S v XM AND ANOTHER 2016 (1) SACR 500 (KZP)

Child — Diversion of — From criminal justice system — Requirements of — Schedule 3 offences — Written consent required from DPP — Failure to obtain such constituting fatal irregularity — Importance of preliminary inquiry emphasised for safeguarding of child’s interests.


In two cases that came before the court on special review the issues were almost the same and the court dealt with them together. The three accused in these cases were juveniles whose charges of armed robbery in one case, and the possession of unlicensed firearms in the other, were diverted in terms of the Child Justice Act 75 of 2008 (the CJA). The Director of Public Prosecutions (DPP) submitted that the children were incorrectly diverted in terms of the CJA in respect of sch 3 offences without written consent. Further, other serious irregularities had inter alia occurred relating to the procedure that was followed.

Held, that in view of the fact that the children were facing offences referred to in sch 3, only the DPP having jurisdiction was allowed to indicate in writing whether the matter could be diverted in terms of s 52(3)(a) of the CJA, and was not permitted to delegate this power (s 52(3)(d). When a prosecutor had identified an appropriate sch 3 matter for diversion he or she was therefore required to refer the matter to the DPP for a written indication to do so. In the present matter the prosecutor had failed to obtain such and without it the inquiry magistrate was precluded from making an order in terms of the CJA. This was a fatal irregularity that vitiated the proceedings.

Held, further, that, in the case of one of the children who was not brought to a preliminary inquiry, this was a further irregularity. In terms of the CJA this inquiry was one of the most important steps in the judicial process involving a young offender. The primary purpose of such was to safeguard the basic rights of any child who was alleged to have committed an offence. This was to be understood not only in the context of ch 7 itself, but also with regard to the objects and guiding principles set out in the CJA. Where a child was arrested and remained in detention, the preliminary inquiry further had to be held within 48 hours of the arrest, subject to certain exceptions permitted in the circumstances referred to in s 20(5). While it was required to be conducted with the least amount of formality, the provisions of the statute still had to be adhered to.

The orders made by the inquiry magistrate were reviewed and set aside and the matters referred to the DPP in view of his undertaking that, if a prosecution should be required, he would have the children brought before a preliminary inquiry to be dealt with in terms of the CJA.


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