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Introduction In February 2008 the Centre for Child Law (the “Centre”) launched an application against the Minister of Justice and Constitutional Development; the Minister of Correctional Services and the Legal Aid Board, challenging the constitutionality of section 51(1); 51(2); 51(6), 51(5) (b) and 53A (b) of the Criminal Law Amendment Act 105 of 1997(the “Amended Act”), as amended by section 1 of the Criminal Law (Sentencing) Amendment Act 38 of 2007(the “Amendment Act”). The gist of the challenge was that the Amended Act which came into operation on 31 December 2007 made minimum sentences, ranging from 5, 10, 15, 20 and life imprisonment for certain crimes applicable to 16 and 17 year olds, infringed children’s constitutional and international rights. This new law is similar to a law passed in 1997, which the Supreme Court of Appeal (SCA) already found to be against the constitution and international law in relation to children. While the Minister of Correctional Services and the Legal Aid Board abide by the order of the court, the Minister of Justice and Constitutional Development (the “Minister”) opposed the application and also raised a point in limine with regard to the Centre’s locus standi to bring the application In the High Court The matter was heard in the Pretoria High Court on 12 September 2008 and judgment was delivered on 4 November 2008. The Centre brought the application in its own interest as a organisation dedicated to upholding and protecting children’s rights; on behalf of children at risk of being sentenced to serve a minimum sentence and in the public interest as provided for respectively in section 38(a) ;(c) and (d) of the Constitution as well as section 15(2) (c) and (d) of the Children’s Act 38 of 2005. The Minister argued that the Centre’s reliance on section 38(a) and (d) for locus standi was insufficient as courts should not be required to deal with abstract or hypothetical issues. The court found that the application was not hypothetical or academic and that the Centre had a real interest of its own; that of the public and the interest of those children who are at risk of being sentenced in terms of the minimum sentence regime. Therefore the Centre had locus standi to bring the application. On the merits, Counsel for the Centre argued that the Amended Act was inconsistent with Section 28(1) (g) and 28(2) of the Constitution as it made minimum sentences applicable to 16 and 17 year old child offenders convicted of very serious crimes. The effect of the Amended Act is that these child offenders are subject to very long prison sentences, including life imprisonment, as a starting point and the courts may only depart where there are substantial and compelling circumstances to do so. Therefore imprisonment in terms of the Amended Act is a measure of first resort and does not allow the courts to consider the principles of individuality and proportionality. The Centre further argued that the Amendment Act negated the approach of the court in S v B 2006 (1) SACR 311 (SCA); [2005] 2 All SA 1 (SCA), where the SCA held that when sentencing child offenders aged 16 and 17 years, the court must start with a “clean slate”. This approach entailed that where a court sentenced a child offender for a very serious crime, it would be at liberty to impose any sentence guided by the constitutional principle that when dealing with child offenders, imprisonment is a measure of last resort and for the shortest appropriate period of time. The court disagreed with the Minister and in her judgment, Potterill AJ stated that: The court found that the Amended Act has made minimum sentences a measure of first resort for 16 and 17 years old child offenders, which is inconsistent with section 28(1) (g) and 28(2) of the Constitution. The court declared all the offending provisions unconstitutional and referred the matter to the Constitutional Court in terms of section 172(2)(a) of the Constitution for confirmation. The Centre sought confirmation of the order of the High Court and persisted with their argument that the Amended Act was, in so far as it relates to 16 and 17 year olds, unconstitutional as it infringes the principal that imprisonment should be a measure of last resort for children. The Minister filed an appeal and maintained that minimum sentences for 16 and 17 year olds was not unconstitutional as it was only applicable to serious offences and the courts always have the discretion to depart from it. The National Institute for Crime Prevention and Reintegration of Offenders (NICRO) applied and was admitted as amicus curiae. NICRO was in support of the confirmation sought by the Centre and their main arguments were that the minimum sentences legislation as it applies to 16 and 17 year old was irrational and unfairly discriminatory to this group of children. The matter was heard on 5 March 2009 and judgment is awaited.
The Minister argued that the Amended Act was not unconstitutional as the court retains its discretion when interpreting the law and the Amended Act does not subject child offenders to the same sentencing regime as adult offenders. The Minister argued further that the courts are always at liberty to consider youthfulness as a mitigating factor when imposing sentence, therefore the question whether the courts start with a “clean slate” or not when sentencing is purely academic.
“This approach (that of the Minister of Justice and Constitutional Development) is incorrect, with a clean slate approach the Court has many sentencing options to consider, although imprisonment is conceivable it is an option of last resort, but with the Amended Act the Court must start with the minimum sentence of life imprisonment or long term imprisonment as an option for first resort and then look for compelling and substantial circumstance and proportionality. The result will not always be the same and is not purely academic. The Amended Act must adhere to the principles enshrined in the Constitution as aptly set out in S v B.”
In the Constitutional Court
Case no: CCT 98/2008