S v M and Another

• Jurisdiction: South Africa
• Citation: 2005 (1) SACR 481 (E)

S v M and Another
2005 (1) SACR 481 (E)

2005 (1) SACR p481

Citation	2005 (1) SACR 481 (E)
Case No	232/2003
Court	Eastern Cape Division
Judge	Pickering J and Erasmus AJ
Heard	March 31, 2003
Judgment	March 31, 2003

Flynote : Sleutelwoorde

Juvenile offenders — Assistance of parent or guardian at trial — Attendance at B trial by accused's parent or guardian in terms of s 74 of Criminal Procedure Act 51 of 1977 — Absence of accused's parent or guardian from trial — Incumbent on court to enquire as to identity and whereabouts of accused's parent or guardian and to warn him or her, if traceable, to attend at court in order to establish his C or her attitude towards assisting accused at trial.

Juvenile offenders — Sentence — Personal circumstances of accused — Absence of probation officer's report — Incumbent on court to call for explanation as to absence of report — On facts, given absence of accused's D parent or guardian, absence of probation officer's report and accused's own scant evidence as to his personal circumstances, insufficient evidence before court as to personal circumstances of accused to enable court to impose sentence.

Headnote : Kopnota

Accused 1 and 2, aged 15 and 17 years respectively, had been E convicted and sentenced in the magistrate's court in the absence of their parents or guardians and in the absence of probation officers' reports which might have detailed, inter alia, their personal circumstances. The investigating officer testified that no one was prepared to accept responsibility for accused 1. The magistrate convicted and sentenced the accused without making any effort to secure F the attendance of their parents or guardians at the trial or even to ascertain their identities or whereabouts. As regards the probation officers' reports, it appeared from the record that the matter had been postponed several times in order to enable the State to procure such reports. When they remained unavailable, the magistrate sentenced the accused without endeavouring even to ascertain the reasons for their unavailability. G

Held, that the investigating officer's ipse dixit that no one was prepared to accept responsibility for accused 1 was insufficient: The magistrate ought to have warned accused 1's parents to attend at court and to have ascertained from them, personally, their attitude towards assisting accused 1 at the trial. (At 480b - c.) H

Held, further, that, absent the attendance of the accused's parents or guardians at the trial, absent probation officers' reports and given only the very scant evidence of the accused themselves regarding their personal circumstances, there was very little, if any, evidence before the court regarding the personal circumstances of the accused when they were sentenced. (At 480d.)

Held, further, that the magistrate erred in sentencing the I accused in the absence of probation officers' reports. He ought to have called for an explanation as to the absence of such reports and to have taken the matter further. He erred in sentencing the accused on the paltry evidence before him as to their personal circumstances. (At 484e - f.)

Held, accordingly, that the convictions be confirmed; that the sentences be set aside and the matter be remitted to the trial court so that probation officers' J

2005 (1) SACR p482

reports might be obtained and the A accused be sentenced de novo in the light of those reports. (At 484g.)

Annotations:

Cases cited

Reported cases

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

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

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

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