S v DW 2017 (1) SACR 336 (NCK)


Child — Trial — Child under age of 18 years at commission of offence — Application of Child Justice Act 75 of 2008 — Duties of legal practitioner representing child offender — Required to make extra effort in ensuring best interests of child paramount.


The accused was convicted in a magistrates’ court of housebreaking with intent to commit an offence unknown to the state. He was sentenced to a fine of R1500 or five months’ imprisonment, suspended for five years on certain conditions. He was 17 years and 11 months old at the time of the commission of the offence. The provisions of the Child Justice Act 75 of 2008were not applied in respect of his trial. On special review,

Held, that the accused was deprived of a compulsory preliminary enquiry in terms of s 5(3) of the Child Justice Act after he was assessed, and the possibility of a diversion in terms of s 5(4). (Paragraph [9] at 339g.)

Held, further, that the accused’s legal representative failed him by not establishing during consultation how old he was at the commission of the offence. It was crucial for a practitioner to go the extra mile where child offenders were involved since the best interests of the child should have been regarded as of paramount importance.

Held, further, on the facts, that although the irregularity had not brought about a failure of justice, the sentence had to be altered to one of a caution and discharge.


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