Centre for Child Law v Minister for Justice and Constitutional Development

The Centre for Child Law challenged the constitutional validity of amendments to the Criminal Law Amendment Act 105 of 1997 made by the Criminal Law (Sentencing) Amendment Act 38 of 2007. The amendments extended the minimum sentencing regime to children aged 16 and 17 at the time they committed scheduled offences. Before the amendments, following S v B, children in this age group were subject to a 'clean slate' approach to sentencing, though minimum sentences had a 'weighting effect'. The amendments came into force on 31 December 2007 and applied the full minimum sentencing regime to 16 and 17 year olds, reversing the effect of S v B. The North Gauteng High Court declared the amended provisions unconstitutional for infringing section 28(1)(g) and 28(2) of the Constitution (children's rights provisions). The matter came before the Constitutional Court for confirmation of the order of invalidity.

• Whether the application of the minimum sentencing regime to children aged 16 and 17 years violates section 28(1)(g) of the Constitution, which provides that children may be detained only as a measure of last resort and for the shortest appropriate period
• Whether the limitation of children's rights by the amended minimum sentencing provisions is justifiable under section 36 of the Constitution
• Whether the Centre for Child Law had standing to bring the application
• Whether the matter was abstract or academic
• The proper interpretation of section 28(1)(g) in the context of sentencing child offenders
• The respective roles of Parliament, the executive, and the judiciary in sentencing children

The Constitutional Court confirmed the High Court's declaration of invalidity with the following order: (1) Sections 51(1), 51(2), 51(5)(b) and 51(6) of the Criminal Law Amendment Act 105 of 1997, as amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007, were declared inconsistent with the Constitution and invalid to the extent they apply to persons under 18 at the time of the offence. (2) Section 51(6) was to be read as excluding all persons under 18 (not just under 16). (3) The invalidity did not affect already-imposed sentences unless an appeal or review was pending, time for appeal had not expired, or condonation for late appeal was granted. (4) The Ministers were directed to furnish a report by 30 September 2009 identifying all affected children sentenced under the invalid provisions. (5) The first respondent was ordered to pay the applicant's costs including costs of two counsel.

The binding legal principles established by the majority are: (1) Section 28(1)(g) of the Constitution requires an individuated judicial response to sentencing children that focuses on the particular child being sentenced, not an approach constrained by rigid legislative starting points. (2) The minimum sentencing regime, by orienting sentencing officers away from options other than incarceration, prescribing starting points for imprisonment duration, and conducing to heavier sentences through its weighting effect, limits the rights in section 28(1)(g). (3) When legislation limits constitutionally protected children's rights, the executive must tender adequate justification specifically relating to the affected group of children - general concerns about crime are insufficient. (4) Without evidence or stated policy objectives specifically relating to offences by 16-17 year olds, the limitation cannot be justified under section 36. (5) The constitutional protection for all persons under 18 cannot be overridden by legislation that draws a new line at age 16 without cogent, evidence-based justification. (6) Parliament's legitimate role in sentencing policy does not extend to obliging courts to impose sentences inconsistent with section 28(1)(g).

Cameron J made several important obiter observations: (1) There is no 'magic' in the age of 18, but since the Constitution stipulates this as the definition of a child, its protections must apply to all under 18. (2) Children embody society's hope for and investment in its own future - this is why the state must afford them special nurturance and protection from state power. (3) Section 28(1)(g) does not prohibit Parliament from dealing effectively with child offenders or preclude sending them to jail - it means their interests are paramount but not that everything else is unimportant. (4) The franchise provisions (section 19) reflect the same understanding - children lack the judgment and maturity that would warrant voting rights, which is why they also warrant protection from full adult punishment. (5) International law instruments support the principles of proportionality, imprisonment as last resort, differential treatment from adults, and child well-being as central. (6) Comparable countries either exclude children from minimum sentencing or subject them to much shorter prescribed sentences than adults. The minority judgment contains obiter observations that: (1) The phrase 'last resort' does not require mechanical exclusion of all other options before considering imprisonment. (2) Section 28(1)(g) does not require sentences for children to necessarily be lower than for adults - differentiation is in approach, not necessarily outcome. (3) It is appropriate for courts sentencing children to consider what sentences would be imposed on adults for the same offence. (4) Higher sentences for children may be an unavoidable consequence of proportionality when adult sentences increase.

This case is significant in South African constitutional jurisprudence for several reasons: (1) It affirms the special constitutional protection afforded to children under section 28 and requires genuine differentiation in the treatment of child offenders versus adults. (2) It emphasizes that section 28(1)(g)'s requirements - detention as last resort and for shortest appropriate period - are substantive constraints that Parliament cannot override without weighty justification. (3) It demonstrates the application of section 36 limitations analysis, holding that the state bears the burden of justifying limitations on children's rights with evidence specifically relating to the targeted group. (4) It clarifies that while Parliament has a legitimate role in sentencing policy, it cannot wholly eliminate judicial discretion to individuate sentences, especially for children. (5) The judgment provides important guidance on the principles applicable to sentencing children, drawing on international instruments including the Convention on the Rights of the Child. (6) The split decision reflects ongoing tensions between legislative policy-making power and judicial constitutional review. (7) It addresses structural relief for past constitutional violations in sentencing.