Centre for Child Law v Minister of Justice and Constitutional Developement and Others (11214/08) [2008] ZAGPHC 341 (4 November 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case number: 11214/08

In the matter between:

CENTRE FOR CHILD LAW APPLICANT

And

MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT FIRST RESPONDENT

MINISTER OF CORRECTIONAL SECOND RESPONDENT

SERVICES

THE LEGAL AID BOARD THIRD RESPONDENT

JUDGMENT

Delivered: 04 November 2008

POTTERILL AJ

The principle issue in this application is whether sections 51(1) and (2), 51(5)(b), 51(6) and 53A(b) of the Criminal Law Amendment Act, Act 105 of 1997, as amended by section 1 of the Criminal Law (Sentencing) Amendment Act,38 of 2007, that came into operation on 31 December 2007 be declared invalid as they are inconsistent with the Constitution. These sections apply the minimum sentence legislation to offenders aged 16 and 17 years of age at the time of the commission of the offence, including retrospective sentencing of this age group.

The averred unconstitutionality lies in a breach of section 28(1)(g) and 28(2) of the Constitution, Act 108 of 1996. Section 28(1)(g) providing that a child “may not be detained except as a last resort…, the child may be detained only for the shortest appropriate period of time..”

Section 28(2) requires that a child’s best interests are of paramount importance in every matter concerning the child. In terms of s 28(3) a child is a person under the age of 18 years. The result of the applicability of the minimum sentencing Act to 16 and 17 years olds are that the principle of last resort and shortest appropriate time of detention is negated for the first

resort and longest time of detention; not in the child’s best interests and ignoring the entrenched Constitutional principles of proportionality and individualisation.

The second and third respondents have filed notices wherein they declare to abide by the court’s decision. The first respondent is opposing the order sought by the applicant on the basis that the amendment to the Act has no unconstitutional effect and the unamended Act, which had the same effect on 16 and 17 year olds, had survived constitutional scrutiny. Furthermore practicality will counter the impact of the amended Act; the nature of the specified offences would in the ordinary course attract imprisonment for the child offenders, but youthfulness would deter life imprisonment.

The fist respondent raised two points in limine, the applicant does not have the required locus standi and further that the applicant’s application is purely academic and without any factual basis, leaving this Court to speculate. A finding on standing is accordingly required.

Locus Standi

As far as locus standi goes the applicant was established by the University of Pretoria and is a Law Clinic registered with the Law Society of the Northern

Provinces. The main objective of the Applicant is to establish and promote child law and uphold the rights of children in South Africa and in particular to use the law and litigation as an instrument to advance such interests. The applicant was authorized by the University of Pretoria to bring this application. The application is brought in the Applicant’s own name in its own interest dedicated to upholding and protecting children’s rights, pursuant to section 38(a) of the Constitution. They also bring the application in terms of section 38(c) of the Constitution on behalf of all 16 and 17 year old children at risk of being sentenced to serve a minimum sentence and in the public interest pursuant to section 38(d) of the Constitution and section 15(2)(c) of the Children’s Act 38 of 2005.

The Respondent relies predominantly on Zantzi v Council of State Ciskei and others 1995(4) SA 615 (CC) for support for its contention that persons with hypothetical or academic interests in the outcome of litigation are precluded from standing in such cases. The applicant must establish a proper interest based on a set of facts. There has to be an infringement of a persons rights.

In deciding the question of locus standi the provisions relied on by the applicant in terms of section 38 must be considered.

The relevant part of Section 38 reads as follows:

“Anyone listed in this section has the right to approach a competent court alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are-

anyone acting in their own interest;

………..

anyone acting as a member of, or in the interest of, a group or class of persons;

anyone acting in the public interest; and

………

In the Zantsi-matter supra on 619 P[7] Chaskalson P finds: “It is not ordinarily desirable for a Court to give rulings in the abstract on issues which are not the subject of controversy and are only of academic interest…”

In Ferreira v Levin NO and Others; Vryenhoek and Others v Powell and Others 1996(1) SA 984 (CC) Chaskalson P qualifies this as follows:

“Whilst it is important that this Court should not be required to deal with abstract or hypothetical issues, and should devote its scarce resources to issues that are properly before it, I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view that we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this Court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled.”

And on p103 P [167]:

“Section 7(4) in dealing with the section 98(2)(a) jurisdiction, provides that were an infringement or threat of the infringement of a constitutional right is alleged, any of the persons referred to in Section 7(4)(b) will have a standing to bring the matter to ‘a competent court of law’ The category of persons empowered to do so is broader than the category of persons who have hitherto been allowed standing in cases where it is alleged that a right has been infringed or threatened, and to that extent the section demonstrates a broad and not a narrow approach to standing.”

These comments would equally apply to the Constitution, Act 108 of 1996.

In South African Association of Personal Injury Lawyers v Heath and Others 2000(1) BCLR 1131 (T) the respondents submitted that the applicant did not have legal standing because it did not allege that any constitutional rights of its members had been infringed and had failed to make the necessary averment in its founding papers in order to establish that the constitutional rights of its members are threatened. The Court refers tot the Ferreira case, supra, wherein the court held “that a witness called to a section 417(2)(b) who genuinely fears prosecution if he or she is called upon to give incriminating answers, can not be said to lack an interest in the decision on the constitutionality of the section. Therefor, even though a criminal prosecution was a mere possibility, the applicants had standing to attack the constitutionality of the said section of the Act.” [p1149 of the South African Ass case, supra., my emphasis]

It is not alleged that a right of a specific child is threatened, but that the rights of all 16 and 17 year old children are threatened in that they are subject to the minimum sentencing regime in terms of the Amended Act thereby negating the clean slate principle of child sentencing in terms of the Constitution. As an organisation dedicated to upholding and protecting children’s rights they have an interest in the matter and it is in the public interest. The applicant has a legitimate, reasonable and in fact undeniable fear that where the Amended Act excludes only children under the age of 16 years, 16 and 17 year olds are subject to the Minimum Sentencing Regime; this is not denied by the respondents. In applying the Minimum Sentencing Regime the clean slate principle as a notional starting point for sentencing child offenders as entrenched by the Constitution may be negated.

The applicant, although not acting on behalf of a specific child within a set of facts, is attacking the Amended Act’s constitutional validity on principle and does not require a set of facts; the facts speak for themselves. The child will be 16 or 17 years old, has committed a serious offence of either rape, robbery or murder and the Presiding Officer will have to start the sentencing process with the minimum sentence prescribed by the Legislature. “ That sentence, which is intended to be a severe and standardised one, may only be departed from if there is weighty justification

therefor (S v Malgas..)” – S v B 2006(1)SACR 311 (SCA) on p317 par 10.

The principle that a 16 or 17 year old will not be sentenced starting with a clean slate, but with life or long term imprisonment is a reality. The applicant need not wait for a child to be sentenced accordingly and then approach a court. The mere possibility that a child will be sentenced contrary to the clean slate principle is an infringement of a right in the Bill of Rights and affords the applicant standing. The applicant does not have a hypothetical or academic interest, but acts in the public interest, on behalf of all 16 and 17 year olds and serving its purpose and objective. The decision would not be academic, applicant has a real and not a hypothetical interest in the decision; the decision would have an effect on all sentencing of children above 16 attracting the minimum sentences.

I am therefore satisfied that the applicant is indeed acting in the public interest, its own interest and on behalf of all children at risk in being sentenced in terms of the minimum sentencing regime and has locus standi to bring this application.

Ad merits

The history and effect of the Act requires setting out to come to an informed decision. Before the Act was amended 16 and 17 years old were included in the ambit of Act, with Section 51(3)(b) of the Act reading as follows:

“If any court referred to in subsection (1) or (2) decides to impose a sentence prescribed in those subsections upon 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.”

From paragraph 4.7 of the first respondent’s opposing affidavit it is evident that the Legislature had the intention to impose minimum sentences on 16 and 17 year olds:

“…it is apparent that it was the Legislature’s intention that discretionary minimum sentences should apply to children aged 16 or 17 years, at the time of the commission of the offence in question, which offences were considered serious crimes by the Legislature and which were specifically stipulated in Schedule 2 to the Act. As indicated above, the Act has been in operation since 1 May 1998, a period of ten years. It is an undisputed fact that the scheduled offences of murder, rape robbery, including crimes against the women and children, are being committed by juvenile offenders.”

The interpretation of section 51(3)(b) however led to much debate and conflicting High Court decisions.

In Direkteur van Openbare Vervolgings, Transvaal v Makwetsja 2004 (2) SACR 1(T) the full bench found on p13 [43]:

“Die feit dat die aantekeninge van die redes waarom die minimum vonnis opgele is, in dieselfde subartikel gemeld word as die verordening dat die bestaan van wesentlike en dwingende versagtende omstandighede aangeteken moet word, dui duidelik daarop dat die Wetgewer beoog het dat die minimum vonnisse ook op kinders tussen die ouderdom van 16 en 18 van toepassing is.”

Contrary to the above van Heerden J in S v Blaaw 2001 (2) SACR 255 finds on p 264 H-I:

“Na my mening is Sloth-Nielsen en Skelton se uitleg van die betekenis en effek van art 51(3)(b) van Wet 105 van 1997 die korrekte een. Dit is in ooreenstemming met die welbekende beginsels van proporsionalitiet en die individualisering van vonnis, veral wat betref die oplegging van vonnis op jeugdige oortreders.”

The Judge accordingly finds that the Court was not obliged in terms of s 51(3)(b) to impose a so-called minimum sentence on a child who at the time of committing the offence was 16 or 17 years old unless the State satisfied the Court that the circumstances justified the imposition of such a sentence.

This was resolved by the SCA in S v B 2006(1) SACR 311 (SCA) as follows:

[22] on p320:” …If the notional starting point for the category of offender envisaged in ss 3(b) is that the minimum prescribed sentence is applicable, as the majority in the Court in the Court a quo and the Full bench in Makwetsja suggest, then imprisonment (the prescribed sentence) would be the first resort for children aged 16 an 17 years in respect of offences covered by the Act, instead of the last resort. It is true that the Full Court in Makwtetsja emphasised that, on its interpretation, the

Legislature sought to make `doubly certain` that the sentencing Court found the prescribed minimum sentence appropriate, and suggested that a Court would `readily` conclude that the youth of an offender between 16 and 18 was in itself a substantial and compelling

circumstance (para [47]. Nevertheless, on the approach of the majority in the Court a quo and of the Transvaal Provincial Division

in Makwetsja, a sentencing Court would be unable to depart from the statutorily prescribed minimum unless the child offender establishes

the existence of substantial and compelling circumstances. To this extent the offender under 18 would be burdened in the same way as an offender over 18. This would infringe the principle that imprisonment as a sentencing option should be used for child offenders as a last resort and only for the shortest appropriate period of time (see V v United Kingdom [1999] ECHR 171; 30 EHRR 121 para 118). It would also conflict with the by now well-established sentencing principles of proportionality and individualisation (see S v Kwalase at 139e-I; V v United Kingdom paras 123 and 126.”

On p321 paragraph [24]: “To summarise:

The legislative scheme entails that the fact that an offender is under 18 although over 16 at the time of the offence automatically confers a discretion on the sentencing Court which is, without more free to depart from the prescribed minimum sentence.

In consequence, the sentencing Court is generally free to apply the usual sentencing criteria in deciding on an appropriate sentence.

The offender under 18 though over 16 does not have to establish the existence of substantial and compelling circumstances because s 51(3)(a) finds no application to him or her.

By contrast with the class of offender under 16, however, the statutory scheme requires that the sentencing Court should take into account the fact that the Legislature has ordinarily ordained the prescribed sentences for the offenders in question. This operates as a weighting factor in the sentencing process.

It follows on this approach that where the provisions of s 51(2) apply, the regional court retains its competence to finalise the matter contrary to the conclusion in Makwetsja.”

The respondent’s response to this SCA-decision is found in paragraph 4.9 of the opposing affidavit:

“Even though the SCA clearly departed from the stated intention of the Legislature, in reference to the application of discretionary minimum sentences to children aged 16 and 17years, it nevertheless still held that a court “may decide in the exercise of its sentencing discretion to impose the minimum sentence prescribed by section 51(2) for an offence of the kind specified in Schedule 2. In addition, the SCA also held that “the statutory scheme requires that the sentencing court should take into account the fact that the legislature has ordinarily ordained the prescribed sentences for the offences in question.”

[The very next sentence was not quoted] “This operates as weighting factor in the sentencing process.”

The Act is then amended and Section 51 of the Amended Act reads as follows:

“Discretionary minimum sentences for certain serious offences:

Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life.

Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in-

Part 11 of Schedule 2, in the case of-

a first offender, to imprisonment for a period not less than 15 years;

a second offender of any such offence, to imprisonment for a period not less than 20 years; and

a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years;

Part 111 of Schedule 2, in the case of-

a first offender, to imprisonment for a period not less than 10 years;

a second offender of any such offence, to imprisonment for a period not less than 15 years; and

a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years; and

Part IV of Schedule 2, in the case of-

a first offender, to imprisonment for a period not less than 5 years;

a second offender of any such offence, to imprisonment for a period not less than 7 years; and

a third or subsequent offender of any such offence, to imprisonment for a period not less than 10 years;…

If any court referred to in subsection (1) or (2) 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 must thereupon impose such lesser sentence..

Subject to paragraph (b), the operation of a minimum sentence imposed in terms of this section shall not be suspended as contemplated in section 297 (4) of the Criminal Procedure Act, 1977 (Act 51 of 1977

Not more than half of a minimum sentence imposed in terms of subsection (2) may be suspended as contemplated in section 297(4) of the Criminal Procedure Act,1977, if the accused person 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..

This section does not apply in respect of an accused person who was under the age of 16 years at the time of the commission of an offence contemplated in subsection (1) or (2).”

Insightful is the Minister’s explanation of the Amended Act as set out in paragraph 6.2 of the opposing affidavit:

“It is clear that the Amendment Act did not amend the application of the Act in as far as children under the age of 16 at the time of the commission of the offences in question are concerned. Section 51(6) still stipulates that the Act does not apply to children under the age of 16 at the time of the commission of the offence. The Amendment Act did, once again, confirm, in line with the Legislature’s initial intention with the introduction of discretionary minimum sentences nearly ten years ago, that discretionary minimum sentences could be applied to children aged 16 or 17 years at the time of the commission of the offence contemplated in section 51(1) or 51(2). In order to clarify this position it was decided to delete section 51(3)(b), which seemed to have caused confusion as to the application of discretionary minimum sentences to children aged 16 or 17 at the time of the commission of the stipulated offences.”[my emphasis]

Upon a reading of the Amended Act the first respondent has succeeded in their goal to apply the minimum sentencing regime to 16 and 17 year olds. Mr Hussain for the first respondent conceded that if the application of minimum sentences to these children negated the clean slate principle the Amendments affected would be unconstitutional. He however contended that the clean slate principle was not negated due to the practical effect of the Amended Act, the fact that the Act had survived constitutional scrutiny and that the Amended Act considered as a whole, especially section 51(5)(b) clearly contemplates that juveniles are to be treated differently.

As far as surviving previous constitutional scrutiny is concerned the first respondent argues that in S v Dodo [2001] ZACC 16; 2001 (3) SA 382(CC) and S v Malgas 2001(2) SA 1222 (SCA) both the Constitutional Court and Supreme Court of Appeal gave detailed consideration to the effect of the minimum sentencing regime. In S v Dodo, supra, section 51(1) of the Act was pertinently found to be constitutionally valid. The respondent reasons that the deletion of section 51(3) changed nothing and the Amended Act is equally constitutionally valid. The step- by –step minimum sentencing

procedure set out in S v Dodo (supra) equally applies to the Amended Act and to the sentencing of juvenile offenders.

I can not agree with the above submission because although the Constitutional Court found s51(1) read with s 51(3)(a) to be constitutionally valid it was balanced against ss 12(1)(e) and 35(3)(c) of the Constitution. The Applicant is not averring that children are punished in a cruel, inhumane manner or degrading manner. In fact the sentencing of juveniles was expressly excluded;” Subsections (3)(b) and (6) are not presently relevant.”-S v Dodo p388 G.

The step- by- step sentencing procedure as set out in S v Malgas [supra] confirmed in S v Dodo is referred to in S v B [supra] on p 317:

[10-12] “for adult offenders the starting point is the minimum sentence prescribed by the Legislature. That sentence, which is intended to be a severe and standardised one, may only be departed from if there is weighty justification therefore…It is for an adult offender to establish that substantial and compelling circumstances exist.”

However it is entrenched principle that:

“[11] For child offenders between the ages of 16 and 18, the sentencing court starts with a clean slate. Subject to the weighting effect of the statutorily prescribed minimum sentences, the sentencing court is free to impose such

sentence as it would ordinarily have imposed. …That a discretion to impose the minimum sentence does indeed exist is clear from the use of the words ‘decides’ and ‘decision’ in s51(3)(b)…..It follows that the ‘substantial and compelling’ formula finds no application to offenders between 16 and 18. A court is therefore generally free to apply the usual sentencing criteria in deciding on an appropriate sentence for a child between the age of 16 and 18….

[22] This background reinforces the interpretation given to s 51(3)(b) above. If the notional starting point for the category of offender

envisaged in ss 3(b) is that the minimum prescribed sentence is applicable, as the majority in the Court a quo and the Full Bench in Makwetsja suggest, then imprisonment (the prescribed sentence) would be the first resort for children aged 16 and 17 years in respect of offences covered by the Act, instead of the last resort.” [my emphasis]

The Supreme Court of Appeal has upon interpretation of s51(3)(b) of the Act confirmed the entrenched principle that in sentencing children one must start with a clean slate. The deletion of s51(3)(b) 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.

On behalf of the first respondent its approach to the clean slate principle was argued as set out in paragraph 38 of its heads of argument: “In particular the “clean-slate” approach in S v B, favoured by the applicant, can still be applied to the Amendment Act. There can be no reason in logic or in law as to why this is not the case. Although a judicial officer is expected to ordinarily consider life imprisonment, this does not mean that he has no discretion to consider other options. In the case of a juvenile offender, this fact alone triggers his/her discretion. S v B is not authority for the proposition that the Amendment Act infringes sections 28(1)(g) and 28(2) of the Constitution. “

This argument is tantamount to the finding of the full bench in the Makwetja case which was rejected by the SCA in S v B which I have to follow, and willingly do.

Although I have been referred to many authorities, research, articles international conventions and comparative law pertaining to sentencing of children I do not find it necessary to deal with it as the principle of clean slate and imprisonment as a last resort in sentencing of children has not been put in dispute by the first respondent. Furthermore the principles of child sentencing based on comparative law, various international instruments, case-law and the principles contained in the Constitution were referred to, discussed and confirmed in S v B [paragraphs 13 – 21.]

The respondent spent much of his argument on the practical effect of the Amended Act and that because these juveniles have committed grave offences imprisonment would invariable be the only appropriate sentence. The youthfulness of the juvenile would however always be a factor to deter life imprisonment and life imprisonment is therefore not a practical result of the Amended Act. This proposition is flawed in the face of S v B where a 17 year old was sentenced to life imprisonment. Regional Magistrates can in terms of the Amended Act also for the first time sentence to life imprisonment and in terms of the Amended Act could impose such sentences on 16 and 17 year old juveniles. The respondent gives the example of a 16 year old who murders or indulges in gang rape who can not possibly be considered for a sentencing option other than long term imprisonment. “An argument as whether or not this is an option of first or last resort is purely academic.”[paragraph 38.2 of the first respondent’s heads of argument.]

This approach is incorrect, with a clean slate approach the Court has many sentencing options to consider, although imprisonment is conceivable it is an option of last resort, but with the Amended Act the Court must start with the minimum sentence of life imprisonment or long term imprisonment as an option of first resort and then look to compelling and substantial circumstances and

proportionality. The result will not always be the same and is not purely academic. The Amended Act must adhere to the principles

enshrined in the Constitution and as aptly set out in S v B on p319 [18]:

“The principle that detention is a matter of last resort (and for the shortest appropriate period of time) is the leitmotif of juvenile justice reform. Those principles are articulated in international law and are enshrined in s28(1)(g) of the Constitution which reads:

‘{E}very 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..”

Secondly this argument of the first respondent is once again tantamount to the court’s finding in the Makwetsja-matter, and was overruled by the SCA in S v B.

The respondent lastly submitted that the Act does distinguish juveniles from adult offenders and gives effect to the principle that children should only be imprisoned for the shortest period possible in that, the Amended Act provides that a sentence in terms of section 51(2) for a child of 16 and 17 may up to half thereof be suspended, excluding life imprisonment. The court may

also take into account the time that an accused person was incarcerated as an awaiting trial prisoner. The provisions of parole

may also reduce the incarceration. The nett result is that a juvenile offender will be subjected to detention for the shortest

period of time.

To apply as a first resort the minimum sentences and then as a last resort suspend up to half of the sentence is working from the incorrect premise, not from a clean slate. The Act furthermore excludes suspension of life imprisonment. The fact that the court may take into account the time an accused person was incarcerated as an awaiting trial prisoner is not something new, judicial officers have taken cognisance of this factor for many years see: S v Stephen and Another 1994(2) SACR 163(W) and S v Brophy 2007(2) SACR 56. One would hope that juveniles are not awaiting trial in prison, but only as a last resort with no other option. This does not ensure the adherence to the principle of detention for the shortest period. The fact that parole may reduce incarceration is not a factor to consider when sentencing, in fact it is inappropriate, S v S 1987(2) AD

It will be quite simple to bring the Amended Act within the principles of juvenile sentencing as set out in the Constitution. The minimum sentencing regime should not be applicable to all children, i.e. all persons under 18 years. If a child of 16 or 17 commits a gruesome crime imprisonment as a last resort would arguably be the appropriate sentence, just as the respondent has

repeatedly argued, but it will be from the correct notional point. The respondents fear that those aged 16 and 17 will be treated

lightly for serious offences undermining confidence in the criminal justice system with the undesirable consequence of communities

taking the law into their own hands is on their own argument, imprisonment is a fait accompli, untenable.

Section 53A of the Amended Act provides as follows:

“If a regional court has, prior to the date of the commencement of the Criminal Law (Sentencing) Amendment Act ,2007-

committed an accused for sentence by a High Court under this Act, the High Court must dispose of the matter as if the Criminal Law(sentencing) Amendment Act, 2007, had not been passed; or

not committed an accused for sentence by a High Court under this Act, then the regional court must dispose of the matter in terms of this Act, as amended by the Criminal Law (Sentencing) Amendment Act, 2007.

The effect of section 53(A) is that from 31 December 2007 all sentences and disposal of matters in the Regional Court must take place in accordance with the Amended Act.

The Applicant avers that the retrospective effect of this section affects substantive rights and thus violates the rule of law. Prior to the commencement of the Act children would have gone though a trial with the approach of S v B in mind, now without warning they are confronted with a prescribed minimum sentencing regime. In addition to the violation of rule of law and children’s general right to a fair trial, the fact that prescribed minimum sentences are retrospectively applicable to children is a direct violation of section 35(3)(n) of the Constitution.

The respondent in its opposing affidavit avers that the same minimum sentencing regime applied equally before and after the amendment, even after the SCA- ruling. There is accordingly no prejudice to young offenders by the immediate application of section 53(A)(b) of the Act to their pending cases. The purpose of this transitional section is to curb the cumbersome process of referral to the High Court.

In view of the S v B I can not agree that the sentencing regime pertaining to 16 and 17 year olds is the same in terms of the Act and the Amended Act. Although the transitional section’s aim is procedural it does substantively affect the rights of 16 and 17 year olds. In S v Makutu [2007] 1 ALL SA 470 SCA on p473 paragraph 7 Lewis JA finds:

“As a general rule, where the State charges an accused with an offence governed by section 51(1) of the Act…, it should state this in the indictment. This rule is clearly neither absolute nor inflexible. However, an accused faced with life imprisonment- the most serious sentence that can be imposed- must from the outset know what the implications and consequences of the charge are. Such knowledge inevitably dictates decisions made by an accused, such as whether to conduct his or her own defence; whether to apply for legal aid; whether to testify; what witnesses to call and any other factor that may affect his or her right to a fair trial.”

Juveniles of 16 and 17 in reliance on S v B would have not entertained the application of the minimum sentencing regime on them and in the words of Mokgoro J in Veldman v Director of Public Prosecutions, WLD 2007 (3) SA 210 CC on p228 E”

“The unfairness of the trial is furthermore not assessed with regard to the proportionality between the seriousness of the offence and the severity of the sentence imposed. The unfairness is founded in the retropsectvie application of legislation, rendering the sentence imposed by the sentence unauthorized and a violation of the rule of law .That, in turn, violates the applicant’s rights to a fair trial under s35(3) of the Constitution.”

The respondent submitted that if I find that s 51 of the Amended Act is constitutionally invalid, then the retrospectivety issue need not to be decided.

The retrospectively is thus unfair and against the rule of law. As I have found s51 constitutionally invalid further amplification of this is unnecessary.

In the premises, the following order is made:

It is declared that ss 51(1),51(2), 51(6),51(5(b) and 53(A)(b) of the Criminal Law Ammendment Act, Act 105 of 1997, as amended by section1 of the Criminal Law Amendment Act, 38 of 2007 are

inconsistent with section 28(1)(g) and 28(2) of the Constitution.

Prayers 5,6 and 7 are postponed sine die.

The order in paragraph 1 is referred to the Constitutional Court for confirmation in terms of s 172(2)(a) of the Constitution.

Costs reserved.

S Potterill Acting Judge of the High Court.

For Applicants: Advocates: Steven Budlender Ann Skelton. Attorneys on record: Carina du Toit Centre for Child Law Room 4-31 Law Building Ring Road University of Pretoria Pretoria 0002 For 1st and 2nd Respondents Advocates: Ismail Hussain SC Pieter Bezuidenhout Sivhaga Netshitomboni Attorneys on record: B. E. Mthimunye The State Attorney 8th Floor Bothongo Heights 167 Andries Street Pretoria 0002