Judicial Precedent

Centre for Child Law v Minister for Justice and Constitutional Development and Others

Citation[2009] ZACC 18; Case CCT 98/08

JurisdictionZA

Area of Law

Constitutional LawCriminal LawChild JusticeSentencing Law

Facts of the Case

The Centre for Child Law applied to the Constitutional Court for confirmation of an order of constitutional invalidity made by the North Gauteng High Court. The High Court had declared certain provisions of the Criminal Law Amendment Act 105 of 1997, as amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007, unconstitutional insofar as they made mandatory minimum sentences applicable to offenders who were 16 or 17 years old at the time of the offence. Prior to the amendment, children under 18 (but over 16) were subject to a discretionary sentencing regime following the Supreme Court of Appeal decision in S v B, which allowed courts to depart freely from minimum sentences. The 2007 Amendment expressly extended the minimum sentencing regime to 16- and 17-year-old offenders and applied it to pending cases. The Centre challenged these amendments as inconsistent with section 28 of the Constitution, which protects children’s rights, including detention as a measure of last resort and the paramountcy of the child’s best interests.

Judicial Outcome

The Constitutional Court confirmed the High Court’s declaration that sections 51(1), 51(2), 51(5)(b), 51(6) and 53A(b) of the Criminal Law Amendment Act 105 of 1997, as amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007, are unconstitutional and invalid insofar as they apply mandatory minimum sentences to offenders who were 16 or 17 years old at the time of the offence.

Legal Significance

This case is a leading authority on the constitutional limits of sentencing legislation as applied to children. It affirms that children under 18 must be treated distinctly from adults in the criminal justice system and that mandatory minimum sentencing regimes cannot override the constitutional requirement that detention of children be a last resort and for the shortest appropriate period. The judgment reinforces section 28 of the Constitution as a substantive constraint on legislative and judicial power in criminal sentencing.