Submitted by crinadmin on
SOUTH AFRICA
Title:
Director of Public Prosecutions KwaZulu-Natal v. P
Court:
Supreme Court of Appeal, South Africa
Date:
December 1, 2005
CRC Provisions:
Article 37(b): Torture and deprivation of liberty
Article 40(1): Administration of juvenile justice
Other International Provisions:
Standard Minimum Rules for the Administration of Juvenile Justice, UNGA Res 40/30, 1985 ("Beijing Rules") (Rules 5(1): Aims of juvenile justice; Rule 17(1)(a) and (c): Guiding principles in adjudication and disposition)
Domestic Provisions:
Constitution, South Africa (Section 28(1)(g): Detention of children; Section 28(2): Best interests of the child)
Case Summary:
Background:
A 12 year old girl ("P") approached two men and asked them to help her to kill her grandmother, promising them household goods, jewellery and sexual relations. One of the men strangled P's grandmother, who was asleep under the influence of sleeping pills P had put in her tea, resulting in her death. The trial court convicted P, then 14 years old, for murder and theft. Considering P's age, the court decided to postpone its sentencing decision for 36 months, provided that P complied with the conditions of a 36 month sentence of "correctional supervision" (consisting of house arrest, supervised probation, community service, etc.). The state appealed the trial court's decision to postpone sentencing, claiming it was too lenient given the gravity of the offences committed and that P should have been sentenced to direct imprisonment.
Issue and resolution:
Sentencing and imprisonment of children. The Court decided that postponing the sentencing of P was not in the best interests of society or justice and sentenced P to 7 years' imprisonment, suspended for 5 years on the condition that she didn't commit another violent offence during the period of suspension. The Court also upheld the 36 month sentence of correctional supervision.
Court reasoning:
The Court recognized that the imprisonment of a juvenile offender under 18 years old should be a measure of last resort and, if unavoidable, should be only for the shortest appropriate period of time. However, the sentence imposed must be in proportion to the gravity of the offence and take into consideration the needs and interests of society and justice, in addition to those of the child. The Court also took into consideration the lack of appropriate detention centres in South Africa.
Excerpts citing CRC and other relevant human rights instruments:
[14] With the advent of the Constitution the principles of sentencing which underpinned the traditional approach must, where a child offender is concerned, be adapted and applied to fit in with the sentencing regime enshrined in the Constitution, and in keeping with the international instruments which lay ‘emphasis on reintegration of the child into society’. The general principle governing the sentencing of juvenile offenders is set out in s 28 (1) (g) of the Constitution. The section reads:
‘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; …’
[15] Section 28 has its origins in the international instruments of the United Nations. Of relevance to this case is the United Nations Convention on the Rights of the Child (1989) which South Africa ratified on 16 June 1995 and thereby assumed an obligation under International Law to incorporate it into its domestic law. Various articles under the convention provide that juvenile offenders under the age of 18 years ‘should as far as possible be dealt with by the criminal justice system in a manner that takes into account their age and special needs.’ Also of relevance is article 40 (1) of the Convention which recognizes the right of the child offender ‘to be treated in a manner consistent with the promotion of a child's sense of dignity and worth, which reinforces the child's respect for human rights and fundamental freedom 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.’ Section 28 (1) (g) of our Constitution appears to be a replica of s 37 (b) of the Convention which provides that children in conflict with the law must be arrested, detained or imprisoned ‘only as a matter of last resort and for the shortest appropriate period of time.’
[16] The Convention has to be considered in conjunction with other international instruments. Most of these instruments are referred to extensively in Brandt. Of particular relevance in this case, however, is the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985) (‘Beijing Rules’), in particular rule 5 (1). The rule recommends that a criminal justice system should ‘ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offender and the offence’. The rule should, however, not be read in isolation because rule 17 (1) (a) provides that:
‘The 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 the needs of society.’
The commentary notes that it is difficult to formulate guidelines because of the unresolved conflicts of a philosophical nature including rehabilitation versus just deserts, assistance versus repression and punishment, merits of the case versus protection of society in general and general deterrence versus individual incapacitation.
Notes:
Although the Court discussed South Africa's obligations under the CRC, it failed to discuss Article 3 on the best interests of the child. Similarly, the Court also failed to discuss Article 4 of the African Charter on Rights and Welfare of the Child ("ACRWC") on the best interest of the child.
CRIN Comments:
CRIN does not believe this decision to be in keeping with the goals and aims of the CRC. The central focus of juvenile justice proceedings should be on the best interests of the child, not protection of the public. States Parties to the CRC should make every effort not to imprison children in conflict with the law, and courts should seek to link young offenders with appropriate rehabilitative, educational, and social services regardless of the nature of the crime.
Citation:
Director of Public Prosecutions KwaZulu-Natal v. P, Supreme Court of Appeal of South Africa, Case No. 363/2005; ILDC 492 (ZA 2005).
Link to Full Judgment:
http://www.saflii.org/za/cases/ZASCA/2005/127.html
This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice.
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