is sent to prison, he cannot be sent to one for first offenders only, or to one where juveniles are effectively kept apart from adult criminals, for no such facilities yet exist in this country."[1]
[72] Apart from drawing attention to the distressing fact that some legislation still permitted the whipping of females, Mitchell J's remarks in fact summarised what turned out to be the central argument proffered by the State in favour of the retention of juvenile whipping. If the option of corporal punishment is taken away, so we were warned, many juveniles who would not otherwise have been sent to gaol would now have to be imprisoned. 86
[73] Pickering J's approach in S v Sikunyana[2] appears to be more helpful in that it gives implicit recognition to alternative correctional supervision sentencing options and the need for courts not to be "unduly hamstrung" by administrative and other difficulties in implementing community service orders.[3] It would therefore seem that notwithstanding the daunting problems highlighted by Mitchell J in 1990, the prospects for more enlightened sentencing options have improved.
[74] To the extent that facilities and physical resources may not always be adequate, it seems to me that the new dynamic should be regarded as a timely challenge to the State to ensure the provision and execution of an effective juvenile justice system. The wider range of penalties now provided for in the Act[4] permits a more flexible but effective approach in dealing with juvenile offenders.
- ↑ Supra note 83, at 94I–J.
- ↑ 1994(1) SACR 206 (Tk).
- ↑ Id. at 210G.
- ↑ In addition to the provisions of section 290(supra), a juvenile may also be dealt with in terms of other sections of the Act, such as, section 287 [fine]; section 297(1)(a–c) [postponing sentence conditionally or unconditionally, suspended sentence subject to conditions; caution and discharge]; sections 276(1)(h) and 276A [correctional supervision]; and converting the trial to an enquiry in terms of the Child Care Act No. 74 of 1983. The latter course has 4 options, namely: (i) placing the child in the custody of a suitable foster parent; (ii) sending the child to a designated children's home; (iii) sending the child to a designated school of industries; (iv) returning the child to the parent or guardian, under … supervision of a social worker.
