Protection of Children in the Criminal Justice System


Kimesha Govender

It is almost unimaginable that children are able to make themselves guilty of criminal offences, yet it is something that happens every day. Our law has however developed and implemented alternative measures for a child offender other than the normal court procedure to be tried and tested in criminal matters and this is called diversion.

The use of diversion in the law of Criminal Procedure with specific reference to the Child Justice Act 75 of 2008 (hereafter referred to as the Act) will therefore be discussed in this article.

The aim of diversion is to give a child offender a second chance by the prevention of a criminal record against the child’s name. Diversion aims to address the main reason for the causes of criminal behavior by implementing an appropriate diversion program or intervention. Irrespective of the nature of the offence and / or whether diversion had been used in previous cases regarding the child, it may be considered in all cases. One of the main aims of the Act was to set up a child justice system especially for children in conflict with the law. Due to the child justice system, children under the age of 18 who are guilty of committing a crime will no longer be dealt with in terms of the normal criminal procedure, but will be dealt with in terms of the child justice process.

There are a number of benefits that the Act provides for children and the country as a whole and many of these benefits have a long term effect. One of the benefits of the child justice system is that it heals the children as well as those that were affected by the child’s action. This process encourages forgiveness and rehabilitation as well as taking into consideration the needs of the child and the victim. The Act balances the rights and responsibilities of the child, the victim as well as the community. The victim or his / her families’ views are also taken into consideration by the prosecutor and the court when determining the diversion options. The child’s background or upbringing will be taken into consideration when determining the diversion option, this ensures the needs and circumstances of the children in conflict with the law are assessed before a decision is made on how the child should be dealt with. This process facilitates the healing and peace-making between the victim and the child offender. It also expands and entrenches the notion of restorative justice. There is a possibility of diverting matters involving children who have committed offences away from the criminal justice system as provided for in the Act. The Act makes it easier to assist with the rehabilitation and reintegration of the child offender back into society and his / her family in order for the child to make a useful contribution to society one day. These matters are dealt with higher priority as courts often fast-track children’s matters in terms of the child justice system, resulting in a reduction in the number of children awaiting trial.

The Act covers children between the ages of 10 and 18. According to the Act a child is someone who is under the age of 18. According to section 9 of the Act, children who are under the age of 10 and commit an offence cannot be arrested as these children do not have criminal capacity and cannot be charged or arrested for an offence. In this instance the child will be referred to the Children’s Court. According to section 10 of the Act a child older than 10 but below the age of 14 is also assumed to lack criminal capacity, however if the state proves that he / she has criminal capacity, the child can be arrested. A child above the age of 14 but under the age of 18 is said to have criminal capacity.

According to section 6 of the Act, in order to determine the seriousness of the offences for the purposes of this Act, the categories of offences are listed as offences contained in Schedule 1 which is considered the least serious offence, followed by offences contained in Schedule 2 and 3. Minor offences are defined as theft of property not worth more than R2 500.00, malicious damage to property that is not more than R1 500.00 and common assault.  More serious offences include theft of property worth more than R2 500.00, robbery which excludes aggravating circumstances, assault that includes grievous bodily harm caused, public violence, culpable homicide and arson. The most serious offences include robbery, rape, murder and kidnapping, amongst others.

Section 43 states that a preliminary inquiry may be defined as an informal pre-trial procedure that will be held 48 hours of the child’s arrest, before the first court appearance. It is inquisitorial in nature and may be held in a court or any other suitable place. The preliminary inquiry would be of a benefit to children accused of committing an offence. During the preliminary inquiry, a proper age determination of the child is made and this is also when the diversion process meets the needs of the individual child. Even if a child’s case is unlikely to be diverted, the preliminary inquiry is still necessary to determine where the child should be placed while awaiting trial.

There are various sentencing options provided for in section 55 of the Act and these sentencing options take the needs of the child into consideration. According to section 55(2) of the Act there are two levels of diversion options. Level 1 applies to offences referred to in Schedule 1 and level 2 applies to all other offences referred to in Schedule 2 and 3. Level one is a community based sentencing which allows the child to remain in the community. This sentencing option allows for community service under the supervision or control of an institution or organization or a specified person or group of persons identified by the court. There are also restorative justice options which involve the child, the victim, the families concerned and the community members who are all able to identify the damage, the needs as well as the obligations that arise as a result of the child’s act. Reconciliation can be promoted if the child accepts responsibility and makes some effort to prevent this type of incident from occurring.

Level 2 diversion option would be a fine or a symbolic restitution. The court may consider this option provided that the child is 15 years or older as an obligation is placed on the child to provide some service or benefit. An offer to pay the fine or to make another form of symbolic restitution would also be sufficient. Correctional supervision is another option which can be determined by the courts and in this instance the child will be supervised by the Department of Correctional Services to do what is listed in the court order. A child could also be ordered by the court to attend a non-custodial sanction program such as a school program or the child could be sentenced to stay in a child and youth care centre for a specific amount of time. Depending on the seriousness of the offence and as a measure of last resort, a child could also be sentenced to direct imprisonment in correctional facilities for the shortest appropriate period. However, a child under the age of 14 may not be sentenced to imprisonment.

Herewith a step-by-step summary:

  1. If child is suspected to have committed an offence, the child will be apprehended by the police and depending on the seriousness of the alleged offence, the child may be warned, summoned or arrested to appear at a preliminary inquiry.
  2. The child and his / her parents or care givers will be informed of the charges laid against the child, the child’s rights, the immediate procedures to be followed and the date, time, place where the child must appear in court.
  3. Every child who is alleged to have committed an offence must be assessed by a probation officer.
  4. The parent or care givers or police must bring the child to court.
  5. A preliminary inquiry will be held to inquire into the matter and to decide on the appropriate way to deal with the child and whether diversion should be used.
  6. At the preliminary inquiry there are four possible steps that may be taken:
  • If the child is in need of care or protection, the matter will be referred to the Children’s Court which will determine suitable interventions.
  • If the child accepts responsibility, it may be recommended at the preliminary inquiry that the child be diverted. If the child does not complete or comply with the diversion, he / she will be brought back to court.
  • If no diversion order is made by the court, or the child is not found to be a child in need of care and protection, the case is referred to the Child Justice Court for trial.
  • If the matter has been referred for trial in the Child Justice Court, the preliminary inquiry Magistrate will decide on the detention or release of the child pending the finalisation of the criminal case.
  • At the end of the trial the child may be convicted and sentenced or acquitted.

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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