REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number : 513 / 03
In the matter between
JAN HENDRIK BRANDT APPELLANT
and
THE STATE RESPONDENT
Coram
: CAMERON, MTHIYANE, BRAND JJA, PATEL and PONNAN AJJA
Date of hearing : 9 NOVEMBER 2004
Date of delivery
: 30 NOVEMBER 2004
SUMMARY
Sentence – s51(3)(b) of the Criminal Law Amendment Act 105 of 1997
interpreted – suitability of imprisonmen t for life as a sentencing option for
child offenders considered.
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J U D G M E N T
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2
PONNAN AJA:
[1] The principal issue in this appeal is a sentence of life imprisonment
imposed on the appellant for a murder he committed when he was 17
years and 7 months old. This brings into question the application of the
minimum sentence legislation to offen ders under 18. High courts have
given conflicting decisions on this issue, which the appeal requires us to
resolve.
[2] The appellant was convicted, pursu ant to his plea of guilty, by
Sandi AJ in the High Court at Grah amstown of three ch arges: murder,
robbery with aggravating circums tances and attempted robbery.
Applying the minimum sentencing le gislation (Criminal Law Amendment
Act 105 of 1997) witho ut regard to the appellant’ s age, the trial judge
sentenced him to life imprisonment. An appeal against sentence to a full
court, with the trial court’s leave, was dismissed. The members of the
court differed on the interpretation of the minimum sentencing legislation
and its application to the appellant’s case. This further appeal is with the
special leave of this Court.
[3] At his trial the appe llant entered a lengthy plea explanation that
indicated that before the events in issue he be came a member of a
satanic coven in Port Elizabeth. On 12 June 2000 he hitch-hiked to his
parents’ home in Hofmeyr, journeying with the express purpose of killing
3
his parents. That, he had been told by members of the satanic sect,
would elevate him to the status of a high priest within the coven. For
that purpose he had purchased a kn ife in Cradock for the sum of
R45,00. When he arrived at his parental home, however, he was unable
to go through with the deed. He then sought r efuge in brandy and
dagga. Realising that he required money and a motor vehicle to return
to Port Elizabeth, he deci ded to rob the deceased, a 75 year old female
neighbour. He called on the dece ased (who was known to him and his
family and who was alone at the time ) on the pretext that he had been
sent by his parents to borrow recipes. He claim ed – an acc ount the trial
court rightly rejected – that to appease members of his coven (who
according to hi m would have been disgru ntled by the abandonment of
his plan to kill his pa rents) he then decided to kill the deceased instead.
He dealt the deceased a single, fatal blow to her neck with the knife that
he had purchased, and then stage-managed the scene to create the
impression that she had committed suicide. To calm himself he smoked
more dagga and consumed more brand y. He then removed a portable
radio, the deceased's car keys and the sum of R300,00. He went to the
garage only to discover that the de ceased's car was not there. He was
arrested on 28 July 2 000 and had been in cus tody for approximately
seven months when he was convicted.
4
[4] Central to the appeal is the construction to be placed on s51 of the
Criminal Law Amendment Act 105 of 1997 ('the Act'), which provides:
'51 Minimum sentences for certain serious offences
(1) Notwithstanding any other law but subject to subsections (3) and (6), a High
Court shall –
(a) if it has convicted a person of an offence referred to in Part I of Schedule 2; or
(b) If the matter has been referred to it under s 52(1) for sentence after the
person concerned has been convicted of an offence referred to in Part I of
Schedule 2,
sentence the person to imprisonment for life.
(2) Notwithstanding any other law but subject of subsections (3) and (6), a regional
court or a High Court, including a High Court to which a matter has been referred
under section 52(1) for sentence, shall in respect of a person who has been
convicted of an offence referred to in –
(a) Part II of Schedule 2, sentence the person, in the case of –
(i) a first offender, to imprisonment for a period not less than 15 years;
(ii) a second offender of any such offence, to imprisonment for a period not
less than 20 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a
period not less than 25 years;
(b) Part III of Schedule 2, sentence the person, in the case of –
(i) a first offender, to imprisonment for a period not less than ten years;
(ii) a second offender of any such offence, to imprisonment for a period not
less than 15 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a
period not less than 20 years; and
5
(c) Part IV of Schedule 2, sentence the person, in the case of –
(i) a first offender, to imprisonment for a period not less than 5 years;
(ii) a second offender of any such offence, to imprisonment for a period not
less than 7 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period
not less than ten years
Provided that the maximum sentence that a regional court may impose in terms of
this subsection shall not be more than five years longer than the minimum sentence
that it may impose in terms of this subsection.
(3) (a) If any court referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser sentence than
the sentence prescribed in those subsections, it shall enter those circumstances on
the record of the proceedings and may thereupon impose such lesser sentence.
(b) If any court referred to in subsection (1) or (2) decides to impose a sentence
prescribed in those subsections upon a child who was 16 years of age or older,
but under the age of 18 years, at the time of the commission of the act which
constituted the offence in question, it shall enter the reasons for its decision on the
record of the proceedings.
.......
(6) The provisions of this section shall not be applicable in respect of a child who
was under the age of 16 years at the time of the commission of the act which
constituted the offence in question.'
[5] Applying s51(3)(a) only, Sandi AJ asked himself whether
‘substantial and compelling circumstances’ were present, and concluded
that there were none. He therefore imposed t he statutorily prescribed
6
minimum sentence of life imprisonme nt for the murder. Taking the
second and third charges as one for the purposes of sentence, he
sentenced the appellant to impris onment for a minimum term of 15
years. Sandi AJ gra nted the appellant leave to appeal against sentence
to the full court of the Eastern Cape Di vision. The majority of the court
(Liebenberg J, Parker AJ concurri ng) considered the application of
s51(3)(b), but concluded that although, since th e appellant’s age had
been overlooked in the tr ial court, it was entitl ed to impose sentence
afresh, the sentence of life imprisonment was appropriate. In dismissing
the appeal, the majority held that the interpretation of s51(3)(b) by
Cachalia J (Blieden J and Jo rdaan AJ concurring) in S v Nkosi 2002 (1)
SACR 135 (W) was wrong and declined to follow it. In his dissent Pillay J
followed Nkosi.
[6] At the hearing of the appeal, Mr Pretoriu s on behalf of the
appellant, somewhat surprisingl y, disavowed reliance on Nkosi or for
that matter the minority judgm ent of Pillay J in the court a quo . Instead
he favoured the construction placed on s51 by Liebe nberg J. Further
support for such an i nterpretation, he submitt ed, was to be found in the
later judgment of Direkteur van Openbare Vervolgings, Transvaal v
Makwetsja 2004 (2) SACR 1 (T). Makwetsja, a full bench decision of the
Transvaal Provincial Divi sion, declined to follow Nkosi and also the
7
approach adopted by Van Heerden J in S v Blaauw 2001 (2) SACR 255
(C).
[7] In Blaauw, Van Heerden J suggested that a Court was not obliged
in terms of s51(3)(b) to impose the minimu m sentence on a child who at
the time of the commissi on of the offence was 16 or 17 years old unless
the State satisfied the Court that the circumstances justified the
imposition of such a sentence. In Nkosi (at 141 g-j), Cachalia J held:
‘The distinction between s51(3)(a) and s51(3)(b) lies in the nature of the discretion
that a court has when considering the positions of the two classes of offender. In the
former case a Court should ordinarily impose the prescribed sentence unless there is
some weighty justification for the imposition of a lesser sentence. The Legislature
has therefore limited the discretion of a Court to depart from the minimum sentence
(see S v Malgas (supra para [25]…)). In the latter case there is no reference at all to
substantial and compelling circumstances . The express wording of the section only
requires a Court to justify a decision to impose the prescribed sentence by entering
its reasons on the record. It does not limit a Court’s discretion to impose an
appropriate sentence on this class of offender’.
[8] Makwetsja, like the majority in the court a quo , declined to
subscribe to the inte rpretation of the section advanced in Blaauw and
Nkosi. The reasons advanc ed in each instance for not doing so may be
summarised as follows: Whilst th e statutorily prescribed minimum
sentence should be imposed on offende rs between the ages of 16 and
18 only in extreme ca ses, that did not mean th at the Legislature did not
8
intend those sentences to apply to a ll offenders above the age of 16
years. If the legisl ature did not in fact intend the minimum sentences to
apply to child offenders aged 16 and 17 it would have explicitly excluded
that category of offender as it had children belo w the age of 16 (s51(6)).
Section 51(1) decrees that the mini mum sentence must be imposed,
subject to ss3(a) and (b). Youthfulness per se would ordinarily constitute
a substantial and compelling circumst ance. If a sentenci ng court intends
to impose the prescribed minimum then s51(3)(b) envi sages that it set
out clearly its reasons for doing so. The scheme of the section serves to
remind a sentencing court to make ‘doubly sure’ that a youthful offender,
who has to be sentenced with caution, is deserv ing of the prescribed
minimum.
[9] The minimum sentencing legislation must be read in the light of the
values enshrined in th e Constitution and interpr eted in a manner that
respects those values. Secti on 51 distinguishes between adult
offenders and child offenders. Sectio n 28 of the Constit ution defines a
child as a person under the age of 18 years. Two categories of child
offenders are envisaged by the Act: first, those below the age of 16; and,
second, those between th e ages of 16 and 18. The section does not
apply at all to a child who was under the age of 16 years at the time of
the commission of the offence (s 51(6)). For adul t offender s, the
legislature has ordained life imprisonm ent or one of other prescribed
9
minimum sentences unless substant ial and compelling circumstances
are found to exist (s51(1) read with s51(3)(a)).
[10] The notional starting point of th e enquiry for the two categories of
offenders to whom the Act does apply th us differs. For adult offenders
the starting point is the minimum sen tence prescribed by the legislature.
That sentence, which is intended to be a severe and standardised one,
may only be departed from if there is weighty justification therefor ( S v
Malgas 2001 (1) SACR 469 (SCA) para 25) . It is for th e adult offender
to establish that substanti al and compelling circum stances justifying a
departure are present.
[11] For child offenders betw een the ages of 16 and 18, the sentencing
court starts with a clean slate. Subjec t to the weighting effect of the
statutorily prescribed minimum sentences, the sentencing court is free to
impose such sentence as it woul d ordinarily have im posed. It may
decide in the exercise of its sentencing discretion to impose the
minimum sentence prescribed by s51(2) for an offence of the kind
specified in Schedule 2. That a di scretion to impose the minimum
sentence does indeed exis t is clear from the us e of the words ‘decides’
and ‘decision’ in s51(3)(b). The sentencing cour t is called upon in the
exercise of its discretion to make a decision as to wh ether or not to
impose the minimum senten ce prescribed by the Act. But it is not
10
obliged to impose the statutorily pr escribed minimum sentence: and, if it
does do so, it is requir ed to enter its reasons for its decision on the
record of the proceedings. (See Sv Nkosi supra at 141b-j; and S v
Blaauw supra at 263e-264j.)
[12] The effect of the provision is thus that s51(3)(b) automatically
gives the sentencing court the discretion that it acquires under s51(3)(a)
only where it finds subs tantial and compelling ci rcumstances. It follows
that the 'substantial an d compelling' formula finds no application to
offenders between 16 and 18. A court is theref ore generally free to
apply the usual sentencin g criteria in decidi ng on an appropriate
sentence for a child between the ages of 16 and 18. As in a case where
s51(3)(a) finds application, the co urt in arriving at an appropriate
sentence must, however, not lose sight of the fa ct that offences of the
kind specified in Sched ule 2 of the Act have been singled out by the
legislature for severe sentences. The gravity of the offence must
accordingly receive reco gnition in the determin ation of an appropriate
sentence.
[13] The Constitution, read with the various international instruments
that have a bearing on the subject of the rights of young people in
conflict with the law, furnishes the backdrop to this approach. Section
28(2) of the Constitution provides: '[A] child's best interests are of
11
paramount importance in every mat ter concerning the child'. That
statement of general principle is the clearest indication that child
offenders are deserving of spec ial attention. More so, it would seem, in
the sphere of sentenci ng. The ideal is that no child shoul d ever be
caged,1 though in practice there will always be cases that are so serious
that imprisonment would be the only appropriate punishment.2
[14] The recognition that childre n accused of co mmitting offences
should be treated differently to adul ts is now over a century old. 3
Historically, the South African justic e system has never had a separate,
self-contained and compartmentalis ed system for dealing with child
offenders. Our justice system has ge nerally treated ch ild offenders as
smaller versions of adult offenders. 4 In S v Williams and others 5 1995
(3) SA 632 (CC) para 74 the Constitutional Court in abolishing whipping
sounded ‘a timely challenge to the State to ensure the provision and
execution of an effective juvenile justice system’.
[15] The traditional aims of punishmen t, particularly in respect of child
offenders, therefore have to be re- appraised and devel oped to accord
1 Julia Sloth-Nielsen ‘No child should be caged – closing doors on the detention of children’ 1995 (8)
SACJ 47.
2 S S Terblanche The Guide to Sentencing in South Africa para 3.4.
3 The Illinois Juvenile Court Act, which is widely credited as providing the first example of legislation
establishing a separate juvenile justice system celebrated its centenary in 1999. See Prof Julia Sloth-
Nielsen ‘The role of international human rights law in the development of South Africa's legislation on
juvenile justice’ 2001 (1) 5 Law, Democracy & Development 59.
4 Ann Skelton ‘Developing a juvenile justice system for South Africa: International instruments and
restorative justice’ 1996 Acta Juridica 180.
5 Also reported at 1995 (2) SACR 251 and 1995 7 BCLR 861.
12
with the spirit and purpor t of the Constitution. International documents
on child justice emphasise the re-integ ration of the child into society.
Indeed the aims of re-socialisation and re-education must now be
regarded as complemen tary to the judicial aims of punishment
applicable to adult offenders.6 A child charged wi th an offence must be
dealt with in a manne r which takes into account his/her age,
circumstances, maturity as well as intellectual and emotional capacity.
[16] International law has ushered in what has been descri bed as a
‘revolution’ for the administration of child justice.7 Four key international
instruments that deal with ch ildren in conflict with the law are the United
Nations Convention on the Rights of the Child (CRC), 8 and three sets of
non-binding rules: the United Nation s Guidelines for the Prevention of
Juvenile Delinquency (t he Riyadh guidelines); 9 the United Nations
Standard Minimum Rules for the Admini stration of Juvenile Justice (the
Beijing Rules); 10 and, the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (the JDL’s).11 The provisions of these
international instrument s are supplemented, cl oser to home, by the
6 Julia Sloth-Nielsen ‘Child Justice and Law Reform’ in C J Davel Introduction to Child Law in South
Africa para 22.9.
7 Davel op cit para 22.1.2.
8 The United Nations Convention on the Rights of the Child (Resolution 44/25) was adopted by the
UN General Assembly on 20 November 1989 and ratified by the South African Parliament on 16 June
1995 whereafter the formal instrument of ratificati on was deposited with the Secretary–General of the
UN on 30 June 1995 and has been in force in South Africa since 30 July 1995. (See Skelton op cit
Acta Juridica at 180.)
9 Resolution 45/112 adopted by the UN General Assembly on 14 December 1990.
10 Resolution 40/33 adopted by the UN General Assembly on 29 November 1985.
11 Resolution 45/113 adopted by the UN General Assembly on 14 December 1990.
13
African Charter on the Righ ts and Welfare of the Child. 12 The principles
fundamental to these instruments ha ve found articulation in our
Constitution.
[17] The rules and guidelines set out in these international instruments
are detailed and provide specific suggestions for the realisation of the
broad goals that it em bodies. Since its in troduction the CRC has
become the internatio nal benchmark against which legislation and
policies can be measured. Traditi onal theories of juvenile justice now
have a new 'framework within whic h to situate juvenile justice: a
children's rights model'.
13
[18] The principle that detenti on is a matter of la st resort (and for the
shortest appropriate pe riod of time) is the leitmotif of juvenile justice
reform.14 Those principles are arti culated in international law 15 and are
enshrined in s28(1)(g) of the Constitution which reads: '[E]very child has
the right not to be detained except as a measure of last resort, in which
case ..... the child may be detained only for the shortest appropriate
period of time, ....'.
[19] Guiding principles must therefore includ e the need for
proportionality (see S v Kwalase 2000 (2) SACR 1 35 (C)). The
12 The Charter was ratified by the South African Parliament on 18 November 1999.
13 Sloth-Nielsen op cit Law, Democracy and Development at 66.
14 Sloth-Nielsen op cit Law, Democracy and Development 78.
15 Article 37(b) of the CFC; Beijing Rule 17.1
14
overriding message of the international instruments as well as of the
Constitution is that chil d offenders should not be deprived of their liberty
except as a measure of last resort and, where in carceration must occur,
the sentence must be in dividualised with the em phasis on preparing the
child offender from the mo ment of entering into the detention facility for
his or her return to society.
[20] In sentencing a yo ung offender, the presiding officer must be
guided in the decision-mak ing process by certain principles: including
the principle of proportionality; t he best interests of the child; and, the
least possible restrictive deprivation of the child's liberty, which should
be a measure of last re sort and restricted to the shortest possible period
of time. Adherence to recognised international law principles, must
entail a limitation on ce rtain forms of sentencing such as a ban on life
imprisonment without parole for child offenders.
[21] The Project Committee of the S outh African Law Commission on
Juvenile Justice (Project 106) has since 1997 produced an issue
paper,16 a discussion paper,17 and, finally a report18 and a Bill on juvenile
justice which was releas ed on 8 August 2000. 19 The Child Justice Bill,
which was introduced in Parlia ment on 3 August 2002 and debated
16 South African Law Commission Issue Paper Number 9 (1996).
17 Discussion Paper Number 79 (1998).
18 Report on Juvenile Justice (2000).
19 Sloth-Nielson op cit Law, Democracy and Development at 72.
15
during 2003, inter alia prohibits the sentence of life imprisonment for
children who commit offences whilst under the age of 18.
[22] This background re inforces the interpretati on given to s51(3)(b)
above. If the notional starting point for the category of offender
envisaged in ss3(b) is that the minimum prescribed sentence is
applicable, as the ma jority in the court a quo and the full bench in
Makwetsja suggest, then imprisonment ( the prescribed sentence) would
be the first resort for children ag ed 16 and 17 years in respect of
offences covered by the Act instead of the last resor t. It is true that the
full court in Makwetsja emphasised that on it s interpretation the
legislature sought to make ‘doubly ce rtain’ that the sentencing court
found the prescribed minimum sentence appropriate, and suggested that
a court would ‘readily’ conclude that the youth of an offender between 16
and 18 was in itself a substantial and compelling circumstance (para 47).
Nevertheless, on the ap proach of the majo rity in the court a quo and of
the Transvaal Provincial Division in Makwetsja, a sentencing court would
be unable to depart from the statutorily prescribed minimum unless the
child offender establishes the exis tence of substantial and compelling
circumstances. To this extent the offender under 18 would be burdened
in the same way as an offender ov er 18. This would infringe the
principle that imprisonment as a se ntencing option should be used for
child offenders as a last resort and only for the shortest appropriate
16
period of time20 (see V v United Kingdom 30 E.H.R.R. 121 para 118). It
would also conflict with the by now well-estab lished sentencing
principles of proportionality and individualisation (see S v Kwalase at
139 e-I; V v United Kingdom para 123 and 126).
[23] From this point of vi ew the approach adopted in Nkosi and Blaauw
is preferable. I would ho wever qualify what was sa id in those judgments
by adding that the fact that the legislature has ordained the minimum
sentences (S v Malgas 2001 (1) SACR 469 (SCA) para 25) must receive
recognition in determin ing the actual sentenc e. So qualified, the
reasoning in Blaauw and Nkosi in my view acco rds generally with
internationally recognised trends and constitutionally acceptable
principles relating to the sentencing of child off enders. Importantly it
ensures that the duty re mains on the prosecution – where it ought to in
the case of child offe nders – to persuade a se ntencing court that the
minimum sentence should be imposed.
[24] To summarise:
(a) The legislative scheme entails that the fact that an offender is under
18 although over 16 at the time of the offence automatically confers a
discretion on the sentencing court which is without more free to depart
from the prescribed minimum sentence.
20 Ann Skelton ‘Juvenile justice reform: children’s rights and responsibilities versus crime control’ in
CJ Davel Children’s Rights in a Transitional Society (1999) 88 at 99-100.
17
(b) In consequence the se ntencing court is gener ally free to apply the
usual sentencing criteria in deciding on an appropriate sentence.
(c) The offender under 18 though over 16 does not have to establish the
existence of substantial and co mpelling circumstances because
s51(3)(a) finds no application to him or her.
(d) By contrast with the class of offender under 16 , however, the
statutory scheme requires that the sentencing c ourt should take into
account the fact that the legislature has ordi narily ordained the
prescribed sentences for the offences in question . This operates as a
weighting factor in the sentencing process.
(e) It follows on this appr oach that where the provis ions of s51(2) apply
the regional court retains its comp etence to finalise the matter contrary
to the conclusion in Makwetsja.
[25] Returning to the fa cts of the present appe al: the evidence in
mitigation reveals a childhood character ised by neglect, ill-discipline and
ineffective parenting. The appellant was raised in an atmosphere of
social and emotional deprivation. Alcohol and substance abuse were
the order of the day and clashes with th e law were commonplace at an
early age, followed inevitab ly by admission to a pl ace of safety and an
industrial school. Two a ttempts at suicide followed. Little wonder then
that Satanism and its ritualistic prac tices appeared attractive to his still
impressionable, immature mind. The tale is woeful. It is of a child failed
18
by his parents (both of whom appear to be low-fun ctioning individuals),
his community and society generally: one that is not en tirely uncommon
in this country.
[26] On the other hand, the offence itself is part icularly heinous. The
deceased, a defenceless elderly lady , was murdered in the sanctity of
her home by the appellant who en tered under some fa lse pretext in
order to perpetrate a robbery. Th e trial court, as also the court a quo,
held that the appellant’s motive in killing the deceased was to avoid
detection, as he was kn own to her. In that conc lusion neither can be
faulted. These are all strongly aggr avating factors. To his credit, in
pleading guilty the appellant expressed contrition and remorse. Against
the enormity of the crime and the pub lic interest in an appropriately
severe punishment, must be weighed the personal circumstances of the
appellant that are strongly miti gating. Given the appella nt’s relative
youthfulness rehabilitati on remains a real prospect even after a fairly
long period of imprisonment. In my view, taking all this into account, and
not losing from sight t hat the legislature has orda ined that the ordinarily
appropriate sentence for murder is life imprisonment, a term of 18 years’
imprisonment is appropriate.
[27] In the result the ap peal against sentence su cceeds to the extent
that:
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(a) the sentence of life imprisonment on count 1 is set aside;
(b) there is substituted for it a sentence of impr isonment for a term of
18 years;
(c) the sentence of 15 years’ impr isonment on counts 2 and 3 will run
concurrently with the sentence of 18 years on count 1.
V M PONNAN
ACTING JUDGE OF APPEAL
CONCUR:
CAMERON JA
MTHIYANE JA
BRAND JA
PATEL AJA