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IN THE HIGH COURT OF SOUTH AFRICA

(REPUBLIC OF SOUTH AFRICA)

PRETORIA

Magistrate: Witbank

Review Case no: SH162/2013

Magistrate’s Serial no: 25/2014

High Court Ref no.: 573/14

THE STATE

VS

LOUISA BOUWER & TIAAN DOIG

REVIEW JUDGMENT

MSIMEKI, J

INTRODUCTION

[1] Accused 1 and accused 2 are mother and son respectively. On 5 June 2014 the two appeared in the Witbank Regional Court, charged with arson. Represented, they both pleaded guilty to the charge. They were both convicted on the basis of the statements they made in terms of section 112 (2) of the Criminal Procedure Act, 51 of 1977. (the “CPA”). Accused 1 in terms of section 276 (1) (h) of the CPA was sentenced to three years correctional supervision. The passing of sentence in respect of accused 2 was unconditionally postponed for a period of 3 years in terms of section 78 (1) of the Child Justice Act (CJA), 75 OF 2008, read with section 297 (1) of the CPA.

The regional magistrate, unsure if accused 2’s sentence was reviewable in terms of section 85 of the CJA, referred the matter for review by this court.

BRIEF FACTS

[2] The convictions of the two accused were a sequel to the setting on fire of a guest house of Mr Langenhoven at Kendal on 29 March 2011. Substantial damage amounting to approximately a million rand was caused to the guest house.

THE ISSUES

[3] The issue to be determined is whether accused 2’s sentence in terms of section 85 of the CJA, regard being had to section 302 (3) (a) of the CPA, is reviewable.

[4] The matter came before me because the regional magistrate decided to err on the side of caution. The regional magistrate remarked and said:

“In terme van die bepalings van Artikel 85 van die Child Justice Act is hierdie saak ook automaties anderworpe aan hersiening om dat u 14 jaar oud was ten tye van die pleging van die daad. Dit is debateerbaar of ek u gevonnis het vandag, maar ek gaan maar uit oormaat van versigtigheid dit wil opstuur. As die Hoogregshof voel dit is verkeerd kan hulle vir my so laat weet.”

[5] Upon receipt of the matter I immediately referred the matter to the Director of Public Prosecutions, Gauteng Division, Pretoria for their valuable comments. I received such comments and thank both the Senior State Advocate G J C Maritz and the Deputy Director of Public Prosecution H M Meitjes Sc therefor.

[6] Key to the solution of the problems are the following sections of the following Acts:

1. Section 85 of the CJA.

2. Section 302 (3) (a) of the CPA.

Section 85 of the CJA reads:

“(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 )..........

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.

(2) The provisions of subsection 1 do not apply if an appeal has been noted in terms of section 84.”(my emphasis)

[7] Section 302 (1) (a) of the CPA provides:

“(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) (i) of the Children’s Act, 2005 (Act 38 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 7 years, or which exceeds a period of six months, if imposed by a judicial officer who has held substantive rank of magistrate or higher for a period of seven years or longer;

(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 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.”

In terms of section 302 (b) (i) and (ii) the provisions of paragraph (a) shall not apply where an accused has noted an appeal against a conviction or sentence and has not abandoned the appeal or where an accused has duly noted an appeal against a conviction or sentence after being granted leave to appeal in terms of section 309B or 309 C and has not abandoned the appeal. See section 309 (1) (a) and section 309 (2) of the CPA.

[8] A conspectus of section 85 of the CJA and section 302 (3) (a) of the CPA seems to reveal that the two sections are at variance with each other. This is so because the reading of section 302 (3) (a) envices that automatic review is not required where an accused is legally represented at the time he or she is sentenced whereas the accused, under the age of 16 years, in terms of section 85 of the CJA has automatic right of review of his sentence. This then would make section 304 (4) dealing with “special reviews” not applicable.

[9] Our various divisions of the High Court have interpreted the two sections and decided that the sections have to be interpreted in a way that will favour the child. See S v L M 2013 (1) SACR 188 (WCC) at [64]; S v F M 2013 (1) SACR 51 (GNP) and S v Sekoere 2013 (2) SACR 426 (FB) at [28.2] and [30].

[10] Du Toit, Commentary on the Criminal Procedure Act at 30 - 9 are in favour of an interpretation that favours the constitutional protection of children and the objects of the CJA until the Supreme Court of Appeal or the Constitutional Court provides clarity on the ambit of section 85 of the CJA.

[11] For now, the answer appears to be that the sentence, where a child under the age of 16 years is involved, is reviewable irrespective: of the duration of the sentence; the length of the time a judicial officer has held the substantive rank of magistrate; whether or not the child was legally represented and sentenced by a regional court. Section 302 of the CPA, therefore, does not apply to any child who was under the age of 16 years when he or she committed the offence.

[12] Accused 2 was 14 years old when the offence was committed.

[13] It appears that no appeal has been lodged in this matter. This then makes the matter reviewable.

[14] The regional magistrate was, in my view, correct when he referred the matter for review.

[15] A pre-sentence report, Exhibit “H” was obtained in respect of accused 2 who was found to be a suitable candidate for correctional supervision. The regional court, instead, opted to postpone the passing of the appropriate sentence in the circumstances of accused 2.

[16] Accused 2 was legally represented and his rights were duly protected for the duration of the court proceedings. The regional court, in my view, correctly convicted accused 2 and postponed the passing of his sentence for 3 years.

[17] The senior state advocate and the Deputy Director of Public Prosecutions agree with all of this.

[18] The proceedings, in my view, were in accordance with justice and the conviction and sentence are confirmed.

M.W. MSIMEKI

JUDGE OF THE NORTH GAUTENG

HIGH COURT, PRETORIA

I agree.

And it is so ordered.

N M MAVUNDLA

JUDGE OF THE NORTH GAUTENG

HIGH COURT, PRETORIA

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