S v Mbane and Others (CA&R 26/2012) [2013] ZAECBHC 1 (1 January 2013)

S v Mbane and Others (CA&R 26/2012) [2013] ZAECBHC 1 (1 January 2013)

The proceedings against accused no.1 were conducted under the Criminal Procedure Act, despite the fact that he was 17 years old at the time of arrest and first appearance. The Child Justice Act 75 of 2008 mandates special procedures and protections for juveniles, which were not followed. This failure constitutes a gross irregularity with the potential to cause a miscarriage of justice. The conviction of accused no.1 must be set aside and the matter remitted to the magistrate's court for proper handling under the Child Justice Act. The proceedings against the other accused, who were adults, were in accordance with justice and may continue under the Criminal Procedure Act.

Citation
[2013] ZAECBHC 1
Parties
Applicant: The State; Respondent: Odwa Mbane; Respondent: Luvuyo Khawulela; Respondent: Mpumelelo Busiko; Respondent: Khulasande Vikani
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
1 January 2013
Case Number
CA&R 26/2012
Procedural Posture
Review Application / Review of Conviction and Proceedings After Referral by Magistrate
Outcome
Conviction of accused no.1 set aside; matter remitted for proper procedure under the Child Justice Act.
Judges
DZ Dukada, NG Beshe
Legal Topics
Child Justice Act, Juvenile Offenders, Review of Conviction, Procedural Irregularity
Criminal Law Family and Children Child Justice Act Juvenile Offenders Review of Conviction Procedural Irregularity

Case Brief

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Parties

The State

Applicant

Odwa Mbane

Respondent

Luvuyo Khawulela

Respondent

Mpumelelo Busiko

Respondent

Khulasande Vikani

Respondent

Procedural Posture

Review Application / Review of Conviction and Proceedings After Referral by Magistrate

Legal Issues

  1. 1 Whether the proceedings against accused no.1, a juvenile, were conducted in accordance with the Child Justice Act 75 of 2008.
  2. 2 Whether failure to apply the Child Justice Act constitutes a gross irregularity warranting review and setting aside of the conviction.
  3. 3 Whether the conviction of accused no.1 should be set aside and the matter remitted for proper procedure.

Ratio Decidendi

The proceedings against accused no.1 were conducted under the Criminal Procedure Act, despite the fact that he was 17 years old at the time of arrest and first appearance. The Child Justice Act 75 of 2008 mandates special procedures and protections for juveniles, which were not followed. This failure constitutes a gross irregularity with the potential to cause a miscarriage of justice. The conviction of accused no.1 must be set aside and the matter remitted to the magistrate's court for proper handling under the Child Justice Act. The proceedings against the other accused, who were adults, were in accordance with justice and may continue under the Criminal Procedure Act.

Court Disposition

Conviction of accused no.1 set aside; matter remitted for proper procedure under the Child Justice Act.

Orders

  • The conviction of accused no.1 (Odwa Mbane) is set aside.
  • The matter is remitted to the Magistrate’s Court, Mdantsane for accused no.1 to be dealt with in terms of the relevant provisions of the Child Justice Act 75 of 2008.