Ruling on juveniles

BEHIND BARS: The act applying minimum sentencing for serious offences to 16- and 17-year-olds has already been successfully challenged in the high court. © Unknown.
BEHIND BARS: The act applying minimum sentencing for serious offences to 16- and 17-year-olds has already been successfully challenged in the high court. © Unknown.

JUDGMENT on whether minimum sentences should be applied to 16 and 17-year-old offenders will be handed down in the constitutional court in Johannesburg tomorrow.

JUDGMENT on whether minimum sentences should be applied to 16 and 17-year-old offenders will be handed down in the constitutional court in Johannesburg tomorrow.

Court registrar, Martie Stander, said yesterday that judgment would be handed down at 10am.

In March the court reserved judgment on the sentencing legislation for offenders aged 16 and 17.

On December 31 2007 the Criminal Law (Sentencing) Amendment Act 38 of 2007 came into operation. It abolished and replaced laws that regulated sentencing of offenders aged 16 and 17 at the time of the offence.

Previously 16 and 17-year-olds were largely exempt from the minimum sentencing provisions that Parliament enacted for serious offences in 1997.

In 2006 the supreme court of appeal (SCA) held that the minimum sentences had a "weighting effect" in determining the appropriate sentence for children aged 16 and 17 - but that a court starts with a "clean slate" in finding the proper sentence.

The 2007 act reversed the SCA approach and instead applies the minimum sentencing regime to 16- and 17-year-olds.

The Centre for Child Law at the University of Pretoria successfully challenged the constitutionality of the new provisions in the Pretoria high court.

It then asked the Constitutional Court to confirm that ruling on the grounds that the minimum sentencing regime makes imprisonment a measure of first resort and not a measure of last resort.

It fails to require that imprisonment be imposed for the shortest possible time; it does not allow the sentencing judicial officer to consider the principles of individuality and proportionality; and in respect of life imprisonment, children aged 16 and 17 are treated the same as adults.

The National Institute for Crime Prevention and the Reintegration of Offenders was admitted as a friend of the court.

Part of their argument was that adolescence is a critical and vulnerable phase for the establishment of a personal identity, and that conditions in prison have a negative effect on character development. - Sapa

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