S v Ngobese and Others

JurisdictionSouth Africa
JudgeSchabort J and Blieden J
Judgment Date14 February 2002
Citation2002 (1) SACR 562 (W)
Hearing Date14 February 2002
CourtWitwatersrand Local Division

Blieden J:

The three accused were on 3 August 2001 convicted of housebreaking, attempt to steal and theft by the additional magistrate of J

Blieden J

Kempton Park. On 4 September 2001, after having obtained a probation officer's report in regard to A all three of the accused, they were each sentenced to two years' imprisonment which was conditionally suspended for five years and they were further ordered to place themselves in the care of the Germiston probation officers during the period of the suspended sentence. At the time the three accused were convicted and sentenced accused 1 and 3 were 14 years of age while accused 2 was 13 years old. B

When the ages of the three accused were drawn to the attention of the chief magistrate of Kempton Park, he asked the magistrate who convicted and sentenced them for a report with a view to sending the matter on special review. On 5 December 2001 such a report was sent to the C chief magistrate. The relevant portion of this report reads:

'It was upon checking by yourself that the question was raised as to accused 2 being presumed to be doli incapax as a result of his age and a further aspect concerning sentence being too severe in the circumstances. It is in this regard that the matter be sent on special review. D

At the outset I must concede that the issue of accused 2 being presumed to be doli incapax was never directly raised by the State, but from the evidence it is clear that when the three accused were confronted by the complainant whilst in the commission of the offence, all three accused ran away from the scene. It will be argued that the presumption was rebutted by this evidence, for had accused No 2 not realised his wrongful conduct he wouldn't have run away. E

I am aware of the case S v Dyk 1969 (1) SA 601 (C) where it can be argued that accused No 2 was influenced by his co-accused. I have to disagree with that argument for the following reason, from my observation of the accused in court it was clear that he (accused 2) was in no way pressured or influenced by his co-accused and the evidence clearly depicts his involvement in the commission of the offence.' F

The matter was duly submitted to me on special review and after having read the record I put the following three questions to the Director of Public Prosecutions:

'(1) Can the conviction of accused 2 (who was 13 years old at the time of the commission of the offence) stand in the light of the State producing no evidence as to his maturity, or in any other way rebutting the presumption of his being doli incapax G

(2) What is the effect of accused 2 being in the company of two older boys being accused 1 and 3 in the circumstances of the present case in regard to the above-mentioned presumption?

(3) Can the reviewing Court take into account the comments of the magistrate made in the penultimate paragraph of his letter dated 5 H December 2001 as regards his observations of the three accused before court?'

The Director of Public Prosecutions duly submitted a memorandum prepared by two members of his staff which I found to be of great help...

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7 practice notes
  • 2011 index
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 16 August 2019
    ...406-407S v Ngcamu 2011 (1) SACR 1 (SCA) ......................................................... 56-57S v Ngobese 2002 (1) SACR 562 (W) .............................................................. 37S v Nkosi 2011 (2) SACR 482 (SCA) ...................................................... ......
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...239S v Newman 1998 (1) SACR 94 (C) ..................................................... 371S v Ngobese 2002 (1) SACR 562 (W) .................................................. 337, 340S v Ngubeni 2014 (1) SACR 266 (GSJ) ................................................ 49S v Nkambule 1993 (......
  • S v TS
    • South Africa
    • Invalid date
    ...557 (Tk): referred to S v Motleleni 1976 (1) SA 403 (A): referred to S v Ndlovu [2002] ZANCHC 5: referred to S v Ngobese and Others 2002 (1) SACR 562 (W): referred S v Ntuli 1975 (1) SA 429 (A): referred to G S v Pietersen and Others 1983 (4) SA 904 (E): referred to S v T 1986 (2) SA 112 (O......
  • Paedophilia and the South African criminal justice system: A psychological perspective
    • South Africa
    • Juta South African Criminal Law Journal No. , May 2019
    • 24 May 2019
    ...(2) SACR 331 (D); S v Di Blasi 1996 (1) SACR 1 (A); S v Henry 1999 (1) SACR 13 (SCA); S v Eadie 2001 (1) SACR 172 (C) and S v Ngobese 2002 (1) SACR 562 (W). 47 On fault or mens rea as an element of a crime, see generally Snyman op cit (n6) 179-221 as well as Burchell and Milton op cit (n6) ......
  • Request a trial to view additional results
3 cases
  • S v TS
    • South Africa
    • Invalid date
    ...557 (Tk): referred to S v Motleleni 1976 (1) SA 403 (A): referred to S v Ndlovu [2002] ZANCHC 5: referred to S v Ngobese and Others 2002 (1) SACR 562 (W): referred S v Ntuli 1975 (1) SA 429 (A): referred to G S v Pietersen and Others 1983 (4) SA 904 (E): referred to S v T 1986 (2) SA 112 (O......
  • S v TNS
    • South Africa
    • Western Cape Division, Cape Town
    • 1 April 2014
    ...2014 JDR 2257 p9 Rogers J the survey of cases in S v Pietersen & Others 1983 (4) SA 904 (E) at 909C-G; see also S v Ngobese & Others 2002 (1) SACR 562 (W) at [16] One must also remember that where a person who was between the ages of seven and fourteen at the time of the alleged offence is ......
  • S v Murphy
    • South Africa
    • Invalid date
    ...from the regional magistrate who presided at the trial a statement setting forth his or her reasons for convicting the accused.' J 2002 (1) SACR p562 Goldstein [8] It is clear to me that s 52(3)(e) is only triggered if I form the view that the proceedings are not in accordance A with justic......
4 books & journal articles
  • 2011 index
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 16 August 2019
    ...406-407S v Ngcamu 2011 (1) SACR 1 (SCA) ......................................................... 56-57S v Ngobese 2002 (1) SACR 562 (W) .............................................................. 37S v Nkosi 2011 (2) SACR 482 (SCA) ...................................................... ......
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...239S v Newman 1998 (1) SACR 94 (C) ..................................................... 371S v Ngobese 2002 (1) SACR 562 (W) .................................................. 337, 340S v Ngubeni 2014 (1) SACR 266 (GSJ) ................................................ 49S v Nkambule 1993 (......
  • Paedophilia and the South African criminal justice system: A psychological perspective
    • South Africa
    • Juta South African Criminal Law Journal No. , May 2019
    • 24 May 2019
    ...(2) SACR 331 (D); S v Di Blasi 1996 (1) SACR 1 (A); S v Henry 1999 (1) SACR 13 (SCA); S v Eadie 2001 (1) SACR 172 (C) and S v Ngobese 2002 (1) SACR 562 (W). 47 On fault or mens rea as an element of a crime, see generally Snyman op cit (n6) 179-221 as well as Burchell and Milton op cit (n6) ......
  • Acting in the best interest of children in conflict with the law : determining the age of criminal capacity
    • South Africa
    • Sabinet SA Crime Quarterly No. 2016-57, January 2016
    • 1 January 2016
    ...towN4228 Ibid., 36–37. The cases of Roxa v Mtshayi (1975(3) SA 761(A) at 766 A-B), v Pietersen (1983(4) SA 904(E)) and S v Ngobese (2002 (1) SACR 562(W) at 564F-J) are also discussed to highlight the importance of conducting specif‌ic assessments in determining the criminal capacity of a ch......

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