S v Fortuin (38/2011) [2011] ZANCHC 28 (11 November 2011)

S v Fortuin (38/2011) [2011] ZANCHC 28 (11 November 2011)

The court held that section 85(1)(a) of the Child Justice Act requires automatic review of all sentences imposed on children under 16 years old at the time of the offence, regardless of the nature or duration of the sentence. The phrase 'irrespective of the duration of the sentence' in section 85(1) applies only to children aged 16 or 17 sentenced to imprisonment not wholly suspended or compulsory residence in a youth centre. The court further found that a postponement of the passing of sentence, where the child is required to reside in a youth centre, constitutes a 'sentence' for purposes of automatic review under section 85(1)(a). The court also determined that the exclusion of...

Citation
[2011] ZANCHC 28
Parties
Applicant: The State; Respondent: Wildene Fortuin
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
11 November 2011
Case Number
38/2011
Procedural Posture
Criminal Review / Automatic Review of Conviction and Sentence
Outcome
Convictions and sentence confirmed.
Judges
C.J. Olivier, C.C. Williams
Legal Topics
Child Justice Act, Automatic Review, Sentencing of Minors, Legal Representation, Postponement of Sentence
Criminal Law Family and Children Child Justice Act Automatic Review Sentencing of Minors Legal Representation Postponement of Sentence

Case Brief

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Parties

The State

Applicant

Wildene Fortuin

Respondent

Procedural Posture

Criminal Review / Automatic Review of Conviction and Sentence

Legal Issues

  1. 1 Whether the postponement of passing of sentence with a condition of compulsory residence in a youth centre constitutes a 'sentence' for automatic review under section 85(1)(a) of the Child Justice Act.
  2. 2 Whether automatic review applies to sentences imposed on children under 16 years old, regardless of sentence type or duration.
  3. 3 Whether automatic review under section 85(1) of the Child Justice Act applies even if the child was legally represented.

Ratio Decidendi

The court held that section 85(1)(a) of the Child Justice Act requires automatic review of all sentences imposed on children under 16 years old at the time of the offence, regardless of the nature or duration of the sentence. The phrase 'irrespective of the duration of the sentence' in section 85(1) applies only to children aged 16 or 17 sentenced to imprisonment not wholly suspended or compulsory residence in a youth centre. The court further found that a postponement of the passing of sentence, where the child is required to reside in a youth centre, constitutes a 'sentence' for purposes of automatic review under section 85(1)(a). The court also determined that the exclusion of...

Court Disposition

Convictions and sentence confirmed.

Orders

  • The convictions and sentence are confirmed.