VAN DER WESTHUIZEN J
VAN DER WESTHUIZEN J (Khampepe J and Nkabinde J concurring):
Introduction
[1]
Children1 are a particularly vulnerable group in our society, deserving of
protection. Yet, heinous crimes are sometimes committed by teenage offenders. The
sentencing of child offenders is thus an important issue.
This area of law has
developed significantly in recent years under section 28 of the Constitution, which
states the best interests of the child as a guiding principle,2 as well as that every child
has the right not to be detained except as a measure of last resort and only for the
shortest period of time.3 The impact of the enactment of the Child Justice Act4
promulgated in 2008 is also significant.
[2]
This matter is an application for leave to appeal against a judgment of the South
Gauteng High Court, Johannesburg (High Court). The applicant, Mr Mandla Trust
Mpofu, asks this Court to set aside the sentence of life imprisonment imposed by the
High Court. He argues that he was a child at the time the crime was committed and
that this was not taken into consideration when he was sentenced. The application is
opposed by the Director of Public Prosecutions of the South Gauteng High Court
1
Section 28(3) of the Constitution states: “In this section ‘child’ means a person under the age of 18 years.”
2
Section 28(2) provides: “A child’s best interests are of paramount importance in every matter concerning the
child.”
3
Section 28(1)(g) states:
“Every child has the right . . . not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under sections 12 and 35, the child may be
detained only for the shortest appropriate period of time, and has the right to be—
4
(i)
kept separately from detained persons over the age of 18 years; and
(ii)
treated in a manner, and kept in conditions, that take account of the child’s age”.
75 of 2008.
2