S v Sekoere (70/2013) [2013] ZAFSHC 97; 2013 (2) SACR 426 (FB) (27 June 2013)

S v Sekoere (70/2013) [2013] ZAFSHC 97; 2013 (2) SACR 426 (FB) (27 June 2013)

The court held that the legislature intended to afford children sentenced to incarceration or residential elements the protection of automatic High Court review, irrespective of legal representation in the lower court. This intention is supported by the historical context and recommendations of the South African Law Commission, as well as South Africa's constitutional and international obligations. The bifurcated system distinguishing between children under 16 and those aged 16-17 is a legislative policy decision, but does not justify depriving children of the safeguard of review. Previous judgments restricting review based on legal representation are inconsistent with the Constitution,...

Citation
[2013] ZAFSHC 97
Parties
Applicant: THE STATE; Respondent: THABO SEKOERE
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
27 June 2013
Case Number
70/2013
Procedural Posture
Review Application / High Court Review of Lower Court Sentence
Outcome
The High Court confirms that children sentenced to a residential element are entitled to automatic review, regardless of legal representation.
Judges
Kruger, Musi, Daffue
Legal Topics
Child Justice Act, Automatic Review, Juvenile Sentencing, Constitutional Rights of Children
Criminal Law Family and Children Child Justice Act Automatic Review Juvenile Sentencing Constitutional Rights of Children

Case Brief

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Parties

THE STATE

Applicant

THABO SEKOERE

Respondent

Procedural Posture

Review Application / High Court Review of Lower Court Sentence

Legal Issues

  1. 1 Whether a child sentenced to a residential element is entitled to automatic review by the High Court regardless of legal representation.
  2. 2 Whether the bifurcated system under section 85 of the Child Justice Act, which distinguishes between children under 16 and those aged 16-17, is consistent with constitutional and international obligations.
  3. 3 Whether legal representation in the lower court removes the safeguard of automatic review for children.

Ratio Decidendi

The court held that the legislature intended to afford children sentenced to incarceration or residential elements the protection of automatic High Court review, irrespective of legal representation in the lower court. This intention is supported by the historical context and recommendations of the South African Law Commission, as well as South Africa's constitutional and international obligations. The bifurcated system distinguishing between children under 16 and those aged 16-17 is a legislative policy decision, but does not justify depriving children of the safeguard of review. Previous judgments restricting review based on legal representation are inconsistent with the Constitution,...

Court Disposition

The High Court confirms that children sentenced to a residential element are entitled to automatic review, regardless of legal representation.

Orders

  • It is declared that the presence of legal representation does not deprive a child of the right to automatic review under section 85 of the Child Justice Act.
  • The interpretation restricting automatic review based on legal representation is inconsistent with the Constitution, the Child Justice Act, and South Africa's international obligations.