| | (b) Substitution for section 38 of the following section:"Methods of securing attendance of accused in court38. (1) Subject to section 4(2) of the Child Justice Act, the methods of securing the attendance of an accused who is eighteen years or older in court for the purposes of his or her trial shall be arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act.(2) The methods of securing the attendance of an accused who is under the age of eighteen years at a preliminary inquiry or child justice court are those contemplated in section 17 of the Child Justice Act, 2008.".(c) Amendment of section 50 by the deletion of subsections (4) and (5).(d) Amendment of section 55—(i) by the substitution for subsection (1) of the following subsection:" (1) Subject to section 4(2) of the Child Justice Act, 2008, an accused who is eighteen years or older and who is summoned under section 54 to appear at criminal proceedings and who fails to appear at the place and on the date and at the time specified in the summons or who fails to remain in attendance at such proceedings, shall he guilty of an offence and liable to the punishment prescribed under subsection (2)."; and(ii) by the insertion after subsection (1) of the following subsection:"(1A) The provisions of section 46 of the Child Justice Act, 2008, apply to an accused who is under the age of eighteen years and who fails to appear at a preliminary inquiry in terms of a summons issued under that Act.".(e) Repeal of section 71(f) Amendment of section 72—(i) by the substitution for the introductory part of subsection (1) of the following introductory part:"(1) Subject to section 4(2) of the Child Justice Act, 2008, if an accused who is eighteen years or older is in custody in respect of any offence and a police official or a court may in respect of such offence release the accused on bail under section 59 or 60, as the case may be, such police official or such court, as the case may be, may, in lieu of bail and if the offence is not, in the case of such police official, an offence referred to in Part II or Part III of Schedule 2—"; and(ii) by the deletion of paragraph (b) of subsection (1) and paragraph (b) of subsection (2).(g) Amendment of section 73 by the substitution for subsection (3) of the following subsection:" (3) [An accused who is under the age of eighteen years may be assisted by his parent or guardian at criminal proceedings, and any] In addition to the provisions of sections 3(g), 38(2), 44(1)(b) and 65 of the Child Justice Act, 2008, relating to the assistance of an accused who is under the age of eighteen years by his or her parent or an appropriate person at criminal proceedings, any accused who, in the opinion of the court, requires the assistance of another person at criminal proceedings, may, with the permission of the court, be so assisted at such proceedings.".(h) Repeal of section 74.(i) Amendment of section 153—(i) by the substitution for subsection (1) of the following subsection:"(1) In addition to the provisions of section 63(5) of the Child Justice Act, 2008, if [If] it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof."; and(ii) by the deletion of subsection (4).(j) Substitution for section 211 of the following section:"Evidence during criminal proceedings of previous convictions211. Except where otherwise expressly provided by this Act or the Child Justice Act, 2008, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he or she has been so convicted.".(k) Repeal of section 254.(l) Amendment of section 276A by the substitution for subsections (1) and (2) of the following subsections:"(1) Punishment shall, subject to the provisions of section 75 of the Child Justice Act, 2008, only be imposed under section 276(1)(h)—(a) after a report of a probation officer or a correctional official has been placed before the court; and(b) for a fixed period not exceeding three years.(2) Punishment shall, subject to the provisions of section 75 of the Child Justice Act, 2008, only be imposed under section 276(1)(i) —(a) if the court is of the opinion that the offence justifies the imposing of imprisonment, with or without the option of a fine, for a period not exceeding five years; and(b) for a fixed period not exceeding five years."(m) Repeal of section 290.(n) Repeal of section 291.(o) Amendment of section 297—(i) by the deletion of subsection (1A); and(ii) by the substitution for the words following on subparagraph (ii) of paragraph (a) of subsection (9) of the following words:"and such court, whether or not it is, in the case of a court other than a court of equal or superior jurisdiction, constituted differently than it was at the time of such postponement or suspension, may then, in the case of subparagraph (i), impose any competent sentence [which may, where the person concerned is under the age of twenty one years, include an order under the provisions of section 290,] or, in the case of subparagraph (ii), put into operation the sentence which was suspended.".(p) Amendment of section 302 by the substitution for paragraph (i) of subsection (1)(a) of the following paragraph:"(i) which, in the case of imprisonment (including detention in a [reform school as defined in section 1 of the Child Care Act, 1983 (Act 74 of 1983))] child and youth care centre providing a programme contemplated in section 191(2)(f) of the Children’s Act, 2005 (Act No. 32 of 2005)), exceeds a period of three months, if imposed by a judicial officer who has not held the substantive rank of magistrate or higher for a period of seven years, or which exceeds a period of six months, if imposed by a judicial officer who has held the substantive rank of magistrate or higher for a period of seven years or longer;".(q) Amendment of section 309 by the substitution for paragraph (a) of subsection (1) of the following paragraph:"(a) Subject to section 84 of the Child Justice Act, 2008, any person convicted of any offence by any lower court (including a person discharged after conviction) may, subject to leave to appeal being granted in terms of section 309B or 309C, appeal against such conviction and against any resultant sentence or order to the High Court having jurisdiction[: Provided that if that person was, at the time of the commission of the offence—(i) below the age of 16 years; or(ii) at least 16 years of age but below the age of 18 years and was not assisted by a legal representative at the time of conviction in a regional court; and(iii) was sentenced to any form of imprisonment as contemplated in section 276(1) that was not wholly suspended, he or she may note such an appeal without having to apply for leave in terms of section 309B]: Provided [further] that the provisions of section 302(1)(b) shall apply in respect of a person who duly notes an appeal against a conviction, sentence or order as contemplated in section 302(1)(a).".(r) Amendment of section 309B by the substitution for paragraph (a) of subsection (1) of the following paragraph:"(a) Subject to section 84 of the Child Justice Act, 2008, any accused, [other than a person contemplated in the first proviso to section 309(1)(a),] who wishes to note an appeal against any conviction or against any resultant sentence or order of a lower court, must apply to that court for leave to appeal against that conviction, sentence or order.".(s) Amendment of section 309D by the substitution for paragraph (a) of subsection (1) of the following paragraph:"(a) An accused, other than a child contemplated in the Child Justice Act, 2008, [contemplated in the first proviso to section 309(1)14) or] who is unrepresented at the time he or she is convicted and sentenced, must be informed by the presiding officer of his or her rights in respect of appeal and legal representation and of the correct procedures to give effect to these rights.".(t) Amendment of section 316—(i) by the substitution for paragraph (a) of subsection (1) of the following paragraph:"(a) Subject to section 84 of the Child Justice Act, 2008, any accused[, other than an accused contemplated in paragraph (c),] convicted of any offence by a High Court may apply to that court for leave to appeal against such conviction or against any resultant sentence or order."; and(ii) by the deletion of paragraph (c) of subsection (1).(u) Substitution for section 337 of the following section:"Estimating age of person337. If in any criminal proceedings the age of any person is a relevant fact of which no or insufficient evidence is available at the proceedings, the presiding judge or judicial officer may, in addition to the provisions of sections 14 to 16 of the Child Justice Act, 2008, estimate the age of such person by his or her appearance or from any information which may be available, and the age so estimated shall be deemed to be the correct age of such person, unless—(a) it is subsequently proved that the said estimate as incorrect; and(b) the accused at such proceedings could not lawfully have been convicted of the offence with which he or she was charged if the correct age had been proved.". |