Child Justice Act Seminar: 2010

1. Child Justice Act Seminar: 2010 Presentation courtesy L Radyn, KZNJetCom

2. Q: WHY ARE WE HERE TODAY? • R: GETTING TO KNOW THE CHILD JUSTICE ACT, • ACT 75 OF 2008 • (WHICH COMES INTO OPERATION ON 1 APRIL 2010) • 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

3. 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 don’t treat them as such – balance, balance, balance!

4. Emphasis placed on involvement of Parents Re - integration of children into the community (after being dealt with by the courts) is very important. 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.

5. 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 an INFORMAL • (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 child’s first • appearance in Court and must take place • in the Magistrate’s Court – nowhere else. • Another important change: We will now speak of a “Child Justice Court” as opposed to “Juvenile Court”.

6. What is the difference between a Child Justice Court and a Children’s Court? A Child Justice court is an ordinary criminal court – held in camera – must be assisted by guardian.

7. 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)

8. 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 Children’s Court or counselling. • 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.

9. 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 dolicapax not likely to be proved. • 4. If child is not diverted at preliminary inquiry, matter must be referred to Child Justice Court.

10. 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.

11. Age and Criminal Capacity – Chapter 2 of the Act. • It is said that if you don’t understand Chapter 2, • 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 to • commit crimes and to accept responsibility for • their actions” – also known as “criminal capacity” • or “doli capax”. • However, the Act provides for interventions for • children (under the minimum age of doli capax • who commit criminal acts. • These interventions are educational • measures rather than criminal sanctions.

12. 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 10 – • (see next clip) • 3. Older than 14 years – doli capax. Stay out of trouble

13. 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.O’s assessment • 4. Impact on victim; • 5. Interests of community; • 6. Prospects of establishing dolicapax; • 7. Possible diversion; • 8. Any other relevant factor.

14. Proof of criminal capacity. • Must be proved beyond reasonable doubt. • 2. The decision rests with the presiding • officer after:- • 2.1 considering the P.O’s report, or • 2.2 ordering on own volition an evaluation • ofcriminal 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.O’s assessment must be done within 48 hours.

15. 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 Children’s Court to be dealt with i.t.o the children’s Act 38 of 2005. (not yet in operation)

16. 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 players: • Police • 2. Probation Officers • 3. Presiding Officers • (All these duties are spelt out in the Act and Regulations) Aim for greater heights

17. Sentencing. • (A lonely horse to ride?) • Golden rule: Children should be detained only as a • 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

18. 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 that’s it for now!!)