Submission on Criminal Law (Sentencing) Amendment Bill 15 of 2007
We refer to the above and wish to make the
following submission on behalf of the Child Justice Alliance. The Child Justice
Alliance was formed in February 2001. From 2001 – 2003, the Alliance was aiming
at creating an awareness campaign around the Child Justice Bill and garnering
support for it during the parliamentary process. However, from 2003, once the
public hearings on the Bill were completed, the work of the Alliance took on a
new focus. The work of the Alliance now concentrated primarily on research
projects and awareness raising activities around the content of the law,
implementation of the Child Justice Act and monitoring such implementation.
The Child Justice Alliance
consists of over 400 members and friends, who are either civil society
organisations or concerned individuals. The Alliance is run by a driver group
that consists of a number of organisations concerned with child justice issues.
These are: The Restorative Justice Centre; the
Children’s Rights Project at the Community Law Centre, University of the
Western Cape (CLC);the Defence,
Peace, Safety and Security (DPSS) Crime Prevention (CP) Research Group
(formerly the Crime Prevention Centre) at the Council for Scientific and
Industrial Research (CSIR); Lawyers for Human Rights; NICRO National Office;
the Youth Justice Project at the Institute of Criminology UCT; the Centre for Child Law, University of
Pretoria; the Institute for Security Studies; the Campus Law Clinic, University
of Kwa Zulu-Natal; the Civil Society Prison Reform Initiative at the Community
Law Centre, University of the Western Cape; Resources Aimed at the Prevention
of Child Abuse and Neglect (RAPCAN) and the University of Cape Town Social
Development Department at the Faculty of Humanities.
Submission on section 51
(6)(a) of the Amendment Bill
It is the submission of the Child Justice Alliance that section 51
(6)(a) of Bill 15 of 2007 is unconstitutional
and violates South Africa’s international obligations.
The section reads as follows:
“(6)
[The provisions of this] This section [shall] does not [be
applicable] apply in respect of a [child] person who was under the
age of—
(a)
16 years at the time of the commission of [the
act which constituted the offence in question] an offence contemplated in
subsection (1) or (2)(a) or (b);”
It is our submission that
the section violates the rights contained in sections 28(1) (g) and 28(2) of
the bill of rights in that it makes minimum sentences applicable to 16 and 17
year olds.
What
follows below is an explanation for this assertion.
1. Section 28(2) of the bill of rights
This
section reads as follows:
“A
child’s best interests are of paramount importance in every matter concerning a
child”.
In
South African law, this is a right that all children enjoy (Minister
of Welfare and Population Development v Fitzpatrick 2000(3) SA 422 (CC)). It is more than a principle.[1]
It
is now well established that section 28(2) is highly relevant to the exercise
of a court’s sentencing discretion and a court, when sentencing a child is
obliged to consider that child’s best interests. Of relevance is the case of Brandt v S [2005] 2 All SA 1 (SCA) where the court stated:
“In sentencing a young
offender, the presiding officer must be guided in the decision-making process
by certain principles: including the principle of proportionality; the best
interests of the child; and, the least possible restrictive deprivation of the
child’s liberty, which should be a measure of last resort and restricted to the
shortest possible period of time.”
In
order for a court to take the best interests of a child into account in
sentencing, the court must be able to exercise it’s discretion and the
requirement that a minimum sentence must be imposed on 16 and 17 year olds as
required in section 51(6)(a) is contrary to the right contained in section
28(2).[2]
The need for a court to take the child’s best interests into account and adopt
an individualized approach was set out in the case of S v Kwalase 2000 (2) SACR 135(C) where the court stated as follows:
“The judicial approach towards the
sentencing of juvenile offenders must therefore be re-appraised and developed
in order to promote an individualised response which is not only in proportion
to the nature and gravity of the offence and the needs of society, but which is
also appropriate to the needs and interests of the juvenile offender. If at all
possible, the sentencing judicial officer must structure the punishment in such
a way so as to promote the reintegration of the juvenile concerned into his or
her family and community”
2. Section 28(1)(g) of the bill of rights
The
section states:
Every
child has the right “not to be detained except as a measure of last resort, in
which case, in addition to the rights a child enjoys under sections 12 and 35,
the child may be detained only for the shortest appropriate period of time…”
The
imposition of a minimum sentence on a child as contemplated in section 51(6)(a)
not only envisages the imposition of a minimum sentence as a measure of first
resort but the very nature of minimum sentences also means that the
detention will not be for the shortest appropriate period of time.
This
was held in Brandt v S [2005] 2 All
SA 1 (SCA), where the Court found minimum sentences were not
applicable to 16 and 17 year olds relying on constitutional and international
law obligations. The Court in this case stated as follows:
“If the notional starting
point for the category of offender envisaged in subsection 3(b) is that the minimum prescribed
sentence is applicable, as the majority in the court a quo and the full bench in Makwetsja (supra[3])
suggest, then imprisonment (the prescribed sentence) would be the first resort
for children aged 16 and 17 years in respect of offences covered by the Act
instead of the last resort….[n]evertheless, on the approach of the majority in
the court a quo and of the
Transvaal Provincial Division in Makwetsja,
a sentencing court would be unable to depart from the statutorily prescribed
minimum unless the child
offender establishes the existence of substantial and compelling circumstances.
To this extent the offender under 18 would be burdened in the same way as an
offender over 18. This would infringe the principle that imprisonment as a
sentencing option should be used for child offenders as a last resort and only
for the shortest appropriate period of time.”
The
right of a child to be detained as a last resort and for the shortest
appropriate period of time was also addressed in DPP KwaZulu Natal v P 2006(1) SACR 243 (SCA) where the court stated:
“Having regard to s 28 (1)
(g) of the Constitution and the relevant international instruments, as already
indicated, it is clear that in every case involving a juvenile offender, the
ambit and scope of sentencing will have to be widened in order to give effect
to the principle that a child offender is ‘not to be detained except, as a
measure of last resort’ and if detention of a child is unavoidable, this should
be ‘only for the shortest appropriate period of time’.”
It
is submitted that section 51(6)(a) of Bill 15 of 2007 falls foul of section
28(1)(g) of the bill of rights as it removes the discretion of a court to apply
the right contained in section 28(1)(g) unless substantial and compelling
reasons exist to do so, a situation that does not observe the spirit, import
and obligation of section 28(1)(g).
South Africa’s
international obligations
South Africa has
ratified both the United Nations Convention on the Rights of the Child (CRC) as
well as the African Charter on the Rights and Welfare of the Child (ACRWC).
Both of these
instruments oblige states to adopt legislative, administrative or other
measures to realise the rights contained therein (Article 4 of the CRC and
Article 1 of the ACRWC).
Both of these
instruments require states to respect the principle that in all actions
concerning a child, the best interests of the child shall be the primary
consideration (Article 3 of the CRC and Article 4 of the ACRWC).
The CRC explicitly states that the arrest,
detention or imprisonment of a child shall be used only as a matter last resort
and for the shortest appropriate period of time (Article 37 (b)).
In 2007 the United Nations Committee on the Rights of
the Child released General Comment
No. 10 (2007): Children’s rights in Juvenile Justice (GC No. 10).
In
relation to the best interests of the child principle, GC No. 10 states:
“[t]he protection of the best
interests of the child means, for instance, that the traditional objectives of
criminal justice (repression/retribution) must give way to rehabilitation and
restorative justice objectives in dealing with child offenders. This can be
done in concert with attention to effective public safety.”
In addition, in relation to the right of a
child only be detained as a measure of last resort and for the shortest
appropriate period of time, GC NO. 10 states:
“The
laws must provide the court/judge, or other competent, independent and
impartial authority or judicial body, with a wide variety of possible
alternatives to institutional care and deprivation of liberty…to assure that
deprivation of liberty be used only as a measure of last resort and for the
shortest possible period of time. …The Committee wants to emphasize that the
reaction to an offence should always be in proportion not only to the
circumstances and the gravity of the offence, but also to the age, lesser
culpability, circumstances and needs of the child, as well as the various and
in particular long term needs of the society. A strictly punitive approach is
not in accordance with the leading principles for juvenile justice spelled out
in article 40(1) CRC[4]…..In
cases of severe offences by children, dispositions proportional to the
circumstances of the offender and (the gravity) the offence may be considered,
including considerations of the needs of public safety and sanctions, but in
cases of children such considerations must always be outweighed by the need to
safeguard the well-being and the best interests of and to promote the
reintegration of the young person.”
In Government
of the RSA and others v Grootboom and others 2001(1) SA 46 (CC) at para 29 et
seq the Constitutional Court relied on general
comments of this sort in interpreting the bill of rights.
4. Conclusion
It is the
submission of the Child Justice Alliance that section 51(6)(a) is
unconstitutional and in conflict with South Africa’s regional and international
obligations. This assertion is made relying on judicial interpretation of sections
28(1)(g) and section 28(2) of the bill of rights as well as the interpretations
made in the context of child justice applicable to South Africa’s international obligations.
We therefore propose that no minimum sentences
should be applicable to persons under 18 years of age.
Jacqui Gallinetti
Co-ordinator of
the Child Justice Alliance
Senior Researcher
Community Law Centre UWC
THIS
SUBMISSION IS ALSO ENDORSED BY THE FOLLOWING MEMBERS OF THE CHILD JUSTICE
ALLIANCE DRIVER GROUP:
·
The
Institute for Security Studies
·
The
Centre for Child Law, University of Pretoria
·
RAPCAN
·
The
Restorative Justice Centre
·
The Defence, Peace, Safety and Security (DPSS)
Crime Prevention (CP) Research Group (formerly the Crime Prevention Centre) at the
Council for Scientific and Industrial Research (CSIR)
·
The Institute of Criminology at the University of
Cape Town
·
Lawyers for Human Rights, Pietmaritzburg
·
Children’s Rights Project, Community Law Centre,
University of the Western Cape
[1] The principle is recognized in
international law: Article 3 of the CRC and Article 4 of the African Charter on
the Rights and Welfare of the Child.
[2] Section 28(3) of the bill of rights defines a child to be a person under the age of 18 years.
[3] Direkteur van
Openbare Vervolgings, Transvaal v Makwetsja (2004 (2) SACR 1) (T).
[4] States Parties
recognize the right of every child alleged as, accused of, or recognized as
having infringed the penal law to be treated in a manner consistent with the
promotion of the child's sense of dignity and worth, which reinforces the
child's respect for the human rights and fundamental freedoms of others and
which takes into account the child's age and the desirability of promoting the
child's reintegration and the child's assuming a constructive role in society.