7
approach adopted by Van Heerden J in S v Blaauw 2001 (2) SACR 255
(C).
[7]
In Blaauw, Van Heerden J suggested that a Court was not obliged
in terms of s51(3)(b) to impose the minimum sentence on a child who at
the time of the commission of the offence was 16 or 17 years old unless
the State satisfied the Court that the circumstances justified the
imposition of such a sentence. In Nkosi (at 141 g-j), Cachalia J held:
‘The distinction between s51(3)(a) and s51(3)(b) lies in the nature of the discretion
that a court has when considering the positions of the two classes of offender. In the
former case a Court should ordinarily impose the prescribed sentence unless there is
some weighty justification for the imposition of a lesser sentence. The Legislature
has therefore limited the discretion of a Court to depart from the minimum sentence
(see S v Malgas (supra para [25]…)). In the latter case there is no reference at all to
substantial and compelling circumstances. The express wording of the section only
requires a Court to justify a decision to impose the prescribed sentence by entering
its reasons on the record. It does not limit a Court’s discretion to impose an
appropriate sentence on this class of offender’.
[8]
Makwetsja, like the majority in the court a quo, declined to
subscribe to the interpretation of the section advanced in Blaauw and
Nkosi. The reasons advanced in each instance for not doing so may be
summarised as follows: Whilst the statutorily prescribed minimum
sentence should be imposed on offenders between the ages of 16 and
18 only in extreme cases, that did not mean that the Legislature did not