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(Apr 14, 2010) South Africa's Child Justice Act, 2008, legislation seeking to increase the minimum age of criminal responsibility and to establish a process separate from what is prescribed by the regular criminal justice system for dealing with child offenders, took effect on April 1, 2010. (Franny Rabkin, "Sensitive" Law Tries to Keep Kids Out of Jail, BUSINESSDAY, available at; see also Child Justice Act, 2008, No. 75 of 2008, §100, 527: 32225 GOVERNMENT GAZETTE: REPUBLIC OF SOUTH AFRICA (May 11, 2009) (official source), available at

The Act increases the minimum age of criminal responsibility from seven to ten. (Child Justice Act, id. at §7(1).) It also establishes a legal presumption that a child who is between the ages of 10 and 14 lacks criminal capacity. (Id. at §7(2).) In order to rebut this presumption, the state is required to prove that the child in question could appreciate the difference between right and wrong at the time of the commission of the alleged offense. (Id. at §11.)

The Act requires that every child accused of committing an offense undergo an assessment at the hands of a probation officer for the purpose of, among other things, determining whether the child is in need of care and protection; gathering information to formulate recommendations for the release, detention, or placement of the child; and determining whether the child has been used by an adult to commit the crime in question. (Id. at § 34, 35.)

The Act prohibits sending children under the age of 14 to prison and allows for a child between the ages of 14 and 16 to be sent to prison only in limited circumstances. (Id. at §30.) In addition, the Act states that a child between the ages of 14 and 16 may be sent to prison only if:

  • bail has been postponed or denied or conditions for bail have not been met;
  • the child is accused of committing a serious offense (stipulated in Schedule 3 of the Act; including offenses such as murder, kidnapping, robbery, and treason);
  • detention is vital for administration of justice or the safety of the public, the child, or other children in detention;
  • it is likely that the child could be given a prison sentence if convicted; and
  • the Public Prosecutor issues a certificate stating that there is sufficient evidence against the child for a charge of a serious offense(s) (for offenses stipulated in Schedule 3) and that the child will be charged. (Id. at §30.)

The Act establishes a system called "diversion" that allows for dealing with a child accused of committing an offense outside of the regular criminal justice system on the basis of the child's circumstances, the nature and seriousness of the offense, and community interests. The Diversion Options set by the Act may include one or more of the following : a compulsory school attendance order (monitored, mandatory attendance of school), a family time order ( an order requiring a child to spend time with family members), a good behavior order (an order requiring a child to comply with certain standards of behavior), a peer association order (an order requiring a child to associate with peers who could have a positive influence on the child), a reporting order (an order requiring a child to report to a person and time specified in the order), and a supervision and guidance order (an order putting a child under the supervision and guidance of a mentor). (Id. at §53.)

Author: Hanibal Goitom More by this author
Topic: Children More on this topic
Jurisdiction: South Africa More about this jurisdiction

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Last updated: 04/14/2010