Child Justice Act 75 of 2008 The Preliminary Inquiry 2010

1. Child Justice Act 75 of 2008 The Preliminary Inquiry 2010 Presentation courtesy Mr. P I Singh, KZNJetCom

2. TERMS AND ABBREVIATIONS • CJC : Child Justice Court • CJS : Criminal Justice System • CPA : Criminal Procedure Act 51/1977 • CRC : Convention on the rights of the child • CYCC : Child & Youth Care Centre • OFF : Offence • P/I : Preliminary inquiry • P/O : Probation Officer • THE ACT : The Child Justice Act 75/2008 • CRC : Criminal Record Centre • DPP : Director of Public Prosecutions • SAPS : South African Police Service

3. Objectives of preliminary inquiry S 43(2) To consider p/o’s assessment report To establish if matter can be diverted before plea in formal court To identify suitable diversion options To establish if matter should be referred to children’s court To ensure that all available info relevant to matter is considered

4. Objectives of p/i (cntd) To ensure that views of all persons present are considered To encourage participation of child and parent in decisions To determine placement of child pending * conclusion of the p/i * appearance in a cjc * referral of matter to a children’s court

5. Nature of preliminary inquiry Is an informal and inquisitorial pre-trial procedure S 43(1)(a) S 43(1)(b) May be held in court or other suitable place S 43(3) Must be held iro every child alleged to have offended, except where * matter has been diverted by prosecutor * child is below 10 years * matter has been withdrawn

6. Nature of preliminary inquiry (cntd) s 43(3)(b) Must be held within 48 hours of arrest if child arrested and remains in detention If child not arrested, must be held within time periods specified in written notice or summons Child’s appearance at a p/i is regarded as first appearance in a lower court ito sec 50 of the CPA

7. General provisions • S 44 Inquiry magistrate, prosecutor, p/o, child and parent must attend, and other persons who have an interest or may contribute may be permitted to attend • S 44(4) If parent not available can proceed • S 45 Confidentiality: S 154 of the CPA relating to prohibition on publication of info applies, and no info obtained at p/i may be used in other proceedings • S 46 Failure of child or parent to appear may result in issue of warrant of arrest and inquiry (similar to provisions relating to failure to comply with conditions for release from detention) – see s 24(7)

8. Procedure during p/i s 47 • Proceedings conducted informally, but keep record • At the start, inquiry magistrate must – * explain purpose and inquisitorial nature * inform child of allegations against him/her * inform child of his/her rights * explain immediate procedures to be followed * inquire if child acknowledges responsibility for the offence

9. Procedure during p/i (cntd) S 47(2)(b) • If child does not acknowledge responsibility, no questions re offence may be asked and no info elicited. Matter then referred to cjc. • Age of child must be determined, if necessary • S 47(3)Following information must be presented: * P/o’s assessment report * Documents required for age determination * Documents relating to previous convictions, diversions or pending charges * Report relating to detention in police custody * Any other relevant info

10. Procedure during p/i (cntd) Further documentation and info may be elicited If assessment has not yet been done, may be dispensed with if in child’s best interests Can proceed in absence of PO Inquiry magistrate must encourage participation of child and parent and allow any person present to ask questions and raise relevant issues Joint p/i may be held where more than one accused children Inquiry magistrate who has heard prejudicial info may not preside over subsequent proceedings

11. Procedure during p/i (cntd) Prosecutor must consent to matter being diverted If not, prosecutor must confirm that there is sufficient evidence (or will be after further investigation) for matter to proceed to trial Confirmation to be entered into record Child to be informed that matter is referred to CJC

12. Postponement of p/i s 48 P/i may be postponed for 48 hours to – * enable assessment if not done and is required * secure attendance of essential persons * obtain essential information * establish victim’s views on diversion and diversion option * make arrangements iro a diversion option * find alternatives to detention * enable further investigation of the matter

13. Postponement of p/i (cntd)s 48 P/i may be postponed for additional 48 hours if likely to increase prospects of diversion, but must be closed if not concluded then and matter referred to CJC P/i may be postponed for a period not exceeding 14 days – * if further and more detailed assessment of child is required * in order to obtain written indication from DPP in case of Schedule 3 offences

14. Postponement of p/i (cntd) s 48 P/i may also be postponed for a period determined by inquiry magistrate if – * child requires medical treatment for injury, illness or trauma * decision ito sec 77 or 78 of the CPA re : mental illness or defect is awaited

15. Orders at preliminary inquiry s 49 Inquiry magistrate may make order that the matter be diverted, and, in case of 10 – 14 year-olds, if satisfied that child has criminal capacity; or order that matter be referred to CJC and * must explain legal representation * if child is in detention, inform child of charge and date, place and time of appearance in CJC * if not in detention, alter or amend conditions relating to release and warn child and parent to appear in CJC on specified date, place and time

16. Referral to children’s court s 50 Inquiry magistrate may at any time during course of proceedings stop the p/i and order that child be referred to a children’s court under the Children’s Act, 38 of 2005, if child – * is in need of care and protection * does not live in family home or in appropriate alternative care * is charged with minor offence aimed at meeting child’s basic need for food and warmth Sec 254 of the CPA repealed