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Child Justice

Booklet CoverWHAT IS THE CJA?
Prior to 1 April 2010, children who committed crime were dealt with, in terms of the Criminal Procedure Act, 1977 (Act 51 of 1977) which also deals with adults who commit crime. The aim of the CJA is to set up a child justice system for children in confl ict with the law. This means that children under the age of 18, who are suspected to have committed crime, will not be dealt with in terms of the normal criminal procedure which is used for adults, but the child justice process will be followed.

The CJA seeks to ensure that child justice matters are managed in a rights-based manner and to assist children suspected of committing crime to turn their lives around and become productive members of society by engaging with the child in restorative justice measures, diversions and other alternative sentencing options.

AGE GROUPS COVERED BY THE ACT

CJ AgesAccording to the CJA, a child is someone who is under the age of 18. The CJA is specifically intended for children between the ages 10 and 18. The CJA states that:

  • A child under the age of 10 years cannot be arrested! This means that a child under 10 years does not have criminal capacity and cannot be charged or arrested for an offence. In such a case, the child will be referred to the Children’s Court.
  • A child older than 10 years but below the ages of 14 years is presumed to lack criminal capacity unless the state proves that he/she has criminal capacity. Such a child can be arrested.
  • A child above 14, but under 18 years of age, is said to have criminal capacity and can be arrested.

pdf Follow this link to read the booklet, to view the poster or the wall chart.

pdf Department of Social Development's list of centres accommodating children: Awaiting Trial and Sentenced

BENEFITS OF THE ACT

  • The Child Justice Act will have long-term benefits for children and the country as a whole. It allows for a justice system that heals children and those who were affected by a child’s action, encourages forgiveness and rehabilitation and looks after the needs and rights of children and victims.
  • The Child Justice Act allows the child’s background or upbringing to be taken into consideration. It ensures that the individual needs and circumstances of children in conflict with the law are assessed before a decision is made on how to deal with the child.
  • The Child Justice Act balances the rights and responsibilities of the child, the victim and the community. When considering diversion options before a trial, the victim’s or his/her families’ views are also to be taken into consideration by the prosecutor and the court.
  • The Child Justice Act also states that the damage caused to the victim by the offence committed by the child offender should be considered. The victim or someone representing the victim may submit a statement that reflects the physical, psychological, social, financial, or any other impact that may have been caused as a result of the crime on the victim. This facilitates the healing and peace-making process and further expands and entrenches the notion of restorative justice.
  • The Child Justice Act creates the possibility of diverting matters involving children who have committed offences away from the criminal justice system.
  • The Child Justice Act makes it easier to assist with the rehabilitation and the reintegration of the child offender back into his/her family and society so that he/she can grow up to make a useful contribution to society.
  • Courts continue to prioritise and fast-track children’s matters in terms of the child justice system and this reduces the number of children awaiting trial.

TYPES OF OFFENCES

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

  • Minor offences include theft of property worth not more than R2500, malicious damage to property that is not more than R1500 and common assault.
  • More serious offences include theft of property worth more than R2500; robbery, but not robbery with aggravating circumstances; assault that includes causing grievous bodily harm; public violence; culpable homicide; and arson.
  • The most serious offences include robbery, rape, murder and kidnapping amongst others.

WHAT IS A PRELIMINARY INQUIRY?

In terms of the Child Justice Act an informal process called a preliminary inquiry will be held within 48 hours of the child’s arrest, before the first court appearance. The preliminary inquiry will be attended by different people, such as:

  • A Magistrate,
  • The child,
  • His/her parents,
  • A Prosecutor,
  • A Probation Officer,
  • The arresting police officer, and
  • A Legal Aid Attorney.

These people will meet to talk to the child about his/her circumstances, his/her family environment and the factors that may have led the child to commit the crime. They will also consider diverting the matter away from the criminal justice system.

DIVERSION

Diversion can be defined as the channelling of criminal cases involving a child away from the criminal justice system with or without conditions.

In essence the aim of diversion is to give a child offender a second chance by preventing the child from having a criminal record and to address the root causes of the criminal behaviour through an appropriate diversion programme or intervention.
Diversion may be considered in all cases, irrespective of the nature of the offence and whether or not previous diversions have been ordered in respect of a specific child.

The objectives of diversion are to:

  • Deal with a child outside the formal criminal justice system in appropriate cases;
  • Encourage the child to be accountable for the harm caused by him or her;
  • Meet the particular needs of the individual child;
  • Promote the reintegration of the child into his or her family and community;
  • Provide an opportunity to those affected by the harm to express their views on its impact on them;
  • Prevent stigmatising the child and prevent the adverse consequences flowing from being subject to the criminal justice system;
  • Reduce the potential for re-offending;
  • Prevent the child from having a criminal record; and
  • Promote the dignity and well-being of the child, and the development of his or her sense of self-worth and ability to contribute to society.

Diversion may be considered during the trial in the child justice court until before closure of the state’s case.

The Child Justice Act provides for two levels of diversion. Level one diversion options apply to Schedule 1 offences (least serious offences) and include options such as:
•           an oral or written apology to a specified person or persons or institution;
•           formal caution, with or without conditions;
•           placement under a supervision and guidance order;
•           placement under a reporting order;
•           a compulsory school attendance order.

NOTE: Child Justice Act: Accreditation of diversion programmes and diversion service providers: Invitation to apply. Comment by 31 Jul 2018, GG 41561, GoN 420, 6 Apr 2018

SENTENCING OPTIONS

The Child Justice Act provides a wide range of appropriate sentencing options specifically suited to the needs of children. Sentencing options include the following:

  • A community-based sentence is a sentence which allows a child to remain in the community such as community service under the supervision or control of an organization or institution, or a specified person, persons or group of persons identified by the court.
  • Restorative justice options: “restorative justice” means an approach that involves the child offender, the victim, the families concerned and community members who all identify the damage, the needs and obligations that arise as a result of the child’s act. If the child accepts responsibility and makes some effort to prevent this type of incident this can promote reconciliation. This process may be handled through a family group conference, a victim and offender mediation process and/or another restorative justice process.
  • A fine or symbolic restitution: An offer to pay a fine or make another form of symbolic restitution, such as fixing a broken window from his or her own pocket money, is another way of making restitution. An obligation may rest on the child to provide some service or benefit, provided that the child is 15 years or older. This is another option that the court may consider.
  • Correctional supervision: A child could be sentenced by the court to undergo correctional supervision. In such a case the child will be supervised by the Department of Correctional Services to do what is listed in the court order.
  • Attendance of a non-custodial sanctions programme: A child could be ordered to attend a non-custodial sanction programme such as a school programme.
  • Child and Youth Care Centre: A child could be sentenced to stay in a child and youth care centre for a specified period of time.
  • Direct imprisonment: A child could be sentenced to be direct imprisonment in correctional facilities. A child under the age of 14 years may not be sentenced to imprisonment. Imprisonment should only be used as measure of last resort and only for the shortest appropriate period fine.

CHILD JUSTICE COURTS

Any court dealing with the bail application, plea, trial or sentencing of a child is regarded as a Child Justice Court.

STEP-BY-STEP SUMMARY GUIDE ON THE CHILD JUSTICE PROCESS

    1. A child is suspected to have committed an offence will be apprehended by the police and depending on the seriousness of the alleged offence the child may be warned, summoned or arrested to appear at a preliminary inquiry. 
    2. The child and his/her parents or care givers will be informed of the charges against the child, the child’s rights; the immediate procedures to be followed and the date, time, place where the child must appear in court.
    3. Every child who is alleged to have committed an offence must be assessed by a probation officer.
    4. The parent or care givers or police bring the child to court
    5. A preliminary inquiry will be held to inquire into the matter and to decide on how the appropriate way to deal with the child.
    6. At the preliminary inquiry there are four possible steps that may be taken:
      • If the child is in need of care or protection, the matter will be referred to the children’s court which will determine suitable interventions.
      • If the child accepts responsibility, it may be recommended at the preliminary inquiry that the child be diverted. If the child does not complete or comply with the diversion, he/she will be brought back to court.
      • If no diversion order is made by the court or the child is not found to be a child in need of care and protection the case is referred to the Child Justice Court for trial.
      • If the matter has been referred for trial in the Child Justice Court, the preliminary inquiry magistrate will decide on the detention or release of the child pending the finalisation of the criminal case.
      • At the end of the trial the child may be convicted and sentenced or acquitte.
    NATIONAL POLICY FRAMEWORK Objectives of the Policy Framework
    The NPF, as per the requirements of section 96 (1), include guidelines for the implementation of the priorities and strategies contained in the NPF; measuring progress on the achievement of the NPF and ensuring that the different organs of state comply with the primary and supporting roles and responsibilities allocated to them in terms of the NPF and this Act.
    pdf National Policy Framework on the Child Justice Act, 2008 (Act 75 of 2008)

    LEGISLATION

    FORMS

    • Form 13 (J763) - Application for Expungement of Records of Conviction and Sentence by the Director–General or Cabinet Member - Sections 87(1) And 87(3) of the Child Justice Act, 2008 (Act No. 75 of 2008), Regulations relating to Child Justice [Regulation 49] pdf
    • Follow this link to also view the relevant forms for the Children's Act.

    NOTICES

    RELATED JUDGMENTS

    DOCUMENTS & REPORTS

    USEFULL LINKS

     

     

    EXPUNGEMENT OF RECORDS OF CERTAIN CONVICTIONS AND DIVERSION ORDERS

    Section 87 of the Child Justice Act provides for the expungement of records of certain convictions and diversion orders
    (1) (a) Where a court has convicted a child of an offence referred to in Schedule 1 or 2, the conviction and sentence in question fall away as a previous conviction and the criminal record of that child must, subject to subsections (2), (3) and (5), on the written application of the child, his or her parent, appropriate adult or guardian (hereafter referred to as the applicant), in the prescribed form, be expunged after a period of....read more pdf

    For any enquiries regarding expungements by the Minister or DG of Justice and Constitutional Development, contact any of the following officials:
    N Mhlaba – Tel: (012) 315 1388, E-mail: NMhlaba@justice.gov.za
    R Morgan – Tel: (012) 315 1232, E-mail: RMorgan@justice.gov.za
    K Mtshweni – Tel (012) 315 4665, E-mail: KMtshweni@justice.gov.za
    A Ally – Tel: (012) 315 1601, E-mail: UAlly@justice.gov.za
    S Breytenbach – Tel: (012) 315 1423, E-mail: SBreytenbach@justice.gov.za
    P Mdungwane – Tel: (012) 315 1561, E-mail: PMdungwane@justice.gov.za
    L Nieuwoudt – Tel: (012) 315 1278, E-mail: LNieuwoudt@justice.gov.za
    A Steyn – Tel: (012) 315 1300, E-mail: ASteyn@justice.gov.za
    F Willmot – Tel: (012) 315 1412, E-mail: FWillmot@justice.gov.za
    F Heyns – Tel: (012) 315 1327, E-mail: FHeyns@justice.gov.za

    OFFICIALS WILL ONLY CONSULT WITH MEMBERS OF THE PUBLIC ON PRIOR ARRANGEMENT: PLEASE MAKE AN APPOINTMENT

    Please note that the Director-General of the Department of Social Development, is responsible for the expungement of a record of any diversion order.
    For further information please contact:
    Ms Conny Nxumalo
    Chief Director: Families and Social Crime Prevention, Tel: 012 312 7686, E-mail: connyn@dsd.gov.za
    or
    Mr Steven Maselesele
    Director for Social Crime Prevention, Tel: 012 312 7065, Email : stevenm@dsd.gov.za

     

    CONTACTS

    All queries and complaints can be directed to the Office of the Chief Family Advocate:
    Ms Josephine Peta
    Tel: 012 315 1680, Email: children@justice.gov.za

    ONE-STOP CHILD JUSTICE CENTRES (OSCJC

    Matlosana OSCJC
    Centre Manager: Mr Nkosana Tshabalala
    Tel: 018 466 5500/ 082 607 1598 21591
    Physical address: Benji Oliphant Road, Klerksdorp

    Nerina OSCJC
    Centre Manager: Harriet  Katangana Contact Details
    Tel:  041 402 9830 / 083 432 9932
    Physical address: Corner of Phyllis and Gumpert Street, Schauderville, Port Elizabeth, 6000
    Postal address: Private Bag X 3904,  North End, PE,  6056

    Mangaung OSCJC
    Centre Manager: Ms Carol Steward contact details
    Tel : 051 034 1904 / 083 302 6247
    Email: steward@socdev.fs.go.za
    Physical address: 28 Drente Street, Erlichpark, Bloemfontein, 9300