About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 5
|
|
S v S.N and Another (SHE 59/14) [2015] ZAWCHC 5 (9 January 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
Case no.: SHE 59/14
DATE: 09 JANUARY 2015
In the matter between:
THE STATE
And
[S….]
[N………] and [M……….] [Q…..]
REVIEW JUDGMENT
High Court Ref No: 141114
Magistrate’s serial No: 78/2014
From the Regional Court for the Regional Division
of the Western Cape
Held at WYNBERG
BINNS-WARD J:
[1]
In this matter the
two accused were convicted of murder in the regional magistrates’
court at Wynberg. They were legally represented
at their trial. They
both pleaded guilty and were convicted upon the acceptance by the
court and the prosecutor of the facts set
forth in their written
statements that were handed in in terms of
section 112(2)
of the
Criminal Procedure Act 51 of 1977
. The accused were each sentenced to
10 years’ imprisonment. Accused no.1 was born on 11 December
1995 and accused no. 2 just
two days earlier, on 9 December 1995. The
offence was committed on 3 October 2013. The accused were arrested on
the same day. They
were both therefore not yet 18 years of age at the
time of commission of the offence and their subsequent arrest, and
thus children
within the meaning of s 28 of the Constitution.
[1]
[2]
The matter came on
automatic review in terms of s 85 of the Child Justice Act,
which provides if a child, within the meaning
of the Act, has been
sentenced to any form of imprisonment, 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 any of
the factors set out in
s 302
of the latter Act, such as that the
accused had enjoyed legal representation, that would ordinarily
exclude the requirement for
an automatic review.
[3]
Upon considering the record of proceedings I was
struck by the disparity between the facts concerning the commission
of the offence
as set out in the accuseds’ respective
statements in terms of
s 112(2)
of the
Criminal Procedure Act and
the
version of the fatal assault given in the magistrate’s sentence
judgment. It was also striking that there was nothing
in the sentence
judgment to suggest that the magistrate had been conscious that the
accused qualified to be treated as children
for sentencing purposes
even though it is evident from the record that he was fully astute to
the fact that he was presiding in
a child justice court. I
accordingly caused the following query to be addressed to the
magistrate:
The sentence judgment
refers to facts which go beyond what was contained in the plea
statements accepted by the State.
The plea statements suggest
that the deceased was the initial aggressor, whereas the sentence
judgment apparently relying on the
hearsay description of the event
derived from one of the probation officers’ reports, treats the
accused as brutal attackers
who pursued the deceased. The two
versions are inconsistent. On what basis does the magistrate justify
accepting the version in
the probation officer’s report for
sentence purposes?
The sentence judgment makes
no reference to
s 28(1)(g)
read with s 28(2) of the Constitution. To
what extent, if any, were these provisions applied in the
determination of an appropriate
sentence?
The magistrate’s
urgent response is requested.
[4]
The magistrate responded as follows:
[1] As a
matter of background, after the accused were convicted of murder, Mr
Jikela, the attorney of the accused requested pre-sentence
reports
namely Correctional Supervision and Probation Officer’s
Reports. These reports were compiled by their respective
authors.
They were given to Mr Jikela. Mr Jikela must have read the reports.
[2] Unlike
the Correctional officer’s Reports, the Probation Officers
Reports were all detailed. They contained more facts
regarding this
murder than the statements in terms of Section 112(2) in respect of
the accused. Above all, both Probation Officers
Reports contained
adverse recommendations of direct imprisonment against both accused.
[3] Despite
that and notwithstanding the fact that the defence still had an
opportunity, not to hand them in, the defence elected
to hand in
these reports.
[4] These
reports including any piece of evidential material formed part and
parcel of the record. There is nothing which precluded
the court from
considering them for the purposes of sentence.
[5] Despite
the “hearsay description of the evidence” contained in
the Probation Officer’s Reports. Mr Jikela
handed in these
reports as exhibits. By so doing, he consented or agreed to the
reception of that evidence. What was contained
in these reports
was admitted by the defence. [fn. See
section 3(1)(a)
of the
Law of
Evidence Amendment Act 34 of 1988
, which provides that subject to the
provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal
or civil proceedings unless (a) each party
against whom the evidence is to be adduced agrees to the admission
thereof as evidence
at such proceedings.] If it was not so, the
defence should have expressly indicated which parts of the reports
they did not agree
with. There is nothing in law which
precluded the court from considering the contents of the reports
which were admitted
by the defence. Reference by the court to
some aspects of the reports was therefore not a misdirection at all.
[6] The
legislation (see
Section 3(1)(a)
above as well as case law)
authorised the court to accept the version in the probation officers
report for sentence purposes.
[7] This
brings me to the question of what is the probative value of the
hearsay allegations in the reports of the probation officer’s
reports compiles by Messrs Cefa and Best. The answer to this
question can be found in
S v RO
and Another [fn.
2010 (2) SACR
248
at 254 (SCA)] and
S v Oliver
[fn.
2010 (2) SACR 178
(SCA)
at para 7].
[8] In
S v
RO
, the court held that “where the factual basis of
pre-sentence report or an omission or recommendation contained herein
is
disputed in a material respect, the author of the report is
required to testify on oath. In the absence of a pertinent
challenge
thereto any controverting evidence, facts unequivocally
admitted by the party become proved facts” (my emphasis”).
[9] Having
dealt with the first part of the remarks of the Reviewing Judge, I
now turn to the second part of the remarks, namely
“the
sentence judgment makes no reference to
section 28(1)(g)
read with
section 28(2) of the Constitution. To what extent were these
provisions applied in the determination of an appropriate
sentence.
[10] For the
sake of completeness, I think it would be appropriate to quote the
abovementioned sections verbatim. Section 28(1)(g)
of the
constitution reads as follows: [the magistrate quoted the provision].
Section 28(2) of the Constitution reads as follows:
[the magistrate
quoted the provision].
[11] The
accused in this matter were 17 years when they were arrested. They
were 18 years at the time of sentencing. In terms of
section 28(3) of
the Constitution, a ’child’ means “a person under
the age of 18 years”.
[12] With all
respect to the Judge’s remarks, section 28(1)(g) is not
applicable in this case as the accused were 18 years
old when they
were sentenced. Be that as it may, the court was always mindful of
the fact that it was dealing with young offenders.
The youthfulness
of the accused was not only paid lip service to, but was seriously
considered during sentencing hence, these lenient
sentences which
were imposed on the accused despite the brutal and heinous nature of
the offence which they committed.
[13] In
conclusion, I submit that these proceedings are in accordance with
justice.
[14] The
original record is returned herewith ….
[5]
In terms of s 28(1)(g) of the Constitution,
every child ‘has the right 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’.
[2]
Section
28(2) of the Constitution provides that ‘A child’s best
interests are of paramount importance in every matter
concerning the
child’.
[6] In
Centre for Child Law,
[3]
Cameron J, writing for the majority, explained this provision in
the context of sentencing child offenders, stating ‘The
constitutional injunction that “[a] child’s best
interests are of paramount importance in every matter concerning the
child” does not preclude sending child offenders to jail. It
means that the child’s interests are “more important
than
anything else”, but not that everything else is unimportant:
the entire spectrum of considerations relating to the child
offender,
the offence and the interests of society may require incarceration as
the last resort of punishment’ (footnote
omitted).
[4]
[7]
In
Mpofu v Minister for Justice and Constitutional Development and
Others
2013 (9) BCLR 1072
(CC);
2013 (2) SACR 407
(CC), it was
remarked by Skweyiya J, writing for the majority, that ‘Section
28 of the Constitution demands that children
are accorded different
treatment in sentencing. A failure to do so is …
a constitutional failure’.
[5]
[8]
Section 7 of the Constitution imposes a duty on
the state to respect, protect, promote and fulfil the rights in the
Bill of Rights.
In an act of fulfilment of this duty, in
relation to s 28 of the Constitution, Parliament has enacted the
Child Justice Act 75 of 2008
. Of particular relevance in the
current matter in the light of the magistrate’s response, the
Act purposively extends
the meaning of ‘child’. In
s 1
, ‘child’ is defined to mean ‘any person
under the age of 18 years
and, in
certain circumstances, means a person who is 18 years or older but
under the age of 21 years
whose matter
is dealt with in terms of
section 4
(2)’.
Section 4(2)
provides that ‘The Director of Public Prosecutions having
jurisdiction may, in accordance with directives issued by the
National Director of Public Prosecutions in terms of
section 97
(4)
(a) (i) (aa), in the case of a person who-
(a) is
alleged to have committed an offence when he or she was under the age
of 18 years; and
(b) is 18 years or older
but under the age of 21 years, at the time referred to in subsection
(1)(b),
direct
that the matter be dealt with in terms of
section 5
(2) to (4)’.
The accused in the current matter qualified to be dealt with as
children for the purposes of the
Act in terms of the criteria set
forth in
s 4(1)
of the Act because they were under 18 when they
were arrested.
[6]
[9]
The aforementioned provisions of the
Child Justice
Act confirm
that there is no arbitrary end to childhood for children
who have committed offences before they attained the age of
adulthood,
but are still being processed through the criminal justice
system when they turn 18. The legislation is thus recognisably
directed at promoting the spirit, purport and objects of s 28(1)
and (2) of the Constitution. One need not go beyond
the
preamble to Act to appreciate this. It does so by giving a
generous and expansive effect to the constitutional provisions
and
avoids any reading down of them that a misguidedly narrow application
of the definition in s 28(3) of the Bill of Rights
could bring
about. The effect is manifest, for example, by the provision
that child offenders may be committed in terms of
s 76 of the
Act to compulsory residence in youth care centres until they attain
the age of 21. The reasoning behind
the approach evident in the
wider application of the
Child Justice Act is
manifestly sound.
It has an effect on the manner in which offenders falling within its
wider definition are processed through
the criminal justice system
from arrest or arraignment. Insofar as sentencing is concerned,
it is incidentally in accordance
with the Constitutional Court’s
application of
s 28(1)(g)
in Centre for Child Law and Mpofu in
respect of persons who are over 18 when they come up for sentencing
in respect of offences
committed while they were still under that
age.
[10]
Children are deserving of different treatment from
that given to adults by virtue of factors such as their physical and
psychological
immaturity, which renders them more open to ‘impetuous
and ill-considered actions and decisions’
[7]
and thus, in general, less morally culpable for
their wrongdoings than adults are.
[8]
[9]
When a person commits an offence while under the
age of 18, their conduct falls to be judged in the context of these
considerations.
It would make no sense then to treat them as
adults for sentencing purposes simply because the intervening passage
of time has
resulted in their being adults when sentencing occurs.
That would mean punishing them for what they had done as children as
if it had been done when they were adults. That such an
approach would impinge on the substance of the rights provided in
terms of s 28 of the Constitution is axiomatic, or so I would
have thought. The point is borne out by the striking down
by
the Constitutional Court in Centre for Child Law
[10]
of provisions which were directed at making the
minimum sentencing regime prescribed in terms of the
Criminal Law
Amendment Act 105 of 1997
applicable to certain offences committed by
persons when they were between the ages of 16 and 18 as being
unjustifiably limiting
of the rights in terms of s 28 of the
Constitution. It is obvious that many of the persons affected
would be over 18 by the
time they came to be tried and sentenced.
[11]
It follows that the content of paragraphs 9 -12 of
the magistrate’s response to my query is predicated on a
fundamentally
misdirected understanding of the ambit of s 28(1)(g)
of the Constitution. It is evident that the magistrate treated
the accused as youthful adult offenders rather than children when he
imposed sentence. The magistrate placed the accused on
the
wrong side of the ‘stark but beneficial distinction between
adults and children’
[11]
created in terms of s 28 of the Bill of
Rights and thus approached the determination of their punishment on
the incorrect assumption
that s 28(1)(g) was not applicable.
This demonstrates that there was - to borrow the expression used by
Skweyiya J
in Mpofu, quoted above
[12]
- a ‘constitutional failure’ in the
sentencing proceedings. In particular, no consideration was
given by the magistrate
to sentencing the accused to compulsory
residence in a youth care centre in terms of
s 76
of the
Child
Justice Act. This
, by itself, necessitates that the sentences
imposed must be set aside and the determination of an appropriate
punishment reconsidered
afresh consistently with the children’s
rights provisions in the Bill of Rights and proper regard to the
sentence options
and sentencing objects in the
Child Justice Act.
[12
]
Regrettably, it is also necessary to address the
magistrate’s misdirections on the evidence with regard to
sentence. It appears
from the magistrate’s response that he saw
no reason to be astute to the effect of evidence adduced in respect
of the sentence
proceedings that was at odds, in respect of the
circumstances of the commission of the offence, with that which had
been accepted
for the purpose of convicting the accused. The
response also reflects a material misapprehension by the magistrate
of the
ambit of
s 3
of the
Law of Evidence Amendment Act 45 of
1988
and of the import of the relevant passages in the two judgments
of the Supreme Court of Appeal to which he referred.
[13]
The versions given by the accused in their
respective statements in terms of
s 112(2)
of the
Criminal
Procedure Act concerning
the commission of the offence corresponded
with each other in all respects. It will therefore serve the purpose
of this judgment
sufficiently to quote only that given by the first
accused. It went as follows:
I the
undersigned, Sabelo Ngwayimbana, do hereby declare freely and
voluntarily that:
1.
I am accused in this matter and I understand the
charge against me.
2.
I plead guilty to the charge of murder in that or
upon about the 3
rd
October 2013, and at or near Nyanga in the
regional division of the Western Cape, I unlawfully and intentionally
killed Ana Lumfowie
a male person by stabbing him with a knife.
3.
I admit the following:
3.1
On the day of the incident I and my friends were
at school and we came down from the classes on the upper level.
3.2
At the ground level we met the deceased together
with someone else and they were seated.
3.3
The deceased then stood up and took out a knife
and stabbed my co-accused,that is accused 3 [the other accused (four
persons were
initially arraigned on the charge, but charges were
withdrawn against accused 2 and 4)], and a fight then ensued.
3.4
While the fight was on I took out my knife and I
stabbed the deceased a number of times but I cannot remember how many
times I stabbed
him.
3.5
The deceased then fell to the ground and I then
ran away with my co-accused.
3.6
I admit that I foresaw that by stabbing the
deceased indiscriminately in his body would lead to his death and I
reconciled with
that possibility.
3.7
I admit that my actions were unlawful and
punishable by a court within the relevant jurisdiction and I confirm
the jurisdiction
of this court.
3.8
I am fully remorseful and ask that the Court have
mercy on me.
[14]
The facts accepted by the state and the court for
the purpose of the conviction thus placed the deceased in the role of
the aggressor
in the fight in which he was killed. They had the
deceased starting the fight by stabbing the second accused and being
fatally
stabbed himself in the ensuing melee.
[15]
In his sentence judgment, the magistrate made the
following remarks:
Violence at
schools has reached such a high level of degree that it needs to be
curtailed. Parents are sending their children
to school not to
be killed and butchered like it was done to the deceased, but to be
educated and prepared for their future.
Children who have been
sent to school are expected to behave as schoolchildren, not to
behave as adults.
This offence
is so serious that the deceased was murdered cold-bloodedly. He
was chased, he ran away from you, one of you
tripped him. He
fell on the ground and whilst on the ground he was viciously stabbed
by you. This happened in broad
daylight at the school in the
presence of pupils and teachers.
…
You
were so determined to murder the deceased. You were not
prepared to be deterred by the crying children and the teachers.
School children and the teachers were traumatised by what you did.
…
.I
take into consideration the fact that you may have been provoked by
the conduct of the deceased. The deceased too is not
a holy cow
here. He too did not have a right to possess a knife at school
and stab the other people. You and the deceased
made a mockery
of our education system. There are pupils who want to study and
to become something in life and you disturbed
them from obtaining
that.
…
I
must hasten to add that no amount of provocation entitled you to act
like you did. Two wrongs do not make a right.
If you
[had] reported the matter to the police, I can assure you that the
deceased would have been standing before me on a charge
of attempted
murder. He would still have been alive.
[16]
It is thus apparent that the version of events
suggested in the sentence judgment differs starkly from that set out
in the accused’s
plea statements, which, amongst other things,
has the deceased falling to the ground as a result of being stabbed.
The judgment,
by contrast, gives a picture of the accused chasing
after the deceased, tripping him and ‘cold bloodedly’
stabbing
him to death while he lay on the ground. It is not
apparent which of the accused tripped the deceased, or which of them
stabbed
him. It suggests that the fatal assault was perpetrated
or persisted with, notwithstanding the wails or entreaties of
onlookers.
The sentence judgment describes a killing committed
with direct intention to kill, whereas the plea statements were
consistent
with an admission of murder with the indirect or ‘legal’
intention to kill (dolus eventualis). The distinction
is a most
material one in any proper consideration of appropriate punishment.
The additional information included in the
sentence judgment, which
plainly contains matter that gives a more damning description of
events than that contained in the plea
statements was obtained by the
magistrate from one of the two probation officer reports prepared in
respect of the accused.
Two different probation officers gave
reports, one dealing with the first accused and the other with the
circumstances of the second
accused.
[17]
The magistrate’s statement in his response
to my query that the probation reports had been prepared and produced
at the trial
at the instance of the accused’s legal
representative is not supported by the record. After the
conviction of the accused
and the prosecutor had intimated that they
had no previous convictions, there was an interruption in proceedings
in order to deal
with the position of the two other accused with whom
they had originally been charged. The record then reflects an
exchange
between the court, the prosecutor and the accused’s
legal representative, Mr Jikela. It is evident from the content
of the exchange that the probation officers’ reports had by
then already been acquired at the instance of the prosecution
and
that the matter was postponed to enable reports to be obtained from a
correctional services officer at the instance of the
accused’s
legal representative.
[18]
The apparent impression of the magistrate that the
probation officers’ reports had been produced at the request of
the defence
attorney is in any event disturbing. In terms of
s 71
of the
Child Justice Act, the
magistrate was not empowered
to proceed to sentence the accused before he had considered a
pre-sentencing report prepared by a
probation officer. Such
reports would in the ordinary course be procured for the court by the
prosecutor, as indeed would
appear to have been the case in the
current matter as suggested by the prosecutor’s intimation in
the passage in the record
to which I have just referred that ‘The
State already has the probation report Your Worship’.
[19]
When proceedings resumed on 23 September 2014, the
prosecutor announced that ‘This matter is on the roll for a
correctional
as well as the social worker’s report, Your
Worship for sentence purposes’. The magistrate then
stated ‘Thank
you. Mr Jikela did you manage to get the
plea proceedings reports Mr Jikela?’. To which the
defence attorney
replied ‘Your Worship, I confirm my appearance
on behalf of both the accused in this matter. Your Worship,
indeed I
confirm that we did receive both reports, that of the
correctional officer and also that of the of the probation officer
Your Worship’.
The magistrate without further ado entered
the probation officers’ reports into the record as exhibits ‘G’
and
‘H’, respectively, and those of the correctional
services officer as exhibits ‘I’ and ‘J’.
It would appear that the magistrate must have been provided with the
opportunity to consider the reports before they were formally
handed
in because he proceeded immediately to hear submissions on sentence
from the defence attorney and the prosecutor, whereafter
he forthwith
delivered the sentence judgment without any need to adjourn.
[20]
The probation officer who reported on the first
accused was Mr. M. Cefa. The report, which was dated 11 July
2014 –
that is nearly six weeks before the date of the plea
statement - contained the following passages of particular relevance
to sentencing
generally and the nature of the offence in particular
(I have not edited the language in any way):
When the
officer consulted the principal and other school teachers, they
described the concerned as a learner who was uncontrollable,
displaying disruptive behaviour. It was reported that the
concerned displayed the tendency of not attending classes….
The school
principal informed the officer that a meeting was called in April
2012 with the parents and learners who have been associated
with the
gang related activities of which the concerned was one of them.
The purpose
of the meeting was to talk with all learners who were involved in
gang related activities. At that meeting it
transpired that the
accused was a gang member. It was also revealed at the meeting
that that the concerned promised another
learner to kill him.
The minutes of that meeting was issued to the officer and is attached
to this report.
The concerned
denied his involvement in gang activities. He informed the
undersigned that he used to drink alcohol on special
occasions but
that he no longer drinks alcohol and does not use drugs.
According to
the concerned he has friends of his age and most of his friends are
still at school. The concerned reported that
he usually spend
his free-time at home and sometimes with his friends…
…
Most
of the teachers consulted by the officer portrayed the concerned as a
person who displays challenging behaviour.
…
According
to the concerned he has been attacked by the deceased the day before
the incident at hand. The concerned informed that
he reported the
incident to the deputy principals Mr Tyandela and Ms Gunguluza who
promised that they will attend to it.
The concerned
provided his version of what happened on the day of incident:
He was on his way to another class with his friend
[the other
accused’s name was given] to take his memory card to one of the
learners by the name of [xxx]. They met
the deceased in the
passage. The deceased withdrew a knife and he stabbed his
friend [the other accused]. His friend…retaliated
and he
joined his friend in fighting with the deceased. Both of them
stabbed the deceased.
…
.He
reported that it was not his intention to kill the deceased his
intention was to defend himself against the deceased who was
always
attacking him. The accused shows remorse for his criminal
conduct.
I should mention that the minutes of the April 2012 meeting –
some 18 months before the date of the commission of the offence
- do not provide a particularly coherent record of the event and are
of limited relevance or assistance on their own and unsupported
by
the oral evidence of the persons present who spoke to the alleged
behaviour of the two accused at the time.
[21]
The probation officer who prepared a report for
the second accused was Mr. Vusumzi Best. His report was
also dated 11
July 2014. The most pertinent passages in the
report went as follows (the language is reproduced as it appears,
without editing):
The mother reported that
the teachers were complaining about late coming at school, wearing of
school uniform and doing school work.
According to the mother
the concerned follows instructions at ease and adheres to rules and
regulations at home.
The brother of the
concerned reported that the concerned is a member of the Vura gang.
The concerned denied gang membership.
His brother believe that
the concerned was recruited to join the gang as he resides in the
area of Vara gang and needs protection.
The concerned
reportedly associates with peers of bad behaviour who are older than
him. His mother mentioned that the concerned
is used by older
people to commit criminal activities.
According to the
information obtained from the teachers [the second accused] was a
member of Vura gang. He is described as
the ring leader of the
gang. According to information obtained from the school the
current incident was not the first time
that a child was stabbed at
school. There was reportedly an incident at school whereby the
concerned and his friends use a gang
member who is not attending
school to stab one of the learners at school. The gang member was
wearing a uniform and camouflaged
as one of the pupils.
The teachers reported that
the concerned and the co-accused associate with gang members who rob
cellular phones, money and school
bags of children. They
reportedly wait outside the school premises and rob children after
school of their valuables.
According to the teacher’s
perspective, the gang claims the territory and therefore the school
as the school is in their area.
Mr. Tyopho, the
correctional official described the concerned as a quiet child.
He reportedly co-operates well with staff
members in prison and has a
good relationship with inmates.
…
..
PRESENT
OFFENCE
According to the accused,
the incident of murder happened on 04 October 2013 on the premises of
the school. He explained that
before the incident happened, his
friend had an argument with their rivals over the obstruction of the
sun. One of his friend
arrived in accused’s home early in
the morning. This friend told him that Sabelo and his friends
were sitting on the
grass in the back field of the school. One
of their girlfriends borrowed a memory stick from [the first
accused]. The
victim’s friend came while they were
sitting on the grass. They provoked, obstructed him from the
sun and beat him.
The school children arrived and stopped the
fight. [The first accused] was taken to the principal’s
office and asked
about what happened. [The first accused] told
how the fights started. According to the accused, the deputy
principal
instructed [the first accused] to go class as he was going
to deal with this matter during lunch break. The deputy
principal
had never called to address this matter. His
biological mother reported that he was appearing in Goodwood court
for his outstanding
case [the report mentions that the second accused
had been on remand on a charge of housebreaking at the Goodwood
magistrate’s
court] when the argument started. The next
day after the argument, his friend arrived in home to go to school
together as
usual. They met Abongile and Sandile at school,
went upstairs to one of the classes to fetch memory stick which was
borrowed
by one of their girlfriends. While they were on their
way to the classroom, they met the victim. According to the
accused,
the victim assumed that he and his friends were avenging
themselves against them as rivals about the fight of the previous
day.
The accused explained that the victim took the knife from
his waist and stabbed in his chest. His cousin gave him a knife
to defend himself against the deceased. The victim passed away
on that day. [The first accused] and Andile took him
to
Crossroad Community Health Centre. The victim died on the same
day. After he was discharged from hospital, he went
back home.
He and his friends were taken by car to the police station.
Their parents reported to the police station and they
were charged
with murder. The accused admitted guilt for the office of
murder he committed and verbalizes remorse.
According to the teachers
who witnessed the incident, the victim was brutally murdered.
They heard a noise outside while they
had a briefing about the
stabbing of [the first accused]. The victim was getting in the
classroom and the children ran outside
the classroom. They
chased the victim and he ran away. While he was running, one of
[the first accused’s] friends
tripped him on his feet. He
fell and was stabbed several times on his head, chest and stabbed.
…
.
The accused was in grade 10
when he was arrested. His academic progress was not
satisfactory and his involvement in extra-mural
activity at school
was to play soccer in primary school. He has never worked
before and relies on his family members for
a living.
The family is living in a
low-socio economic area which is characterized with high rate of
unemployment, drug abuse, criminal activities
and gang violence.
The concerned is described
as an intelligent, good, hard working person who does household
chores like cleaning and cooking.
His mother reported that she
has never received any complaints from the community about his
involvement in criminal activities.
It was reported that the
accused belongs to the Vura gang. Teachers regard the concerned
as the ring leader at school.
Gangsterism is rife in his area
and he was recruited to join the gang members for protection.
The accused and his
co-accused brutal murdered the victim and he is regarded as the sole
instigator. He admitted guilt for
the offence of murder he
committed. The undersigned is of the opinion that a strict
sentence should be imposed due to the
nature of the offence and the
harm he did to the victim.
[22]
The magistrate was incorrect in concluding that
the accused had agreed to the hearsay evidence in contradiction of
the version of
events given in their plea statements being admitted
against them. As mentioned, he appears to have formed his view
under
the impression that the probation officers’ reports had
been obtained and introduced at the instance of the defence
attorney.
That was not the case. The magistrate should
have been astute to the statutory requirement that the court obtain a
probation
officer’s report before imposing sentence. He
should also have noted that the reports predated the plea statements
and that it was most unlikely in the circumstances that the accused
were agreeing to a different and adverse hearsay version of
the
incident being accepted as evidence against them. On the
contrary, it was evident from the defence attorney’s address
in
mitigation, during the course of which the attorney submitted that
‘one would be inclined to say that it [the stabbing
incident]
is bordering on the accused before the court trying to defend
themselves’, that it was advanced on the basis of
the facts put
up in the plea statements, and at odds with the hearsay version
described in the report of Mr. Cefa.
[23]
Furthermore, the hearsay descriptions of the facts
in the probation officers’ reports did not coincide in all
respects.
There was no basis on the record for the magistrate
to accept the most damning version of the facts put up against the
accused.
The facts given in the plea statement did not justify
the description of the stabbing of the deceased as ‘cold-blooded’
murder. The magistrate should have raised the issue of the
conflict between the probation officer reports and the facts admitted
by the accused if he was considering preferring either of the
versions in the reports. The prosecutor was certainly not at
liberty to lead evidence in aggravation in contradiction of the facts
that had been accepted for plea purposes; see e.g. S v Moorcroft
1994 (1) SACR 317
(T) at 320g, S v Nel
2007 (2) SACR 481
(SCA) at para 20 and S v Mnisi
2009 (2) SACR 227
(SCA) at
para 33 (p. 238f). The magistrate did not ask the accused’s
legal representative whether the accused were
willing to admit the
adverse versions of the facts in the probation officer’s
reports. Moreover, nothing in what the
defence attorney said in
his address in mitigation of sentence justified the magistrate
inferring that there was agreement that
the hearsay evidence adverse
to the accused and inconsistent with their plea statements might be
admitted against them. There
was thus no basis for the
magistrate’s purported reliance on
s 3(1)(a)
of the Law of
Evidence Amendment Act.
[24]
The magistrate’s reliance on the dicta
uttered by Majiedt AJA (Griesel AJA concurring) in para 33 of
the minority judgment
in S v RO was misplaced. The learned
acting judge of appeal expressly limited his remarks concerning the
admissibility of
hearsay evidence in sentencing reports to ‘facts
unequivocally
admitted
by a party’ (my underlining). He also stated, citing S v
Olivier at para 7 and the cases referred to there,
that ‘material
factual averments ought generally to be proved on oath during the
sentencing stage’. (The probation
officer involved in S v
RO in fact gave oral evidence at the trial, and had not been
cross-examined by the defence.) It should
be evident from what
I have said earlier that in the face of the defence attorney’s
submission in mitigation it cannot be
said that there was any, even
less an ‘unequivocal’, admission of the hearsay facts
adopted by the magistrate for his
sentence judgment in the current
case. The judgment in S v Olivier, also relied upon by the
magistrate in his response to
the review query, is distinguishable.
That judgment went to the duty of prosecutors not to allow ex parte
factual submissions
by the defence to go in unchallenged when they
were at variance with the information in the police docket.
[25]
It has been noted many times that sentencing is a
vitally important part of a criminal trial; and yet one that is often
dealt with
superficially and with too little care by both judicial
officers and legal representatives for the prosecution and the
accused.
The current matter exemplifies a lack of proper
attention to the issue of determining an appropriate punishment
within the applicable
constitutional and statutory framework.
None of the legal actors involved in the trial of the accused applied
themselves,
to the extent that the circumstances of the case
required, in looking into the circumstances of the accused or the
context in which
the crime was committed. Evidence should have
been elicited directly from the parents of the accused and from their
headmaster
or teachers. The probation officers should have been
called to give oral evidence, especially in the context of the
failure
of one of them to even acknowledge the existence of the
sentencing option provided in terms of
s 76
of the
Child Justice
Act, and
the unmotivated indication by the other that such a sentence
should not be considered on account of the nature of the
offence.
[13]
[26]
The fact that the accused were legally represented
did not excuse the magistrate from calling for such evidence as was
necessary
to enable him to exercise a proper judicial sentencing
discretion (see S v Van de Venter
2011 (1) SACR 238
(SCA) at para 16
and the other authority cited there). The indications are that
both accused had progressed quite far
in their education and were
from supportive family backgrounds. The probation officers’
reports identify aspects in
respect of each of the accused that
suggest that they are amenable to reform and rehabilitation.
There are also indications
that the school environment in which the
incident occurred was dysfunctional and might have affected the
accused’s personal
and social development adversely. The
matter cries out for an investigation into whether the accused would
benefit from a
rehabilitative regime during compulsory residence at a
youth care centre, rather than being incarcerated in prison for a
lengthy
period, which experience tells is all too frequently like
admission to a university of crime. Attention is directed in
this
connection, in particular, to
s 76(3)
, which provides that,
if appropriate, such sentence can be coupled with a sentence of
imprisonment to be served after the offender
attains the age of 21.
This is subject to the power of the child justice court to consider
later, after consideration of
a report from the head of the child
care centre as provided in terms of
s 76(3)(b)
of the
Child Justice
Act, whether
the prison sentence should actually be served or not.
[27]
I consider that it would not be fair to the
accused if the reconsideration of an appropriate sentence were to be
dealt with by the
same magistrate. In my view the accused could
reasonably assume that any reconsideration of their sentences would
be tainted
by the trial magistrate’s demonstrated readiness to
accept the most adverse version of the facts based on the hearsay
versions
in the probation officers’ reports.
Section
304(2)(c)(v)
of the
Criminal Procedure Act empowers
this court to
remit the matter to be dealt with in such manner as it may think
fit. In my judgment this includes the power,
if the interests
of justice so require in a given case, to direct that the sentence
proceedings commence afresh before a different
magistrate.
[14]
[28]
The following order is therefore made in terms of
s 304(2)(c)
of the
Criminal Procedure Act:
1.
The
sentences of ten years’ imprisonment imposed on each of the
accused are set aside.
2.
The
matter is remitted to the trial court for the
urgent
consideration of sentence afresh before a
different magistrate, with due regard to the guidance furnished in
this judgment and after
hearing the oral evidence of the probation
officers and any other witnesses such as the parents or teachers of
the accused as he
may consider fit.
3.
After
sentence has been imposed afresh, the matter is to be resubmitted on
review in terms of
s 85
of the
Child Justice Act 75 of 2008
.
A.G.
BINNS-WARD
Judge of the
High Court
BOZALEK J:
I agree.
L.J. BOZALEK
Judge of the
High Court
[1]
Section 28 of the Constitution is the provision in the
Bill of Rights that provides for the rights of children.
Section
28(3) defines ‘child’ for the purpose of the
provision as ‘a person under the age of 18 years’.
[2]
In
Centre for Child Law v
Minister for Justice and Constitutional Development and Others
2009 (2) SACR 477
(CC) ;
2009 (6) SA 632
(CC) ;
2009
(11) BCLR 1105
(CC) at para 25, it was observed that the wording of
s 28 ‘draws on and reflects’ The Convention on the
Rights of
the Child, which was adopted by the United Nations General
Assembly on 20 November 1989 and ratified by South Africa on 16 June
1995
[3]
Note 2, above.
[4]
Centre for Child Law
supra,
at para 29.
[5]
Mpofu
at para 61, n. 37.
[6]
Section 4(1) provides: ‘
Subject
to subsection (2), this Act applies to any person in the Republic
who is alleged to have committed an offence and-
(a) was under the age of 10 years at the time of
the commission of the alleged offence; or
(b) was 10 years or older but under
the age of 18 years when he or she was-
(i) handed a written notice in terms of section
18 or 22;
(ii) served with a summons in terms of section
19; or
(iii) arrested in terms of section 20,
for that offence
’
.
[7]
Roper, Superintendent, Potosi
Correctional Center v Simmons
[2005] USSC 2017
;
543
U.S. 551
(2005) at 569.
[8]
R v B (D)
2008
SCC 25
at para 41.
[9]
See generally
Centre for Child
Law
supra, at para 24-38.
[10]
Note 2
[11]
Centre for Child Law
supra,
at para 14 (per Cameron J).
[12]
In para [2].
[13]
The probation officer who referred to
s 76
of the
Child Justice Act in
his report, but discounted it as a viable
sentencing option because of the nature of the offence (murder)
appears to have misunderstood
the ambit of the provision. He
appears, like the magistrate, to have failed to have regard to
s 76(3)
, with its express reference to the offences referred to
in Schedule 3 to the Act, which include murder.
[14]
This course was adopted on review by the High Court (Van Rensburg
and Eksteen JJ) in
S v Yelani
1986 (3) SA 802
(E)
and
S v Roberts
1999 (4) SA 915
(SCA). In
Roberts
,
the Supreme Court of Appeal subsequently altered the order made by
the High Court (Van der Merwe and Schwartzmann JJ) by setting
aside
the conviction, but gave no indication that the High Court’s
order directing that sentence proceedings occur afresh
before a
different magistrate had been outside the court’s power.