A look at criminal liability for the youth of SA

– Jacques Brits

As a parent one cannot control the actions of one’s children. Still the duties of a parent, as confidant and primary support system to one’s child will continue and one will have to endure this difficult and challenging path with him or her. The purpose of this article is to provide the basic principles as provided by the Child Justice Act, 75 of 2008 (hereinafter referred to as the “Act”).

When will the Act be applicable?

The Act stipulates that it is applicable on all children, which is defined as any person under the age of 18 years and1, in certain circumstances, means any person who is alleged to have committed an offence when he or she was under the age of 18 years.2

Children’s rights under the Constitution of South Africa3?

Section 28(2) of the Constitution of South Africa, 1996 (hereinafter referred to as the “Constitution”), confirms that the best interest of a child is of paramount importance in all matters concerning a child. From a criminal liability perspective, section 28(1)(g) of the Constitution specifically states that a child may only be detained as a measure of last resort, and if so, he or she may only be detained in isolation for the shortest period of time, taking into account the child’s age. Due to the aforementioned principle, children’s appearances at preliminary enquiries will be ensured by way of either a written notice or a summons.4

Presumptions in respect of criminal liability?

In accordance with the laws of South Africa, a child under the age of 10 years lacks criminal capacity and can therefore not be held liable for his or her actions5. A child of this age may not be arrested, and must immediately be handed over to his or her parents or natural guardians, pending an investigation and report by a probation officer.6

A child between the age of 10 and 14 years old also lacks criminal capacity, but the law affords an opportunity to the state prosecutor to prove the contrary, with the assistance of the report provided by the probation officer.7

A child under the age of 18, but older than the age of 14, is considered to have criminal capacity and can be held liable for his or her actions in committing the crime.

Preliminary enquiries and the purpose thereof?

The Act described a preliminary enquiry as an informal pre-trial procedure which is inquisitorial in nature and may be held in a lower court or any other suitable place. This is also the child, parent and probation officer’s first appearance in a lower court after the alleged incident had taken place. 8

A preliminary enquiry is an essential part of the child justice process, with its objectives being:

• to consider the assessment report by the probation officer;
• to establish whether diversion could take place before the plea;
• to ensure that all the information with regards to the child is known and considered;
• to encourage participation of the child, his or her parent and any other adult concerned with making decisions regarding the child;
• to determine the release or placement of the child.9

An escape hatch called “Diversion”?

Diversion can be defined as a process in which an accused escapes the formal criminal proceedings including trial, conviction and the inevitable criminal record.10 This option may be considered when taking into account any circumstances surrounding the case, previous diversions made, acknowledgement of responsibility by the child, the nature of the case and whether the parents or guardian of the child consents to diversion.11 Some diversion options available are a compulsory school attendance order, a family time order, a good behaviour order, a peer association order, a reporting order and supervision and guidance order.12

If diversion is not considered to be an option, a trial will proceed in a child justice court. Some sentencing options available to the court are community-based sentences (similar to diversion options), restorative justice sentences (victim offender mediation), fines, correctional supervision, compulsory residence in a youth care centre and in extreme cases imprisonment.13

Is your child in trouble? Contact our team of experts on 012 362 5787 and let us assist you.

1 Section 1 of the Child Justice Act, 75 of 2008

2 Section 4(2) of the Child Justice Act, 75 of 2008: but still under the age of 21 years old.

3 Section 28 of the Constitution of the Republic of South Africa, 1996

4 Section 17, 18 and 19 of the Child Justice Act, 75 of 2008

5 Section 7 of the Child Justice Act, 75 of 2008

6 Section 9 of the Child Justice Act, 75 of 2008

7 Section 7, read with section 11 of the Child Justice Act, 75 of 2008

8 Section 43 read with section 44 of the Child Justice Act, 75 of 2008

9 Section 43 of the Child Justice Act, 75 of 2008

10 SS Terblanche PER “The Child Justice Act: a detailed consideration of section 68 as a point of departure with respect to the sentencing of young offenders” Vol 15   December 2012

11 Section 52(1) of the Child Justice Act, 75 of 2008

12 Section 53 of the Child Justice Act, 75 of 2008

13 Sections 72 – 77 of the Child Justice Act, , 75 of 2008

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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