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[2013] ZACC 15
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Mpofu v Minister for Justice and Constitutional Development and Others (CCT 124/11) [2013] ZACC 15; 2013 (9) BCLR 1072 (CC); 2013 (2) SACR 407 (CC) (6 June 2013)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 124/11
[2013] ZACC 15
In the matter between:
MANDLA TRUST MPOFU
............................................................................
Applicant
and
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
.............................................
First
Respondent
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
.............
Second
Respondent
DIRECTOR OF PUBLIC PROSECUTIONS
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
................
Third
Respondent
together with
CENTRE FOR CHILD LAW
..................................................................
Amicus
Curiae
Heard on : 29 November 2012
Decided on : 6 June 2013
JUDGMENT
VAN DER WESTHUIZEN J (Khampepe J and Nkabinde J concurring):
Introduction
[1]
Children
1
are a particularly vulnerable group in our society, deserving of
protection. Yet, heinous crimes are sometimes committed by teenage

offenders. The sentencing of child offenders is thus an important
issue. This area of law has developed significantly in recent
years
under section 28 of the Constitution, which states the best interests
of the child as a guiding principle,
2
as well as that every child has the right not to be detained except
as a measure of last resort and only for the shortest period
of
time.
3
The impact of the enactment of the Child Justice Act
4
promulgated in 2008 is also significant.
[2] This
matter is an application for leave to appeal against a judgment of
the South Gauteng High Court, Johannesburg (High Court).
The
applicant, Mr Mandla Trust Mpofu, asks this Court to set aside the
sentence of life imprisonment imposed by the High Court.
He argues
that he was a child at the time the crime was committed and that this
was not taken into consideration when he was sentenced.
The
application is opposed by the Director of Public Prosecutions of the
South Gauteng High Court (DPP). The Centre for Child Law
was admitted
as a friend of the Court (
amicus curiae
).
[3] It is
trite that sentences may be interfered with on appeal only if the
sentencing court misdirected itself, or if the sentence
is shockingly
inappropriate. The main question would be whether the sentencing of
Mr Mpofu by the High Court constitutes a misdirection.
In order to
determine this, however, some clarity is needed as to how old he
actually was at the time of the commission of the
offences, what his
age was in the opinion of the High Court and whether the High Court
adequately dealt with his youthfulness in
the sentencing process. If
it is indeed found that a misdirection occurred, or that a shockingly
inappropriate sentence was imposed,
the question would arise whether
this Court should set aside the sentence and replace it with another.
However, the very first
issue to consider is whether it is in the
interests of justice to grant leave to appeal, given the
circumstances of this case.
Background
[4] In
2001 Mr Mpofu – with other accused – was convicted in the
High Court of murder and other serious offences, committed
in January
1998. On 25 September 2001 he was sentenced to life
imprisonment for the murder, as well as to 28 years’

imprisonment for the other offences, to run concurrently with the
life term. Apparently he has served 13 years of his sentence.
[5]
Applications by Mr Mpofu for leave to appeal against his sentence to
the High Court and the Supreme Court of Appeal were dismissed
on 16
November 2004 and 17 August 2006, respectively. He applied on
the ground that the High Court had failed to take into
account that
he was under age, amongst other things.
5
[6] In
2008 he approached this Court with an application for leave to
appeal, on the basis that the presiding judge was not impartial
and
violated his constitutional right to a fair trial. He further argued
that the fact that the record of his trial could not be
traced
infringed his right of access to information. The application for
condonation of the late filing of papers and the application
for
leave were dismissed.
6
In 2009 Mr Mpofu again approached this Court on the basis that
his right of access to information, his right of appeal and
his right
to a fair trial were infringed. This application was also dismissed.
7
In both cases this Court stated in short reasons that it was “not
in the interests of justice” to hear the matter.
[7] In the
present application,
8
he seeks leave to appeal against his sentence. He submits that the
High Court did not give due consideration to his age at the
time of
the commission of the offences. He relies on section 28(1)(g) of the
Constitution,
9
which provides that a child may only be imprisoned as a matter of
last resort and for the shortest possible time. He argues that
his
life imprisonment should be set aside and replaced by a sentence that
utilises the provisions of the Child Justice Act, even
though this
statute came into operation long after his sentencing.
[8] In
considering the application for leave to appeal, this Court was of
the view that the application could not be determined
without more
information concerning Mr Mpofu’s age. Therefore, the
Court appointed Mr Yakoob Alli of the Johannesburg
Bar as
amicus
curiae
to investigate the age of the applicant.
10
He also acted as counsel for the applicant. We are grateful for Mr
Alli’s assistance in this regard. The content of his report
is
discussed below.
[9] After
Mr Alli’s report had been received, this Court directed the DPP
to lodge those portions of the High Court record
that contained
evidence relevant to determine the age of the applicant. The DPP was
unable to trace the criminal record case file
and submitted that the
only available information regarding his age is that which is alluded
to in the High Court judgment and
Mr Alli’s report.
[10] This
Court then directed the DPP to procure the assistance of the South
African diplomatic representatives in Harare, Zimbabwe,
in order to
obtain any available official documentation authenticating Mr Mpofu’s
date of birth. The DPP did not procure
this information.
Leave
to appeal
[11] In
order to determine whether leave to appeal should be granted in this
case, three issues need to be considered, namely whether
a
constitutional matter is raised; whether the matter has already been
adjudicated (
res judicata
); and whether it is in the interests
of justice to grant leave.
[12] Is a
constitutional matter raised? In theory, every alleged unlawful
detention or imprisonment directly affects the individual’s

right to freedom and security of the person, protected in section
12(1) of the Constitution.
11
But, appeals against sentence are not automatically constitutional
matters falling within the jurisdiction of this Court. In this
matter
though, a constitutional issue does arise. The applicant relies
directly on the effect of the protection of children’s
rights
in section 28 of the Constitution on sentencing.
[13] I now
turn to the issue of whether the matter is
res judicata
. The
DPP submits by way of a “special plea” that the
application should be “removed from the roll”, because
it
has already been decided by this Court and is thus
res judicata
.
The DPP relies on the need for finality in criminal matters and views
this to be a rigid bar to leave being granted in this case.
Counsel
for the DPP submitted that concerns about youthfulness and even
childhood should not create any exception. Counsel for
the applicant
submits that the
res judicta
principle does not apply, because
the previous application was so “ill-advised” that it was
a nullity or “bordered
on a nullity”.
12
[14] The
general principle is that a convicted and sentenced person cannot
appeal more than once against the same conviction or
sentence. Once
an application for leave to appeal is dismissed, this is a judicial
decision, which is final and determinative,
involving the same
parties, cause of action and relief sought.
13
The fact that an application for leave to appeal or an appeal is
without merit, or “ill-advised”, cannot easily make
it a
nullity and open the way for further appeals, every time on a
different ground.
[15]
However, one has to look a little deeper into the history and reason
behind the principle of
res judicata
before concluding that it
is an absolute bar to the granting of leave, even in a case like this
which possibly involves the sentencing
of a child. Historically, its
use was mainly to prevent the difficulties that might arise from
discordant or contradictory decisions
in the same suit.
14
In the context of civil matters it operates in tandem with the
so-called “once and for all” rule that a plaintiff may

generally only claim for damages arising out of the same cause of
action once.
15
But, under our Constitution, there may be scope for situations in
which the
res judicata
principle is softened in relation to
unrepresented accused persons. When unrepresented persons apply for
leave to appeal, without
necessarily properly knowing their rights
and what arguments may be available to them, it could be unduly harsh
to preclude them
from subsequently applying for leave to appeal where
they may have a valid point, particularly where there is a possible
violation
of one of their rights protected in the Bill of Rights.
[16]
Furthermore – and closer to the facts of this case – the
present application does not necessarily call for a decision
on the
merits which may contradict the previous decisions of this Court.
Both the 2008 and 2009 applications were dismissed on
the basis that
this Court did not regard it as “in the interests of justice”
to hear the matter. The merits of the
applicant’s specific
claim in the present application, namely that he was a child when he
committed the offences and that
the sentencing Court did not take
this into account, were not decided by this Court. No finding was
made on the prospects of success
of the applicant’s case, as
this Court often does. The fundamental reason for the
res judicata
principle, namely to avoid conflicting decisions on the same issue
and to bring about finality,
16
does not apply fully.
[17] But,
is it in the interest of justice to grant leave to appeal, in view of
concerns about
res judicata
and finality, uncertainty about
the applicant’s age and the question whether he was indeed a
child offender, the long time
that has elapsed since the commission
of the offences in 1998 and the sentencing in 2001 and also the
missing trial record? The
answer depends partly on the importance
given to the sentencing of children under section 28 of the
Constitution as a constitutional
issue.
[18] In my
view, the sentencing of children is a constitutional matter of great
concern and import for the criminal justice system,
beyond and above
the interest of a specific applicant with a criminal record whose
credibility may not be above suspicion. Mr Mpofu
raises a
constitutional issue. Whether he should be successful must be
determined. In
Fraser v ABSA
17
this Court stated:
“
[A]n
applicant could raise a constitutional matter, even though the
argument advanced as to why an issue is a constitutional matter,
or
what the constitutional implications of the issue are, may be flawed.
The acknowledgement by this Court that an issue is a constitutional

matter, furthermore, does not have to result in a finding on the
merits of the matter in favour of the applicant who raised it.”
18
[19] We do
not need absolute certainty on the applicant’s age to come to
the conclusion that it is in the interests of justice
to grant leave
to consider on appeal the constitutional issue he raises. As shown
below, the report by Mr Alli, who was appointed
by this Court, and
the High Court’s judgment contain sufficient indications of the
real possibility that he was a child.
19
Only an analysis of all the evidence available to us, properly argued
by legal representatives, could bring us closer to a conclusion.
[20] In my
view the missing trial record is a great pity, but cannot be
determinative. This application is not about the evidence
to
determine the guilt or innocence of the applicant and his co-accused
or about alleged procedural irregularities. It is about
sentencing
specifically with regard to age. This is dealt with in detail in the
judgment on sentence. The judgment on conviction
is also available.
Lastly, the time that has elapsed whilst Mr Mpofu brought several
applications from behind prison bars cannot
in principle override a
potential injustice with serious and direct constitutional
implications.
[21] In
view of section 28 of the Constitution, this Court’s role as
the guardian of the Constitution and the High Court’s
role as
the upper guardian of all children, a flexible approach must be
followed.
20
The concerns surrounding Mr Mpofu’s age were raised by him in
the context of the possible application of the Child Justice
Act.
[22] In my
view it is in the interests of justice to grant leave to appeal. In
the sentencing of a child, every court must take
into account the
contents of section 28. This includes treating as paramount the best
interests of the child
21
and imprisoning a child only as a matter of last resort and for the
shortest appropriate amount of time. Under the Constitution,

childhood is not merely one mitigating factor to be balanced against
factors in favour of a harsher sentence. Section 28 demands
a
different enquiry into sentencing. As the
amicus
helpfully
phrased it, the starting point in sentencing may well be different.
This does not mean that every sentencing court must
expressly refer
to section 28, but its contents cannot be ignored. The application
also bears reasonable prospects of success.
The attention of this
Court is well warranted.
The age of the applicant
[23] The
High Court accepted Mr Mpofu’s youthfulness as a mitigating
factor.
22
The question is whether he was under the age of 18 – the
constitutional dividing line between a child and an adult –

and, if so, whether the High Court was aware of it and duly took it
into account. It is necessary to outline the conflicting information

that has been put forward as to the applicant’s age. I deal
first with the High Court judgment and thereafter with the parties’

submissions and the evidence they rely on.
The High Court judgment
[24] Mr
Mpofu was accused number four in the proceedings in the High Court.
In his judgment on conviction, Labuschagne J referred
to the age of
the accused: “Accused 1 was employed by the deceased and
he stayed in the same quarters as the other three
state witnesses. He
appears to be the youngest of all the accused.”
23
[25] In
the sentencing judgment accused one is described as “19 years
old and . . . a first offender” and later as “at
this
stage . . . in his early 20s, he was 19 when the incident occurred”.
24
[26] In
determining the appropriate sentences, the High Court took into
account the personal circumstances of each accused. In describing
Mr
Mpofu, the Court held:
“
Accused
4 is 20 years old. He is not married and has no children. He passed
matric in KwaZulu-Natal. He was arrested on 31 January
1999 when he
was a student at the Boston College. His parents are both pensioners.
He has a previous conviction for robbery.”
25
[27] Later
it is stated that Mr Mpofu is 20 years old and that his age could be
a mitigating factor:
“
Accused
1 and 4 are the youngest. Accused 1, at this stage, is in his early
20s, he was 19 when the incident occurred and I was
informed that
accused 4 is 20 years of age. The youthfulness of accused 1 and 4 is
a factor that I must consider and could be a
mitigating factor, at
least to an extent which may influence me to differentiate between
their sentences and those of the other
accused.”
26
[28] The
judgment later returns to the question of age stating that it is a
concern that people “in their late teens”
are committing
such violent crimes.
27
I later return to the High Court judgment.
The parties’ submissions and the evidence presented
[29] Mr
Mpofu submits that his date of birth is 25 September 1981 and that
the High Court accepted that his age was 20 at the time
of
sentencing. He relies on the wording of the High Court judgment.
[30] The
amicus
appointed to investigate the question of age concluded
that the applicant was 16 at the time of the commission of the crime,
but
did not have the benefit of verifiable, objective evidence. A
virtually illegible copy of a birth certificate, which was received

from Mr Mpofu’s previous school, was attached to the report.
Shortly before the hearing of this matter, the applicant requested

this Court to admit an “original birth certificate”. It
appears that this certificate and the illegible copy contain
notable
differences. None of the documents provides conclusive proof of the
birth date.
[31] The
DPP points to the indictment in this case, which indicates that he
was 20 years of age when arrested on 4 March 1998.
Further,
according to the Criminal Record System, he gave two different dates
of birth: 4 April 1977 and 4 September 1979.
Mr
Mpofu submits that he gave the South African authorities two
birthdates in an attempt to avoid being linked to a criminal offence

in another case pending against him at the time. He submits that his
true date of birth is the one in the birth certificate attached
to
the
amicus’
report, namely 25 September 1981.
[32] The
DPP presented an affidavit from a Control Immigration Officer from
the Department of Home Affairs. The officer matched
Mr Mpofu’s
identity number with his record in the National Population Registry
database. However, it indicates the date of
birth assigned to the
applicant as 4 April 1977. Accordingly, the DPP argues that the
evidence provided by the Department of Home
Affairs establishes
beyond reasonable doubt that the applicant was not a minor at the
time of the commission of the crime. This
evidence is not conclusive,
as it cannot be ascertained from where the information contained in
the immigration registry record
originates, or when it was entered
into the database.
[33] On
all of this information the applicant was born in 1977, 1979 or 1981,
and he was between 16 and 20 years old when the offences
were
committed. However, none of the new evidence is admissible under the
requirements of Rule 31 of this Court.
28
The evidence is neither common cause nor incontrovertible. It
is not capable of easy verification. During oral argument, counsel

for the parties agreed that this Court has to rely on the record,
including the High Court’s judgment, rather than on evidence

that has subsequently come to light and which appears contradictory
and confusing.
Conclusion on age
[34] It is
not possible to reach a conclusion on the applicant’s age based
on the above. In my opinion we are largely left
with the references
in the judgment of the High Court. However, the language used is not
entirely clear.
[35] As
indicated above, it is stated in the sentencing judgment that Mr
Mpofu – as accused four – “is 20 years
old”,
as well as that the Court “was informed that accused 4 is
20 years of age”. If these statements refer
to his age at the
time of sentencing – September 2001 – he must have been
17 when the offences were committed in January
1998. This is
contradicted only by the Court’s statement that accused one –
and not Mr Mpofu – “appears
to be the youngest of all the
accused”, read together with the statement that accused one was
in his early 20s at the stage
of sentencing and was 19 when the
incident occurred. This would make Mr Mpofu older than 19 when the
offences were committed. However,
it has to be noted that accused one
only
appeared
to the Court to be the youngest of the accused.
This statement was made in the judgment on conviction as a part of
the trial judge’s
summary of evidence. The ages of the accused
were not relevant and had not been investigated at that time. The
observation based
on accused one’s appearance cannot outweigh
the direct reference to age in the sentencing judgment, where the
personal circumstances
of the accused were specifically scrutinised.
[36] It is
to be noted that the references to the age of accused one – in
the sentencing judgment – are also contradictory.
First, he is
stated to be “19 years old”, and then to be “at
this stage [presumably of sentencing] . . . in his
early 20s [and] .
. . 19 when the incident occurred”.
29
[37] On
the face of the above it would appear that Mr Mpofu was not older
than 17 at the time of the offences, if he was 20 at the
time of the
sentencing. The applicant and
amicus
agree that the High Court
accepted that he was 16 or 17 – in any event under 18 –
but did not deal with his status as
a child and referred only to his
youthfulness. The DPP argues that the High Court’s statement
that he was 20 does not necessarily
mean that the Court thought him
to be 20 at the time of sentencing. The Court could also have been
referring to 1998, when the
offences were committed.
[38] The
DPP submits that the onus to prove age as a mitigating factor is on
the accused and that it was not met in this case, because
the
applicant did not testify on his age. Counsel for the applicant
disagrees. Indeed, the responsibility to impose a sentence
belongs to
the court. Although the court should not be left to speculate, all
that is required from an accused is to provide a
sufficient factual
basis for mitigation, which counsel for the applicant contends was
done in this case. The Court should have
satisfied itself as to the
age of the accused.
[39] In my
view it appears from the High Court’s remark that it “was
informed that accused 4 is 20 years of age”,
that Mr Mpofu’s
counsel must have conveyed this information to the Court. This
statement is made after the straightforward
one that “[a]ccused
4 is 20 years old.” Surely the prosecution, or the Court, could
have questioned this, based on
the applicant’s appearance, or
on any apparently contradictory information. The judgment does not
show any indication that
the information was disputed. It appears
that the High Court was informed and accepted that Mr Mpofu was 20 at
the time of sentencing,
thus no older than 17 at the time when he
committed the offences. The only indication to the contrary is the
reference in the judgment
on conviction to the youthful appearance of
accused one and the later references to accused one’s age. As
indicated above,
this cannot outweigh the direct references to Mr
Mpofu’s age in the sentencing judgment. According to the
indictment, which
is part of the record, Mr Mpofu is older. But the
indictment does not contain proven facts and the facts stated in it
were not
taken into account by the Court in sentencing.
[40] Other
interpretations of the High Court judgment may be arguable. One is
that the Court only accepted Mr Mpofu to be a youthful
offender, but
not a child. This interpretation is supported by the language of the
sentencing judgment, which purports to consider
Mr Mpofu’s
“youthfulness” in determining an appropriate sentence.
Given that nowhere in the sentencing or the
conviction judgments is
Mr Mpofu referred to as a child, it is possible that the Court
perceived him to be a youth.
30
This would mean that the Court’s remark that Mr Mpofu “is
20 years old” should not be taken to mean that he was
20 at the
time of sentencing, but rather at the time of the commission of the
offences. The use of the present tense would then
simply be a
mistake. This is unlikely though, in view of the very specific use of
the past tense (“was”) and present
tense (“is”)
by the Court in that particular paragraph.
31
[41] A
third possibility is that we are unable to determine with any
accuracy what the High Court accepted with regard to Mr Mpofu’s

age because of the imprecise language in the judgment to describe the
ages of the accused individuals, as indicated earlier. This
would
leave open the possibility that he was indeed a child and that the
sentencing Court disregarded this fact.
Was there a misdirection?
[42] The
inquiry in an appeal against sentence is not whether the sentence was
right or wrong, but whether the Court in imposing
it exercised its
discretion properly and judicially. A misdirection that could result
in the setting aside of a sentence on appeal
is
an error committed by the Court in determining or applying the
facts for assessing an appropriate sentence. However, a mere
misdirection
is not by itself sufficient to entitle a court to
interfere with the sentence on appeal. It must be of such a nature,
seriousness
or degree that it shows that the Court did not exercise
its discretion or exercised it improperly or unreasonably.
32
[43]
Whether a misdirection has occurred in this case depends on the
interpretation of the High Court judgment. On the second of
the
above-mentioned possible interpretations of the High Court judgment,
the Court regarded the applicant as a youthful offender
and took his
youth into account. The Court did not regard him as a child at the
time of the commission of the offences and thus
never mentioned
childhood as a factor, or any of the contents of section 28 of the
Constitution. If this is indeed the correct
interpretation of the
High Court judgment, there would be no misdirection.
[44] But
the two direct references in the High Court’s judgment on
sentencing to Mr Mpofu’s age, namely that “[a]ccused

4 is 20 years old” and that the Court “was informed that
accused 4 is 20 years of age” stand in the way of this

interpretation. In my view one cannot simply accept that the High
Court meant to say that Mr Mpofu was 20 at the time of the offences,

rather than at the time of sentencing, in spite of the explicit
language used. This is especially so with regard to the second
of the
references, where the High Court first deals with accused one’s
age “at this stage” as well as “when
the incident
occurred” and then proceeds to say that “I was informed
that accused 4 is 20 years of age”. To interpret
all of these
to mean that the High Court actually stated that the applicant was 20
when he committed the offences, would be stretching
the language of
the judgment unduly, particularly the important question of whether
an accused was a child when committing a serious
offence. The first
of the above-mentioned three interpretations is in my view the only
one consistent with the language of the
judgment.
[45] The
possibility of a flexible and lenient approach in the language used
by the High Court calls up the third of the above-mentioned

interpretations of the judgment, namely that the imprecise use of
language renders it impossible accurately to determine the age
of the
applicant, or the High Court’s understanding of his age. One
appreciates the pressures, workload and time constraints
of the High
Court in the area of criminal cases and does not wish to be unduly
critical. However, the sentencing of any convicted
person is a
delicate and important issue. This is all the more so when
youthfulness is taken into account as a circumstance in
the
mitigation of punishment. It becomes extremely important when
childhood is at issue, directly invoking the guidelines and demands

of section 28 of the Constitution. An inadequate and inconclusive
investigation into the possibility that a person about to be

sentenced was under 18 when the offences were committed, or loose,
imprecise or contradictory language to describe a conclusion
on this
point, could in itself be a misdirection.
[46] If
the High Court accepted that Mr Mpofu was 20 at the time of
sentencing, then did the Court take into account that he was
a child
when he committed the offences? According to the applicant and the
amicus
, it did not. The DPP conceded that if childhood were
taken into account, the consideration of sentencing might have been
different.
The DPP’s argument that it did not really matter
much to the prosecution and the Court whether he was 20 at the time
of sentencing
(thus 16 or 17 at the time of the offences) or 20 at
the time of the offences is unpersuasive. If this were the attitude
of the
Court, it would be a clear example of a misdirection.
[47] I
thus conclude that the High Court misdirected itself. From the
references in the judgment it appeared to have accepted that
Mr Mpofu
was a child at the time he committed the offences, but failed to take
it into account when considering what an appropriate
sentence would
have been.
Appropriate sentence
[48] The
misdirection was sufficiently serious that the sentence has to be set
aside. However, would life imprisonment not in any
event have been
appropriate?
[49] The
amicus
informed us that on the reported case law life
sentences imposed on children do not stand up to scrutiny on appeal.
The DPP stated
that children are often sentenced to life
imprisonment, but that these cases are not reported. Although we can
perhaps accept that
life imprisonment may in some cases be
appropriate for a person under the age of 18, it is clear that in
order to sentence a child
to life imprisonment the court must give
very strong reasons and show that the possibility of rehabilitation
has been properly
investigated. The
amicus
submitted that it
can only happen under very exceptional circumstances. This must be
correct.
[50] Are
Mr Mpofu’s circumstances highly exceptional? The crime is very
serious and he has a previous conviction for robbery.
But I am not
able to conclude that a life sentence for a child was acceptable in
this case, particularly because section 28(1)(g)
of the Constitution
states that every child has the right not to be detained except as a
measure of last resort and only for the
shortest appropriate period
of time.
33
[51] What
sentence would then be appropriate? Should this Court, on appeal,
impose an appropriate sentence or refer the matter back
to the High
Court to re-investigate the issue of the applicant’s age,
perhaps even by hearing further evidence, and to decide
on a proper
sentence? Under the present circumstances a referral back to the High
Court would not be useful. The offences were
committed 15 years ago
and the sentence imposed almost 12 years ago. A range of aggravating
and mitigating factors was placed before
the High Court and dealt
with by the Court in its judgment. One of these was the age of the
applicant. It is unlikely that new
evidence would shed much light on
the issue. The DPP has been unable to trace the full record of the
criminal proceedings. Evidence
gathered on the initiative of this
Court is vague, contradictory and inconclusive. The High Court made
its findings. It would not
be appropriate to refer the matter back
mainly to afford the High Court an opportunity, or to expect of the
High Court to reconsider,
clarify or reformulate its own previous
findings.
[52] This
Court has to consider an appropriate sentence. In doing so, competing
interests have to be weighed. On the one hand, there
is the
Constitution’s high regard for the interests of children and
recognition that those under the age of 18 years are
indeed children.
On the other hand, there is the general principle that a court of
appeal does not interfere easily with sentencing
by a lower court, as
well as the constitutional concern for the safety of all and the need
to combat crime.
53] It was
argued on behalf of the applicant that the Child Justice Act which
was promulgated in 2008 could give guidance in the
sentencing, even
though it came into operation after the sentencing in this matter and
is not applicable to Mr Mpofu. It may be
noted that section 77(4) of
the Child Justice Act creates a maximum sentence limit of 25 years’
imprisonment for a child
who is 14 years or older at the time of
being sentenced.
34
[54] Given
the seriousness of the crime, his previous conviction as well as the
need to protect society against serious crime through,
amongst other
means, the preventative effect of punishment, considered together
with his age, I would impose a sentence of 20 years’

imprisonment. As Mr Mpofu has served more than half of this term, he
might be eligible for parole.
35
However, that is not an issue for this Court to consider.
Conclusion
[55] Mr
Mpofu was convicted of serious offences, including murder. His age at
the time he committed these offences is not factually
certain. The
evidence is inconclusive and the veracity of the information put
forward by Mr Mpofu is not above suspicion. However,
it is possible
that he was 16 or 17 years old at the time of the commission of the
offences. From statements in the High Court
judgment that he was 20
at the time of sentencing it appears that the Court found that this
was the case.
It did
not consider his childhood in sentencing him. This is a serious
misdirection, especially in view of the high demands of
the
Constitution with regard to the sentencing of children, which are of
great importance for society and the criminal justice
system, over
and above the situation of the individual applicant in this case.
[56]
Therefore the sentence of life imprisonment has to be set aside and
replaced with a sentence that is appropriate under the

circumstances. The sentence of 28 years’ imprisonment also has
to be reduced, so that a cumulative sentence of 20 years
is imposed.
In the circumstances, I would have upheld the appeal.
SKWEYIYA J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta
J, Yacoob J and Zondo J concurring):
Introduction
[57] I am
unable to agree with the outcome reached in the judgment of my
colleague Van der Westhuizen J. I would refuse the
applications
for condonation and leave to appeal.
Constitutional context
[58] From
the outset, I must emphasise that children’s rights are of the
utmost importance in our society. Courts are required
to distinguish
between children and adult offenders when sentencing and children
must enjoy preferential sentencing treatment.
36
However, it is not the seriousness of the right relied upon by an
applicant alone that is decisive of whether leave to appeal
will be
granted in this Court. In my view, Mr Mpofu has failed to cross
a preliminary hurdle. Leave to appeal and condonation
should be
refused, both on the ground that it is not in the interests of
justice to grant them.
Leave to appeal
[59] It
is trite law that leave to appeal to this Court should be granted
only when two conditions are met. The application must
raise a
constitutional matter or an issue connected with a decision on a
constitutional matter, and the interests of justice
must favour the
grant of leave.
[60] What
constitutional basis exists for this Court to intervene in
Mr Mpofu’s sentence which essentially concerns
a factual
dispute? Ordinarily this would not be a constitutional issue. Mr
Mpofu relies on section 28 of the Constitution to
found this Court’s
jurisdiction. The right enshrined in section 28 entitles a defined
group – children – to
its enjoyment, to the exclusion of
others – adults. But the answer to the factual question as to
Mr Mpofu’s age in
this case determines the applicability of a
constitutional right. It is also the first step in determining
whether the South
Gauteng High Court, Johannesburg (High Court)
unconstitutionally failed to take account of Mr Mpofu’s age in
sentencing,
as is alleged.
[61] The
application of a right, and adherence to the dictates of section 28
when sentencing a child,
37
are clearly constitutional issues.
38
And if Mr Mpofu’s claim is true then a constitutional failure
arises in this case.
Interests of justice
[62] The
question whether it is in the interests of justice to hear a matter
depends on a myriad of relevant considerations. Mr Mpofu
relies
on section 28 of the Constitution, and he argues that, because of
the public importance of the issue, the interests of
justice require
that this application for leave to appeal be granted.
[63] The
importance of the issue is indeed a highly relevant factor in
determining the interests of justice. However, Mr Mpofu
has failed
to establish that the right is engaged at all. Whether or not
section 28 of the Constitution has indeed been implicated
can only
be established by resolving the factual dispute as to Mr Mpofu’s
age. To base the interests of justice on
his status as a child would
be to beg the question.
[64]
Prospects of success are another relevant factor in determining the
interests of justice. Ordinarily, an appellate court
can only
interfere with the sentence of a lower court where there has been an
irregularity that results in a failure of justice;
the court below
misdirected itself to such an extent that its decision on sentence
is vitiated; or the sentence is so disproportionate
or shocking that
no reasonable court could have imposed it.
39
In addition, this Court, ordinarily, will entertain appeals on
sentence only if a fair trial issue is at stake.
40
Without the possibility of reliable proof that one of these grounds
has been established there are no prospects of success.
[65] The
amicus curiae
appointed by this Court to investigate Mr
Mpofu’s age, Mr Yakoob Alli, gave a detailed report
concluding that it “appears”
that Mr Mpofu was 16
years old at the time of the offences. However, Mr Alli, despite his
commendable efforts, was without
the benefit of verifiable,
objective evidence and accordingly the factual dispute cannot be
resolved by recourse to this report.
[66] Neither does the judgment of the High Court allow this Court to
reach a neat, definitive conclusion on Mr Mpofu’s
age as we
cannot determine, with any level of certainty, what that Court
accepted with regard to Mr Mpofu’s age. There
is nothing in
the High Court judgment that shows that Mr Mpofu had been
represented to the Court on the basis that he was a child
at the
time of the offences. It is difficult to accept that, if he had in
fact been a child, it would not have been revealed
to the Court. Age
is widely known as a highly relevant mitigating factor in
sentencing. I also find it difficult to accept that
the High Court
judgment would have made no mention of Mr Mpofu’s
minority if it had been revealed to it, especially
given the
centrality that minority occupies in the sentencing enquiry.
[67]
Because we do not know what the High Court found in respect of
Mr Mpofu’s age, we are unable to determine whether
it
misdirected itself by failing to take account of it. Accordingly,
the application lacks prospects of success because no misdirection

can be established on these facts that could support an allegation
that he did not have a fair trial. This militates strongly
against
it being in the interests of justice to grant leave to appeal.
[68] That
the record in the High Court could not be sourced is a further
reason why interfering with the sentence would not be
in the
interests of justice. This Court would not be well-positioned to
grant the relief sought, namely, to re-sentence Mr Mpofu.
[69]
Further, the interests of justice in granting Mr Mpofu’s
application are weakened by his failure to act timeously in
bringing
it. It has taken 10 years for this matter to be brought to this
Court. The passage of this significant length of time
has surely
impacted on the possibility of establishing reliable evidence as to
the facts on which Mr Mpofu’s case rests.
The interests of
justice thus do not favour re-opening his case.
[70] Nor
has Mr Mpofu adequately explained why he brought two previous
applications to this Court for leave to appeal against
his sentence
in which this issue was not raised.
41
The interests of justice do not support this Court entertaining a
further application.
Condonation
[71] Nor
do the interests of justice support the grant of condonation.
Mr Mpofu is well outside the time limits imposed by
this
Court’s Rules for lodging an application.
42
He has not motivated his significant delay; he has not explained its
extent nor accounted for the full period of the delay.
43
I see no good reasons why Mr Mpofu’s application for
condonation should be granted and his case fails at this juncture

too.
Conclusion
[72] In
the light of the above, I am of the view that the applications for
condonation and for leave to appeal should be refused.
Order
[73] The following order is made:
The
applications for condonation and leave to appeal are dismissed.
For
the Applicant: Advocate W Vermeulen SC and Advocate Y Alli at the
request of the Constitutional Court.
For
the Third Respondent: Advocate C Britz and Advocate D Dakana
instructed by the Director of Public Prosecutions South Gauteng
High
Court, Johannesburg.
For
the Amicus Curiae: Advocate A Skelton instructed by the Centre for
Child Law.
1
Section
28(3) of the Constitution states: “In this section ‘child’
means a person under the age of 18 years.”
2
Section
28(2) provides: “A child’s best interests are of
paramount importance in every matter concerning the child.”
3
Section
28(1)(g) states:
“
Every child has the right . .
. 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”.
4
75
of 2008.
5
In
his application to the Supreme Court of Appeal, the applicant
contended that the murder and other offences were not premeditated

on his part. Further, he was promised that if he acted as a
state-witness his sentence would be mitigated. He denied having
committed the murder and requested the Court to read the eye-witness
testimony again to prove that he was not the one who pulled
the
trigger on the deceased. Finally, he submitted that the trial Court
had failed to take into consideration that he was under
age. He
stated: “Accused 4 was 20 years old, the judge did not take
into consideration that the appellant was under-age
when the crime
was committed, compare with the ring leader accused 2 who was 38
years when the crime was committed.”
6
CCT
66/08.
7
CCT
101/09.
8
CCT
124/11.
9
Quoted
above n 3.
10
The
order of this Court dated 15 February 2012 reads:
“
The Constitutional Court has
considered this application for leave to appeal and in the light of:
(a) its conclusion that the application cannot be
determined without accurate information concerning the age of the
applicant
and that it is therefore in the interests of justice to
appoint an advocate of the Johannesburg Bar to investigate and
provide
this Court with a report containing all relevant information
that will enable the Court to ascertain the age of the applicant;
(b) the fact that Mr Yakoob Alli of the Johannesburg
Bar has consented to investigate and report to this Court on the
issue of
the age of the applicant;
appoints Mr Yakoob Alli as a friend of the Court to
investigate and provide this Court, as soon as is practicable, with
a report
containing all relevant information that will enable the
Court to ascertain the age of the applicant. The Registrar is
requested
to furnish a copy of all the papers lodged in this case to
Mr Yakoob Alli.”
11
Section
12(1) states:
“
Everyone has the right to
freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or
without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either
public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman
or degrading way.”
12
The
parties
dealt
only with application CCT
66/08 and not CCT 101/09.
13
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(AD) at 835F-G;
S v
Khumalo
2009 (1) SACR 503
(TPD) at 505F-H; and
R v Kriel
1939 SA 221
(CPD) at 222. See also Van der Merwe et al (eds)
Commentary on the Criminal Procedure Act
Service 48 (Juta and
Co Ltd, Cape Town 2007) at 31–15 to 31–16.
14
See
Voet
Commentarius ad Pandectas
44.2.1 translated by Gane
The
Selective Voet
(Butterworth & Co. (Africa) Ltd., Durban
1957) at 553.
15
Custom
Credit Corporation (Pty.) Ltd. v Shembe
1972 (3) SA 462
(AD) at
472.
16
See
above n 14.
17
Fraser
v ABSA Bank Ltd (National Director of Public Prosecutions as
Amicus
Curiae
)
[2006] ZACC 24
;
2007 (3) SA 484
(CC);
2007 (3) BCLR
219
(CC) (
Fraser v ABSA
).
18
Id
at para 40. See also
Fraser v Naude and
Another
[1998] ZACC 13
;
1999 (1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para 7, where this Court stated:
“The prospects of success are obviously an important issue in
deciding whether
or not to grant leave to appeal. But they are not
the only issue to be considered when the interests of justice are
being weighed.”
(Footnote omitted.)
19
Mr
Alli concluded that Mr Mpofu was 16 years old at the time he
committed the offence.
20
See
Kotze v Kotze
2003 (3) SA 628
(T) at 630G:
“
[T]he High Court sits as
upper guardian in matters involving the best interests of the child
(be it in custody matters or otherwise),
and it has extremely wide
powers in establishing what such best interests are. It is not bound
by procedural strictures or by
the limitations of the evidence
presented, or contentions advanced or not advanced, by respective
parties.”
21
See
section 28(2) quoted above n 2.
22
S
v Thabo Sipho Ndlovu and Others
, Case No 12/99, 25 September
2001, unreported (
High Court judgment on
sentence) at 29.
23
S
v Thabo Sipho Ndlovu and Others
, Case No 12/99, 4 May 2001,
unreported (High Court judgment on conviction) at 13.
24
High
Court judgment on sentence above n 22 at 26 and 29.
25
Id
at 27.
26
Id
at 29.
27
Id
at 30.
28
Rule
31 states:
“
Documents lodged to canvas
factual material
(1) Any party to any proceedings before the Court and
an amicus properly admitted by the Court in any proceedings shall be
entitled,
in documents lodged with the Registrar in terms of these
rules, to canvas factual material that is relevant to the
determination
of the issues before the Court and that does not
specifically appear on the record: Provided that such facts—
(a) are common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical or
statistical nature capable of easy verification.
(2) All other parties shall be entitled, within the
time allowed by these rules for responding to such document, to
admit, deny,
controvert or elaborate upon such facts to the extent
necessary
and appropriate for a proper decision
by the Court.”
29
High
Court judgment on sentence above n 22 at 26 and 29.
30
See
also the High Court judgment on sentence above n 22 at 30: “In
regard to the youthfulness of some of the accused . .
.”.
31
See
[27] above for the exact wording.
32
S
v Pillay
1977 (4) SA 531
(A) at 535E-F.
33
Quoted
above n 3.
34
Section
77(4), read with section 77(3), states:
“
A child [who is 14 years or
older at the time of being sentenced for the offence, but not
16 years or older at the time of
the commission of an offence
referred to in Schedule 2 to the
Criminal Law Amendment Act 105 of
1997
] may be sentenced to a sentence of imprisonment for a period
not exceeding 25 years.”
35
Section
136(1) of the Correctional Services Act 111 of 1998 (new Act)
provides that any person serving a sentence of imprisonment,

immediately before the commencement of the new Act, is subject to
the provisions of the Correctional Services Act 8 of 1959 (old
Act).
This section preserves the policy and guidelines that applied at any
time before the new Act came into operation in 2004.
As Mr Mpofu was
sentenced in 2001 it seems clear that in terms of section 136(1) of
the new Act the parole provisions applicable
to him are those set
out in section 65(4)(a) of the old Act. Section 65(4)(a)
provides that a prisoner serving a determinate
sentence imposed
prior to July 2004, may be considered for parole after having served
half of the sentence, unless the date for
considering parole is
brought forward as a result of credits earned.
36
Section
28 of the Constitution 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”.
37
Section
28 of the Constitution demands that children are accorded different
treatment in sentencing. A failure to do so is, in
my view, a
constitutional failure. See above n 36 for the full text of section
28(1)(g).
38
Section
167(7) of the Constitution provides: “A constitutional matter
includes any issue involving the interpretation, protection
or
enforcement of the Constitution.”
39
Bogaards
v S
[2012] ZACC 23
;
2012 (12) BCLR 1261
(CC);
2013 (1) SACR 1
(CC) at para 41.
40
Section
35(3) of the Constitution provides in relevant part: “Every
accused person has a right to a fair trial”.
41
See
[6] above of the judgment of Van der Westhuizen J for a description
of the applications, both of which were dismissed.
42
Rule
19(2) of the Rules of the Constitutional Court provides in relevant
part:
“
A litigant who is aggrieved
by the decision of a court and who wishes to appeal against it
directly to the Court on a constitutional
matter shall, within 15
days of the order against which the appeal is sought to be brought
and after giving notice to the other
party or parties concerned,
lodge with the Registrar an application for leave to appeal”.
43
See
eThekwini Municipality v Ingonyama Trust
[2013] ZACC 7
;
2013
(5) BCLR 497
(CC) at para 28.