Bushy Vincent Kekana v The State

On 14 January 2005, the appellant, aged 17 years and 10 months at the time, and three others committed a robbery at the Ga-Raoleka supermarket in Thabamoopo, Lebowakgomo. During the robbery, two victims, Mr Aslam Muhamad and Mr Foster Mashimbye, were shot and killed. As the robbers fled, they continued shooting indiscriminately, wounding Mrs Raesibe Madimetja on her right thigh. The appellant and one other suspect were apprehended by community members at the scene and handed to police. Two other suspects were arrested later. The appellant played a leading role in the crime, having hosted the planning meeting at his home, being first to enter the supermarket with a firearm, and firing shots while fleeing. He was arrested in possession of the firearm. The appellant and two co-accused were arraigned in the circuit court of the Transvaal Provincial Division, Polokwane, on two counts of murder, one count of robbery with aggravating circumstances, attempted murder, and unlawful possession of a firearm and ammunition. They were found guilty on all counts except attempted murder. The trial court and full court both erroneously believed the appellant was 18 years old at the time of the offence and sentenced him to life imprisonment on each murder count.

• Whether the trial court and full court materially misdirected themselves in sentencing the appellant to life imprisonment on the mistaken belief that he was 18 years old at the time of the offence when he was in fact between 16 and 18 years old
• Whether the sentence of life imprisonment was appropriate for a child offender aged between 16 and 18 years under section 51(3)(b) of the Criminal Law Amendment Act 105 of 1997
• What sentencing principles apply to child offenders under the Constitution and relevant legislation

The appeal against each of the two life sentences was upheld. The full court's order was set aside. The sentences of life imprisonment in respect of counts 1 and 2 were set aside and substituted with a sentence of 20 years' imprisonment, both counts being taken together for purposes of sentence. All other sentences were confirmed. The effective sentence was 20 years' imprisonment, with sentences on counts 3, 5 and 6 running concurrently with the sentence on counts 1 and 2.

The binding legal principles established are: (1) Courts must correctly apply section 51(3)(b) of the Criminal Law Amendment Act 105 of 1997 to offenders who were between 16 and 18 years old at the time of the commission of the offence, rather than section 51(1) which applies to adults. (2) Failure to recognize that an accused was a child at the time of the offence and sentencing them as an adult constitutes a material misdirection. (3) Constitutional provision section 28(1)(g) requires courts to take the youthfulness of an accused as a mitigating factor in sentencing. (4) When sentencing child offenders, courts must apply principles including proportionality, the best interests of the child, adherence to international law principles, deprivation of liberty as a measure of last resort for the shortest possible period, and greater emphasis on rehabilitation. (5) Courts must recognize that young offenders' participation in crimes may stem from immature judgment and unformed character, and that such offenders may be rehabilitated. (6) Time spent in custody before sentencing must be taken into account in arriving at an appropriate sentence for a child offender.

The court observed that it is worrisome that some of the most gruesome and horrific crimes are perpetrated by youth, but noted that this reality does not diminish the requirement to apply special sentencing principles to young offenders. The court noted that the principles applicable to sentencing child offenders have now been incorporated in the Child Justice Act 25 of 2008, which came into operation on 1 April 2010, and which provides that for child offenders between the ages of 14 and 18, the maximum term of imprisonment is now 25 years. While this Act did not apply to the appellant's case (as the offence was committed in 2005), the court's reference to it indicates the legislative direction in child sentencing. The court also made observations about the appellant's level of involvement in the crime, noting that his actions could not be described as those of someone under the influence of older co-accused, and that but for running out of ammunition, more people could have been injured or killed.

This case is significant in South African jurisprudence for reinforcing the constitutional and statutory protections for child offenders in sentencing. It emphasizes that courts must not only recognize but give meaningful effect to the special constitutional status of children under section 28(1)(g) of the Constitution, even in cases involving serious violent crimes. The judgment illustrates the importance of accurately establishing an accused's age at the time of the offence, as this determines which sentencing regime applies under the Criminal Law Amendment Act. The case demonstrates the application of principles later codified in the Child Justice Act 25 of 2008, including that deprivation of liberty should be a measure of last resort for the shortest possible period, and that rehabilitation must be emphasized for young offenders. It serves as a reminder that even where young persons commit heinous crimes, courts must balance the seriousness of the offence with the potential for rehabilitation and the recognition that youthful participation in crime may stem from immaturity and unformed character. The case also affirms that material misdirection by a trial court, such as applying the wrong sentencing regime, entitles an appellate court to reconsider the sentence afresh.