Minors

S v HJ

  • This case dealt with the conviction of an accused, who was a Malawian national convicted on immigration offences, who was believed to be 18 however during the sentencing proceedings was found to in actual fact be 17 at the time. Therefore the matter was sent on special review to the High Court.
  • On review the court set aside the conviction on the basis that the provisions of the Child Justice Act 75 of 2008 had not been compiled with.  The court further held that in the instances, regard had to be had to the accused’s circumstances namely that he was a minor foreign child who had been orphaned and that diversion from the criminal justice system was appropriate and thus had to be investigated as an appropriate sentence.
  • The matter was therefore remitted to the court a quo to commence de novo.

 S v XM and Another

  • This case dealt with the diversion processes for two minor’s in which the Director of Public Prosecutions claims the children were incorrectly diverted in terms of the Child Justice Act and that gross irregularities in the procedure of such diversion had been committed.
  • The court held that the children were charged with schedule 3 offences, the most serious in the Child Justice Act. Accordingly only the Director of Public Prosecutions could indicate, in writing, whether diversion was appropriate and that such may only be done if there are exceptional circumstances in existence which are determined by the National Director of Public Prosecution’s directives. Furthermore the court noted that the court a quo in determining the type of diversion applicable had awarded the incorrect diversion option.
  • The failure to obtain such written consent from the Director of Public Prosecutions together with the awarding of the incorrect diversion option was a fatal irregularity and thus had the effect of spoiling the proceedings.
  • Therefore the diversion orders were set aside and the matters referred back to the Director of Public Prosecutions to determine if prosecution should be required, and if so, a preliminary enquiry would have to take place in terms of the Child Justice Act.

S v Mthethwa

  • This case dealt with the appropriateness of an 18 year sentence together with and 8 year sentence imposed on a 16 year old for convictions of murder and attempted murder respectively.
  • In this instance the court held that the mitigating factors reflected that the accused suffered a life of neglect, as the accused’s mother had abandoned him, and that the court a quo had attached too little weight to his age and the prospects of attaining rehabilitation coupled with the fact that he was a first time offender.
  • Therefore, in these instances, the sentence was reduced to 12 years for murder and 5 years for attempted murder to run concurrently.

S v Ndzola and Another 

  • The case at hand dealt with the appropriateness of a 15 year imprisonment sentence, 3 years of such was conditionally suspended for 5 years, for the conviction of murder.
  • The court held that the court a quo was required in such instances to exercise its wide sentencing discretion sympathetically in order to determine a suitable sentence for the accused and that the court was required to take both the minors immaturity and the existence of peer-pressure surrounding the offence into account in reaching such a sentence.
  • Therefore the court altered the sentence to 10 years imprisonment for the first appellant and 8 years imprisonment for the second appellant.

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