S v P (322/2013) [2014] ZAFSHC 89 (5 June 2014)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION,

BLOEMFONTEIN

Review No.: 322/2013

In the review between:

THE

STATE

versus

S[…] B[…] P[…]

CORAM: LEKALE, J et MBHELE, AJ

JUDGMENT BY: MBHELE, AJ

DELIVERED ON: 5 JUNE 2014

[1] On the 27th March 2013 the accused, who was born on […], was convicted, on his plea of guilty, of theft by the child justice court at Bethulie and eventually sentenced as follows on the 5th August 2013 in the light of, inter alia, his previous conviction for housebreaking with intent to steal and theft :

“In terms of the provisions of section 76 of the Child Justice Act No 75 of 2008 the accused is hereby sentenced to compulsory residence or placement at a reform school to wit, Ethokomala Youth Care Centre, Kinross in Mpumalanga.”

[2] The matter, eventually, served before Lekale, J on automatic review. He, directed the following query to the trial court:

“Has the accused been sentenced to compulsory residence or placement at the Child and Youth Care Centre for an indefinite period of time? If so, why and on what legal basis?”

[3] The learned magistrate has gratefully since responded that:

“► The sentence that the Court envisaged was in terms of the provisions of Section 76[1] and [2] of the Child Justice Act 75 of 2008 – compulsory residence at a child and youth care centre for a period of not exceeding 5 years OR until the child reach the age of 21 whichever is the soonest.

► By mistake, this was however not included in the final wording of the sentence.

► It would be appreciated if you could amend the wording of the sentence imposed on 05 August 2013 to make provision for such.”

[4] I am in respectful agreement with the learned magistrate that the sentence must be corrected insofar as it is not in accordance with the law and it, effectively, exceeds the trial court’s penal jurisdiction in terms of section 76 of the Child Justice Act 75 of 2008(the CJA).

[5] Lekale J returned the matter to the trial court with a further query , requesting to be furnished with complete record of the plea proceedings herein as the record did not reflect same.

It is not apparent ex facie the magistrate’s notes that the accused’s guardian confirmed his plea of guilty . In this

regard it is noted that the section 112(2) statement is only signed by the legal representative and the accused. It is not co-signed by the guardian.

It is further apparent form the pre-sentence report viz. paragraph E. 4 that the accused could not be controlled by his grandmother, father and step-mother. It is, thus, difficult to see how confirmation of a guilty plea by any such guardian could stand scrutiny. The name of the guardian is also not apparent form the report and someone who identified the accused as her son testified for the state on charge 2.

Even if the guilty plea was confirmed by the guardian, would it not have been proper to invoke the provisions of section 304 A

OF THE Criminal Procedure Act after receipt of the pre-sentence report in order to enter a plea of not guilty on charge no. 1 viz. theft regard being had to paragraph E. 4 of such report?

[6] The learned magistrate has gratefully responded as follows:

“Add Paragraph 1:

The plea proceedings dated 27 March 2013 was indeed mechanically recorded by way of the DCRS recording machine. Upon receipt of the reviewing judge’s queries the relief DCRS operator was requested to locate said recording and burn a CD for despatch to the transcribers. She was able to trace the recording made on 27 March 2013 on the DCRS machine. Every attempt thus far to open the recording and to listen to same or to burn same to a CD was unsuccessful. The relief DCRS operator informed me that she has locked a call to Helpdesk to have this problem addressed as speedily as possible. Unfortunately the recording could not be opened, retrieved or burned to a cd for transcription. I could however trace my personal handwritten notes on the proceedings and was able to reconstruct the missing record from that, in conjunction with the Legal Representative of the accused as well as the Prosecutor. I also include my original handwritten notes for easier reference. I humbly request you to accept same as a true reflection of what transpired in court on 27 March 2013.

Add Paragraph 2:

Signature of guardian not on Section 112[2] Act 51/1977 statement: Section 112[2] Act 51/1977 allows an accused or his legal adviser to hand in a written statement by the accused into court; It is trite that the accused must set out the facts which he admits and on which he wants plead guilty. If there is anything unclear in the contents of such statement, the presiding officer may put any question to the accused in order to clarify same. If the presiding officer may on the strength of such statement convict the accused if he is satisfied that the accused is guilty of the offence so pleaded guilty to, and after an indication by the State that the plea is excepted on the basis as submitted by the accused. Criminal Procedure Act does not expressly provide that such statement should be signed by the accused or his representative. It has however become practise that the accused and the representative sign the said statement. When the Child Justice Act 75 of 2008 is perused is clear that such legislation does not place further and or additional requirements on the proceedings of a guilty plea in terms of section 112[2] of the Criminal Procedure Act. In the matter in question I was satisfied that the section 112[2] statement prepared by the legal representative conformed to all the requirements sets out by the Criminal Procedure Act, as accepted by the State on the facts set out by

the accused. The accused has also confirmed the contents of said statement as true and correct as well as his signature on the last page of same, and that the plea was enlisted the plea freely and voluntarily. Neither the Criminal Procedure Act [51/1977] nor the Child Justice Act [75/2008] expressly requires the guardian to co-sign the plea. However the signature of the legal representative confirms assistance to the minor. The guardian did however confirm that he is satisfied with the plea entered. The absence thereof could therefore, in my humble opinion, not vitiate the legality of the plea proceedings. Even if the Honourable Review Court is of the opinion that the Presiding Officer misdirected herself in this regard, the conviction can still be confirmed as set out in S v Bernardus 1965 [3] SA 287 [A]; S v Pillay 1977 [4] SA 531 [A], S v Pieters 1987 [3] SA 717 [A].

Add Paragraph 3:

Accused being assisted by his biological father who is also the complainant in regard to the charge of theft: According to the provisions of the Child Justice Act 75 of 2008 an accused child must be assisted by an appropriate adult or guardian. If good cause is shown the Presiding Officer can dispense with this requirement if it is in the interest of child, or is not prejudicial

to the administration of justice. Child Justice Act 75 of 2008 also provides that the parent, guardian or appropriate adult can also apply to be exempted from attending the court proceedings against the child. It is required that such exemption is granted, it must be in writing. In exceptional circumstances the Presiding Officer can even appoint an independent observer to assist a minor.

“Appropriate adult” means any member of a child’s family, including a sibling who is 16 years or older, or care-giver referred to in section 1 of the Children’s Act;

Guardian in terms of the Children’s Act means a parent or other person who has guardianship of a child; Under normal circumstances I would be very hesitant to allow a guardian who is also the complainant in one of the charges to assist a minor accused. In allowing the biological father to stand as guardian. I have taken in consideration the minor accused’s household and personal circumstances. The biological father, Mr V[…] G[…] S[…] assisted the minor during the proceedings and his second wife; the accused step-mother P[…] A[…] M[…]; accompanied the latter at each and every court appearance. Every single time the minor accused found himself in trouble with the law, his biological father and step-mother step up to the plate to assist him, despite the fact that he has left his parental home [1814 B[…]] to stay at House 171 Extention 7 B[…]. I was also satisfied that the best interests of the minor world also be suitably protected by the fact that the minor accused was legally represented by Mr. J. Jantjies – one of the more senior attorneys of LASA. That coupled with the part that Mr. B[…] S[…] P[…] was able to positively engage with the legal representative and to articulate his wishes and instructions with referene to the court proceedings would in my view mitigate and prevent any possibility of the biological father trying to pressurize or persuade the child to conform to the

father’s wishes. It is also necessary to note in this regard that up until now, the biological father could not succeed in convincing the said minor to conform to his wishes or to submit to his control or to listen to his instructions and or advise. When the contents of the last paragraph on page 7 of the pre-sentence report is considered: “S[…] feels that he is old enough and able to care for himself” and the first line of the paragraph marked as “Evaluation” on page 8: “S[…] is a teenager and knows what is best for himself” one is left with the realization that he [S[…]] knows what he wants, and that he would not be influenced by any opinion of his biological father or step-mother would have had in this regard. This is also underlined by the fact that despite various social workers best efforts and instructions, Mr. B[…] S[…] P[…] steadfastly chose to ignore their inputs. It is my humble opinion that the presence of the biological father, Mr. V[…] G[…] S[…] [who is also the complainant

with reference to the charge of theft] as the accused’s guardian cannot vitiate the legality or fairness of the proceedings. I actually feel sorry for this child because he is really clever and have the potential to make something of his life. If he puts as much effort into his life and future as he put into his criminal and gang related behaviour, he could be anything he could imagine.

Application of Section 304A Criminal Procedure Act 51/1977: I did not consider said provisions since I was not of the opinion that the proceedings in respect of which I noted a plea of guilty and brought in a conviction was not in accordance with justice. Based on what was said before, I am still of the opinion that Mr. B[…] S[…] P[…] intended to plead guilty to the theft charges, and that the plea was in accordance with the prescripts of the law and the interests of justice and that he was duly represented by one of the more senior legal representatives of LASA Colesberg. Furthermore according to S v Klaase 1998 [1] SASV 317 [K] section 304A [Act 51/1977] is not applicable in instances where an accused is being assisted by a legal represented during trial proceedings.”

[7] I am satisfied, owing to the reasons advanced by the learned magistrate that the record inclusive of notes provided are a true

reflection of the plea proceedings of the 27 March 2013.

[8] The Child Justice Act 75 of 2008 provides that an accused child must be assisted by an appropriate adult or guardian. The Act further allows Presiding Officers to dispense with the above requirement if it is in the interest of a child or it is not prejudicial to the Administration of Justice.

[9] I accept the explanation by the magistrate on why she allowed the biological father to stand in as a guardian of the accused although he was the complainant on a charge wherein the accused was convicted, regard being had to the accused’s family set up and the fact that he was legally represented throughout the proceedings.

[10] After having considered all relevant factors in this case , I am convinced that the conviction cannot be faulted and stands to be confirmed regard being had to the accused’s statement submitted in terms of section 112(2) of the Criminal Procedure Act, 51 of 1977 (the “CPA”) co-signed by his legal representative.

[11] In the letter referring the matter for review the learned magistrate laments the delay in dispatching the record and points out that:

“Verrigtinge in bogemelde saak is meganies genotuleer en is die CD’s na afloop van die verrigtinge deur die hofklerk gebrand vir versending na Krino Transkripsies.

· Ten einde die prosesse rondom Hersienings en die effektiewe hantering daarvan te vergemaklik het ek ‘n handleiding vir die Kantoorbestuurder opgestel.

· Huidiglik werk die Bethulie kantoor met die 5de Waarnemende Kantoorbestuurder in die kwessie van ongeveer 2 jaar.

· Ek self het verskeie navrae gerig ten aansien van die vordering hierin en is ek telkens meegedeel dat die transkripsies nog nie vanaf Krino Transkripsies ontvang is nie en dat die Hersiening gevolglik nie gefinaliseer kon word nie. Afskrifte van die e-posse wat hierop betrekking het word aangeheg vir u aandag.

· Uit die aangehegte e-posse sal u opmerk dat des ondanks my navrae rondom die vordering van die Hersienings; dit eers op 16 Oktober 2013 na vore gekom, nadat ek op afskrifte van die J 33 dokumente aangedring het, waarmee die CD’s weggestuur sou gewees het, het dat die Hersieningsklerk nooit die CD’s met die verrigtinge op na Krino Transkripsies versend het nie.

· Hierdie situasie is gerapporteer aan …, die waarnemende ‘Area Court Manager’ - geen terugvoer is nog ontvang nie.

· Ek het persoonlik weer twee weke gelede navraag gedoen en vasgestel dat die getikte oorkonde deur Krino Transkripsies na die Bellville Landdroskantoor versend is. Geen redes hiervoor kon aan my verskaf word nie.

· Gemelde notules is gister vanaf Bellville Landdroskantoor ontvang.

· Met ontvangs daarvan het ek onmiddellik al die stukke gevra sodat ek dit self kon bind, net om uit te vind dat die getikte notule, waarop die klerk die tikfoute moes reg maak op die vorige waarnemende Kantoor Bestuurder se rekenaar is en hy sedert hy weg is by hierdie kantoor op siekverlof in die Oos-Kaap is.

· Al uitweg wat oor was, was om self maar weer die notules oor te tik.

· Die gevolg van al bogemelde gebeure is dat die hersiening vandag op ‘n baie laat stadium aan u beskikbaar gestel word vir oorweging. Ontvang asseblief my verskoning en ook die van die klerklike personeel hiervoor.

· Dit is my versoek dat u my verskoning hierin sal aanvaar. Op hierdie stadium kan daar nie werklik melding gemaak word van administratiewe ondersteuning vir die Landdros nie, en ten einde ‘n deurlopende diens aan die publiek te lewer, moet ek op ‘n daaglikse basis ook klerklike pligte verrig, benewens my pligte in die hof. Twee van die klerklike poste by hierdie kantoor sowel as die pos van die Kantoorbestuurder is ook al baie lank vakant.”

[11] In her response to the initial query referred to earlier, the learned magistrate, further, points out as follows in the covering letter

“Due to yet another shift in the appointment of an Acting Office Manager for this office the queries were only brought to my attention today. Therefore the late response. Please receive my apologies in this regard.”

In this regard it should be noted that the query concerned was directed to the learned magistrate on the 17th December 2013 and her response bears the date stamp of the 31st January 2014.

[12] The importance of timeous despatch of the record for automatic review purposes cannot be overemphasised. Section 303 of the CPA enjoins the clerk of the court to despatch the record of the proceedings to the registrar of the relevant High Court within one week of the determination of the case which is reviewable in the ordinary course. The automatic review procedure, as provided for by our criminal justice system, forms an integral part of the constitutional right to a fair trial and demands that the process unfold expeditiously. Failure to oblige may lead to serious injustices and may lay the basis for civil litigation.

(See: S v Lewies 1998 (1) SACR 101 (C);

S v Maluleke 2004 (2) SACR 577 (T); and

S v Mekula 2012 (2) SACR 521 (ECG).)

[13] I am satisfied that, on the part of the trial magistrate, cogent and convincing reason has been advanced for the delay with the accusing finger firmly pointing in the direction of the service provider and members of the trial court’s support staff. The CPA does not saddle such a service provider with any duty towards the court. Its obligations arise ex contractu towards the Department of Justice and Constitutional Development. It is, thus, for the Department to take the matter up with the relevant service provider. As for the tardiness on the part of one or more members of the support staff attached to the trial court, I can only point out that it is totally unacceptable that the administration of justice should be compromised and allowed to suffer because of instabilities in personnel placements and sheer lack of appreciation for the nature and importance of the role one’s position serves in such administration.

[14] The Department is, further, urged to give magistrates the necessary support and always to remember that, for optimal performance on their part and efficient service to the public, an atmosphere conducive to proper administration of justice in the form of, inter alia, dependable and dedicated support staff is a sine qua non. On our part we can only commend the learned magistrate for the dedicated and sterling service she renders, inclusive of the manual

she has developed for the purposes of skilling and empowering members of her support staff.

[15] The Department is, furthermore, encouraged to give this matter and others like it, if any, the urgent attention they desperately scream out for with a view to promoting and enhancing efficiency in the administration of justice. For all these reasons it is, in our view, imperative for the Registrar to bring this judgment to the attention of the Office of the Regional Director of the Department in Bloemfontein.

ORDER

[16] The conviction is confirmed, but the sentence is corrected to read as follows:

“The accused is sentenced to 3 (three) years’ compulsory residence/placement at a reform school, namely Ethokomala Youth Care

Centre in Kinross, Mpumalanga in terms of section 76 of the Child Justice Act No 75 of 2008.”

[12] The order relating to the provisions of section 103 of Firearms Control Act No 60 of 2000 remains in place.

[13] The sentence is antedated to 5 August 2013.

[14] The Registrar shall make a copy of this judgment available to the office of the Regional Director: Department of Justice and

Constitutional Development in Bloemfontein.

____

N.M. MBHELE, AJ

I concur.

______

L.J. LEKALE, J