Pretoria - A child – under 18 – cannot incur any criminal conviction and thus cannot have a criminal record as recorded in the police records.
The court once again stressed this when it overturned a two-year jail sentence meted out to a young man.
The man, who may not be identified in terms of the law, is now 19-year-old. He pleaded guilty to stealing eight cellphones during a housebreaking.
The magistrate – the same one who presided over a previous case of theft when the child was 16 – sentenced him now to two years direct imprisonment. This was after the prosecution, as part of the sentencing proceedings, presented his previous convictions to the court.
The matter subsequently landed on review before the Western Cape High Court.
It emerged that when he was 16, he landed in hot water with the law, but his case was at the time referred to the Children’s Court.
As he was a child, he was referred to a child and youth care centre for some time as part of his punishment by the same magistrate, who conducted the criminal proceedings in the matter.
Upon seeing him in court again three years down the line, the magistrate greeted him by saying “I know you… I remember the first time when you walked in here, clean-faced… now you have tattoos…”
The magistrate also gave him a fatherly talking-to for moving “backwards” in life and for mixing with the wrong crowd and for the fact that his mother was at her ends tether as to what to do with him.
Judge Robert Henney questioned whether it was appropriate for the magistrate to preside in this matter given his previous interaction with the accused.
“He was cognisant of the fact that the accused had previously been referred to a Child and Youth Care Centre… These facts it seems had a direct bearing on the sentence the magistrate had imposed on the accused,” the judge said.
He added that a further aspect of concern was that the youngster had a criminal record – which was handed to court before being sentenced to two years.
“Even though the accused was a child at the time when he allegedly committed these offences, it seems that the crimes and the Children’s Court order were recorded against his name at the Criminal Record Centre in the register of the South African Police as a previous conviction.”
The judge said it was unlawful to record such an order as a previous conviction against the name of a child.
“For obvious reasons such a child cannot incur any criminal conviction, neither does such a child acquire a criminal record, because all criminal proceedings against such a child from the moment such an order is made are effectively stopped,” the judge said.
He said It followed therefore that the entry onto the criminal record against the name of a child is unlawful, as has happened in this case.
“The other difficulty I have is, with the fact that the magistrate was also the magistrate that dealt with the Children’s Court proceedings.
Pretoria News