S v M and Another

• Jurisdiction: South Africa

S v M and Another
2003 (2) SACR 212 (Tk)

2003 (2) SACR p212

Citation	2003 (2) SACR 212 (Tk)
Case No	202675
Court	Transkei Division
Judge	Maya J and Peko J
Heard	February 25, 2003
Judgment	February 25, 2003

Flynote : Sleutelwoorde

Juvenile offenders — Assistance of parent or guardian at trial — Undefended juvenile below age of 18 B years has right to be assisted by parent or guardian in criminal proceedings — Such accused has right to be informed of such right and should be given opportunity to contact them — Right to be so informed is not dependent on nature of plea — However, non-compliance with provisions of ss 73 and 74 of Criminal Procedure Act 51 of 1977 not necessarily C constituting fatal irregularity warranting setting aside of proceedings — There must be proof of substantial prejudice to accused or miscarriage of justice.

Headnote : Kopnota

Sections 73(3) and 74(1) of the Criminal Procedure Act 51 of 1977 create a right for an undefended juvenile who is below the age of 18 D years to be assisted by a parent or guardian in criminal proceedings. Such an accused has a right to be informed of such right and should be given an opportunity to contact them. The accused's right to be so informed is not dependent on the nature of the plea. However, non-compliance with the provisions of ss 73 and 74 does not necessarily constitute a fatal irregularity warranting the setting E aside of proceedings. There must be proof of substantial prejudice to the accused or a miscarriage of justice. (At 213i - 214c.)

Annotations:

Cases cited

Reported cases

Khumbusa v The State and Another 1977 (1) SA 394 (N): applied F

S v Gibson NO and Others 1979 (4) SA 115 (A): dictum at 138B - C applied

S v H and Another 1978 (4) SA 385 (E): applied

S v Lebokeng en 'n Ander 1978 (2) SA 674 (O): applied

S v Mkhize 1978 (1) SA 264 (N): applied

S v N 1997 (1) SACR 84 (Tk): applied

S v Peterson en 'n Ander 2001 (1) SACR 16 (SCA): applied G

S v Ramadzanga 1988 (2) SA 816 (V): applied

S v Z en Vier Ander Sake 1999 (1) SACR 427 (E): applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 73(3) and 74(1): see Juta's Statutes of South Africa 2002 vol 1 at 1-335. H

Case Information

Automatic review.

Judgment

Maya J:

On 21 February 2001 the unrepresented accused appeared before the magistrate, Willowvale, Mr K B Tabu, on charges of housebreaking and theft of a firearm and its ammunition. There is no indication of the nature of their pleas on the I record, the magistrate having merely recorded 'PP suggest (sic) that accused persons (sic) plea (sic) be accepted as they stand'. I am presuming that they pleaded guilty, as the magistrate proceeded to question them, presumably in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 (hereinafter 'the J

2003 (2) SACR p213

Maya J

Act'). After such questioning the 16-year-old accused No 1 was convicted as charged and A the 18-year-old accused No 2 on 'possession', which I presume, having regard to the rest of the record and his reasons for convicting him, means receiving stolen property knowing it to be stolen. Accused No 1 was then sentenced to undergo two years' imprisonment on each count. Accused No 2 was sentenced to undergo 18 months' imprisonment. The proceedings were finalised on the same day, 21 February 2001. B

The record of the proceedings reached the Registrar of this Court for automatic review on 22 March 2001, long after the week envisaged in s 303 of the Act which provides for the transmission of the record to the High Court for review. On 23 March 2001 I sent the magistrate a memorandum querying some aspects of the proceedings, urgently seeking his reasons. C

In a reply received by the Registrar only on 3 October 2001, which contains no explanation for the undue delay, despite the fact that his establishment apparently received the query in May 2001 judging from the official stamp mark appearing thereon, he says: D

'Ad 1

As accused No 1 from the very onset had pleaded guilty to the charges against him the court felt that as that was an indication on his part that he had no defence in the matter with (sic) the same token that meant that even his parent would not have had any role to play as there was nothing he was going to defend accused on. E

Let the judicial officer also hasten to say that if, for instance, accused No 1 had pleaded not guilty the court would...