Protection for children accused of crime
The Department of Justice and Constitutional Development helps to protect the dignity and well-being of children who are in conflict with the law. A new child justice system has came into operation on the 1st of April 2010 which deals with children from 11 to 18 years of age who are accused of having committed a crime. The Child Justice Act, 75 of 2008 (CJA) puts in place a criminal justice system which caters for children under the age of 18 years.One of the aspects in the Child Justice Act, 75 of 2008 is the issue of the criminal capacity of children. The CJA states as follows:
- That children up to 10 years of age, lack criminal capacity and may not be arrested for commiting an offence. Such children will be referred to the Children’s Courts or to the Department of Social Development.
- Children from 11 years of age and up to 14years of age have criminal capacity and the onus to prove criminal capacity on the part of the child accused of having committed a crime, rests with the State.
- Children above 14 years of age have criminal capacity unless otherwise proven by the accused child.
The Constitution of South Africa and the Child Justice Act set out provisions which seek to protect the child under the age of 18 in all interactions in the criminal justice system. The dignity and well-being of the child must be protected at all times during an arrest, during the preliminary stages before the matter is referred to court as well as during the period the matter is at court and during trial. For example, if a child has committed a petty offence, also known as a Schedule 1 offence, the child could be diverted by the prosecutor at court. Diversion includes options such as releasing the child into the care of a parent or appropriate adult or guardian or attendance at programs, and so on.
Follow this link for more information on Child Justice: http://www.justice.gov.za/vg/childjustice.html
Steps to follow
- If a child is arrested by a police officer, a probation officer from the Department of Social Development will be contacted to do an assessment of the child.
- The child will be asked to make a sworn statement or declare under oath what had taken place. The police officer or probation officer will assist.
- The child is entitled to legal representation from Legal Aid South Africa should this be required. Such legal representation can be obtained from the time the child is arrested. The probation officer or the SAPS official can provide details as to the legal representative.
- If appropriate, the case steps will be followed to ensure that the child is diverted from the mainstream criminal justice system by either releasing the child into the care of his or her parent(s) or appropriate adult or placed in a secure care facility or place of safety until the preliminary inquiry hearing.
All Acts administered by the Department, can be obtained from our website at this address: http://www.justice.gov.za/legislation/acts/acts_full.html
- Constitution of the Republic of South Africa, 1996, Section 28
- Criminal Procedure Act, 1977 (Act 51 of 1977)
- Criminal Procedure Second Amendment Act, 1997 (Act 85 of 1997)
- Criminal Procedure Second Amendment Act, 2001 (Act 62 of 2001)
- Child Justice Act, 2008 (Act 75 of 2008)
- In every matter concerning a child, his or her interests are of primary importance.
- The detention of a child should only be considered only as the last resort and then for the shortest possible period.
- If detained, he or she must be kept separately from other detained persons over the age of 18 years, to be held in the same holding cells as his/ her own sex, as well as the right to be treated and kept in conditions that are suitable for his or her age.
- If you think that any of these rights are being violated, you must immediately contact your attorney, legal aid practitioner, probation or welfare officer or the public prosecutor.
If you appoint a private attorney, you will have to pay him or her at your own expense.
However, every child qualifies for legal aid assistance
Forms to complete
All forms relating to the Child Justice and Children's Acts are available on this page: http://www.justice.gov.za/forms/form_cj.html
Contact your nearest magistrate’s court, One Stop Child Justice Centre, probation officer at the Provincial Department of Welfare, public prosecutor at the magistrate’s court or the office of the Director of Public Prosecutions.
Department of Justice and Constitutional Development:
Chief Directorate: Promotion of the Rights of Vulnerable Groups (Child Justice and Family Law)
Tel: 012 357 8205
Department of Justice, Court Services Branch, Momentum Centre, 329 Pretorius Street, Pretoria, 0001
Postal address: Private Bag X81, Pretoria, 0001
Web address: www.justice.gov.za
Contact details for Magistrate Courts (Lower Courts): http://www.justice.gov.za/contact/lowercourts_full.html
Contact details for our Regional Offices:http://www.justice.gov.za/contact/cnt_regoff.html