Crimes committed by the youth is a major social problem nationally and internationally. However, there is very limited information on the issue in South Africa.

According to the latest available statistics, there were about 26 000 people between the ages of 14 and 21 in the justice system and about 49 000 between the ages of 21 and 25. The nature of serious offences committed or allegedly committed by about 4 500 children under the age of 18 who were awaiting trial or sentenced was alarming. There were 2 000 offenders for economic-related crimes; 1 800 aggressive crime offenders; 500 offenders for sexually related crimes; and 200 offenders for drug-related crimes and other offences.

Section 28 of the Constitution emphasises the best interests of children. It singles them out for special protection, providing safeguards for children in conflict with the law. In broad terms, the Child Justice Act 75 of 2008 (the Act) is intended to establish a separate criminal justice system for children who are accused of committing offences. It gives effect to section 28 of the Constitution and South Africa’s obligations as signatory to the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.

The Act raises the minimum age of criminal capacity for children from 7 to 10 years. Children under the age of 10 can therefore not be prosecuted for any crime. Children between the ages of 7 and 14 are presumed to lack the capacity to act wrongfully or criminally unless the state proves beyond reasonable doubt that the child was able to appreciate the difference between right and wrong at the time the offence was committed and acted in accordance with that appreciation.

The Act places great emphasis on the assessment of children in conflict with the law soon after they are accused of committing an offence in order to ensure that their individual needs and circumstances are taken into account. It also provides for special processes for their attendance at court, their release from detention, as well as their placement, if they are required to remain in custody. Arrest is a measure of last resort, and the Act emphasises other methods of securing their attendance in court.

The Act creates an informal inquisitorial, pre-trial procedure called a preliminary inquiry. This is attended by the child, his or her parents or guardian, a legal representative, a probation officer, a prosecutor and the inquiry magistrate. The purpose of a preliminary inquiry is, among other things, to consider the probation officer’s assessment report, determine the criminal capacity of a child between 10 and 14 years, and, if necessary, establish whether the matter can be diverted. “Diversion” involves keeping a defendant out of the criminal justice system by having them complete a diversion programme rather than being incarcerated or serving an alternative sentence. Criminal charges are typically dropped when a defendant successfully completes a diversion programme.

If diversion is decided on, the inquiry considers an option suited to the needs of the child and proportionate to the nature of the offence. It also determines whether the child will be released or placed in custody. A central function of the preliminary inquiry is to ensure cases are handled in the best interests of children by diverting matters involving them away from formal criminal proceedings, where appropriate. Where a matter involving a child is not diverted, the Act provides for it to be adjudicated in specially constituted child courts. It provides for a wide range of new sentencing options specifically suited to the needs of children, with an emphasis on restorative justice where the victim and members of society play an important role.

The object of the Act is to protect the rights of children as provided for in the Constitution and to promote the spirit of Ubuntu in the child justice system. It does so through fostering children’s sense of dignity and self-worth, reinforcing their respect for human rights and the fundamental freedoms of others by holding children accountable for their actions while safe-guarding the interests of victims and the community. It supports reconciliation through restorative justice, which involves parents, families and victims and encourages the reintegration of children into society.

The Act further provides for the special treatment of children in the child justice system in order to break the cycle of crime. This contributes to safer communities and encourages these children to become law-abiding and productive adults. It also prevents children from being exposed to the adverse effects of the formal criminal justice system by using, where appropriate, options more suitable to the needs of children and in accordance with the Constitution. The Act promotes co-operation between government departments, non-governmental sectors and civil society to ensure it is implemented in an integrated and holistic manner.

The system focuses on the rehabilitation of offenders through reconciliation with victims and the wider community. This is particularly important when it is a minor offender because children are the future of society.

By Kwena Madinginye

LindsayKeller Associate