Sixteen- and seventeen-year-olds affected by new minimum sentencing laws can have their sentences reviewed, following a Constitutional Court judgement on Wednesday.

The Court held that the new law, which came into effect in 2008, forced sentencing officials to impose prison as a minimum sentence in some cases, taking away their discretion when dealing with people the Constitution regards as children.

The Court did not agree that the sentences of those already affected should be set aside, but instead ordered that the government compile a list of their details which should include case numbers and sentencing dates.

Those affected could then apply to have their sentences reviewed.

The Court found that Parliament did have the right to deal with 16- and 17-year-old offenders through the imposition of long sentences.

But it felt the Criminal Law (Sentencing) Amendment Act (CLAA), which came into effect on December 31, 2007, unjustifiably infringes the protections the Bill of Rights affords to children under the age of 18 by forcing sentencing officers to impose the minimum sentence.

The Centre for Child Law at the University of Pretoria challenged the statute. The respondents were the Minister of Justice and Constitutional Development, the Minister of Correctional Services and the Legal Aid Board.

On November 4, 2008, the High Court in Pretoria upheld the challenge and granted an order of Constitutional invalidity declaring various provisions of the amendment invalid.

Before the amendment, the minimum sentencing regime established by the CLAA had limited application to children who were under 18 at the time of the offence. The amendment applies the minimum sentencing regime to all such children.

The High Court found that it was against the Constitution's principles of imposing imprisonment as a last resort, and for the shortest appropriate period of time, for people under 18.

The centre had wanted all the children affected to be brought before court again to have their sentences reconsidered.

Handing down the judgement, Justice Edwin Cameron said the Constitution recognised that children were more prone to influence and whims and that the amendment went against that.

"The Constitution requires an individuated judicial response to sentencing for children that focuses on the particular child who is being sentenced."

The majority of the judges found that the minimum sentencing regime took the sentencing officers away from options other than prison. They could decide on the individual circumstances, and it led to longer sentences.

The Court issued an order requiring government to identify all child offenders sentenced under the relevant provisions since
January 2008, so that appeals or reviews could be brought on their behalf.

Four of the judges wrote a dissenting judgement but the majority judgement stands.