The Child Justice Act, No. 75 of 2008, regulates the rights pertaining to children under 18 years of age and how those children who fall foul of the law are dealt with or treated by the criminal justice system, thus giving effect to section 28 of the Constitution of the Republic of South Africa as well as discharging South Africa’s international obligations as a signatory to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. 

The question of criminal capacity relating to children has always been a contentious one, that is, at what age does a child have the mental acumen to distinguish right from wrong; have an understanding of the consequences of their actions; and be held accountable for them. Prior to the adoption of the Child Justice Amendment Bill by Parliament’s Portfolio Committee on Justice and Correctional Services on 14 November 2018, the minimum age of criminal capacity was 10 years. This has now been increased to 12 years.

This means that children under the age of 12 years can now not be arrested or prosecuted for any crime. Instead, where a police official has reason to believe that a child suspected of having committed an offence is under the age of 12 years, he or she must, in the prescribed manner, immediately hand the child over to his or her parents or an appropriate person or guardian or if there is no parent, appropriate person or guardian available, or if it is not in the best interests of the child to be handed over to the parent, an appropriate person or guardian, the child must be handed over to a suitable child and youth care centre, and must notify a probation officer. Previously the word “adult” was used instead of “person” as is now the case.

Children who are 12 years or older, but under 14 years of age, are presumed to have criminal capacity, but the State must prove beyond a reasonable doubt that the child had the ability to appreciate the difference between right and wrong at the time of the commission of the alleged offence and had the ability to act in accordance with that appreciation. Children over 14 years of age are regarded as having the mental ability to distinguish right from wrong and can appreciate the consequences of their actions, meaning they can be prosecuted for their actions.

The law has now been amended to provide for three categories of crimes and the appropriate punishment for each category, with serious offences being adjudicated by the Child Justice Court which may sentence a convicted child to community service, youth care centres or even prison, with the latter applying only if the child is a repeat offender who has been sentenced to a youth care centre before, and even then to a maximum of twenty-five years in jail.

The issue of children being used by adults or even older children in the commission of crimes was also discussed by the committee and to this end, in cases of the latter, the word “adult” is substituted with “persons”. 

The Bill further provides for the revision of the age for criminal capacity, with the Minister of Justice being required to submit a report on the issue within five years.

Author: Xoliswa Mtulu-Dotwana