Sentencing the erstwhile child: Imprisonment and committal to a child and youth care centre

• Jurisdiction: South Africa
• Date: 24 May 2019
• Citation: (2017) 30 SACJ 299
• Published date: 24 May 2019
• Author: Vuyokazi Noncembu
• Pages: 299-315

Sentencing the erstwhile child:

Imprisonment and committal to a

child and youth care centre

VUYOKAZI NONCEMBU*

ABSTRACT

The Child Justice Act 75 of 20 08 has brought new changes and much needed

clarity in the pr osecution of children, partic ularly on sentencing. It inter alia

provides a framework of sentencing objec tives and principles applicable to

children. It speci cally provides that impr isonment must be util ised only as

a measure of last resor t and for the shortest appropriate period of time. Thi s

article explores the sentenci ng of young offenders (erstwhile child ren) who

attain majorit y status before the conclusion of thei r trials, wit h a special

focus on imprisonment and com mittal to a ch ild and youth care centre

as sentencing options. Relevant legislative provision s are interrogated. T he

conclusion is that the Act does not provide su fcient guidance for sentencing

the aforementioned offenders. The re commendation is that ch ildren who

attain majorit y status before na lisation of their mat ters should be dealt

with as children u ntil the conclusion of their trials, including t he sentencing

stage. The author notes that th is may have an impact on the tu rnaround

time for nalisation of m atters and thus submit s that the concession should

be limited to the age of 21 years. Review of legi slation to give certaint y and

uniformit y in dealing with t hese offenders is suggested.

1 Introduction

The Child Justice Act 75 of 2008 (herei nafter referred to as the Act)

which came into operation in 2010 broke new ground in the sentencing

of child offenders in South Af rica.1 In line with internationa l and

regional in strumen ts2 and the Constitution of the Republic of South

Africa, 1996 (hereinaf ter the Constitution), the Act denes a child

as a person below the age of 18 years, contrary to the previous

dispensation where a juvenile was regarded as a person below 21

years of age.3 The Act fur ther denes a child as a pe rson 18 years and

below but up to 21 years in certain circumsta nces; a new innovation

* BA LAW LLB (UWC), Regional Magis trate, Verulam, KwaZulu-Natal.

1 For purpos es of this ar ticle the author uses the te rm ‘child offenders’ to r efer to

offenders below 18 years of age and ‘you ng offenders’ to those between the ages of

18 and 21 years.

2 The Unit ed Nations Convention on the Rights of the Ch ild, 1989; the African Cha rter

on the Rights and Welfare o f the Child 1990.

3 Sect ion 1 of the Child Justic e Act 75 of 2008.

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(2017) 30 SACJ 299

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which did not exist before the Act came into operation.4 A key feature

of the Act and a game changer in the sentencing of child of fenders

is that in line with the Con stitution, the Act specical ly provides that

imprisonment should only be used as a measu re of last resort and

for the shortest appropriate period of time. The Act however is not

clear on the position of a child who attains t he age of 18 years (the

erstwhile child) before the  nalisation of their tr ial when it comes to

the sentencing proceedings. There is also very l ittle academic comment

in this regard. Th is article exami nes these shortcomings in an attempt

to show how cumulatively they negatively affect young offenders, and

makes recommendations on how this situation can be re medied in

practice.

Part one of the article wil l explore the background and the

underlying international and regional i nstruments to the Act. I n part

two the author will interrogate s 4 of the Act wh ich provides for its

application. The relevant provisions of the Children’s Act and applicable

policies that deal with sentencing, with a special focu s on young

offenders; as well as imprisonment and detention at child and youth

care centres as sentencing options will a lso be interrogated. Decided

cases dealing with these asp ects will also b e explored. Part three wil l

explore the criminal capacit y of the child and young offenders in the

context of their brain development and recent neurological research.

A comparative review of other jurisdictions w ill be undertaken in p art

four, and in conclusion, recommendations for the review of policy and

legislation will be made.

2 Background

Up until the enactment of the Chi ld Justice Act there was no specic

legislative system for dealing with child offenders in South A frica,

with the result that they were dealt with under t he same regime as

adult offenders, governed by the Criminal Procedure Ac t.5 At most,

their age was used as a mitigating factor duri ng the sentencing

proceedings which was largely left to the discretion of t he presiding

judicial of cer.6 With South Africa becom ing a party to inter national

4 Where t he child is dealt with in terms of s 4(2) of the Ch ild Justice Act 75 of 200 8.

5 Crim inal Procedu re Act 51 of 1977, which guides all crim inal prosec utions in the

Republic.

6 See S v Mohloba ne 1969 (1) SA 561 (A) at 565C-E (a court will generally not pu nish

an immatur e young person as severely as it wou ld an adult, although the e xtent

of mitigation would depend o n the circums tances of each case); S v Mjikwa 19 93

(1) SACR 507 (A) at 512e (in this matter a lthough youth was viewed as a s trongly

mitigating factor, the deat h penalty was conrmed becaus e of aggravating factor s);

S v Lengane 1990 (1) SACR 214 (A) at 219i-ff (youth is mitigati ng even if actions are

not solely attributable to yout h).

300 SACJ . (2017) 3

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