Picture source: Gallo Images/Getty
The commission of serious violent crimes such as rape, robbery and murder seem to be the order of the day in South Africa. Quite distressingly, many of the perpetrators are children. Sentencing in general is said to be one of the most challenging and daunting tasks undertaken by a presiding judicial officer but arguably more so when it comes to children. One of the most important pieces of legislation regulating the criminal justice system for children in conflict with the law is the Child Justice Act 75 of 2008 (the Act). I endeavour to focus on the salient principles affecting the sentencing of children convicted of serious offences.
A child is defined as a person under the age of 18 years, and in certain circumstances, a person who is 18 years or older but under the age of 21 and whose matter is dealt with in terms of s 4(2).
Section 28(1)(g) of the Constitution provides that a child may only be detained as a measure of last resort. Section 28(2) states that ‘a child’s best interests are of paramount importance in every matter concerning the child’. These provisions have impacted sentencing. In Director of Public Prosecutions, KwaZulu-Natal v P 2006 (1) SACR 243 (SCA). The court held that the traditional aims of punishment are affected. The ambit and scope of sentencing had to be widened to give effect to the provisions of s 28(1)(g) and, if detention of a child is unavoidable, it would be ‘only for the shortest appropriate period of time.’ The court held that neither the Constitution nor international conventions forbade the incarceration of children and that there may very well be instances where incarceration of a child was required.
Section 51(1) and (2) of the Criminal Law Amendment Act 105 of 1997 as amended, does not apply to children under the age of 18 years at the time of the commission of the offence (see Centre for Child Law v Minister of Justice and Constitutional Development and Others (National Institute for Crime Prevention and the Re-Integration of Offenders, as Amicus Curiae) 2009 (2) SACR 477 (CC)). However, Jansen J in Mahlangu v S (GP) (unreported case no A382/2014, 17-7-2015) (Jansen J) qualifies the above by elucidating that while these sentences are not applicable, the court has a discretion to impose them but must provide reasons.
In Centre for Child Law at paras 26 and 28, the court explained that: ‘The Constitution draws this sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability. … They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults. … We distinguish them because we recognise that children’s crimes may stem from immature judgment, from as yet unformed character, from youthful vulnerability to error, to impulse, and to influence. 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.’
Guidelines to a ‘discretionary’ sentencing approach – S v Nkosi 2002 (1) SA 494 (W)
‘(i) Wherever possible a sentence of imprisonment should be avoided, especially in the case of a first offender.
(ii) Imprisonment should be considered as a measure of last resort, where no other sentence can be considered appropriate. Serious violent crimes would fall into this category.
(iii) Where imprisonment is considered appropriate it should be for the shortest possible period of time, having regard to the nature and gravity of the offence and the needs of society as well as the particular needs and interests of the child offender.
(iv) If at all possible the judicial officer must structure the punishment in such a way as to promote the rehabilitation and reintegration of the child concerned into his/her family or community.
(v) The sentence of life imprisonment may only be considered in exceptional circumstances. Such circumstances would be present where the offender is a danger to society and there is no reasonable prospect of his or her rehabilitation’ (Centre for Child Law at para 93).
One needs to look no further than the provisions of s 69(1) of the Act. Sentencing should:
‘(a) encourage the child to understand the implications of and be accountable for the harm caused;
(b) promote an individualised response which strikes a balance between the circumstances of the child, nature of the offence and the interests of society;
(c) promote the reintegration of the child into the family and community;
(d) ensure that any necessary supervision, guidance, treatment or services which form part of the sentence assist the child in the process of reintegration; and
(e) use imprisonment only as a measure of last resort and only for the shortest appropriate period of time’.
Bearing this in mind, Bosielo J in S v Phulwane and Others 2003 (1) SACR 631 (T) stated that ‘I venture to suggest that every judicial officer who has to sentence a youthful offender must ensure that whatsoever sentence he or she decides to impose will promote the rehabilitation of that particular youth and have, as its priority, the reintegration of the youthful offender back into his or her family and, of course, the community’ (at para 9).
In S v LR (FB) (unreported case no A17/2020, 6-1-2021) (Mbhele ADJP, Naidoo J and Reinders J), Mbhele ADJP with Naidoo J and Reinders J concurring, dismissed an appeal application against the conviction on a charge of rape of a minor child (aged nine) and sentence of ten years’ imprisonment imposed on a 16-year-old child offender. The facts revealed that the child offender and victim were living together at the time of the offence. The court held that ‘the fact that the Constitution regards a child’s best interests as of paramount importance must be emphasised. It is the single most important factor to be considered when balancing or weighing competing rights and interests concerning children. All competing rights must defer to the rights of children unless unjustifiable. Whilst children have a right to, inter alia, protection from maltreatment, neglect, abuse or degradation, there is a reciprocal duty to afford them such protection. Such a duty falls not only on law enforcement agencies but also on right thinking people and, ultimately the court, which is the upper guardian of all children.’
Although the Act provides for a host of non-custodial sentences, such as community-based sentences; restorative justice sentences; fines or correctional supervision, the court may be inclined towards the imposition of a custodial sentence in serious offences. The Act provides for a sentence of compulsory residence in a child and youth care centre (s 76) and/or a sentence of imprisonment (s 77).
In terms of s 76(1), a child may be sentenced to compulsory residence in a child and youth care centre, which provides a programme referred to in s 191(2)(j) of the Children’s Act 38 of 2005. A child and youth care centre are defined as a facility for the provision of residential care outside the child’s family environment and which must offer a therapeutic programme designed for residential care outside the family environment. This sentence may ‘be imposed for a period not exceeding five years or for a period which may not exceed the date on which the child in question turns 21 years of age, whichever date is the earliest’ (s 76 of the Act). In terms of s 76(3), where the court convicts a child of an offence referred to in sch 3 (for example rape) and which, if committed by an adult, would have justified a term of imprisonment exceeding ten years, the court may only if substantial and compelling reasons exist, may in addition thereto sentence the offender to a period of imprisonment, which is to be served after completing the period of residence. After completion of the time at the child and youth care centre, the child must be brought before the child justice court and the manager of the child and youth care centre must submit a report to the court on the progress regarding whether the objectives of sentencing have been achieved and the possibility of the child’s reintegration into society.
Section 71(1)(a) provides that the court must ‘request a pre-sentence report prepared by a probation officer prior to the imposition of sentence’. There are two exceptions, namely, ‘where a child is convicted of an offence referred to in schedule 1 or where requiring the report would cause undue delay in the conclusion of the case, to the prejudice of the child’. However, no court may impose a sentence involving compulsory residence in a child and youth care centre without the report.
‘A victim impact statement means a sworn statement by the victim or someone authorised by the victim to make a statement on behalf of the victim which reflects the physical, psychological, social, financial or any other consequences of the offence for the victim’ (s 70). It is admissible as evidence on its mere production, unless disputed. SS Terblanche in ‘The Child Justice Act: Procedural sentencing issues’ (2013) 16(1) PER/PELJ 321 at 333 opines that obtaining and presenting a victim impact statement lies in the discretion of the state and that a child justice court may need ‘convincing reasons’ to order that one be obtained ‘mero motu’.
Section 85(1) provides for an automatic review of criminal proceedings in the lower court if the child was at the time of the commission of the offence under the age of 16 years, or 16 years or older but under the age of 18 years and has been sentenced to any form of imprisonment that was not wholly suspended, or any sentence of compulsory residence in a child and youth care centre. Subsection (1) does not apply if an appeal has been noted in terms of s 84.
In A v S (ECG) (unreported case no 20190063, 3-6-2019) (Malusi J), the child offender was convicted of murder and sentenced to eight years’ imprisonment. On automatic review, Malusi J identified several procedural irregularities committed by the court a quo. The 16-year-old accused was not informed of the nature of the allegations, his rights nor the court procedure. On one instance, proceedings were conducted in the absence of his guardian and on another, there was no indication that the court was in camera.
The most egregious misdirection related to the sentence proceedings. Firstly, it was the court’s obligation to obtain a pre-sentence report and not to prompt the defence attorney to apply for one. Secondly, the pre-sentence report compiled by the probation officer was at odds with the ‘aims and ethos’ of the Act. The probation officer recommended that the accused be incarcerated and also failed to provide current and reliable information on programmes that are available for the rehabilitation of the accused. Thirdly, the magistrate accepted the recommendation of the probation officer for the accused to be imprisoned, without considering the objectives of sentencing in s 69 and imposed a shockingly inappropriate sentence of eight years’ imprisonment. The magistrate did not provide any reasons to depart from the sentence provisions in terms of s 76(2) of the Act but simply ignored them and sentenced the accused to imprisonment.
Case law has shed light at the end of the tunnel and provides cogent sentencing guidelines that assist in the sentencing of child offenders. At the heart of sentencing lies the rehabilitation and reintegration of the child offender. It bears the hallmark to the lyrics of Whitney Houston’s (1986) Greatest Love of All where she sang ‘I believe the children are our future teach them well and let them lead the way.’
Sherika Maharaj Nat Dip (diag) (DUT) LLB LLM (UNISA) is a legal practitioner at Legal Aid South Africa in East London.
This article was first published in De Rebus in 2022 (Nov) DR 21.
