Section 139 of the SSCA provides that a police officer may arrest, without warrant, the child who allegedly committed the crime only in the case of serious offences, and where there is no alternative to the arrest. In addition, the child who has been arrested shall be kept in lawful custody until lawfully discharged or released.
The purpose of arresting the child is to allow a preliminary inquiry into the case. The Act also empowers a private person to arrest any child who is believed to be older than twelve years of age, and the procedures are laid down in section 142 of the SSCA.
110
The SSCA provides that parents or guardians must be immediately notified upon the arrest of the child. It further outlines the procedures to be followed by the police officer executing the arrest. In the case of a police officer arresting a child without a warrant at the directive of a public prosecutor, he or she is obliged to consider whether alternative methods are available to secure the appearance of the child at the assessment by the social worker.111
The SSCA provides alternatives to arrest procedures, and these include requesting the child to accompany the police officer to the place of assessment, the issuing of notice to a child’s parents or guardians, notifying the child and, if possible, their parents or guardians, to appear at a specified date and time, and summonsing the child to appear at the assessment.112
Upon the arrest, the police officer is required to notify a specific person of the appearance of the child, give written notice to the relevant person to attend the assessment, obtain documentation proving the age of a child, or transport the specified child to place of the assessment.113 In addition, the Act provides that the police officer, as an alternative to arrest the child, caution the child formally to appear as required.
The formal caution may be recommended by a social worker, public attorney or judge. It is further determine that a formal caution shall be administered by the police in a private place. The Act has also listed persons who may attend the formal caution. The formal caution must be recorded and the records kept in the registry at the police station.114
The SSCA has furthermore stated that the child who allegedly committed an offence may be arrested through a warrant of arrest issued by the Public Attorney or a judge
111 S 140. 112 S 141. 113 S 147. 114 S 148.
after an investigation or inquiry, provided that the child is under eighteen and older than twelve years of age.115
It is mandatory that a child who has been arrested must be informed of the alleged crime, and the rights of the accused person must be explained in a language he or she understands.116
4.5.2 RELEASE OF THE CHILD BEFORE THE PRELIMINARY INQUIRY
Section 151 provides that a child who allegedly committed an offence may be conditionally released by a police officer in the care of his or her parents or guardians before the preliminary inquiry, unless there are substantial reasons not to do so.
If the child allegedly committed a serious offence, he or she shall only be released after consultation with the Public Attorney. Section 151(3) lists the conditions of release of the child by a police officer before the preliminary inquiry.
If a child is not released from detention before the preliminary inquiry, a police officer must submit a written report stating the reasons for the non-release, to the Public Prosecution Attorney or judge.
4.5.3 DETENTION IN POLICE CUSTODY BEFORE APPEARANCE AT THE ASSESSMENT
The SSCA requires that the detention of a child shall be a measure of last resort and shall not exceed twenty four hours.117 While the child is held in detention, the child:118
a) will be treated and held in a manner taking account his or her age;
b) shall be kept separate from adults, and boys shall be kept separate from girls;
115 S 143. 116 S 144. 117 S 150. 118 S 150(4).
c) shall be held in conditions that minimize the risk of harm, including the risk of harm from other children;
d) shall have a right to adequate food, medical treatment when needed, visitation by parents, guardians, legal representatives, recognized social workers, health workers and religious counsellors, reading material, adequate exercise and clothing.
The SSCA also provides that no child shall be held in detention in police custody for a period exceeding 48 hours before appearing before a public attorney or judge.119 This period can only be only extended from24 hours in cases where no alternative action can be taken.120 The Act further requires a police not to admit or retain a child in detention after the 48 hour period has expired. Failure to comply with the procedures of this section is punishable offence.
The SSCA also provides that the child may be released before the preliminary inquiry procedure. The remanding of the child under detention shall be for substantial reasons only, and under the conditions provided in section 151(4). Furthermore, the child shall not be charged until the preliminary investigation is completed and the public attorney submits the case to the court in terms of the provision of the Act. Charges are read and explained to the child.121
4.5.4 EVIDENCE OF A CHILD
The SSCA requires that the corroborated confession or admission of guilt of a child may be admitted as evidence in court, provided that the admission or confession is given before a judge. Evidence obtained at an identification parade cannot be used against the child unless the child’s legal representative, parents or guardian was present at the identification.122
119 S 150(5). 120 S 150(6). 121 S 152. 122 S 149(1).
The SSCA further states that a child’s fingerprints should be regarded as a measure which should not be resorted to before the conclusion of the preliminary inquiry. However, fingerprints can be obtained before the preliminary inquiry under the following conditions:123
a) When it is of importance for purposes of the investigation.
b) To be used in the establishment of the child’s age.
c) To be used when establishing a child’s prior convictions and for the purpose of making a decision on the diversion or release of the child from police custody, or placement in a particular place of safety.