S v HJ 2016 (1) SACR 629 (KZD)

Child — Diversion of — From criminal justice system — Orphaned foreign child charged with being in South Africa without valid permit — Thorough investigation required of background; what became of parents; how and for what reason entered country; and who caring for him — Child’s best interests of paramount importance.

The accused was convicted on his plea of guilty of contravening s 49(1)(a) of the Immigration Act 13 of 2001 in that he, a Malawian national, had entered or remained in South Africa without a valid permit. Before being sentenced he told the magistrate that he was 17 years of age and not 18 as reflected on the charge-sheet. The matter was then remanded to establish his age. An assessment established that he was indeed 17 years old, his parents were dead and he was living with a friend. The magistrate then ordered that he be detained at the Westville Youth Centre and referred the matter on special review to the High Court on the basis that the conviction did not comply with the provisions of the Child Justice Act 75 of 2008 (the CJA).

Held, that it was clear that the conviction could not stand, but, more than that, the accused was a minor and a foreign child whose parents were both dead. His only apparent brush with the law was his failure to be in possession of a valid permit to be in South Africa. His background; what became of his parents; how he entered South Africa; for what reason; how long he had been here and who, if anyone, was caring for him, were just some of the matters that required thorough investigation.

Held, further, that the CJA was enacted with the specific object of protecting the rights of children in the Constitution (s 28(2)), which required that a child’s best interests were of paramount importance in every matter concerning the child. Its first guiding principle — set out in section 3(a) — required that all consequences arising from the commission of an offence should be proportionate to the circumstances of the child, the nature of the offence and the interests of society. Importantly, the CJA also provided a mechanism for diverting any matter concerning a child from the criminal justice system. In the circumstances a diversion seemed to be appropriate and in the interests of justice — this, however, had to be investigated in terms of the Act.

The conviction was accordingly set aside and the matter remitted to the court a quo to commence de novo and in compliance with the provisions of the CJA.


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