Resolving ambiguity in imprisonment as last resort when sentencing child offenders

Abstract

This research examines a guideline that courts can use to eradicate, or rather, mitigate the uncertainty faced by a child in conflict with the law. To this end, the research consults with domestic laws, international laws, case laws, and foreign laws. Section 28(1)(g) of the Constitution and 69(1)(e) of the Child Justice Act provides that every child has the right not to be sentenced to imprisonment unless it is a measure of last resort, and it is only for the shortest period of time appropriate. Upon consulting various judgments passed by courts dealing with child offenders and commentaries by legal scholars, it becomes evident in this study that there is currently uncertainty regarding when a child offender ought to be sentenced to imprisonment, and what the shortest period appropriate for a child offender ought to be. The Child Justice Act is the primary instrument in South Africa for child justice. However, despite this instrument having principles and objections to be considered when sentencing child offenders, it appears that the uncertainty still exists. This uncertainty identified a gap in the South African child justice system that requires closure by establishing clear guidelines for courts to use. In order to develop this guideline, international law, foreign law, and case laws were considered.