Centre for Child Law v Minister of Justice and Constitutional Development and Others (National Institute for Crime Prevention and the Re-Integration of Offenders, as Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 15 July 2009
• Docket Number: 98/2008
• Hearing Date: 05 March 2009
• Counsel: S Budlender (with A Skelton) for the applicant. W Duminy SC (with D Pillay) for the first respondent. No appearance for the second and third respondents. K Pillay for the amicus curiae.
• Court: Constitutional Court

Cameron J:

Introduction

[1] The applicant applies for confirmation of declarations of statutory invalidity made by the North Gauteng High Court, Pretoria. The High E Court (Potterill AJ) struck down various provisions of the Criminal Law Amendment Act [1] (CLAA) in the form it took after amendment by s 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 F of Rights pertaining to children. [3]

[2] 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. G

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A 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 B already sentenced under the new provisions which the High Court did not grant.

[3] The respondents are the Minister for Justice and Constitutional Development (the Minister), the Minister for Correctional Services, and C 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

[4] Section D 51 of the CLAA creates a minimum sentencing regime for specified classes of serious offences. [6] It was introduced on 1 May 1998 E as a temporary measure for two years. [7] Since then it has been extended

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from time to time; [8] and the Amendment Act has rendered it A permanent. [9]

[5] 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 B 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 C 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.

[6] On 31 December 2007, the Amendment Act came into force. [13] Its D 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 E

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A 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]

[7] On 3 March 2008, the Centre launched these proceedings.

The proceedings in the High Court

[8] In the B 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 C 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 D 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 E 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.

[9] On the substance of the challenge, the High Court found that F 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 G regime with no discretion but to start with the minimum sentence, clearly not a clean slate, but imprisonment as a first resort.' [16]

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[10] The Centre also sought orders requiring the first and second A 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 B Amendment Act 105 of 1997, as amended by s 1 of the Criminal Law (Sentencing) Amendment Act 38 of 2007 are inconsistent with s 28(1)(g) and 28(2) of the Constitution'.

The High Court reserved costs and referred the declarations to this court C for confirmation in terms of s 172(2)(a) of the Constitution.

Intervention of amicus curiae

[11] The National Institute for Crime Prevention and the Re-integration of Offenders (NICRO), a non-profit organisation working towards crime D 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 s 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 E to the regime, since s 28 of the Bill of Rights (the children's rights provision) affords special protective guarantees for all children under 18.

Abstract review

[12] Before considering the issues, it is convenient to mention at the F 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 G 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 H 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.

[13] 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 I

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A 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 B 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, C which have imminent and adverse effects on those the statute targets. That is the case here.

The premises of the High Court judgment

[14] On appeal the Minister opposed confirmation of the declarations of D 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'

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opposing positions raise important issues about the way the criminal A 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:

(a)

The intention and effect of the minimum sentencing regime is to B require courts to impose harsher sentences - that is, to send more offenders in the scheduled...