[Reportable]

Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number: A390/2011
In the Special Review of:

and

1) The Faculty of Law, University of the Western Cape: Children Right’s project of the Community Law Centre	1st Amicus
2) Centre for Child Law		2nd Amicus
3) Minister of Justice and Constitutional Development
JUDGMENT DELIVERED ON 23 OCTOBER 2012

Background:
[1] The accused in this matter, a 15 year old teenager, was convicted in the Child Justice Court held at the Magistrates Court in Cape Town of possession of one “stop” of dagga in contravention of Section 4(b) of Act 140 of 1992. He was legally represented and assisted by his mother during the proceedings.
[2] In terms of Section 78(1) of the Child Justice Act 75 of 2008 (“CJA”) read with Section 297 (1)(a)(i) of the Criminal Procedural Act 51 of 1977 (“CPA”), the passing of sentence was postponed for a period of one (1) year on the following conditions: (i) the accused submits himself to the control of a probation officer; and (ii) in terms of Section 297 (1)(a)(i) of the CPA the accused is ordered to appear before the court, if called upon to do so, before the expiration of the period of postponement.
This specific matter was referred by the Cape Town Magistrate's Court to this court by means of a Special Review.
[3] The Magistrate of Cape Town in his submission raises several important questions about the reviewability of matters under the CJA and specifically, whether this matter is subject to automatic review. Some of the important questions raised were the following:
(a) Are all matters in which children under the age of 16 years at the time of the commission of the offence are sentenced to any sentence subject to review, notwithstanding that the accused was legally represented?
(b) In cases where children of 16 years or older but under the age of 18 years at the time of the commission of the offence, are sentenced to any form of imprisonment that is not wholly suspended or where they are sentenced to an order of compulsory residence in a child or Youth Care sentence, and irrespective of the duration of the sentenced, are such matters subject to review notwithstanding that the accused was legally represented?
(c) Are the provisions of section 85 of the CJA applicable to children convicted and sentenced in the Regional Court?
(d) What is the effect of section 85 of the CJA on a suspended sentence imposed on a child who was 16 years or older but under 18 years at the time of the commission of the offence where such sentence would otherwise be reviewable in terms of the CPA?
(e) Is a fine imposed on a child subject to review?
[4] A further question that was raised during argument before us is whether a suspended sentence of imprisonment, which when put into operation, would result in the imposition of a sentence of imprisonment not wholly suspended, would be subject to review in terms of section 85.

[7] This Court requested Counsel to address it on a number of questions in order to fully understand the implications of section 85 of the CJA and how it should be interpreted in accordance with the provisions of Section 302 of the CPA. We are indebted to counsel for their useful assistance to the court in this regard.

[8] The questions posed in this case, revolve around one single issue, namely, under what circumstances the CPA, as opposed to the CJA, would be applicable in cases involving children who are in conflict with the law and who are accused of committing offences.

Applicable Legal Provisions

[10] In order to achieve this purpose, the CJA repealed any law to the extent where such law is inconsistent with its terms.

[11] Section 99(1) of the CJA provides that all laws specified in Schedule 4 of the CJA are repealed or amended to the extent set out in the third column of Schedule 4.

[15] Elsewhere in the CJA, with specific relevance to this case, Chapter 9 (and in particular sec 63(1 )(b)) provides that the Child Justice Court must apply the relevant provisions of the CPA relating to the plea and trial of accused persons as extended or amended by the provisions set out in Chapter 9 and 10. It is further stated (sec 63(2)) that where a child and adult are charged together in the same trial in respect of the same facts in terms of Section 155, 156 and 157 of the CPA, the court must apply the provisions of the CJA in respect of the child and the provisions of the CPA in respect of the adult accused.

(a) attend all the court proceedings in respect of the case unless excused by the court;
(b) address the court on any matter requested by the court;
(c) have access to the documents and statements in the docket to the extent permissible in criminal proceedings; and
(d) ensure that the best interests of the child are upheld at all times.
(2) A legal representative appointed to assist the court may—
(a) address the court on the merits and procedural aspects of the case;
(b) address the court on the sentence to be imposed;
(c) cross-examine a witness in relation to the evidence adduced by the witness;
(d) discredit the evidence of a witness;
(e) raise an objection to a question posed to the child or state witness;
(f) question the admissibility of evidence led by the state;
(g) present evidence that will be in the best interests of a child; or
(h) assist in any other manner as the court may request

[17] The practical effect of Chapter 11 is that a child who appears before a Child Justice Court is effectively never without some form of legal representation. Even if the child waives the right to legal representation, a legal representative will be appointed, whose role would be to proactively assist the court in the manner as set out in regulation 48 in order to ensure that a child accused has a fair trial.
[18] An important deviation from the provisions of the CPA is contained in Chapter 10, which deals with the sentencing of a child in terms of the CJA in terms of section 68. A Child Justice Court is obliged to impose a sentence in accordance with Chapter 10. Only where the CJA expressly empowers a court to do so, may a child be sentenced in accordance with the provisions of the CPA.

[19] It is clear from the above provisions that the CJA creates a separate and distinct system of criminal justice for children, the legal mechanisms and processes of which may indeed be different from those set out in the CPA. Against this background it would be prudent to discuss the reviewability of cases where a juvenile has been convicted and sentenced in terms of the CJA.
Reviewability of matters in terms of the CJA and the CPA

[20] Section 85 of the CJA deals with the review of criminal matters involving a child accused.

Section 85: Automatic Review in certain cases

(a) under the age of 16 years; or

the sentence is subject to review in terms of section 304 of the Criminal Procedure Act by a judge of the High Court having jurisdiction, irrespective of the duration of the sentence
[21] Section 302 of the CPA deals generally with reviews in cases of criminal proceedings in Magistrate’s Courts.

(i) which, in the case of imprisonment (including detention in a child and youth care centre providing a programme contemplated in section 191 (2) (j) of the Children’s Act, 2005 (Act No. 32 of 2005)), exceeds a period of three months, if imposed by a judicial officer who has not held the substantive rank of magistrate or higher for a period of seven years, or which exceeds a period of six months, if imposed by a judicial officer who has held the substantive rank of magistrate or higher for a period of seven years or longer; [Sub para(i) substituted by S13(a) of Act No 26 of 1987 and para (p) of the 4th schedule of Act 75 of 2008]
(ii) which, in the case of a fine, exceeds the amount determined by the Minister from time to time by notice in the Gazette for the respective judicial officers referred to in subparagraph (I),
(iii) ...
shall be subject in the ordinary course to review by a judge of the provincial or local division having jurisdiction.

(a) each sentence on a separate charge shall be regarded as a separate sentence, and the fact that the aggregate of sentences imposed on an accused in respect of more than one charge in the same proceedings exceeds the periods or amounts referred to in that subsection, shall not render those sentences subject to review in the ordinary course.
.......(b)
(3) The provisions of subsection (1) shall only apply—
(a) with reference to a sentence which is imposed in respect of an accused who was not assisted by a legal adviser. ”
[22] Section 99 of the CJA provides that the laws specified in Schedule 4 to the CJA are repealed or amended to the extent set out in column 3 of the Schedule. Schedule 4, item (p) amends section 302(1 )(a) of the CPA by substituting paragraph (i).

[24] The question that remains to be answered is the following. To what extent does section 85 of the Child Justice Act provide children in conflict with the law with the right of automatic review in situations where section 302 of the Criminal Procedure Act does not provide such protection? More specifically, would the CJA provide protection in the following instances:

(a) Where a child has enjoyed legal representation?
(b) Where the criminal matter involving the child was heard in a Regional Court?
(c) Where the duration of the sentence handed down, firstly, is less than three months, (if imposed by a judicial officer who has not held the substantive rank of magistrate or higher for a period of seven years), and secondly, if the duration of the sentence is less than six months, if the sentence is imposed by a judicial officer who has held the substantive rank of magistrate or higher for a period of seven years or longer?

[26] The Court concluded:

[31] The court concluded at paragraph [38] of the judgment that section 85(1) of the CJA should be interpreted so as to provide for automatic review in respect of all children who are sentenced to any form of imprisonment not wholly suspended, or any sentence of compulsory residence in a Child and Youth Care Centre. This would include children who are sentenced in the Regional Court.
Analysis

[23] In De Lange v Smuts NO and Others, Ackermann J stated that the principle of reading in conformity does

Accordingly, judicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section
[33] Where there is a conflict between the CJA and CPA, the application of the CJA should be preferred above the CPA. I say so for the following reasons:
[33.1] As a starting point it would seem that children who are in conflict with the law and are accused of having committed an offence, should be dealt with in terms of the CJA;

[33.2] Where the CJA expressly states so, the CPA is applicable;

[33.3] Where the CJA does not expressly state that the CPA would be applicable, and makes provision for a specific procedure, the CJA enjoys preference;

[33.4] Where the CJA and the CPA contain provisions dealing with a similar issue, the provision referred to in the CJA is applicable if there is a conflict between the two provisions.
[34] By applying these principles, content will be given to the purpose of an Act that seeks to establish a separate criminal justice system for children. This is evident on a reading of the whole CJA.
[35] It is clear that the CJA must take precedence over the CPA to the extent that the former specifically provides for different procedures in respect of children. This must be borne in mind when evaluating the interaction between section 85 of the CJA and section 302 of the CPA.

[42] As I have previously mentioned, the effect of such provisions and regulations in relation thereto is that no child appearing in a Child Justice Court will ever be without legal representation or legal assistance. The question then is why the legislature, knowing of the peremptory provisions of section 82 and 83, would still provide for the automatic review of cases in terms of section 85 if there was no need to do so, particularly since all children appearing in a Child Justice Court would be legally represented or legally assisted? This is therefore a clear indication that only in those instances mentioned in terms of section 85(1) and 85(2) that section 302(3) of the CPA would not be applicable.

[44] Accordingly, in the case of any suspended sentence (regardless of the length thereof) imposed on children of 16 years or older but under 18 years, such a child would not have an automatic right of review under section 85 of the CJA.

[46] Accordingly all sentences not falling within the ambit of section 85 are not subject to automatic review because of the fact that in all cases where a child appears in a Child Justice Court such child would either be legally represented or assisted in the manner set out in regulation 48 of the Regulations.

[47] It is trite that when a suspended sentence is put into operation after it is found that the conditions thereof have been breached, such an order enforcing the suspended sentenced is not subject to automatic review. No appeal lies against such enforcement either.

"No appeal against or automatic review of putting into operation—The view has long been held that the putting into operation of a suspended sentence is not automatically reviewable (S v Helm 1980 (3) SA 605 (T) at 605H; Gasa v Regional Magistrate for the Regional Division of Natal 1979 (4) SA 729 (N) at 732E-F)”.
[48] The question which is unclear is whether, in respect of children of 16 years or older but under 18 years, a suspended sentence, after it has been put into operation after a breach of the conditions thereof can be considered a sentence in the form of imprisonment that is not wholly suspended for the purposes of automatic review in terms of section 85(1 )(b) of the CJA.
►
[49] It is clear that there is a difference between the actual imposition of a sentence of imprisonment and the putting into operation of a sentence that was suspended in terms of section 297(9)(a)(ii) of the CPA. The effect, however, of imposing a sentence of actual imprisonment and the putting into operation of a sentence that was suspended would be the same, i.e. the imposition of a term of imprisonment that is not wholly suspended.

[51] The very essence of the protection afforded by section 85(1 )(b) is to subject any sentence of imprisonment not wholly suspended to automatic review by a Judge of the High Court. It would therefore be absurd and not in keeping with the spirit of the CJA and the provisions of section 28 of the Constitution to exclude such a sentence from automatic review when all other sentences of imprisonment not wholly suspended are subject to review.
Reviewability of Fines in terms of the CJA

[53] I consider that the provisions of section 79 of the CJA would be applicable where a child is unable to pay a fine. In terms of section 79:

2)	
[54] Where a sentence of a fine has been imposed on a child who was under the age of 16 years when the offence was committed, such a case would be subject to automatic review in terms of section 85(1 )(a) of the CJA because, as I have demonstrated above, all cases involving children under the age of 16 years, irrespective of the sentence or order imposed, are subject to automatic review in terms of section 85(1 )(a) of the CJA.
[55] In the case of a child who is 16 years or older but under the age of 18 years at the time of the commission of the offence and in respect of whom a sentence of a fine has been imposed in terms of section 74 of the CJA, such sentence is not subject to automatic review, because it cannot be enforced with a term of imprisonment which is not wholly suspended. Furthermore, the mechanism created in terms of section 79 of the CJA does not sanction imprisonment as the alternative where a child is in default of the payment of a fine.

Reviewability of Regional Court Cases

[61] Furthermore, on the basis of logic and pure common sense, it could not have been the intention of the legislature to deny children in conflict with law the right to automatic review in respect of sentences imposed by regional courts. This is in light of the fact that in regional courts generally more serious offences are heard, and there is a higher likelihood that a sentence of imprisonment, not wholly suspended, would be imposed.
[62] I therefore conclude that the provisions of section 85 of the CJA are applicable to children convicted in the Regional Court.
Conclusion
[63] Concerns were raised as to the possible harmful impact on the criminal justice system should it be held that section 85 (1) of the Child Justice Act also applies to sentences imposed on children by Regional Courts, and sentences imposed on children who are legally represented. The fear is that High Courts will be flooded with reviews, resulting in unmanageable workloads for judges and other court staff. As part of their submission before us, the Ministry of Justice and Constitutional Development included statistics of cases finalized by the Magistrate’s Courts in terms of the CJA in this division. I am not convinced that the figures indicate that such a fear is warranted.
[64] Even if it were indeed the case that the workload of judges would be increased, it is my view that the change would be minimal, and in any case this fact alone cannot serve as a legally and constitutionally permissible reason not to have these matters considered on review. This fact was conceded by counsel who appeared on behalf of the Minister.
For the sake of clarity for all concerned, I summarize my conclusions as follows:
1) All cases are subject to automatic review in terms of the provisions of section 85 of the CJA where a child was:
1.1. under the age of 16 years at the time of his or her commission of the offence, irrespective of the sentence;
1.2. 16 years and older but under the age of 18 years and has been sentenced to any form of imprisonment that was not wholly suspended or any sentence of compulsory residence in a Child and Youth Care Centre providing a programme for in section 191 (2)(j) of the Children’s Act;
1.3. sentenced to a period of imprisonment after a suspended sentence had been put into operation in terms of section 297(9)(a)(ii) of the CPA;
1.4. This would be irrespective;
1.4.1. of the duration of the sentence and the length of time a judicial officer has held the substantive rank of Magistrate; or

1.4.3. if the child had been sentenced by a Regional Court.

2) The provisions of section 302 of the CPA are not applicable to any child that was under the age of 16 years when he or she committed the offence;
3) The provisions of section 85(1 )(b) of the CJA are not applicable to a child who at the time when the offence was committed was 16 years, but not older than 18 years, and on whom a sentence other than that contemplated in section 85(1 )(b) is imposed, which includes a fine and a suspended sentence.
[65] After having concluded that all matters involving children under the age of 16 years would be subject to review irrespective of the sentence imposed and the fact that they were legally represented, this matter that serves before us had been properly submitted for review to this Court.

After having considered the merits of this case, I conclude that the proceedings in the Magistrate’s Court were in accordance with justice.
HENNEY, J

Judge of the High Court

I agree and it is so ordered.

DESAI, J
Judge of the High Court

I agree

GAMBLE, J
Judge of the High Court