Centre for Child Law v Minister of Justice and Constitutional Development and Others

• Jurisdiction: South Africa
• Citation: 2009 (6) SA 632 (CC)

Centre for Child Law v Minister of Justice and Constitutional Development and Others
2009 (6) SA 632 (CC)

2009 (6) SA p632

Citation	2009 (6) SA 632 (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 G

Constitutional law — Human rights — Rights of children — Sentencing of child H offenders — Children not to be detained except as last resort and only for shortest appropriate period of time — If imprisonment avoidable, alternative sentencing option to be chosen — If imprisonment unavoidable, to be for shortest possible period — Court required to focus on individual child being sentenced without being encumbered by legislatively imposed minimum sentencing regime — Constitution, s 28(1)(g).

I Constitutional law — Human rights — Rights of children — Right not to be detained except as last resort and only for shortest appropriate period of

2009 (6) SA p633

time — Legislatively imposed minimum sentencing regime for children A aged 16 and 17 unconstitutional — Criminal Law Amendment Act 105 of 1997, s 51, as amended by s 1 of the Criminal Law (Sentencing) Amendment Act 38 of 2007 declared invalid — Constitution, s 28(1)(g).

Headnote : Kopnota

(Per Cameron J — Langa CJ, Moseneke DCJ, Mokgoro J, O'Regan J, Sachs J and B Van der Westhuizen J concurring — Yacoob J, Ngcobo J, Nkabinde J and Skweyiya J dissenting.) 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 the child is detained, detention must be 'only for the shortest appropriate period of C 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 if incarceration is unavoidable, its form and duration must also be tempered, so as to D 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 the shortest 'appropriate' period of time relates to the child and to the offence he or she E 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 646C - F.)

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 F 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 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 G 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 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. H 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 unavoidable that the Amendment Act limits the rights in s 28 of the Constitution. (Paragraphs ([45] - [49] at 649D - 650D.)

It is plain that the Bill of Rights in the Constitution amply embodies the I internationally accepted principles relating to the sentencing of child offenders. Its provisions merely need to be given their intended effect. This leads to the conclusion that no maintainable 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 J

2009 (6) SA p634

A 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 follow that the limitation of s 28(1)(g) of the Constitution is unconstitutional and must be so declared. (Paragraphs [63] - [64] at 654B - D.)

The court accordingly confirmed the declaration of invalidity made by the North B 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. C (Paragraph [78] at 658G - 659G.)

Cases Considered

Annotations:

Reported cases

Southern Africa

Bato 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 D

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 E Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 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 (3) SA 515 (SCA) (2006 (1) SACR 243; [2006] 1 All SA 446): considered

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 F

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

Minister of Home Affairs v National Institute for Crime Prevention and the H 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 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517): dictum in para [97] followed

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

National Director of Public Prosecutions and Another v Mohamed NO and Others 2003 (4) SA 1 (CC) (2003 (1) SACR 561; 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 J

2009 (6) SA p635

President of the Republic of South Africa and Others v South African Rugby A Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): dictum in para [138] applied

Richter v Minister of Home Affairs and Others 2009 (3) SA 615 (CC): dictum in para [71] applied.

S v B 2006 (1) SACR 311 (SCA) ([2005] 2 All SA 1): discussed B

S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) (1995 (2) SACR 748; 1995 (12) BCLR 1579; [1996] 1 All SA 11): dictum in para [32] applied

S v Dodo 2001 (3) SA 382 (CC) (2001 (1) SACR 594; 2001 (5) BCLR 423): discussed

S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078 (CC) (2000 (2) SACR 443; 2000 (11) BCLR 1252): dictum in para [37] considered C

S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) (2007 (2) SACR 539; 2007 (12) BCLR 1312): dictum in para [24] applied

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): referred to

S v Malgas 2001 (2) SA 1222 (SCA) (2001 (1) SACR 469; [2001] 3 All SA 220): discussed D

S v Nkosi 2002 (1) SA 494 (W) (2002 (1) SACR 135): considered

S v Vilakazi 2009 (1) SACR 552 (SCA) ([2008] 4 All SA 396): considered

Sibiya and Others v Director of Public Prosecutions, Johannesburg, and Others 2005 (5) SA 315 (CC) (2006 (1) SACR 220; 2005 (8) BCLR 812): compared

Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust E as Amicus Curiae) 2006 (4) SA 230 (CC) (2006 (6) BCLR 682): dictum in para [21] applied.

Unreported cases

Centre for Child Law v Minister of Justice and Constitutional Development and F Others (TPD11214/2008, 4 November 2008): confirmed but...