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
• Citation: 2009 (2) SACR 477 (CC)

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)
2009 (2) SACR 477 (CC)

2009 (2) SACR p477

Citation	2009 (2) SACR 477 (CC)
Case No	98/2008
Court	Constitutional Court
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
Heard	March 5, 2009
Judgment	July 15, 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.

Flynote : Sleutelwoorde

Fundamental rights — Rights of children — Right of child not to be detained except as measure of last resort and then only for shortest appropriate period of time — Effect of on sentencing of child offenders — Constitution of the Republic of South Africa, 1996, s 28(1)(g) — Principles of 'last resort' and 'shortest appropriate period' bearing not only on whether prison a D proper sentencing option but also on nature of incarceration imposed — If there is appropriate option other than imprisonment, Bill of Rights requiring it to be chosen — If imprisonment unavoidable, its form and duration must be tempered so as to ensure detention for shortest possible period of time — Section 28(1)(g) requiring individuated judicial response to sentencing, focusing on particular child being sentenced rather than approach E encumbered by rigid starting point that minimum sentencing entails — Section's requirements relating to child and offence committed by that child and requires individually appropriate sentence, not supervening legislatively imposed determination of what is 'appropriate' under minimum sentencing system.

Fundamental rights — Rights of children — Right of child not to be detained F except as measure of last resort and then only for shortest appropriate period of time — Sentencing of children aged 16 and 17 in terms of s 51 of Criminal Law Amendment Act 105 of 1997, as amended by s 1 of the Criminal Law (Sentencing) Amendment Act 38 of 2007 — Minimum sentencing regime for such children thereby imposed — Validity of — Such G

2009 (2) SACR p478

A regime as introduced by Act 38 of 2007 limiting rights of children under s 28(1)(g) of Constitution of the Republic of South Africa, 1996 — No maintainable justification for such limitation advanced — Accordingly such limitation unconstitutional — Section 51(1), (2) and (6) of Act 105 of 1997, as amended by s 1 of Act 38 of 2007, unconstitutional and invalid.

Headnote : Kopnota

B (Per Cameron J; Langa CJ, Moseneke DCJ, Mokgoro J, O'Regan J, Sachs J and Van der Westhuizen J concurring): While the Bill of Rights (s 28) in the Constitution of the Republic of South Africa, 1996, 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 C 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 D 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, s 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 E 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. (Paragraphs [31]–[32] at 491e–j.) (Yacoob J, Ngcobo J, Nkabinde J and Skweyiya J dissenting.)

F (Per Cameron J; Langa CJ, Moseneke DCJ, Mokgoro J, O'Regan J, Sachs J and Van der Westhuizen J concurring): The minimum sentencing regime in respect of children aged 16 and 17 under s 51 of the Criminal Law Amendment Act 105 of 1997 (the CLAA), as amended by s 1 of the Criminal Law (Sentencing) Amendment Act 38 of 2007 (the Amendment Act), ensures that consistently heavier sentences are imposed for specified G classes of offences listed in the Schedules to the CLAA. It 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 H discretion. The first two elements go against the direct injunctions of the children's rights provision (of the Constitution). Those rights do not apply indifferently to children by category. A child's interests are not capable of legislative determination by group. 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. The conclusion is therefore I unavoidable that the Amendment Act limits the rights in s 28 of the Constitution. (Paragraphs ([45]–[49] at 495a–h.) (Yacoob J, Ngcobo J, Nkabinde J and Skweyiya J dissenting.)

(Per Cameron J; Langa CJ, Moseneke DCJ, Mokgoro J, O'Regan J, Sachs J and Van der Westhuizen J concurring): It is plain that the Bill of Rights in the Constitution amply embodies the internationally accepted principles relating to the sentencing J of child offenders. Its provisions merely need to be

2009 (2) SACR p479

given their intended effect. This leads to the conclusion that no maintainable A justification has been advanced for including 16 and 17-year-olds in the minimum sentencing regime introduced by the Amendment Act. 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. It must B follow that the limitation of s 28(1)(g) of the Constitution is unconstitutional and must be so declared. (Paragraphs [63]–[64] at 499c–500b.) (Yacoob J, Ngcobo J, Nkabinde J and Skweyiya J dissenting.)

The court (per Cameron J; Langa CJ, Moseneke DCJ, Mokgoro J, O'Regan J, Sachs J and Van der Westhuizen J concurring) accordingly confirmed the C declaration of invalidity made by the North Gauteng High Court of s 51(1), (2) and (6) of the Criminal Law Amendment Act 105 of 1997, as amended by s 1 of the Criminal Law (Sentencing) Amendment Act 38 of 2007. The court also made certain orders dealing with how sentences imposed upon 16 and 17-year-old offenders in terms of the legislation in question should be dealt with. (Paragraph [78] at 504c–e and 504g–i.) (Yacoob J, Ngcobo J, D Nkabinde J and Skweyiya J dissenting.)

Annotations:

Cases cited

Reported cases

Southern Africa

Bato E Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): dictum in para [72] considered

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449): dictum in para [59] considered

Carmichele v Minister of Safety and Security and Another (Centre for Applied F Legal Studies Intervening) 2002 (1) SACR 79 (CC) (2001 (4) SA 938; 2001 (10) BCLR 995): dictum in para [36] considered

De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779): dictum in para [85] considered

Director of Public Prosecutions, KwaZulu-Natal v P 2006 (1) SACR 243 (SCA) (2006 (3) SA 515; [2006] 1 All SA 446): considered G

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Others 2009 (2) SACR 130 (CC) (2009 (7) BCLR 637): dicta in paras [61], [68] and [123] applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others; In re Hyundai Motor Distributors H (Pty) Ltd and Others v Smit NO and Others 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079): dictum in paras [21] - [26] considered

Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC) (2004 (7) BCLR 775): dicta in paras [24] and [80] applied I

Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and Others 2005 (3) SA 280 (CC) (2004 (5) BCLR 445): dictum in paras [35] - [36] applied

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998 (2) SACR 556 (CC) (1999 (1) SA 6; 1998 (12) BCLR 1517): dictum in para [97] followed J

2009 (2) SACR p480

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): dictum in paras [23] - [24] considered A

National Director of Public Prosecutions and Another v Mohamed NO and Others 2003 (1) SACR 561 (CC) (2003 (4) SA 1; 2003 (5) BCLR 476): dictum in para [35] considered

Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) (2001 (8) BCLR 779): dictum in para [20] considered B

President of the Republic...