The Child Justice Act 75 of 2008 is part of a process of reforming the youth justice system in South Africa to deal more fully with children accused of committing offences. The Act covers the procedures that people in authority must follow from the time the child is arrested until the moment when the sentence is passed and aims to protect children’s rights. The Act also follows the restorative justice approach towards children accused of committing crimes. This approach means ‘promoting reconciliation, restitution and responsibility through the involvement of a child, the child’s parent, family members, victims and communities’.

Reconciliation means bringing the parties together to resolve the matter and reach agreement on how the child should be punished. Restitution means putting the child back into their own environment.

AGE AND CRIMINAL CAPACITY

According to the Criminal Justice Act (CJA), a child is someone who is under the age of 18. The CJA is specifically intended for children between the ages of 12 and 18. The CJA states that:

• A child under the age of 12 years cannot be arrested. A child under 12 years does not have criminal capacity which means they don’t have the capacity to understand the difference between right and wrong, and to act according to this understanding. This means they cannot be charged or arrested for an offence. In such a case, the child will be dealt with by social workers who may refer the child to a Children’s Court.
• A child older than 12 years but below the age of 14 years is presumed to lack criminal capacity unless the state proves that they had criminal capacity. In other words the state can prove that the child did understand the difference between right and wrong and they acted according to this understanding. A child in this age category can be arrested.
• A child above 14, but under 18 years of age, is said to have criminal capacity and can be arrested and prosecuted and diverted at the discretion of the prosecutor.

TYPES OF OFFENCES

The Child Justice Act provides for three different types of offences:

• Minor offences: Includes theft of property worth not more than R2 500, malicious damage to property that is not more than R1 500, and common assault.
• More serious offences: Includes theft of property worth more than R2 500, robbery, assault that includes causing grievous bodily harm, public violence, culpable homicide, and arson.
• The most serious offences: Include robbery with aggravating circumstances, rape, murder and kidnapping amongst others.

HOW THE CHILD JUSTICE SYSTEM WORKS

The process starts with an informal process called a preliminary inquiry which will be held within 48 hours of the child’s arrest. The people who will attend the preliminary inquiry include:

• A magistrate
• The child
• The child’s parent, guardian or appropriate adult
• A prosecutor
• A probation officer
• A Legal Aid attorney

These people will meet to speak to the child and talk about the factors that may have led the child to commit the crime. They will also try to find ways of assisting the child to accept that they did wrong and that they have responsibility for the crime. If the child accepts responsibility, a plan is developed to assist the child not to repeat the crime. This may include diversion (see Diversion). If the preliminary inquiry decides that the child should be attending a diversion programme, the Magistrate will make that decision an order of court as well as ordering the probation officer or another suitable persion to monitor the child.

Step-by-step guide to the child justice process:
1. A child is suspected of committing an offence.

2. If the offence is serious, the child may be arrested and charged by the police. If the offence is less serious, the child and their parent or guardian or an appropriate adult, will be warned or handed a notice to appear in court by the police.

3. There are two possibilities at this stage:

• A child under 12 must be referred to a probation officer, or
• A child between the ages of 12 and 17 years must be assessed by probation officer (Social Worker).

4. The parent or guardian or appropriate adult or police bring the child to court.

5. A preliminary inquiry will be held to inquire into the matter to decide on how to proceed with the matter and whether or not the child accepts responsibility for the crime.

6. At the preliminary inquiry there are four possible steps that may be taken:

• If the child is in need of care and protection, the matter will be referred to the children’s court which will determine the best possible environment for the child.
• At the preliminary inquiry, the probation officer’s assessment report will be considered.
• If the child accepts responsibility, it may recommend at the preliminary inquiry that the child be diverted. If the child does not complete or comply with the diversion, theywill be brought back to court.
• If no diversion order is made by the court or the child does not comply with the diversion, the case is referred to the Child Justice Court for plea and trial.

7. At the trial the child could be convicted and sentenced or acquitted.

DIVERSION

Diversion means finding an alternative way for criminal offenders to ‘pay’ for their crimes so that they don’t have to follow the normal court procedures and end up in prison and with a criminal record. Diversion focuses on rehabilitating people back into their communities, and so diverting them away from the formal court procedures. Types of diversion programmes include attending a life-skills course, doing unpaid work in the community, or paying back the victim of a crime.

The child justice system promotes the use of diversion of cases away from the formal court procedures. The Child Justice Act says:

• There must be an assessment by the probation officer of the child within 48 hours of the child’s arrest
• There must be a preliminary inquiry held by a district magistrate within 48 hours of the child’s arrest and before their plea

The Act sets out three levels of diversion which cover different types of diversion programmes. The probation officer can make recommendations about which diversion programme a child should be sent on.

SENTENCING OPTIONS

Diversion programmes form a large part of the new and different sentencing options that magistrates can use when dealing with children who are in conflict with the law.
Sentencing options include:

• Community-based sentence which includes community service
• Restorative justice sentences which involve the child offender, the victim, or the families concerned and community members through family group conferences or victim offender mediation.
• Correctional supervision which involves monitoring of the child by a correctional official. This sentence is served in the community.
• Direct prison sentence in a correctional facility

ONE-STOP CHILD JUSTICE CENTRES

The Act says a One-stop Child Justice Centre can be situated anywhere but not in a court or police station. These centres provide:

• Offices for police and probation officers, attorneys representing children, people providing diversion and prevention services, people who trace families of children
• Temporary accommodation for children who are waiting for the outcome of the preliminary inquiry
• A Children’s Court to hear children’s court inquiries
• A Regional Court

The role of the magistrate who presides over a case involving a child is:

• To make sure the compulsory assessment has been completed
• To decide whether the matter should be diverted, transferred to a Children’s Court for an inquiry, or prosecuted

The magistrate has to decide where to place a child. Magistrates can only make informed decisions about children if they work closely with their families, NGOs, welfare agencies, community members and others during the preliminary inquiry.