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Child Justice Act Seminar: 2010


Title: Slide 1 Author: Dept of Justice Last modified by: Iole Matthews Created Date: 2/13/2010 5:33:07 PM Document presentation format: On-screen Show (4:3) – PowerPoint PPT presentation

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Title: Child Justice Act Seminar: 2010

Child Justice Act Seminar 2010
Presentation courtesy L Radyn, KZNJetCom
  • ACT 75 OF 2008
  • May I please introduce you to the rest of our
    program today?
  • An overview of the Act
  • 2. The preliminary enquiry
  • 3. The regulations
  • 4. Discussion and the way forward

Q What is the objective of the Act? R
Objectives set out in Section 2. First object
To protect the rights of children as stipulated
in the Constitution. Second object To create
a balance between the rights of the child and the
rights of the community children are held
accountable for their actions to the victim, the
family of the child, and the community. No child
is an angel! So dont treat them as such
balance, balance, balance!
Emphasis placed on involvement of Parents
Re - integration of children into the community
(after being dealt with by the courts) is very
Of particular importance is the reference in the
Act to co-operation between ALL government
departments, and all other organisations and
agencies. Until now there was no legal obligation
for such co operation.
  • The Act spells out the importance of-
  • Children (juvenile offenders) being dealt with in
    a manner
  • appropriate to their age
  • 2. Children being dealt with in accordance with
    their intelligence (tall order!!)
  • 3. Children without parents (orphans) being
    afforded equal access to services.
  • A very far reaching provision in the Act is
  • (but compulsory) pre trial procedure called
    a preliminary inquiry which is inquisitorial in
    nature and may be held IN a court
  • or any other suitable place
  • Very important This is the childs first
  • appearance in Court and must take place
  • in the Magistrates Court nowhere else.
  • Another important change We will now speak of a
    Child Justice Court as opposed to Juvenile

What is the difference between a Child Justice
Court and a Childrens Court? A Child Justice
court is an ordinary criminal court held in
camera must be assisted by guardian.
What is Restorative Justice? (Is it
applicable to the Child Justice
Court?) Restorative Justice means an approach to
justice that aims to involve a child offender,
the victim, the families concerned and community
members to collectively identify and address
harms, needs and obligations through accepting
responsibility, making restitution, taking
measures to prevent a recurrence of the incident
and promoting reconciliation. ( There are many
definitions but this is the one that applies to
the Child Justice Act)
  • Who does the Act apply to?
  • (i.t.o Constitution a child becomes an adult
    at 18)
  • It applies to children who comes into conflict
    with the law and they are-
  • Children below 10 years (doli incapax not
    criminally liable) at the time when offence
    committed. Sect 9 inter alia provides for such
    child to be referred to a Childrens Court or
  • 2. Children older than 10 but younger than 18 at
    the time of arrest or when summons being served.
    (as opposed to time of commission of offence)
    Reason Act intends to apply to children
    actually in the criminal justice system)
  • 3. Children older than 18 but under 21 who
    committed an offence when they were younger than
    18. Although they are not children, they are
    still young, and can benefit from the Act.

  • Procedures applicable to age groups.
  • Under 10 years referred to probation officer
    (please note, not welfare officer)
  • 10 years or older must be assessed by a
    probation officer before first appearance in
    court, unless assessment is dispensed with See
    Sect 41(3) and Sect 47(5).
  • A preliminary inquiry must be held in respect of
    each child after assessment, except where
    diversion took place, or where doli capax not
    likely to be proved.
  • 4. If child is not diverted at preliminary
    inquiry, matter must be referred to Child
    Justice Court.

  • What offences does the Act deal with?
  • All criminal offences, but divided into 3
    Schedules of seriousness Schedule 1 less
    serious, Schedule 3 most serious, Schedule 2
    in between.
  • 2. If child is charged with more than one
    offence, the most serious one will guide the
    manner in which the case is dealt with.

  • Age and Criminal Capacity Chapter 2 of the Act.
  • It is said that if you dont understand Chapter
  • you will not understand the rest of the Act.
  • Age of criminal responsibility can be defined as
  • the age at which children have the capacity
  • commit crimes and to accept responsibility
  • their actions also known as criminal
  • or doli capax.
  • However, the Act provides for interventions for
  • children (under the minimum age of doli
  • who commit criminal acts.
  • These interventions are educational
  • measures rather than criminal sanctions.

  • The law prior to Child justice Act.
  • Below 7 years irrebuttably doli incapax
  • 2. Between 7 years and 14 years rebuttably
  • doli capax.
  • 3. Older than 14 years doli capax.
  • The Child Justice Act.
  • Below 10 years doli incapax (no prosecution)
  • 2. Between 10 and 14 years rebuttably doli
  • incapax together with protection i.t.o. Sect
  • (see next clip)
  • 3. Older than 14 years doli capax.

Stay out of trouble
  • Protection Section 10
  • Prosecutor may only prosecute a child
  • (between 10 and 14) if he/she considers-
  • Educational level, cognitive ability, domestic
    circumstances, age and maturity
  • 2. Nature and seriousness of offence
  • 3. P.Os assessment
  • 4. Impact on victim
  • 5. Interests of community
  • 6. Prospects of establishing doli capax
  • 7. Possible diversion
  • 8. Any other relevant factor.

  • Proof of criminal capacity.
  • Must be proved beyond reasonable doubt.
  • 2. The decision rests with the presiding
  • officer after-
  • 2.1 considering the P.Os report, or
  • 2.2 ordering on own volition an evaluation
  • of criminal capacity, or
  • 2.3 ordering an evaluation on request of
    the PP,
  • or legal representative.
  • This evaluation has to be done by a suitably
    qualified person, and must be done within 30
    days whereas the P.Os assessment must be done
    within 48 hours.

Procedures relating to child under 10 years. A
young child who gets involved in crime is a child
at risk and some action must be taken the
matter should not merely be withdrawn. Sect 9
recognises this and now provides a procedure fro
action where a child under the minimum age of
criminal capacity is accused of committing an
offence. This provision does not imply that the
child is criminally liable for the incident that
led to the sect 9 assessment. If the child
fails to comply with any obligation i.t.o Sect 9,
the child will be referred to a Childrens Court
to be dealt with i.t.o the childrens Act 38 of
2005. (not yet in operation)
  • Determining the age of a child.
  • Many children in SA do not know their age the
    Act proposes certain measures for determining
    their age.
  • These measures involve the following role
  • Police
  • 2. Probation Officers
  • 3. Presiding Officers
  • (All these duties are spelt out in the Act and

Aim for greater heights
  • Sentencing.
  • (A lonely horse to ride?)
  • Golden rule Children should be detained only as
  • measure of last resort.
  • 2. Two categories custodial and non - custodial
  • sentences. This includes-
  • 2.1. Diversions
  • 2.2. Restorative Justice sentences
  • 2.3. Correctional Supervision
  • 2.4. Suspended sentences
  • 2.5. Penalties instead of a fine or
  • imprisonment (e.g compensation)
  • 2.6. Custodial sentences to a child and
    youth care centre or prison

  • Legal representation.
  • Like any other person, a child is entitled to
    legal representation.
  • Section 80 (1) Requirements set out for legal
    reps to comply with, such as-
  • Child allowed to give independent instructions
  • Promoting diversion
  • 3. Speedy trial
  • 4. Highest standards and professional conduct.
  • (And thats it for now!!)