S v TS

JurisdictionSouth Africa
Citation2015 (1) SACR 489 (WCC)

S v TS
2015 (1) SACR 489 (WCC)

2015 (1) SACR p489


Citation

2015 (1) SACR 489 (WCC)

Case No

14658
[2014] ZAWCHC 160

Court

Western Cape Division, Cape Town

Judge

Saldanha J and Rogers J

Heard

October 29, 2014

Judgment

October 29, 2014

Counsel

No Details

Flynote : Sleutelwoorde

Juvenile offenders — Criminal capacity — Mens rea — Culpa — Much to be F said for view that subjective frailties of child found proper place in assessment of criminal capacity — If child had criminal capacity (ie it could be held accountable as adult would), negligence was tested objectively with reference to standard of reasonable person.

General principles of liability — Criminal capacity — Juvenile offender — G Mens rea — Culpa — If in cases involving children, negligence judged by standard of reasonable child of same age, inevitable that threshold enquiry into delictual or criminal capacity would also have to be adapted — If child were only to be judged by standards of reasonable child of same age, criminal capacity would logically have to be directed H at question whether child in question had same cognitive and conative capacities as reasonable child of same age.

Headnote : Kopnota

The accused was a young girl who was charged in a regional magistrates' court with culpable homicide, in that she had stabbed her father, causing his I death. She was just 13 when the offence was committed. She pleaded guilty and gave a full account of the incident in her statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977. She was sentenced to five years' compulsory residence in a Child Youth Centre. The reviewing judge was of the opinion that the reports of the psychologist and psychiatrist were possibly insufficient to establish that the accused had criminal capacity, as she suffered from borderline mental retardation. Furthermore, the s 112(2) J

2015 (1) SACR p490

A statement appeared to be insufficient to satisfy the court that the accused was indeed guilty of culpable homicide. The reviewing judge requested the sentencing magistrate and the Director of Public Prosecutions to comment on these issues, as well as whether the sentence was not unduly harsh.

Held, as regards the mens rea of a child such as the accused, where the form of mens rea for the offence was culpa, that, whilst it was not necessary to B finally decide the issue in the present case, there was much to be said for the view that the subjective frailties of the child found their proper place in the assessment of criminal capacity. If the child has criminal capacity (ie it could be held accountable as an adult would), negligence was tested objectively with reference to the standard of the reasonable person. (Paragraph [23] at 500h–i.)

Held, further, that, if in our law we were, in cases involving children, to judge C negligence by the standard of the reasonable child of the same age, it was inevitable that the threshold enquiry into delictual or criminal capacity would also have to be adapted. If the child were only to be judged by the standards of the reasonable child of the same age, capacity would logically have to be directed at the question whether the child in question had the D same capacities for appreciating wrongfulness and acting in accordance with such appreciation as the reasonable child of the same age. (Paragraph [27] at 502b–c.)

Held, further, that, despite the plea statement, s 11(2) of the Child Justice Act 75 of 2008 required the regional magistrate, in determining whether the accused had criminal capacity, to consider, inter alia, the report of the probation officer in the preliminary enquiry and the expert assessment of the child. The E magistrate also needed to take into account the facts of the matter as they appeared from the plea statement. (Paragraph [35] at 503j–504a.)

Held, further, that, in the light of the expert assessment and the circumstances of the case in general, the accused's admission in her plea statement was not a sufficient basis for the magistrate, without more, to conclude that she had F criminal capacity. A generalised statement of her ability to distinguish between right and wrong, apart from not carrying much weight, did not focus on the important question whether she had the capacity to determine the extent to which she was entitled to use force against her father in the particular circumstances of the case, and to act in accordance with that appreciation. (Paragraph [37] at 504e–f.)

G Held, further, that there appeared to be no material difference between the criminal capacity required for murder and for culpable homicide. If the accused lacked criminal capacity in relation to murder (because she lacked the capacity to understand the bounds of private defence and/or lacked the capacity, in the circumstances which confronted her, to act in accordance with her appreciation of these matters), she would also have lacked criminal H capacity in relation to culpable homicide. If she had the necessary criminal capacity, the question whether she was guilty of murder or culpable homicide depended on whether she actually knew she was acting wrongly or whether, although she did not, a reasonable person would have known. As the magistrate could not properly have been satisfied that the accused had criminal capacity, she should not have convicted the accused on the basis of I her guilty plea. (Paragraphs [39] at 504j–505b and [40] at 505c.)

Held, further, that, even if one concluded that her criminal capacity had been satisfactorily established, the plea explanation, read in the context of the expert assessment, raised doubt as to whether the accused's killing of her father was unlawful. It appeared from the magistrate's response to the reviewing judge's query that she understood the plea explanation as J meaning that the accused had deliberately taken the knife with a view to

2015 (1) SACR p491

seeking out and harming her father. Without further questioning, that A inference was not justified. In order to assess the possible existence of private defence in the present case, it was necessary for the regional magistrate to have placed herself in the child's position. Although it could not be said that, on full examination, a prosecution would fail on the grounds of private defence, the plea explanation was not sufficient to satisfy the magistrate on that question. In the circumstances, the conviction had to B be set aside and remitted to the court a quo to act in accordance with s 113 of the CPA and proceed with the trial. (Paragraphs [41] at 505d – e, [42] at 505g and [45] at 506b.) It was further ordered that the court a quo should determine what orders, if any, should be made in the best interests of the accused pursuant to the Child Justice Act and the Children's Act 38 of 2005, including her possible further detention or placement in a child and C youth care centre. (Paragraph [49] at 507b.)

Cases cited

Southern Africa D

Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421: referred to

Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA): dicta in paras [15] – [17] compared

Jones NO v Santam Bpk 1965 (2) SA 542 (A): compared

Ntanjana v Vorster and Minister of Justice 1950 (4) SA 398 (C): dicta at 406A E applied

R v K 1956 (3) SA 353 (A): referred to

R v Tsutso 1962 (2) SA 666 (SR): dictum at 668F criticised

S v De Oliveira 1993 (2) SACR 59 (A): referred to

S v Dyk and Others 1969 (1) SA 601 (C): dicta at 603B – C applied F

S v Laubscher 1988 (1) SA 163 (A): referred to

S v M and Others 1978 (3) SA 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 to

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): dicta at 127C distinguished

Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A): compared.

Australia H

DPP v Ty [2006] VSC 494: compared

McHale v Watson [1966] HCA 13 ((1966) 115 CLR 199): compared.

Canada

Chiassan et al v Baird et al 2005 NBQB 102 (CanLII): compared

Gande v Pritchett 2001 NFCA 40 (CanLII): compared

McEllistrum v Etches [1956] SCR 787 (1956 CanLII 103 (SCC)): compared I

R v JTB [2009] UKHL 20 ([2009] 1 AC 1310): compared.

England

Honnor v Lewis [2005] EWHC 747 (QB): compared

Mullin v Richards [1998] 1 WLR 1304: compared

Orchard v Lee [2009] EWCA Civ 295: compared. J

2015 (1) SACR p492

Legislation cited

Statutes A

The Child Justice Act 75 of 2008, s 11(2): see Juta's Statutes of South Africa 2013/14 vol 1 at 2-740

The Children's Act 38 of 2005: see Juta's Statutes of South Africa 2013/14 vol 7 at 4-91

The Criminal Procedure Act 51 of 1977, ss 112(2) and 113: see B Juta's Statutes of South Africa 2013/14 vol 1 at 2-360 and 2-361.

Case Information

Review.

Order C

(a)

The conviction and sentence are set aside.

(b)

The matter is remitted to the court a quo in order to act in accordance with s 113 of the Criminal Procedure Act 51 of 1977.

(c)

The accused must be brought before the court a quo within two months of the date of this order for the purpose of giving effect to (b) D above and for the further purpose of determining what orders, if any, should be made in the best interests of the accused pursuant to the Child Justice Act 75 of 2008 and the Children's Act 38 of 2005, including her possible further detention or placement in a child and youth care centre.

(d)

Pending the accused's appearance before the court a quo as E aforesaid and pending the further order, if any, of that court as contemplated in (c), the accused shall remain in the care of the Youth Care Centre at Vredelust.

(e)

The registrar must cause a copy of this...

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2 practice notes
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...24-40WALKER, S Determining the criminal capacity of children aged 10 to 14 years: A comment in light of S v TS 2015 (1) SACR 489 (WCC) ............................................................................................. 337-347WHITEAR-NEL, N Recent cases: Law of evidence ................
  • S v Madiba
    • South Africa
    • Invalid date
    ...sentence to be confirmed. This court is accordingly not entitled to increase the sentence J (see S v Nabolisa 2013 (2) SACR 221 (CC)). 2015 (1) SACR p489 Swain AJA (Ponnan JA and Mathopo AJA [15] The following order is made: A (1) The appeals against the convictions of attempted rape and ra......
1 cases
  • S v Madiba
    • South Africa
    • Invalid date
    ...sentence to be confirmed. This court is accordingly not entitled to increase the sentence J (see S v Nabolisa 2013 (2) SACR 221 (CC)). 2015 (1) SACR p489 Swain AJA (Ponnan JA and Mathopo AJA [15] The following order is made: A (1) The appeals against the convictions of attempted rape and ra......
1 books & journal articles
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...24-40WALKER, S Determining the criminal capacity of children aged 10 to 14 years: A comment in light of S v TS 2015 (1) SACR 489 (WCC) ............................................................................................. 337-347WHITEAR-NEL, N Recent cases: Law of evidence ................

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