VAN DER WESTHUIZEN J
The age of the applicant
[23] The High Court accepted Mr Mpofu’s youthfulness as a mitigating factor.22
The question is whether he was under the age of 18 – the constitutional dividing line
between a child and an adult – and, if so, whether the High Court was aware of it and
duly took it into account. It is necessary to outline the conflicting information that has
been put forward as to the applicant’s age. I deal first with the High Court judgment
and thereafter with the parties’ submissions and the evidence they rely on.
The High Court judgment
[24] Mr Mpofu was accused number four in the proceedings in the High Court. In
his judgment on conviction, Labuschagne J referred to the age of the accused:
“Accused 1 was employed by the deceased and he stayed in the same quarters as the
other three state witnesses. He appears to be the youngest of all the accused.”23
[25] In the sentencing judgment accused one is described as “19 years old and . . . a
first offender” and later as “at this stage . . . in his early 20s, he was 19 when the
incident occurred”.24
[26] In determining the appropriate sentences, the High Court took into account the
personal circumstances of each accused. In describing Mr Mpofu, the Court held:
22
S v Thabo Sipho Ndlovu and Others, Case No 12/99, 25 September 2001, unreported (High Court judgment
on sentence) at 29.
23
S v Thabo Sipho Ndlovu and Others, Case No 12/99, 4 May 2001, unreported (High Court judgment on
conviction) at 13.
24
High Court judgment on sentence above n 22 at 26 and 29.
12
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