11
paramount importance in every matter concerning the child'.
That
statement of general principle is the clearest indication that child
offenders are deserving of special attention. More so, it would seem, in
the sphere of sentencing. The ideal is that no child should ever be
caged,1 though in practice there will always be cases that are so serious
that imprisonment would be the only appropriate punishment.2
[14] The recognition that children accused of committing offences
should be treated differently to adults is now over a century old.3
Historically, the South African justice system has never had a separate,
self-contained and compartmentalised system for dealing with child
offenders. Our justice system has generally treated child offenders as
smaller versions of adult offenders.4 In S v Williams and others5 1995
(3) SA 632 (CC) para 74 the Constitutional Court in abolishing whipping
sounded ‘a timely challenge to the State to ensure the provision and
execution of an effective juvenile justice system’.
[15] The traditional aims of punishment, particularly in respect of child
offenders, therefore have to be re-appraised and developed to accord
1
Julia Sloth-Nielsen ‘No child should be caged – closing doors on the detention of children’ 1995 (8)
SACJ 47.
2
S S Terblanche The Guide to Sentencing in South Africa para 3.4.
3
The Illinois Juvenile Court Act, which is widely credited as providing the first example of legislation
establishing a separate juvenile justice system celebrated its centenary in 1999. See Prof Julia SlothNielsen ‘The role of international human rights law in the development of South Africa's legislation on
juvenile justice’ 2001 (1) 5 Law, Democracy & Development 59.
4
Ann Skelton ‘Developing a juvenile justice system for South Africa: International instruments and
restorative justice’ 1996 Acta Juridica 180.
5
Also reported at 1995 (2) SACR 251 and 1995 7 BCLR 861.
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