A.     Scientific evidence: children and criminal capacity

1.      The broad consensus amongst child development experts is that children only develop the capacity to foresee and shape their behaviour according to an understanding of what consequences might occur around the age of 11 (just pre-puberty). This is also articulated in the ‘second leg’ of the current test for criminal capacity.

2.      Many countries/territories/states undertaking law reform in the last decade in this area (at least 25) have chosen a fixed minimum age (e.g. 12). Children mature at different rates in different settings and cultures, and under different parenting, family and social systems. This has led most states to opt for a fixed minimum age, which applies as a rule of law (irrespective of the actual developmental status of an individual child).

3.      Although the doli incapax presumption has been abolished in some jurisdictions recently, retention of this rebuttable presumption does allow for a more flexible approach which accommodates differences in maturation rates.


B. Children below the minimum age of criminal responsibility

1.      Section 7(7) which requires a police official when confronted by a child below the minimum age of criminal responsibility to ‘ inform the relevant probation officer of such particulars of the child as may be prescribed’ is vague and weak. It will, in practice, have no effect at all. The police official should be permitted/required to accompany the child to the probation officer.


2.      Concrete measures that a probation officer can take when appraised of the details of a child below the minimum age should be directly referred to in this legislation. Refer to the SALC Report and draft Bill for such a proposal, and concrete provisions which include opening a children’s court inquiry, arranging a family group conference to examine the child’s welfare needs, and organising therapeutic services for the child and his or her family.


3.      Although the Child Care Act itself is the subject of a law reform process, the progress of this endeavour is not certain, and the Child Care Act cannot therefore be relied upon to fill gaps left by this legislation.


C:   Venue for convening a preliminary inquiry


1.      Section 25(4) suggests that a preliminary inquiry should take place ‘ in a court or any other suitable place’. It is submitted that a court should be the last option – it is far more useful to hold the Preliminary Inquiry in a venue such as an office - the offices used for the Children’s Court, for example. The wording should therefor rather read that the preliminary inquiry should take place in any suitable venue, but preferably not a court room.


D. Detention of children prior to the finalisation of the preliminary inquiry


1.The provisions of section 36 relating to when a child may be detained in police cells pending the finalisation of the preliminary inquiry are obscure, and will led to much confusion amongst the magistracy. The fact that detention in police cells should be prohibited after the conclusion of the preliminary inquiry (also the current legal position) has to be worked out backwards, from an internal cross reference to section 37 and 38. Given the interpretative problems that have beset the implementation of section 29 of the Correctional Services Act over the last six years, this kind of indirect allusion should be avoided at all costs. Magistrates that I have consulted cannot determine from this convoluted wording when they may or may not remand a child to police cells, and the potential for State liability for wrongful detention arises. This is also a good example of the kind of provision which has been redrafted to become user unfriendly and obscure.


2. It is therefore proposed that the legislation state directly that no child may be detained in a police cell after the conclusion of the preliminary inquiry. Again the Committee is referred to the SALC report and draft Bill.


E: Conversion from a criminal trial to a children’s court inquiry

2.      There is no provision in the Bill as tabled for converting a matter to a children’s court inquiry after the preliminary inquiry stage. This means that the opportunity to use a section like section 254 of the present criminal procedure act will not be available to the judicial officer at any stage during the trial or sentencing process. This is unfortunate, as research shows that such conversions are in fact as frequent at sentencing stage as they are in practice early on in the proceedings. For example, one a detailed pre-sentence report has been prepared, accompanied by interviews with parents and family members, the fact that the child is in fact in need of care becomes clearer. It is therefore proposed that the section 254 provision be re-inserted into the Chapter 7 of the Bill (note that the Bill provides that the present section 254 will be repealed: see section 86 of the Child Justice Bill).


F: Separation and joinder of trials

1.      Separation and joinder of trials is a difficult issue. In the quest to create a separate child justice system, it is obviously preferable that wherever possible children should be tried separately from adults. This goes to the very essence of the century of history that has lead to separate juvenile justice systems for children, and constitutes international best practice. However, it is conceded that there are practical problems sometimes, including the question of duplicate dockets and the role of the defence counsel for any adult co-accused. Nevertheless, there are many systems where complete separation is maintained, e.g. Canada. The role players (e.g. the prosecution) have become accustomed to running two trials on occasion, and do not experience difficulty.


2. In the SALC Draft Bill, the above principles are far more clearly stated than in Bill 49/2002. Clause 80(1) says that trials are to be separated unless compelling reasons for joinder exist. By comparison, Bill 49/2002 provides that separation should occur unless it is in the interests of justice to join the trials – in my submission a far weaker criterion. It is proposed that the test for allowing joinder of trials be defined more strictly, so as to preserve the essential goal of separation of children from adults wherever possible. It is not, however, submitted that separation be a blanket and inflexible rule.


G: Sentencing

1.      The Bill should expressly prohibit the imposition of a fine as a sentence. The provisions of section 71, which may appear to provide alternatives to fines, in fact only govern those instances where a fine is the prescribed penalty. It therefore opens the way for a judicial officer to consider imposing a fine for common law offences (for example) where there is no prescribed penalty. This runs counter to the intention to prohibit monetary penalties which children cannot pay. See the discussion of this point in the SALC report and Draft Bill.


2.      The constitutional principle that detention should always be a matter of last resort, and then only for the shortest appropriate period of time applies far more broadly than simply to detention in a prison. It applies to any situation where a child is deprived of liberty. This is especially relevant in the child justice system, where children can be and are deprived of liberty in a range of alternative institutions - places of safety, secure care facilities, reform school youth centres and other residential centres. This has long been recognised by the Criminal Procedure Act, which provides for automatic high court review of any reform school sentence, as which limits the period of time for which a sentence to a reform school may be imposed.


3.      The restrictions on the imposition of residential sentences in the Bill follow the constitutional principle, as also three decades of research here and abroad which illustrate the overwhelmingly negative long term effects of institutionalisation upon developing youth. The committee is cautioned against proceeding from the stance that sentencing be linked to facilities – the danger exists that we will always find children needed in to fill available institutions, whereas the trend here and internationally is towards community based sentencing for both youth and adults.


4.      The present experience with Kokstad prison, a maximum security facility for adult prisoners built at vast cost is also salutary. The 1400 bed facility (which serves the entire country) is only half full, evidently because an insufficient number of high risk prisoners who fulfil the admission criteria exist to transfer to this facility. A reason why the secure care facility for children in Polokwane is at present apparently underutilised is probably explained by the same phenomenon.


5.      No child under the age of 14 years should be sentenced to imprisonment. The Department of Correctional Services does not have the capacity to provide services to children of this age. The age for admission to one of the 7 Youth development centres in the country is 16-21 years. Given the sentencing data presented earlier, it is clear that the numbers of children really requiring a residential alternative are few enough to be accommodated in existing reform schools and similar institutions, including secure care facilities (even though they are presently used only as remand institutions).


H:              Miscellaneous


1.      The definition of ‘an appropriate adult’ as included in Bill 49/2002 does not make sense. How can a custodian exclude a primary care-giver? The broader definition should be redrafted to include a custodian and a primary care giver who does not necessarily bear legal responsibility for a child, but de facto cares for the child on  day to day basis.


2. The SALC report and draft Bill created a new statutory offence of using children in the commission of a crime, an option strongly advocated for by members of the public during consultation processes. This has been considerably watered down, and the only provision now to hold adults accountable concerns aggravation of sentence.