S v TS

• Jurisdiction: South Africa
• Judge: Saldanha J and Rogers J
• Judgment Date: 29 October 2014
• Citation: 2015 (1) SACR 489 (WCC)
• Docket Number: 14658 [2014] ZAWCHC 160
• Hearing Date: 29 October 2014
• Counsel: No Details
• Court: Western Cape Division, Cape Town

Rogers J (Saldanha J concurring):

H [1] This matter came before me on automatic review. The circumstances of the case appear from the enquiry I directed to the magistrate on 2 July 2014, from which I quote:

'Introduction

1.

I have queries in this matter regarding both conviction and sentence. In order to expedite matters, this query is being sent I simultaneously to the magistrate and to the DPP's office for comment.

2.

The accused's date of birth is 5 November 1999. She was charged on one count of culpable homicide by causing the death of her biological father by stabbing. The alleged offence occurred on 6 December 2012. On that date the child had just reached her 13th J birthday.

Rogers J (Saldanha J concurring)

3.

The accused was represented by a Legal Aid attorney. A report by A a child psychiatrist and clinical psychologist was procured, pursuant to which the magistrate on 10 December 2014 found that the child had criminal capacity.

4.

The accused proceeded to plead guilty, providing, in her s 112(2) statement, a full account of the incident leading to the stabbing of her father. She was convicted on the basis of this plea and B statement.

5.

No previous convictions were proved. The matter was postponed for a probation officer's report.

6.

On 28 March 2014 the probation report was presented at court. The accused was sentenced to five years' compulsory residence in C a Child Youth Centre, the sentence being antedated to 6 December 2012 (the date of the alleged offence) purportedly in terms of s 77(5) [of the Child Justice Act 75 of 2008]. The five years' compulsory residence will thus expire on 6 December 2017, just after the accused's 18th birthday.

Criminal capacity D

7.

In terms of s 7(2) of the Child Justice Act read with s 11, the accused was rebuttably presumed to lack criminal capacity as at 6 December 2012, and the onus was on the state to rebut this presumption beyond reasonable doubt. This was also the common-law (Snyman Criminal Law 5 ed at 178 – 181). In the latter work it is said that the presumption is not rebutted merely by proof E that the child could distinguish between right and wrong; it must be clear that the child knew that what she was doing was wrong within the context of the facts of the particular case.

8.

The report of the psychiatrist and psychologist appears to me had to have been insufficient to rebut the onus. The accused suffered F from a severe stutter and was said to suffer from Borderline Mental Retardation. Her full scale IQ fell on the borderline range of intellectual disability. There was likely to be "specific cognitive deficiency". Her score on the verbal scale was weak; her verbal abstract reasoning was "poor". Importantly, the expert said that she was likely to have difficulty predicting the consequences of G her actions. Her social judgment, mental agility and mental alertness were very poor, meaning that she was likely to be slow to think (sluggish) and likely to make poor social judgment decisions. In the context of a criminal offence, the experts said it was highly likely that [the accused] did not consider the consequences of her actions nor is she likely to have the capacity to do so independently. H

9.

The experts' specific assessment on criminal capacity was that the accused did understand the difference between right and wrong, and, within the limitations of her intellectual and developmental level, generally has the capacity to act in accordance with that knowledge I [my emphasis]. Her ability to control her impulses, however, would have been profoundly affected by the sense of danger provoked by her father's verbal and physical attacks. In addition, her impaired verbal reasoning and poor processing is likely to have prevented her from considering anything other than self-protection in that moment. It could thus be "argued" that the accused's criminal capacity was temporarily diminished. J

Rogers J (Saldanha J concurring)

10.

A The experts were not called to explain these matters. Not only was the accused rebuttably presumed to lack capacity but she appears to have had specific cognitive difficulties which put her capabilities below that of the average child of her age.

11.

Please comment.

B The guilty verdict

12.

On the assumption that the accused was proved beyond reasonable doubt to have had criminal capacity at the date of the alleged crime, I have reservations as to whether the s 112(2) statement was, in the particular circumstances of the case, sufficient to satisfy the court beyond reasonable doubt that the accused was guilty of the crime of culpable homicide. As noted, her account was one of C persistent verbal and physical abuse during the day in question. She said she later armed herself with a knife in order to deter her father. When she encountered her father and he made to attack her with a half-brick, she reacted quickly, striking him once in the chest. She fled to her home and locked herself inside, fearing that her father would pursue her.

13.

D In the expert assessment of criminal capacity, her version to the medical experts was that there was a scuffle in which her father threateningly raised a half-brick. As a result, she stabbed at him, intending to inflict a minor wound on his arm to show him how much he had hurt her.

14.

Where a child is charged with culpable homicide, and the child has E criminal capacity, the test for negligence is that of the reasonable child in the same circumstances (Snyman op cit 217). A reasonable adult should have been aware that the use of the knife constituted disproportionate force in self-defence, but why is the same true of a 13-year-old girl facing a physical attack from her father?

Sentence

15.

F Given the circumstances in which the offence occurred and the child's tender age and mental and social circumstances, a sentence of five years compulsory residence in a youth centre appears to be very harsh.

16.

I appreciate that the magistrate may have thought that the child G would be better off in a youth centre than at her home. However, compulsory detention in a youth centre is a significant inroad on freedom. There are procedures, outside of the criminal justice system, for ensuring that children receive adequate care. Unless the crime in itself warrants lengthy compulsory detention, such detention should not be used to achieve extraneous social aims.

17.

H Might it not have been appropriate to consider postponing the imposition of sentence?

18.

I note in passing that this does not appear to have been a case where, as the magistrate supposed, the sentence had to be ante-dated in terms of s 77(5); the child was not in prison or in a youth centre while she waited trial.'

I [2] The magistrate, who satisfactorily explained at an early stage why there would be some delay in dealing with my query, furnished her reply on 27 August 2014. The Director of Public Prosecutions (DPP) office submitted its comments on 13 October 2014.

[3] The magistrate says that the accused was throughout represented by J a senior and extremely competent and thorough attorney. While the

Rogers J (Saldanha J concurring)

expert assessment was being awaited, the accused appeared before the A magistrate on four occasions. The accused's attorney told the magistrate that her client was becoming increasingly confident and less stressed in the court environment and that she was satisfied regarding the criminal capacity of the child. The child's mother described her as helpful and able to take the initiative in household functions. She was at normal school, though she had repeated grade 2. B

[4] As appears from my query, the expert assessment (performed by a child psychiatrist, Dr Hawkridge, and a clinical psychologist, Ms Martin) described the accused as suffering from 'borderline mental retardation'. The magistrate, being unable to reconcile this description with C what she had heard and observed during the court appearances, contacted Dr Hawkridge. (The exchange between the magistrate and Dr Hawkridge is not part of the recorded proceedings.) Dr Hawkridge described the accused as 'not a bright 13 year old'; she would regard her as having the IQ of a 12 year old. I quote further from the magistrate's letter as to her discussion with Dr Hawkridge: D

'Her verbal scale is weak. She had a significant higher score on the vocabulary test indicating her long-term memory, inductive reasoning and education level are stronger than her verbal concept information. She is likely to have difficulty predicting the consequences of her actions. In the context of a criminal offence (murder at that time), it is E not highly likely that [the accused] did not consider the consequences of her actions, nor is she likely to have the capacity to do so independently [sic].'

I pause here to mention that the last sentence in this passage is unclear and may suffer from an error in formulation. Continuing: F

'Dr Hawkridge also agreed that she did not have the ability to form intention to murder. [She] explained her diminished ability to act as a mitigating factor. Dr Hawkridge confirmed her assessment of criminal capacity that the child does understand the difference between right and wrong and within the limitations of her intellect and developmental level (12 year old). [She] generally has the capacity to act in accordance with that knowledge.' G

[5] The magistrate says that in the light of this information she did not deem it necessary to call Dr Hawkridge. She adds that the authors of the assessment did not have the benefit of the content of the docket, which was available to the accused's attorney when formulating the guilty plea. H The magistrate says that, at the time, she attached some significance to...