CCT98/08

[2009] ZACC 18

2009 (2) SACR 477 (CC)

2009 (6) SA 632 (CC)

2009 (11) BCLR 1105 (CC)

Cameron J Majority judgment

Yacoob J dissenting judgment

5 March 2009

15 July 2009

http://hdl.handle.net/20.500.12144/3570

Application for confirmation of declarations of statutory invalidity made by the North Gauteng High Court, Pretoria: Centre for Child Law v Minister for Justice and Constitutional Development and Others, Case No 11214/08, 4 November 2008, as yet unreported

Amendment Act 105 of 1997 (CLAA), as amended by Criminal Law (Sentencing) Amendment Act 38 of 2007 (the Amendment Act) (the Amendment Act) invalid. This statute made minimum sentences for certain serious crimes applicable to 16 and 17 year old children. The majority found that, limiting the children's rights provisions in the Bill of Rights (section 28), the minimum sentencing regime constrains the discretion of sentencing officers by orientating the sentencing officer away from options other than incarceration, by de-individuating sentencing, and by conducing to longer and heavier sentences. Since no adequate justification was provided for the limitation, the Court confirmed the order of invalidity in its essential respects. The minority held that that the Amendment Act is not inconsistent with the Constitution, because the sentencing regime must be interpreted on the basis that all children are the beneficiaries of the rights conferred by section 28(1)(g) of the Constitution, to which all courts must give effect during the sentencing process. Majority: Cameron J (Langa CJ, Moseneke DCJ, Mokgoro J, O'Regan J, Sachs J and Van der Westhuizen J concurring). Minority: Yacoob J (Ngcobo J, Nkabinde J and Skweyiya J concurring)