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

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

The court found that section 43(3) of the Child Justice Act imposes a mandatory obligation to conduct a preliminary inquiry for every child accused of an offence, unless specific exceptions apply. In this case, the accused was 14 years old, and no such inquiry was held. The proceedings under section 112(1)(b) of the Criminal Procedure Act were therefore irregular. The conviction was set aside, and the matter was ordered to proceed de novo before a different magistrate, who must comply with the requirements of the Child Justice Act.

Citation
[2015] ZAGPPHC 114
Parties
Applicant: The State; Respondent: Precous Saneliswe Thwala
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 February 2015
Case Number
A92/2015
Procedural Posture
Review Application / Special Review Under Section 304 a of Act 51 of 1977
Outcome
Conviction set aside; matter to proceed de novo before a different magistrate with a preliminary inquiry.
Judges
M Ismail, N V Khumalu
Legal Topics
Child Justice Act, Preliminary Inquiry, Irregular Proceedings, Conviction Set Aside
Criminal Law Family and Children Child Justice Act Preliminary Inquiry Irregular Proceedings Conviction Set Aside

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Precous Saneliswe Thwala

Respondent

Procedural Posture

Review Application / Special Review Under Section 304 a of Act 51 of 1977

Legal Issues

  1. 1 Whether the failure to conduct a preliminary inquiry in terms of section 43 of the Child Justice Act rendered the proceedings irregular.
  2. 2 Whether the conviction of a child accused without such inquiry can stand.

Ratio Decidendi

The court found that section 43(3) of the Child Justice Act imposes a mandatory obligation to conduct a preliminary inquiry for every child accused of an offence, unless specific exceptions apply. In this case, the accused was 14 years old, and no such inquiry was held. The proceedings under section 112(1)(b) of the Criminal Procedure Act were therefore irregular. The conviction was set aside, and the matter was ordered to proceed de novo before a different magistrate, who must comply with the requirements of the Child Justice Act.

Court Disposition

Conviction set aside; matter to proceed de novo before a different magistrate with a preliminary inquiry.

Orders

  • The conviction of the accused is set aside.
  • The matter may proceed de novo before a different magistrate who shall hold a preliminary inquiry in terms of section 43 of the Child Justice Act 75 of 2008.