THE Constitutional Court yesterday ruled that the constitution prohibited minimum sentencing legislation from being applied to children aged 16 and 17.
It declared that sections 51(1) and (2) of the Criminal Law Amendment Act (CLAA) of 1997, as amended by the Criminal Law (Sentencing) Amendment Act of 2007, were inconsistent with the constitution and invalid, to the extent that they applied to persons under 18 years of age at the time they committed offences.
Section 51 of the CLAA established minimum sentences for specified classes of serious offences including murder, rape, fraud and robbery with a firearm.
The act was introduced in May 1998 as a temporary measure for two years but has been extended from time to time.
Before the implementation of the Criminal Law (Sentencing) Amendment Act, the minimum sentencing regime had limited application to children who were under 18 at the time of the offence.
The Centre for Child Law, a law clinic established by the University of Pretoria, applied in the North Gauteng High Court, Pretoria, last year, challenging the sentencing legislation. The high court struck down various provisions of the sentencing act.
In his majority judgment, in which six other judges concurred, Judge Edwin Cameron said the constitution recognised children’s greater physical and psychological vulnerability. The constitution required an individuated judicial response to sentencing that focused on the particular child being sentenced. “We recognise that exacting full moral accountability for a misdeed might be too harsh because they are not yet adults. Hence we afford children some leeway of hope and possibility.
“This is not to say that children do not commit heinous crimes. They do.”
Cameron said the courts, which dealt with child offenders every day, recognised this no less than Parliament.
In his dissenting judgment supported by three other judges, Judge Zak Yacoob said the bill of rights provisions protecting children’s rights would often in itself amount to a substantial and compelling circumstance entitling a sentencing officer to depart from the required minimum sentence in a given case.
“ The harsh, regrettable and undeniable reality is that particularly heinous crimes are committed by children who are 16 and 17 years old. If one has regard to this (as we must), the legislature is justified in reflecting society’s utter outrage,” Yacoob said.