S v NTETA AND OTHERS 2016 (2) SACR 641 (WCC)


Child — Sentence — Generally — When accused to be treated as child for purposes of Child Justice Act 75 of 2008 — Required to have been under age of 18 at time of commission of offence as well as at time of arrest.


Accused 4 was one of three accused who were convicted of the murder and rape of the deceased, whom they had brutally attacked and assaulted before throwing his body off the side of a bridge. At the time of committing the offence accused 4 was under the age of 18, but hours before his arrest the following day he turned 18. It was contended on his behalf that, since he was under the age of 18 at the time of the offence, the provisions of the Child Justice Act 75 of 2008 (the CJA) were applicable during the sentencing proceedings.

Held, that there was a perfectly logical and rational reason why the legislature required that the child offender should have been under the age of 18 years when he was alleged to have committed the offence and also when he was arrested, in order for the CJA to find application. The very purpose of the Act was to establish criminal justice for children, and children only, who were in conflict with the law and accused of committing offences. It was tailor-made to suit the needs of the child offender, and not that of an adult offender.

Held, accordingly, that accused 4 was to be treated as an adult for the purposes of the sentencing proceedings. However, as he was under the age of 18 years when he committed the offence, in terms of s 51(6) of the Criminal Law Amendment Act 105 of 1997, the prescribed sentencing provisions of that Act did not apply to him. The court therefore had to exercise its ordinary jurisdiction in respect of sentence as far as he was concerned.Accused 4 was sentenced to an effective 15 years’ imprisonment in respect of both counts.


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