The Child Justice Act: a guide to the child justice process
The Child Justice Act created a dedicated legal framework for children who are alleged to have committed offences in South Africa. It replaced an approach in which children were largely dealt with under adult criminal procedure, and it put into law the constitutional principle that detention of children must be a last resort. This guide walks through the main stages of the process the Act establishes.
Guiding principles
The Act is built on the idea that children in conflict with the law should be held accountable in ways that suit their age and development, that encourage them to take responsibility, and that support their reintegration into family and community. Restorative justice, the involvement of parents or guardians, and respect for the child's dignity run through its provisions.
Criminal capacity
The Act sets a minimum age below which a child cannot be prosecuted, and creates a presumption that children within a further age band lack criminal capacity unless the State proves otherwise. In deciding capacity, the court considers whether the child could appreciate the difference between right and wrong and act accordingly. Children below the minimum age who commit harmful acts are dealt with through social welfare responses rather than the criminal courts.
From arrest to the preliminary inquiry
Alternatives to arrest
Police are encouraged to use alternatives to arrest, such as a written notice or summons, particularly for less serious offences. Where a child is arrested, special rules apply to custody, the notification of parents and the time within which the child must be brought before a court.
Assessment
A probation officer assesses the child before the preliminary inquiry. The assessment examines the child's age, circumstances, previous involvement with the system, and whether the child may be in need of care and protection.
The preliminary inquiry
The preliminary inquiry is a distinctive feature of the Act. It is an informal, inquisitorial hearing presided over by a magistrate, where the prosecutor, probation officer, child and parents consider whether the matter can be diverted, whether it should be referred to a children's court, and what placement is appropriate if it proceeds.
Diversion
Diversion allows a child to avoid a criminal record by completing an appropriate programme, such as life skills training, community service, family group conferencing or victim-offender mediation. The Act provides for different levels of diversion depending on the seriousness of the offence.
Child justice courts and sentencing
Matters that are not diverted go to trial in a child justice court. If the child is convicted, the court must obtain a pre-sentence report and choose from a range of sentences, including:
- Community-based sentences and correctional supervision.
- Restorative justice sentences.
- Fines or alternatives to fines.
- Referral to a child and youth care centre.
- Imprisonment, only in limited and serious circumstances.
Legal representation and oversight
The Act contains provisions on legal representation for children and requires coordination among the departments involved in its implementation, including justice, police, social development and correctional services. Monitoring how the system works in practice, and whether it is achieving its aims for children, has remained a central concern of child rights advocates.