Youth, competence and punishment : reflections on South Africa's minimum sentencing regime for juvenile offenders

• DOI: 10.10520/EJC153208
• Published date: 01 January 2011
• Date: 01 January 2011
• Pages: 229-255
• Author: Admark Moyo

Youth, competence and punishment:

Reflections on South Africa’s minimum

sentencing regime for juvenile offenders

Admark Moyo

*

1 Introduction

Is the honeymoon over for the minimum sentencing regime for juveniles in trouble

with the law? The answer must be in the affirmative. This follows the Centre for

Child Law’s successful application (to the Constitutional Court) for confirmation

of the High Court’s declaration that the Criminal Law Amendment Act 105 of 1997

(CLAA) is, to the extent it codifies the changes inserted into it by the Criminal Law

(Sentencing) Amendment Act 38 of 2007 (the Amendment Act), unconstitutional.

Minimum sentencing for certain serious offences first found its way into South

African law through section 51 of the CLAA.

1

Minimum sentencing was introduced

on 1998-05-01 as a stop-gap measure for two years, but was repeatedly extended

thereafter until the Amendment Act made it permanent. Before the Amendment

Act, minimum sentences could be imposed on adults and children under parts (of

section 51(3)) that were more different in form than substance.

2

The Amendment

*

LLB (University of Fort Hare, South Africa); LLM (University of Cape Town, South Africa); PhD

Candidate (University of Cape Town); Yale Fox International Fellow (Yale University, United States of

America). I am grateful to the anonymous reviewer of SA Public Law for his or her instructive

comments on the first draft of this article. My thanks also go to Advocate Aifheli Tshivhase (UCT) who

sacrificed time to provide feedback on the earlier version of the article during our year-long visit to Yale;

to the Fox International Fellowship Programme and the Fox Family for providing me with the financial,

moral and other support which made the development and completion of this article possible.

1

The offences listed in Schedule 2 of the CLAA include robbery, rape and murder committed under

aggravating circumstances; trafficking in persons for sexual exploitation; sexual exploitation of

children or mentally challenged persons; possession of or dealing in drugs and other dependence

producing circumstances; crimes involving dishonesty as an element (forgery for example);

possession of dangerous weapons; theft; treason and sedition.

2

Before the Amendment Act, s 51(3) read:

(a) If any court...is satisfied that substantial and compelling circumstances exist which justify the imposition

of a lesser sentence than the sentence prescribed in those subsections, it shall enter those

circumstances on the record of the proceedings and may thereupon impose such lesser sentence.

(2011) 26 SAPL230

Act deleted part (b) of section 51(3) of the CLAA; with the result that the

sentencing court – under what used to be part (a) – had to be convinced that

‘compelling and substantial circumstances’ existed to justify the imposition on 16

and 17 year olds of a sentence lesser than the prescribed minimum. However, the

statute also changed its language from ‘minimum sentences’ to ‘discretionary

minimum sentences’.

The Centre for Child Law made an application to the High Court to challenge

the constitutional validity of the Amendment Act to the extent that it subjected 16

and 17 year olds to discretionary minimum sentences. In Centre for Child Law v

Minister for Justice and Constitutional Development,

3

the High Court held that ‘the

Amendment has left Courts in applying the minimum sentencing regime with no

discretion but to start with the minimum sentence, clearly not a clean slate, but

imprisonment as a first resort’

4

and declared minimum sentencing unconstitutional

in respect of juvenile offenders. Accordingly, the application by the Centre for

Child Law referred to above was to have the declaration of statutory invalidity

confirmed by the Constitutional Court. In Centre for Child Law v Minister of

Constitutional Development (Centre for Child Law),

5

the Constitutional Court (the

Court) was called upon to determine whether the Amendment was inconsistent

with section 28 of the Constitution, particularly the provision which states that

‘every child has the right not to be detained except as a measure of last resort, in

which case ... the child may be detained only for the shortest appropriate period

of time’.

6

Cameron J, for the majority, held that adolescents should be exempt from the

‘full rigour of adult punishments’ because they are more vulnerable, still

developing into mature beings, can easily be influenced by others, have more

potential than adults to change their criminal behaviour and have a morally better

claim to be forgiven than adults.

7

The Court further held that ‘last resort’ literally

means ‘last resort’, not first or intermediate resort (as if ‘resorts’ can be physically

counted) and that ‘shortest appropriate period of time’ means imprisonment

should be imposed only when it is the ‘sole appropriate option’.

8

Consequently,

the minimum sentencing statute unconstitutionally bound courts to impose

consistently higher sentences because it (a) orientated courts, from the outset of

the sentencing process, away from options other than imprisonment, (b) de-

individuated sentencing by prescribing as a ‘starting point’ the period for which

(b) If any court ... decides to impose a prescribed sentence ... on a child who was 16 years of age or older

but under the age of 18 years, at the time of the commission of the ... offence in question, it shall enter

the reasons for its decision on the record of the proceedings.

3

Case no 11214/08.

4

Paragraph 9.

5

Case CCT 98/08 [2009] ZACC 18.

6

Section 28(1)(g) of the Constitution of the Republic of South Africa 1996.

7

Paragraphs 28-38.

8

Paragraphs 31-32.