Court/Judicial body: Constitutional Court of South Africa
Citation:  ZACC 18
Date: 15 July 2009
Instrument(s) cited: Constitution of South Africa, Chapter II – Bill of Rights, Section 28: Children Criminal Law (Amendment) Act 1997 Criminal Law (Sentencing) Amendment Act 2007
Background: The Criminal Law (Sentencing) Amendment Act 2007 (“the 2007 Act”) sets out minimum sentences applicable to 16 and 17 year olds for certain serious crimes. It replaced the minimum sentencing regime established by the Criminal Law (Amendment) Act 1997 (“CLAA”), which had limited application to children who were under 18 at the time of the offence. The Centre for Child Law at the University of Pretoria challenged the 2007 Act as unconstitutional, relying on Section 28 of the Bill of Rights provides for the right of every child not to be detained except as a measure of last resort and only for the shortest appropriate period of time. The High Court ruled in their favour and granted an order of constitutional invalidity declaring various provisions of the CLAA as amended by the 2007 Act, invalid as they were inconsistent with Section 28 of the Bill of Rights. The High Court referred its decision to the Constitutional Court for confirmation.
Issue and resolution: Mandatory minimum sentences for children. The main issue before the Constitutional Court was whether the Amendment Act which sets out mandatory minimum sentences applicable to 16 and 17 year olds for certain serious crimes was in breach of Section 28 of the Bill of Rights. The Constitutional Court agreed with the High Court and ruled the relevant provisions of the 2007 Act invalid.
Court reasoning: The majority in the Constitutional Court agreed with the High Court’s reasoning that the effect of the 2007 Act is to impose the minimum sentencing regime on 16 and 17 year old offenders in certain categories, resulting in tougher sentences for them. The Court stated that Section 28(1)(g) of the Bill of Rights 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”. It held that the mandatory minimum sentencing provisions constrain its discretion in the sentencing process, thereby diminishing its power of individuation. It therefore constitutes an unconstitutional violation of the rights of the children at issue.
Notes: For more information on the issue of inhuman sentencing of children, including a selection of case law, please see CRIN’s ‘Inhuman sentencing’ campaign.
Link to full judgement: http://www.saflii.org/za/cases/ZACC/2009/18.html