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As of the 1^st of April 2010, the Child Justice Act 75 of 2008 shall commence. This act alters a number of common law positions that are currently in place and shall be the appropriate piece of legislation dealing with the way in which children are dealt with within the South African Criminal Justice system. This month’s Mekanik shall deal specifically with the changes to the common law on the minimum age of criminal capacity.

 

The act places the benefit of doubt on children and gives them an abundance of rights with regards to the pre-trial, trial and possible sentencing phases of the criminal procedure. The Act recognizes the fact that there are many children in the country that, due to South Africa’s history, find themselves in circumstances whereby they have come into conflict with the law.

 

The act is mindful of the Constitution as the supreme law of the country and thus aims to improve the quality of life of all its people and to free the potential of every person by all means possible. In accordance with the Constitution, the act emphasis the best interests of children and singles them out for special protection. This affords children in conflict with the law special safeguards such as; not to be detained and if so for the shortest period of time possible; to be treated and kept in conditions taking account the child’s age; to be kept separately from adults, and to separate boys and girls while in detention; to family, parental or appropriate alternative care; to be protected from maltreatment, neglect, abuse or degradation, and to prevent any practices that could endanger a child’s well being.

 

The aims of the act are therefore to establish a criminal justice system for children, who are in conflict with the law, in accordance with the values underpinning our Constitution and our international obligations. This is done by creating, as a central feature of this new criminal justice system for children, the possibility of diverting matters involving children who have committed offences, away from the criminal justice system, in appropriate circumstances, while children whose matters are not diverted, are to be dealt with in the criminal justice system in child justice courts. This is also to expand and entrench the principles of restorative justice in the criminal justice system for children who are in conflict with the law, while ensuring their responsibility and accountability for crimes committed. Furthermore it is to recognize the present realities of crime in the country and the need to be proactive in crime prevention by placing increased emphasis on the effective rehabilitation and reintegration of children in order to minimize the potential for re-offending.  The trick is to balance the interests of children and those of society, with due regard to the rights of victims; and to create incrementally, where appropriate, special mechanisms, processes or procedures for children in conflict with the law.

 

The specific ways in which this act attempts to meet these aims are by:

-       raising the minimum age of criminal capacity for children;

-       ensuring that the individual needs and circumstances of children in conflict with the law are assessed;

-       providing for special processes or procedures for securing attendance at court of, the release or detention and placement of, children;

-       creating an informal, inquisitorial, pre-trial procedure, designed to facilitate the disposal of cases in the best interests of children by allowing for the diversion of matters involving children away from formal criminal proceedings in appropriate cases;

-       providing for the adjudication of matters involving children which are not diverted in child justice courts;

-       and providing for a wide range of appropriate sentencing options specifically suited to the needs of children.

 

We shall examine the changes that this act has made upon the common law with regard to the minimum age of criminal capacity. In essence the minimum age has risen from an irrebutable presumption of incapacity of 7 years to that of 10 years, yet has created new forms of rehabilitation.  

 

Section 7 deals with the minimum age of criminal capacity. It states that a child under the age of 10 cannot be prosecuted and lacks criminal capacity. Section 9 lays out remedies available to such a child. A child over the age of 10 yet below the age of 14 is presumed to lack criminal capacity unless the state can prove that the child did in fact have the necessary capacity. This section therefore amends the common law pertaining to criminal capacity for children under the age of 14 years.

 

Section 9 states that, in the event that a child below the age of 10 is suspected of committing an offence, a police officer cannot arrest the child, yet rather hand the child over to his parents, guardian or an appropriate adult, or otherwise a suitable child and youth centre. The police officer must also notify a probation officer. This probation officer then assesses the child no later than 7 days after notification. The probation officer can then refer the child from there; to therapy, child court, an accredited program, support service, arrange a meeting with the parent or guardian or decide to take no action.

 

Section 10 deals with children above the age of 10 and states that the following factors need to be taken into account when deciding whether or not to prosecute: the educational level, cognitive ability, domestic and environmental circumstances, age and maturity of the child; the nature and seriousness of the alleged offence; the impact of the alleged offence on any victim; the interests of the community; a probation officer's assessment report in terms of Chapter 5; the prospects of establishing criminal capacity in terms of section 11 if the matter were to be referred to a preliminary inquiry in terms of Chapter 7; the appropriateness of diversion; and any other relevant factor.

 

The prosecutor can divert the matter or refer the matter to a preliminary enquiry if he decides that capacity is likely to be proved; or the prosecutor can take the child to a probation officer if the criminal capacity is unlikely to be proved.

 

The burden of proof resting on the state to prove the existence of criminal capacity is that of beyond all reasonable doubt.

 

The probation officer referred to above, carries the responsibility of estimating the age of an unidentified child bearing the following criteria in mind: a previous determination of age by a magistrate under this Act or under the Criminal Procedure Act or an estimation of age in terms of the Children's Act; statements made by a parent, an appropriate adult, guardian or any other person, including a religious or community leader, likely to have direct knowledge of the age of the child; a statement made by the child concerned; a school registration form, school report, other document of a similar nature, a baptismal or other similar religious certificate; or an estimation of age by a medical practitioner.

 

Section 14 states that the age can also be determined by an inquiring magistrate during a preliminary enquiry. In order to determine the age of a child, a presiding officer may consider the form and any documentation submitted by the probation officer; require any relevant documentation, information or statement from any person;      subpoena any person to produce the documentation, information or statements; or if necessary, refer the child to a medical practitioner, in the prescribed manner, for an estimation of age. The presiding officer must enter the age determined into the record of the proceedings as the age of the child. In the event that any evidence to the contrary emerges, the presiding officer must alter the record to reflect the correct age.

 

In the event that there has been an error in the age determination of the child then the presiding officer must change the age for the record if it is reasonable to believe that the error may prejudice the accused. In the event that it is believed that such an error shall not prejudice the accused then the presiding officer may continue with the proceedings in accordance with the altered age.

 

As stated above the new act deals with the rights of children in the criminal justice system throughout the criminal process. What this article has attempted to achieve was to lay out the new laws pertaining to the minimum age of criminal capacity and on whom the burden of proof rests with regards to establishing such capacity.

 

 

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