Mpofu v Minister for Justice and Constitutional Development

• Jurisdiction: South Africa
• Citation: 2013 (2) SACR 407 (CC)

Mpofu v Minister for Justice and Constitutional Development
2013 (2) SACR 407 (CC)

2013 (2) SACR p407

Citation	2013 (2) SACR 407 (CC)
Case No	CCT 124/11; [2013] ZACC 15
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Van Der Westhuizen J, Yacoob J and Zondo J
Heard	November 29, 2012
Judgment	June 6, 2013
Counsel	W Vermeulen SC and Y Alli for the applicant at the request of the court.; C Britz and D Dakana for the respondent.; A Skelton for the Centre for Child Law.

Flynote : Sleutelwoorde

Appeal — To Constitutional Court — Application for leave to appeal and condonation — Against sentence — Application based on allegation that C applicant a child when sentenced to life imprisonment some 10 years earlier — Factual basis for allegation not established — Not in interests of justice that matter be heard.

Headnote : Kopnota

The applicant was convicted in the high court in 2001 of murder and other serious offences committed in January 1998. He was sentenced to life D imprisonment for the murder as well as to 28 years' imprisonment for the other offences, to run concurrently with the life sentence. At the time of the present application he had served 13 years of his sentence. Applications to the high court and the Supreme Court of Appeal for leave to appeal against the sentence were dismissed in November 2004 and August 2006, respectively. He had applied for leave to appeal on the grounds that the high court had failed to take into account that he was underage, amongst other things. E In 2008 he approached the Constitutional Court with an application for leave to appeal on the basis that the presiding judge was not impartial and had violated his constitutional right to a fair trial. The application for condonation of the late filing of papers and the application for leave were dismissed. In 2009 he again approached the Constitutional Court on the basis that his right of access to information, his right of appeal and his right F to a fair trial had been infringed. This application was also dismissed, in both cases the court stating in short reasons that it was 'not in the interests of justice' to hear the matter. In the present matter the applicant applied for leave to appeal against his sentence and submitted that the high court had not given due consideration to his age at the time of the commission of the offence and he relied in this regard on s 28(1)(g) of the Constitution, which provided that a child could only be imprisoned as a matter of last resort and G for the shortest possible time.

Held, per Skweyiya J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Yacoob J and Zondo J concurring) (Van der Westhuizen J, Khampepe J and Nkabinde J dissenting), that leave to appeal to the Constitutional Court should be granted only when two conditions were H met: the application had to raise a constitutional matter or an issue connected with a decision on a constitutional matter, and the interests of justice had to favour the grant of leave. The application of a right, and adherence to the dictates of s 28 of the Constitution when sentencing a child, was clearly a constitutional issue and if the applicant's claim were true then a constitutional failure had arisen in the present case. (Paragraph [60] at 423c–e.) I

Held, further, that the applicant had failed to establish that the right in s 28 was engaged at all: this could only be determined by resolving the factual dispute as to the applicant's age. There was nothing in the high court judgment that showed that the applicant had been represented to the court on the basis that he was a child at the time of the offences and it was difficult to accept that, if he had in fact been a child, it would not have been revealed J

2013 (2) SACR p408

A to the court. It was widely known as a highly relevant mitigating factor in sentencing and it was difficult to accept that the high court judgment would have made no mention of his minority if it had been revealed to it, especially given the centrality that minority occupies in the sentencing enquiry. (Paragraph [66] at 424e–f.)

Held, further, that, as it was not clear what the high court had found in respect B of the applicant's age, the court was unable to determine whether it had misdirected itself by failing to take account of it. Accordingly, the application lacked prospects of success because no misdirection could be established on the facts that could support an allegation that he did not have a fair trial. This militated strongly against it being in the interests of justice to C grant leave to appeal. (Paragraph [67] at 424g–h.)

Held, further, that the interests of justice in granting the applicant's application were weakened by his failure to act timeously in bringing it. It had taken 10 years for the matter to be brought to the court and the passage of this significant length of time had impacted on the possibility of establishing reliable evidence as to the facts on which his case rested. The interests of D justice therefore did not favour reopening his case. The application was dismissed. (Paragraph [69] at 425a–b.)

Cases cited

E Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A): referred to

eThekwini Municipality v Ingonyama Trust 2013 (5) BCLR 497 (CC) ([2013] ZACC 7): dicta in para [28] applied

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A): dictum at 835F – G applied

F Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC) (2007 (3) BCLR 219; [2006] ZACC 24): referred to

Fraser v Naude and Others 1999 (1) SA 1 (CC) (1998 (11) BCLR 1357; [1998] ZACC 13): referred to

Kotze v Kotze 2003 (3) SA 628 (T): referred to

G R v Kriel 1939 CPD 221: dicta at 222 applied

S v Bogaards 2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23): referred to

S v Khumalo 2009 (1) SACR 503 (T): dictum at 505f – h applied

S v Ndlovu and Others (GSJ case No 12/99): considered

H S v Pillay 1977 (4) SA 531 (A): referred to.

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996 s 28(1)(g): see Juta's Statutes of South Africa 2012/13 vol 1 at 1-29.

Case Information

W Vermeulen SC and Y Alli for the applicant at the request of the court. I

C Britz and D Dakana for the respondent.

A Skelton for the Centre for Child Law.

Application for leave to appeal against a conviction for murder and sentence of life imprisonment in the South Gauteng High Court, J Johannesburg. The facts appear from the reasons for judgment.

2013 (2) SACR p409

Order A

The applications for condonation and leave to appeal are dismissed.

Judgment

Van der Westhuizen J (Khampepe J and Nkabinde J concurring) (dissenting judgment):

Introduction B

[1] Children [1] are a particularly vulnerable group in our society, deserving of protection. Yet, heinous crimes are sometimes committed by teenage offenders. The sentencing of child offenders is thus an important issue. This area of law has developed significantly in recent years under s 28 of the Constitution, which states the best interests of the child as a C guiding principle, [2] as well as that every child has the right not to be detained, except as a measure of last resort and only for the shortest period of time. [3] The impact of the enactment of the Child Justice Act [4] promulgated in 2008 is also significant.

[2] This matter is an application for leave to appeal against a judgment D of the South Gauteng High Court, Johannesburg (high court). The applicant, Mr Mandla Trust Mpofu, asks this court to set aside the sentence of life imprisonment imposed by the high court. He argues that he was a child at the time the crime was committed and that this was not taken into consideration when he was sentenced. The application is E opposed by the Director of Public Prosecutions of the South Gauteng High Court (DPP). The Centre for Child Law was admitted as a friend of the court (amicus curiae).

[3] It is trite that sentences may be interfered with on appeal only if the sentencing court misdirected itself, or if the sentence is shockingly F inappropriate. The main question would be whether the sentencing of Mr Mpofu by the high court constitutes a misdirection. In order to determine this, however, some clarity is needed as to how old he actually was at the time of the commission of the offences, what his age was in the opinion of the high court and whether the high court adequately dealt with his youthfulness in the sentencing process. If it is indeed found that G

2013 (2) SACR p410

Van der Westhuizen J (Khampepe J and Nkabinde J concurring) (dissenting judgment)

A a misdirection occurred, or that a shockingly inappropriate sentence was imposed, the question would arise whether this court should set aside the sentence and replace it with another. However, the very first issue to consider is whether it is in the interests of justice to grant leave to appeal, given the circumstances of this case.

Background B

[4] In 2001 Mr Mpofu — with other accused — was convicted in the high court of murder and other serious offences, committed in January 1998. On 25 September 2001 he was sentenced to life imprisonment for the C murder, as well as to 28 years' imprisonment for the other offences, to run concurrently with the life term. Apparently he has served 13 years of his sentence.

[5] Applications by Mr Mpofu for leave to appeal against his sentence to the high court and the Supreme Court of Appeal were dismissed on D 16 November 2004 and 17 August 2006, respectively. He applied on the ground that the high court had failed to take into account that he was underage, amongst other things. [5]

[6] In 2008 he approached this court with an application...