<!—June 2017 NEWSLETTER–>
IS YOUR CHILD IN TROUBLE
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 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
WHEN CAN YOU START “ADULTING”?
– Karolien van Wyk
Every teenager knows that as soon as he or she turns 18, they are seen as an adult in the eyes of the law and they no longer have to answer to their parents. (Just kidding, you will always have to explain your actions to your parents.) This is in accordance with the Children’s Act1, as well as the Constitution of South Africa2, but what every teenager might not know is that our law affords them certain choices they can exercise on their own from a younger age.
Below is a list of “adult” decisions that can be taken by minors, even under the age of 18 years:
Wills and estates
A child at the age of 16 can open and operate a bank account and enjoy all the privileges thereof, and be held liable for all the obligations and conditions applicable to it as if they were a major3. Due to the fact that they now have something that can be inherited, a child can also draft his or her own valid will at the age of 164. At the age of 14, a child can be a witness to a will, as long as he or she will not inherit anything in terms thereof5.
Age and employment
It is prohibited to employ a child under the age of 15 years or under the minimum school-leaving age6. The minimum school-leaving age is the last school day of the year the child turns 15, or the age at the end of Grade 9 – whichever comes first.
However, there are regulations which prohibit or place conditions on the type of work performed or the environment in which the work may be performed by minors, for instance a person under the age of 18, but over the age of 16 may only work underground as part of occupational education or training, if not for these purposes, the person must be a major7. At the age of 16 a child may be a reservist for the Fire Brigade, provided that they have their parents’ consent8. A child can be employed in the liquor industry in activities relating to the manufacturing or distribution of liquor from the age of 16, but they may not import, produce or supply it to anyone at that age9.
The law differentiates between medical treatments and medical operations with regards to the requirements of a child to choose whether they want same or not. In the case of medical treatment a child over the age of 12 may consent to his or her own medical treatment or consent to medical treatment for his or her own child if the minor parent is sufficiently mature and has the mental capacity to understand the benefits, risks and social implications of the treatment10 On the other hand, a child over the age of 12 may also consent to surgical operations to be performed on him- or herself as well as on his or her own child. However, in this case the child / minor parent must always be duly assisted by his or her own parent or guardian.11 A child over the age of 12 years also has the necessary capacity to refuse medical treatment or surgical operations.
Donation of blood and other human tissue
One facet of “adulting” is also caring for fellow human beings. A child at the age of 14 can consent to donating his or her blood or replaceable human tissue12. Should the process involve surgery, the child should also be sufficiently mature to be able to make such a decision and must still be assisted by his or her parent or guardian in making the decision. At the age of 16 a child can agree to donate his or her body or any specific tissue in the event of his or her death13. This age coincides with when a child can make a valid will, so the child can put his or her wishes in a will.
Citizen duties and rights
At the age of 16 one can apply for an identity document and register as a voter14. However, the person’s name will only appear on the voters roll once that person becomes 18 years old15. By becoming a registered voter you start your path towards “adulting” as you can now voice your opinion by casting your vote. Another positive thing about obtaining an identity document, is that the first one is free.
The above list is only a few examples of instances where someone under the age of 18 will have the necessary capacity to make their own choices, and to start “adulting”. Just remember that you should still always listen to your parents, no matter the legal age of majority.
1 38 of 2005, Section 17
2 108 of 1996, Section 28(3)
3 Banks Act 94 of 1990, Section 87(1); Mutual Banks Act 124 of 1993. Section 88(1).
4 Wills Act 7 of 1953, Section 4
5 Wills Act 7 of 1953, Section 1
6 Basic Conditions of Employment Act 75 of 1997, Section 43; South African Schools Act 84 of 1996, Section 3.
7 Mine Health and Safety Act 29 of 1996, Section 85.
8 Regulations in terms of the Fire Brigade Service Act 99 of 1987: Fire Brigade Reserve Force. Government Gazette No 15431, Government Notice No 78, 21 January 1994, Regulation 3(c)
9 Liquor Act 59 of 2003. Sections 8(1) and 10(6), read with section 1
10 Children’s Act 38 of 2005, Section 129(2) and Section 129(4) read with Section 31.
11 Children’s Act 38 of 2005, Section 129(3) and Section 129(5) read with Section 31
12 Human Tissue Act 65 of 1983, Section 18(aa) read with definition of a ‘competent witness’.
13 Human Tissue Act 65 of 1983, Section 2 read with Section 4 of the Wills Act 7 of 1953
14 Identification Act 68 of 1997, Section 15
15 Electoral Act 73 of 1998, Section 6
ADOPTION IN SOUTH AFRICA EXPLAINED
– HJD Robertson
“A hundred years from now it will not matter what my bank account was, the sort of house I lived in, or the kind of car I drove… but the world may be different because I was important in the life of a child.” – Forest E. Witcraft
Adoption might seem like a difficult process as not everyone knows what exactly to expect and what it entails. This article explains the adoption process in five essential steps.
Firstly, the potential parents have to choose a social worker or adoption agency, who will facilitate the adoption on their behalf and who will guide them through the process. This is a very important step as the adoptive family needs to get along with and trust the person who will be assisting them in selecting a child. It is therefore advisable to contact the National Adoption Coalition for a list of reputable social workers and agencies.1
The screening process will be the second step. This starts with an interview with the social worker. He or she will then provide the potential parents with a list of documents they need to obtain for example police clearance certificates, physiological assessments, a clearance certificate for the National Child Protection Register and Register of Sexual Offenders etcetera. This might sound quite daunting, but it is not time consuming and it has minimal financial inputs.
Once all the documents have been handed to the social worker he / she will enlist the potential parents on the National Adoption Database and start searching for a child.
The next step is simply waiting for the child. Unfortunately this step can take time and patience, but it will be worth it in the end.
The penultimate step in the adoption process is meeting with the child for the first time. The social worker will inform the potential parents as soon as a child becomes available for adoption. He or she will schedule a meeting with the potential parents with the purpose of discussing the child’s history and profile.
Should the potential parents wish to proceed with the adoption, the potential parents will meet the child. The first meeting will take place in a so-called place of safety. During this initial visit the potential parents will be allowed to interact with the child by bathing, feeding and playing with him or her. After the initial meeting the potential parents get to take the bundle of joy home, to be in their temporary care.
The final step is complying with the legalities. It is strongly advisable to obtain the services of an attorney specializing in family law, as an application for adoption at the Children’s Court will be the next step in the process. The attorney will commence the formal adoption process by obtaining a hearing date, drafting all the required documents and representing the potential parents in the motion process. If the Court is satisfied with the application, an adoption order will be granted. The adopted child is now considered to be the adoptive parent’s biological child, with all the rights and privileges associated herewith.
It is difficult to give an exact time frame of the entire process, but on average a period of two years is to be expected.
This newsletter 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.
<!—MAY 2017 NEWSLETTER–>