The Child Justice Act: a detailed consideration of section 68 as a point of departure with respect to the sentencing of young offenders

Abstract

Sentences for young offenders have for many decades been at least somewhat more lenient than those for adults. When called upon to specifically address the issue, our courts have often acknowledged that young offenders should be afforded special treatment. Whatever the actual practice, the sentencing principles for child offenders changed fundamentally when the Constitution of the Republic of South Africa, 1996 was adopted. This change was necessitated by section 28 of the Constitution, which introduced a set of rights specifically aimed at the protection of children. Some of these rights directly affect children "in conflict with the law", as child accused or offenders are often referred to. In relation to sentencing, important rights include that the best interests of the child are paramount, and that children should not be imprisoned unless such imprisonment is unavoidable.