S v Ngobese and Others

• Jurisdiction: South Africa
• Citation: 2002 (1) SACR 562 (W)

S v Ngobese and Others
2002 (1) SACR 562 (W)

2002 (1) SACR p562

Citation	2002 (1) SACR 562 (W)
Court	Witwatersrand Local Division
Judge	Schabort J and Blieden J
Heard	February 14, 2002
Judgment	February 14, 2002

Flynote : Sleutelwoorde

Juvenile — Offences by — Proof that child doli capax — What is required to be proven — Fact that accused ran away E from scene of crime when confronted by complainant insufficient to rebut presumption that child under age of 14 was doli incapax.

Headnote : Kopnota

The three accused were convicted in a magistrate's court of housebreaking with intent to steal and theft. On review it appeared that the second accused was 13 years old at the time of the commission F of the offence. In a report, the magistrate argued that the presumption that the second accused was doli incapax had been rebutted by the fact that he had run away from the scene of the crime upon being confronted by the complainant.

Held, that the State was required to prove in order to discharge the onus that an accused was doli capax even though under the age of 14 years that: (1) the particular accused G had been shown to have appreciate the distinction between right and wrong; and (2) that he or she knew that the act which he or she had committed was wrong within the context of the facts of the particular case.

Held, further, that it was plain from a reading of the record that no evidence of any nature whatsoever had been led by the State to prove that accused No 2 was doli capax at the time H of the commission of the offence. The facts relied upon by the magistrate did not take the matter any further as they related only to the actions of the accused concerned and not in any way to his state of mind or his capacity to act as he did. In no way was his conative capacity assessed, that is his ability to resist temptation. The conviction in respect of the second accused was accordingly set aside. I

Case Information

Review.

Judgment

Blieden J:

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

2002 (1) SACR p563

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 Dyk1969 (1) SA 601 (C) where it can be argued that accused No 2 was influenced by his...