S v Mouers, S v Slinger (435/04, 237/04) [2005] ZANCHC 65 (11 November 2005)

Reportable: Yes / No

Circulate to Judges: Yes / No

Circulate to Magistrates: Yes / No

IN

THE HIGH COURT OF SOUTH AFRICA

(Northern Cape Division)

Case no: 435/04 & 237/04

Date delivered: 11/11/2005

In the matters:

THE STATE

versus

MOUERS, A Accused

SLINGER, WF Accused

Coram: Kgomo JP et Lacock J

Judgment on Special Review

LACOCK J:

The two accused in these matters became the sad victims of the lack of youth reform centres or like institutions for the rehabilitation of juveniles found guilty of criminal conduct in the Northern Cape Province.

Werner Ferdinand Mouers (Mouers) was convicted of housebreaking with the intent to steal and theft in the Magistrate’s court, Victoria-West, and was referred to a reform centre on 16 July 2004. He was 16 years of age at the time.

Annelien Slinger (Slinger) was convicted in the Magistrate’s court, Victoria-West, of theft and was referred to a reform centre for a period of 2 (two) years on 24 March 2004. She was 17 years old at the time.

Both juveniles were incarcerated in the De Aar prison, pending their transfer to a youth centre. By reason of the non-existence of such a centre in this province, the authorities responsible for the removal of convicted juveniles to youth centres are dependant on the benignant willingness of youth centres elsewhere in the country to accommodate Northern Cape juveniles.

It has now come to our attention that to date the relevant authorities were – for reasons not known to us – unable to transfer Mouers and Slinger to any youth centre, and that both children are still incarcerated in the De Aar prison. Effectively these two juveniles have now served sentences of approximately 15½ and 19½ months imprisonment respectively, in a prison for adult prisoners!

This state of affairs, to say the least, is shockingly inhumane, worthy of the strongest possible expression of this Court’s antipathy. It requires no stretch of the imagination to realise to what dangers – both physical and psychological – these youngsters are exposed in an adult prison.

We sincerely trust that the Provincial Government of the Northern Cape and the Department of Correctional Services will comply with their constitutional responsibilities by immediately providing the necessary facilities to accommodate convicted juveniles. See in this regard S v Zuba & Others, Case no CA40/2003, Eastern Cape Division (unreported).

The sentences imposed by the Magistrate in these matters were not inappropriate. The Magistrate, however, should have convincingly established whether the accused could be accommodated in a youth centre before referring them to such a centre. In this respect, he committed a misdirection. We are therefore entitled to interfere.

Although the convictions and sentences imposed in these matters had been confirmed on review, we are convinced that – had the reviewing Judge been aware of the circumstances alluded to above – he would not have confirmed the sentences.

This Court has, despite the aforesaid, the inherent jurisdiction to prevent and injustice being committed to any person within its jurisdictional domain. This inherent jurisdiction has now been statutorily conferred on inter alia this Court in sec. 173 of the Constitution of the Republic of South Africa, Act 108 of 1996. Since Mouers and Slinger are suffering from a grave injustice by no fault of their own, we regard it as our constitutional duty to exercise our jurisdiction to end this travesty of justice.

No purpose will be served by remitting these matters to the Magistrate. In severity the sentences already served by Mouers and Slinger, by far outweigh the sentences imposed by the Magistrate, and it is highly unlikely that the Magistrate would consider any other sentence than the period of imprisonment already served by the accused.

By reason of the aforesaid, the following orders are hereby issued:

In S v Mouers, case no 435/04:

The sentence imposed by the Magistrate is set aside and substituted for the following,

“14 (fourteen) months imprisonment”.

The sentence is antedated to 16 July 2004.

In S v Slinger, case no 237/04:

“18 (eighteen) months imprisonment”.

The sentence is antedated to 24 March 2004.

_____

H

J LACOCK

JUDGE

I concur and it is so ordered.

_____

FD Kgomo

JUDGE

PRESIDENT