S v N and Another (R431/2017) [2017] ZAFSHC 202 (26 October 2017)

S v N and Another (R431/2017) [2017] ZAFSHC 202 (26 October 2017)

The court found that although there was non-compliance with the Child Justice Act in failing to conduct a preliminary inquiry for accused 4 and 5, this irregularity was not so fundamental as to result in a failure of justice. The accused were minors at the time of the offence but were legally represented throughout the trial, their guardians were present, and they understood the proceedings. Notices for a preliminary inquiry were served, but for reasons unknown, the inquiry was not held. The oversight was condonable due to the effluxion of time and the accused having reached majority by the time of trial. The Child Justice Act does not mandate nullification of proceedings for such...

Citation
[2017] ZAFSHC 202
Parties
Applicant: The State; Respondent: B. N.; Respondent: S. T.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
26 October 2017
Case Number
R431/2017
Procedural Posture
Criminal Review / Special Review Under Section 304 A(1)(a) of the Criminal Procedure Act
Outcome
Conviction of accused 4 and 5 confirmed; matter referred back for sentencing under the Child Justice Act.
Judges
Mhlambi, Chesiwe
Legal Topics
Child Justice Act, Irregularity in Criminal Procedure, Failure of Justice, Diversion, Preliminary Inquiry
Criminal Law Family and Children Child Justice Act Irregularity in Criminal Procedure Failure of Justice Diversion Preliminary Inquiry

Case Brief

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Parties

The State

Applicant

B. N.

Respondent

S. T.

Respondent

Procedural Posture

Criminal Review / Special Review Under Section 304 A(1)(a) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether non-compliance with the Child Justice Act in failing to conduct a preliminary inquiry for accused minors amounted to an irregularity resulting in a failure of justice.
  2. 2 Whether the proceedings against accused 4 and 5 should be nullified due to procedural irregularity.
  3. 3 Whether the accused were fairly tried despite the absence of a preliminary inquiry.

Ratio Decidendi

The court found that although there was non-compliance with the Child Justice Act in failing to conduct a preliminary inquiry for accused 4 and 5, this irregularity was not so fundamental as to result in a failure of justice. The accused were minors at the time of the offence but were legally represented throughout the trial, their guardians were present, and they understood the proceedings. Notices for a preliminary inquiry were served, but for reasons unknown, the inquiry was not held. The oversight was condonable due to the effluxion of time and the accused having reached majority by the time of trial. The Child Justice Act does not mandate nullification of proceedings for such...

Court Disposition

Conviction of accused 4 and 5 confirmed; matter referred back for sentencing under the Child Justice Act.

Orders

  • The conviction of accused 4 and accused 5 is confirmed.
  • The matter is referred back to the trial court to sentence accused 4 and 5 in accordance with chapter 9 of the Child Justice Act 75 of 2008.