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South Africa Judgment

Free State High Court, Bloemfontein

S v Saeed (R14/2021) [2021] ZAFSHC 83 (24 March 2021)

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Professional case brief

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Source document

01

Holding and result

The court found that the proceedings in the District Court were not in accordance with the law because the accused was a minor and the Child Justice Act was not applied. The guilty plea and conviction under section 112(1)(a) of the Criminal Procedure Act were therefore invalid. The matter must be referred back to the District Court for proper application of the Child Justice Act, ensuring that the rights and procedures applicable to minors are observed.

Court disposition

The guilty plea and conviction are set aside. The matter is referred back to the District Court for proper application of the Child Justice Act.

Orders

  • The plea of guilty and the conviction in terms of section 112(1)(a) of the Criminal Procedure Act 51 of 1977 are set aside.
  • The matter is referred back to the District Court to be dealt with in terms of the Child Justice Act 75 of 2008.

02

Material facts

Parties

THE STATE

Applicant

SHARIFF SAEED

Respondent Counsel: Legal Aid: South Africa

03

Procedural history

  1. Posture

    Review Application / Review in Terms of Section 304 a of the Criminal Procedure Act After Conviction and Sentencing in the District Court.

04

Questions and positions

Legal issues

Party arguments

Applicant
The State proceeded with a guilty plea in terms of section 112(1)(a) of the Criminal Procedure Act, not initially aware that the accused was a minor. Upon discovery of the accused's age, the proceedings were suspended and sent for review. The State did not oppose the setting aside of the conviction, acknowledging the procedural irregularity.
Respondent
The accused, represented by Legal Aid South Africa, pleaded guilty to contravening section 49(1)(a) of the Immigration Act. After conviction, it was revealed that the accused was a minor, and the defence supported the review and referral of the matter for proper application of the Child Justice Act.

05

Court’s reasoning

  1. 01

    Child Justice Act 75 of 2008

    Proceedings against minors must comply with the Child Justice Act, which provides specific procedures and protections for children in conflict with the law.

  2. 02

    Criminal Procedure Act 51 of 1977

    A guilty plea and conviction under section 112(1)(a) of the Criminal Procedure Act are invalid if the accused is a minor and the Child Justice Act is not applied.

  3. 03

    Section 304A, Criminal Procedure Act 51 of 1977

    Review proceedings may set aside convictions not in accordance with the law and refer matters back for proper procedure.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the proceedings in the District Court were not in accordance with the law because the accused was a minor and the Child Justice Act was not applied. The guilty plea and conviction under section 112(1)(a) of the Criminal Procedure Act were therefore invalid. The matter must be referred back to the District Court for proper application of the Child Justice Act, ensuring that the rights and procedures applicable to minors are observed.

Obiter and limits

  • The delay in the review was due to the transcription of the record, not any fault of the parties.
  • The accused was released into the custody of his guardian pending review, but both failed to appear at the subsequent hearing, resulting in warrants of arrest.

Court disposition

The guilty plea and conviction are set aside. The matter is referred back to the District Court for proper application of the Child Justice Act.

  • The plea of guilty and the conviction in terms of section 112(1)(a) of the Criminal Procedure Act 51 of 1977 are set aside.
  • The matter is referred back to the District Court to be dealt with in terms of the Child Justice Act 75 of 2008.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment text

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Source document

Free State High Court, Bloemfontein

Judgment

[2021] ZAFSHC 83

IN

THE HIGH COURT OF SOUTH AFRICA

FREE

STATE PROVINCIAL DIVISION

Review No.: R14/2021

In the matter between:

THE

STATE

versus

SHARIFF SAEED

Coram:

Reinders, J et Opperman, J

Date of hearing: 24 March 2021

Delivered: The judgment was handed down electronically by circulation to the Head of Office, Harrismith Magistrate’s Court, Harrismith and released to SAFLII on 24 March 2021. The date and time for hand-down is deemed to be 24 March 2021 at 15h00.

Judgment by: Opperman, J

Summary: Review – minor – application of the Child Justice Act 75 of 2008

JUDGMENT

[1] This is a review in terms of section 304A of the Criminal Procedure Act 51 of 1977[1].

[2] The accused was represented by Legal Aid: South Africa during the trial. The Legal Practitioner indicated to the Court that the matter may be finalized in terms of section 112(1)(a) of the CPA in that the Accused wanted to plea guilty.

[3] The Accused was convicted of the contravention of section 49(1)(a) of the Immigration Act 13 of 2002 after a plea of guilty in terms of section 112(1)(a) of the CPA. During sentencing it came to light that the accused is a minor.

[4] One Doctor Gonzales examined the accused and reported to the Court that his estimated age is between 16 and 17 years old. The proceedings were immediately suspended and send on review. The accused was released in the custody of his guardian. The matter was postponed for the review to be finalized but on 7 January 2021 both child and guardian failed to appear before the Court and warrants of arrest were authorised.

[5] It goes without saying that the proceedings were not in accordance with the law and that the plea and conviction stand to be set aside.

[6] The application for the review was only received by the Registrar of the High Court, Free State Division on 23 March 2021. The reason for the delay was the transcription of the record.

[7]

ORDER

The plea of guilty and the conviction in terms of section 112(1)(a) of the Criminal Procedure Act 51 of 1977 are set aside and the matter is referred back to the District Court to be dealt with in terms of the Child Justice Act 75 of 2008.

M OPPERMAN, J

I concur

C REINDERS, J

[1] “CPA”.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Criminal Procedure Act 51 of 1977

Legislation

Legislation referenced in the available case record.

Child Justice Act 75 of 2008

Legislation

Legislation referenced in the available case record.

Immigration Act 13 of 2002

Legislation

Legislation referenced in the available case record.

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