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368

 

S. v. GROTES.

S. v. JAWUKA.

 

(CAPE PROVINCIAL DIVISION.)

 

1969.      November 19.  BANKS, J., and GR0SKOPF, A.J.

 

Criminal procedure.-Evidence.-Of age.-Where age a fact which must be proved by the State.-When court not entitled to question accused about his age.-Act 71 of 1968, sec. 4.

 

Where the age of an accused is a fact which must be proved by the State, as, for example, if the State wishes to rely on the provisions of section 4 of the Dangerous Wea.pons Act, 71 of 1968, and where the accused neither gives evidence nor makes an unsworn statement, there is absolutely no basis upon which the accused can be questioned about his age.

 

Review.

 

GROSKOPF, A.J.: These are two cases on review before me. Where­ as the same problem arises in both, it is convenient to deal with them jointly. In both cases the accused, who were minors ex facie the charge­ sheets, were charged with and convicted of assault with intent to do grievous bodily harm. The offences were committed in a district where the Dangerous Weapons Act applies, and the magistrate found that in each case a dangerous weapon was used. He consequently imposed sentences in terms of sec. 4 of the said Act.

 

Sec. 4 of the Dangerous Weapons Act only applies to persons "above the age of 18" and .it is the accused's age when the offence was committed which is relevant, not the age at the time of the trial. See S. v. Titus, 1969 (3) S.A. 436 (C), and S. v. Kamfer, 1969 (4)

368-369

 

S.A. 250 (C). As appears from these two cases, a court ought accordingly not to act in terms of the said Act unless the court is convinced beyond reasonable doubt of the accused's age. (See also S. v. Tango, i969 (2) S.A. 648 (C)} Where an accused is clearly an adult in appearance, evidence concerning his age may be superfluous. In Kamfer's case, supra, this Court laid down however, that the provisions of the said Act must not be applied without proof of the accused's age where it appears that the accused is a minor, either because his age is stated on the charge-sheet as being under 21, or because of his youthful appearance.

 

369

 

Proof of a person's age may of course be given in various ways, and in certain cases the court may rely on sec. 383 of the Criminal Procedure Act. The latter section may however only be relied on if it appears that no or insufficient evidence concerning the age is available. The effect of this restriction, and the way in which sec. 383 must be applied, is dealt with in Tango's case and Kamfer's case (both supra) and I need not repeat it here.

 

The present cases raise the question of the admissibility of a particular procedure followed in determining the age. In S. v. Peter Grotes the accused's age is given on the charge-sheet as 20, and according to Kamfer's case, supra, proof of age was consequently necessary for applying sec. 4 of the Dangerous Weapons Act. No evidence was led concerning the accused's age. In his reasons for sentence the magistrate indicates the grounds on which he found that the accused was older than 18 when he committed the offence.

 

I shall deal with some of these grounds later. Meanwhile, I want to dwell on a passage which reads as follows:

 

"At the commencement of the proceedings, immediately after the charge was put to the accused, he .was asked by the court whether it is correct that he is above the age of 18, but even if the accused were to confirm this, it would merely be hearsay evidence, but would serve the purpose of being directive whether documentary evidence concerning age is desired."

 

How this procedure is applied in practice, •appears more particularly from the record in S. v. Jawuka tried by the same magistrate and where the proceedings were recorded on tape. In this case the accused's age was given on the charge-sheet as 18. She pleaded guilty. At the beginning of the proceedings the following happened:

 

"By the Court:

 

I see here on the charge-sheet that you are stated as ·being 18 years of years of age - this correct? -It is correct."

 

No further evidence concerning her age was given. In the magistrate's ex tempore · judgment (to which he added nothing in his reasons), he deals with the aspect of the accused's age as follows:

 

"Further the charge-sheet states that the accused is 18 years old. The court asked her at the beginning of the proceedings whether she was 18, because of her youthful appearance. She confirms that she is 18."

 

In these cases the accused's statements are presumably regarded as admissions in terms of .sec. 284 (1) of the Criminal Procedure Act.

 

369-370

 

I discussed this matter with the other Judges of this Division and it "is our unanimous opinion that this procedure is inadmissible. The age of the accused in these cases is a fact which must be, proved by the State if it wishes to rely on the provisions of sec. 4 of the Dangerous Weapons Act. If the accused is in fact older than 18, conviction, in the absence of special circumstances, exposes him to a minimum sentence of two years' imprisonment. A statement made by the accused in the course of a criminal case concerning his age is therefore, in my opinion, indistinguishable from any other statement which may affect him in an incriminating or aggravating way. It is clear that an accused may not be asked questions to solicit such a statement, unless he

 

370

 

voluntarily gives evidence under oath (vide sec. 234 of the Criminal Procedure Act). Even in the case where he makes an unsworn statement, he may not be questioned (R. v. Cele, 1959 (1) S.A. 245 (A.D.) at p. 256; S. v. Alexander and Others (1), 1965 (2) S.A. 796 (AD.) at pp. 816-7), except in so far as the judicial officer may deem it necessary to clarify the statement, in which case one must act with great circumspection (R. v. Nyamasoka, 1948 (4) S.A. 427 (S.R.); R. v. Matshabiso, 1938 E.D.L. 289).

 

Where the accused neither gives evidence nor makes an unsworn statement, there is absolutely no basis upon which the accused can be questioned about matters which must be proved by the State. Such a situation arose in R. v. Mlangene (No. 286 J.C., May, 1937), where the accused was charged with failure to pay tax. The magistrate noted on the record:

 

"Accused admits that he has always been resident in the Orange Free State and that he has never paid native tax. He does not know his age. Accused says he has never before been prosecuted for tax."

 

The Court (FISHER, J., as he then was) remarked in this connection

as follows :  " .....................

 

370 D

 

See also S. v. Sithole, 1969 (4) S.A. 286 (N) at p. 287.

 

In view of the foregoing, I am of opinion that the magistrate acted irregularly in questioning the accused in these cases about their age. Consequently their answers cannot serve as proof of age.

 

This brings me then to the facts of the two cases before us. In S. v. Peter Grotes, the age of the accused, as already stated, was given on the charge-sheet as 20. The indication on the charge-sheet has no probative value as such (vide S. v. Kamfer, supra). In his reasons for the finding that the accused was older than 18 when he committed the offence, the magistrate states that the accused, judged from outward appearance, seemed to be older than 18, and that he in fact did not dispute this specific allegation in the charge-sheet that he was older than 18. In my view this latter statement seems to be incorrect-the accused pleaded not guilty and by doing so placed all allegations in 1he charge-sheet in issue. The magistrate finally refers in the passage quoted above to the question usually put to accused at the commencement of the proceedings. I have already indicated that this procedure is. inadmissible in my view.

 

It appears therefore that the only admissible factor taken into con­ sideration by the magistrate, was the accused s appearance. The magistrate did not, however, according to the decisions in S. v. Tango and S. v. Kamfer (both supra) and previous cases quoted there, consider the availability of other evidence concerning age, but rather relied on the additional effect of the above inadmissible factors. Under these circumstances I do not think that the determination of age merely on appearance can .be upheld in terms of sec. 383 of the Criminal Procedure Act. 1herefore it follows that the State did not prove that sec. 4 of the Dangerous Weapons Act applied, and the sentence must consequently be set aside.

 

371

 

It appears that the accused has previous convictions, including one for robbery. Although the assault was not particularly serious, I am of opinion that a sentence of six months' imprisonment would be suitable under the circumstances.

 

In the case of Edith Jawuka the magistrate gave no reasons for his way of determining the age, except the accused's admission, obtained as stated above. In fact, in his ex tempore judgment he implied, as appears from the above quoted passage, that the accused's appearance caused him to doubt whether she was, not younger than 18. Apart from the general inadmissibility of the procedure which he followed, it must be pointed out that he asked the accused what her age was at the time of the trial, and not when the offence was committed more than three months previously. The accused's admission can therefore a fortiori not be used here to make the provisions of sec. 4 of the Dangerous Weapons Act applicable. Therefore it follows that the sentence imposed in terms of the said Act must be set aside in this case as well.

 

In this .case the assult was committed with boiling water and caused fairly serious burns, especially on complainant's back. Apparently there was a quarrel between the complainant and the accused, with the result that she emptied the pot of boiling water which was within reach, over him. Her youth and her record which, for the present purposes, can. be considered as being clean, count in her favour. In my opinion a sentence of four months' imprisonment would be sufficient.

 

On account of the foregoing, the conviction in both cases is con­ firmed, but the sentences are set aside. In S. v. Peter Grates a sentence of six months' imprisonment is imposed, and in S. v. Edith Jawuka a sentence of four months' imprisonment.

 

BANKS, J., concurred.

 

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