The Constitutional Court, on 15 July 2009, ruled that the Constitution prohibits minimum sentencing legislation from being applied to children between the ages of 16 and 17 years old.

The Court declared sections 51 (1) and (2) of the Criminal Law Amendment Act of 1997 (the Act), as amended by the Criminal Law (Sentencing) Amendment Act of 2007, unconstitutional and invalid, in so far as it applied to children who were under the age of 18 when they committed an offence.

Section 51 of the Act established a minimum sentencing for the specified classes of serious offences including murder, rape, fraud and armed robbery. Before the implementation of the Criminal Law (Sentencing) Amendment Act, the minimum sentencing regime had limited application to children who were under 18.

Cameron J, who wrote for the majority of the Court, said that ‘We recognize that exacting full moral accountability for a misdeed might be too harsh because they are not yet adults, hence we afford children some lee-way of hope and possibility.'

The matter arose in 2008, when the Centre for Child Law (the Centre) instituted an application in the North Gauteng High Court challenging the constitutionality of sections 51 (1), (2), 51(5) (b), 51(6) and 53A (b) of the Act. The Centre argued that the sections were unconstitutional in the light of section 28 of the Constitution, which provides, inter alia, that children have the right not to be detained except as a measure of last resort and that they may be detained only for the shortest appropriate period of time.

The State justified the imposition of minimum sentences against juvenile offenders between the ages of 16 and 17 on the basis that crimes committed by 16 and 17 year old youth can be violent and merciless. The High Court struck down some of the provisions of the Act and referred the matter to the Constitutional Court for confirmation.

In the Constitutional Court, the Legal Resources Centre (LRC) brought an amicus curiae application on behalf of the National Institute for Crime Prevention and Re-Integration of Offenders (NICRO). NICRO is a non-governmental organization based in Cape Town that provides comprehensive crime prevention services across South Africa. NICRO agreed with the decision reached by the High Court but limited its submissions to the unconstitutionality of section 51 (6) of the Act.

NICRO argued that all children should be entitled to the special protective guarantees in section 28 of the Constitution. These include: the right to be protected from maltreatment, neglect, abuse or degradation; and the right not to be detained except as a measure of last resort, and only for the shortest appropriate period of time.

NICRO argued further that the distinction between different age categories of children is irrational because the Minister of Justice and Constitutional Development does not rationalise why the cut-off age is 16 as opposed to 18, and does not provide a legitimate government purpose to justify cutting off special protection to children 16 years and older.

NICRO also argued that the Act is unfairly discriminatory in that it infringes the right to equality by denying all children equal protection of the law, and therefore the section should be declared to be inconsistent with the Constitution.

Yacoob J, who wrote the minority judgment, said 'the harsh, regrettable and undeniable reality is that particularly heinous crimes are committed by children who are 16 and 17 years old. If one has regard to this (as we must), the legislature is justified in reflecting society's utter outrage.'