S v Thwala (A92/2015) [2015] ZAGPPHC 114 (26 February 2015)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Date: 26 February 2015

Case number: A92/2015

High Court Ref. No. : 41/15

Magistrates serial no. : 33/14

Case no. : 662/14

THE STATE

vs

PRECOUS SANELISWE

THWALA

REVIEW

[1] This is a special review in terms of section 304 A of Act 51 of 1977 (The Act) at the instance of a magistrate from Bethal.

[2] The accused in this matter was convicted, of the offence of housebreaking with the intent to steal and theft, in terms of section 112 (1) (b) of the Act. A presentence report was requested by the court.

[3] The social worker who compiled the sentencing report established that the accused was 14 years old and not 19 years old as indicated on the charge sheet.

[4] In view of the accused’s age, which was placed on the charge sheet, the matter proceeded and the accused was convicted.

[5] No enquiry was conducted in terms of section 43 of the Child Justice Act 75 of 2008. (CJA)

[6] Section 43 of the CJA stipulates:-

(1) A preliminary inquiry-

(a) is an informal pre-trial procedure which is inquisitorial in nature; [Para, (a) amended by s. 36 (a) of Act 42 of 2013.]

(b) may be held in a court or any other suitable place, and [Para, (£>) amended by s. 36 (a) of Aci No. 42 of 2013].

(c) must be presided over by a magistrate of the district within which the child is alleged to have committed the offence.

[Para, (c) added s. 36 (a) of Act No. 42 of 2013.]

(2) The objectives of a preliminary inquiry are to -

(a) consider the assessment report of the probation officer, with particular reference to -

(i) the age estimation of the child, if the age is uncertain;

(ii) the view of the probation officer regarding the criminal capacity of the child if the child is 10 years or older but under the age of 14 years and a decision whether an evaluation of the criminal capacity of the child by a suitably qualified person referred to in section 11 (3) is necessary; and

(iii) whether a further and more detailed assessment of the child is needed as referred to in section40 (1) (g);

(b) establish whether the matter can be diverted before plea;

(c) identify a suitable diversion option, where applicable;

(d) establish whether the matter should be referred in terms of section 50 to a children’s court referred to in section 42 of the Children’s Act;

(e) ensure that all available information relevant to the child, his or her circumstances and the offence are considered in order to make a decision on diversion and placement of the child;

(f) ensure that the views of all persons present are considered before a decision is taken;

(g) encourage the participation of the child and his or her parent, an appropriate adult or guardian in decisions concerning the child; and

(h) determine the release or placement of a child, pending -

(i) the conclusion of the preliminary inquiry;

(ii) the appearance of the child in a child justice court; or

(iii) the referral of the matter to a children’s court, where applicable.

(3) (a) A preliminary enquiry must be held in respect of every child who is alleged to have committed an offence, except where -

(i) the matter has been diverted by a prosecutor in terms of Chapter 6;

(ii) the child is under the age of 10 years; or

(iii) the matter has been withdrawn

(b) A preliminary enquiry referred to in paragraph (a) must be held -

(i) within 48 hours of arrest as provided for in section 20 (5) if a child is arrested and remains in detention; or

(ii) within the time penods specified in a written notice in terms of section 18 ora summons in terms of section 19.

(c) A child’s appearance at a oreliminary inquiry is regarded as his or her first appearance before a lower court, in terms of section 50 of the Criminal Procedure Act.

(4) Section 90 of the Magistrates’ Court Act, 1944 (Act No. 32 of 1944), applies with the changes required by the context to subsection (1) (c) [Sub-s (4) added by s.36 (b) of Act No. 42 of 2013]

[7] Section 43 (3) directs that a preliminary enquiry must be held. The sub-section is therefore peremptory.

[8] In view of the failure to hold an enquiry I am of the view that the section 112 proceedings in terms of the Act were irregular. Therefore the proceedings have to be set aside.

[9] Accordingly, I make the following order:-

9.1 The conviction of the accused is set aside;

9.2 The matter may proceed de novo before a different magistrate who shall hold a preliminary enquiry in terms of section 43 of the Child Justice Act 75 of 2008.

M ISMAIL

THE JUDGE OF THE GAUTENG HIGH COURT,

PRETORIA

I agree

N. V. KHUMALU

JUDGE OF THE GAUTENG HIGH COURT, PRETORIA