IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE DIVISION, CAPE TOWN

High Court Ref: 346/22

Magistrate’s Serial No: B905/2022 and
B1053/2021
In the matter between:

THE STATE

And

LJ ACCUSED
JUDGMENT
LEKHULENI et NZIWENI JJ:

INTRODUCTION

[1] The Child Justice Act 75 of 2008 ("the CJA") aims to protect child offenders
and to establish a criminal justice system for minors who are in conflict with the law,
in accordance with the values underpinning the Constitution. However, despite the
aspirations of the CJA, what has happened in this case, is a quintessential example
of a child offender who was, regrettably, failed by the system. This eventuality must
be deprecated and condemned in the strongest possible terms.

[2] There are two cases before us from Stellenbosch Magistrates Court that
involve the same child offender, (LJ). The first case bearing case number B905/22,
comes before us by way of special review in terms of section 16(2)1 of the CJA, read
with section 303 of the Criminal Procedure Act 51 of 1977 (“the CPA”). The record of

1
Section 16(2) of the CJA provides: “If a presiding officer is of the opinion that an error regarding age
may have caused any prejudice to a person during the proceedings in question, the presiding officer
must transmit the record of the proceedings to the registrar of the High Court having jurisdiction, in the
same manner as provided for in section 303 of the Criminal Procedure Act, in which event the
proceedings must be dealt with in terms of the procedure on review as provided for in section 304 of
the Criminal Procedure Act.”

1
proceedings in respect of this matter, was placed before us on 27 October 2022.
Having read the record on 28 October 2020, we formed the opinion that there were
numerous irregularities on the record which vitiated the proceedings such that the
proceedings were not in accordance with justice. Accordingly, we subsequently
directed that the juvenile accused be released forthwith. What follows are the
reasons for that order. The second case bearing case number B1053/21 involves the
reviewability of a wholly suspended sentence in terms of section 85(1) of the CJA
imposed upon the child offender LJ, by the Stellenbosch Magistrates Court. The two
cases are discussed ad seriatim hereunder.

THE FACTUAL MATRIX

[3] The child offender was 17 years old at the time of the commission of the
offence. The State alleged in respect of the first case that the child offender was
guilty of possession of housebreaking implements in that on 09 August 2022 at or
near Crazier Street in Stellenbosch, the child offender was found in possession of a
spark plug in respect of which there was a reasonable suspicion that it had been
used or was intended to be used to commit housebreaking. In his first appearance in
court on 11 August 2022, the court explained to him his rights to legal
representation, and he elected to engage Legal Aid services. The child offender was
subsequently remanded in custody for bail information to 17 August 2022. On 17
August 2022, with the assistance of a Legal Aid Practitioner, the child offender
applied for bail. He completed an affidavit in support of his application.

[4] The affidavit stipulated that the child offender was 18 years old and residing at
Long Street, Cloetesville. The deposition of the child offender also revealed that he
had a previous conviction of theft in which he received a wholly suspended sentence
earlier in the year in 2022. The previous conviction arose from case B1053/21,
referred to above as ‘the second case’.

[5] The bail court found that it was in the interest of justice for the child offender
to be released on warning. Accordingly, the child was released on warning and the
matter was then adjourned for the child’s criminal record (SAP 69) to 12 October
2022.

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[6] On 12 October 2022, the child offender appeared in court B, Stellenbosch,
with his attorney, Ms Myberg; who requested that a trial date be arranged. The
matter was transferred to court A on the same day, ostensibly because the presiding
officer in court B dealt with the child’s bail application. It should be pointed out that,
pursuant to the matter being referred to court A; it is not discernible from the record
whether court B (the bail court), formally warned the child to appear in court A. What
is clear, however is that the child was released on warning.

[7] The child offender failed to appear when the case was called in court A. Ms
Lurai, a Legal Aid attorney for court A, informed the court that she had no
instructions on the whereabouts of the accused. At 10h45, a warrant of arrest was
authorised for the child offender’s immediate arrest and detention.

[8] On 17 October 2017, the child offender was arrested and brought before the
court, and a summary enquiry for failure to appear as contemplated in section 170(2)
of the CPA, was held. During those proceedings, the child offender was represented
by Ms Klein from the Legal Aid offices. In his defence, the child informed the court
that he forgot the court date. The record reveals that the child offender was
sentenced to a fine of R300 or three months imprisonment.

[9] On 24 October 2022, the Pollsmoor Prison authorities approached the state
prosecutor and informed her that the child offender was 17 years old. They brought a
birth certificate indicating that the child was born on 18 May 2005. The prosecutor
acting upon the information given, enrolled the matter before a magistrate. The
magistrate, thereafter, released the child offender on warning and postponed the
case to 24 November 2022. Notwithstanding being released on warning, the child
offender remained in custody due to the sentence imposed relating to his failure to
attend court. The child was referred to Pollsmoor to go and serve his sentence.

[10] Concerned with the sentence imposed upon the child offender, the Senior
Magistrate immediately referred this matter to this Court for special review. Upon our
perusal of the record, we ordered that the child be released forthwith as a result of
the irregularity committed in the matter. Gleaning from the record of proceedings, we

3
also discovered that the child offender was convicted of theft earlier in 2022. We
then requested the Senior Magistrate to send us a record of those proceedings.
Indeed, she obliged, and we are indebted to her. After perusal of that record, bearing
case number B1053/21, (“the second case”), we noted that the child offender was
convicted of two counts of theft pursuant to a guilty plea. The record reveals that on
each count, the child offender was sentenced to three years imprisonment
suspended for five years, on the condition that the accused is not convicted of any
offence of which theft is an element committed during the suspension period. The
trial court also ordered that the matter is not reviewable. We will return to this case,
(the second case) later in this judgment.

APPLICABLE LEGAL PRINCIPLES AND DISCUSSION

[11] It has often been said that children are the soul of our society, and if we fail
them, then we have failed as a society.2 Our common law prescribes that the child’s
best interests must determine the outcome when a court has to make an order
regarding a child. The Bill of Rights in the South African Constitution is renowned for
its extensive commitment to the protection of the rights of children in section 28,
particularly section 28(2), which emphatically underscores the paramountcy of the
child’s best interests.3 While envisaging the limitation of fundamental rights in certain
circumstances, the Constitution emphasises children's best interests. It singles them
out for special protection, affording children in conflict with the law specific
safeguards. Among others, section 28(1)(g) of the Constitution protects children in
conflict with the law not to be detained, except as a measure of last resort, and that if
detained, only for the shortest appropriate period. Importantly, for present purposes,
section 28(1)(g)(i) of the Constitution acknowledges the special need and
vulnerability of minor children and guarantees their right to be treated in a manner
and kept in conditions that consider their age. Furthermore, section 28(1)

2
See SS v Presiding Officer, Children’s Court, Krugersdorp and Others 2012 (6) SA 45(GSJ) para 1;
S v KD 2021 (1) SACR 675 (WCC) at par 7.
3
International law also affirms “the best interests” principles. For instance, Article 3(1) of the United
Nations Convention of the Rights of the Child, 1989 requires that “In all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary consideration”.
Similar pronouncements are found in Article 4(1) of the African Charter on the Rights and Welfare of
the Child, 1990 (African Children’s Charter).

4
acknowledges that children in conflict with the law must be kept separately from
adults while in detention and not to be subjected to practices that could endanger
their well-being, physical or mental health or spiritual, moral or social development.

[12] The CJA is giving effect to section 28 of the Constitution. The CJA is child-
centric and intends to apply to children in the criminal justice system. The CJA
provides for three stages in respect of children in conflict with the law: First, the CJA
provides for a pre-trial stage referred to in the Act as the Preliminary Inquiry
contained in chapter 7 to the Act.4 The objective of the Preliminary Inquiry, among
others, is to consider the assessment report of the probation officer concerning the
age estimation of the child if the age is uncertain and to establish from the
prosecutor whether the matter can be diverted before the plea proceedings.

[13] The second stage envisaged in the CJA is the trial stage, regulated by
chapter 9 of the Act. Section 63 of the CJA enjoins presiding officers in the Child
Justice Court before a plea is taken to inform a child of the nature of the allegations
against him or her, to inform the child of his or her rights, and to explain to the child
the further procedures to be followed in terms of the Act. Significantly, section 63(4)
enjoins a Child Justice Court to ensure that the child's best interests are upheld
during the proceedings.

[14] The third stage envisaged by the CJA is the sentencing stage in chapter 10 of
the Act. Section 68 of the Act states that a Child Justice Court must, after convicting
a child, impose a sentence in accordance with this Chapter. Section 72 of the Act
also sets out various sentencing options that may be imposed by a Child Justice
Court, which include, among others, community-based sentence, restorative justice
sentence, correctional supervision, fine etc. When considering the imposition of a
sentence involving imprisonment in terms of section 77 of the Act, the Child Justice
Court must take, among others, the desirability of keeping the child out of prison.

4
Section 43(3)(c) of the CJA provides that “a child's first appearance at a preliminary inquiry is
regarded as his or her first appearance before a lower court, in terms of section 50 of the Criminal
Procedure Act.”

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[15] From the forenamed statutory provisions, it is evident that the CJA is child-
sensitive and is intended to provide as much protection as reasonably possible for
children who have violated the law by ensuring that they are not treated on the same
footing as adult detainees.5 In S v LM,6 the court referred to Chapter 10 of the CJA
and stated that ‘it is clear from the above provisions that the CJA creates a separate
and distinct system of criminal justice for children, the legal mechanisms and
processes of which may indeed be different from those set out in the CPA.’ Courts
are thus required to adhere to the provisions of the Act scrupulously. Moreover, the
courts are required to scrupulously comply with the provisions of the Act unless
reasons exist to depart therefrom. A wholesale departure or lackadaisical application
of the provisions of the Act will not pass muster.7

THE FIRST CASE – WARRANT ENQUIRY (CASE NUMBER: B905/22)

[16] For the sake of completeness, we will discuss the warrant enquiry case first
and thereafter, consider the second case bearing case number B1053/21. It is
common cause that the child offender was under the age of 18 at the time of the
commission of the offence and at the time of his arrest. Since the accused was a
child as envisaged in the CJA at the time of the commission of the offence and at the
hearing of the warrant enquiry, it was peremptory that his trial is conducted strictly by
following the provisions of the Act. However, throughout the proceedings in the lower
court, the child offender was treated as an adult. A Preliminary Inquiry was not
conducted. A probation officer did not assess the child offender. There was no
consideration whatsoever whether the matter should be diverted or not.

[17] The child offender was deprived of the central themes of the CJA that children
in conflict with the law should be diverted from the formal criminal justice system
whenever possible.8 The proceedings were held in an open court and not in camera
as envisioned in section 63(5) of the Act. The child offender was also not assisted by
his parent or guardian or an appropriate adult during the proceedings as envisaged

5
S v SS (Case No CA&R 42/2020) (unreported Judgment) (31 August 2020) (E) at para 20.
6
2013 (1) SACR 188 (WCC) at para 19.
7
S v JA (Unreported, Review Case No 20190063) (ECD) at para 15.
8
See Section 2(d) of the CJA.

6
in section 65 of the CJA. The court a quo did not observe the time limits relating to
postponements for the child offender. The child offender was ostensibly transported
and kept in Pollsmoor prison with adults awaiting trial detainees. More so, when he
was sentenced for failure to attend court, he was committed to prison in Pollsmoor.
The court did not consider that prison must be the last resort as the accused was a
child offender.9 The court a quo did not sentence the child offender in accordance
with chapter 10 of the CJA.10

[18] It is important to note that the South African Police Services (SAPS) are the
first point of contact when a child offender conflicts with the law.11 The accused was
arrested on 9 August 2022. The police officer who arrested the accused had a duty
to treat the accused as a child if he was uncertain about the age of the accused.
Section 12 of the CJA requires a police official to lean in favour of treating a child
offender as a child in terms of the Act if the child’s age is uncertain until a probation
officer or medical practitioner has expressed an opinion on the age of the person or
until the determination of that person’s age at the Preliminary Inquiry or Child Justice
Court. Section 13 of the CJA also empowers the probation officer to estimate the
child offender’s age. Therefore, within the schematic framework of the CJA, courts
must be prudent to ensure that as soon as minors are apprehended, their age must
be established.

[19] More importantly, section 14, read with Regulation 15 of the Act, enjoins the
presiding officer in the Preliminary Inquiry or in the Child Justice Court to determine
the age of the child if the age of a child at the time of the commission of the alleged
offence is uncertain.

[20] It is highly concerning that the court a quo did not determine the age of this
child offender despite all the provisions discussed above, set out in the Act. At the
hearing of the warrant enquiry, the court had an inherent responsibility to determine
the age of the juvenile accused and not to abdicate that responsibility to the prison

9
2008 (2) SACR 135 (SCA) para 39.
10
Section 68 of the CJA provides that “a child justice court must, after convicting a child, impose a
sentence in accordance with this chapter”.
11
See S v DW 2017(1) SACR 336 (NCK) at para 10.

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officials. If the court was uncertain, the court was enjoined to determine the age of
the accused as envisaged in section 14 of the CJA. During the sentence
proceedings, it was incumbent upon the court to act dynamically to obtain full
particulars of the accused's personality, age, date of birth, and other relevant
personal circumstances.12 Had the court done so, it would have discovered that the
accused was under the age of 18 years. Instead, the inquiry conducted by the court
in mitigation of sentence was perfunctory and lacking in substance. It is very
worrying that court officials called upon to uphold the Constitution and to dispense
justice, failed to protect the juvenile accused’s rights entrenched in section 28 of the
Constitution.

[21] In our view, the court and its officials shirked their responsibility of ensuring
that the juvenile accused is treated in terms of the provisions of the CJA. It is
unfathomable that it was the prison officials, as opposed to the court and its officials,
who took the responsibility to investigate the age of the accused. They immediately
brought this information to the court’s attention long after the accused was
sentenced and detained. If the prison officials were indolent and lackadaisical in their
work, this case would have fallen through the cracks to the prejudice of the child
offender. The prison officials must be credited and praised for the excellent work
they did in this matter.

[22] What we find very disturbing is that the said juvenile was previously convicted
of theft on 11 July 2022 by the same court under case number 1053/2021, in respect
of what we refer to as the second case in this judgment, discussed below. The
record of that matter (the second case) reveals that the accused was treated as a
juvenile. The charge sheet recorded that he was 16 years old. In that case, he was
assessed by a probation officer as envisaged in chapter five of the CJA. The court
conducted a Preliminary Inquiry, and the matter eventually ended in the Child Justice
Court. What is very much disturbing is that the prosecutor, one Ms L Davids, who
dealt with the matter when the warrant enquiry was held under case B905/22, is the
same prosecutor who was involved in case number 1053/21 (the second case) in
which the accused was treated as a juvenile.

12
See S v Z en Vier Ander Sake 1999 (1) SACR 427 (E).

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[23] Notably, the Legal Aid Attorney, Ms Klein, who represented the accused
during the warrant enquiry proceedings, is the legal representative who represented
the child offender on 11 July 2022 under case number B1053/21 (the second case).
She appeared on behalf of the accused several times under B1053/21. She was also
in contact with the child offender’s mother when the latter could not attend court as a
guardian for the accused due to work commitments. We believe Ms Klein as a legal
representative of a child offender, had the legal duty to uphold the highest standards
of ethical behaviour and professional conduct. 13 If it is the case that she was
uncertain or in doubt about the age of the accused; she could have easily
established this fact during consultation or even called the accused’s mother.

[24] In our judgment, a practitioner must make a concerted effort to ensure that the
child's best interests are served. As a matter of principle, we would state that
practitioners should go the extra mile when child offenders are involved. Ultimately,
justice must not only be done but must also be seen to be done.14 In this case, we
do not doubt that the attorney failed the child offender – her client.

[25] Undoubtedly, on a conspectus of all the facts placed before this court, both
court officials were aware or should have been aware that the child offender was a
minor. They were aware or should have been aware that the accused’s mother
assisted the juvenile accused two months earlier (before the warrant enquiry
hearing) during the court proceedings under case number B1053/21. They were
ethically obliged to assist the court in this regard. They had a duty to inform the court
that the accused was a minor when his theft case was finalised in July 2022. We
appreciate that they deal with many cases daily. Still, such laxity and carelessness is
unacceptable and fall short of the attributes expected from court officials. More so,
after it was discovered that the accused was a minor, the accused was brought to
court. He then told the court that he had informed his attorney when the court
conducted the warrant enquiry that he was 17 years old. The fact that the juvenile

13
See section 80(1)(e) of the CJA.
14
S v DW 2017 (1) SACR 336 (NCK) at para 14.

9
accused was delinquent did not detract from the fact that he had to be treated as a
child.

[26] Since the accused was a child at the time of the commission of the offence
and the commencement of the proceedings, it was peremptory that the proceedings,
including the warrant enquiry, be conducted strictly in accordance with the provisions
of the CJA. The entire proceedings grossly infringed on the child offender’s
constitutional rights. In our view, the treatment of the child offender as an adult
person while awaiting his trial and even during the warrant enquiry, was an
egregious misdirection on the part of the court. This irregularity had far-reaching
consequence on the child offender’s constitutional rights, which in our view, defiled
and contaminated the entire proceedings. The child offender was deprived of all the
protection envisaged by the CJA. In the circumstances, the fact that the child
offender was tried and sentenced without the peremptory provisions of the CJA
observed renders the entire proceedings unfair. It is a travesty of justice which in our
opinion, is unjustifiable and inexcusable. Significantly, we are not persuaded that the
court was justified in authorising the warrant of arrest against the accused. The child
offender was in attendance with his attorney on the day in question and was not
warned to appear in court A or to remain in attendance until he was called.

[27] The irregularities committed in this matter are so gross and amount to a
failure of justice. In S v Jaipal 2005 (4) SA 581, at para 39, the court stated that ‘a
conviction and sentence will only be set aside if the irregularity has led to a failure of
justice. If an irregularity leads to an unfair trial, then that will constitute a failure of
justice. Each case will depend upon its facts and peculiar circumstances.’ In our
view, the proceedings relating to the warrant enquiry must be set aside due to a
gross irregularity that led to a failure of justice.

[28] Before we turn to case B1053/2021 (the second case), there is something
important on the record of proceedings of the court a quo that demands the attention
of this court. It is worth noting that nowhere do the proceedings appear to be digitally
recorded. The record of proceedings in the court below are so cryptic and recorded

10
on pro forma form. This kind of notation is not encouraged as it might not always
result in a true and accurate reflection of the actual proceedings. 15 Digital or
mechanical recording of court proceedings, including postponements and warrant
enquiries, is to be encouraged in all courts. Judicial officers should record faithfully
and honestly what transpires during the court proceedings. 16 Rule 66 of the
Magistrates Court rules does not envisage the usage of templates or pro forma
forms. Instead, the rule provides as follows:

“The plea and explanation or statement, if any, of the accused, the evidence orally
given, any exception or objection taken in the course of the proceedings, the rulings
and judgment of the court and any other portion of criminal proceedings, may be
noted in shorthand (also in this rule referred to as “shorthand notes”) either verbatim
or in narrative form or recorded by mechanical means.”

[29] This rule makes it abundantly clear that only the shorthand notes of the
presiding officer or the transcribed record of the digitally recorded proceedings form
part of the record. In casu, when the matter was transferred from court B to court A
on 12 October 2022, the court did not note on the record that the accused was
warned to appear in court A and that he had to remain in attendance. The
magistrate's cryptic notes only recorded that the accused was on warning in an
acronym notation (O/W). Notwithstanding this deficiency, the presiding officer in
court A, authorised a warrant of arrest against the accused for failure to appear in
court. This was despite the fact that the accused was in court B earlier with his
attorney Ms Myberg. The defence attorney in court A, Ms Lurai, where the warrant
was authorised, informed the court that she had no instructions. This case reveals
the shortcomings of the Legal Aid Offices at Stellenbosch. Proper coordination
between the two legal representatives could have averted this unfortunate
eventuality. Ms Myberg, who appeared for the accused in court B, should have
informed Ms Lurai in court A that the accused was in attendance and that his case
was transferred to court A. We expect that the relevant authorities will attend to
these deficiencies.

15
S v Fransman; S v Nstikelelo Kowa (Case No. 17531 & 17532) (22 June 2018) (WCC) at para 19.
16
See S v Phundula; S v Mazibuko; S v Nievoudt 1978 (4) SA 855 (T) at 862.

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THE SECOND CASE – CASE NUMBER B1053/2021

[30] This leads us to case number B1053/2021 (the second case). As discussed
above, when we perused the record of proceedings concerning the above matter
(case No. B905/22 – warrant enquiry matter), we discovered that the accused was
previously convicted of theft in May 2022. We then requested a copy of the charge
sheet in respect of that matter. After perusing that record (case No. B1051/21), we
discovered that the matter was finalised, and of the two counts of theft the accused
was charged with, the accused was sentenced to three years imprisonment in
respect of each count, and the whole sentence was suspended on normal
conditions. In addition, the court a quo ordered that the sentence is not reviewable.

[31] We directed an inquiry to the presiding officer to explain why he did not refer
the matter to the High Court in terms of section 85 of the CJA, and why he ordered
that the matter was not reviewable. In response, the magistrate stated that the
matter was marked not reviewable because the sentence imposed was wholly
suspended, and that the child offender enjoyed legal representation from Legal Aid.
The magistrates also alluded to the fact that the child offender was under the age of
16 years when he committed the offences as provided for in section 85(1)(a) of the
CJA and that he was not sentenced to direct imprisonment or compulsory residence
in a Child and Youth Care Center as provided for in terms of section 85(1)(b) of the
CJA hence, the order that the matter is not reviewable. We consider these reasons
hereunder.

[32] The original charges which were levelled against the child offender in this
matter were housebreaking with intent to steal and theft, three counts of theft, and
possession of car or housebreaking implements. The charge sheet also records that
the juvenile accused was 16 years old when he committed the offences. The child
offender was arrested on 14 November 2021 and made his first appearance in court
on 15 of November 2021. Regrettably, there were several postponements before the
matter could be heard. The trial commenced on 23 May 2022. At the trial, the
prosecutor preferred two counts of theft against the child offender and withdrew the

12
remaining charges. The said juvenile pleaded guilty to the two counts and was
sentenced accordingly.

[33] There are several irregularities that this court observed on the record of
proceedings of the court a quo which vitiate the proceedings. Noticeable from the
record, is the order and the magistrate's reasons that the matter is not reviewable
because an attorney from Legal Aid represented the accused. The magistrate’s
order that the sentence imposed is not reviewable is erroneous and amounts to a
misdirection on the application of the law which conflicts with the scheme envisaged
by the CJA. Section 85(1) of the CJA, which deals with reviews of criminal matters
involving child offenders, was amended by section 39 of the Judicial Matters
Amendment Act 42 of 2013 (“the JMAA”), which came into effect on 22 January
2014.

[34] Section 85(1) of the CJA, before it was amended, provided as follows:

“The provisions of the Chapter 30 of the Criminal Procedure Act dealing with the
review of criminal proceedings in the lower courts apply in respect of all children
convicted in terms of this Act: Provided that if a child was, at the time of the
commission of the alleged offence-

(a) Under the age of 16 years; or

(b) 16 years or older but under the age of 18 years, and has been sentenced to
any form of imprisonment that was not wholly suspended, or any sentence of
compulsory residence in a child and youth care centre providing a programme
provided for in section 191 (2)(J) of the Children’s Act, the sentence is subject to
review in terms of section 304 of Criminal Procedure Act by a judge of the High
Court having jurisdiction, irrespective of the duration of the sentence.”

[35] The amended section 85(1) of the CJA now reads as follows:

“(1) The provisions of Chapter 30 of the Criminal Procedure Act dealing with the
review of criminal proceedings in the lower courts apply in respect of all children

13
 convicted in terms of this Act: Provided that if a child has been sentenced to any
form of imprisonment or any sentence of compulsory residence in a child and youth
care centre providing a programme provided for in section 191(2)(j) of the Children's
Act, the sentence is subject to review in terms of section 304 of the Criminal
Procedure Act by a judge of the High Court having jurisdiction, irrespective of-

(a) the duration of the sentence;

(b) the period the judicial officer who sentenced the child in question has held the
substantive rank of magistrate or regional magistrate;

(c) whether the child in question was represented by a legal representative; or

(d) whether the child in question appeared before a district court or a regional court
sitting as a child justice court.”

(2) The provisions of subsection (1) do not apply if an appeal has been noted in
terms of section 84

[36] This section deals with the reviews of criminal matters involving child
offenders. In contrast, section 303, read with section 304 of the CPA, deals with
automatic reviews in the ordinary course for criminal proceedings in the magistrate’s
court. Before section 85(1) was amended, the section received several
interpretations by the various divisions of our courts. 17 The courts grappled with
questions about whether all cases regarding children under 16 years go on review or
not. For example, do all cases regarding custodial sentences (that are not
suspended) go on review, regardless of the experience of the magistrate, whether it
was a regional court that issued the sentence, the length of the sentence, and even if
the child was legally represented?18

17
See S v Nakedi [2012] ZANWHC 5 (2 January 2012); S v Fortuin [2011] ZANCHC 28 (11
November 2011); S v Stander 2012 (1) SACR 595 (ECP); S v FM [2012] ZAGPPHC 180 (20 August
2012)
18
See Skelton “The automatic review of child offenders’ sentences” SA Crime Quarterly no 44 (June
2013).

14
[37] The golden thread that has flowed from those decisions has been that section
85(1) must be interpreted to provide for the automatic review under section 302 of
the CPA in respect of all children convicted in terms of the CJA who are sentenced
to any form of imprisonment not wholly suspended, or any sentence of compulsory
residence in a child and youth care centre.19 The courts preferred an interpretation
that was in keeping with the constitutional injunction that the detention of juveniles
must be a measure of last resort and for the shortest appropriate period. This
interpretation, in our view, was consistent with the paramountcy of the child’s best
interests and the idea that the CJA seeks to establish a separate criminal justice
system for children.

[38] The amendment of section 85(1) in terms of the JMAA put to bed any
confusion or uncertainty on the review of criminal matters for child offenders. Section
85(1) of the CJA in its amended form, is clearly intended to extend the protection of
children in criminal cases through the automatic review process. It does so by
providing that in addition to the qualified right to automatic review created by section
302 of the CPA, if a child is sentenced to any form of imprisonment or detention in a
Child and Youth Care Centre, he or she has, in addition, an unqualified right to have
the proceedings reviewed automatically.20 The High Court as an upper guardian of
all minor children exercises supervisory jurisdictions to ensure that the constitutional
injunction envisaged in section 28(1)(g) of the Constitution to the effect that children
have a right not to be detained except as a measure of last resort is complied with.
Importantly, section 85(1), in its amended form, is consistent with the common law
principle that the High Court as the upper guardian of minor children, is empowered
and is under a duty to enquire into all matters concerning the best interests of minor
children. Accordingly, it has extremely wide powers in establishing what such
interests are.21
[39] It is abundantly clear from the reading of the amended section that a sentence
that involves any form of imprisonment or any sentence of compulsory residence in a

19
See S v John Pierre Ruiter [2011] ZAWCHC 265 (14 June 2011); S v FM 2013 (1) SACR 57 (GNP);
S v LM 2013 (1) SACR 188 (WCC).
20
S v KS (unreported judgment, Case No. CA&R 54/2015 04 March 2015) at paras 9 and 10 (E)
21
H v Fetal Assessment Centre 2015(2) SA 193 (CC) at para 64.

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Child and Youth Care Centre, is subject to review in terms of section 85 of the CJA
by a judge of the High Court having jurisdiction. For clarity and certainty, we must
add that this includes a sentence of imprisonment with an option of a fine and even a
wholly suspended sentence.

[40] In our view, the section applies to a wholly suspended sentence because a
wholly suspended sentence cannot be enforced unless the condition is breached; it
however remains in force and can be brought into operation if, during the period of
22
suspension, the accused breaches the suspension condition. Notably, the
interpretation of section 85(1) of the CJA that a wholly suspended term of
imprisonment is automatically reviewable conforms with the objects of the CJA. It
overcomes the problem that putting a suspended sentence into effect is not subject
to automatic review. 23 It is, therefore, inherently obligatory that the High Court
exercises its supervisory review jurisdiction as intended by the legislature in direct
prison sentences and suspended sentences.

[41] Crucially, the duration of the sentence, the fact that the accused was legally
represented during the proceedings and the period the judicial officer who sentenced
the child in question has held the substantive rank of magistrate or regional
magistrate are immaterial. The fact that the child in question appeared before a
district or a regional court sitting as a child justice court is also inconsequential. If a
sentence of imprisonment is imposed, whether with an option of a fine or wholly
suspended, such a sentence is reviewable in terms of section 85(1) of the CJA as
amended.

[42] In the circumstances, the suspended sentence imposed by the magistrate in

case number 1053/21 was reviewable in terms of section 85(1) of the CJA. The
sentence of R300 or three months imprisonment imposed against the accused for
failing to attend court under case number B905/22 was also reviewable in terms of
section 85(1) of the CJA.

22
Jaga v Donges NO and Another; Bhana v Donges NO and Another 1950 (4) SA 653 (A) at 658A.
23
See S v KS Case No. CA&R 54/2015 (E), para 14.

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[43] We now turn to consider the merits of the proceedings of the court below
under case no. B1053/21 (the second case). The accused faced two counts of theft.
On the first count of theft, it was alleged that on 13 November 2021, the accused
unlawfully and intentionally stole a pair of slippers, the property in the lawful
possession of Carmen De Koker. On the second count, it was alleged that on 14
November 2021, the accused unlawfully and intentionally stole a blade jacket,
knives, and a spatula, on the property of Daniel Zeeman. The child offender’s
attorney handed in two statements in terms of section 112(2) of the CPA in respect
of both counts. The accused confirmed the contents of the statements, and the court
allegedly returned a verdict of guilt based on those statements.

[44] In terms of section 63(3) of the CJA, the magistrate was obliged to have
informed the accused, before the plea was tendered, of the nature of the allegations
against him, to have explained to the accused his rights and the procedures to be
followed in his trial notwithstanding that the accused was legally represented. The
court below failed to adhere to this judicial injunction. What we find very concerning
is the two statements made on behalf of the juvenile accused in terms of section
112(2) of the CPA. The two statements in our view, are lacking in essential detail.
The statements are not a model of clarity. In respect of the first count, after the
charge is regurgitated, the accused admitted the following facts:

“On the day in question, I entered the store and took the pair of slippers. I ran out of
the store, someone from the store chased and caught me. I was subsequently
arrested. I admit the following: I have no defence to the charge and plead guilty. At
the time of the commission of the offence I knew my actions were wrong and
punishable by the court. My intention was to permanently deprive the owner of the
items of their possession. My legal adviser has explained the consequence of this
statement to me, and I understand.”

[45] In respect of the second count, the accused admitted the facts as follows:

“On the day in question, I saw the above-mentioned items inside the complainants’
vehicle. I took the item and left. I admit the following: I have no defence to the charge

17
and plead guilty. At the time of the commission of the offence I knew my actions
were wrong and punishable by the court. My intention was to permanently deprive
the owner of the items of their possession. My legal adviser has explained the
consequence of this statement to me, and I understand.”

[46] The two statements are lacking in essential detail. In respect of the first count,
the statement does not explain specifically where the theft occurred other than that it
was in a store. It does not tell where specifically the accused took the slippers. It also
does not disclose whether, at the time the accused ran, he had paid for the slippers
or not. It also does not show what the value of the slippers was. The statement in
respect of the second count is also couched in similar terms. It does not reveal what
the value of the alleged stolen items was. It does not tell whether the accused had
permission to take those items, nor where the item was placed before the accused
took it. It does not describe what the accused wanted to do with the items in
question. The statement does not tell how and where the accused was arrested.

[47] In terms of section 112 of the CPA, the court must be fully informed of how
the alleged offense was committed. Section 112(2) provides as follows:

“If an accused or his legal adviser hands a written statement by the accused into
court, in which the accused sets out the facts which he admits and on which he has
pleaded guilty, the court may, in lieu of questioning the accused under subsection (1)
(b), convict the accused on the strength of such statement and sentence him as
provided in the said subsection if the court is satisfied that the accused is guilty of
the offence to which he has pleaded guilty: Provided that the court may in its
discretion put any question to the accused in order to clarify any matter raised in the
statement.”

[48] Section 112(2) must not be read in isolation. It must be read in conjunction
with section 112(1)(b), which enjoins the court to question the accused regarding the
alleged facts of the case to ascertain whether he or she admits the allegations in the

18
charge. 24 While the written statement is intended to be accepted instead of
questioning by the court in terms of section 112(1), it must satisfy the court that the
accused admits the facts of the case which underlie the criminal charge.25 Nowhere
does it appear in the magistrate’s handwritten notes or anywhere in the record that
the magistrate questioned the accused on the contents of the written statements as
required by section 112(1)(b) of the CPA. The court had a duty to ensure that the
child's best interests were upheld, and to this end, to elicit additional information from
the defence and the prosecution.26

[49] What is more concerning are the allegations in the probation officer's pre-
sentence report. The probation officer records that, according to the accused, he
was instructed by one Ricky Jacobs to commit all the theft cases he is accused of.
Ricky Jacobs pretended to be the father of the accused. The report further indicates
that the said juvenile would break into vehicles and houses and give the stolen
goods to Ricky Jacobs. Mr Jacobs would, in turn, provide the child offender drugs.
The report also suggests that the accused lived with Ricky in the streets. Ricky
Jacobs used the accused to break into houses and paid him with drugs. To this end,
the probation officer recommended that the court sentence the accused to
correctional supervision in terms of section 75 of the CJA. The probation officer
noted that this would prevent the accused from reoffending as the accused would be
placed under firm supervision and monitoring.

[50] The probation officer also stated in her report that the court could add
restrictions to its order on the sentence that the accused is not allowed in
Stellenbosch, where Ricky resided. Notwithstanding these persuasive
recommendations, the court a quo imposed a wholly suspended sentence without
giving reasons for its deviation from the sentence proposed by the probation officer.
Ostensibly, the sentence made it easy for the accused to return to Ricky Jacobs. It is
so that the recommendations in a pre-sentence report do not bind a court. 27

24
S v Moya 2004 (2) SACR 257 (W) at p260.
25
S v B 1991 (1) SACR 405 (N) at 406B.
26
See section 63(4)(a) of the CJA.
27
See Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (2)
SACR 477 (CC) at paragraph 88: ". . . sentencing is a judicial function and . . . this function will be
performed by the courts and only the courts".

19
However, it was compelling, in this case, for the recommendations of the probation
officer to be seriously considered. Importantly, where recommendations are not
followed, the court must explain why the sentence differs from what was suggested
in the pre-sentence report. The court must enter the reasons for the imposition of a
different sentence on the record of proceedings.28 In this case, the court a quo did
not indicate at all or furnish reasons why it imposed a sentence other than the one
recommended by the probation officer.

[51] Considerably, the accused appeared to be a child in need of care and

protection, as envisaged in section 150(1) of the Children’s Act 38 of 2005. The
probation officer records in her report that at 16 when the accused abandoned his
home, he met Mr Ricky Jacobs, who introduced him to Tik and Mandrax. They would
often use drugs together. According to the accused, he would be given drugs instead
of money when he returned with stolen goods. Evidently, it seems Mr Jacobs took
advantage of the vulnerability of the accused and his lack of maturity. The sentence
imposed by the court blissfully ignored this fact. The suspended sentence meant that
the accused returned to Mr Jacobs, who allegedly abused and misled him. The court
a quo did not consider risks factors that would contribute to the accused reoffending.
A suspended sentence without the necessary conditions for therapeutic intervention
in the form of educational programs etc., is relatively of no consequence. If
correctional supervision had been imposed as recommended by the probation
officer, the accused would have been caused to attend educational programs that
would have assisted him in his development.29 He would have been monitored by
the probation officer and removed from Stellenbosch, out of reach of Mr Jacobs.

[52] Furthermore, the sentence imposed by the court a quo was so harsh and
inconsiderate. The court a quo did not impose the sentence following the provisions
of chapter 10 of the CJA.30 The court a quo should have heeded the provisions of

28
See section 71(4) of the CJA.
29
Section 69 (1) and (2) of the Correctional Services Act 111 of 1998 lists two additional conditions in
respect of children, namely: the child may be compelled to attend educational programmes if not
subject to compulsory education; and the Department of Correctional Services must provide access to
such social work services, religious care, recreational programmes, and psychological services as the
child may require.
30
See section 68 of the CJA.

20
chapter 10 of the CJA as a first port of call after it convicted the accused. 31 The
accused was a first offender. There is no basis whatsoever why the court a quo
imposed its maximum penal jurisdiction in respect of each count. It is unclear what
informed this decision as the values of the items in question were not verified or
placed on record. On the face of it, the stolen items are of nominal value. The fact
that the sentence is suspended does not detract from its harshness.

[53] In our view, on both plea and sentencing, the proceedings in the court a quo
amounted to a gross departure from the provisions of the Act which endeavors as far
as possible to protect children in conflict with the law. In addition, there were
unnecessary delays in this matter. It took eight months for the court a quo to finalise
this matter. The case was postponed over 32 times. The child was incarcerated for a
lengthy period in a Child and Youth Care Center facility. The presiding magistrate
stated that the reasons for the delay, among others, was that after he convicted the
accused on 23 May 2022, he was transferred very far to another station, and a
resident magistrate based in Stellenbosch, refused to invoke section 275 of the CPA
to finalise the matter. This, in our view, is unacceptable as it conflicts with section
28(2)(g)32 of the Constitution and the guiding principles of the CJA which stipulates
that all procedures in terms of the CJA should be conducted and completed without
33
unreasonable delay. In addition, section 66(1) of the CJA, echoes similar
sentiments and provides that a Child Justice Court must conclude all trials of children
as speedily as possible and must ensure that postponements in terms of this Act are
limited in number and duration.

31
See section 69 of the CJA, which provides: ‘In addition to any other considerations relating to
sentencing, the objectives of sentencing in terms of this Act are to - (a) encourage the child to
understand the implications of and be accountable for the harm caused; (b) promote an individualised
response which strikes a balance between the circumstances of the child, the nature of the offence
and the interests of society; (c) promote the reintegration of the child into the family and community;
(d) ensure that any necessary supervision, guidance, treatment or services which form part of the
sentence assist the child in the process of reintegration and (e) use imprisonment only as a measure
of last resort and only for the shortest appropriate period of time.”
32
Section 28(1)(g) of the Constitution provides that “a child has a right not to be detained except as a
measure of last resort, in which case, in addition to the rights a child enjoys under section 12 and 35,
the child may be detained only for the shortest appropriate period of time…” (emphasis added).
33
See sections 3(f) of the CJA.

21
[54] On a conspectus of all the facts placed before us, the proceedings in the court
a quo in both case number B905/22, and B1053/22, were not in accordance with
justice.

ORDER

[55] In the result, the following order is granted:

55.1 The conviction and sentence in case number B905/22 are hereby set aside.

55.2 The conviction and sentence in case number B1053/22 are hereby set aside.

55.3 In terms of section 47 of the Children’s Act 38 of 2005, the court directs that
the question whether the accused needs care and protection is referred to the Social
Worker, Ms Danhouse of Stellenbosch, for an investigation as contemplated in
section 155(2) of the said Act. Ms Danhouse is directed to report back to this court
within a period of three months from the date of this order, the outcome of the
Children’s Court inquiry.
LEKHULENI JD
JUDGE OF THE HIGH COURT
NZIWENI CN
JUDGE OF THE HIGH COURT

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