S v Dial (ECJ 2004/021) [2004] ZAECHC 34; 2006 (1) SACR 395 (E) (21 September 2004)

11

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ NO : 021/2004

PARTIES: THE

STATE

and

MZUKISI DIAL

RERENCE NUMBERS -

Registrar: 20040861

DATE HEARD: N/A

DATE DELIVERED: 21 September 2004

JUDGE(S): Pickering and Plasket JJ

CASE INFORMATION -

Nature of proceedings : Criminal Review

Topic: Ascertainment of the age of an accused

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO:20040861

DATE DELIVERED: 21/9/04

In the matter between:

THE STATE

__________________JUDGMENT________

PLASKET J:

[1] The accused in this automatic review was convicted of assault with intent to do grievous bodily harm, in the Magistrate’s Court, Aliwal North. He was sentenced to a fine of R1 000.00 or 12 months imprisonment, suspended for four years on condition that he is not convicted of the same offence committed during the period of suspension and in respect of which a sentence other than a suspended sentence (‘an unsuspended sentence’) is imposed.

[2] Grogan AJ queried whether s337 of the Criminal Procedure Act 51 of 1977 was applied correctly when the magistrate estimated that the accused was 19 years old. The magistrate replied to the query by saying that he had been entitled to, and had, made use of the section because evidence had been given that there is no district surgeon in Aliwal North who could have examined the accused and that the accused’s mother would have been of no help, being an unsophisticated person. In these circumstances, he had decided that there was no or insufficient evidence as to the accused’s age, and he had proceeded to make the estimate himself. By looking at the build of the accused, he decided that he was ‘older than 18 years’.

[3] Section 337 of the Act provides as follows:

‘If in any criminal proceedings the age of any person is a relevant fact of which no or insufficient evidence is available at the proceedings, the presiding judge or judicial officer may estimate the age of such person by his appearance or from any information which may be available, and the age so estimated shall be deemed to be the correct age of such person, unless-

(a) it is subsequently proved that the said estimate was incorrect; and

(b) the accused at such proceedings could not lawfully have been convicted of the offence with which he was charged if the correct age had been proved.’

[4] The cases make it clear that s337 is not to be resorted to out of convenience, but rather out of necessity. It is only if all else fails that s337 allows a presiding officer to estimate the age of an accused. This was at the heart of the decision in S v Swato1 in which Smuts J held, in circumstances not altogether dissimilar to those in the present case:

‘While I have sympathy with the magistrate and appreciate that it would be most inconvenient and unsatisfactory to have the district surgeon whiling his time away at court, if this were necessarily to be the result of calling the evidence of the district surgeon in borderline cases, I am not convinced that arrangements cannot be made which will avoid this unfortunate result. After all, this evidence is only required after conviction and it is usually possible to have the accused examined at a time convenient to the district surgeon. His evidence can thereafter be taken at a convenient time. Sec. 383 of Act 56 of 1955, which the magistrate invoked to determine accused's age as 21 years, can only be applied once it has been established that "no or insufficient evidence is available" to prove age; it cannot be invoked where evidence is available but not called, simply by reason of the inconvenience it will cause the district surgeon.’

[5] In this case, I am not convinced that there was, indeed, no or insufficient evidence available concerning the age of the accused. I shall set out some of the evidence to illustrate the point.

[6] First, the magistrate asked the social worker who compiled a pre-sentence report whether she made any enquiries at the offices of the Department of Home Affairs about the age of the accused. She replied that she had not. Later, he asked her why she had not sought the accused’s birth certificate at those offices. She replied that the accused ‘mentioned to me that he does not have a birth certificate so it was useless to phone Home Affairs and ask for the correct date, because he mentioned that he doesn’t have any [and] that means that he was not registered with Home Affairs’. The accused’s sister gave evidence. She was not able to give admissible evidence of his age but she stated that he did not have a birth certificate or identity document. When she was asked by the prosecutor whether his birth had been registered at the offices of the Department of Home Affairs, she replied: ‘I don’t know, Your Worship, because my mother is somebody who likes to drink liquor, she doesn’t care about those things.’

[7] From this evidence the magistrate concluded in his judgment that ‘[a]ccording to the probation officer, she could not obtain a birth certificate as your birth was not registered’. That is not what the social worker had said. Her evidence was that she did not try to obtain a birth certificate from the Department of Home Affairs because she thought it would be a waste of time to do so because the accused’s did not, himself, have a copy of his birth certificate. It does not follow, necessarily, that the accused’s birth was not registered because he did not have a copy of his birth certificate. She should have made enquiries. This avenue of evidence as to the age of the accused was not pursued, so the magistrate’s invocation of s337 was premature on this account.

[8] The second aspect of concern for me is the evidence that was given to the effect that there is no district surgeon is Aliwal North and that as a result, the accused’s age could not be determined through medical examination. This is what the social worker said when she was asked by the magistrate how the age of 19 years came to be entered on the J15. She stated:

‘I won’t know, I’m not in a position to say its correct or not, Your Worship, I don’t know because that is the age that he gave me and when we said to them they must bring some proof, they will tell you that I don’t have any and the only option we were told to use is the district surgeon which we don’t have in Aliwal North, just to take a child to that particular person to check and confirm the age of the child but its going to drag the process because we don’t have any that is allocated to Aliwal North.’

[9] The magistrate in his judgment on sentence stated, after dealing with the absence of a birth certificate, that ‘[u]nfortunately there is no district surgeon here where the Court can send you so that he can determine your age’ having earlier in the judgment decided that the accused was 19 years old, rather than 17 years old.

[10] Assuming that the magistrate was correct in stating that there is no district surgeon in Aliwal North (an issue I shall deal with below) there were steps that he could have taken to determine the accused’s age on a more scientific basis than the magistrate’s own estimate. The two most obvious would have been to refer the accused to the nearest district surgeon or to the nearest State-run hospital. (It appears that there is a hospital in Aliwal North.) It is not clear from the record why these options were not pursued.

[11] The magistrate’s estimate of the accused’s age appears to be arbitrary. Perhaps this is an inevitable result of a resort to s337: judicial officers do not have the necessary expertise to make such determinations. This is precisely why s337 is a measure of last resort. In his judgment, the magistrate simply stated that he was of the opinion that the accused was older than 17 years of age ‘and that you are more likely to be 19 years old’.

[12] I was most concerned to read the evidence of the social worker – evidence upon which the magistrate relied -- that there is no district surgeon for Aliwal North, so I took the matter up with Mr Malherbe Marais SC of the office of the Director of Public Prosecutions. I record my indebtedness to him for his considerable assistance to me. He has provided me with a letter from the Control Prosecutor in the Aliwal North Magistrate’s Court that states that, while it is true that there is no permanently appointed district surgeon in Aliwal North, four doctors in private practice ‘are placed on a roster to ensure that a “DS” is available 24 hours, seven days a week’. While this may not be ideal (as the Control Prosecutor states further that ‘[w]e do experience difficulty from time to time to have access to the doctors because of their other commitments to their private patients’), the evidence of the social worker appears to have been incorrect. The magistrate, if he had been properly informed by the social worker, ought to have referred the accused to whichever of the four doctors in private practice was on duty as part-time district surgeon at the time.

[13] However much one may sympathise with magistrates who are required to administer justice of a high standard often in trying and less than perfect conditions, the Act is clear, as the cases have emphasised, and the consequences of an estimate of age may be significant. In this case, the determination of the accused’s age as 19 years of age, rather than 17 years of age, meant that he was denied the special, and additional, protection of s28 of the Constitution, the set of fundamental children’s rights: s28(3) provides that a child for purposes of the section means ‘a person under the age of 18 years’. (This had no practical effect in this case, as I proceed to set out.)

[14] It appears to me that the magistrate was alive to these difficulties and tried his best to do justice to the accused, within the limitations that I have outlined. He had proper regard to the pre-sentencing report of the social worker and he considered various sentencing options and the practical difficulties that stood in the way of at least one: he stated that ‘correctional service supervision and house arrest will also not be appropriate as I have not a person and correctional services will also not be able to supervise you’. He obviously went out of his way to find a sentence of a non-custodial nature, principally because of the youth of the accused. He made it clear to the accused that he was being given a chance ‘to start a better life for yourself’ when he sentenced him to a fine (which the accused could probably never manage to pay) with the alternative of imprisonment, wholly suspended on certain conditions. As to the condition of suspension that the accused not be sentenced during the period of suspension to an ‘unsuspended sentence’, it was held, in S v Pretorius en andere en drie soortgelyke sake2 that the term ‘onopgeskorte gevangenisstraf sonder die keuse van ‘n boete’ was more certain, and ought to have been used in preference to the term ‘direkte gevangenisstraf’. In this matter, the second part of the above formulation does not apply and, in my view, the conditions of suspension are precise enough.

[15] In these circumstances, I consider the magistrate to have done the best he could have in the circumstances, subject to my criticisms that he could have found ways of avoiding having to estimate the age of the accused in terms of s337 of the Act. There is no indication on the record that he would have imposed a different sentence on the accused if he had decided that the accused was, in fact, 17 years old, so no injustice flowed from his determination of the accused’s age, even if he did misdirect himself in that regard.

[16] In an ideal world, he would not have imposed the sentence that he did because he would have been able to resort to a more innovative and reformative sentence, such as correctional supervision.3 The sentence the magistrate imposed was, however, grounded in the ideas, expressed by Erasmus J in S v Z en vier ander sake4 that a trial court required to sentence a youthful offender ‘sal met sorg en verbeelding sy wye diskresie gebruik ten einde ‘n vonnis te bepaal wat paslik is vir die beskuldigde gesien sy eie besondere omstandighede en die misdryf waaraan hy skuldig bevind is’ and that it ‘sal, as uitgangsbeginsel, waar moontlik straf in die vorm van gevangenissetting vermy’. The sentence that the magistrate imposed could be subjected to a number of criticisms in an ideal world but it achieved, in my view, a substantively just result.

[17] I wish to sound a word of warning about any future reliance on this judgment by other courts. It is not to be read as license for the imposition of inappropriate sentences in the name of expediency. In the peculiar circumstances of this case I have taken a perhaps robust approach to the magistrate’s attempts to do justice in the face of practical systemic problems. That may be a practical way of dealing with an individualised case but it is far from ideal. The systemic problems need to be addressed by the relevant authorities. I intend making an order to ensure that the problem concerning the district surgeon and the problem that the magistrate identified concerning inadequacies in correctional supervision are brought to their attention.

[18] The fact that there is no permanently appointed district surgeon for Aliwal North is far from ideal and may have an adverse impact on the functioning of the criminal justice system in that district (and in districts in which the same situation pertains). The problem may even extend beyond the criminal justice system and its functioning because district surgeons play a pivotal and important role in the provision of a broad range of public health and welfare services.

[19] As I understand it, the appointment of district surgeons is a function that vests in government in the provincial sphere. It lies in the hands of the Eastern Cape Provincial Government to rectify the problem. I stress that, this being an automatic review of criminal proceedings, I have not heard evidence presented on behalf of, or argument from, the Provincial Government, do not know what its policy concerning district surgeons is, what considerations inform it or what impediments, if any, stand in the way of its implementation, and I also do not know what, if anything, is being done or is being planned to rectify the problem. For that reason, I have no intention of ordering the Provincial Government to do anything but will simply ensure that the problem is brought to its attention. I shall make an order directing the Registrar to transmit a copy of this judgment to the office of the Premier of the province, as the person in whom executive authority in the province is vested,5 so that she may take whatever steps she considers to be appropriate.

[20] The second systemic problem that emerges from this matter is that the Department of Correctional Services is, according to the magistrate, unable to supervise those offenders who have been sentenced to correctional supervision (including house arrest). If that is indeed so, it constitutes a serious failure in the criminal justice system because it removes from use a sentencing option that Parliament has created and sanctioned: administrative failure cannot be allowed to have the de facto effect of suspending the operation of a provision of an Act of our democratic Parliament;6 and when that failure affects only some districts and not others, the failure also raises issues of equality and the equal protection of the law, undermining a founding value of the Constitution.7 For this reason the Registrar will also be ordered to transmit a copy of this judgment to the Provincial Commissioner of Correctional Services for the Eastern Cape Province, being the ‘correctional official designated by the Commissioner to manage and control the activities of the Department’ in this province.8

[21] As a result of the aforegoing, the following order is made:

The conviction and sentence are confirmed.

The Registrar is directed to forward a copy of this judgment to the Premier of the Eastern Cape Provincial Government and to the Provincial Commissioner of Correctional Services, Eastern Cape Province.

______

C. PLASKET

JUDGE OF THE HIGH COURT

I agree.

_______

J.D. PICKERING

1 1977 (3) SA 992 (O), 993A-C.

2 1990 (2) SACR 99 (E), 100h-i.

3 See S v R 1993 (1) SA 476 (A).

4 1999 (1) SACR 427 (E), 441d-e.

5 Constitution, s125.

6 See, in respect of the similar problem of administrative failures preventing the implementation of s290 of the Criminal Procedure Act, S v Z and 23 similar cases 2004 (1) SACR 400 (E). In S v Z and 23 similar cases (2) ECD 19 February 2004 (case nos. CA40/03; 207/03) unreported, para 3, I stated: ‘The effect of this is that the will of the legislature is in danger of being undermined: there are disturbing indications that referral to a reform school as a sentencing option may be widely regarded, because of the difficulties in its implementation, as a dead letter. In a system such as ours, which is premised on the separation of powers, it is not permissible for the executive branch of government (which includes the administration), either through act or through omission, to prevent the enactments of the legislative branch of government being put into operation and being implemented.’

7 Constitution, s1(a). See too s7(1) which provides: ‘This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.’

8 Correctional Services Act 111 of 1998, s1.