S v N

• Jurisdiction: South Africa
• Judge: Dukada AJ and Miller J
• Judgment Date: 23 August 1996
• Citation: 1997 (1) SACR 84 (TK)
• Hearing Date: 23 August 1996
• Court: Transkei Supreme Court

S v N
1997 (1) SACR 84 (TK)

1997 (1) SACR p84

Citation	1997 (1) SACR 84 (TK)
Court	Transkei Supreme Court
Judge	Dukada AJ and Miller J
Heard	August 23, 1996
Judgment	August 23, 1996

Flynote : Sleutelwoorde B

Juvenile offenders — Assistance of parent or guardian at trial — Unrepresented and unassisted 15 year old accused — Non-compliance with ss 73 and 74 of the Criminal Procedure Act 51 of 1977 constituting fatal irregularity of proof of substantial prejudice to the accused or a miscarriage of justice — In addition the accused entitled to a fair trial in terms of s 25(3) of the Constitution Act 200 of C 1993 — Test depends on the circumstances with the question of prejudice being the main yardstick in such an enquiry — Factors considered — Serious charge and accused's lack of appreciation thereof; haste with which accused brought before court; lack of effort in locating accused's parent or guardian; no evidence that accused mature enough to conduct her defence as if she were D an adult; possible influence of lack of legal representation or assistance on her decision to plead guilty; and inadequate investigation into the personal circumstances of the accused — Gross irregularity in proceeding with matter in absenc of parent or guardian — In instant case the accused did not receive a fair trial — Conviction and sentence set side. E

Headnote : Kopnota

The accused was convicted of dealing in 7 kg dagga in contravention of s 2(a) of Act 41 of 1971 and sentenced to a fine of R1 000 or two years' imprisonment, half of which was suspended for three years on condition that she was not convicted of a F contravention of s 2(a) or (b) of the same Act during the period of suspension. The 15 year old accused elected to conduct her own defence a day after she was arrested and pleaded guilty without the assistance of her parents or guardian. The question on review was whether the proceedings were in accordance with justice. G

In order to determine whether the proceedings were in accordance with justice the Court held that it was necessary to examine the proper interpretation of ss 73 and 74 of the Criminal Procedure Act 51 of 1977 and the Constitution Act 200 of 1993. Non-compliance with ss 73 and 74 did not per se constitute a fatal irregularity H warranting the setting aside of the proceedings unless there was proof of substantial prejudice to the accused or a miscarriage of justice. Apart from these provisions the accused was entitled to a fair trial in terms of s 25(3) of the Constitution. The test for determining this depended on the circumstances, with the question of prejudice being the main yardstick in such an enquiry. The following features went to the root of the I enquiry: the accused was brought before the court with remarkable haste; no effort was made either by the court or the police to ensure that the parent or guardian of the accused was available to assist her in conducting her defence; she resided wthin the court's jurisdiction and there was no evidence to indicate any hardship in securing the attendance of her parent or guardian; the charge was J

1997 (1) SACR p85

serious; in all probability the accused, in electing to conduct her own defence, was not A aware of the seriousness of the offence and the nature of punishment likely to be imposed; it was not possible for the court to determine an appropriate sentence without an investigation into her personal circumstances; there was no evidence that the accused was mature enough to conduct her own defence as if she were an adult person; and the fact that the accused was not legally represented or assisted by a B guardian may have influenced her to tender a plea of guilty.

The Court accordingly held that the magistrate had committed a gross irregularity in proceeding with the matter in the absence of the parent or guardian of the accused. Consequently, the accused did not receive a fair trial as envisaged by s 25(3) of the C Constitution. The conviction and sentence were accordingly set aside.

Case Information

Review.

Judgment

Dukada AJ:

On 22 October 1996 the accused, aged 15 years, was arrested by police for being in possession of dagga weighing 7 kg. She appeared before court on D 23 October 1996 on a charge of dealing in dagga in contravention of the provisions of s 2(a) of Act 41 of 1971. At the commencement of trial, the presiding officer advised the accused about her right to legal representation but she elected to conduct her own defence. She pleaded guilty to the charge and the court questioned her in terms of the E provisions of s 113(1) of the Criminal Procedure Act 13 of 1983. Thereafter, the accused was found guilty as charged.

In mitigation, she apprised the court that she was 15 years of age, neither at school nor working. She was sentenced to a fine of R1 000 or, in default, to undergo two years' imprisonment, half of which was suspended for three years on condition that she was F not convicted of a contravention of s 2(a) or (b) of Act 41 of 1971 committed during the period of suspension. She could not raise money to pay the fine and is currently serving sentence in jail. When the matter was brought for review, I sought the views of Mr Hobbs of the office of the Attorney-General regarding the propriety of the proceedings. The Court is indebted for his assistance. G

The main issue is whether the proceedings were in...