S v Olivier (Review Judgment)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Gamble J and Henney J
• Judgment Date: 04 August 2023
• Citation: 2023 JDR 3598 (WCC)
• Hearing Date: 04 August 2023
• Docket Number: 7/2023

Henney J:

Introduction.

[1]

The accused, a 19-year-old male, appeared in the Caledon Magistrate’s Court on a charge of House Breaking with Intent to Steal and Theft. It is alleged in the charge

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Henney J

sheet that on 1 October 2022 he broke into the property of the complainant and stole eight cellular phones belonging to the complainant.

[2]

The accused elected to conduct his own defence after his right to legal representation had been explained. After several appearances in the Magistrate’s Court, on the 11 January 2023 he tendered a plea of guilty to the alleged charge. The Magistrate questioned him in terms of the provisions of section 112(2) of the Criminal Procedure Act 51 of 1977 (“the CPA”).

[3]

During the questioning, the accused admitted that he gained entry by breaking open the complainant’s house, using a screwdriver to force open the door. He further admitted that after having entered the house, he stole 8 cellular phones belonging to the complainant. They left the house of the complainant afterwards with the intention to sell the cellular phones. They however only managed to sell two of the phones for an amount of R1500,00. The Magistrate, after having given the state as well as the accused an opportunity to address the court, sentenced him to a period of Two (2) years imprisonment.

[4]

During the sentencing proceedings, the prosecutor proved the following “previous convictions” as reflected on the SAP69 Criminal Record against the accused:

•

Theft –committed on 19 August 2020 and the contravention of the provisions of section 45(1) of Sea Fisheries Act 12 of 1988, committed on 21 March 2020. Both matters were referred to the Children’s Court and on 14 December 2020, the accused was referred to a Child and Youth Care Centre.

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Henney J

•

Contravention of the provisions of section 4(b) of the Drug and Drug Trafficking Act 140 of 1992- committed on 8 January 2022. Accused was sentenced to a fine of R200 with the option of 20 days imprisonment. [1]

[5]

What is apparent from the SAP69’s is that both the matters on 14 December 2020 were finalised in the Children’s court. The accused who at that stage was still a child, was referred to a Child Youth Care Centre, by the same Magistrate who conducted the criminal proceedings in this matter. This is also apparent from a reading of the sentencing proceedings, where the following exchange took place between the accused and the Magistrate [2] :

Hof: “Kyk Tyrone, ek ken mos nou vir jou van voor jy 18 of 19 geraak het, jou en jou broer.

Beskuldigde: Ja meneer.

Hof: En ek meen mos nou ek ken julle Ma, en ek kan onthou die eerste keer wat jy hier in gekom het, skoon gesig, die klonkie. Nou is jy ge-tattoo en jy het chappies op jou arm en jou voorkop en goed, en dit lyk net vir my jy beweeg, ek wil amper sê terug in tyd. Asof jy nie vorentoe gaan nie, jy is dan nog so jonk jy weet jou hele lewe lê voor jou.

Beskuldigde: Ek wil graag vorentoe gaan, meneer.

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Hof: Ja, maar nou jy sien jy wys nie vir mens jy wil vorentoe gaan nie, jy wys nie jy wil verander nie, jy wys nie jy wil ‘n beter mens word nie. Ek luister nou die name wat jy genoem het nê, wat nou saam met jou was, daardie is manne wat twee, drie keer ‘n jaar by die Hof kom vir huisbraak en vir diefstalle, en daardie is nou die klas element wat jy glad nie meer moet meng nie . . . [onduidelik], maar dit is keuses wat jy mos maak Tyrone oor wie jy meer moet uithang en daardie tipe ding.

En ongelukkig is dit so, jy ken die Afrikaanse spreukwoord; meng jou met die varke, of meng jou met die semels dan vreet die varke jou op as kos. Maar, nou daardie ouens moet jy vanaf weg bly, jy is nog so jonk ten spyte van jou tattoos en al die chappies wat jy het op jou arms en jou gesig. Jy is so jonk, jy kan net so besluit om jou lewe om te draai, so eenvoudig soos dit. Maar, nou weet ek ook al jou Ma is half raad op met jou en jou broer, ek dink die een was ook nou die dag hier. Wat is hom naam?

Beskuldigde: Eagan Oliver.

Hof: Eagan, ja.

Beskuldigde: Hy moet die 17de kom.

Hof: Ja, en jou Ma was hier gewees en jou Ma was ook raad op met julle, en ek het so gehoop dat daardie Kinder Hof waar julle na die jeug-sentrum toe gegaan het vir julle gaan change, maar dit het nie. In teendeel ek dink dit het dit erger gemaak.” [3]

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[6]

It was for these reasons, that when I received the review, I addressed the following query to the Magistrate:

“The Magistrate should provide the review court with reasons why he was of the view that it was appropriate for him to preside in this matter given his previous interaction with the accused in court, on page 12 and 13 of the record.

From the record it also seems that the Magistrate was aware of the fact that the accused had previous convictions prior to it being presented to court during the sentencing proceedings. He was cognizant of the fact that the accused had previously been referred to a Child and Youth Care Centre for the offences as stipulated on his SAP 69’s. These facts it seems had a direct bearing on the sentence the Magistrate had imposed on the accused.”

In his reply, the Magistrate said the following:

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Henney J

“The trial Magistrate encountered the accused as (sic) 16 year old child in conflict with the law during 2020. The accused at that stage had two criminal cases and(sic) were (sic) these matters transferred to the Children’s Court in terms of section 64 of Act 75 of 2008 (Child Justice Act) as it was deemed that the accused (at that stage(sic) still only 16 years old) was “a child in the need of care and protection.”

The child (accused Tyron Olivier) ended in the Children’s Court on file 14/1/3- 43/2020.

The Children’s Court Magistrate (in the current matter(sic) trial Magistrate) ordered in terms of section 156 of Act 38 of 2005 Children’s Act to a Child and Youth Care Centre. This decision was taken in light of all the available evidence which included the Social Workers Reports and the child’s mother’s input. That was the only contact the trial Magistrate had with the accused prior to his appearance on the current case. The trial Magistrate also had an encounter with the accused sibling as can be seen from record Page 12 paragraph 10 “. . .jou en jou broer”. And Page 13 paragraph 10 “. . . met jou en jou broer. . .” That is how far the trial Magistrate’s knowledge of the accused goes.

The trial Magistrate did not have any prior knowledge of the accused previous convictions as the Children’s Court proceedings were not criminal court of nature and would no criminal record be available on those proceedings. (sic) The criminal record of the accused relates to convictions after the Children’s Court in 2020. The proceedings in the Children’s Court gave the trial Magistrate a better insight into the personal circumstances of the accused. Those proceedings did have a direct bearing on the sentence imposed, but not to the prejudice of the accused as the sentencing court took other factors as provided for in Zinn 1969(2) SA 537 (A) into account during the sentencing proceedings. The trial Magistrate did not deem it necessary to recuse himself from the proceedings as it was a guilty plea in terms of section 112 (1) (b) of the CPA with the safeguards if the court had to apply section 113 of the CPA. The trial

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Henney J

Magistrate is not aware of any legislation which requires the presiding officer to recuse him/herself from proceeding is(sic) such officer presided over Children Court proceedings a few years prior when the accused was to the juvenile in conflict with the law. However, the trial Magistrate will take the guidance from the Honourable Review judge if such precedent do exist.”

[7]

The first question that arises in this matter is whether it is appropriate for a judicial officer that previously dealt with a child in Children’s Court Proceedings to preside in a subsequent criminal trial of that same person.

[8]

In this regard, it would be appropriate to look at the provisions of the CAFÉ which regulates Children’s Court proceedings and the relevant provisions of the Child Justice Act 75 of 2008 (“the CJA”) as well as the CPA which regulates all the proceedings involving a child.

[9]

A further aspect of concern is the fact that on the SAP 69’s handed in at court during the sentencing proceedings, referred to 14 December 2020 that were referred to Children’s Court when the accused was 16 years old. Even though the accused was a child at the when he allegedly committed these offences, it seems that the crimes and the Children’s Court order were recorded...