VAN DER WESTHUIZEN J [21] In view of section 28 of the Constitution, this Court’s role as the guardian of the Constitution and the High Court’s role as the upper guardian of all children, a flexible approach must be followed.20 The concerns surrounding Mr Mpofu’s age were raised by him in the context of the possible application of the Child Justice Act. [22] In my view it is in the interests of justice to grant leave to appeal. In the sentencing of a child, every court must take into account the contents of section 28. This includes treating as paramount the best interests of the child21 and imprisoning a child only as a matter of last resort and for the shortest appropriate amount of time. Under the Constitution, childhood is not merely one mitigating factor to be balanced against factors in favour of a harsher sentence. Section 28 demands a different enquiry into sentencing. As the amicus helpfully phrased it, the starting point in sentencing may well be different. This does not mean that every sentencing court must expressly refer to section 28, but its contents cannot be ignored. The application also bears reasonable prospects of success. The attention of this Court is well warranted. 20 See Kotze v Kotze 2003 (3) SA 628 (T) at 630G: “[T]he High Court sits as upper guardian in matters involving the best interests of the child (be it in custody matters or otherwise), and it has extremely wide powers in establishing what such best interests are. It is not bound by procedural strictures or by the limitations of the evidence presented, or contentions advanced or not advanced, by respective parties.” 21 See section 28(2) quoted above n 2. 11