Durban - An orphan from Malawi, who was found guilty of being in South Africa illegally, had his conviction overturned and authorities would now probe his personal circumstances and establish if he was in need of care.
This was the ruling of Durban High Court Acting Judge Alex Jeffrey - with Judge Mahendra Chetty concurring - in a matter which was sent to them for review by a Durban magistrate after he belatedly learnt that the teenager he had convicted under the Immigration Act was not yet 18.
The teenager was arrested last month for being in the country without a valid permit. He conducted his own defence and pleaded guilty.
While the charge sheet stated he was 18, just before being sentenced he said that he was only 17.
The magistrate sent him to the Westville youth centre for assessment where his age was confirmed.
In addition it was revealed that his parents were dead and he had been living with a friend in Sydenham.
“The magistrate then ordered that he be detained at the youth centre and referred the matter on special review to this court, conceding that the conviction could not stand in terms of the Child Justice Act,” Judge Jeffrey said.
“More than that, he is a minor, a foreign child whose only brush with the law as far as we know is his failure to have a valid passport.
“His background, what became of his parents, how he entered South Africa and for what reason, how long he has been here and who, if anyone, is caring for him are just some matters that require thorough investigation.”
Judge Jeffrey said the act was there to protect the rights of children and it provided for “proportionate consequences” for offences and for ways of diverting them from the criminal justice system.
He set aside the conviction and sent the matter back to the magistrate for further investigation.
The Mercury