(Information taken from Child Gauge 2007/2008)

The ‘best interests’ principle applies to all children, and the Constitution contains specific provisions to protect children in conflict with the law. Over and above the general protections for all accused people, the Constitution states that children should only be detained as a measure of last resort, for the shortest appropriate period of time, and they must be held separately from adults and in conditions that take account of their age. This means that the criminal justice system should treat children with special care.

The current legislation governing the criminal justice system does not recognise children’s vulnerabilities nor does it provide special protection to children in conflict with the law. Therefore, the Child Justice Bill was written to reform the law in line with the constitutional and international obligations.

Current Status
The Bill was tabled in Parliament in 2002 and the Portfolio Committee on Justice held public hearings and deliberated on the Bill in 2003. The process stalled until November 2007 when a revised Bill was referred back to Cabinet for approval. Fresh public hearings were held on the new draft in early 2008.

Children’s capacity to be held criminally liable for their actions
The Child Justice Bill raises the minimum age at which a child is considered to have ‘criminal capacity’ from seven to 10 years of age. Children under 10 years do not have criminal capacity and therefore cannot be arrested or prosecuted; instead they must be referred for social services if they commit a crime.

Children older than 10 but younger than 14 years may be arrested and prosecuted, but they are “rebuttably” presumed to lack criminal capacity. In other words, the prosecutor must prove to the court that the child knew the difference between right and wrong and had the capacity to act on that knowledge before the prosecution can proceed.

Children who are 14 years or older are considered to have full criminal capacity.

Focus on diversion and restorative justice
The original version of the Bill said that, when any child is charged, a probation officer must assess the child. The probabtion officer must make recommendations for the release or detention of the child, the diversion of the child and also assess whether the child needs care and protection. After the assessment and preliminary inquiry is held.

A preliminary inquiry is a new procedure introduced into the criminal justice process aimed at the comprehensive and individualised management of the accused child. During such an inquiry, the court must proactively consider whether the child needs care and protection and whether the child can be diverted away from formal court procedures. Diversion programmes aim to help the child make amends for the crime, and to heal the child and the victim or community affected by the crime.
Whilst the 2002 version of the Child Justice Bill allowed for all children to be assessed and attend a preliminary inquiry, the 2007 version now excludes certain children based on their age and the nature of the alleged offence.

Of further concern is that the Criminal Law (Sentencing) Amendment Act (No38 of 2007) provides that children over 16 who are convicted of certain serious offences are also subject to minimum sentencing legislation, which requires life imprisonment as a first resort. The Child Justice Bill is silent on this isse and therefore mandatory minimum imprisonment sentences are now a reality for children. If the Child Justice Bill is passed in its 2007 form, South Africa will not be in compliance with its constitutional and international obligations regarding children in conflict with the law.

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