S v Vilakazi (A625/2012) [2012] ZAGPPHC 217 (4 September 2012)
- Citation
- [2012] ZAGPPHC 217
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Msimeki, Mavundla
- Case number
- A625/2012
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Msimeki, Mavundla
- Case number
- A625/2012
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the procedures prescribed by the Child Justice Act were not followed in respect of the accused, who was a minor at the time of the offence. This omission constituted a failure of justice, as the Act mandates specific steps to be taken when dealing with child offenders. The conviction was therefore set aside to allow the proceedings to commence de novo and in accordance with the statutory requirements for minors.
Court disposition
Conviction set aside; matter referred back for proceedings to commence de novo in accordance with the Child Justice Act.
Orders
- The conviction against the accused is set aside.
- The matter is referred back to the magistrate's court, Bethal, for the proceedings to start de novo and in the correct manner.
02
Material facts
Parties
The State
ApplicantMlambi Bongani Innocent Vilakazi
Respondent03
Procedural history
Posture
Review Application / Special Review
04
Questions and positions
Legal issues
- 01
Whether the conviction of a minor accused without following the procedures prescribed by the Child Justice Act constitutes a failure of justice.
- 02
Whether the proceedings should be set aside and commenced de novo in accordance with the Child Justice Act.
Party arguments
- Applicant
- The magistrate requested the High Court to set aside the conviction because the accused was seventeen years old at the time of trial, and the procedures required by the Child Justice Act were not followed. The magistrate argued that this omission resulted in a failure of justice and sought permission to recommence proceedings in the correct manner.
- Respondent
- The accused, legally represented, pleaded guilty to housebreaking with intent to steal and theft. After conviction but before sentencing, it was revealed that he was a minor, contrary to the age stated on the charge sheet. His attorney communicated this to the court, which then postponed the matter to establish his true age.
05
Court’s reasoning
Legal principles
- 01
Section 5(2) of the Child Justice Act 75 of 2008
Children alleged to have committed offences must be assessed by a probation officer before their first appearance at a preliminary inquiry, unless assessment is dispensed with under specific statutory provisions.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the procedures prescribed by the Child Justice Act were not followed in respect of the accused, who was a minor at the time of the offence. This omission constituted a failure of justice, as the Act mandates specific steps to be taken when dealing with child offenders. The conviction was therefore set aside to allow the proceedings to commence de novo and in accordance with the statutory requirements for minors.
Obiter and limits
- The Child Justice Act was enacted to ensure that children are dealt with appropriately depending on their age and circumstances.
- The magistrate acted correctly in stopping the proceedings and seeking guidance from the High Court.
Court disposition
Conviction set aside; matter referred back for proceedings to commence de novo in accordance with the Child Justice Act.
- The conviction against the accused is set aside.
- The matter is referred back to the magistrate's court, Bethal, for the proceedings to start de novo and in the correct manner.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
Magistrate: Bethal
Review Case no.: 303/2012
Magistrate's Serial no: 29/2012
High Court Ref no.: 789
Case Number:A625/2012
DATE:04/09/2012
THE
STATE
VS
MLAMBI
BONGANI INNOCENT VILAKAZI
REVIEW
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1] Mr C.F. Nieuwoudt the Magistrate in Bethal, has in this special review, requested this court to set aside the conviction in this matter to enable the court to start the proceedings de novo.
BRIEF
FACTS
[2] Mlambi Bongani Innocent Vilakazi, the accused, stood trial on a charge of housebreaking with the intention to steal and theft.
Legally represented he pleaded guilty to the charge. His Attorney prepared a plea in terms of Section 112 (2) of Act 51 of 1977 which was handed into court. The court, accordingly, convicted the Accused as charged. Before sentence, the accused informed his Attorney that he, at the time, was (seventeen) 17 years old and not (twenty-two) 22 as the charge sheet disclosed. The Attorney duly communicated this to the court which decided that the age of the accused had to be established. The matter was then postponed. It was established that the accused was indeed, (seventeen) 17 years old. The court immediately realised that the procedure prescribed in the Child Justice Act no 75 of 2008 had to be followed and that that had not been done, that according to him, and that that had resulted in a failure of justice. The problem prompted the magistrate to approach this court with the request referred to above which, in my view, is proper.
[3] The Child Justice Act 75 of 2008 has been enacted with a view to dealing with aspects which relate to children depending on their ages. Procedures have been provided for for dealing with children who are alleged to have committed offences. Section 5 (2) of the Act, for instance, provides:
" Every child who is (ten) 10 years or older, who is alleged to have committed an offence and. who is required to appear at a preliminary inquiry in respect of that offence must, before his or her first appearance at the preliminary inquiry, be assessed by a probation officer, unless assessment is dispensed with in terms of Section 41 (3) or 47 (5)." (My emphasis).
This section clearly demonstrates that certain procedures are to be followed before the matter is heard. This, obviously, was not done and the Honourable magistrate was right when he stopped the proceedings in order to seek assistance. The conviction, therefore,
has to be set aside so that same can start de novo and in the correct manner.
[4] I, in the result, make the following order:
1. the conviction against the accused is set aside.
2. the matter is referred back to the magistrate's court, Bethal for the proceedings to start de novo and in the correct manner.
MW.
MSIMEKI
JUDGE
OF THE HIGH COURT
I agree.
And it is so ordered.
M.
MAVUNDLA
JUDGE
OF THE HTGH COURT
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