Summary of Judgment

1. Introduction

This was an appeal against sentence in the High Court of South Africa, Northern Cape Division, Kimberley, arising from a conviction for murder in the Regional Court, Calvinia.

The appellant was E.E., and the respondent was the State. The appeal was heard before Williams J and Erasmus AJ, with judgment delivered on 9 September 2016.

The appellant was convicted on 21 October 2010. The charge had been framed with reference to the minimum sentence regime in section 51(2) of the Criminal Law Amendment Act 105 of 1997, and the regional magistrate, after finding “substantial and compelling circumstances”, imposed 7 years’ imprisonment. The appeal concerned the correctness of the sentencing approach and the appropriate sentence, given that the appellant was a child at the time of the offence.

The general subject-matter of the dispute was whether the court a quo misdirected itself by treating the minimum sentence legislation as applicable to a child offender, and how sentencing should be approached under the Child Justice Act 75 of 2008, including whether the sentence should be adjusted to better reflect the statutory emphasis on imprisonment as a last resort and for the shortest appropriate period.

2. Material Facts

The court treated as common cause that the appellant was 16 years old when the offence was committed and 17 years old when sentenced. It was also common cause that the regional magistrate approached sentence on the basis that the minimum sentence provisions in section 51 were applicable, and that this constituted a misdirection because those provisions had been declared unconstitutional insofar as they apply to children under 18 at the time of the offence.

In relation to the offence itself, the court accepted as material that the deceased was attacked with a knife which the appellant had fetched, and that the attack was unprovoked. The court treated these facts as central to the seriousness of the crime and the appropriateness of imprisonment even in the case of a youthful offender.

The appellant was described as a first offender. A probation officer had prepared a pre-sentence report recommending a sentencing option involving correctional supervision and imprisonment under section 276(1)(i) of the Criminal Procedure Act 51 of 1977, but the regional magistrate rejected that option on the basis that it would have trivialised the offence.

By the time the appeal was determined, the appellant had been released on bail pending appeal, had not commenced serving the original sentence, and was 23 years old. The court regarded the delay between the imposition of sentence (in January 2011, as referenced in the judgment) and the finalisation of the appeal as regrettable, and accepted that this delay had implications for the resentencing exercise.

3. Legal Issues

The central questions the court was required to determine were whether the regional magistrate committed a material misdirection by applying section 51 of the Criminal Law Amendment Act 105 of 1997 to an offender who was a minor at the time of the offence, and if so, what sentence should be substituted when sentencing was reconsidered in accordance with the applicable constitutional and statutory framework.

A further question concerned the correct sentencing approach where the Child Justice Act 75 of 2008 applies, particularly the requirement that imprisonment be imposed only as a last resort and for the shortest appropriate period, and how this should be balanced against the seriousness of an unprovoked murder committed with a knife.

The dispute involved a combination of legal issues (the applicability and constitutional status of minimum sentencing provisions in relation to child offenders), and the application of law to facts (how the Child Justice Act’s objectives should affect the appropriate sentence, including whether a portion should be suspended). It also required a limited evaluative judgment regarding the impact of post-sentence circumstances, particularly the passage of time, in line with appellate sentencing principles.

4. Court’s Reasoning

The court held that it was clearly wrong for the regional magistrate to have treated the minimum sentence provisions in section 51(1) and section 51(2) as applicable to the appellant, because those provisions had been declared unconstitutional to the extent that they apply to children under 18 at the time of the offence. Although the magistrate referred to S v B 2006 (1) SACR 311 (SCA), the High Court found that the decision had been incorrectly interpreted. The misdirection was characterised as material, vitiating the sentencing decision and entitling the appeal court to consider sentence afresh.

In approaching resentencing, the court accepted the submission that sentencing had to be undertaken within the framework and objectives of the Child Justice Act 75 of 2008, which the judgment described as amplifying the constitutional principle that the best interests of the child are of paramount importance. The court emphasised that, although imprisonment remains competent under the Child Justice Act, it should be imposed only as a last resort and for the shortest possible period of time. The court thus viewed itself as “compelled” to reflect those statutory imperatives in crafting an appropriate sentence.

The court considered the pre-sentence recommendation of a probation officer that a sentencing option under section 276(1)(i) of the Criminal Procedure Act 51 of 1977 be imposed. While the regional court had rejected that option as trivialising the offence, the High Court indicated that such a sentence might have been more appropriate at the time, particularly because the appellant would have been 17 when he commenced serving the sentence and the option could have facilitated rehabilitative and intervention programmes in a manner consistent with the Child Justice Act’s objectives.

However, the court placed weight on the fact that the appellant had been on bail pending appeal and had not commenced serving the sentence, and that he was 23 years old by the time the appeal was decided. It treated the delay as a relevant factor that had “to some extent, compromised” the resentencing exercise. In this context, the court invoked the principle from S v Japhta 2010 (1) SACR 136 (SCA); [2010] 1 All SA 403 (SCA) that, although sentencing is ordinarily based on facts known at the time, the rule is not invariable and exceptional or peculiar circumstances arising after sentence may be considered on appeal where justified. The court used this principle to explain why a sentencing option that might have been appropriate earlier was not necessarily suitable at the time of the appeal.

Turning to the seriousness of the offence, the court held that the unprovoked nature of the knife attack, committed with a knife that the appellant had fetched, meant that the offence warranted the imposition of imprisonment despite the appellant’s youth. At the same time, the court treated the appellant’s tender age and status as a first offender as factors requiring that the sentence be “tempered”. In order to align the sentence more closely with the Child Justice Act’s objectives—objectives which the court considered had not been taken into account in the original sentencing—the court concluded that suspending a portion of the sentence would be appropriate.

5. Outcome and Relief

The appeal against sentence succeeded. The High Court set aside the sentence of 7 years’ imprisonment and replaced it with a sentence of 7 years’ imprisonment, of which 3 years were suspended for 5 years.

The suspension was subject to the condition that the accused not be convicted of murder or any offence involving the infliction of grievous bodily harm on another person committed during the period of suspension, for which the accused is sentenced to imprisonment without the option of a fine.

The judgment, as provided, did not record any separate or additional costs order.

Cases Cited

S v Malgas 2001 (1) SACR 469 (SCA)

S v B 2006 (1) SACR 311 (SCA)

Centre for Child Law v Minister of Justice and Constitutional Development and Others (National Institute for Crime Prevention and the Re-integration of Offenders as Amicus Curiae) 2009 (2) SACR 477 (CC)

S v Fazzie and Others 1964 (4) SA 673 (A)

S v Karolia 2006 (2) SACR 75 (SCA)

S v Van Deventer and Another 2012 (2) SACR 263 (WCC)

S v Japhta 2010 (1) SACR 136 (SCA); [2010] 1 All SA 403 (SCA)

Legislation Cited

Criminal Law Amendment Act 105 of 1997, section 51(2) and Part I of Schedule 2

Child Justice Act 75 of 2008

Criminal Procedure Act 51 of 1977, section 276(1)(i)

Constitution of the Republic of South Africa, 1996, section 28

Rules of Court Cited

No rules of court were cited in the judgment text provided.

Held

The High Court held that the regional magistrate committed a material misdirection by applying the minimum sentence legislation in section 51 of the Criminal Law Amendment Act 105 of 1997 to an offender who was a child at the time of the offence, notwithstanding constitutional authority declaring such application unconstitutional.

It held further that, because of this misdirection, the sentence fell to be reconsidered afresh with proper regard to the Child Justice Act 75 of 2008 and the constitutional principle that a child’s best interests are paramount, including the injunction that imprisonment should be imposed only as a last resort and for the shortest possible period.

Balancing the seriousness of the unprovoked knife attack against the appellant’s youth and first-offender status, and taking account of the significant delay and the appellant’s circumstances by the time of appeal, the court held that a sentence of 7 years’ imprisonment with a portion suspended appropriately tempered punishment while giving effect to child-justice objectives.

LEGAL PRINCIPLES

A sentencing court’s application of section 51(1) and section 51(2) of the Criminal Law Amendment Act 105 of 1997 to an offender who was under 18 at the time of the offence is impermissible in light of constitutional authority declaring those provisions unconstitutional to that extent, and a sentencing approach founded on such application constitutes a material misdirection.

Where there is a material misdirection affecting sentence, the appellate court is entitled to consider sentence afresh and to substitute an appropriate sentence consistent with the correct legal framework.

In sentencing a child offender, the Child Justice Act 75 of 2008, read with the constitutional principle in section 28 of the Constitution, requires that the best interests of the child be treated as paramount, and that imprisonment should be imposed only as a last resort and for the shortest possible period of time, while still permitting imprisonment where the seriousness of the offence warrants it.

Although sentencing is ordinarily determined on the facts available at the time of sentencing, an appellate court may, in exceptional or peculiar circumstances arising after sentence, take such post-sentence factors into account and adjust the sentence where justified, consistent with the principle articulated in S v Japhta 2010 (1) SACR 136 (SCA); [2010] 1 All SA 403 (SCA).