S v H.L and Others

On 25 October 2021, three child offenders (aged 15, 14, and 17) were involved in an altercation with the 14-year-old complainant and his friends in Klapmuts, Western Cape. The complainant's group had thrown stones at the accused, striking accused 2 and 3 on the head. The accused left but later returned, found the complainant and his friends smoking an 'Oka pipe', and confronted them. Accused 2 and 3 kicked the complainant, while accused 1 struck the complainant twice on the head with a pole. The complainant sustained severe head injuries and was hospitalised for approximately 18 days at Stellenbosch Provincial Hospital and later Paarl Hospital. Post-recovery, the complainant suffered seizures, memory loss, headaches, and excessive sleeping. All three accused expressed remorse. Accused 1 was charged with attempted murder; accused 2 and 3 with assault with intent to do grievous bodily harm. All entered into plea and sentence agreements under section 105A of the CPA and were sentenced to 36 months correctional supervision. The matter came before the High Court on automatic review in terms of section 85 of the Child Justice Act. There were significant delays: the accused were arrested on 3 November 2021 but the matter was only finalised in July 2023, with multiple postponements for insubstantial reasons. Accused 1's father lost his employment due to repeated court attendances.

• Whether the sentence of correctional supervision imposed by the trial court was legally competent under section 75 of the Child Justice Act, read with sections 53, 72, and 79 of the CJA and section 276(1)(h) of the Criminal Procedure Act.
• Whether the inordinate delay in finalising the criminal proceedings against the child offenders violated their constitutional right to a speedy trial under section 35(3)(d) of the Constitution.
• Whether the proceedings before the trial court were in accordance with justice as required by section 85 of the Child Justice Act for automatic review.

The convictions and resultant sentences imposed against all three accused were set aside. The court declined to order a retrial, holding that it would not be in the interests of justice.

A sentence of correctional supervision imposed under section 75 of the Child Justice Act read with section 276(1)(h) of the Criminal Procedure Act is legally incompetent if it fails to include specific conditions as required by sections 53, 72, and 79 of the CJA, and such an incompetent sentence renders the proceedings not in accordance with justice. Furthermore, an inordinate and unexplained delay in finalising criminal proceedings against child offenders, which causes actual prejudice, violates the constitutional right to a speedy trial and contaminates the proceedings, warranting the setting aside of both conviction and sentence.

The court observed that courts should not act as mere 'rubber stamps' for plea and sentence agreements under section 105A of the CPA; they must independently satisfy themselves that the proposed sentence is legally competent and just. The court also stressed that presiding officers in child justice matters must function with diligence and conscientiousness, showing due respect for children's rights, and that children's best interests are of paramount importance in every matter concerning the child. The court further noted that the delay in submitting the matter to the High Court for review (four months after finalisation) was unexplained.

This case reaffirms that courts dealing with child offenders under the Child Justice Act must ensure that sentences of correctional supervision include specific conditions designed for rehabilitation and reintegration, and that failure to do so renders the sentence incompetent. It emphasises that plea and sentence agreements under section 105A of the CPA do not absolve courts of their duty to scrutinise the legality of proposed sentences. The judgment also underscores the constitutional imperative of speedy trials in child justice matters and confirms that inordinate delay causing prejudice can lead to the setting aside of convictions even in cases involving serious offences.