Mr Mandla Mpofu was convicted of murder, kidnapping, assault, robbery with aggravating circumstances and unlawful possession of firearms and ammunition, and was sentenced to twenty years imprisonment.  At the time he committed the crimes, Mr Mpofu claimed he was sixteen years old, and he has appealed his sentence on the basis that the High Court did not adequately take into account the rights of children in section 28 of the Constitution, and specifically that “every child has the right not to be detained except as a measure of last resort….[and] the child may be detained only for the shortest appropriate period of time“.

The Majority of the Constitutional Court, in a judgment written by Justice Skweyiya and concurred in by Chief Justice Mogoeng, Deputy Chief Justice Moseneke and Justices Cameron, Froneman, Jafta, Zondo and Yacoob dismissed Mr Mpofu’s application for leave for appeal and application on the basis he had not shown he was under 18 at the time the offence was committed, and so section 28 would not relevant. In addition, the application for leave was made more than 10 year s after Mr Mpofu’s sentence, and despite two additional applications for leave to appeal that did not raise the issue of his age, was not adequately explained.

Justice Van der Westhuizen wrote a dissenting judgment finding that on the wording of the High Court judgment, Mr Mpofu was a child at the time of the offence, and the High Court had failed to take this into account during sentencing. Justice Van der Westhuizen would have set aside the sentence and replaced it with one of 20 years imprisonment. Justices Nkabinde and Khampepe concurred in this judgment.

Download the judgment here.