THE CHILD JUSTICE ACT: A DETAILED CONSIDERATION OF SECTION 68 AS A POINT OF DEPARTURE WITH RESPECT TO THE SENTENCING OF YOUNG OFFENDERS

The Child Justice Act 75 of 2008 establishes a criminal justice system for child accused, separate from the criminal justice system which continues to apply for adult accused in South Africa. The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to the tried and sentenced in child justice courts. Until now there has been little discussion of the details of the provisions dealing with sentencing. Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the "jurisdictional" provision of the new child sentencing system: it not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place. Despite its brevity, section 68 is not without interpretative challenges. Of course, it has to be interpreted within the context of the entire Act. Explaining this context is the first function of this article. The various aspects of section 68 are further critically explored and discussed.


Introduction
Sentences for young offenders 1 have for many decades been at least somewhat more lenient than those for adults. 2When called upon to specifically address the issue, our courts have often acknowledged that young offenders should be afforded special treatment. 3Whatever the actual practice, the sentencing principles for child offenders changed fundamentally when the Constitution of the Republic of South Africa, 1996 was adopted. 4This change was necessitated by section 28 of the Constitution, which introduced a set of rights specifically aimed at the protection of children. 5 Some of these rights directly affect children "in conflict with the law", as

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Stephan Terblanche.BIur (PU for CHE), LLD (Unisa).Professor, Department of Criminal and Procedural Law, University of South Africa.Email: terblss@unisa.ac.za.Unisa provided funding for research visits, the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany made available its research facilities and Professor Louise Jordaan had valuable comments on an earlier draft.I want to express my gratitude to them all. 1 In the past a few different categories of young offenders were specifically addressed in our law.For example, s 290 of the Criminal Procedure Act 51 of 1977 (before its repeal by the Child Justice Act 75 of 2008) had specific provisions for "young offenders" under the age of 18 years, some of which were also available to offenders under 21 years of age; s 1 of the The change was initiated with the promulgation of the first Bill of Rights in the interim Constitution (Constitution of the Republic of South Africa Act 200 of 1993): see Sloth-Nielsen 1996 Int'l J Children's Rts 325 (the first inclusion of the best-interests principle); Keightley "Children and the Legal System" 1-2; Van der Vyver 2006 Emory Int'l L Rev 10; S v Williams 1995 2 SACR 251 (CC), esp.paras 69 (noting "growing interest in moves to develop a new juvenile justice system"), 74-75 (the state should provide an effective juvenile justice system; and "new creative methods to deal with the problem of juvenile justice" are required).5 The inclusion of children's rights in the Bill of Rights is widely viewed as one of the better examples of why the Constitution is held in such high regard internationally: see further, eg, The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. 15When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to be tried and sentenced in child justice courts.Until now there has been little discussion of the details of the provisions dealing with sentencing. 16ntencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter.It reads as follows: A child justice court must, after convicting a child, impose a sentence in accordance with this Chapter.
This section effectively amounts to the "jurisdictional" provision of the new child sentencing system.It not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place.
Despite its brevity section 68 is not without interpretative challenges.Of course, it has to be interpreted within the context of the whole Act. 17Explaining this context is the first function of this article.The various aspects of section 68 are then evaluated.
The greatest challenges lie in the meanings of the words "child justice court" and "child", as well as the precise extent of the punitive jurisdiction of the courts.The Act itself contains a number of useful interpretive tools.The Preamble is particularly important.The current trend 18 amongst our courts (and the Constitutional Court in particular) is to use preambles to legislation quite extensively in the process of interpreting that legislation. 19A preamble is considered a valuable summary of what the legislation aims to achieve, 20 and the lengthy Preamble to the Act is a good example of this approach.Sections 2 and 3 of the Act are also useful tools: section 2 reflects the objects of the Act and section 3 contains guiding principles to be applied in relation to the Act.These sections reinforce some of the general considerations set out in the Preamble.The specific considerations, which may assist in interpreting section 68, are considered below.

Tools in the Act itself
The Preamble prominently recognises the constitutional emphasis on the best interests of children and their need for special protection. 21In the case of children "in conflict with the law" the emphasis is on their rights "not to be detained, except as a measure of last resort, and if detained, only for the shortest appropriate period of time", and not to be subjected to any harmful practices.The Preamble then spells out several aims of the Act, and the following two affect the interpretation of section 68: (1) whenever "appropriate circumstances" prevail, child offenders should be diverted from the criminal justice system; and (2) when diversion is not possible or advisable, the child offender should be dealt with "in the criminal justice system in child justice courts".When the child offender has to go through the trial process to the sentencing phase, the Act specifically sets out to provide "for a wide range of appropriate sentencing options specifically suited to the needs of children".The Preamble also emphasises "the long-term benefits of a less rigid criminal justice process that suits the needs of children in conflict with the law in appropriate cases." It also acknowledges that there are resource and other constraints in South African society, which might require an incremental implementation of the reformed juvenile justice system.
Amongst the various objects of the Act set out in section 2, the following two in particular may assist with the interpretation of section 68: (1) protecting the constitutional rights of children; 22 and (2) encouraging the use of diversion. 23The guiding principles in section 3 "must be taken into account" when applying the provisions of the Act.Two of these guiding principles are particularly relevant to section 68: (1) the principle that a child should not be treated more severely than an adult would have been under similar circumstances; 24 and (2) that the "rights and obligations of children contained in international and regional instruments" also have to be taken into account. 25number of these considerations require closer scrutiny: the best interests of the child; the importance of diversion; that children should not be treated more severely than adults; and the relevant "international and regional instruments".
PER / PELJ 2012(15)5 441 / 638 The reference to "international and regional instruments" in the Preamble and in section 3 means that these documents are not merely of academic or political interest, but that every child justice practitioner should have more than a mere passing knowledge of their provisions. 26This requirement is supported by section 39(1)(b) of the Constitution, which requires South African courts to interpret national legislation consistently with the provisions of relevant international documents. 27For the current purposes the most important instruments are the Convention and the African Charter on the Rights and Welfare of the Child (hereafter referred to as "the Charter").Both of these instruments are expressly mentioned in the Preamble. 28e Convention has already been referred to in a number of judgments affecting the rights of children, specifically in connection with sentencing. 29The provisions of the Convention that are of particular relevance to criminal justice include articles 3 (the primacy of the child's best interest), 19 (protecting children against any form of violence, injury, abuse, maltreatment, etc), 37 (imprisonment as a last resort and for the shortest appropriate period; treatment with humanity, respect and dignity) and 40 (promoting the child's sense of dignity and worth). 30There is no doubt that the Convention's provisions influenced the contents of section 28 of the Constitution.
They also played a major role in the coming into being of the Act. 31For current purposes the Convention is a particularly useful aid to understanding the standard of the best interests of-the-child.
Although the Charter has not been as influential as the Convention in shaping the Act,32 it has considerable potential to influence the further development of our child justice system. 33The Charter has been adopted in Africa in order to address unique African concerns about children, and because of frustration with the limited involvement of African countries in the drafting of the Convention.34

The best interests of the child
According to section 28(2) of the Constitution a "child's best interests are of paramount importance in every matter concerning the child." 35Since "paramount" is a stronger term 36 than "a primary" consideration, as used in the Convention, 37 or "the difficult to overstate the importance of what has been termed the heart of children's rights. 45In S v M 46 the Court expressed itself as follows: The ambit of the provisions [s 28(2) read with s 28(1)] 47 is undoubtedly wide.The comprehensive and emphatic language of s 28 indicates that just as law enforcement must always be gender-sensitive, so must it always be child-sensitive; that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interests of children; and that courts must function in a manner which at all times shows due respect for children's rights.
The principle that the child's best interests are "more important than anything else" (in other words, that they are paramount) has, since Fletcher v Fletcher, 48 been considered part of our common law. 49This is applied mostly in matters relating to family law, such as the custody of children in divorce proceedings, adoption, foster care and so on. 50However, section 28(2) requires acknowledgement of the child's best interests "in every matter concerning the child", 51 which would certainly encompass criminal law and criminal justice as well.The extension of the best interests principle beyond its application to family law has been precipitated by international documents on the rights of children, and specifically by the Convention.There is no doubt that the Child Justice Act fully recognises the best-interests principle in the field of child criminal justice, as explicitly noted in the Preamble.
A child's best interests play a vital role in the interpretation of any statutory provision affecting child offenders.It is a consideration that must be given practical effect whenever a question is asked as to the purpose of a specific provision in the Act.As is normally the case, what is actually in the best interests of a child offender during the sentencing process can be established only through careful analysis of all of the facts relevant to the matter at hand. 52Courts have wide discretionary powers to ensure that effect is given to the best interests of children. 53They have to make sense of the "almost endless" number of factors 54 involved in every individual case in order to properly exercise the value judgment that any decision about the best interests inevitably requires. 55 closing it should be noted that most of the other rights in section 28 give effect to the best-interests principle (eg, the rights to parental or appropriate alternative care, to basic nutrition and other services, protection "from maltreatment, neglect, abuse or degradation", 56 and so on).In addition, children are obviously also entitled to the other constitutional rights in the Bill of Rights. 57Specifically related to sentencing, these rights include the rights to life, to dignity, a fair trial, and not to be punished in a cruel, inhuman or degrading manner, to state the most obvious examples. 58It is one of the central themes of the Act that children in conflict with the law should be diverted from the formal criminal justice system whenever possible. 59Generally, diversion means that an accused person is not put through formal criminal proceedings but is subjected to an alternative process that does not involve a formal trial, conviction and a criminal record. 60No sentence is imposed, although the alternative process may require the person to perform services or tasks, or to submit to training or other regimes, some of which might be of a punitive nature.

The importance of diversion
Diversion is widely considered to provide people in conflict with the law with a better opportunity of being successfully reintegrated into society than dealing with their behaviour through the formal criminal justice system. 61There is abundant evidence that the deeper child offenders get involved in the formal criminal justice system, the better the chances are that, as adults, they will end up living a life of crime. 62

Children not to be treated more severely than adults
This guiding principle 63 has probably been inserted into the Act in order to allay fears that the Act was too child-friendly or would result in responses that are not sufficiently punitive. 64 Another fundamental principle of sentencing is that deprivation of liberty, if used at all, should only be used as a measure of last resort and for the shortest appropriate period of time.Consequently, the international law regulating the sentencing of children is characterised by an emphasis on the constructive purpose of the disposition rather than its punitive side.Specifically, and in contrast to adults, international law places restrictions on the periods for which children can be deprived of their liberty.
Although the passage quoted refers to sentencing and more specifically to the deprivation of liberty, its essence permeates the provisions of the Convention with respect to juvenile justice: 66 children must be treated in ways reflecting their age; the successful reintegration of child offenders into society is the desirable outcome; 67 and the treatment must be proportionate to the child's circumstances and the offence. 68Given these principles, which have to be taken into account as guiding principles as well, 69 it is difficult to see how even treatment equal to that of an adult offender could be justifiedafter all, none of these considerations apply to adult offenders.

3
The basic provision on sentencing: section 68

"A child justice court…"
It is striking that the Act does not explicitly establish child justice courts. 70Instead, it defines a "child justice court" 71 as "any court provided for in the Criminal Procedure courts (see further cl 1 of the proposed Bill: a child justice court is defined as "the court described in section 71" and "court" as "a child justice court or any other court acting in terms of the provisions of this Act"; cl 71 would establish child justice courts at the level of district magistrates' courts, involving regional and High Courts, especially to hear more serious cases).See also ch 9 (paras 9.1-9.46).The more familiar practice in our law is to explicitly establish a court and to circumscribe its powers in legislation.Act [51 of 1977], dealing with the bail application, plea, trial or sentencing of a child".
The reference to the Criminal Procedure Act in this definition is surprising, as that Act does not establish any courts, nor does it generally determine their jurisdiction.It does make provision for "magistrates' courts", "lower courts", "superior courts" and "supreme courts". 72The sentencing of offenders is one of the functions of all these courts.It is a fairly safe assumption that the legislature intended to declare that all of the courts that are involved in the criminal procedure of the country (dealing with "bail application, plea, trial or sentencing") are "child justice courts" when they apply or are required to apply the provisions of the Act.In other words, district magistrates' courts, regional courts and high courts may all operate as child justice courts.Other commentators on the Act also assume this to be the position. 73 course, by the time that the proceedings have reached the sentencing phase, there should be little doubt whether the court is a child justice court or not.The issue should be dealt with during the plea and trial stage and the Act specifically requires, in section 63(1)(a), that the trial of a child 74 has to be conducted in a child justice court: 75 Any child whose matter has been referred to the child justice court in terms of section 49(2), must appear before a court with the requisite jurisdiction to be dealt with in terms of this Chapter.
In order to better comprehend this provision, one must briefly note the basic elements of the new child justice system.The first process is referred to as the preliminary enquiry, an informal process which serves as a child suspect's first court appearance. 76If the child had been arrested, the preliminary enquiry must, in "are dealt with in Child Justice Courts"); Gallinetti Getting to Know the Child Justice Act 13 (even a high court applying the provisions of the Act is a child justice court for these purposes) 51; Sloth-Nielsen and Gallinetti 2011 PELJ 84 (most cases will be tried in the lower courts).74 "Child" should also be understood as intended by the Act.See, in this connection, 3.4 below.75 " [This] chapter" refers to chapter 9, the chapter dealing with trials in the child justice court.76 A preliminary enquiry is a requirement (s 5(3)), unless the child has been taken out of the child justice process already.See, in general, Gallinetti "Child Justice" 653-654; Kruger Hiemstra's Criminal Procedure 28-60.See s 43(3)(c), confirming that the preliminary enquiry amounts to the "first appearance before a lower court".
principle, take place within 48 hours of the arrest. 77The enquiry is conducted by a magistrate in the presence of the child, a parent (or other person to support the child), a prosecutor and a probation officer. 78Its main aim is to ensure that the child's case does not get lost in the system.At some point in the process the probation officer must formally assess the child in order to inform the decision of the enquiry magistrate as to the best next step to take.One of the outcomes of such an enquiry is that the child may be ordered to appear before a child justice court for trial.
In fact, as is clearly implied by section 63(1)(a), a child can be referred to court for trial only following a preliminary enquiry.
Section 63(1)(a) requires that the child justice court must have "the requisite jurisdiction".This is the only reference in the Act to the jurisdiction of this court.A court may lack "the requisite jurisdiction" because of the crime of which the accused is charged.For example, a district magistrates' court does not have the jurisdiction to try an adult offender for rape, murder or high treason, and a regional court not for high treason. 79Although there are no specific provisions in the Act confirming such limitations in the case of child justice courts, the limitations are confirmed by the following basic principles and objects of the Act: 80 to protect the rights of children in general, 81 to ensure that they are not treated more severely than adults, 82 and that their best interests are of paramount importance throughout.
The same considerations as those noted above indicate that it is also safe to assume that the various courts retain the punitive jurisdiction that they have for adult offenders, in so far as such jurisdiction is not expressly changed by the Act.In other words, a magistrate's court acting as a child justice court will normally be limited to imprisonment of three years per offence, or fines of up to R 60 000; a regional court will normally be limited to imprisonment of 15 years per offence, or fines of up to R 300 000; high courts are limited to 25 years' imprisonment, 83 but the maximum fine is 77 Gallinetti "Child Justice" 654 (it is possible for the enquiry to be postponed, for not more than another 96 hours, under certain conditionsss 48(1) read with 48(2)).78 Gallinetti "Child Justice" 654.79 See s 89(1) of the Magistrates' Courts Act 32 of 1944.80 As provided for specifically in the Preamble, and in ss 2 and 3: see 2 above.81 Section 2(a).82 Section 3(b).83 The longest sentence permitted by s 77(4) of the Act.unlimited. 84As always, these limitations are subject to express statutory exceptions. 85 is unfortunate that the Act does not expressly create child justice courts and that it does not state explicitly that child offenders are now to be tried and sentenced in a different, child-focused and child-friendly court. 86The Act would have been clearer in this respect if the statement in the Preamble "while children whose matters are not diverted, are to be dealt with in the criminal justice system in child justice courts" was followed with an explicit creation of such courts in the Act itself.
It is worth noting (even if ex abundanti cautela) that child justice courts are different from children's courts, which are established in terms of the Children's Act 38 of 2005.Children's courts are aimed at protecting the general welfare and well-being of children. 87In particular, this includes the care, support and adoption of children, as well as the care of children in care centres and similar institutions. 88Section 45(2) specifically declares that a children's court does not have jurisdiction to try any person on a criminal charge. 89These considerations clearly show that the Children's Act follows a so-called welfare or "welfarist" approach, in contrast to the justice approach followed by the Act. 90

"…after convicting…"
84 See Terblanche Guide to Sentencing (2007)  As with all offenders, sentencing is possible only after the conviction of an offence. 91is characteristic establishes an important difference between the basic underlying philosophies of the Act and that of the Children's Act.
No offences are excluded from the operation of the Act, which "applies to all criminal offences". 92These offences are categorised into three schedules to the Act, which are arranged roughly in terms of seriousness: the least serious offences are in Schedule 1 93 and the most serious in Schedule 3. 94

Introduction
Nowadays, when reference is made in legislation to "a child", it is not unfair to assume that it refers to a person under the age of 18 years.Certainly, such an assumption would be supported by the Constitution, in terms of which a "child" is someone under the age of 18. 95 However, it is immediately evident why, whenever the phrase "a child" is used in the Act in general, and in section 68 in particular, it could not always refer to a person under the age of 18.The problem is this: offenders who committed their crimes as children might no longer be children by the time they appear in the child justice court for trial and sentence.This problem is particularly acute in South Africa, where criminal cases can take years to complete, and where there are many examples of child offenders who are sentenced long after they had committed their crimes. 96The reasons for this apparent anomaly range from the delayed laying of charges to problems relating to the apprehension of the offender, and sometimes simply the 91 This is a requirement of the legality principle, in terms of which only criminal conduct can be punished.See Rabie, Strauss and Maré Punishment 6-7, 81-89; Snyman Criminal Law 48-49.92 Gallinetti "Child Justice" 649.93 Some of the most serious of these offences include theft involving property of an amount not exceeding R 2 500; fraud not exceeding an amount of more than R 1 500; unlawful possession of certain drugs; consensual "statutory rape"; common assault, etc. 94 Including crimes such as treason, murder, rape, aggravated robbery, and so on.95 Section 28(3) of the Constitution.Of course, this definition is directly aimed at interpreting section 28 of the Constitution.It does not necessarily export to other legislation as well.96 See further S v Dayile 2011 1 SACR 245 (ECG) (who committed the crime at 17, but was sentenced only 10 years later).
inertia of the criminal justice system.Finally, some prosecutors and other officials might be tempted to delay proceedings until the offender's eighteenth birthday simply in order to prevent the protection of the Act from applying to the offender. 97ere are two sides to this coin.On the one hand, delays in the system should not remove any child from the protection provided by the Act for no fault of his or her own.On the other hand, someone much older than 18 at the time of sentencing might, for that reason alone, not be a suitable candidate for the sentences provided for in Chapter 10, or be in need of the protection offered by the Act.
It is the intention of the Convention that child offenders should be treated differently from their adult counterparts. 98The age of "under 18" is the international standard reflected in the Convention 99 and all related documents, including the African Children's Charter.These instruments also informed the rights in section 28 of the Constitution in this respect.The important result is that all persons who were under 18 years when they committed their offences should, ideally, be given the "benefits and protections" of the Bill of Rights for as long as this is the cut off age. 100 The question is how this ideal can be achieved in the case of child offenders without burdening the courts with offenders who, despite being children at the time of the crime, are much older during sentencing. 101The way in which the Act approaches this issue is considered next, and it is useful to separate offenders who are children would have applied to all persons who were children at the time of the offence.The draft legislation specifically provided that the child justice legislation would apply "until conclusion of such proceedings, despite the fact that such person may have reached the age of 18 years during the course of such proceedings" (cl 2(4)).For a brief exposition of the position in Ghana, see Ame 2011 Int'l J Children's Rts 274-275.

The child offender is under 18 during sentencing
The Act defines a child as, in the first instance, any person under 18 years of age. 102 This description is consistent with the Constitution 103 and other legislation affecting children, such as the Children's Act 38 of 2005.When the offender appearing before the child justice court for sentencing is under 18 years old, the position is clear: the court must sentence such an offender in terms of section 68, and it must apply all of the principles relevant to the sentencing of children.

The child offender is 18 or older when sentenced
When the child offender has reached the age of 18, the problems referred to earlier may arise.The Act attempts to solve these problems by focusing on the age of the offender when the criminal proceedings are instituted.The relevant provision, section 4(1)(b), reads as follows: Subject to subsection (2), this Act applies to any person in the Republic who is alleged to have committed an offence and … (b) was 10 years or older 104 but under the age of 18 years when he or she was-(i) handed a written notice in terms of section 18 or 22; (ii) served with a summons in terms of section 19; or (iii) arrested in terms of section 20, for that offence.
The processes noted in paragraphs (i) to (iii), involving sections 18 to 20 and 22 of the Act, relate to the different ways in which the presence of the accused at the criminal proceedings can be ensured.The implication of section 4(1)(b) is clear that 102 Section 1 of the Act.103 Section 28(3) of the Constitution.See also Skelton "Constitutional Protection of Children's Rights" 279.104 Children under the age of 10 do not have criminal capacity and they cannot be prosecuted (or convicted) for any offences 7(1).When such a child commits an act that would otherwise have been criminal the child has to be dealt with in terms of s 9, which provides for a hearing by a children's court and various other measures.See eg Gallinetti "Child Justice" 649-650.
when these proceedings are instituted before the offender's eighteenth birthday, the provisions of the Act apply.Taken literally, even if the proceedings then take another, for argument's sake, ten years to complete, they will still have to take place in a child justice court, despite the fact that such a person might be 28 years old by the time of sentencing.
What should the position be if the proceedings were instituted when the accused was under 18 years of age, but the proceedings were interrupted for some reason?
At least two situations could be distinguished.First, if the case is withdrawn by the prosecution and reinstituted when the accused is 18 years old or older, the reinstitution should amount to a separate process unaffected by section 4.105 Such a process is not problematic unless the case is withdrawn simply as a means to circumvent having to charge the accused in a child justice court.Secondly, when a case is interrupted because the accused fails to return to court after a postponement of the matter or to comply with bail conditions, a new case is not opened and the original case number remains in place.In this case there would be little reason to deviate from the earlier stated position, namely that the case should be dealt with in the child justice court even if the proceedings drag on until the accused is much older than 18 years of age.
The provisions of section 4(1)(b) apply "subject to subsection (2)".Section 4(2) of the Act does not limit the position just explained, but actually extends it, as the subsection permits persons of 18 years old (and even older) to be tried and sentenced in terms of the sentencing provisions of the Act.It reads as follows: The Director of Public Prosecutions having jurisdiction may, in accordance with directives issued by the National Director of Public Prosecutions in terms of section 97(4)(a)(i)(aa),106 in the case of a person who- direct that the matter be dealt with in terms of section 5(2) to (4).107 It remains an absolute requirement that the alleged offence must have been committed while the offender was under the age of 18 years.Section 4(2) permits the prosecution to be instituted subsequently, as long as the accused is under the age of 21 and it is permissible in terms of the NDPP directives.Once such an accused has been convicted by a child justice court, sentencing will also have to take place in terms of the Act.
The NDPP directives contain a list of considerations that are set in the alternative (they are separated by "or").These considerations are any of the following:108  or (e) "where other pertinent and relevant circumstances so demand, such as those listed in paragraph J.2 above". 111 is striking that undue delay in the institution of the proceedings is not mentioned as a factor, although it could potentially be included within (e) above.
The directives indicate that section 4(2) is unlikely to find frequent application.
Although children frequently commit the kind of offences listed in Schedule 1, it is the clear intention of the Act that the vast majority of these offences should be diverted rather than committed for trial. 112en the offender is 21 years of age or older when criminal proceedings are initiated, 113 regardless of whether or not the crime was committed when this person was still a child, the Act cannot find application.Such a person can be charged, tried and sentenced only in terms of the provisions of the Criminal Procedure Act.

3.4
"…must … impose a sentence in accordance with this Chapter."

What the child justice court has to do
The last part of section 68 requires the child justice court to impose a sentence, and to do so "in accordance" with the chapter of which section 68 is part, namely chapter 10.The phrase "in accordance with" points towards procedure, as it means "in a manner conforming with". 114Is there any significance to this choice of words?
Certainly, chapter 10 contains both procedural and substantive provisions.Section 69, which contains the basic principles of sentencing, is a substantive provision, as are those sections containing the different sentencing options. 115Sections 70, 71 and 79 are purely procedural provisions, but many of the other provisions also contain procedural parts. 116There is no indication that the legislature attempted to separate substantive from procedural aspects in chapter 10, and it will be difficult to sustain any significance to the words "in accordance with".It is submitted that it was the intention of the legislature simply to point a child justice court to the provisions of chapter 10 as a first port of call after the conviction of a child offender.The sentences in chapter 10 are the following: community-based sentences, restorative justice sentences, a fine, correctional supervision, residence in a child and youth care centre, and imprisonment.Most of these sentences may also be imposed as suspended sentences.

The incorporation of the provisions of the Criminal Procedure Act
Although sentencing must take place in terms of the provisions of the Act, it is immediately apparent that chapter 10 of the Act is not self-contained.It does not contain all of the powers necessary to enable the child justice court to give the offender a fair sentencing hearing.There are several provisions in the Criminal Procedure Act 51 of 1977 with no equivalent in the Child Justice Act, but which are essential in the interests of child offenders, the victims of the crimes and/or the administration of justice.Such provisions include, for example, the authority to permit evidence necessary for the court to be properly informed about an appropriate sentence, 117 the right of the defence to produce evidence on sentencing and to address the court on a proper sentence, 118 the power of one presiding officer to impose sentence when the officer who convicted the offender is not available, 119 the power to order sentences to be served concurrently, 120 and the power to correct an incorrectly passed sentence.

Section 4(3)(a)
Section 4(3)(a) reads as follows: The Criminal Procedure Act applies with the necessary changes as may be required by the context to any person referred to in this section, except in so far as this Act provides for amended, additional or different provisions or procedures in respect of that person.
This provision is intended as a "catch-all" provision for the application of the Act.

Section 63(1)(b)
In terms of section 63(1)(b), the provisions of the Criminal Procedure Act relating to plea and trial proceedings have to be followed by child justice courts.It reads as follows: A child justice court must apply the relevant provisions of the Criminal Procedure Act relating to plea and trial of accused persons, as extended or amended by the provisions as set out in this Chapter [9] and Chapter 10.
The question is if this provision also involves the sentencing stage of criminal proceedings.The word "trial" is sometimes interpreted to include the sentencing phase as well. 124For example, in S v Khuzwayo125 the court rejected the trial magistrate's statement that diversion is possible only before conviction, clearly assuming that the "trial"126 includes the sentencing phase.For the purposes of interpreting section 63, such an inclusion is supported by the fact that chapter 10, which deals with sentencing, is specifically mentioned.However, the issue is confused by the inclusion of the term "plea".Since the plea stage might also be considered part of "a trial", the fact that it is specifically used would indicate that the term "trial" as used here should be understood in accordance with its narrow meaning, being the process subsequent to the plea, until the court's conviction or acquittal. 127In the end, it is difficult to find a clear indication of the legislature's intention with respect to the question of whether or not section 63(1)(b) should be extended to the sentencing phase.

Assessment
Neither section 4(3)(a) nor section 63(1)(b) provide for a clear incorporation of the sentencing provisions of the Criminal Procedure Act into the Child Justice Act.
There is no elegant solution to this problem.It is submitted that the following approach, given the general mood of the Act and its interpretive tools, is the best indication of the intention of the legislature.Section 4(3)(a) should be given a wider, "purposive" interpretation, not limited to the provisions in the Criminal Procedure Act that deal only with "any person", so that it applies to all of the sentencing provisions in chapters 27 and 28 of the Criminal Procedure Act, except in so far as any such provision or procedure has been amended or added to by the Child Justice Act, or in so far as they differ from those in the Criminal Procedure Act (in accordance with the words in s 4(3)(a) "amended, additional or different provisions or procedures").Such an approach would obviate the need to include the sentencing stage into the provisions of section 63(1)(b).
This conclusion would mean that all of the provisions noted above as being in the interests of the offender must be complied with by a child justice court.The same position should apply, for example, to section 271 of the Criminal Procedure Act, which specifically permits the prosecution to prove the offender's record of previous convictions.Other provisions which should be included are those dealing with fines: section 287 permits a sentencing court to impose a fine with alternative imprisonment, and sections 288 and 289 provide ways to recover a fine that has not been paid.
However, the sentences provided for in the Child Justice Act differ from those in the Criminal Procedure Act and it is submitted that section 4(3)(a) cannot be used to incorporate the provisions of the Criminal Procedure Act in connection with the nature of the sentences that may be imposed.Therefore, a child justice court may impose only those sentences specifically contained in chapter 10 of the Act and not, for example, sentences such as periodical imprisonment or committal to a treatment centre. 128Although this conclusion is not very clear from the above approach, it is submitted that it is the closest to the original intention of the legislature, as indicated in the Preamble and other interpretive tools in the Act.In particular, these considerations include the best interests of the child, and the need for sentencing measures "specifically suited to the needs of children".

Conclusion
It will not be possible to achieve the aims of the Child Justice Act through a too legalistic and literal interpretation of its provisions.Equally, it is impossible to consider its provisions on sentencing in isolation.The result is that, even when considering a provision as short and apparently to the point as section 68, there are no shortcuts to finding the legislature's true intentions.
Some of the potential pitfalls of section 68 include that the "child" offender who has to be sentenced need not be a "child", a person under 18 years old, which is what the term is lately generally taken to mean.And one of the biggest challenges is going to be to convince all role players that the sentences for child offenders are limited to those contained in the Act itself.
In essence there are two measures for the success of the new child justice system.
The first is how many children can be effectively diverted from the criminal justice system.The second measure is, when they cannot be diverted, how effective their sentences will be.A proper understanding of section 68 provides a corner stone for a foundation to effective sentencing in terms of the Child Justice Act.

66
Van Bueren International Law 169-199.See also, in connection with the African Charter, Wakefield and Assim 2011 Afr Hum Rts L J 716 (institutionalisation should be kept to a minimum).67 Article 40(1) of the Convention.68 Article 40(3)(b) of the Convention.69 In terms of s 3(i) of the Act.70 Such establishment was proposed by the South African Law Commission for the child justice (a) is alleged to have committed an offence when he or she was under the age of 18 years; and (b) is 18 years or older but under the age of 21 years, at the time referred to in subsection (1)(b), (a) the offence is a Schedule 1 offence, in other words, listed with the least serious offences; 109 or (b) the co-accused is a child; 110 or (c) there is doubt about the accused's age; or (d) the accused "appears to be intellectually or developmentally challenged"; Best Interests Principle: Towards a Reconciliation of Culture and Human Rights" 1994 IJLF 1-25 Ame 2011 Int'l J Children's Rts Ame RK "The Rights of Children in Conflict with the Law in Ghana" 2011 Int'l J Children's Rts 271-293 Badenhorst Implementation of the Child Justice Act Badenhorst C Overview of the Implementation of the Child Justice Act, 2008 (Act 75 of 2008) (Open Society Foundation Pinelands 2011) Barratt "Best Interest of the Child" Barratt A "'The Best Interest of the Child' -Where is the Child's Voice?" in Burman S (ed) The Fate of the Child: Legal Decisions on Children in the New South Africa (Juta Cape Town 2003) 145-157 Bedu 2009 Law, Democracy and Development Bedu R "The Final Curtain Call for the 'Minimum Sentences Act'" 2009 Law, Democracy and Development 96-104 Bekink and Bekink 2004 De Jure Bekink B and Bekink M "Defining the Standard of the Best Interest of the Child: Modern South African Perspectives" 2004 De Jure 21-40 Bennett 1999 Obiter Bennett TW "The best interests of the child in an African context" 1999 Obiter 145-157 Bonthuys 2002 SALJ Bonthuys E "The South African Bill of Rights and the development of family law" 2002 SALJ 748-782 Sloth-Nielsen and Mezmur 2008 Int'l J Children's Rts Sloth-Nielsen J and Mezmur BD "2 + 2 = 5? Exploring the Domestication of the CRC in South African Jurisprudence (2002-2006)" 2008 Int'l J Children's Rts 1-28 Snyckers and Le Roux "Criminal Procedure" Snyckers F and Le Roux J "Criminal Procedure: Rights of Arrested, Detained and Accused Persons" in Woolman S, Bishop M and Brickhill J (eds) Constitutional Law of South Africa 2 nd ed (Juta Cape Town 2006) ch 51 Snyman Criminal Law Snyman CR Criminal Law 5 th ed (LexisNexis Durban 2008) Steyn and Van Tonder Uitleg van Wette Steyn LC and Van Tonder SIE Die Uitleg van Wette 5 th ed (Juta Cape Town 1981) Terblanche 2007 SACJ Terblanche SS "Sentencing a child who murders -DPP, KwaZulu-Natal v P 2006 (1) SACR 243 (SCA)" 2007 SACJ 243-255 Terblanche Guide to Sentencing (1999) Terblanche SS The Guide to Sentencing in South Africa (Butterworths Durban 1999) Terblanche Guide to Sentencing (2007) Terblanche SS A guide to sentencing in South Africa 2 nd ed (LexisNexis Butterworths Durban 2007) Terblanche and van Vuren 1997 SACJ Terblanche S and van Vuren J "Wat gemaak met kindermisdadigers?" 1997 SACJ 170-185 15 See 2.5 below.16SeeGallinetti"Child Justice" 659-663 and GallinettiGetting to Know the Child Justice Act 53-57 for the most extensive discussions so far.Updated works on criminal procedure contain brief discussions, with Du Toit et al Commentary 28-29 stating that the Act "will in future be commented upon as case law and literature pertaining to Chapter 10 [the chapter dealing with sentencing] become available".See also Kruger Hiemstra's Criminal Procedure 28-60 to 28-63, and Joubert (ed) Criminal Procedure Handbook 339-342.17 See Jaga v Dönges 1950 4 SA 653 (A) 662 for an authoritative statement of this general principle of statutory interpretation.This judgment is frequently quoted by the Constitutional Court.See eg Bertie Van Zyl v Minister for Safety and Security 2010 2 SA 181 (CC) para 21; Du Toit v Minister for Safety and Security 2009 6 SA 128 (CC) para 37; South African Police Service v Public Servants Association 2007 3 SA 521 (CC) para 17.See also, eg, Picardi Hotels v Thekwini Properties 2009 1 SA 493 (SCA) para 5; Du Plessis "Interpretation" 287-288.
Mhlungu 1995 3 SA 867 (CC) para 112 (Sachs J stated: "The preamble in particular should not be dismissed as a mere aspirational and throat-clearing exercise of little interpretive value.It connects up, reinforces and underlies all of the text that follows.It helps to establish the basic design of the Constitution and indicate its fundamental purposes").
18 Before the constitutional era it was not common for legislation to include a preamble(see further Steyn and Van Tonder Uitleg van Wette 145-146).When it did, the preamble would be considered only when the legislation itself was unclear or ambiguoussee Law Union and Rock Insurance Co Ltd v Carmichael's Executor 1917 AD 593 597; Green v Minister of the Interior 1968 4 SA 321 (A) 327; S v Kola 1966 4 SA 322 (A) 326G-H; S v Heita 1987 1 SA 311 (SWA) 319J-320B; S v Davidson 1988 3 SA 252 (ZS) 254E-J; and even as recently as in Geyser v Msunduzi Municipality 2003 5 SA 18 (N).In NDPP v Seevnarayan 2003 2 SA 178 (C) para 58 such an approach was described as "antiquated".19 See S v 20 Du Plessis Reinterpretation 242; De Ville Constitutional Interpretation 146-151.21 The need for special protection stems mainly from children's greater vulnerability and immaturity, resulting in diminished criminal responsibility.See, from a vast volume of authorities, Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) paras 26-28, 35; Keightley "Children and the Legal System" 3; Junger-Tas "Trends in International Juvenile Justice" 510-511; Sloth-Nielsen "Chicken Soup" 7; Viljoen "African Charter" 338.
The whole ch 8 of the Act deals with diversion.For more detail about diversion in the Act, seeGallinetti "Child Justice" 656- 658; Sloth-Nielsen and Gallinetti 2011 PELJ 74-77; Joubert (ed)Criminal Procedure Handbook 74-79; Gallinetti Getting to Know the Child Justice Act 43-50.See further also Maguire 2012 New Crim L Rev 72, 79-83 (the Act establishes "a large-scale diversion programme").60 See, eg, Gallinetti, Muntingh and Skelton "Child Justice Concepts" 32; SA Law Commission Issue Paper para 7.1 et seq; Bedu 2009 Law, Democracy and Development 96. S 1 of the Act defines diversion as "diversion of a matter involving a child away from the formal court procedures", which is not particularly helpful.61 See further Skelton "Developing a Juvenile Justice System" 188-189.See also Gani v S 2011 ZAGPJHC 154 (14 Oct 2011) paras 13-20, where the court found that the case of a child with a previous conviction for shoplifting is precisely the kind of case that should now be diverted.62 See further Goldson and Muncie (eds) Youth Crime xviii (as only one example of many sources).63 From s 3(b) of the Act.64 See, for some indication of this, Maguire 2012 New Crim L Rev 108, 111.65 Van Bueren International Law 184 (emphasis added).
There are no equivalent provisions in either the Convention or the Charter, nor the earlier Beijing Rules.In fact, all indications from these instruments are that children should be treated less severely than adults.Van Bueren, one of the most influential authors on the Convention, writes as follows on this issue: 65 59 See further the Preamble; s 2(d) (it is one of the Act's objectives).
terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; and maintenance courts in terms of the Maintenance Act 99 of 1998.71 Section 1 of the Act.72 Section 1 of the Criminal Procedure Act 51 of 1977.73 See further Kruger Hiemstra's Criminal Procedure 28-60 (child offenders who are not diverted Section 342A of the Criminal Procedure Act 51 of 1977 specifically aims to monitor unreasonable delays in finalising criminal proceedings (see further Du Toit et al Commentary 33-16 to 33-16D, discussing some case law in this regard).Every accused person has the right "to have their trial begin and conclude without unreasonable delay" (s 35(3)(d) of the Constitution), as part of the right to a fair trial, but applicants find it hard to convince the courts that delays were unreasonable to the extent that they are entitled to some kind of remedy.See eg S v Pennington 1999 2 SACR 329 (CC) para 41; Broome v DPP, Western Cape 2008 1 SACR 178 (C) paras 44-48, for an overview of the law; also Snyckers and Le Roux "Criminal Procedure" 51-123 to 51-134.98 See further Van Bueren International Law 184 99 See Goldson and Muncie (eds) Youth Crime ix: "The presumption within the [Convention] is that the term 'child' refers to 'every human being below the age of eighteen years".100 See further Centre for Child Law v Minister of Justice and Constitutional Development 2009 2 SACR 477 (CC) para 39. 101 In terms of the proposals in SA Law Commission Report para 3.6 the juvenile justice legislation under 18) during sentencing from those who are no longer children at the time of sentencing.97 122It contains two conditions for the provision of the Criminal Procedure Act to apply to a Section 4(3) is so adamant about this "person" that it also links the "amended, additional or different provisions or procedures" to such a person (by reading "amended, additional or different provisions or procedures in respect of that person" emphasis added).The next question is who "any person" could refer to.It is firstly limited to "any person referred to in this section", clearing meaning section 4. The only persons that are referred to in section 4 are children and young adults who allegedly committed an offence.123Asjudicial officers are not referred to in section 4 at all, those powers in the Criminal Procedure Act given to judicial officers in order to facilitate the sentencing process or the sentences themselves cannot be read into this provision and, strictly speaking, such provisions in chapters 27 and 28 of the 122 See further the heading to s 4 of the Act.123 Although the NDPP and the DPP are also mentioned, they are not involved in the substance of sentencing.It is not even clear that such state officials could be a "person" (see, regarding whether or not organs of state are considered "persons", De Ville Constitutional Interpretation 109, contra Du Plessis Reinterpretation 208).