJA does not sanction imprisonment as the alternative where
a child is in default
of the payment of a fine.
[56] It is
questionable whether the provisions of section 302(1 )(a)(ii)
13
of the CPA dealing with the automatic reviews in relation to a
sentence of a fine would be applicable in the light of the
provisions
of section 82 and 83 of the CJA, which have the effect
that it is theoretically impossible for a child to be without legal
representation
or legal assistance. If a child should for some or
other reason not be legally represented then the imposition of a
fine as a
sentence would be subject to automatic review in terms of
sec 302(1 )(a)(ii) and the provisions of Section 79 of the CJA will
act as a further safeguard.
Reviewability of
Regional Court Cases
[57] A final
question that arises is whether the provisions of section 85 of the
CJA apply to children convicted in the Regional
Court. It is clear
that sentences subject to review in the ordinary course in terms of
section 302 of the CPA only include sentences
imposed by a
Magistrate in a Magistrate's Court. In this regard, section 302(1
)(a) refers to "any sentence imposed by a
magistrate".
"Magistrate" in terms of the definitions section of the
CPA "includes an additional magistrate
and an assistant
magistrate but not a regional magistrate." (Emphasis added)
[58] As far as
automatic review in terms of section 85 of the CJA is concerned, it
is quite clear that sentences imposed by a
regional magistrate are
also subject to review, contrary to the position in terms of section
302. Section 85(1) of the CJA deals
with "the review of
criminal proceedings in the lower courts." The term, "lower
courts", is not defined in
the CJA. However, section 1 of the
CJA does define a "child justice court' to be "any court
provided for in the Criminal
Procedure Act, dealing with the bail
application, plea, trial or sentencing of a child."
[59] "Lower
Court' is defined in the Criminal Procedure Act as "any court
established under the provisions of the Magistrates'
Courts Act,
1944 (Act 32 of 1944)." The term, "regional court' is
defined in the CPA, as "a court established
for a regional
division under the provisions of the Magistrates' Courts Act, 1944
(Act 32 of 1944)." As such, a regional
court is considered as a
"lower court" in terms of the CPA.
[60] One must
therefore conclude that a reference to lower courts" in section
85 of the CJA includes regional courts, and,
as such, sentences
imposed by regional courts are also subject to automatic review. The
choice of the words by the legislature
is, in my view, also of
significance - "lower courts" are spoken of, as opposed to
"magistrates courts".
This is indicative of the
legislature's intention.
[61] Furthermore,
on the basis of logic and pure common sense, it could not have been
the intention of the legislature to deny
children in conflict with
law the right to automatic review in respect of sentences imposed by
regional courts. This is in light
of the fact that in regional
courts generally more serious offences are heard, and there is a
higher likelihood that a sentence
of imprisonment, not wholly
suspended, would be imposed.
[62] I therefore
conclude that the provisions of section 85 of the CJA are applicable
to children convicted in the Regional Court.
Conclusion
[63] Concerns were
raised as to the possible harmful impact on the criminal justice
system should it be held that
section 85
(1) of the
Child Justice
Act also
applies to sentences imposed on children by Regional
Courts, and sentences imposed on children who are legally
represented. The
fear is that High Courts will be flooded with
reviews, resulting in unmanageable workloads for judges and other
court staff.
As part of their submission before us, the Ministry of
Justice and Constitutional Development included statistics of cases
finalized
by the Magistrate's Courts in terms of the CJA in this
division. I am not convinced that the figures indicate that such a
fear
is warranted.
[64] Even if it
were indeed the case that the workload of judges would be increased,
it is my view that the change would be minimal,
and in any case this
fact alone cannot serve as a legally and constitutionally
permissible reason not to have these matters considered
on review.
This fact was conceded by counsel who appeared on behalf of the
Minister.
For the sake of
clarity for all concerned, I summarize my conclusions as follows:
1) All cases are
subject to automatic review in terms of the provisions of
section 85
of the CJA where a child was:
1.1. under the age
of 16 years at the time of his or her commission of the offence,
irrespective of the sentence;
1.2. 16 years and
older but under the age of 18 years and has been sentenced to any
form of imprisonment that was not wholly suspended
or any sentence
of compulsory residence in a Child and Youth Care Centre providing a
programme for in
section 191(2)0)
of the
Children's Act;
1.3. sentenced
to a
period of imprisonment after a suspended sentence had been put into
operation in terms of
section 297(9)(a)(
ii) of the CPA;
1.4. This would be
irrespective;
1.4.1. of the
duration of the sentence and the length of time a judicial officer
has held the substantive rank of
Magistrate; or
1.4.2. if the child
was legally represented
14
;
or
1.4.3. if the child
had been sentenced by a Regional Court.
2) The provisions
of
section 302
of the CPA are not applicable to any child that was
under the age of 16 years when he or she committed the offence;
3) The provisions
of
section 85(1
)(b) of the CJA are not applicable to a child who at
the time when the offence was committed was 16 years, but not older
than
18 years, and on whom a sentence other than that contemplated
in
section 85(1
)(b) is imposed, which includes a fine and a
suspended sentence.
[65] After having
concluded that all matters involving children under the age of 16
years would be subject to review irrespective
of the sentence
imposed and the fact that they were legally represented, this matter
that serves before us had been properly
submitted for review to this
Court.
[66] Order
After having
considered the merits of this case, I conclude that the proceedings
in the Magistrate's Court were in accordance
with justice.
HENNEY, J
Judge of the High
Court
I agree and it is
so ordered.
DESAI, J
Judge of the High
Court
I agree.
GAMBLE, J
Judge of the High
Court
1
To
establish a criminal justice system for children, who are in
conflict with the law and are accused of committing offences,
in
accordance with the values underpinning
the
Constitution
and
the international obligations of the Republic; to provide for the
minimum age of criminal capacity of children; to provide
a mechanism
for dealing with children who lack criminal capacity outside the
criminal justice system; to make special provision
for securing
attendance at court and the release or detention and placement of
children; to make provision for the assessment
of children; to
provide for the holding of a preliminary inquiry and to incorporate,
as a central feature, the possibility of
diverting matters away from
the formal criminal justice system, in appropriate circumstances; to
make provision for child justice
courts to hear all trials of
children whose matters are not diverted; to extend the sentencing
options available in respect of
children who have been convicted; to
entrench the notion of restorative justice in the criminal justice
system in respect of
children who are in conflict with the law; and
to provide for matters incidental thereto.
2
Section
82(1) of the CJA.
3
Section
83(1).
4
Section
83(2).
5
Section
83(2).
6
Sec
28 of the Constitution
1.
Every
child has the right -
a.
to
a name and a nationality from birth;
b.
to
family care or parental care, or to appropriate alternative care
when removed from the family environment;
c.
to
basic nutrition, shelter, basic health care services and social
services;
d.
to
be protected from maltreatment, neglect, abuse or degradation;
e.
to
be protected from exploitative labour practices;
f.
not
to be required or permitted to perform work or provide services that
i.
are
inappropriate for a person of that child's age; or
ii.
place
at risk the child's well-being, education, physical or mental health
or spiritual, moral or social development;
g.
not
to be detained except as a measure of last resort, in which case, in
addition to the rights a child enjoys under sections
12 and 35, the
child may be detained only for the shortest appropriate period of
time, and has the right to be
i.
kept
separately from detained persons over the age of 18 years: and
ii.
treated
in a manner, and kept in conditions, that take account of the
child's age;
h.
to
have a legal practitioner assigned to the child by the state, and at
state expense, in civil proceedings affecting the child,
if
substantial injustice would otherwise result; and
i.
not
to be used directly in armed conflict, and to be protected in times
of armed conflict.
2.
A
child's best interests are of paramountly importance in every matter
concerning the child.
(OWN
UNDERLINING)
7
See
also De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC) as referred
to by Langa DP in the Hyundai matter.
8
See
S
v Fortuin
at
[15].
9
See
S
v Fortuin
at
paragraph [17].
10
The
provision in the CJA dealing with the postponement and suspension of
a sentence.
11
The
provision of the CPA dealing with suspension of a sentence.
12
See
also sec 288 (recovery of a fine) and sec 289 (enforcement of fine);
See also Schedule 5 of the CJA.
13
In
terms of GG24393 dated 24 February 2003, a fine imposed of more than
R3000 would be subject to automatic review if a Judicial
Officer has
held a substantive rank of Magistrate for less than 7 years and if a
fine imposed of more than R6000 is imposed by
a Judicial Officer who
has held the substantive rank for more than 7 years it would be
subject to review.
14
If
ever such a child could ever be without legal representation or
assistance, if regard is to be had to Section 82 or 83 read
with
Regulation 48 of Chapter 10 of the Regulations.