Interpreting our laws to protect our children

Please note that this article is extracted from the Legal Resources Centre’s 2012 Annual report

Logan Mosieling v The State

In early 2012, the Legal Resources Centre went to court on behalf of the Children’s Rights Project of the Community Law Centre, in the matter of minor children convicted of criminal offences. The Child Justice Act, 75 of 2008, is a new piece of legislation and when it was enacted, there was no clarity on the issue of automatic review and there have been a number of contradictory judgments in courts. The LRC hoped that this case would provide clarity.

The case concerns a 15-year-old boy who was charged with possession of drugs. He pleaded guilty to the charge and was found guilty. Sentencing was postponed for a period of one year and he was ordered to submit to the supervision and control of a probation officer. We argued that, when a minor child is convicted of an offence in a Child Justice Court, and if that child should fall into certain categories relating to age and sentence, the conviction and sentence must be automatically reviewed by the High Court. Such an interpretation is in line with the constitutional, regional and international obligations of South Africa.

In the judgment handed down by the Western Cape High Court, it was held that all cases referred to in Section 85 of the Child Justice Act should be the subject of automatic review. The court recognised that the Child Justice Act aims to afford children who are in conflict with the law special protection and specific safeguards. This affirms the constitutional principle that the best interests of the child is of paramount importance in all matters that concern children.

Director of Public Prosecution v Prins*

The Centre for Child Law, represented by the LRC, was admitted as amicus curiae (friend of the court) in the Supreme Court of Appeal, following a decision by the Western Cape High Court in a matter concerning charges brought in respect of sexual offences under the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007.

In an unanimous judgment, the Supreme Court of Appeal overturned the Western Cape High Court decision which found that criminal charges could not be prosecuted in respect of sexual offences under the Sexual Offences Act because of the absence of penalty provisions in that Act. The High Court judges had noted that the act provided no punishment for indecent assault (the charge in this case), and that, in terms of the principle of legality, as summed up in the Latin maxim nulla poena sine lege (no penalty without law), there is no crime unless and until a law says so and no punishment for an offence unless and until a law says so.

The LRC emphasised the rights of victims of sexual offences, particularly children, in the constitution and under international and regional conventions such as the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. We submitted that the High Court’s judgment ignored these constitutional and international rights of children.

The SCA held that the penalty provisions found in the Criminal Procedure Act, 51 of 1977, empower courts to impose sentences in cases where a person is convicted of sexual offences under the Sexual Offences Act. The fact that the Act itself does not contain penalty provisions does not justify the quashing of charges laid under the Sexual Offences Act. Furthermore, the SCA held that the constitutional principle of legality is satisfied by reference to the sentencing powers enjoyed by all courts under the Criminal Procedure Act. The judgment concluded by setting aside the order of the Western Cape High Court.

* Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA)

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realisingrights

The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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