Rabupape v S (A907/2014) [2014] ZAGPPHC 948; 2015 (2) SACR 497 (GP) (2 December 2014)

Rabupape v S (A907/2014) [2014] ZAGPPHC 948; 2015 (2) SACR 497 (GP) (2 December 2014)

The magistrate erred by ordering diversion for the child accused without the prosecutor's indication that diversion was appropriate, as required by section 52(1)(e) of the Child Justice Act. Furthermore, there was no evidence that the views of the victim's family or the investigating officer were considered, as mandated for Schedule 2 offences. These procedural irregularities constitute a gross irregularity in the proceedings. The High Court has jurisdiction to review and set aside such orders in the interest of justice, even where the accused was legally represented. The diversion order is therefore set aside and replaced with an order referring the minor child to the Child Justice Court...

Citation
[2014] ZAGPPHC 948
Parties
Applicant: Lehlohonolo Rabupape; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 December 2014
Case Number
A907/2014
Procedural Posture
Review Application / Special Review of Magistrate's Order for Diversion Under Child Justice Act
Outcome
The diversion order is set aside and replaced with an order referring the minor child to the Child Justice Court for trial.
Judges
A.M.L. Phatudi, M.W. Msimeki
Legal Topics
Child Justice Act, Diversion of Child Offenders, Culpable Homicide, Review of Magistrates Orders
Criminal Law Family and Children Child Justice Act Diversion of Child Offenders Culpable Homicide Review of Magistrates Orders

Case Brief

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Parties

Lehlohonolo Rabupape

Applicant

The State

Respondent

Procedural Posture

Review Application / Special Review of Magistrate's Order for Diversion Under Child Justice Act

Legal Issues

  1. 1 Whether the magistrate was empowered to refer the child accused for diversion under section 69(1) of the Child Justice Act despite the prosecutor's opposition.
  2. 2 Whether the procedural requirements for diversion, including consultation with the victim's family and police, were met.
  3. 3 Whether the irregularities in the diversion order render the proceedings reviewable and subject to being set aside.

Ratio Decidendi

The magistrate erred by ordering diversion for the child accused without the prosecutor's indication that diversion was appropriate, as required by section 52(1)(e) of the Child Justice Act. Furthermore, there was no evidence that the views of the victim's family or the investigating officer were considered, as mandated for Schedule 2 offences. These procedural irregularities constitute a gross irregularity in the proceedings. The High Court has jurisdiction to review and set aside such orders in the interest of justice, even where the accused was legally represented. The diversion order is therefore set aside and replaced with an order referring the minor child to the Child Justice Court...

Court Disposition

The diversion order is set aside and replaced with an order referring the minor child to the Child Justice Court for trial.

Orders

  • The order made by the magistrate in terms of section 69(1) of Act 75 of 2008 is set aside.
  • The minor child is referred to the Child Justice Court for trial.