VAN DER WESTHUIZEN J that Mr Mpofu was 20 at the time of sentencing, thus no older than 17 at the time when he committed the offences. The only indication to the contrary is the reference in the judgment on conviction to the youthful appearance of accused one and the later references to accused one’s age. As indicated above, this cannot outweigh the direct references to Mr Mpofu’s age in the sentencing judgment. According to the indictment, which is part of the record, Mr Mpofu is older. But the indictment does not contain proven facts and the facts stated in it were not taken into account by the Court in sentencing. [40] Other interpretations of the High Court judgment may be arguable. One is that the Court only accepted Mr Mpofu to be a youthful offender, but not a child. This interpretation is supported by the language of the sentencing judgment, which purports to consider Mr Mpofu’s “youthfulness” in determining an appropriate sentence. Given that nowhere in the sentencing or the conviction judgments is Mr Mpofu referred to as a child, it is possible that the Court perceived him to be a youth.30 This would mean that the Court’s remark that Mr Mpofu “is 20 years old” should not be taken to mean that he was 20 at the time of sentencing, but rather at the time of the commission of the offences. The use of the present tense would then simply be a mistake. This is unlikely though, in view of the very specific use of the past tense (“was”) and present tense (“is”) by the Court in that particular paragraph.31 30 See also the High Court judgment on sentence above n 22 at 30: “In regard to the youthfulness of some of the accused . . .”. 31 See [27] above for the exact wording. 18