Kekana v The State (498/2015) [2015] ZASCA 194 (1 December 2015)

Kekana v The State (498/2015) [2015] ZASCA 194 (1 December 2015)

The Supreme Court of Appeal found that both the trial and full courts materially misdirected themselves by sentencing the appellant as if he had already attained the age of eighteen at the time of the offences. The appellant was 17 years and 10 months old and should have been sentenced in terms of section 51(1) read with section 51(3)(b) of the Criminal Law Amendment Act, which applies to children between 16 and 18. The courts failed to consider the constitutional requirement to treat youthfulness as a mitigating factor and to focus on rehabilitation and the best interests of the child. The seriousness of the offences was acknowledged, but the appellant's age and the time spent in custody...

Citation
[2015] ZASCA 194
Parties
Appellant: Bushy Vincent Kekana; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2015
Case Number
498/2015
Procedural Posture
Criminal Appeal / Appeal From Full Court of Gauteng Division of the High Court
Outcome
Appeal upheld; sentences of life imprisonment set aside and substituted with 20 years' imprisonment for both murder counts, with other sentences to run concurrently.
Judges
Navsa, Cachalia, Shongwe, Tshiqi, Dambuza
Legal Topics
Sentencing of Child Offenders, Criminal Law Amendment Act, Life Imprisonment, Mitigation of Sentence, Constitutional Rights of Children
Criminal Law Sentencing of Child Offenders Criminal Law Amendment Act Life Imprisonment Mitigation of Sentence Constitutional Rights of Children

Case Brief

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Parties

Bushy Vincent Kekana

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Full Court of Gauteng Division of the High Court

Legal Issues

  1. 1 Whether the trial and full courts materially misdirected themselves by sentencing the appellant as if he was 18 years old at the time of the offence.
  2. 2 Whether the effective life sentence imposed on the appellant, who was under 18 at the time of the offence, should be set aside and substituted with a lesser sentence.
  3. 3 What is the appropriate sentence for a child offender convicted of murder under the Criminal Law Amendment Act.

Ratio Decidendi

The Supreme Court of Appeal found that both the trial and full courts materially misdirected themselves by sentencing the appellant as if he had already attained the age of eighteen at the time of the offences. The appellant was 17 years and 10 months old and should have been sentenced in terms of section 51(1) read with section 51(3)(b) of the Criminal Law Amendment Act, which applies to children between 16 and 18. The courts failed to consider the constitutional requirement to treat youthfulness as a mitigating factor and to focus on rehabilitation and the best interests of the child. The seriousness of the offences was acknowledged, but the appellant's age and the time spent in custody...

Court Disposition

Appeal upheld; sentences of life imprisonment set aside and substituted with 20 years' imprisonment for both murder counts, with other sentences to run concurrently.

Orders

  • The appeal against each of the two life sentences is upheld.
  • The order of the full court is set aside and substituted with a sentence of 20 years' imprisonment for counts 1 and 2, taken together for purposes of sentence.