Centre for Child Law v Minister for Justice and Constitutional Development and Others (CCT98/08) [2009] ZACC 18; 2009 (2) SACR 477 (CC) ; 2009 (6) SA 632 (CC) ; 2009 (11) BCLR 1105 (CC) (15 July 2009)

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[2009] ZACC 18
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Centre for Child Law v Minister for Justice and Constitutional Development and Others (CCT98/08) [2009] ZACC 18; 2009 (2) SACR 477 (CC) ; 2009 (6) SA 632 (CC) ; 2009 (11) BCLR 1105 (CC) (15 July 2009)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 98/08
[2009] ZACC 18
CENTRE FOR CHILD
LAW
.................................................................................................
Applicant
versus
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
........................................................................................................
First
Respondent
MINISTER FOR CORRECTIONAL
SERVICES
.................................................
Second
Respondent
LEGAL AID
BOARD
...............................................................................................
Third
Respondent
and
NATIONAL INSTITUTE FOR CRIME PREVENTION
AND THE RE-INTEGRATION OF
OFFENDERS
......................................................
Amicus
Curiae
Heard on : 5 March 2009
Decided on : 15 July 2009
JUDGMENT
CAMERON J:
Introduction
The applicant applies for confirmation of declarations
of statutory invalidity made by the North Gauteng High Court,
Pretoria.
The High Court (Potterill AJ) struck down various
provisions of the Criminal Law Amendment Act
1
(CLAA) in the form it took after amendment by section 1 of the
Criminal Law (Sentencing) Amendment Act
2
(the Amendment Act). The impugned sections make minimum sentences
applicable to offenders aged 16 and 17 at the time they
committed
the offence. The High Court found these sections inconsistent with
provisions of the Bill of Rights pertaining to
children.
3
The applicant, the Centre for Child Law (the Centre),
is a law clinic established by the University of Pretoria and
registered
with the Law Society of the Northern Provinces. Its
main objective is to establish and promote child law and to uphold
the
rights of children in South Africa. Invoking the standing
provisions of the Bill of Rights,
4
the Centre asserts that it brings the application in its own
interest, on behalf of all 16 and 17 year old children at risk
of
being sentenced under the new provisions, and in the public
interest. In addition to supporting confirmation of the High

Court’s order, the Centre now seeks relief in respect of children
already sentenced under the new provisions which the High
Court did
not grant.
The respondents are the Minister for Justice and
Constitutional Development (the Minister), the Minister for
Correctional Services,
and the Legal Aid Board, an autonomous
statutory body
5
providing legal services to indigent persons. The second and third
respondents did not oppose the application and filed notices
to
abide by the outcome. The Minister opposed the relief in the High
Court, opposed confirmation of the declarations of invalidity,
and
lodged a notice of appeal with this Court against the High Court’s
findings.
Background: the minimum sentencing regime
Section 51 of the CLAA creates a minimum sentencing
regime for specified classes of serious offences.
6
It was introduced on 1 May 1998 as a temporary measure for two
years.
7
Since then it has been extended from time to time;
8
and the Amendment Act has rendered it permanent.
9
Before the Amendment Act came into force, this regime
had limited application to children who were under 18 at the time
of the
offence. The CLAA created a distinctive regime for this
group,
10
and exempted those under 16 altogether.
11
In
S v B
12
the Supreme Court of Appeal held that under the legislative scheme
the fact that an offender was under 18 though over 16 at
the time
of the offence automatically conferred a discretion on the
sentencing court, leaving it free without more to depart
from the
prescribed minimum sentence; that offenders in this group do not
have to establish substantial and compelling circumstances
to avoid
the minimum sentences; but that the prescribed sentences, as the
sentences Parliament has ordinarily ordained for
the offences in
question, nevertheless operate as a “weighting factor”,
conducing to generally heavier sentences.
On 31 December 2007, the Amendment Act came into
force.
13
Its effect (and, according to the answering affidavit of the
Minister, its express object) was to reverse the decision of
the
Supreme Court of Appeal in
S v B
and to apply the minimum
sentencing regime to children who were 16 or 17 at the time of the
offence. Section 51(6) now makes
incontestably clear that only
children under the age of 16 at the time of the offence are
excluded. Section 53A, a transitional
provision, applies the new
provisions to trials of 16 and 17 year olds that are already under
way at the time of its coming
into force.
14
On 3 March 2008, the Centre launched these
proceedings.
The proceedings in the High Court
In the High Court, the Minister raised two preliminary
objections, challenging the Centre’s legal standing and asserting
that
the application is purely academic and without any factual
basis. The High Court found that while the Centre did not allege
that the rights of any specific child were threatened, the rights
of all 16 and 17 year old children are threatened, as the
Amendment
Act subjects them to the minimum sentencing regime. It found that
in attacking the CLAA’s constitutional validity
on principle, the
Centre—
“
does not require a set of
facts; the facts speak for themselves. The child will be 16 or 17
years old, has committed a serious
offence of either rape, robbery
or murder, and the Presiding Officer will have to start the
sentencing process with the minimum
sentence prescribed by the
Legislature.”
15
The High Court concluded that the
Centre therefore did not have a merely academic or hypothetical
interest, and was acting in
the public interest and on behalf of
all 16 and 17 year olds and therefore had legal standing.
On the substance of the challenge, the High Court
found that applying minimum sentences to 16 and 17 year olds
negates the Constitution’s
principles of imprisonment as a last
resort and for the shortest appropriate period of time. Before the
Amendment Act and
under
S v B
, the court began with a “clean
slate” when sentencing child offenders, although giving the
ordained sentences a weighting
effect. In contrast, the Amendment
Act “has left Courts in applying the minimum sentencing regime
with no discretion but
to start with the minimum sentence, clearly
not a clean slate, but imprisonment as a first resort.”
16
The Centre also sought orders requiring the first and
second respondents to have the sentences of those children already
sentenced
under the Amendment Act reconsidered. The High Court did
not deal with these prayers, but postponed them indefinitely (
sine
die
). It accordingly granted an order declaring—
“
that ss 51(1), 51(2), 51(6),
51(5)(b) and 53A(b) of the Criminal Law Amendment Act, Act 105 of
1997, as amended by
section 1
of the
Criminal Law (Sentencing)
Amendment Act, 38 of 2007
are inconsistent with
section 28(1)(g)
and
28
(2) of the Constitution”.
The High Court reserved costs and referred the
declarations to this Court for confirmation in terms of section
172(2)(a) of
the Constitution.
Intervention of amicus curiae
The National Institute for Crime
Prevention and the Re-integration of Offenders (NICRO), a
non-profit organisation working towards
crime reduction and for
community rehabilitation of offenders, applied for and was granted
admission as amicus curiae. In
its written submissions, NICRO
supported the confirmation of invalidity, but focused its argument
on the unconstitutionality
of section 51(6) (which exempts only
those under 16 from minimum sentences). NICRO contended that it is
irrational and unfairly
discriminatory to subject offenders aged 16
and 17 to the regime, since section 28 of the Bill of Rights (the
children’s
rights provision) affords special protective
guarantees for all children under 18.
Abstract review
Before considering the issues, it is convenient to
mention at the outset that in this Court the Minister did not
persist with
his challenge to the Centre’s legal standing, or
with the contention that the issues were purely academic.
17
That approach was in my view correct. Although the Centre did not
act on behalf of (or join) any particular child sentenced
under the
statute as amended, its provisions are clearly intended to have
immediate effect on its promulgation. So the prospect
of children
being sentenced under the challenged provisions was immediate, and
the issue anything but abstract or academic.
The Centre’s stated
focus is children’s rights, and in this case it has standing to
protect them. It was thus entitled
to take up the cudgels. To
have required the Centre to augment its standing by waiting for a
child to be sentenced under the
new provisions would, in my view,
have been an exercise in needless formalism.
This Court has in any event previously indicated that
it may be incumbent on it to deal with the substance of a dispute
about
the constitutionality of legislation a High Court has
declared unconstitutional, even in the absence of a party with
proper
standing.
18
This is for good public policy reasons, mainly to rescue disputed
provisions from the limbo of indeterminate constitutionality
19
or, as it was expressed in
Phaswane
,
20
to achieve “the constitutional purpose of avoiding disruptive
legal uncertainty”. Although this Court will not do so in
every
case where the High Court ought not to have decided the question,
21
in general, “the only circumstances in which a court may not deal
substantively with an application for confirmation is where
no
uncertainty will arise”.
22
These reasons apply even more strongly in a case concerning penal
provisions, which have imminent and adverse effects on those
the
statute targets. That is the case here.
The premises of the High Court judgment
On appeal the Minister opposed
confirmation of the declarations of invalidity, while the Centre
and NICRO urged that they be
confirmed. The Centre in addition
pressed for the structural relief regarding already-sentenced
youths that the High Court
postponed. The parties’ opposing
positions raise important issues about the way the criminal justice
system treats children.
These, in turn, raise difficult issues of
constitutional power and interpretation. For clarity it may
therefore be convenient
to set out first the premises that underlie
the judgment of the High Court. These may be compacted in a series
of short propositions:
The intention and effect of the minimum sentencing
regime is to require courts to impose harsher sentences –
that
is, to send more offenders in the scheduled categories to
jail, for longer periods.
Under the minimum sentencing regime, in default of
a finding that substantial and compelling circumstances exist,
a
sentencing court is obliged to impose the minimum sentence.
The starting point, and default position, is therefore the

minimum sentence.
By contrast, before the Amendment Act, under
S
v B
, the starting point in sentencing 16 and 17 year old
offenders in the scheduled categories was without predisposing

constraints regarding the appropriate sentence, which would
depend on individualised factors relating to the crime and the

offender, while taking into account the interests of society,
including the fact that the legislature had ordinarily
ordained
the prescribed sentences.
The children’s rights provision creates a stark
but beneficial distinction between adults and children. It
draws a
distinction between adults and children below the age
of 18 and requires that those under 18 be treated differently

from adults when authority is exercised over them.
It operates as a substantive constraint on the
exercise of certain types of authority and imposes a
legislative restraint
on Parliament. It requires all those
bound by the Constitution, including the judiciary and
Parliament, to respect
and apply its provisions.
The effect of the Amendment Act is to impose the
minimum sentencing regime on 16 and 17 year old offenders in
the scheduled
categories, resulting in tougher sentences for
them.
This removes the constitutionally mandated
distinction between them and adult offenders, and requires
sentencing courts
to start with the obligation to impose the
minimum sentences, and depart from these only in rare
circumstances, when
substantial and compelling circumstances
are found to exist.
This limits the rights in section 28.
No sufficient or any justification has been
tendered for the limitation.
It therefore constitutes an unconstitutional
violation of the rights of the children at issue.
I now examine these propositions.
I do so under these headings: the minimum sentencing regime; the
children’s rights provision
in the Bill of Rights; the effect of
the Amendment Act; and whether any limitation of rights has been
justified.
The minimum sentencing regime
There can be no doubt that the intention and effect of
the minimum sentencing regime introduced in May 1998 was to impose
a
harsher system of sentencing for the scheduled crimes. In
S v
Malgas
,
23
the Supreme Court of Appeal emphasised that under the minimum
sentencing regime
the discretion entrusted to
courts of law was not expunged, but was substantially constrained.
F
or sentencing courts it was no longer to be business as
usual:
“
First, a court was not to be
given a clean slate on which to inscribe whatever sentence it
thought fit. Instead, it was required
to approach that question
conscious of the fact that the Legislature has ordained life
imprisonment or the particular prescribed
period of imprisonment as
the sentence which should
ordinarily
be imposed for the
commission of the listed crimes in the specified circumstances. In
short, the Legislature aimed at ensuring
a severe, standardised,
and consistent response from the courts to the commission of such
crimes unless there were, and could
be seen to be, truly convincing
reasons for a different response.”
24
Under
Malgas
,
the minimum sentencing legislation had two operative effects.
First, the statutorily prescribed minimum sentences must
ordinarily be imposed. Absent “truly convincing reasons” for
departure,
the scheduled offences are “required to elicit a
severe, standardised and consistent response from the courts”
through
imposition of the ordained sentences.
25
Second, even where those sentences do not have to be imposed
because substantial and compelling circumstances are found, the

legislation has a weighting effect leading to the imposition of
consistently heavier sentences.
26
In
S
v Dodo
27
this Court endorsed
Malgas
.
It found that the
Malgas
approach to sentencing steered “an appropriate path, which the
Legislature doubtless intended, respecting the Legislature’s

decision to ensure that consistently heavier sentences are imposed
in relation to the serious crimes” while at the same time

promoting the spirit, purport and objects of the Bill of Rights.
Dodo
thus upheld the constitutional validity of a minimum sentencing
regime requiring consistently heavier sentences for adults,
so long
as it retained a residual discretionary overlay. Legislative power
to constrain the courts’ sentencing discretion
derived,
Dodo
said, from the fact that “[b]oth the Legislature and the
Executive share an interest in the punishment to be imposed by
courts, both in regard to its nature and its severity”.
28
The courts thus do not enjoy sole authority in determining
sentence:
“
While our
Constitution recognises a separation of powers between the
different branches of the State and a system of appropriate
checks
and balances on the exercise of the respective functions and powers
of these branches, such separation does not confer
on the courts
the sole authority to determine the nature and severity of
sentences to be imposed on convicted persons.”
29
One thing is beyond question
:
the minimum sentences have bitten hard, both in the courts’
approach to sentencing, and in outcome. More offenders have
been
sent to
jail for longer periods. In
Vilakazi v S
,
30
the Supreme Court of Appeal described the aftermath of the new
regime in these stark terms:
“
That it has indeed not been
‘business as usual’ is reflected in the dramatic change in the
profile of the prison population
since the Act [the CLAA] took
effect. Published figures indicate that the number of prisoners
serving sentences of imprisonment
between ten and fifteen years
increased almost three times from 1998 to 2008. Those serving
sentences of life imprisonment
increased over nine times.”
31
(Footnotes omitted.)
In addition, figures from the
Department of Correctional Services show that the proportion of
sentences being served that are
longer than five years is now 66%.
In 1997 only 25% of prisoners were serving sentences of two years
or longer.
32
By contrast, before enactment of the Amendment Act,
under
S v B
, 16 and 17 year old offenders in the scheduled
categories felt the “weighting effect” of the minimum
sentences, but were
not subject to them. The court in
S v B
held that section 51(3)(b) allowed a sentencing court, while
mindful of the new harsher sentences, to start with a “clean

slate”. This does not mean that the court starts the sentencing
process void of any considerations – for that is impossible
–
but only that the court’s approach to sentencing is not bounded
by obligatory predisposing constraints. Instead, sentence
depends
on individualised factors relating to the crime and the offender,
while taking into account the interests of society.
In the answering affidavit filed on behalf of the
Minister in these proceedings, Mr Rudman, a senior official in the
Department
of Justice and Constitutional Development who heads its
legislative branch, puts on record the government’s position that
S v B
’s interpretation of section 51(3)(b) “clearly
departed” from the legislative intention to subject 16 and 17
year olds
to minimum sentences. The Amendment Act, he avers, sets
out to repair the position. As will become clear when I revert to

this evidence in dealing with justification, government’s
objective in enacting legislation is relevant to determining its

validity in the face of constitutional challenge. It does not of
course determine what the statute means.
The question, to which I now turn, is whether the
amending provisions accord with the Constitution.
The children’s rights provision in the Bill of
Rights
Section 28 of the Bill of Rights provides, in relevant
part:
“
(1) Every child has the right—
g) not to be detained except as a measure of last
resort, in which case, in addition to the rights a child enjoys
under sections
12 and 35, the child may be detained only for the
shortest appropriate period of time, and has the right to be—
(i) kept separately from detained persons over the
age of 18 years; and
(ii) treated in a manner, and kept in conditions,
that take account of the child’s age;
(h) to have a legal practitioner assigned to the
child by the state, and at state expense, in civil proceedings
affecting
the child, if substantial injustice would otherwise
result; and
(i) not to be used directly in armed conflict, and
to be protected in times of armed conflict.
(2) A child’s best interests are of paramount
importance in every matter concerning the child.
(3) In this section ‘child’ means a person under
the age of 18 years.”
It is evident that this provision
draws upon and reflects the Convention on the Rights of the Child.
33
Amongst other things section 28 protects children against the
undue exercise of authority. The rights the provision secures
are
not interpretive guides. They are not merely advisory. Nor are
they exhortatory. They constitute a real restraint on
Parliament.
And they are an enforceable precept determining how officials and
judicial officers should treat children.
The Constitution draws this sharp distinction between
children and adults not out of sentimental considerations, but for
practical
reasons relating to children’s greater physical and
psychological vulnerability. Children’s bodies are generally
frailer,
and their ability to make choices generally more
constricted, than those of adults. They are less able to protect
themselves,
more needful of protection, and less resourceful in
self-maintenance than adults.
These considerations take acute effect when society
imposes criminal responsibility and passes sentence on child
offenders.
Not only are children less physically and
psychologically mature than adults: they are more vulnerable to
influence and pressure
from others. And, most vitally, they are
generally more capable of rehabilitation than adults.
These are the premises on which the Constitution
requires the courts and Parliament to differentiate child offenders
from adults.
We distinguish them because we recognise that
children’s crimes may stem from immature judgment, from as yet
unformed character,
from youthful vulnerability to error, to
impulse, and to influence. We recognise that exacting full moral
accountability for
a misdeed might be too harsh because they are
not yet adults. Hence we afford children some leeway of hope and
possibility.
This is not to say that children do not commit heinous
crimes. They do. The courts, which deal with child offenders
every
day, recognise this no less than Parliament. The affidavit
on behalf of the Minister rightly points to legislators’ concern

about violent crimes committed by under-18s. The Constitution does
not prohibit Parliament from dealing effectively with these

offenders. The children’s rights provision itself envisages that
child offenders may have to be detained. The constitutional

injunction that “[a] child’s best interests are of paramount
importance in every matter concerning the child” does not

preclude sending child offenders to jail. It means that the
child’s interests are “more important than anything else”,
34
but not that everything else is unimportant: the entire spectrum of
considerations relating to the child offender, the offence
and the
interests of society may require incarceration as the last resort
of punishment.
It is in accordance with this approach, and
recognising Parliament’s due role in setting public policy
standards in sentencing,
that
S v B
enjoined courts to take
into account the weighting effect of the minimum sentences when
sentencing 16 and 17 year olds.
But while the Bill of Rights envisages that detention
of child offenders may be appropriate, it mitigates the
circumstances.
Detention must be a last, not a first, or even
intermediate, resort; and when the child is detained, detention
must be “only
for the shortest appropriate period of time”.
The principles of “last resort” and “shortest appropriate
period”
bear not only on whether prison is a proper sentencing
option, but also on the nature of the incarceration imposed. If
there
is an appropriate option other than imprisonment, the Bill of
Rights requires that it be chosen. In this sense, incarceration

must be the sole appropriate option. But if incarceration is
unavoidable, its form and duration must also be tempered, so
as to
ensure detention for the shortest possible period of time.
In short, section 28(1)(g) requires an individuated
judicial response to sentencing, one that focuses on the particular
child
who is being sentenced, rather than an approach encumbered by
the rigid starting point that minimum sentencing entails. The
injunction that the child may be detained only for the shortest
“appropriate” period of time relates to the child and to
the
offence he or she has committed. It requires an individually
appropriate sentence. It does not import a supervening
legislatively imposed determination of what would be “appropriate”
under a minimum sentencing system.
The general considerations mitigating the treatment
and punishment of child offenders find resonance with comparable
systems
of justice. In declaring unconstitutional the death
penalty for offenders under 18, the Supreme Court of the United
States
of America has held that, as a category, children are less
culpable.
35
It observed that—
“
as any parent knows and as
scientific and sociological studies . . . tend to confirm, ‘[a]
lack of maturity and an underdeveloped
sense of responsibility are
found in youth more often than in adults and are more
understandable among the young. These qualities
often result in
impetuous and ill-considered actions and decisions.’”
36
That court also alluded to the
fact that juveniles are “more vulnerable or susceptible to
negative influences and outside
pressures, including peer
pressure”. In part, this is due to the fact that “juveniles
have less control, or less experience
with control, over their own
environment”.
37
As already pointed out, since the character and
personality of children under 18 are not yet fully formed, child
offenders may
be uniquely capable of rehabilitation. Juveniles are
still engaged in the process of defining their own identity. The
United
States Supreme Court has therefore pointed out that their
“vulnerability and comparative lack of control over their
immediate
surroundings mean juveniles have a greater claim than
adults to be forgiven for failing to escape negative influences in
their
whole environment”. Hence:
“
From a moral standpoint it
would be misguided to equate the failings of a minor with those of
an adult, for a greater possibility
exists that a minor’s
character deficiencies will be reformed.”
38
The Supreme Court of Canada has similarly found that
because of their heightened vulnerability, relative lack of
maturity and
reduced capacity for moral judgment, children are
entitled to a presumption of diminished moral culpability.
39
This, the Court found, is “fundamental to our notions of how a
fair legal system ought to operate”.
40
The Court therefore allowed a challenge based on the Canadian
Charter of Rights to a statute that required the imposition
of
adult sentences on certain categories of violent child offenders
unless the young person could justify why an adult sentence
should
not be imposed.
In a practical and entirely unsentimental sense,
children embody society’s hope for, and its investment in, its
own future.
The Bill of Rights recognises this. This is why it
requires the state to afford them special nurturance, and affords
them
special protection from the state’s power.
41
Another provision of the Bill of Rights reflects these
facts about children. The franchise guarantee, section 19,
provides
that every “adult citizen”
42
has the right to vote in elections and to stand for public office.
Children, as non-adults, are both disenfranchised and incapacitated

from holding public office. Their constitutional incapacities stem
from the very disabilities of judgment and insight that
warrant
their constitutional protection against the full rigour of adult
punishments.
There is no intrinsic magic in the age of 18, except
that in many contexts it has been accepted as marking the
transition from
childhood to adulthood. The Constitution’s
drafters could conceivably have set the frontier at 19 or at 17.
They did not.
They chose 18. For so long as the Bill of Rights
stipulates that ‘child’ means a person under the age of 18
years,
43
its benefits and protections must be afforded to all those under
the age of 18 years. This is a bulwark that the legislature
cannot
overturn without cogent justification. The question is whether the
amending provisions attempt to do so.
The effect of the amending provisions
The expressly intended effect of the Amendment Act is
to obliterate the distinction between offenders who are 16 and 17
at the
time of the offence, on the one hand, and adults on the
other. This applies the full rigour of the minimum sentencing
regime
to them. As explained earlier, under
Malgas
,
44
Dodo
45
and
Vilakazi
,
46
the starting point for a sentencing court is the minimum sentence,
the next question being whether substantial and compelling

circumstances can be found to exist. This is answered by
considering whether the minimum sentence is clearly
disproportionate
to the crime.
This is very far from the approach to sentencing that
the Bill of Rights demands for children. The Minister argued that
certain
mitigating features of the amended regime lighten the
position. He pointed to the effect of section 51(5)(b) of the
amended
statute.
47
This permits the suspension of up to half of a minimum sentence
imposed on 16 and 17 year olds. The Minister contended that
this
distinguishes these children from adult offenders. In addition,
the court may take into account the amount of time spent

incarcerated as an awaiting trial prisoner; while parole might also
reduce the period of incarceration. The net result, it
was urged,
is that a juvenile offender will be subjected to detention for the
shortest period of time.
But the power given to suspend half a minimum sentence
merely underscores the impact of the new provisions, since it
constricts
the powers the courts had before the amendment. Before
the Amendment Act, they could suspend the entire minimum sentence.

Far from giving, the amendment only takes.
In argument
the
Minister contended that the legislation respected the “last
resort” and “shortest appropriate period” precepts,
albeit
that it was Parliament that had made the determination in question.
It is Parliament, the argument proceeded, that
has stipulated
that, for 16 and 17 year olds committing the scheduled offences,
absent substantial and compelling circumstances,
the option of last
resort, and the shortest appropriate period, consists of the
prescribed minimum sentences. Nothing in the
children’s rights
provision, counsel contended, precludes Parliament from itself
making the determination in question.
It is correct that Parliament
has
a role in the individuation of sentences, including sentences of
child offenders. This
S v B
recognised by affording the legislatively ordained minimum
sentences a weighting effect. But final individuation of sentences

is the preserve of the courts. And that must occur in accordance
with the children’s rights provisions in the Bill of Rights.

Parliament cannot without weighty justification take it away. That
is the basis of the
Dodo
dispensation.
Counsel for the Minister
conceded,
as he had to, the principle of judicial individuation of sentence.
This creates a difficulty in dealing with the
impact of minimum
sentences on the children’s rights provision. The very nature of
minimum sentences is to diminish the
courts’ power of
individuation by constraining their discretion in the sentencing
process.
The Supreme Court of Appeal in
Vilakazi
48
has recently emphasised that under
Malgas
and
Dodo
“disproportionate sentences are not to be imposed and that courts
are not vehicles for injustice.”
49
Nevertheless, in its very essence the minimum sentencing regime
makes for tougher and longer sentences. While the hands of

sentencing courts are not bound, they are at least loosely
fettered. As this Court noted in
Dodo
, the very object of
the regime is to “
ensure that consistently
heavier sentences are imposed”.
50
The minimum sentencing regime does this in three ways.
First, it orientates the sentencing officer at the start of the
sentencing
process away from options other than incarceration.
Second, it de-individuates sentencing by prescribing as a starting
point
the period for which incarceration is appropriate. Third,
even when not imposed, the prescribed sentences conduce to longer
and heavier sentences by weighing on the discretion.
The first two elements go against the direct
injunctions of the children’s rights provision. Those rights do
not apply indifferently
to children by category. A child’s
interests are not capable of legislative determination by group.
As Ngcobo J has recently
affirmed, albeit in a different context:
“
What must be stressed here is
that every child is unique and has his or her own individual
dignity, special needs and interests.
And a child has a right to
be treated with dignity and compassion. This means that the child
must ‘be treated in a caring
and sensitive manner.’ This
requires ‘taking into account [the child’s] personal situation,
and immediate needs, age,
gender, disability and level of
maturity’. In short, ‘[e]very child should be treated as an
individual with his or her
own individual needs, wishes and
feelings.’”
51
(Footnotes omitted.)
The children’s rights provision
thus applies to each child in his or her individual circumstances.
This is no less so in
the sentencing process than anywhere else.
As Sachs J wrote for the Court in
S v M
:
52
“
A truly principled
child-centred approach requires a close and individualised
examination of the precise real-life situation
of the particular
child involved. To apply a predetermined formula for the sake of
certainty, irrespective of the circumstances,
would in fact be
contrary to the best interests of the child concerned.”
The conclusion is therefore unavoidable that the
Amendment Act limits the rights in section 28. The question is
whether the
limitation is justifiable in terms of section 36.
53
Has the limitation of children’s rights been
justified?
In
Dodo
,
this Court gave the minimum sentencing framework its imprimatur for
adults. Here, in clear limitation of section 28(1)(g),
Parliament
has applied that framework to 16 and 17 year old offenders. While
Parliament itself may not be called upon to explain
its enactments,
where a criminal statute limits a provision of the Bill of Rights,
the executive, which initiates the great
bulk of legislation
enacted by Parliament and is charged with enforcing statutes,
54
is obliged to tender an adequate justification for purposes of a
limitations analysis.
In determining whether a limitation
is reasonable and justifiable within the meaning of section 36 of
the Constitution, “
it is necessary to weigh the extent of
the limitation of the right, on the one hand, with the purpose,
importance and effect
of the infringing provision on the other,
taking into account the availability of less restrictive means to
achieve this purpose.”
55
The purpose of the
present
limitation appears from portions of the affidavit submitted on
behalf of the Minister. The affidavit records views
expressed in
the legislature in 1997 when the CLAA was originally adopted.
These views, as previously observed,
56
are relevant to assessing governmental purpose in enacting the
legislation, as opposed to determining statutory meaning. Concern

was then expressed at “growing tendencies . . . that indicate
that many juveniles are committing the more serious of serious

offences, particularly sexual offences”; since the legislation
was “targeting the most serious crimes”, Parliament could
not
completely exclude juveniles. The affidavit relates further that
the government’s original objective was to include
16 and 17 year
old offenders in the minimum sentencing regime, and to exclude only
under-16s. Contrary to this intent, however,
the Supreme Court of
Appeal decided in
S v B
that the regime did not apply to under-18s. Hence the necessity
for the Amendment Act.
From this it appears that
government sought the enactment of the
amendment to counter the detrimental social impact of scheduled
crimes committed by 16
and 17 year olds, and that the purpose of
the limitation is to elicit the social benefits that a legislative
bulwark against
them will deliver.
The difficulty is that the
Minister’s affidavit tenders no facts from which the
legitimacy
of this purpose, and the efficacy of its execution, can be
assessed. This Court has said that justification does
not depend
only on facts, but may derive from policy objectives based on
reasonable inferences unsupported by empirical data.
57
But even the clear articulation of such policy objectives is
lacking. What is more, even in the case of a policy objective—
“
the party relying on
justification should place sufficient information before the Court
as to the policy that is being furthered,
the reasons for that
policy and why it is considered reasonable in pursuit of that
policy to limit a constitutional right.
That is important, for if
this is not done the Court may be unable to discern what the policy
is, and the party making the
constitutional challenge does not have
the opportunity of rebutting the contention through countervailing
factual material
or expert opinion.”
58
Such information would be
particularly pertinent in this case.
The
Amendment Act lowers a line the Constitution itself expressly
draws. For purposes of the application of minimum sentences,
it
supplants the distinction the Bill of Rights draws between
under-18s and over-18s, and draws a new line instead at 16.
The
new broader sweep of the legislation targets specifically 16 and 17
year olds. It could therefore reasonably have been
expected that
the Minister would set out reasons or policies that pertain
specifically to this group: in other words, what
specific conduct
and social patterns within the age-group previously exempt, but now
encompassed, created the need to impose
a limitation on the rights
in section 28?
Pertinent would be
the
frequency of offences in these categories; such offences as a
proportion of other scheduled offences; and the increase in
trend,
if any. Thus, the Minister’s affidavit could have set out—
How many of each
of the scheduled crimes have been committed by 16 and 17 year
olds within any recent statistical year;
What proportion of the total
number
of such crimes consist of
offences by 16 and 17 year olds;
Whether there has been an
absolute statistical increase in such crimes
;
Whether
such crimes have increased as a proportion of the total
.
In addition,
it
would have assisted this Court’s assessment if the affidavit set
out what specific social objectives the new framework’s
added
severity aimed to achieve: whether it sought to attain ends such as
deterrence; or whether it was aimed at satisfying
rightful public
anger at juvenile crime.
Given the Minister’s explanation
that
the government’s objective in
enacting the Amendment Act was to reverse the outcome of
S
v B
, one would have expected an
explanation of the respects in which this regime (which the Supreme
Court of Appeal crafted in
the light of the pre-amendment
provisions) was insufficient. But this is entirely lacking. Nor
does the affidavit say how
the new, tougher regime will achieve any
constitutionally permitted objective.
I
t was
debated during argument whether the Court can take judicial notice
that serious crime in all categories has increased.
This is open
to question since it has been a publicly presented article of faith
of government that serious crime has stabilised
and that in most
categories it has in recent years come down. What the Court can
take note of is that, generally, levels of
crime are enormously and
unacceptably high, especially those in the scheduled categories,
59
and that there is well-warranted public disquiet and anger about
this.
But
high
crime levels and well-justified public anger do not provide
justification for a legislative intervention overriding a specific

protection in the Bill of Rights. The effect of the Amendment Act
is to single out one precisely defined group of offenders
and limit
the rights the Constitution specially affords them. Justifying the
limitation of their rights requires information
or policies bearing
directly on this group. But the Minister offers no such evidence,
nor any stated policy objectives. In
its absence, it is difficult
to appraise less restrictive means.
The Centre rightly submitted that
several international law instruments count in favour of the view
that minimum sentences should
not apply to child offenders.
60
The principles evident from these documents regarding child
sentences are: proportionality (children must be dealt with in
a
manner “appropriate to their well-being and proportionate both to
their circumstances and the offence”);
61
imprisonment as a measure of last resort and for the shortest
appropriate period of time;
62
that children must be treated differently from adults;
63
and that the well-being of the child is the central consideration.
The Centre further submitted –
and counsel for the Minister accepted – that the only comparable
country that imposes minimum
sentences on children is the United
States of America. While the situation varies from country to
country,
counsel were agreed that
children in comparable systems (such as the United Kingdom)
64
appear to be either excluded from minimum sentencing legislation
applicable to adults, or to be subject to much shorter prescribed

sentences.
It is plain that the Bill of Rights
in our Constitution amply embodies these internationally accepted
principles. Its provisions
merely need to be given their intended
effect. This leads to the conclusion that no maintainable
justification has been advanced
for including 16 and 17 year olds
in the minimum sentencing regime. Legislation cannot take away the
right of 16 and 17 year
olds to be detained only as a last resort,
and for the shortest appropriate period of time, without reasons
being provided
that specifically relate to this group and explain
the need to change the constitutional disposition applying to them.
In these circumstances the
premises
underlying the judgment of the High Court, set out earlier,
65
are correct. It must follow that the limitation of section
28(1)(g) is unconstitutional and must be so declared.
66
I have had the opportunity of reading the judgment of
my colleague Yacoob J, who finds that the amending provisions can
be read
so as to avoid conflict with section 28. I regret I do not
find my colleague’s approach persuasive and cannot endorse his
conclusion. In my view the provisions are not reasonably capable
of the interpretation he urges. This is for two reasons.
The
first is that my colleague’s position entails an internal
inconsistency. The second is that his position would, if
enforced,
give rise to grave practical difficulties in sentencing child
offenders.
First, my colleague’s judgment equivocates between
acknowledging that the amending provisions subject children to the
prescribed minima
and
reading them as if
they have no effect at all.
While my colleague states that
the Amendment Act “without doubt” makes the regime of
prescribed minima applicable to 16
and 17 year old children (at
[104] below), he denies that it does so in a de-individuating way
since, he says, the statute
does not oblige courts “to impose a
sentence on children that is in excess of that mandated by section
28(1)(g)” (at [101]
below). In my view this creates an untenable
duality in his position. Both the propositions cannot
simultaneously be true.
The fact is that the minimum sentencing
regime by its very nature de-individuates sentencing, thereby
conducing to consistently
longer sentences. Because of these
features, applying that regime to children limits section 28 rights
in a way that requires
justification.
Second, the approach of Yacoob J entails serious
operational perils for the sentencing of child offenders. Because
it equivocates
in the way I have shown
, it does
not adequately explain how far the minimum sentencing regime can
legitimately push sentences upwards. It therefore
leaves an
especially vulnerable group with a significant degree of
uncertainty about the content of their constitutional rights.
As
this Court said in
Richter
,
“a law that regulates a fundamental right should be expressed in
a manner which will enable citizens to determine with relative

clarity what rights they have and do not have.”
67
In my view the unconstitutional
impact of the amending provisions cannot
reasonably
be interpreted away. It is therefore this Court’s duty to
declare them invalid.
What relief should be granted?
As will be seen from the order of invalidity the High
Court granted,
68
it included the provisions of section 53A(b).
69
This provision requires regional courts with pending sentencing
proceedings that have not yet committed the accused persons
for
sentencing in the High Court to “dispose of the matter in terms
of this Act, as amended”. Before this Court, the Centre
did not
however contend that, should the Amendment Act be struck down for
16 and 17 year olds, section 53A has any offensive
retrospective
working. It seems to me the transitional provision can and should
be interpreted to deal solely with the jurisdiction
of the regional
court to impose higher sentences. It gives no power to sentence 16
and 17 year olds whose offences predated
the Amendment more
harshly. It therefore has no retroactive effect and must be
excluded from the declaration of invalidity.
The rest of the order granted by the High Court,
declaring the amended minimum sentence provisions “inconsistent
with sections
28(1)(g) and 28(2) of the Constitution”, was not as
precise as the order the Centre sought in its notice of motion,
which
was in part:
“
(1) Declaring that
sections
51(1)
and (2) of the
Criminal Law Amendment Act, 105 of 1997
, as
amended, are inconsistent with the Constitution and invalid, to
the extent that they apply to persons who were under
18 years of
age at the time of the commission of the offence.
(2) Declaring that:
(a)
section 51(6)
of the
Criminal Law Amendment
Act, 105 of 1997
, as amended, is inconsistent with the
Constitution and invalid; and
(b) to remedy the defect,
section 51(6)
of the
Criminal Law Amendment Act, 105 of 1997
, as amended, is to read
as though it provides as follows:
‘This section does not apply in respect of an
accused person who was under 18 at the time of the commission
of an
offence contemplated in subsection (1) or (2).’
(3) Declaring that
section
51(5)(b)
of the
Criminal Law Amendment Act, 105 of 1997
, as
amended, is inconsistent with the Constitution and invalid.”
These prayers, while less compressed than the order
granted by the High Court, have the merit of greater precision.
Paragraph
1 of the order of the High Court should therefore be set
aside and replaced with an order as sought in paragraphs 1, 2, and

3 of the notice of motion.
Paragraphs
5,
6 and 7 of the Centre’s notice of motion, which the High Court
postponed, sought structured relief aimed at securing

reconsideration of sentences passed on juveniles under the amended
provisions. The Centre sought an order directing the Minister
and
the Minister for Correctional Services to take all steps necessary
to ensure that persons under 18 who have been sentenced
under the
CLAA as amended have their sentences reconsidered. The relief the
Centre sought included identifying the children
within two months,
and causing them to be brought before a competent court in order to
have their sentences reconsidered, with
adequate legal
representation.
These prayers aim to remedy the fact that children
have been subject to unconstitutional sentencing decisions since 31
December
2007. The Centre contends that it would be intolerable if
no relief was provided to such children. In the light of the fact

that those affected are children and that they might not become
aware of this Court’s decision, it argues that the state
is under
a duty to take all steps necessary to ensure that such children
have their sentences reconsidered in the light of
the
unconstitutionality of the Amendment Act. The Centre thus submits
that it is appropriate to require the Ministers involved
to file
affidavits regarding the steps taken.
70
But is the
relief
sought here compatible with the proper approach to retroactivity in
criminal proceedings? In
S v
Bhulwana
,
71
this Court stated:
“
Central to a consideration of
the interests of justice in a particular case is that successful
litigants should obtain the relief
they seek. It is only when the
interests of good government outweigh the interests of the
individual litigants that the Court
will not grant relief to
successful litigants. In principle, too, the litigants before the
Court should not be singled out
for the grant of relief, but relief
should be afforded to all people who are in the same situation as
the litigants. On the
other hand, as we stated in
S v Zuma
(at para [43]), we should be circumspect in exercising our powers
under section 98(6)(
a
) so as to avoid unnecessary
dislocation and uncertainty in the criminal justice process.”
(References omitted.)
In
National
Coalition
,
72
this Court declared the common law offence of sodomy
unconstitutional, retroactive to the adoption of the interim
Constitution
in 1994. It nevertheless declined to grant an order of
unqualified retrospectivity. It reasoned that—
“
Persons
might act directly under the order to have convictions set aside
without adequate judicial supervision or institute
claims for
damages
. The least disruptive way of
giving relief to persons in respect of past convictions for
consensual sodomy is through the
established court structures. On
the strength of the order of constitutional invalidity such persons
could note an appeal
against their convictions for consensual
sodomy, where the period for noting such appeal has not yet
expired, or, where it
has, could bring an application for
condonation of the late noting of an appeal or the late application
for leave to appeal
to a Court of competent jurisdiction. In this
way effective judicial control can be exercised. Although this
might result
in cases having to be reopened, it will in all
probability not cause dislocation of the administration of justice
of any moment.”
A less
disruptive
alternative to the relief the
Centre seeks would thus be to follow the lead in
National
Coalition
, while at the same time
issuing directions requesting further information on affidavit from
the two Ministers. The information
sought should set out the
number of affected juveniles sentenced under the Amendment Act
between its coming into effect on
1 January 2008 and the date of
this Court’s order. This will be combined with orders making it
possible for those affected
to initiate appeals against sentences
imposed on them under the Amendment Act.
Costs
In
accordance with the now-established practice in this Court, the
Centre, having succeeded in vindicating constitutional rights

against a government respondent, should get its costs both in this
court and the court below, including the costs of two counsel.

There should be no order as to the amicus’ costs.
Order
The following order is granted:
The declarations of invalidity granted by the
North Gauteng High Court, Pretoria (case number 11214/08)
dated
4 November 2008 are set aside, and are substituted by
the following order:
It is declared that
sections 51(1)
and (2) of
the
Criminal Law Amendment Act 105 of 1997
, as amended by
the
Criminal Law (Sentencing) Amendment Act 38 of 2007
, are
inconsistent with the Constitution and invalid, to the
extent that they apply to persons who were under
18 years
of age at the time of the commission of the offence.
It is declared that:
Section 51(6)
of the
Criminal Law Amendment
Act 105 of 1997
, as amended by the
Criminal Law
(Sentencing) Amendment Act 38 of 2007
, is inconsistent
with the Constitution and invalid; and
To remedy the defect,
section 51(6)
of the
Criminal Law Amendment Act 105 of 1997
, as amended by the
Criminal Law (Sentencing) Amendment Act 38 of 2007
, is to
read as though it provides as follows:
“This section does not apply in respect
of an accused person who was under the age of 18 years at the
time of the commission
of an offence contemplated in subsection
(1) or (2).”
It is declared that
section 51(5)(b)
of the
Criminal Law Amendment Act 105 of
1997
, as amended by the
Criminal Law (Sentencing) Amendment
Act 38 of 2007
, is inconsistent with the Constitution and
invalid.
In terms of section
172(1)(b) of the Constitution, the order in paragraph 1
above shall not invalidate any sentence
imposed for
scheduled offences in terms of
sections 51(1)
and
51
(2) of
the
Criminal Law Amendment Act 105 of 1997
, as amended by
the
Criminal Law (Sentencing) Amendment Act 38 of 2007
, on
persons who were younger than 18 and older than 16 at the
time of the commission of the act that constitutes
the
offence, unless either an appeal from, or a review of, the
relevant sentence is pending, or the time for
noting of an
appeal has not yet expired, or condonation for the late
noting of an appeal or late filing of an
application for
leave to appeal is granted by a competent court.
The first and second respondents are directed
by 30 September 2009 to furnish a report to the applicant,
and to
lodge a copy with this Court, setting out—
(a) the name of every person
younger than 18 and older than 16 at the time the offence was
committed who was sentenced for
a scheduled offence in terms of
sections 51(1)
and
51
(2) of the
Criminal Law Amendment Act 105 of
1997
, as amended by the
Criminal Law (Sentencing) Amendment Act 38
of 2007
;
the number of the case in which such sentence was
passed;
the court that passed the sentence; and
the date on which the sentence was passed.
The first respondent is
ordered to pay the costs of the applicant, in this Court and
the High Court, including
the costs of two counsel.
Langa CJ, Moseneke DCJ, Mokgoro J, O’Regan J, Sachs
J and Van der Westhuizen J concur in the judgment of Cameron J.
YACOOB J:
Introduction
This case raises important questions concerning the
respective roles of the legislature and the courts in the
sentencing of
children, as well as the true impact of
section
28(1)(g)
of our Constitution on the sentencing of children. More
specifically, the question to be answered is whether provisions of

a law
1
which made certain minimum sentencing provisions applicable to 16
and 17 year old children are inconsistent with the Constitution.
2
The applicant for confirmation contended and the High Court held
that the law offends the constitutional prescript that children

must be subject to detention only as a “matter of last resort”
and then only “for the shortest appropriate time”.
I have read the judgment (the majority judgment) of my
colleague Cameron J who eloquently concludes that the law is an
unjustifiable
limitation of the section 28(1)(g) right. I am
regrettably unable to agree with this conclusion. I agree with
much of the
judgment of Cameron J particularly where my colleague
expands upon the vulnerability of children, their immaturity, the
fact
that they are easily influenced as well as the circumstance
that the possibilities of the rehabilitation of children and their

reintegration into society must always be carefully considered by a
sentencing court. It is indeed beyond debate that the
Constitution
requires children to be treated with special care and concern when
they are sentenced. The main differences between
this judgment and
that of Cameron J concern the exposition of the meaning and impact
of section 28(1)(g) of the Constitution
and the minimum sentencing
regime in so far as it relates to children who are 16 and 17 years
of age.
This judgment essentially reaches the following
conclusions:
The executive, the legislature and the judiciary all
have a role in the sentencing process in so far as it concerns
children.
It is the duty of all three arms of government to
respect, protect, promote and fulfil the rights of children in the
Constitution.
The law that makes the minimum sentencing provisions
applicable to 16 and 17 year old children is Parliament’s
response
to certain perceived evils in society and its
contribution to the sentencing process.
It is a court, and only a court, that sentences
children and, in doing so, is bound by section 28(1)(g) of the
Constitution.
The law would be unconstitutional only if it obliges
a court to ignore the prescripts of section 28(1)(g) of the
Constitution.
The legislature cannot do so, has not done so
expressly, and, on a proper construction of the statute, plainly
has not done
so by necessary implication either.
In the circumstances the law is constitutionally
compliant.
This judgment discusses the following topics:
the meaning, scope and effect of section 28(1)(g) of
the Constitution;
the role of Parliament and the executive in the
sentencing of children and its limits;
the meaning and effect of the minimum sentencing
regime in general and in so far as it relates to children in
particular;
and
whether the minimum sentencing legislation in so far
as it relates to children is inconsistent with the Constitution.
The meaning, scope and effect of section 28(1)(g)
of the Constitution
Section 28(1)(g) provides:
“
(1) Every child has the right—
(g) not to be detained except as a measure of last
resort, in which case, in addition to the rights a child enjoys
under
sections 12 and 35, the child may be detained only for
the shortest
appropriate
period of time, and has the
right to be—
(i) kept separately from detained persons over
the age of 18 years; and
(ii) treated in a manner, and kept in
conditions, that take account of the child’s age”. (My
emphasis.)
It is apparent that section 28(1)(g) is not concerned
simply with the sentencing of children by courts. It has a wide
impact
and applies to detentions of all kinds. It is not necessary
in this judgment for us to consider any detention other than
incarceration
consequent upon the imposition of a sentence of
imprisonment. I will accordingly develop this section of the
judgment with
respect to custodial sentences imposed upon children.
The Constitution provides that the whole of the Bill
of Rights, including section 28(1)(g), applies to all law and is
binding
on the legislature, the executive and the judiciary. It is
the duty of all three arms of government therefore to respect,

protect and fulfil the rights of children in the Bill of Rights.
Our Constitution, however, envisages that sentencing is a judicial

function and that this function will be performed by the courts and
only the courts. Indeed any effort by an administrative,
executive
or legislative entity to impose a sentence on anyone would be
inconsistent with the Constitution. In so far as section
28(1)(g)
applies to sentencing, therefore, it is essentially and primarily
an injunction to our courts; an injunction which
must be taken
seriously and which can under no circumstances be ignored; an
injunction which no legislation can override constitutionally.

This does not mean however that the legislature and the executive
do not have obligations imposed upon them by this provision.
All our courts are obliged when imposing sentence to
ensure that a sentence of imprisonment must be imposed on any
child, who
by definition is any person under the age of 18 years,
only as a matter of last resort and only for the shortest
appropriate
period. Each of these concepts must be examined
briefly.
Certain pronouncements by our courts on the meaning of
the phrase “last resort” imply that the phrase renders
appropriate
a distinction between “first resort” and “last
resort” or even first resort, intermediate resort, and last
resort.
3
This approach implies that a court is obliged to consider all
options other than imprisonment, exclude them one by one and

consider imprisonment as a form of punishment only after it has
concluded that each of the other methods of punishment are

inappropriate in the circumstances. The approach is, with respect,
somewhat mechanical and not conducive to giving the constitutional

provision its full effect in the protection of children.
The injunction that children must be sentenced to
imprisonment as a matter of last resort means simply that a child
must be
sentenced to a term of imprisonment only if, after
considering all the relevant circumstances, the court concerned
concludes
that there is no option but to sentence the child to
imprisonment. These circumstances would include the nature and
gravity
of the offence, any mitigating circumstances, all the
personal circumstances concerning the child as well as the
requirements
of society. Particular attention must of course be
paid to the vulnerability of the child concerned, the fact that the
child
can easily be influenced, the child’s lack of maturity as
well as the important aspect of rehabilitation. All these factors

must be considered against the backdrop of an understanding of the
preventive, rehabilitative and punitive purposes of punishment.
It
is only after all these facts are considered that a court can
properly determine whether imprisonment is the only appropriate

option. If it is, the shortest appropriate period of imprisonment
must be imposed. Indeed, courts would be failing in their
duty if,
where imprisonment is the only appropriate option, they impose a
lesser sentence out of undue sympathy for the child
concerned.
Nor does a court err if it forms an initial view that
a prison sentence is appropriate. It is beyond doubt that this
could
often be an unobjectionable first response in the case, for
example, of a 16 year old child who has committed a heinous murder,

demonstrates the maturity of an adult and has relevant serious
previous convictions. To start an evaluation of what the

appropriate sentence is for a child on this basis cannot and does
not mean that a court regards imprisonment as a matter of first

resort. Whatever its initial views might be, and the Constitution
does not preclude any court from having a prima facie view,
the
court complies with section 28(1)(g) if it takes into account all
the relevant circumstances and, in the ultimate analysis,
makes a
proper determination whether imprisonment is the only appropriate
option in the case at hand.
Concepts such as first resort and
intermediate resort confuse the analysis. Simply put, if a court
concludes that imprisonment
is the only appropriate option, a
custodial sentence complies with the Constitution. It does not
matter where the court starts
in the sentencing process; all that
matters for the purposes of section 28(1)(g) is whether the
sentence eventually imposed
is unavoidable in the circumstances and
is the shortest appropriate period. I emphasise that the
Constitution prescribes no
starting point in a court’s reasoning
concerning sentence.
The next phrase that needs some attention is the
phrase “for the shortest appropriate period of time”. It is
difficult
to see how this phrase has practical application to a
court that is bound by it. This is because any court, after
concluding
that a sentence of imprisonment is appropriate, must
determine, in all the circumstances, the appropriate period of
incarceration.
There cannot ordinarily be two appropriate periods,
the one shorter than the other. The phrase does however have some
practical
significance but only in those cases in which the
presiding officer is in some doubt about whether a shorter period
of imprisonment
or a somewhat longer one is appropriate. If this
happens, courts would err if they imposed the longer prison term.
I agree with the Supreme Court of Appeal
4
that:
“
Having regard to section
28(1)(
g
) of the Constitution and the relevant international
instruments, as already indicated, it is clear that in every case
involving
a juvenile offender, the ambit and scope of sentencing
will have to be widened in order to give effect to the principle
that
a child offender is ‘not to be detained except as a measure
of last resort’ and if detention a of child is unavoidable, this

should be ‘only for the shortest appropriate period of time’.”
I would add that section 28(1)(g),
quite apart from widening the enquiry, as rightly pointed out by the
Supreme Court of Appeal,
both changes and concentrates the focus of
the enquiry. Two specific questions must be asked: is imprisonment
appropriate in
the circumstances? If it is, what is the appropriate
shortest period? I also agree that:
“
Even in the case of a juvenile
. . . the sentence imposed must be in proportion to the gravity of
the offence.”
5
I agree with the principles as set out in
Nkosi
6
as being made applicable by section 28(1)(g) in imposing
sentences on children. These are set out as follows:
“
(i) Wherever possible a
sentence of imprisonment should be avoided, especially in the
case of a first offender.
(ii) Imprisonment should be considered as a measure
of last resort, where no other sentence can be considered
appropriate.
Serious violent crimes would fall into this
category.
(iii) Where imprisonment is considered appropriate
it should be for the shortest possible period of time, having
regard
to the nature and gravity of the offence and the needs of
society as well as the particular needs and interests of the

child offender.
(iv) If at all possible the judicial officer must
structure the punishment in such a way as to promote the
rehabilitation
and reintegration of the child concerned into
his/her family or community.
The sentence of life imprisonment may only be
considered in exceptional circumstances. Such circumstances would
be present
where the offender is a danger to society and there is
no reasonable prospect of his or her rehabilitation.”
7
It must be emphasised that there are three
requirements that section 28(1)(g) decidedly does not stipulate.
The first is that
the section does not require the sentence
ultimately imposed on children to be necessarily lower than the
sentence that is
imposed on an adult for the same offence. The
differentiation is exacted, not so much in relation to the ultimate
sentence
that is imposed, but rather in the way in which the
sentence to be imposed is determined. A lower sentence for
children might
well be the result of the proper approach by a court
in a large number of cases, but certainly not necessarily so. One
can
think of cases in which the sentence imposed on a child who is
17 years old might, in all the circumstances, quite properly be

identical to a sentence imposed on an older accomplice. One can
also imagine a situation, not so out of step with reality,
in which
a 25 year old person for example could be found to have been less
mature and more susceptible to influence than a
dominant
17-year-old child. In these circumstances, the child who is 17
years old could well receive a much heavier sentence
than the
adult.
Secondly, section 28(1)(g) by no stretch of the
imagination requires that the appropriate sentences for children be
determined
in isolation of the appropriate sentences for adults.
It is right for a court to take into consideration what the
appropriate
term of imprisonment would be if the offence in
question had been committed by a mature adult and, in that context,
determine
the sentence appropriate to a child convicted of the same
offence after giving full weight to the special features of
vulnerability,
immaturity and rehabilitative possibilities in
respect of that child. It is entirely appropriate, in my view, for
a court,
in the process of sentencing a child, to take into
account, if that be the case, that the sentences being imposed on
adults
for similar offences have increased substantially in the
recent past. Indeed, a court will be obliged to take this factor

into account in its effort to comply with the requirement of
proportionality. The sentences imposed on children committing the

same offences as adults could become disproportionately low if
imposed without regard to a consideration of the sentences being

imposed on adults for similar offences.
It is an inevitable consequence of the requirement of
proportionality that increases in sentences imposed on adults for
certain
offences would exert upward pressure on the sentences
imposed on children for similar offences. And this consequence
does
not follow in the one direction only. Decreases in sentences
imposed on adults for particular offences would have the
concomitant
result that the sentences imposed on children for
similar offences would also go down. I therefore do not understand
the concern
that higher sentences are now being imposed upon
children. If this is a consequence of the higher sentences being
imposed
on adults, it is in my view painfully unavoidable.
Thirdly, section 28(1)(g) in no way either expressly
or by implication limit the role of the executive and the
legislature in
the determination of sentences. The majority
judgment does not say, and could not legitimately say, that this is
so. Indeed,
the section does not prevent Parliament from enacting
minimum sentencing legislation in respect of children, nor does the
Constitution
require that all minimum sentences for children will
be invalid. A law cannot therefore be in conflict with section
28(1)(g)
merely because it provides for minimum sentences in
relation to children. The majority judgment, to the extent that it
favours
a contention that section 28(1)(g) has deprived the
legislature of the power to determine discretionary minimum
sentences in
relation to children, is not acceptable.
The role of Parliament and the executive in the
sentencing of children and its limits
It is now settled that the legislature and the
executive have a legitimate role in the sentencing process. This
Court has said
in
Dodo
:
8
“
Both the Legislature and
Executive share an interest in the punishment to be imposed by
courts, both in regard to its nature
and its severity. They have a
general interest in sentencing policy, penology and the extent to
which correctional institutions
are used to further the various
objectives of punishment.”
9
(Footnote omitted.)
This Court said further:
“
The executive and legislative
branches of State have a very real interest in the severity of
sentences. The Executive has a
general obligation to ensure that
law-abiding persons are protected, if needs be through the criminal
laws, from persons who
are bent on breaking the law. This
obligation weighs particularly heavily in regard to crimes of
violence against bodily integrity
and increases with the severity
of the crime.
In order to discharge this
obligation, which is an integral part of constitutionalism, the
executive and legislative branches
must have the power under the
Constitution to carry out these obligations. They must have the
power, through legislative means,
of ensuring that sufficiently
severe penalties are imposed on dangerous criminals in order to
protect society.”
10
And I may add that a court should not
unduly limit this necessary power.
It has not been suggested, nor
could it be, that the legislature and the executive do not have an
equally important role in
so far as the sentencing of children is
concerned. They undoubtedly do. As I have pointed out earlier,
nothing in section
28(1)(g) or anywhere else in the Constitution
suggests that the legislature’s important role in this regard
should be curtailed
other than to the extent described in the next
paragraph. The legislature therefore cannot be said to be in
violation of the
Constitution merely because it passed legislation
that has an impact on the sentences to be imposed on children. The
Constitution
does not reserve this power as the sole prerogative of
the courts, and all courts are obliged to ensure that the
appropriate
role of the legislature is not negated but, on the
contrary, is respected and protected.
But there are also important limits to the power of
the legislature. As was said in
Dodo
:
“
The Legislature’s powers are
decidedly not unlimited. . . . [Legislative] power ought not, on
general constitutional principles,
wholly to exclude the important
function and power of a court to apply and adapt a general
principle to the individual case.
This power must be appropriately
balanced with that of the Judiciary. What an appropriate balance
ought to be is incapable
of comprehensive abstract formulation, but
must be decided as specific challenges arise. In the field of
sentencing, however,
it can be stated as a matter of principle that
the Legislature ought not to oblige the Judiciary to impose a
punishment which
is wholly lacking in proportionality to the crime.
This would be inimical to the rule of law and the constitutional
State.
It would
a fortiori
be so if the Legislature obliged
the Judiciary to pass a sentence which was inconsistent with the
Constitution and in particular
with the Bill of Rights. The
clearest example of this would be a statutory provision that
obliged a court to impose a sentence
which was inconsistent with an
accused’s right not to be sentenced to a punishment which was
cruel, inhuman or degrading
as envisaged by s 12(1)
(e)
of
the Constitution, or to a fair trial under s 35(3).”
11
(Footnote omitted.)
For the purpose of this judgment it must be emphasised
that the legislature does have an important role and interest in
the
punishment to be imposed by courts on children but that, as has
been authoritatively held by this Court, the legislature cannot

oblige any court to pass a sentence that is inconsistent with the
Constitution and in particular the Bill of Rights. The sentencing

regime in relation to children would therefore be inconsistent with
the Constitution if it obliged courts to impose a sentence
on
children that is in excess of that mandated by section 28(1)(g).
If the court is obliged to impose a sentence that is in
excess of
that required by section 28(1)(g), the applicability of the minimum
sentencing system to children who are 16 and
17 years old would be
inconsistent with the Constitution. If the law places no
obligation on any court to impose on a child
a sentence in excess
of that mandated by section 28(1)(g), it cannot be said to be
inconsistent with the Constitution. In
other words, if the
impugned law does not have an impact on the court’s duty to apply
section 28(1)(g) of the Constitution,
it cannot be inconsistent
with this injunction.
The question for our decision is not whether the
discretion of the court in the imposition of a sentence on a child
is limited
in any way by making minimum sentencing legislation
applicable to 16 and 17 year old children. The Constitution does
not require
the discretion of a court that sentences children to be
wholly unlimited. Nor is the issue for our determination whether
the
minimum sentence legislation would result in higher sentences
being imposed on children for the offences in respect of which
minimum sentences are specified. The only questions we must answer
in this case are whether the application of the minimum
sentence
legislation to 16 and 17 year old children would oblige a court to,
or have the effect that a court would—
impose a sentence of imprisonment when it is not
appropriate to do so; or
impose a period of imprisonment that is longer than
is considered to be appropriate by a court after considering all
the relevant
circumstances.
These questions must now receive
attention in the context of a discussion of the meaning and effect
of minimum sentences applicable
to children.
The meaning and effect of the
minimum sentencing regime generally and in its applicability to
children
Section 51 of the Act
12
to the extent relevant provides:
“
(1) Notwithstanding any
other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence
a person it has convicted of
an offence referred to in Part I of Schedule 2 to imprisonment
for life.
(2) Notwithstanding any other law but subject to
subsections (3) and (6), a regional court or a High Court shall
sentence
a person who has been convicted of an offence referred
to in—
(
a
) Part II of Schedule 2, 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, in the case of—
(i) a first offender, to imprisonment for a
period not less than 10 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
(
c
) Part IV of Schedule 2, 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 10
years:
Provided that the maximum term of imprisonment that
a regional court may impose in terms of this subsection shall not
exceed
the minimum term of imprisonment that it must impose in
terms of this subsection by more than five years.
(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 must thereupon impose such lesser sentence: Provided that if
a regional court imposes
such a lesser sentence in respect of an
offence referred to Part 1 of Schedule 2, it shall have
jurisdiction to impose
a term of imprisonment for a period not
exceeding 30 years.
. . . .
(5)(
a
) Subject to paragraph (
b
), the
operation of a minimum sentence imposed in terms of this section
shall not be suspended as contemplated in section
297 (4) of the
Criminal Procedure Act, 1977 (Act No. 51 of 1977).
(
b
) Not more than half of a minimum sentence
imposed in terms of subsection (2) may be suspended as
contemplated in
section 297
(4) of the
Criminal Procedure Act,
1977
, if the accused person was 16 years of age or older, but
under the age of 18 years, at the time of the commission of the

offence in question.
(6) This section does not apply in respect of an
accused person who was under the age of 16 years at the time of
the commission
of an offence contemplated in subsection (1) or
(2).”
13
The minimum sentences prescribed by the Act have now
without doubt been made applicable to children who are 16 and 17
years
old. The legislature has done so in the exercise of its role
and responsibilities in relation to the sentencing of children.

This law is therefore Parliament’s response to certain perceived
evils in society and its contribution to the sentencing
process.
The relevant provisions must be interpreted on the basis that all
children are the beneficiaries of the rights conferred
by section
28(1)(g) of the Constitution. This is underlined by the fact that
the legislature now clarifies that the imposition
of the minimum
sentences is discretionary and not mandatory.
14
We must determine the impact of this legislation and
its application to children in the context of the circumstance
that, as
I have already said earlier, section 28(1)(g) of our
Constitution is binding on all courts; courts are obliged to give
full
effect to the provision. The legislation does not expressly
require courts to ignore the provisions of section 28(1)(g) nor
does it expressly oblige any court to impose a sentence on any
child that is inappropriate. The only question to be answered

therefore is whether the section does so by necessary implication.
I pause here to point out that the majority judgment, on
its own
terms, does not conclude that courts have become obliged to impose
a sentence that is inconsistent with the provisions
of section
28(1)(g).
The majority judgments approach is that the
application of the minimum sentencing legislation to children would
result in consistently
heavier sentences being imposed on them.
15
The judgment says that this is achieved by orientating the judge
or magistrate away from options other than imprisonment.
Secondly,
the system de-individuates sentence by prescribing a period of
imprisonment as a starting point. These two propositions
taken
together might imply that the nett effect of the legislation is the
imposition of sentences higher than those mandated
by section
28(1)(g) of the Constitution. I examine these criticisms of the
sentencing regime later. I must first develop
the proposition that
no court in this country is obliged to impose a sentence on any
child inconsistently with the Constitution.
The advent of our constitutional democracy with the
principle of the supremacy of the Constitution that it introduced
requires
a fundamental change to the way in which the task of
statutory interpretation is carried out. The effect of the
supremacy
of the Constitution is that the Constitution (and every
provision of it) permeates the law to every corner. In “one fell

swoop” our supreme law brought about a decisive transformation of
our legal system and the way we interpret statutes.
16
To borrow a phrase, “it was no longer going to be business as
usual” – that business being the statute as the starting
point.
The starting point is no longer the statute but the Constitution
itself. This means the starting point is no longer
what the
statutory provision says but what the Constitution says.
This interpretive injunction is expressly ordained by
section 39(2) of the Constitution. There is a long line of
judgments
of this Court in which we have repeatedly emphasised the
rule, by now axiomatic, that where a statutory provision is
reasonably
capable of a construction that would bring it in line
with the Constitution, it is that construction which must be
preferred
provided that it is not strained.
17
Judges and magistrates alike have the duty to comply with section
39(2). This means that a court construing a statute must
first
consider whether the statute is capable of a construction that will
bring it within constitutional bounds.
A fundamental difference between the application of
the minimum sentencing legislation to children who are 16 and 17
years old
and the application of the legislation to adults must be
stressed. When an appropriate sentence for adults is considered,

section 28(1)(g) of the Constitution is not directly applicable.
But the section is applicable to the sentencing of children.

Courts that sentence children are engaged in the process of
determining an appropriate sentence by making two focused
enquiries.
First, is imprisonment the only appropriate option?
Secondly, what is the shortest appropriate period of imprisonment?
Our
Constitution requires judges and magistrates to apply
themselves assiduously to these two questions.
The Supreme Court of Appeal has determined the
practical effect of minimum sentencing legislation in so far as it
is applicable
to adults.
18
The approach has been approved by this Court in
Dodo
19
and is now binding. We must keep at the forefront of our minds the
fact that all courts that sentence children are bound by
the
provisions of section 28(1)(g) of the Constitution and, in that
context, investigate if and how the statement in
Malgas
concerning the application of the minimum sentencing regime on
adults has implications for the application of minimum sentences
to
children who are 16 and 17 years old.
It was said in
Malgas
that:
“
What stands out quite clearly
is that the courts are a good deal freer to depart from the
prescribed sentences than has been
supposed in some of the
previously decided cases and that it is they who are to judge
whether or not the circumstances of any
particular case are such as
to justify a departure. However, in doing so, they are to respect,
and not merely pay lip service
to, the Legislature’s view that
the prescribed periods of imprisonment are to be taken to be
ordinarily appropriate when
crimes of the specified kind are
committed. In summary:
A. Section 51 has limited but not eliminated the
courts’ discretion in imposing sentence in respect of offences
referred
to in Part 1 of Schedule 2 (or imprisonment for other
specified periods for offences listed in other parts of Schedule

2).
B. Courts are required to approach the imposition
of sentence conscious that the Legislature has ordained life
imprisonment
(or the particular prescribed period of
imprisonment) as the sentence that should
ordinarily
and
in the absence of weighty justification be imposed for the
listed crimes in the specified circumstances.
C. Unless there are, and can be seen to be, truly
convincing reasons for a different response, the crimes in
question
are therefore required to elicit a severe, standardised
and consistent response from the courts.
D. The specified sentences are not to be departed
from lightly and for flimsy reasons. Speculative hypotheses
favourable
to the offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of the policy
underlying the legislation and marginal
differences in personal circumstances or degrees of
participation between co-offenders
are to be excluded.
E. The Legislature has, however, deliberately left
it to the courts to decide whether the circumstances of any
particular
case call for a departure from the prescribed
sentence. While the emphasis has shifted to the objective
gravity of the
type of crime and the need for effective
sanctions against it, this does not mean that all other
considerations are to
be ignored.
F. All factors (other than those set out in D
above) traditionally taken into account in sentencing (whether
or not they
diminish moral guilt) thus continue to play a role;
none is excluded at the outset from consideration in the
sentencing
process.
G. The ultimate impact of all the circumstances
relevant to sentencing must be measured against the composite
yardstick
(‘substantial and compelling’) and must be such as
cumulatively justify a departure from the standardised response

that the Legislature has ordained.
H. In applying the statutory provisions, it is
inappropriately constricting to use the concepts developed in
dealing with
appeals against sentence as the sole criterion.
I. If the sentencing court on consideration of the
circumstances of the particular case is satisfied that they
render
the prescribed sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of
society,
so that an injustice would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
J. In so doing, account must be taken of the fact
that crime of that particular kind has been singled out for
severe punishment
and that the sentence to be imposed in lieu of
the prescribed sentence should be assessed paying due regard to
the bench
mark which the Legislature has provided.”
20
The whole of the above passage is relevant to our
enquiry. I do, however, single out certain aspects for special
consideration
on the understanding that each of these aspects must
be seen in their context. Neither the limitation of the court’s
discretion
21
nor the fact that courts must now approach the sentencing of
children conscious that the legislature has ordained the prescribed

sentence as the one that should ordinarily be imposed
22
can, in my view, be problematic if due regard is had to the other
principles mentioned by the Supreme Court of Appeal. Of
seminal
importance is the conclusion by the Supreme Court of Appeal that
once there are truly convincing reasons for a response
different
from that required by the legislature, a court may depart from the
minimum sentence and impose a lesser sentence.
It is impossible
for me to imagine a more truly convincing reason for a court to
depart from the minimum sentence that is
prescribed in relation to
a child who is 16 or 17 years old than that, in all the
circumstances, imprisonment is not appropriate
within the meaning
of section 28(1)(g) or that the minimum period of imprisonment
prescribed exceeds the shortest appropriate
period required to be
imposed on all children by section 28(1)(g).
It is true, as pointed out by the Supreme Court of
Appeal that the minimum sentence law “has shifted [emphasis] to
the objective
gravity” of the crime and the need for effective
sanctions.
23
Nevertheless, the court is obliged to take into account all the
factors traditionally relevant to sentence at the outset
24
in order to determine whether these circumstances “render the
prescribed sentence unjust in that it would be disproportionate
to
the crime”.
25
The object of the exercise as rightly pointed out by the Supreme
Court of Appeal, and accepted by this Court, is to prevent
an
injustice from being done. I infer this object from the statement
that if the court concludes that an injustice would be
done by
imposing the particular sentence, that court is entitled to impose
a lesser sentence.
26
I would add that if investigation of the circumstances at the
outset leads to the conclusion that an injustice is being done
the
court is more than entitled to interfere. It is indeed obliged to
do so.
The minimum sentencing regime, therefore, far from
authorising the courts to perpetrate injustice, obliges a court not
to do
so. The sentencing court must determine the cumulative
effect of all the circumstances and determine whether an injustice

will be done if the minimum sentence is imposed. This process is
quite often said to be a matter for judicial instinct, but it
is
necessary to unpack the proposition a little.
We must ask this question: when can it be properly
said that the imposition of a prescribed minimum sentence results
in an injustice
and therefore should not be imposed? The
imposition of a minimum sentence can be said to perpetrate an
injustice only on some
kind of comparative evaluation. Practically
speaking the injustice would result only if the minimum sentence is
considered
to be too high. But the minimum sentence can be
considered to be too high only if a sentencing court has some other
sentence
in mind which is considered appropriate in the
circumstances. It follows that a court takes into account all the
relevant
circumstances including the minimum sentence and arrives
at a conclusion (though not necessarily final) about what the
appropriate
sentence should be. If the minimum sentence is too
high in relation to the court’s view of what the sentence should
be upon
consideration of all the relevant circumstances, the
imposition of the minimum sentence would wreak an injustice and
cannot
be imposed.
On this basis I am unable to agree with the suggestion
that the minimum sentencing regime renders imprisonment a matter of
“first
resort”. It does not. The court in every case does not
start with the minimum sentence. The first enquiry, the enquiry

conducted “at the outset” in the words of the Supreme Court of
Appeal, is whether the imposition of the minimum sentence
will be
unjust in the sense of being disproportionate. It is only if the
court concludes, after taking into account all the
circumstances at
the outset, that the minimum sentence would not be unjust that a
court is authorised to impose it. If the
court concludes at the
first stage of the enquiry that the minimum sentence is either
unjust or disproportionate, the sentencing
court is precluded from
imposing it. The minimum sentencing regime is no authority for the
imposition of unjust or disproportionate
sentences. It is
precisely to avoid unjust and disproportionate sentences that the
court is required to consider whether there
are substantial and
compelling circumstances that would justify the imposition of a
lesser sentence.
One more feature must be borne in mind.
Section
290(1)
of the
Criminal Procedure Act
27
empowers
a court sentencing juveniles to consider options of
supervision by a probation officer or other person, or detention in
a reform
school, in the punishment of children.
28
This provision has not been repealed by the law with which we are
concerned. A sentencing court is obliged to consider the

appropriateness of resorting to
section 290
in every case in which
a child must be sentenced.
It is against this background that we must examine the
role of a court in applying the minimum sentencing regime to
children
who are 16 and 17 years old.
Before the minimum sentencing regime came into force,
any court sentencing a child was obliged to determine whether a
sentence
of imprisonment was appropriate and if so, what the
shortest appropriate period of imprisonment should be. In making
this
determination courts took into account all the circumstances
traditionally relevant to the issue of sentence with particular
emphasis on the vulnerability, immaturity, susceptibility to
influence and the possibilities of rehabilitation in relation to

children. The fact that the minimum sentencing regime is now
applicable to children who are 16 and 17 years old does not change

any of this. Courts remain obliged, as they have been obliged in
our constitutional dispensation, to consider all the relevant

circumstances at the outset as they do in relation to a
consideration of whether the minimum should be imposed on adults.
But when it comes to children,
the overriding purpose of considering all the circumstances is to
determine whether a sentence
of imprisonment is appropriate and if
so whether the period of imprisonment is for the shortest
appropriate period in the circumstances.
If this enquiry leads to
the conclusion that the imposition of a sentence of imprisonment is
not appropriate the minimum sentence
of imprisonment cannot be
imposed because it is inconsistent with the Constitution and
unjust. Equally a court is precluded
from perpetrating an
injustice and unconstitutionality by imposing the minimum sentence
if it concludes that, even though imprisonment
is appropriate, the
shortest appropriate period is less than the prescribed minimum
sentence. It goes without saying that
the court must take into
account, as a factor, the circumstance that the legislature has
prescribed minimum sentences for the
children in question in
determining whether a sentence of imprisonment is appropriate and
if so the shortest appropriate period
of imprisonment.
The minimum sentencing regime authorises neither
injustice nor unconstitutional conduct on the part of judges or
magistrates.
The majority judgment suggests that the minimum
sentencing regime in some ways orientates a judicial officer away
from considering
alternatives to imprisonment. I disagree. The
Constitution, not the minimum sentencing legislation, is supreme.
29
It is as well to emphasise that the minimum sentencing legislation
is subordinate to the Constitution. All judges and magistrates
are
aware of this. Accordingly they know what the Constitution
requires and will implement minimum sentencing legislation
in a way
that avoids injustice and in a way which ensures that the
Constitution is observed as the primary instrument and the
minimum
sentencing legislation is at best secondary. The circumstance that
a minimum sentence is greater than that found appropriate
by a
court upon a proper application of section 28(1)(g) would
constitute “weighty justification” for the imposition of
a
lighter sentence,
30
and “truly convincing reasons for a different response”,
31
and a reason that is far from flimsy and justifies a departure from
the specified sentence,
32
and substantial and compelling circumstances that “justify a
departure from the standardised response”,
33
and a sentence that is unjust and disproportionate to the crime.
34
The idea that the minimum sentencing law authorises a court to
impose a sentence higher than that mandated by the Constitution
has
simply to be stated to be rejected. It is significant that the
majority judgment does not support this notion.
The majority also expresses the view that the
application of the minimum sentences to children aged 16 and 17
years old somehow
de-individuates the process of sentencing. As
this Court pointed out in
Dodo
:
“
Legislation is by its nature
general. It cannot provide for each individually determined case.
. . . [It is an] important function
and power of a court to apply
and adapt a general principle to the individual case.”
35
It is not for the legislature to
de-individuate sentences. The legislature sets a generalised
standard; it does not purport to
do anything more. This generalised
standard does not and cannot result in a compromise of the power and
duty of the court to
ensure that sentences are appropriately
individualised. That power of the court remains untouched.
Although the majority judgment
does not say so directly, it might advance the proposition,
contended for in argument, that the
minimum sentencing legislation
being made applicable to children will have the effect that
sentences imposed upon children
would be unjust, disproportionately
high or inconsistent with the sentence mandated by section 28(1)(g)
of the Constitution.
I cannot agree. The only basis on which it
can be suggested that the effect of the discretionary minimum
sentencing system
will be the imposition of higher sentences on
children than mandated by the Constitution is that magistrates or
judges will
not do their work properly. There is no basis for this
suggestion. Indeed, the process to be followed by judicial
officers
is difficult as all sentence determinations are.
Nonetheless, the process is well within the grasp of a
sentencing judge or magistrate and is neither over-complicated nor
unworkable:
When a judge or magistrate sentences children, the
only enquiry is whether a prison sentence is appropriate and what
the shortest
appropriate period is.
If the minimum sentencing legislation is applicable,
this investigation must be conducted in the light of that law.
The law requires a court to consider whether there
are substantial and compelling circumstances for the imposition of
the
sentence that is less than the prescribed minimum.
A conclusion that the appropriate sentence mandated
by section 28(1)(g) is less than the prescribed minimum
necessarily constitutes
a substantial and compelling circumstance
because it is unjust, unconstitutional and improper.
The prescribed minimum sentence can be imposed only
if it is not more severe than the sentence mandated by section
28(1)(g).
It cannot otherwise be imposed.
Thus construed, the minimum sentencing regime is not
unconstitutional. Indeed, the harsh, regrettable and undeniable
reality
is that particularly heinous crimes are committed by
children who are 16 and 17 years old. If one has regard to this
(as we
must), the legislature is justified in reflecting society’s
utter outrage. Our Constitution does not say that children who
are
16 and 17 years old, who commit barbaric and despicable crimes
against society and prey on innocent and vulnerable people
should
necessarily be given different sentences than adults who commit the
same crimes. Any sentencing approach that suggests
that age is the
only factor fails in the preventive effort. The law must certainly
come down as hard as is appropriate on
these offenders.
Conclusion
I conclude therefore that the minimum sentencing
legislation in so far as it is applicable to children who are 16
and 17 years
old is not inconsistent with the Constitution. I
would therefore decline to confirm the order of unconstitutionality
made
by the High Court.
Ngcobo J, Nkabinde J and Skweyiya J concurred in the
judgment of Yacoob J.
Counsel for the Applicant:
Advocate S Budlender and Advocate AM
Skelton instructed by the Centre for Child Law.
Counsel for the First Respondent:
Advocate WRE Duminy SC and Advocate
D Pillay instructed by the State Attorney, Pretoria.
Counsel for the Amicus Curiae:
Advocate K Pillay instructed by the
Legal Resources Centre.
1
105 of 1997.
2
38 of 2007.
3
Section 28(1)(g) of the Constitution provides:
“Every child has the right—
(g) not to be detained except as
a measure of last resort, in which case, in addition to the
rights a child enjoys under
sections 12 and 35, the child may be
detained only for the shortest appropriate period of time, and
has the right to be—
(i) kept separately from detained
persons over the age of 18 years; and
(ii) treated in a manner, and kept
in conditions, that take account of the child’s age”.
Section 28(2) of the Constitution
provides: “A child’s best interests are of paramount importance
in every matter concerning
the child.”
4
Section 38 of the Constitution provides that the persons who may
approach a competent court alleging that a right in the Bill
of
Rights has been infringed or threatened are:
“
(a) anyone acting in their own interest;
(b) anyone acting on behalf of
another person who cannot act in their own name;
(c) anyone acting as a member of,
or in the interest of, a group or class of persons;
(d) anyone acting in the public
interest; and
(e) an association acting in the
interest of its members.”
5
Established by the Legal Aid Act 22 of 1969.
6
The Schedules of the CLAA generally cover the following crimes:
murder and rape, when committed in particular circumstances or

against certain persons; various offences referred to in the
Protection of Constitutional Democracy Against Terrorist and Related

Activities Act 33 of 2004; various offences under the
Drugs and Drug
Trafficking Act 140 of 1992
; trafficking in persons for sexual
purposes; sexual exploitation of a child or mentally disabled
person; offences related to
the dealing in or smuggling or
possession of ammunition, firearms, explosives or armaments; any
offence relating to exchange
control, extortion, fraud, forgery,
uttering, theft, involving certain sums of money or committed under
certain circumstances;
and treason, sedition or robbery if committed
with a firearm that one intends to use in the commission of that
offence.
7
CLAA
section 53(1)
(pre-amendment).
8
Section 53(2)
of the CLAA (pre-amendment) empowered the President,
with the concurrence of Parliament, to extend the operation of
sections 51
and
52
. It was extended for 12 months with effect from
1 May 2000 (Government Gazette 21122 GN 23, 20 April 2000); for two
years with
effect from 1 May 2001 (Government Gazette 7059 GN 29, 30
April 2001); for two years with effect from 1 May 2003 (Government

Gazette 24804 GN 40, 30 April 2003); for two years with effect from
1 May 2005 (Government Gazette 27549 GN 21, 29 April 2005);
and for
two years with effect from 1 May 2007 (Government Gazette 29831 GN
10, 25 April 2007).
9
Section 3 of the Amendment Act repealed section 53 of the CLAA.
10
Before the Amendment Act, CLAA section 51(3) provided as follows:
“
(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.”
11
CLAA section 51(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.”
12
2006 (1) SACR 311
(SCA);
[2005] 2 All SA 1
(SCA) at para 24.
13
Government Gazette 30638 GN 1257, 31 December 2007.
14
Section 53A of the CLAA as amended now provides:
“
If a regional court has, prior
to the date of the commencement of the Criminal Law (Sentencing)
Amendment Act, 2007—
(a) committed an accused for
sentence by a High Court under this Act, the High Court must
dispose of the matter as if
the
Criminal Law (Sentencing)
Amendment Act, 2007
, had not been passed; or
(b) not committed an accused
for sentence by a High Court under this Act, then the regional
court must dispose of the
matter in terms of this Act, as
amended by the
Criminal Law (Sentencing) Amendment Act, 2007
.”
15
Centre for Child Law v Minister for
Justice and Constitutional Development and Others,
Case No 11214/08, 4 November 2008, as yet unreported, at para 9.
16
Id at para 22.
17
The Minister’s notice of appeal made no mention of the standing or
abstract review points.
Rule 16(3)
of this Court’s rules requires
an appellant to “set forth clearly the grounds on which the appeal
is brought, indicating
which findings of fact and/or law are
appealed against”.
18
Lawyers for Human Rights and Another v
Minister of Home Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC);
2004 (7) BCLR 775
(CC) per
Yacoob J for the majority at para 24 (where the Court held that the
applicant in fact had standing):
“
It may in any event be incumbent on this Court to
deal with the substance of a dispute concerning the
constitutionality of legislation
that reaches this Court pursuant
to section 172(2) of the Constitution. This is because a High
Court has already declared
a particular provision to be
inconsistent with the Constitution. There are good public policy
reasons to suggest that the
uncertainty in relation to
constitutional consistency ought not to be allowed to prevail.
There is therefore a strong argument
that the purpose of section
172(2) of the Constitution is to ensure that the uncertainty
generated by the High Court decision
of unconstitutionality is
eliminated and that the substance of the debate raised by the
declaration is finally determined.”
See also the judgment of Madala
J at para 80: “[T]hese are confirmation proceedings. The
application must be dealt with on
its merits so that finality can
be reached in respect of the Court
a
quo
’s findings.”
19
Van der Merwe v Road Accident Fund and
Another (Women's Legal Centre Trust as Amicus Curiae)
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) at para
21.
20
Director of Public Prosecutions,
Transvaal v Minister for Justice and Constitutional Development,
Albert Phaswane and Aaron Mokoena
(Centre for Child Law, Childline
South Africa, RAPCAN, Children First, Operation Bobbi Bear, POWA and
Cape Mental Health Society
as Amici Curiae)
[2009] ZACC 8
at para 61.
21
Id at para 68.
22
Id at para 63.
23
2001 (2) SA 1222
(SCA);
2001 (1) SACR 469
(SCA).
24
Id at para 8.
25
Id at para 25.
26
Id at para 8.
27
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC) at para
11.
28
Id at para 23.
29
Id at para 33.
30
[2008] ZASCA 87
;
[2008] 4 All SA 396
(SCA).
31
Id at para 51.
32
These statistics are available at
http://www.dcs.gov.za/WebStatistics, accessed on 4 June 2009.
33
The Convention on the Rights of the Child was adopted by the United
Nations General Assembly on 20 November 1989 and entered
into force
on 2 September 1990. It was ratified by South Africa on 16 June
1995.
34
See the definition of “paramount”,
New
Oxford Dictionary of English
, (Oxford
University Press, Oxford 1998).
35
Roper, Superintendent, Potosi
Correctional Center v Simmons
[2005] USSC 2017
;
543 U.S.
551
(2005) at 567.
36
Id at 569.
37
Id.
38
Id at 570.
39
R v B (D)
2008 SCC 25
;
(2008), 293 D.L.R. (4th) 278 at
para 41.
40
Id at para 68.
41
See too Illinois Coalition for the Fair Sentencing of Children,
Categorically Less Culpable: Children
sentenced to life without possibility of parole in Illinois
(DLA Piper, Chicago 2008).
42
Section 1(xxv)
of the
Electoral Act 73 of 1998
defines “voter”
as follows:
“
[A] South African citizen—
(a) who is 18 years or older;
and
(b) whose name appears on the
voters’ roll”.
43
Section 28(3) of the Constitution provides: “In this section
‘child’ means a person under the age of 18 years.”
44
Above n 23.
45
Above n 27.
46
Above n 30.
47
CLAA section 51(5)(b) provides:
“
Not more than half of a minimum
sentence imposed in terms of subsection (2) may be suspended as
contemplated in
section 297(4)
of the
Criminal Procedure Act, 1977
,
if the accused person was 16 years of age or older, but under the
age of 18 years, at the time of the commission of the offence
in
question.”
48
Above n 30 at para 18.
49
Id.
50
Above n 27
at
para 11.
51
Above n 20 at para 123.
52
S v M (Centre for Child Law as Amicus
Curiae)
[2007] ZACC 18
;
2008 (3) SA
232
(CC);
2007 (12) BCLR 1312
(CC) at para 24.
53
Section 36(1) of the Constitution provides:
“
The rights in the Bill of Rights may be limited
only in terms of law of general application to the extent that the
limitation
is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into
account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose
of the limitation;
(c) the nature and extent of the
limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to
achieve the purpose.”
54
See
President of the Republic of South
Africa and Others v South African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para 138.
55
Richter v Minister for Home Affairs and
Others (with Democratic Alliance and Others Intervening, and with
Afriforum and Another
as Amici Curiae)
[2009]
ZACC 3
at
para 71.
56
Above at [22].
57
Minister of Home Affairs v National
Institute for Crime Prevention and the Reintegration of Offenders
(NICRO) and Others
[2004] ZACC 10
;
2005 (3) SA 280
(CC);
2004 (5) BCLR 445
(CC) at paras 35–6.
58
Id at para 36.
59
The statistics released by the Department of Correctional Services
for the latest available period (2007/8) give a telling account
of
the pervasiveness of the scheduled crimes: see
http://www.dcs.gov.za/WebStatistics, accessed on 1 June 2009.
60
Key amongst
these are the United Nations Convention on the Rights of the Child;
United Nations Standard Minimum Rules for the
Administration of
Juvenile Justice (General Assembly resolution 40/33, 1985) (the
Beijing Rules); United Nations Rules for the
Protection of Juveniles
Deprived of their Liberty (General Assembly resolution 45/113, 1990)
(JDLs); and the United Nations Guidelines
for the Prevention of
Juvenile Delinquency (General Assembly resolution 45/112, 1990) (the
Riyadh Guidelines).
61
Rule 17(1)(a) of the
Beijing
Rules provides in relation to sentencing juveniles that the
sentencing authority must be guided by the principle that
“[t]he
reaction taken shall always be in proportion not only to the
circumstances and the gravity of the offence but also to
the
circumstances and the needs of the juvenile as well as to the needs
of society”.
62
This principle is emphasised by
Rule
17(1)(b) of the Beijing Rules; Rule I(1) of the JDLs; and article
37(b) of the United Nations Convention on the Rights
of the Child,
which provides—
“
No child shall be deprived of his or her liberty
unlawfully or arbitrarily. The arrest, detention or imprisonment of
a child
shall be in conformity with the law and shall be used only
as a measure of last resort and for the shortest appropriate period

of time.”
63
Article 40(1) of the Convention on the Rights of the Child
provides—
“
States Parties recognize the right of every child
alleged as, accused of, or recognized as having infringed the penal
law to
be treated in a manner consistent with the promotion of the
child’s sense of dignity and worth, which reinforces the child’s

respect for the human rights and fundamental freedoms of others and
which takes into account the child’s age and the desirability
of
promoting the child’s reintegration and the child’s assuming a
constructive role in society.”
64
Section 226 of the United Kingdom Criminal Justice Act, 2003 makes
provision for detention for life or detention for public protection

for serious offences committed by those under 18. The section
applies where an offender under 18 is convicted of a serious offence

and that if a court is of the opinion “that there is a significant
risk to members of the public of serious harm occasioned
by the
commission by him of further specified offences.” If in such
cases the offence is one in respect of which the offender
would
anyhow be liable to detention for life, and “the court considers
that the seriousness of the offence, or of the offence
and one or
more offences associated with it, is such as to justify the
imposition of a sentence of detention for life”, the
court must
impose that sentence.
65
See [14] above.
66
The Centre referred the Court to the
Child Justice Act 75 of 2008
,
which Parliament passed on 19 November 2008, and which was assented
to (after the hearing in this Court), on 11 May 2009 (see

Government Gazette 32225 GN 549). According to section 100 of the
Act, it will take effect on 1 April 2010 or any earlier date
fixed
by the President by proclamation in the Government Gazette.
Section 77(2) of the Act provides that:
“
Notwithstanding any provision in this or any other
law, a child who was 16 years or older at the time of the
commission of an
offence referred to in Schedule 2 to the Criminal
Law Amendment Act, 1997 (Act no. 105 of 1997) must, if convicted,
be dealt
with in accordance with the provisions of section 51 of
that Act.”
Section 69(4) of the Act provides:
“
When considering the imposition of a sentence
involving imprisonment in terms of section 77, the child justice
court must take
the following factors into account:
(a) The seriousness of the
offence, with due regard to—
(i) the amount of harm done or
risked through the offence; and
(ii) the culpability of the child in causing or
risking the harm;
(b) the protection of the
community;
(c) the severity of the impact of
the offence on the victim;
(d) the previous failure of the
child to respond to non-residential alternatives, if
applicable; and
(e) the desirability of keeping
the child out of prison.”
Section 77(6) provides:
“
In compliance with the Republic’s international
obligations, no law, or sentence of
imprisonment imposed on a child, including a sentence
of imprisonment for life, may,
directly or indirectly, deny, restrict or limit the
possibility of earlier release of a child
sentenced to any term of imprisonment.”
67
Above n 55 at para 64.
68
See [10] above.
69
Above n 14.
70
A similar order was made in
Sibiya and
Others v Director of Public Prosecutions: Johannesburg High Court
and Others
[2005] ZACC 6
;
2005 (5) SA
315
(CC);
2005 (8) BCLR 812
(CC), when after
S
v
Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC)
abolished the death penalty, the state was required to ensure the
substitution of death sentences with alternative suitable
sentences.
Sibiya
granted a detailed supervisory order ensuring that those still
detained under sentence of death were identified, their particulars

provided, and affidavits filed with this Court by particular dates.
71
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at
para 32.
72
National Coalition for Gay and Lesbian
Equality and Another v Minister of Justice and Others
[1998]
ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at para 97.
1
Criminal Law Amendment Act 105 of 1997
, as amended by the
Criminal
Law (Sentencing) Amendment Act 38 of 2007
.
2
In particular,
section 28(1)(g).
3
See, for example,
S v B
2006 (1) SACR 311
(SCA);
[2005] 2 All
SA 1
(SCA) at para 22.
4
Director of Public Prosecutions, KwaZulu-Natal v P
2006 (3)
SA 515
(SCA);
2006 (1) SACR 243
(SCA) at para 18.
5
Id at para 22. See also above n 3 at para 20.
6
S v Nkosi
2002 (1) SA 494
(W);
2002 (1) SACR 135
(W).
7
Id at 505G-J; 147F-I.
8
S v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR
423
(CC).
9
Id at para 23.
10
Id at paras 24-5.
11
Id at para 26.
12
Above n 1.
13
The Schedule covers extreme cases of murder, robbery and rape,
offences under the Protection of Constitutional Democracy against

Terrorist and Related Activities Act 33 of 2004, drug and drug
trafficking offences, human trafficking and other serious offences.
14
The law changes the heading of its relevant section from “Minimum
sentences for certain serious offences” to “Discretionary

minimum sentences for certain serious offences”.
15
Above [45].
16
Carmichele v Minister of Safety and Security and Another (Centre
for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4)
SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 36.
17
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC)
at
para 72;
National Director of Public Prosecutions and
Another v Mohamed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5) BCLR 476
(CC) at para 35
;
Olitzki Property Holdings v State
Tender Board and Another
[2001] ZASCA 51
;
2001 (3) SA
1247
(SCA);
2001 (8) BCLR 779
(SCA) at para 20;
S
v Dzukuda and Others; S v Tshilo
[2000] ZACC 16
;
2000 (4) SA 1078
(CC);
2000 (11) BCLR 1252
(CC) at
para 37;
Investigating Directorate:
Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd and Others: In re Hyundai
Motor Distributors (Pty) Ltd and
Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at paras
21-6;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC)
at
paras 23-4;
De Lange v Smuts NO and
Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 85; and
Bernstein
and Others v Bester and Others NNO
[1996]
ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4)
BCLR 449
(CC) at para 59.
18
S v Malgas
2001 (2) SA 1222
(SCA);
2001 (1) SACR 469
(SCA).
19
Above n 8.
20
Above n 18 at para 25.
21
Id at para 25(A).
22
Id at para 25(B).
23
Id at para 25(E).
24
Id at para 25(F).
25
Id at para 25(I).
26
Id.
27
51 of 1977.
28
Section 290(1) provides:
“
(1) Any court in which a person under the age of
eighteen years is convicted of any offence may, instead of
imposing punishment
upon him for that offence—
(a) order that he be placed under the
supervision of a probation officer or a correctional official;
or
(b) order that he be placed in the custody
of any suitable person designated in the order; or
(c) deal with him both in terms of paragraphs
(a)
and
(b)
; or
(d) order that he be sent to a reform
school as defined in section 1 of the Child Care Act, 1983 (Act
74 of 1983).”
29
Section 2 of the Constitution provides:
“
This Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and the
obligations imposed
by it must be fulfilled.”
30
Above n 18 at para 25(B).
31
Id at para 25(C).
32
Id at para 25(D).
33
Id at para 25(G).
34
Id at para 25(I).
35
Above n 8 at para 26.