S v NCUBE & ORS 2011 (1) ZLR 608 (H)

Flynote

Criminal procedure — trial — juvenile offenders — need to treat juveniles as a special category of offender — need for juvenile offender to be assisted or legally represented at trial — age of child or juvenile offender — need for age to be established as soon as possible after arrest — reasons for establishing age — legislative provisions and international instruments governing treatment of juvenile offenders

Criminal procedure (sentence) — general principles — juvenile offenders — full and meaningful pre-sentence enquiry essential — desirability of obtaining probation officer's reports — other courses open to court where such reports not available — corporal punishment — when should be imposed — should not be imposed as a means of completing proceedings quickly

Headnote

"The concept of placing a juvenile, particularly a very young child, unrepresented and unassisted by its parents on trial before a magistrate, is one that is inherently repugnant. The same juvenile would be regarded in the civil court as incapable of enforcing or defending its rights. What is different is that the criminal system of justice affords the unassisted minor the capacity to defend himself. It might well be that to place such a child in a position where he or she is expected to conduct his own defence in an alien environment in adversary proceedings is to expect far too much" (dicta per Gillespie J in S v C 1997 (2) ZLR 395 (H) approved).

Judicial officers should always bear in mind that children in conflict with the criminal law constitute a special category of offenders for which there are specific and peculiar legislative provisions, both within our jurisdiction and other international conventions, designed to deal with such offenders. Useful guidance can be sought from both the United Nations Convention on the Rights of the Child (1990) and the African Charter on the Rights and Welfare of the Child (1999). Article 17 of the Charter deals in some useful detail with the administration of juvenile justice in relation to children in conflict with the criminal law. Guidelines are given on such issues as arrest, detention, the presumption of innocence, legal representation and other related matters. Article 40 of the Convention sets out what may be deemed to be minimum standards to be met by the criminal justice system in dealing with children in conflict with the criminal law. In our jurisdiction, the Criminal Procedure and Evidence Act [Chapter 9:07] (see ss 191, 195, 196, 197, 351, 352 and 353) and the Criminal Law (Codification and Reform Act) [Chapter 9:23] (see ss 6, 7, 8, 63 and 70) have a number of provisions that specifically provide for how the courts should deal with juvenile offenders and juvenile witnesses who are both in contact or in conflict with the criminal law.

The issue of age of a juvenile is a very crucial factor to which a court should apply its mind in all criminal proceedings. The inquiry into a juvenile offenders age should start at the time of his arrest if the courts are to protect properly the rights of children who transgress the criminal law. Where a child is put on trial, an inquiry into the child's age must be made, because from that inquiry many other important considerations flow. If the child is under 14 years at the time of the alleged offence, the first decision is whether there is evidence to displace the presumption that the child did not have criminal capacity. Even if such evidence is available, the next question is whether, as a matter of policy, such a young person should be subjected to the might of the criminal justice system. Other methods of dealing with such an offender might be appropriate. Without knowing the age of the accused and whether they are juveniles or not, there is a real danger is that the accused persons might be subjected to an improper and incompetent penalty or sentence.

There can never be a just cause to proceed and sentence juvenile offenders without getting all useful information to guide the court on the question of sentence. This would include obtaining probation officers' reports. A meaningful inquiry should be made either in relation to the circumstances surrounding the commission of the offence or circumstances peculiar to the offenders. This might entail calling the accused's parents or guardians or school authorities to shed light in the matter. The need for the probation officer's reports in cases of this nature cannot be over-emphasized. While the courts face challenges in their dealings with the Department of Social Welfare, this can never be a just cause to proceed to sentence juvenile offenders without gathering all useful information to guide the court on the question of sentence. Even in the absence of a probation officer and probation officers' reports, a trial court handling

The enthusiasm with quite a number of magistrates sentence juvenile offenders to corporal punishment, even for non-serious offences, is a matter of concern. This may be an easy way out in disposing of a matter, but in dealing with juveniles in conflict with the criminal law the courts' primary concern is to safeguard the rights of these children rather than to complete the proceedings as quickly as possible. By taking the latter course, the court may end up imposing a retributive rather than a rehabilitative type of sentence. In most cases involving juveniles in conflict with the criminal law, the court should refer such cases to the children's court, where other various options of dealing with the juveniles are available. Where corporal punishment has been imposed, it is not possible to correct a misdirection on review, except in an academic sense.