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Juveniles who commit crime in South Africa are prosecuted under the Child Justice Act of 2008 (Act number 75 of 2008). The Child Justice Act was signed into law on 14 May 2008 and started working in April 2010. This law and how it works is outlined by the Department of Justice and Constitutional Affairs (2010) and will be discussed below.

2.4.1 What is Child Justice Act?

The main principle of this act is to move children from being prosecuted under the Criminal Procedure Act, 1977 (Act 51 of 1977), which deals with adult criminals. It sets a system of dealing with children in conflict with the law separately from adults. Children that are covered in this law are those below 18 years old. It uses the rights-based approach that aims to help juveniles to turn their lives around and become productive citizens of society. Different sentencing and rehabilitations options are utilised such as restorative justice, diversions and other alternatives.

The Act aims to use detention of children only as a last resort and for the shortest appropriate period of time. It encourages the release of arrested children as soon as possible in the care of their parents. Non-custodial sentences are prioritised like diversions where offenders receive intervention based on their individual circumstances aimed at preventing them from reoffending. Checks and balances are put in place to ensure the effectiveness of the diversion. If the child does not comply with the

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requirements set in the diverted sentence, he can revert back to the courts where a custodial sentence can be applied.

2.4.2 Who is covered by the Child Justice Act?

The law states that children between the ages of 14 and 18 have criminal capacity to commit crime and can be arrested. Children in this category are juveniles who are prosecuted under this Act. Children older than 10 years but below 14 cannot be arrested unless the state proves beyond doubt that such a child has capacity to commit crime. Children below the age of 10 are deemed to have no capacity to commit crime, hence they cannot be arrested.

2.4.3 Offences covered by the Child Justice Act

2.4.3.1 Minor offences

These include property theft worth not more than R2500, malicious damage to property not more than R1500 and common assault.

2.4.3.2 More serious offences

These include:

• theft of property worth more than R2500, robbery but not robbery with aggravating circumstances;

• assault including causing grievous bodily harm; • public violence;

• culpable homicide; and • arson.

34 2.4.3.3 Most serious offences

These include: • robbery; • rape;

• murder; and • kidnapping.

2.4.4 How the Child Justice system works?

The system works in stages described below:

2.4.4.1 Preliminary Inquiry

The preliminary inquiry is an informal set up which takes place within 48 hours of the child’s arrest. This takes place before the first court appearance. It is attended by the magistrate, child, the child’s parents or guardian, prosecutor, probation officer, arresting police officer and a legal aid attorney.

In this inquiry, people concerned speak to the child about factors that may have led to the crime. They try to assist the child to accept the wrong doing and take responsibility. If the child accepts his wrong doings, a plan is created to resolve the original crime so that he does not continue with it. The child is then assessed and recommendation made by the probation officer which will be considered when sentencing.

The Child Justice Act gives the presiding officer the duty to explain the nature of the allegations levelled against the child to him or her. He should also inform the child of his or her rights and also explain the procedure to be followed in the trial. From the preliminary inquiry, a decision is made whether the child should get a non-custodial sentence or to go to court for custodial sentence. If the magistrate makes a diversion

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decision, a court order is also issued to the probation officer or any suitable person to monitor the child and report to the court whether the offender is doing as ordered.

2.4.5 Sentencing options

2.4.5.1 Community based options

These may be in the form of family group conference where the families involved come together with the relevant authorities to rehabilitate the offender.

2.4.5.2 Restorative justice

This is a reconciliation process where the juvenile offender, the victim and the families concerned, community members sit together to identify the damages, needs and obligations that arise as a result of the child’s action. If the child accepts responsibility, some measures are put in place to prevent this type of incident from happening again. This process can be handled through victim-offender mediation.

2.4.5.3 Fine or symbolic restitution

A fine can be paid by the offender or a symbolic restitution can be performed for an example fix the broken door. The offender can also offer to provide a service.

2.4.5.4 Correctional supervision

The Department of Correctional Services may be ordered by the court of law to supervise a child offender to check if he or she is doing what the court has ordered.

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2.4.5.5 Attendance of a non-custodial sanctions programme

An offender may be asked to attend a relevant programme outside prison that will help him to stay out of crime. An example is where an offender can be sent for anger management course.

2.4.5.6 Youth Care Centre

A child offender may be ordered to stay at a youth care centre for a specified period of time. When a juvenile is placed in such a centre, the court and the youth care centre must coordinate to review the sentence.

The youth care centre is expected to give the best care intervention and services to prevent the juvenile from going for imprisonment sentence at the end of the Youth Care Centre sentence. It is for this reason that a child can only be referred to service providers that are accredited in terms of the act and meet the minimum standards to facilitate meaningful outcomes of a diversion programme.

2.4.6 Procedure of the Act

2.6.1 The police arrest the child who is alleged to have committed a crime. The arresting officer must notify the probation officer not later than 24 hours after arrest.

2.4.6.2 Preliminary inquiry

A preliminary inquiry takes place. During the inquiry, the juvenile may be placed in a youth centre or in police custody. The following people take part in the preliminary inquiry:

 Presiding officer;  Prosecutor;  Police;

37  Probation officer;

 Child; and

 The child’s parents

These people sit and deliberate on the matter and come up with the most suitable sentence option for the child that will help him stay away from doing the same crime.

2.4.6.3 The child must be taken to court not later than 48 hours after arrest

2.6.4 The probation officer must assess the child within a specific time and submit his or her report to the presiding officer (magistrate). In collaboration with the presiding officer then decides on the appropriate sentence.

2.4.6.5 Sentence

Sentence judgement is passed but the act encourages non-custodial sentences for juveniles. Where the presiding officer is convinced that a child deserves to be sentenced, a sentence not exceeding 25 years may be imposed.

2.4.6.6. Stakeholders involved in the Child Justice Act

• The Police are responsible for the arrest of the child and to ensure that the child goes to court.

• The Department of Social Development provides probation officers to assess the child and give recommendations in sentencing.

• The Department of Justice and Constitutional Affairs provides human resources such as magistrates.

• The National Prosecuting Authority provides prosecutors.

• The Department of Correctional Services detains and manages children awaiting trial and sentenced children separately from adult prisoners.

• The Department of Basic Education monitors compulsory school attendance orders and raises awareness of school going age.

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• Legal Aid South Africa provides legal representatives for children

• The Department of Home Affairs ensures that detained children get identity documents if there is need.