S v CA

• Jurisdiction: South Africa
• Judge: Henney J and Lekhuleni AJ
• Judgment Date: 26 May 2021
• Court: Western Cape Division, Cape Town
• Hearing Date: 26 May 2021
• Citation: 2021 (2) SACR 443 (WCC)
• Counsel: Counsel details not supplied
• Docket Number: 161/2021

Lekhuleni AJ (Henney J concurring):

Introduction

[1] This case comes before me by way of review in terms of s 85 of the Child Justice Act (the CJA) read with ch 30 of the Criminal Procedure Act 51 of 1977 (the CPA). The accused was 17 years old at the time of the commission of the offence and was 18 years old at the time of sentencing. He was convicted on 9 April 2021 by the regional court sitting at Wynberg, on a charge of robbery with aggravating circumstances. He was legally represented in the court a quo and his conviction followed a plea-and-sentence agreement in terms of s 105A of the CPA. The court a quo subsequently sentenced him to five years' imprisonment on condition that he was not convicted of robbery aggravating, robbery or attempted robbery during the period of suspension. In terms of s 103(1)(g) of the Firearms Control Act 60 of 2000, the court deemed the accused unfit to possess a firearm. This matter is subject to automatic review in terms of the provisions of s 85 of the CJA. Essentially, this court is enjoined to consider whether the proceedings before the court below appear to be in accordance with justice.

[2] The record of proceedings from the court a quo was placed before me on 5 May 2021. Having perused the record on 6 May 2021, I formed the opinion that the conviction of the accused was in accordance with justice. However, I was concerned with the manner in which the sentence was couched or formulated. I was also concerned with a number of procedural irregularities during the plea-and-sentence proceedings that the trial court committed, which, in my view, were not so gross as to vitiate the proceedings.

Lekhuleni AJ (Henney J concurring)

Factual matrix

[3] The state alleged that upon or about 19 April 2020 and at or near Baviaanskloof, Hout Bay, Western Cape, the accused did unlawfully and intentionally assault Amanda Bhe by threatening her with a knife, and did there with force take from her a Samsung cellphone valued at R1200, her property or property in her lawful possession. The accused pleaded guilty to the charge in terms of a plea-and-sentence agreement. In terms of s 105A(5) of the CPA, the content of the agreement was disclosed to the court and the substantial facts of the agreement were read into the record.

[4] The facts gleaned from the plea-and-sentence agreement are that on the 19 April 2020, and at Hout Bay, the accused was walking with his friend, and they saw the complainant, a young African lady walking alone in Baviaanskloof. The accused ran towards the complainant and demanded that she hand over her cellphone to him. The accused's friend took out a knife and approached the complainant from the back, and pointed the knife at the complainant. The complainant noticed the accused's friend standing behind her with the knife, and out of fear she handed the cellphone to the accused. After they got the cellphone from the complainant, the accused and his friend ran away. The accused and his friend subsequently sold the cellphone and used the proceeds thereof to buy drugs. The accused admitted that he was acting in concert with his friend when they robbed the complainant. On 13 June 2020 the complainant was driving with the police in their car, and she pointed out the accused to the police, and they arrested him. As a mitigating factor, the trial court was informed that the accused repaid the complainant the sum of R1500 as a replacement value for the phone they robbed her of.

[5] On being questioned by the court in terms of s 105A(6), whether he admitted the terms of the agreement, the accused confirmed the content of his statement...