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[2014] ZAWCHC 160
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S v T.N.S (14658) [2014] ZAWCHC 160; [2015] 1 All SA 223 (WCC); 2015 (1) SACR 489 (WCC) (29 October 2014)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High
Court Ref No: 14658
DATE:
29 OCTOBER 2014
In
the matter between:
STATE
And
TNS
Coram
:
SALDANHA & ROGERS JJ
Delivered:
29 OCTOBER 2014
JUDGMENT
ROGERS
J:
[1]
This matter came before
me on automatic review. The circumstances of the case appear from the
enquiry I directed to the magistrate
on 2 July 2014, from which I
quote:
‘
Introduction
1.
I
have queries in this matter regarding both conviction and sentence.
In order to expedite matters, this query is being sent simultaneously
to the magistrate and to the DPP’s office for comment.
2.
The
accused’s date of birth is 5 November 1999. She was charged on
one count of culpable homicide by causing the death of
her biological
father by stabbing. The alleged offence occurred on 6 December 2012.
On that date the child had just reached her
13
th
birthday.
3.
The
accused was represented by a legal aid attorney. A report by a child
psychiatrist and clinical psychologist was procured, pursuant
to
which the magistrate on 10 December 2014 found that the child had
criminal capacity.
4.
The
accused proceeded to plead guilty, providing, in her s 112(2)
statement, a full account of the incident leading to the
stabbing of
her father. She was convicted on the basis of this plea and
statement.
5.
No
previous convictions were proved. The matter was postponed for a
probation officer’s report.
6.
On
28 March 2014 the probation report was presented at court. The
accused was sentenced to five years’ compulsory residence
in a
Child Youth Centre, the sentence being ante-dated to 6 December 2012
(the date of the alleged offence) purportedly in terms
of s 77(5)
[of the
Child Justice Act 75 of 2008
]. The five years’
compulsory residence will thus expire on 6 December 2017, just after
the accused’
s 18
th
birthday.
Criminal capacity
7.
In
terms of
s 7(2)
of the
Child Justice Act read
with
s 11
,
the accused was rebuttably presumed to lack criminal capacity as at 6
December 2012, and the onus was on the State to rebut this
presumption beyond reasonable doubt. This was also the common law
(Snyman
Criminal
Law
5
th
Ed at 178-181). In the latter work it is said that the presumption is
not rebutted merely by proof that the child could distinguish
between
right and wrong; it must be clear that the child knew that what she
was doing was wrong within the context of the facts
of the particular
case.
The report
of the psychiatrist and psychologist appears to me had to have been
insufficient to rebut the onus. The accused suffered
from a severe
stutter and was said to suffer from “Borderline Mental
Retardation”. Her Full Scale IQ fell on the
Borderline range
of intellectual disability. There was likely to be “specific
cognitive deficiency”. Her score on
the Verbal Scale was
“weak”; her verbal abstract reasoning was “poor”.
Importantly, the expert said that
she was “likely to have
difficulty predicting the consequences of her actions”. Her
“social judgment, mental
agility and mental alertness”
were “very poor”, meaning that she was “likely to
be slow to think (sluggish)
and likely to make poor social judgment
decisions”. In the context of a criminal offence, the experts
said it was “highly
likely that [the accused] did not consider
the consequences of her actions nor is she likely to have the
capacity to do so independently”.
The experts’
specific assessment on criminal capacity was that the accused did
“understand the difference between
right and wrong, and,
within
the limitations of her intellectual and developmental level
,
generally has the capacity to act in accordance with that knowledge”
[
my
underlining
].
Her ability to control her impulses, however, would have been
“profoundly affected” by the sense of danger provoked
by
her father’s verbal and physical attacks. In addition, “her
impaired verbal reasoning and poor processing is likely
to have
prevented her from considering anything other than self-protection
in that moment. It could thus be “argued”
that the
accused’s “criminal capacity was temporarily
diminished”.
The experts
were not called to explain these matters. Not only was the accused
rebuttably presumed to lack capacity but she appears
to have had
specific cognitive difficulties which put her capabilities below
that of the average child of her age.
Please
comment.
The guilty verdict
On the
assumption that the accused was proved beyond reasonable doubt to
have had criminal capacity at the date of the alleged
crime, I have
reservations as to whether the
s 112(2)
statement was, in the
particular circumstances of the case, sufficient to satisfy the
court beyond reasonable doubt that the
accused was guilty of the
crime of culpable homicide. As noted, her account was one of
persistent verbal and physical abuse during
the day in question. She
said she later armed herself with a knife in order to deter her
father. When she encountered her father
and he made to attack her
with a half-brick, she reacted quickly, striking him once in the
chest. She fled to her home and locked
herself inside, fearing that
her father would pursue her.
In the
expert assessment of criminal capacity, her version to the medical
experts was that there was a scuffle in which her father
threateningly raised a half-brick. As a result, ‘she stabbed
at him, intending to inflict a minor wound on his arm to show
him
how much he had hurt her’.
Where a
child is charged with culpable homicide, and the child has criminal
capacity, the test for negligence is that of the reasonable
child in
the same circumstances (Snyman
op
cit
217).
A reasonable adult should have been aware that the use of the knife
constituted disproportionate force in self-defence,
but why is the
same true of a 13-year-old girl facing a physical attack from her
father?
Sentence
15.
Given
the circumstances in which the offence occurred and the child’s
tender age and mental and social circumstances, a sentence
of five
years compulsory residence in a youth centre appears to be very
harsh.
16.
I
appreciate that the magistrate may have thought that the child would
be better off in a youth centre than at her home. However,
compulsory
detention in a youth centre is a significant inroad on freedom. There
are procedures, outside of the criminal justice
system, for ensuring
that children receive adequate care. Unless the crime in itself
warrants lengthy compulsory detention, such
detention should not be
used to achieve extraneous social aims.
17.
Might
it not have been appropriate to consider postponing the imposition of
sentence?
18.
I
note in passing that this does not appear to have been a case where,
as the magistrate supposed, the sentence had to be ante-dated
in
terms of
s 77(5)
; the child was not in prison or in a youth
centre while she waited trial.’
[2]
The magistrate, who
satisfactorily explained at an early stage why there would be some
delay in dealing with my query, furnished
her reply on 27 August
2014. The DPP’s office submitted its comments on 13 October
2014.
[3]
The magistrate says
that the accused was throughout represented by a senior and extremely
competent and thorough attorney. While
the expert assessment was
being awaited, the accused appeared before the magistrate on four
occasions. The accused’s attorney
told the magistrate that her
client was becoming increasingly confident and less stressed in the
court environment and that she
was satisfied regarding the criminal
capacity of the child. The child’s mother described her as
helpful and able to take
the initiative in household functions. She
was at normal school though she had repeated grade 2.
[4]
As appears from my
query, the expert assessment (performed by a child psychiatrist, Dr
Hawkridge, and a clinical psychologist, Ms
Martin) described the
accused as suffering from ‘borderline mental retardation’.
The magistrate, being unable to reconcile
this description with what
she had heard and observed during the court appearances, contacted Dr
Hawkridge. (The exchange between
the magistrate and Dr Hawkridge is
not part of the recorded proceedings.) Dr Hawkridge described the
accused as ‘not a bright
13-year-old’; she would regard
her as having the IQ of a 12-year-old. I quote further from the
magistrate’s letter
as to her discussion with Dr Hawkridge:
‘
Her
verbal scale is weak. She had a significant higher score on the
vocabulary test indicating her long-term memory, inductive reasoning
and education level are stronger than her verbal concept information.
She is likely to have difficulty predicting the consequences
of her
actions. In the context of a criminal offence (murder at that time),
it is not highly likely that [the accused] did not
consider the
consequences of her actions, nor is she likely to have the capacity
to do so independently [
sic
].’
I pause here to mention that the last sentence in this
passage is unclear and may suffer from an error in formulation.
Continuing:
‘
Dr
Hawkridge also agreed that she did not have the ability to form
intention to murder. [She] explained her diminished ability to
act as
a mitigating factor. Dr Hawkridge confirmed her assessment of
criminal capacity that the child does understand the difference
between right and wrong and within the limitations of her intellect
and developmental level (12-year-old). [She] generally has
the
capacity to act in accordance with that knowledge.’
[5]
The magistrate says
that in the light of this information she did not deem it necessary
to call Dr Hawkridge. She adds that the
authors of the assessment did
not have the benefit of the content of the docket, which was
available to the accused’s attorney
when formulating the guilty
plea. The magistrate says that, at the time, she attached some
significance to the fact that there
were material differences between
the version the accused offered to the experts and the one she gave
to the court. The former
version placed most of the blame for the
incident on her father. The other version, given to the court,
indicated that the accused
did not fear her father to such an extent
that she tried to avoid meeting him again. The magistrate comments in
this regard as
follows (underlining in the original):
‘
On
the contrary, after the first encounter and once safe at home…
she [the accused] states, “Ek het toe die mes vanaf
die kombuis
tafel geneem and
weer
uitgegaan na buite. Op daardie stadium het ek nie my pa buite gesien
nie… Ek het
weer
besluit om parkie toe te loop en het die mes steeds in my besit
gehad.” She goes on to explain, “Ek het die mes
saamgeneem
as afskrik middel vir my pa.” This was a case where
she acted on her own initiative. She went back to the park to find
her
father. Not to protect herself, but to deter her father
.’
[6]
On the merits, the
magistrate says that the accused’s explanation did not cause
her to believe that the accused thought she
was entitled to do what
she did. There were no grounds of justification for her actions. The
magistrate was of the view ‘that
she was not honest when the
assessment was done’.
[7]
In regard to sentence,
the magistrate observes that, while there may in theory be procedures
outside the criminal justice system
for ensuring that children
receive adequate care, ‘in practice it is almost non-existent
in the rural area such as the Overberg’.
There are, she says,
no counselling facilities. The magistrate has dealt with several
cases of children placed under home-based
supervision to whom, so it
later transpired, no services were rendered. Those children
subsequently appeared before her again,
having reoffended. She
expresses alarm at the prevalence of serious crime committed in her
area by juveniles. She has reported
the dire need for basic and
adequate social services at the highest level but there has been no
improvement as yet.
[8]
The magistrate
considers that the accused required strict discipline and guidance in
order to undergo rehabilitation. A youth detention
centre provides
the necessary access to treatment, the opportunity to continue her
education, acquire valuable skills and attend
programs.
[9]
The magistrate adds
that, pursuant to my query, she has ascertained from the accused’s
attorney that the child has adapted
well and has continued her
schooling. Her family visits her regularly. There is in general
considerable coordination between the
youth centre and the court, as
the magistrate usually requests feedback on an informal basis. She
concludes:
‘
Given
my obligation to act in the best interests of the child I found it
necessary to tailor my decision to the unique circumstances
of this
child and to be sensitive to her needs. I respectfully submit that
the sentence imposed for committing a serious offence
is a fair and
suitable sentence.’
[10]
The DPP’s office
expressed reservations about the manner in which the court
a
quo
dealt with the
accused’s criminal capacity. The DPP’s office also
expressed the view that the accused’s plea explanation
indicated self-defence. The DPP’s conclusion is that the
magistrate should have entered a plea of not guilty and directed
that
the criminal capacity of the accused be determined. In regard to
sentence, the DPP’s office agreed that it seemed harsh.
[11]
Part 2
of Chapter 2 of
the
Child Justice Act (ss
7-11) is concerned with the ‘criminal
capacity’ of a child. From
s 11(1)
of the
Child Justice
Act it
is apparent that criminal capacity here has the meaning now
well-established in our criminal law, namely the capacity, at the
time
of the commission of the alleged offence, to appreciate the
difference between right and wrong (the cognitive element) and to act
in accordance with that appreciation (the conative element): see
S
v Laubscher
1988
(1) SA 163
(A) at 166G—167E; Burchell
Principles
of Criminal Law
3
rd
Ed at 147 and 358-359. A person may lack criminal capacity for
reasons other than youthfulness. In the case of mental illness or
mental defect,
s 78(1)
of the
Criminal Procedure Act 51 of 1977
provides that a person is not criminally responsible for an act or
omission if, at the time of such commission or omission, he
or she
suffered from a mental illness or mental defect which made him or her
incapable of appreciating the wrongfulness of his
or her act or
omission or of acting in accordance with such appreciation. Although
the phraseology is not identical to
s 11(1)
of the
Child Justice
Act, one
is in each case concerned with an enquiry into the same
cognitive and conative abilities of the accused person.
[12]
To the extent that the
DPP’s memorandum implies that there should in the present case
have been an enquiry into the accused’s
criminal capacity in
terms of
s 78
of the
Criminal Procedure Act, I
disagree. In
terms of
s 78(2)
a person is presumed not to suffer from a
mental illness or mental defect resulting in his or her lacking
criminal capacity. Lack
of criminal capacity on grounds of mental
illness or defect must be alleged by the accused and proved by him or
her on a balance
of probability. The accused did not raise a
s 78
defence. Furthermore, although the expert assessment of the accused
indicated some mental deficits, there was no diagnosis of a
mental
illness or mental defect.
[13]
The question in the
present case is whether the accused lacked criminal capacity on
account of youthfulness.
Section 78
in general, and the presumption
in
s 78(2)
in particular, are not relevant to that question. On
the contrary,
s 11(1)
of the
Child Justice Act expressly
provides that the onus rests on the State to prove beyond reasonable
doubt that a child between the ages of 10 and 14 has criminal
capacity.
Section 7(2)
creates a presumption that such a child lacks
criminal capacity. This accords with the common law position
(
Attorney-General,
Transvaal v Additional Magistrate for Johannesburg
1924
AD 421
at 434;
Boberg’s
Law of Persons
2
nd
Ed at 217-218 and 855-864).
[1]
[14]
There are relatively
few reported judgments dealing with the criminal capacity of children
and some of them were decided before
the cognitive and conative
elements which together comprise criminal capacity were clearly
formulated and recognised. The focus
has often been on whether the
child as a fact appreciated the wrongfulness of his act (which
carries the danger of eliding the
enquiry into criminal capacity with
a determination of
mens
rea
) without
separate consideration as to whether the child had the capacity to
act in accordance with his or her appreciation of the
wrongfulness of
the act (see, for example
R
v K
1956 (3) SA 353
(A) at 356F-358F;
S
v M & Others
1978
(3) SA 557
(Tk Sc) at 558E-559B).
[15]
It appears from the
cases that, at least in relation to children, criminal capacity is
relative rather than absolute, in the sense
that a child could
notionally be criminally capable in respect of one particular crime
but not criminally capable in respect of
another. The question is not
whether the child had the capacity to distinguish between right and
wrong in the abstract and to act
in accordance with that appreciation
but whether the child had the capacity to appreciate the wrongfulness
of the particular act
with which he or she is charged in the
circumstances in which it occurred and to act in accordance with that
particular appreciation.
One will thus find
dicta
that a child will more readily be found to have criminal capacity in
relation to obviously heinous crimes - offences
malum
in se
(see the
survey of cases in
S
v Pietersen & Others
1983
(4) SA 904
(E) at 909C-G; see also
S
v
Ngobese
& Others
2002
(1) SACR 562
(W) at 564g).
[16]
One must also remember
that where a person who was between the ages of seven and fourteen at
the time of the alleged offence is
put on trial and called upon to
plead, criminal capacity is not determined (or certainly does not
have to be determined) in advance
of other issues. It follows that,
by the time the trial court is called upon to determine the accused’s
guilt (including
criminal capacity), it will have heard evidence on
all the circumstances of the alleged crime. The
Child Justice Act
contains
provisions for a preliminary enquiry into various matters,
including the child’s criminal capacity, but these procedures
are aimed at assisting those involved in the criminal justice system
to determine whether the child should be charged. Once the
child is
charged (which would reflect a view on the part of the prosecution
that there is a reasonable case for regarding the child
as having had
criminal capacity at the relevant time), the ordinary rules of
criminal procedure apply. These entail
inter
alia
that the State
must prove beyond reasonable doubt that the accused had criminal
capacity at the relevant time.
[17]
Where the form of
mens
rea
required by the
offence is
dolus
(for example,
murder), the State would need to prove, among other things, that the
child performed the relevant act intentionally
and with the knowledge
of its unlawfulness. Strictly speaking, if a child lacks criminal
capacity in relation to the charged offence,
mens
rea
falls away,
because fault cannot be attributed without criminal capacity. In
practice, though, evidence which shows that the child
acted
intentionally and with knowledge of unlawfulness is likely at the
same time to show that the cognitive component of criminal
capacity
was present (namely, the capacity to appreciate the wrongfulness of
the act). However, the State would still need to prove
that the
conative element of criminal capacity was present, namely the ability
to act in accordance with the appreciation of wrongfulness.
[18]
Where the form of
mens
rea
required by the
offence is
culpa
(for example,
culpable homicide, as here), the correlation between
mens
rea
and the
cognitive element of criminal capacity is absent because
ex
hypothesi
the
accused did not as a fact act intentionally with knowledge of
unlawfulness. Hardly any of the cases dealing with the criminal
capacity of children are concerned with crimes of negligence. In one
of the few cases I have found,
R
v
Tsutso
1962 (2) SA 666
(SR) (a case of
culpable homicide), Maisels J said that the prosecution had been
required to show affirmatively that a person in
the position of the
accused, who was 10 years old at the time, had sufficient capacity to
know that the act he was doing was wrong
(at 668F). I have no quarrel
with that proposition insofar as it concerns the cognitive component
of criminal capacity but the
important conative component is omitted.
The judge continued by posing the question whether the prosecution
had proved beyond reasonable
doubt ‘that the accused’s
mind was sufficiently mature to understand, and that he did
understand, the wrongful character
of the conduct in question’
(at 668
in fine
).
The first part of the quoted sentence repeats the cognitive element
of criminal capacity. The second part of the quoted sentence,
with
respect, concerns the element of
mens
rea
, not criminal
capacity, and is, furthermore, irrelevant where the charge is
culpable homicide rather than murder.
[19]
I think one can
legitimately have regard to delictual cases concerning whether a
child is
culpae
capax
. The concept
is the same though the standard of proof differs. In
Weber
v Santam Versekeringsmaatskappy Bpk
1983
(1) SA 381
(A) the court was called upon to decide whether a
seven-year-old child who had dashed into the road was contributorily
negligent
in relation to the resultant motor vehicle accident. Jansen
JA undertook a detailed analysis of the judgment in
Jones
NO v Santam Bpk
1965
(2) SA 542
(A) and of the common law, concluding that
Jones
was in general
consistent with the common law. A child between the ages of seven and
fourteen was rebuttably presumed not to have
delictual capacity. In
Jones
the
cognitive and conative elements of capacity were expressed thus by
Williamson JA (at 554A-C):
‘
If
it be decided in any particular case that a child under puberty is
old enough to have and does have the intelligence to appreciate
a
particular danger to be avoided, that he has a knowledge of how to
avoid it or of the precautions to be taken against it, and
further
that he is sufficiently matured or developed so as to be able to
control irrational or impulsive acts, then it would be
proper to hold
that a failure to control himself or to take the ordinary precautions
against the danger in question is negligent
conduct on his part; in
other words that child in relation to the particular acts or
omissions complained of in the particular
circumstances, was
culpae
capax
.’
[20]
Jansen JA observed that
this passage set a subjective test, namely whether the child had the
knowledge and mental ability to appreciate
that the relevant act or
omission was wrongful and to refrain from committing the wrong (at
390H-391A). For purposes of determining
whether the child had this
capacity, it is necessary to know what the act or omission is, ie the
particular deviation from the
norm of the reasonable person, which is
an objective test (at 391A-D). If it is proved that the child had
delictual capacity in
relation to that wrongful act (a subjective
test), the question whether the child was negligent is an objective
one measured with
reference to the standard of the reasonable person.
There is no special test for negligence in relation to children
(400A).
[21]
In regard to delictual
capacity, Jansen JA observed that one should have regard not only to
the intelligence and schooling of the
child; proper account must be
taken of the frailties of youth. A child might have sufficient
intelligence and schooling to know
that a particular act is wrong but
youthfulness may nevertheless hinder the child’s ability to act
in accordance with such
knowledge. Because of the impulsiveness of
youth, the child might on the spur of the moment forget his or her
knowledge and
schooling. One must not put an old head on young
shoulders. If the child is – when it comes to fault – to
be held to
the standard of the reasonable person, one must be
satisfied that the child was mature enough to comply with that
standard (400B-H).
[22]
Jones
and
Weber
were
followed in
Eskom
Holdings Ltd v Hendricks
2005
(5) SA 503
(SCA) paras 15-17. Scott JA said that the force of
subsequent criticism of
Weber
in its use of an
adult standard in judging the negligence of a child was to some
extent overcome by the emphasis placed on the subjective
nature of
the enquiry into the element of capacity.
[23]
These decisions in the
sphere of delict are relevant to criminal capacity but also call into
doubt what I said in para 14 of my
query to the magistrate, namely
that the test for negligence is that of a reasonable child in the
same circumstances. In my query
I cited Snyman
op
cit
217. The
learned author there references, as authority for his proposition,
the judgment of MT Steyn J in
S
v T
1986 (2) SA 112
(O) at 127C-F. However, the two authorities which the learned judge
cited in that passage were judgments dealing with the effect
of
youthfulness in the assessment of extenuating circumstances, not on
the test for negligence. I have not found any South African
authority
(apart from
S v T)
to the effect that,
where a child is charged with culpable homicide, the
mens
rea
element
(negligence) must be tested with reference to the reasonable child.
While we do not need finally to decide the issue in
this case, there
is much to be said for the view that the subjective frailties of the
child find their proper place in the assessment
of criminal capacity.
If the child has criminal capacity (ie can be held accountable as an
adult would), negligence is tested objectively
with reference to the
standard of the reasonable person. (This appears to be the view of
Burchell
op cit
at
p 366 fn 16.)
[24]
When one tests the
negligence of an adult, one does not subjectivise the test by
postulating the standard of a reasonable person
of the same age
(20-year-old, 80-year-old and so forth). Nor could one sensibly use a
test of the ‘reasonable child’,
because children differ
significantly in their abilities depending
inter
alia
on their ages.
So the test of the reasonable child would have to be subdivided
further into the test of the reasonable 10-year-old,
11-year-old and
so forth. And does one individualise the test further by positing a
child with the same upbringing, education and
intelligence?
Jones
,
Weber
and
Eskom
suggest
that such an approach is not in accordance with the law. Once the
particular child is found to have the cognitive and conative
abilities necessary for criminal capacity, ie the capacity to be
judged by the same standard as adults, the test for negligence
is the
ordinary one. If on that basis the child is convicted, youthfulness
will again come into consideration in the context of
sentence.
[25]
In other Commonwealth
jurisdictions the courts have, though not without some dissenting
voices, employed the test of a reasonable
child of the same age (in
England, see
Mullin
v Richards
[1998] 1
WLR 1304
;
Honnor v
Lewis
[2005] EWHC
747
paras 54-56;
Orchard
v Lee
[2009] EWCA
Civ 295
paras 6-12; in Australia, see
McHale
v Watson
[1966] HCA
13
;
115 CLR 199
(Menzies J dissenting);
DPP
v TY
[2006] VSC 494
paras 6-10; in Canada, see
McEllistrum
v Etches
1956
CanLII 103
(SCC);
[1956] SCR 787
at 793;
Gande
v Pricthett
2001
NFCA 40 (CanLII) paras 33-39;
Chiassan
et al v Baird et al
2005
NBQB 102
(CanLII) paras 87-106 and 118-122
).
In the English and Australian cases there is no indication that
capacity for fault was regarded as an independent requirement;
the
test of the reasonable child appears to have addressed the concerns
which in our law are accommodated in the enquiry into capacity
(accountability). In some of the Canadian cases capacity for fault is
mentioned as a threshold requirement but only, as far as
I can
discern, for the purposes of eliminating those cases where it would
be absurd to have an enquiry into fault (ie in the case
of very young
children). The Canadian cases reflect that contributory negligence is
sometimes found in relation to children as
young as six or seven
because they are regarded as old enough to be held to some standard
of responsibility, even though it be
the standard of a reasonable
child of the same age rather than the adult standard.
[26]
It is of interest to
note that in England (though not Scotland) there was, as in this
country, a presumption that in criminal matters
a child between the
ages of ten and fourteen was
doli
incapax
but the
presumption could be rebutted by the prosecution. The concept of
presumed incapacity was not necessarily the same as in
this country
because the presumption could be rebutted upon evidence that the
child knew that what he or she was doing was seriously
wrong. Be that
as it may, the burden resting on the prosecution gave rise to growing
public dissatisfaction, particularly in an
era where children began
formal education at the age of five. The presumption was abolished by
s 34 of the Crime and Disorder
Act 1998, a statutory measure
which has been authoritatively held not merely to shift the burden of
proof but to preclude altogether
a defence of
doli
incapax
in the case
of persons above the age of ten (
R
v JTB
[2009] UKHC
20;
[2009] 1 AC 1310).
(Children younger than ten are irrebuttably
presumed not to have criminal capacity.) One can understand that, in
a jurisdiction
where children over the age of ten cannot raise the
defence of
doli
incapax
, the
question of negligence should be assessed by a modified standard.
[27]
If in our law we were,
in cases involving children, to judge negligence by the standard of
the reasonable child of the same age,
it appears inevitable that the
threshold enquiry into delictual or criminal capacity would also have
to be adapted. If the child
is only to be judged by the standards of
the reasonable child of the same age, capacity would logically have
to be directed at
the question whether the child in question had the
same capacities for appreciating wrongfulness and acting in
accordance with
such appreciation as the reasonable child of the same
age.
[28]
I have thus far
considered legal aspects relating to culpability, ie criminal
capacity and
mens
rea
. Another
relevant question in the present case is the justification ground of
private defence. This is part of the enquiry into
the
actus
reus
. A child who
lacks criminal capacity may nevertheless perpetrate an
actus
reus
. The killing
of another human being may be justified (ie not unlawful) if the
requirements for private defence are present. Where
private defence
is an issue, the prosecution must show beyond reasonable doubt that
the elements for private defence were not satisfied
(Burchell
op
cit
p 229).
[29]
Snyman
op
cit
at 107-113
lists the requirements for private defence as being (I summarise)
that (i) the accused’s act was in response
to an
uncompleted unlawful attack on an interest deserving of legal
protection, the response being directed at the attacker; (ii)
the
defensive act was necessary to protect the interest in question;
(iii) there was a reasonable relationship between the attack
and the
defensive act; (iv) that the accused was aware of the fact that
he or she was acting in private defence. To avoid
overlap and
contradiction, element (ii) should be understood in my view as
meaning that some defensive act was necessary (not necessarily
of the
nature and extent which the accused actually used), while element
(iii) tests whether the extent and nature of the accused’s
response stood in a reasonable relationship to the attack.
[30]
In regard to the
reasonable relationship aspect, Snyman points out that one should not
confuse this enquiry with the test for negligence.
In regard to
private defence, one is concerned with whether the response was
lawful as judged by societal norms. The court must
not adopt the
position of an armchair critic but put itself in the shoes of the
attacked person at the critical moment, asking
whether a reasonable
person would have acted in that way in those circumstances. In
Ntanjana v Vorster &
Minister of Justice
1950
(4) SA 398
(C) Van Winsen AJ (as he then was) said (at 406A) that the
court must consider all the surrounding factors operating on the
accused’s
mind at the time he or she acted. See also
S
v T supra
at
128D-130E and 131F-132G as applied to a 16-year-old schoolboy charged
with murder, and
S v
Ndlovu
[2002]
ZANCHC 5
paras 6-8. In the latter case, Madjiet J (as he then was)
said that among the surrounding circumstances to which a court should
have regard in assessing the lawfulness of a defensive act are the
relative strength of the parties, their relationship, gender
differences, age, the means at the accused’s disposal, the
nature of the attack, the interest protected and the persistence
of
the attack.
[31]
If, judged by these
standards, the accused person is found to have exceeded the bounds of
lawful private defence, it would still
be necessary to determine
culpability. Where the charge is one of murder, a person who
subjectively but incorrectly believed he
was acting in lawful private
defence would not have
dolus
but could be
convicted of culpable homicide. For
dolus
to be present there
must be the intention to kill and knowledge of unlawfulness (see
S
v Ntuli
1975 (1) SA
429
(A) at 435H—437G;
S
v Motleleni
1976
(1) SA 403
(A) at 407C-D). A person who reacts in self-defence often
intends to cause physical harm to the aggressor; such person may even
foresee that his act of self-defence will or may have fatal
consequences for the aggressor. But unless such person also knows
that he is exceeding the bounds of self-defence and thus acting
unlawfully, a necessary component for
dolus
is lacking. This is
sometimes referred to as putative self-defence (Snyman
op
cit
at 113-114).
Nevertheless, if a reasonable person in the position of the accused
would have realised that such conduct was beyond
the bounds of
reasonable self-defence, a conviction of culpable homicide is the
appropriate and competent verdict (
Ntuli
supra
at 436F-437D
;
S v De Oliveira
1993
(2) SACR 59
(A) at 63g-64a).
[32]
Where the charge is one
of culpable homicide, a finding that the accused had criminal
capacity and exceeded the bounds of reasonable
private defence would
in most if not all circumstances lead to a conclusion that the
accused had the necessary
culpa
.
[33]
Returning to the facts
of the present case, the accused was arraigned for trial in the
regional court and the usual rules of criminal
procedure applied save
to the extent modified by the
Child Justice Act. The
accused was
convicted on the basis of
s 112(2)
read with
s 112(1)(b)
of
the
Criminal Procedure Act. The
magistrate could only convict the
accused if satisfied that she admitted all the elements of the
offence and was guilty of the
offence. In view of the written
statement, the court was not obliged but remained entitled to
question the accused.
[34]
One of the elements of
the crime was that the accused had criminal capacity at the relevant
time. In para 17 of the plea statement
the accused admitted that,
although she was a minor, she knew at all times what she was doing,
could distinguish between right
and wrong, appreciated the
seriousness and consequences of her conduct and was criminally
responsible (‘
toerekeningsvatbaar
’
).
[35]
Despite the plea
statement,
s 11(2)
of the
Child Justice Act required
the
regional magistrate, in determining whether the accused had criminal
capacity, to consider
inter
alia
the report of
the probation officer in the preliminary enquiry and the expert
assessment of the child. Of course, the magistrate
also needed to
take into account the facts of the matter as they appeared from the
plea statement.
[36]
For good reasons which
will be apparent from the aspects of the expert assessment
highlighted in my query, the regional magistrate
herself entertained
doubt as to whether the expert assessment was consistent with a
conclusion of criminal capacity. It is not
clear at what point in the
process the magistrate spoke informally with Dr Hawkridge. Be that as
it may, the discussion between
them does not form part of the record
nor was there evidence from Dr Hawkridge to elucidate the expert
assessment. In
S v
Dyk & Others
1969
(1) SA 601
(C) Corbett (as he then was) said, with reference to
informal discussions between a magistrate and a youthful accused,
that, if
the exchanges had been regarded by the magistrate as
important in rebutting the presumption that the accused was
doli
incapax
,
they ought to have been recorded (at
603B-C). Unless such information is placed on record, a review court
cannot properly perform
its function of certifying the proceedings as
being in accordance with justice. I must say, furthermore, that the
informal exchange
between the magistrate and Dr Hawkridge as
summarised in the magistrate’s response to my query does not
lay my concerns to
rest.
[37]
In the light of the
expert assessment and the circumstances of the case in general, I do
not consider that the ‘admission’
in para 17 was a
sufficient basis for the magistrate, without more, to conclude that
the accused had criminal capacity. A generalised
statement of her
ability to distinguish between right and wrong, apart from not
carrying very much weight, did not focus on the
important question
whether she had the capacity to determine the extent to which she was
entitled to use force against her father
in the particular
circumstances of the case and to act in accordance with that
appreciation.
[38]
If the accused’s
admissions in para 17 were correct, they seem to indicate that the
State could have persisted with the charge
of murder yet according to
the regional magistrate it was Dr Hawkridge’s view that the
accused lacked the capacity to form
the intention to murder, for
which reason the charge was reduced to culpable homicide. It does not
appear from the record or from
the magistrate’s response in
what respects the accused lacked the capacity to form the intention
to murder. One would think
that a 13-year-old child, even with the
deficits from which the accused suffered, would have the capacity to
know that it is wrong
to kill a person without reason and could thus
in general form the intention to murder someone. The question of
criminal capacity,
in relation to the unlawful killing by a child in
circumstances such as those of the present case, would require one to
focus on
the further question whether the child had the capacity to
determine the circumstances in which killing another would be
justified
and, if so, whether the child had the capacity, in the
specific circumstances which arose, to act in accordance with her
cognitive
capacity.
[39]
There seems to me to be
no material difference between the criminal capacity required for
murder and for culpable homicide. If the
accused lacked criminal
capacity in relation to murder (because she lacked the capacity to
understand the bounds of private defence
and/or lacked the capacity,
in the circumstances which confronted her, to act in accordance with
her appreciation of these matters),
she would also have lacked
criminal capacity in relation to culpable homicide. If she had the
necessary criminal capacity, the
question whether she was guilty of
murder or culpable homicide would depend on whether she actually knew
she was acting wrongly
or whether, although she did not, a reasonable
person would have known.
[40]
Because the magistrate
could not properly have been satisfied that the accused had criminal
capacity, she should not have convicted
the accused on the basis of
her guilty plea.
[41]
Even if one concluded
that the accused’s criminal capacity was satisfactorily
established, the plea explanation, read in the
context of the expert
assessment, raised doubt as to whether the accused’s killing of
her father was unlawful. My query to
the magistrate summarises the
features suggestive of private defence. It appears from the
magistrate’s response that she
understood para 9 of the plea
explanation as meaning that the accused deliberately took the knife
with a view to seeking out and
harming her father. In the absence of
further questioning, that inference was not justified. The plea
explanation is consistent
with a version that, after her father’s
initial assault on her, she locked herself in the house for
protection, that later
she went out to play in the park, arming
herself with a knife in order to deter the father if she again came
across him, that she
then did encounter him as she was walking to the
park, that he approached her and made to throw two half-bricks at her
and to hit
her, and that it was at this point that in a quick reflex
action she struck him once in the chest with the knife. Thereafter
she
ran home and again locked herself in the house. She waited there
until the police arrived.
[42]
In order to assess the
possible existence of private defence in the present case, it was
necessary for the regional magistrate to
place herself in the child’s
position. All the factors mentioned by Madjiet J in
Ndlovu
were of potential
relevance: the accused would not have been as strong as her attacker;
there was a father/daughter relationship
between them; the attacker
was a man and the victim of the attack a female; she was 13 while he
was an adult; apart from such physical
strength as she possessed, the
only means at her disposal (apart perhaps from flight) was the knife
she was carrying as a deterrent;
the attack was directed at her body
and quite possibly posed a threat to her life; the attack which was
imminent involved blunt
instruments and the attacker’s physical
strength and were a repetition of attacks which had occurred earlier
in the day.
[43]
The question of flight
might have warranted further investigation. Our law does not always
require the victim of an attack to flee
(Snyman
op
cit
at 107-109;
Burchell
op cit
p 238-239).
Assuming the existence in general of a duty of flight, it should be
remembered that the accused had been attacked
earlier in the day,
that when on the previous occasion she ran away her father chased
after her, threw stones at her, grabbed her
and thrust his knee into
her stomach three times. She freed herself on this occasion by biting
his thigh. She said that when she
encountered her father again on the
fateful occasion, she thought he might again chase after her and hit
her. The place where a
child is ordinarily entitled to find refuge,
namely her home, was not safe, given the relationship between her and
her attacker.
[44]
I do not say that on
full examination a prosecution would fail on grounds of private
defence. However, the plea explanation was
not sufficient to satisfy
the magistrate on that question.
[45]
In view of these
conclusions, it is unnecessary to comment on the sentence imposed by
the magistrate, save to record that I adhere
to the view indicated by
my query, namely that a court’s sentencing jurisdiction should
not be used to impose a penalty,
otherwise inappropriately harsh,
because of failings in social services.
[46]
The appropriate course,
in my view, would be to set aside the conviction and sentence and to
remit the matter to the court
a
quo
to act in
accordance with
s 113
of the
Criminal Procedure Act, ie
to enter
a plea of not guilty, whereupon the State, if it wishes in the light
of all the circumstances to continue with the prosecution,
must lead
evidence in the usual way (see
s 312(1)
;
Pietersen
supra
at
911A-912B).
[47]
Because the accused has
apparently responded well to her detention in the youth care centre
and because we cannot be confident that
it would be in her best
interests to be released forthwith to the care of her family, our
order will provide that she remain at
the youth care centre until her
position is further assessed. There are various statutory provisions
in terms of which her further
detention or residence in the youth
care centre might be ordered. If the prosecution continues,
s 29
of the
Child Justice Act might
apply.
[2]
If the accused is in due course found to have lacked criminal
capacity,
s 11(5)
read with
s 9(3)(a)(i)
of the
Child
Justice Act might
be applied, and this might in turn lead to an
investigation, pursuant to
s 50
of the
Child Justice Act read
with Chapter 9 of the Children’s Act 38 of 2005, into whether
the accused is a child in need of care and protection. Furthermore,
any court in the course of proceedings involving a child who appears
to be in need of care and protection may, in terms of
s 47(1)
of
the Children’s Act, order that the child be referred to a
social worker for investigation contemplated in
s 155(2)
of that
Act. One of the orders which a children’s court may make in
relation to a child in need of care and protection is
placement in a
child and youth care centre (see s 156(1)(h)).
[48]
Finally, and despite
the fact that this court will be setting aside the conviction and
sentence as not being in accordance with
justice, we have no doubt
that the magistrate dealt with this matter conscientiously and in
accordance with what she believed to
be the best interests of the
child.
SALDANHA J:
[49]
I concur. The following
order is made:
(a) The conviction and sentence are set aside.
(b) The matter is remitted to the court
a
quo
in order to act in accordance with s 113 of the Criminal
Procedure Act 51 of 1977.
(c) The accused must be brought before the
court
a quo
within two months of the date of this order for
the purpose of giving effect to (b) above and for the further purpose
of determining
what orders, if any, should be made in the best
interests of the accused pursuant to the
Child Justice Act 75 of 2008
and the Children’s Act 38 of 2005, including her possible
further detention or placement in a child and youth care centre.
(d) Pending the accused’s appearance before the
court
a quo
as aforesaid and pending the further order, if
any, of that court as contemplated in (c), the accused shall remain
in the care of
the Youth Care Centre at Vredelust.
(e) The Registrar must cause a copy of this judgment,
together with a copy of the memorandum dated 13 October 2014
submitted by
the office of the Director of Public Prosecutions, Cape
Town, to be delivered to (i)the Legal Aid Board for the attention of
Ms
Cuttings and Mr van Loggerenberg (who appeared for the accused in
the court
a quo
); and to (ii) the accused’s mother,
[…] (who, as at March 2014, resided at […]).
SALDANHA
J
ROGERS
J
[1]
In Snyman
Criminal
Law
5
th
Ed at 179 the learned author refers to this age group as
encompassing children 'after completion of their seventh year but
before completion of their fourteenth year (in other words, till
just before their fifteenth birthday)' and proceeds to consider
the
test for determining whether a child 'between the ages of eight and
fifteen' has criminal capacity. This formulation is erroneous.
A
child turns 14 when he or she has completed 14 years of life (ie
including the 14
th
year itself). At that point the child, having turned 14, commences
his or her 15
th
year (but is aged 14 until the 15
th
year is completed). On my reading of the cases and the old
authorities, the presumption of lack of criminal capacity terminates
when the child turns 14, not 15. This is certainly the effect of
s 7(2)
of the
Child Justice Act.
[2
]
Section 29(1)
provides that a presiding officer
may order the detention of a child who is alleged to have committed
any offence in a specified
child and youth care centre. The factors
to which the presiding officer must give consideration are listed in
s 29(2).