S v Goliath

• Jurisdiction: South Africa
• Judgment Date: 14 February 2014
• Citation: 2014 (2) SACR 290 (ECG)

S v Goliath
2014 (2) SACR 290 (ECG)

2014 (2) SACR p290

Citation	2014 (2) SACR 290 (ECG)
Case No	CA&R 36/2014
Court	Eastern Cape Division, Grahamstown
Judge	Pickering J and Roberson J
Heard	February 14, 2014
Judgment	February 14, 2014
Counsel	No counsel supplied

Flynote : Sleutelwoorde

Juvenile offenders — Sentence — Committal to child and youth care centre — Centre in question becoming dysfunctional after committal of accused — Court that sentenced accused functus officio and alternative sentence to be imposed after setting-aside of original sentence on G review — Child Justice Act 75 of 2008, s 76(1).

Headnote : Kopnota

The juvenile accused in this matter was convicted in a regional court sitting as a child justice court as defined in the Child Justice Act 75 of 2008 (the Act), of two counts of rape and was sentenced in terms of s 76(1) of the Act to H compulsory residence at the Bhisho Special Care Child and Youth Care Centre. After he had been detained there for a while, the resident magistrate became concerned at reports as to what was happening at the Bhisho facility and he paid an unannounced visit where he discovered that there was no proper supervision of the inmates and security officials were afraid of the children. The facility was, in short, totally dysfunctional. As a result of this, he launched an urgent application in the high court, Bhisho, calling on the I officials and bodies responsible for the running of the facility to account for the whereabouts and safety of the children entrusted to the facility. Following upon this, the facility was closed down and the children that were detained there were transferred in the meantime to other facilities. The urgent application came before the court on a number of occasions and in terms of an implementation plan that was made an order of court by J agreement between the various parties the courts that sentenced the

2014 (2) SACR p291

individual accused were to consider the imposition of alternative sentences. A In the case of the present accused the matter came before the original magistrate who was of the opinion that he was functus officio and accordingly submitted the matter on review. At the request of the court the deputy director of public prosecutions furnished an opinion in which it was suggested that the regional magistrate was incorrect in believing that he was B functus officio as the matter could be disposed of by the regional magistrate in terms of s 76(4)(e) of the Act as it was clear from the founding affidavit in the urgent application that the Bhisho facility was no longer providing the requisite programmes and was accordingly not a child and youth care centre as envisaged by the Act.

Held, that it was not in dispute that the Bhisho facility was built at tremendous C cost as a high security facility in terms of the applicable legislation in order to cater for children in conflict with the law and that it commenced functioning as such in terms of that legislation. The fact that it thereafter became dysfunctional, lamentable as that may be, could not alter the facility's statutory status as a child and youth care centre. Furthermore there was no evidence to the effect that at the time when the present accused D was admitted to the facility it was already dysfunctional and that therefore he had never been admitted to such a centre. (Paragraph [18] at 296e – g.)

Held, further, that s 76(4)(d) was enacted in order to cater for the type of situation that arose when a child languished in a prison or other place of detention for longer than a month whilst awaiting transfer to a child and youth care centre. If it appeared in the course of the presiding officer's E enquiry that the child had not been admitted to the centre within the preceding month then the presiding officer was enjoined, in terms of s 76(4)(e), to hold an enquiry and to take appropriate action, which could include the imposition of an alternative sentence. Other than in those circumstances, once a child sentenced to compulsory residence in a child F and youth care centre had been admitted to such a centre, the court which sentenced that child became functus officio. (Paragraphs [20] – [22] at 296j – 297d.)

Held, further, that the regional magistrate in the present matter was indeed functus officio and the sentence imposed had to be set aside and the case remitted to the regional magistrate for sentencing afresh. (Paragraphs [25] – [26] at 297j – 298a.) G

Annotations:

Cases cited

Case law

Cornelius Goosen NO v MEC Basic Education, Eastern Cape and Four Others (ECB case No 459/13): discussed H

R v Mthembu 1959 (4) SA 129 (N): dicta at 131E – F applied

S v Katu 2001 (1) SACR 528 (E): distinguished

S v Z and 23 Similar Cases 2004 (1) SACR 400 (E) ([2004] 1 All SA 438): distinguished

West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173: I applied.

Legislation cited

Statutes

The Child Justice Act 75 of 2008, ss 76(1), (4)(d) and (4)(e): see Juta's Statutes of South Africa 2012/13 vol 1 at 2-760.

Case Information

Review. J

2014 (2) SACR p292

Order

(1)

The A certificate dated 20 September 2012 by Pickering J in terms of s 304(1) of the Criminal Procedure Act 51 of 1977 is withdrawn.

(2)

The sentence imposed on the accused in set aside.

(3)

The matter is remitted to the regional magistrate, Somerset East, for B sentencing afresh.

Judgment

Pickering J (Roberson J concurring):

[1] The accused in this matter was convicted in the regional court, Somerset East, sitting as a child justice court as defined in the Child C Justice Act 75 of 2008 (the Act), on two counts of rape in contravention of the provisions of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. At the time he was a mere 14 years of age. The regional magistrate, taking both counts as one for purposes of sentence, sentenced the accused in terms of s 76(1) of the D Act to compulsory residence at the Bhisho Special Care Child and Youth Care Centre (the Bhisho facility). The accused was thereafter admitted to the Bhisho facility.

[2] As required by s 85(1)(a) of the Act the matter was sent for automatic review in terms of s 304 of the Criminal Procedure Act 51 of 1977. It came before me on 20 September 2012 on which date E I confirmed both the convictions and the sentence.

[3] During July 2013 Mr Goosen, the resident magistrate at Nerina One Stop Justice Centre in Port Elizabeth, became concerned as to what was happening at the Bhisho facility after reading a newspaper article in the F Daily Dispatch. That article reported that staff members at the facility had been attacked, robbed and threatened with rape and that the children at the facility were a law unto themselves. He was also made aware of correspondence addressed by concerned persons to the relevant officials at the Department of Social Development in which the problems G at the...