BILL

To establish a criminal justice process for children accused of committing offences which aims to protect the rights of children entrenched in the Constitution and provided for in international instruments; to provide for the minimum age of criminal capacity of such children; to delineate the powers and responsibilities of members of the South African Police Service and probation officers in relation to such children; to provide for the detention of such children and their release from detention; to incorporate diversion of cases away from formal court procedures as a central feature of the process; to establish assessment of children and a preliminary inquiry as compulsory procedures in the new process; to create special rules for a child justice court; to extend the sentencing options available in respect of such children; to entrench the notion of restorative justice; to establish appeal and review procedures; to provide for legal representation of children; to create monitoring mechanisms to ensure the effective operation of this legislation; and to provide for matters incidental thereto.

INTRODUCED BY THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: -

TABLE OF CONTENTS

CHAPTER 1

GENERAL

CHAPTER 2

AGE, CRIMINAL CAPACITY AND AGE DETERMINATION

CHAPTER 3

POLICE POWERS AND DUTIES

CHAPTER 4

DETENTION OF CHILDREN AND RELEASE FROM DETENTION

CHAPTER 5

ASSESSMENT

CHAPTER 6

DIVERSION

CHAPTER 7

PRELIMINARY INQUIRY

CHAPTER 8

CHILD JUSTICE COURT

CHAPTER 9

SENTENCING

CHAPTER 10

LEGAL REPRESENTATION

CHAPTER 11

AUTOMATIC REVIEW OF CERTAIN CONVICTIONS AND SENTENCES

CHAPTER 12

MONITORING OF CHILD JUSTICE

CHAPTER 13

RECORDS OF CONVICTIONS AND SENTENCE

CHAPTER 14

GENERAL PROVISIONS

CHAPTER 1: GENERAL

Definitions

1. In this Act, unless the context otherwise indicates -

Application of this Act

2. (1) This Act applies to any person in the Republic of South Africa, irrespective of nationality, country of origin or immigration status, who is alleged to have committed an offence and who, at the time of the alleged commission of such offence, is or was under the age of 18 years.

(2) The Director of Public Prosecutions or a designated prosecutor may, in exceptional circumstances, direct that proceedings in respect of an individual person must take place in terms of the provisions of this Act: Provided that such person may not be over the age of 21 years.

(3) The circumstances referred to in subsection (2) include those where -

(4) This Act applies to a person in respect of whom proceedings have been instituted in terms of this Act until conclusion of such proceedings, despite the fact that such person may have reached the age of 18 years during the course of such proceedings.

Application of this Act in relation to the Criminal Procedure Act, 1977

3. (1) Where this Act does not provide for any matter or procedure for which the Criminal Procedure Act, 1977 (Act No. 51 of 1977) provides, the provisions of that Act apply with such changes as may be required by the context.

(2) Where there is any inconsistency between this Act and the Criminal Procedure Act, the former applies.

Objectives

4. The objectives of this Act are to -

Principles

5. Any court or person exercising any power conferred by this Act or by section 20 of the Black Administration Act, 1927 (Act No. 38 of 1927) must be guided by the following principles:

CHAPTER 2: AGE, CRIMINAL CAPACITY AND AGE DETERMINATION

Age and criminal capacity

6. (1) A child who, at the time of the alleged commission of an offence, is below the age of ten years cannot be prosecuted.

(2) A child who, at the time of the alleged commission of an offence is at least ten years of age, but not yet 14 years, is presumed not to have had the capacity to appreciate the difference between right and wrong and to act in accordance with that appreciation, unless it is subsequently proved, beyond reasonable doubt, that such child at the time of the alleged commission of an offence had such capacity.

(3) If the prosecution of a child referred to in subsection (2) is contemplated, the Director of Public Prosecutions must issue a certificate confirming an intention to prosecute, which certificate must be issued after a preliminary inquiry.

(4) If the certificate referred to in subsection (3) is not issued within 14 days after the preliminary inquiry, the charges must be withdrawn.

(5) In issuing a certificate referred to in subsection (3) the Director of Public Prosecutions must have regard to -

(6) The common law pertaining to the criminal capacity of children below the age of 14 years is repealed.

Duties of police officials in relation to age estimation

7. (1) If a police official is uncertain about the age of a person suspected of having committed an offence, but has reason to believe that the age would render that person subject to the provisions of this Act, the official must take such person to a probation officer for estimation of age as soon as is reasonably possible.

(2) Where a police official has reason to believe that a child suspected of having committed an offence is below the age of ten years, he or she may not arrest the child, and must take such child to a probation officer for estimation of age or further action in terms of section 46.

Age estimation by probation officer

8. (1) If the age of a person brought before a probation officer is uncertain, such officer must make an estimation of that person’s age.

(2) For such purposes a probation officer must complete a prescribed form and obtain any relevant information as regards the age of the person concerned.

(3) In making such an estimation, information available must be considered in the following order of cogency -

(4) The probation officer must attach any relevant documentation to the form referred to in subsection (2).

(5) Where the probation officer is unable to make an estimation of the age of the alleged offender, or where the age is in dispute, the probation officer may refer the alleged offender to a medical practitioner for estimation of age.

(6) The form referred to in subsection (2) must be available at the child’s appearance at a preliminary inquiry for purposes of a determination of the child’s age by the inquiry magistrate in terms of section 9.

Age determination to be effected by inquiry magistrate

9. (1) The inquiry magistrate must, on all the available evidence and with due regard to the provisions of section 8(3), make a determination of the age of the alleged offender to be entered into the record as the age of the alleged offender, which age must be considered to be the correct age until any contrary evidence is placed before the inquiry magistrate or a court.

(2) For the purposes of the determination, an inquiry magistrate may require any documentation, evidence or statements relevant to age determination from any person, body or institution to be furnished.

(3) If an inquiry magistrate determines that a person was, at the time of the alleged commission of the offence with which such person is being charged, over the age of 18 years, he or she must close the preliminary inquiry and direct that the matter be transferred to a court other than a child justice court for proceedings under the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

(4) Where an inquiry magistrate makes a determination of age that is not supported by a valid birth certificate, identity document or passport, a record of the determination must be forwarded to the Department of Home Affairs for the issue of relevant identification documents.

(5) Where necessary, an inquiry magistrate may subpoena any person to produce the documentation, evidence or statements referred to in subsection (2).

Age assessment and determination by officer presiding in criminal court

10. (1) Where a person appearing in a criminal court other than a child justice court alleges, at any stage before sentence, that he or she was, at the time of the alleged commission of the offence with which he or she is being charged, below the age of 18 years, or where it appears to such court that the person may be below the age of 18 years, that person must be referred to a probation officer for estimation of age in terms of section 8, which age estimation must be submitted to the presiding officer of that court.

(2) A presiding officer referred to in subsection (1) must make a determination of age on the same basis as an inquiry magistrate referred to in section 9.

(3) If the age of the person referred to in subsection (1) is found to be below 18 years and the trial has not yet commenced, the presiding officer concerned must transfer the matter to the inquiry magistrate having jurisdiction for further proceedings under this Act.

(4) If the age of the person referred to in subsection (1) is found to be below the age of 18 years and the trial has commenced, the proceedings must continue to be conducted before the presiding officer, but the remainder of the proceedings must be conducted in terms of the provisions of this Act.

(5) The presiding officer concluding a trial in terms of subsection (4) may, after conviction, refer the matter to the child justice court for sentence if to do so is in the best interests of the child.

(6) Where proceedings have started in terms of the provisions of this Act in respect of a person who is alleged to have been below the age of 18 years at the time of the alleged commission of the offence with which such person is being charged, and evidence is produced proving that such person was 18 years of age or older at such time, the inquiry magistrate or court must -

CHAPTER 3: POLICE POWERS AND DUTIES

Methods of securing attendance of child at preliminary inquiry

11. (1) Irrespective of the provisions of section 38 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), the methods of securing the attendance of a child alleged to have committed an offence at a preliminary inquiry are -

(2) The arrest of a child must be made with due regard to the dignity and well-being of such child, and only if it is clear that a child cannot be arrested without the use of force, may the person effecting the arrest use such force as may be reasonably necessary and proportional in the circumstances to overcome any resistance or to prevent the child from fleeing.

(3) The person arresting or attempting to arrest a child is justified in using force that is intended or is likely to cause death or serious bodily harm to such child, only if there are reasonable grounds for the belief that -

(4) In respect of the offences referred to in Schedule 1, a police official may not effect an arrest and must use any alternative to arrest as referred to in subsection (6) unless there are compelling reasons justifying an arrest.

(5) In respect of offences not referred to in Schedule 1, a police official, in deciding whether to effect an arrest, must consider using an alternative to arrest as referred to in subsection (6).

(6) A police official may use any of the following alternatives to arrest in respect of a child alleged to have committed an offence -

(7) A child who is alleged to have committed an offence and who was below the age of ten years at the time of the commission of such offence, may be taken to a probation officer for assessment and further action in terms of the provisions of section 46.

(8) Any private person who has effected the arrest of a child must hand such child over to the police as soon as is reasonably possible.

(9) If a summons is used as a method of securing the attendance of a child at a preliminary inquiry, such summons must be in the prescribed form and must be issued upon application by a prosecutor to the clerk of the court having jurisdiction.

Cautioning by police

12. (1) The National Commissioner of the South African Police Service may issue a national instruction setting out the circumstances in which a member of the South African Police Service may issue an informal warning to a child instead of arresting such child or using an alternative to arrest.

(2) A member of the South African Police Service may, in accordance with the national instruction contemplated in subsection (1), issue an informal warning to a child instead of arresting such child or using an alternative to arrest.

Warrant of arrest

13. (1) A warrant of arrest issued under section 43 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) in respect of a child, must direct that such child be brought to appear at a preliminary inquiry.

(2) The execution of any warrant of arrest issued in respect of a child may be held over by any inquiry magistrate or court for not more than 14 days.

(3) Where the execution of a warrant of arrest is held over in terms of subsection (2), the inquiry magistrate or court may request the investigating police official to inform the child named in the warrant, if traced, of the issue of the warrant before the expiry of 14 days and the officer required to execute such warrant may, instead of arresting a child, use one of the alternatives to arrest referred to in section 11(6).

Duties of police official upon arrest, use of alternative to arrest or issue of summons

14. (1) Where a child is arrested, the police official effecting the arrest must-

(2) A police official who has arrested a child must -

(3) Where an alternative to arrest as referred to in section 11(6) has been used, save for the alternative mentioned in section 11(6)(a), or a summons has been issued in terms of section 11(9), the police official using such alternative or serving such summons must -

Time limits pursuant to arrest, alternatives to arrest and summons

15. (1) Any child who has been arrested must, whether an assessment of the child has been effected or not, be taken by a police official to appear at a preliminary inquiry within 48 hours after arrest or, if the 48 hours expire outside court hours or on a day which is not a court

day, no later than the end of the first court day after the expiry of the 48 hours.

(2) Where a child has been arrested, the arresting police official must provide an inquiry magistrate with a written report in the prescribed manner within 48 hours after the arrest, giving reasons why alternatives to arrest were not used.

Duty of police to notify parent or appropriate adult

16. (1) Where a child has been arrested, the police official who has effected the arrest must notify the child’s parent or an appropriate adult as soon as possible of the arrest, and give the relevant person or persons a written notice in the prescribed manner requiring such person to attend a preliminary inquiry at a specified time and place.

(2) Where the arresting police official has not given a written notice as referred to in that subsection, the police official investigating the matter must give such notice as soon as possible.

(3) If the child’s parent or an appropriate adult is not available or cannot be traced, the arresting police official or investigating police official must request the child to identify another appropriate person, and if such person is identified, the relevant police official must request that person to attend a preliminary inquiry in respect of the child at a specified time and place.

(4) Upon the identification of another appropriate person as referred to in subsection (3), such person must be taken to be an appropriate adult.

(5) If at the time of the preliminary inquiry an appropriate person has not been notified to attend such inquiry, the investigating police official must notify such person or persons as identified by a probation officer to attend the preliminary inquiry at a specified time and place.

(6) Where an alternative method to arrest as referred to in section 11(6) has been used, the police official using such alternative must as soon as possible thereafter notify the child’s parent or an appropriate adult of the use of the procedure described in the said section 11(6).

(7) The provisions of subsections (2), (3), (4) and (5) apply, with such changes as may be required by the context, to the provisions of subsection (6).

Pre-trial procedures and requirement that parent or an appropriate adult be present

17. (1) Evidence obtained as a result of a confession, admission or pointing out rendered admissible in terms of section 218 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), may only be admissible as evidence in a court if the child’s parent, an appropriate adult or legal representative was present when the confession or admission was made or the pointing out took place.

(2) Similarly no evidence relating to an identity parade is admissible in a court without the aforementioned representation on behalf of the child.

(3) Where a child refuses to have a parent or an appropriate adult present at the procedures contemplated in subsections (1) and (2), or where a parent or an appropriate adult is not present or cannot be traced or a legal representative is not available, an independent observer as contemplated in section 105(i) must be present at such procedure, which person may, during the attendance of such procedure, assist the child in relation to the proceedings.

(4) Where an independent observer is to be present at proceedings in terms of subsection (2), the police official investigating the matter must request an observer included in the roster referred to in section 105(i) to assist the child.

Fingerprints

18. Further to the provisions of section 37 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), the taking of fingerprints of children must not be resorted to before the conclusion of a preliminary inquiry, unless to do so is -

CHAPTER 4: DETENTION OF CHILDREN AND RELEASE FROM DETENTION

Principles relating to release of children from detention

19. Whenever any decision regarding the release of a detained child is to be made by a police official, the Director of Public Prosecutions or a designated prosecutor, an inquiry magistrate or officer presiding in a court, when making such decision, must consider the following principles -

Treatment and rights of children in detention in police custody

20. (1) Whilst in detention in police custody, a child -

(2) Where a child in detention in police custody complains of an injury sustained during arrest or whilst in detention, the police official to whom such complaint is made must report the complaint to the station commissioner who must take the child to a medical practitioner for examination as soon as is reasonably possible and must include the report of such medical practitioner in the appropriate police docket.

Duties of police relating to cell register

21. (1) The station commissioner of each police station must keep a cell register, in which details regarding the detention in police cells of all persons under the age of 18 years must be distinctively recorded.

(2) The details in the register may be examined by a parent, guardian, legal representative, magistrate, registered social worker, probation officer, religious counsellor or health worker, member of a Child Justice Committee or a researcher.

Time limits relating to detention of children in police custody prior to preliminary inquiry

22. No child may be held in detention in police custody for longer than 48 hours prior to appearing before an inquiry magistrate or, if the 48 hours expire outside court hours or on a day which is not a court day, no longer than the end of the first court day after the expiry of the 48 hours.

Duties of police relating to reporting on detention of children

23. Where a child accused of an offence in Schedule 1 has not been released from detention in police custody as contemplated in section 24(1) prior to appearance at a preliminary inquiry, the investigating police official must provide the inquiry magistrate with a written report in the prescribed manner giving reasons why such child could not be released from such detention.

Powers of police to release child from detention in police custody prior to preliminary inquiry

24. (1) A police official must release a child who is in detention in police custody and who is accused of an offence referred to in Schedule 1, prior to appearance of such child at a preliminary inquiry, into the care of the child’s parent or an appropriate adult unless -

(2) A police official may, in consultation with the Director of Public Prosecutions or a designated prosecutor, release a child who -

into the care of such child’s parent or an appropriate adult, on one or more of the following conditions -

Power of Director of Public Prosecutions to authorise release of children from detention in police custody

25. The Director of Public Prosecutions or a designated prosecutor may, despite the decision of a police official to the contrary, authorise the release of a child contemplated in section 24(2) from detention in police custody into the care of the child’s parent or an appropriate adult upon the conditions referred to in that section, and if such release is authorised, the written notice referred to in section 26(1)(a) must be handed to the child and to the person in whose care the child is released.

Duties of police upon release of child and persons into whose care child is released

26. (1) A police official who releases any child from detention in accordance with section 24(1) or (2) or who releases a child upon direction of the Director of Public Prosecutions or a designated prosecutor in accordance with section 25 and places such child in the care of a parent or an appropriate adult, must -

(2) Any person in whose care a child is placed under subsection (1) and who fails in terms of a warning under that subsection to bring the child for a preliminary inquiry or to have the child remain in attendance, or who fails to see to it that the child complies with any conditions, is guilty of an offence and liable upon conviction to the penalties set out in subsection (3).

(3) Any court may, if satisfied that a person into whose care a child was released, was warned in terms of subsection (1), and that such person has failed to comply with such warning or to comply with a condition imposed, issue a warrant for the arrest of such person and may, when such person is brought before the court, in a summary manner enquire into his or her failure and if it is proved that such person’s failure was due to fault on his or her part, sentence him or her to a fine or to imprisonment for a period not exceeding three months.

(4) The provisions of subsection (3) apply, with the changes required by the context and subject to sections 92(2) and 94, to a child who has been released into the care of his or her parent or an appropriate adult and who fails to comply with the directions contained in the written notice referred to in subsection (1)(a) or with any condition imposed in terms of sections 24(2).

Detention in place of safety in lieu of detention in police custody

27. Where a child entitled to be released from detention in police custody as contemplated in section 24(1) or (2) cannot for any reason be released into the care of a parent or an appropriate adult or cannot be released on bail, such child must, in lieu of detention in police custody, be placed in a place of safety where there is a vacancy and if such place is available within a reasonable distance from the place where the child has to appear for a preliminary inquiry.

Police may not release children accused of certain offences

28. (1) A police official may not release a child accused of an offence referred to in Schedule 3 from detention in police custody.

(2) If a place of safety or secure care facility is available within a reasonable distance from the place where a child referred to in subsection (1) will appear for a preliminary inquiry and there is a vacancy, such child must be placed in such place of safety or secure care facility, pending appearance at such preliminary inquiry.

Release of children accused of certain offences on bail prior to appearance at preliminary inquiry

29. (1) Irrespective of the provisions of section 59(1)(a) of the Criminal Procedure Act, 1977, a police official may, in consultation with the police official charged with the investigation, if the release of a child accused of an offence referred to in Schedule 1 into the care of such child’s parent or an appropriate adult is for any reason not appropriate, authorise the release of such child on bail prior to the appearance of that child at a preliminary inquiry.

(2) In order to determine the amounts that may be set for bail as contemplated in subsection (1), the National Commissioner of the South African Police Service may, after consultation with the National Director of Public Prosecutions, issue a national instruction.

(3) Irrespective of the provisions of section 59A(1) of the Criminal Procedure Act, 1977, the Director of Public Prosecutions or a prosecutor authorised thereto in writing by the Director of Public Prosecutions may, in consultation with the police official charged with the investigation, if the release of a child accused of an offence referred to in Schedule 2 into the care of such child’s parent or an appropriate adult is for any reason not appropriate, authorise the release of such child on bail prior to the appearance of that child at a preliminary inquiry subject to reasonable conditions.

(4) In order to determine the amounts that may be set for bail as contemplated in subsection (3), the National Director of Public Prosecutions may, after consultation with the Minister of Justice and Constitutional Development, issue directives.

(5) Bail granted in terms of this section by a police official or the Director of Public Prosecutions or a designated prosecutor, if applying at the time of the appearance of a child at a preliminary inquiry, subject to the provisions of section 35(3), continues after such appearance in the same manner as bail granted at a preliminary inquiry or by a court.

Release of child at preliminary inquiry or by a court into care of parent or an appropriate adult

30. (1) Upon first appearance at a preliminary inquiry, a child, if not released previously from detention in terms of section 24, 25 or 29, must, if the case is not disposed of, be released from detention if it is in the interests of justice to do so.

(2) Where a child is released in terms of subsection (1), such release must be into the care of the child’s parent or an appropriate adult, and the inquiry magistrate must warn such parent or adult to bring the child or cause the child to be brought to appear at a specified place and time and, if a condition has been imposed in terms of section 32, to see to it that the child complies with such condition.

(3) The provisions of subsections (1) and (2) apply, with the changes required by the context, to the release of a child by a court upon first appearance of the child in such court pending any further appearance.

(4) The inquiry magistrate must, in making a decision whether or not to release the child as referred to in subsection (1), have regard to the recommendation of the probation officer in respect of release from detention contained in the assessment report, as well as any further information which has been placed before him or her by any person.

Factors to be considered at preliminary inquiry or by court prior to decision to release or detain a child

31. In considering whether it would be in the interests of justice to release a child into the care of such child’s parent or an appropriate adult as contemplated in section 30(2), or on bail as contemplated in section 35, or to remand such child in detention as contemplated in section 36, the inquiry magistrate or court must have regard to all relevant factors, including -

Conditions that may be imposed upon release of child into care of parent or appropriate adult or on bail

32. (1) An inquiry magistrate or court may, in releasing a child into the care of the child’s parent or an appropriate adult or on bail, impose upon the child one or more of the following conditions of release -

(2) The provisions of section 26(2), (3), (4) and (5) regarding compliance with conditions of release by a child, a parent or an appropriate adult apply with such changes as may be required by the context to conditions of release as referred to in subsection (1).

Non-detained children appearing at preliminary inquiry

33. (1) Where a child who is not in detention appears at a preliminary inquiry and it is decided that the matter is to be transferred to the children’s court in terms of section 61(4) or is to be referred by the prosecutor for plea and trial in a court in terms of section 61(5), the inquiry magistrate must warn the child to appear at a specified date and time at such children’s court inquiry or court.

(2) An inquiry magistrate who warns a child in terms of subsection (1) may extend or confirm or amend any conditions of release that were in operation by virtue of the provisions of section 24(2) prior to the child’s appearance at the preliminary inquiry.

(3) The inquiry magistrate may extend, confirm or amend any order made affecting a child’s parent or an appropriate adult into whose care a child has previously been released.

Release of child on own recognisance

34. An inquiry magistrate or the officer presiding in a court may release a child on his or her own recognisance after consideration of the factors referred to in section 31, with or without conditions as set out in section 32, and must order such child to appear at a preliminary inquiry or before a court at a specified place and time.

Release of child on bail by inquiry magistrate or court

35. (1) An inquiry magistrate or officer presiding in a court may, if the release of a child into the care of such child’s parent or an appropriate adult is for any reason not possible, after consideration of the factors referred to in section 31, release such child upon payment of bail and on one or more of the conditions referred to in section 32.

(2) Section 60(4), (5), (6), (7), (8), (9), (10), (11) and (11A) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), does not apply to the release of a child on bail as contemplated in this section.

(3) If bail has been granted previously for a child appearing at a preliminary inquiry or in a court by a police official in terms of section 29(1) or the Director of Public Prosecutions or a designated prosecutor in terms of section 29(3), the inquiry magistrate or court may extend the bail on the same conditions, amend the conditions or add further conditions, or may increase or reduce the amount of bail.

(4) Bail as referred to in subsection (1) has the effect contemplated in section 58 of the Criminal Procedure Act, 1977, save for the proviso referred to in that section.

(5) Whenever the question arises in a bail application or during bail proceedings whether any child is charged or is to be charged with an offence referred to in Schedule 3, a written confirmation issued by a Director of Public Prosecutions under section 31(m) is, upon mere production, prima facie proof of the charge to be brought against that child.

(6) The written confirmation must be handed in at the preliminary inquiry or the court in question by the prosecutor as soon as possible to form part of the record.

Detention of child after first appearance

36. (1) If, after a child’s first appearance at a preliminary inquiry or in a court, the inquiry magistrate or court has, after consideration of the factors referred to in section 31, decided that such child should not be released into the care of such child’s parent or an appropriate adult, or should not be released on bail as contemplated in section 35, such child may -

(2) In the case of a remand, the inquiry magistrate may only order the detention of the child for a period of 48 hours and subject to section 65(3), for one further period of 48 hours, or if either of such periods expires outside court hours or on a day which is not a court day, no longer than the end of the first court day after the expiry of the 48 hours.

(3) In deciding whether the placement of the child should be in a place of safety or a secure care facility as referred to in subsection (1), the inquiry magistrate or officer presiding in a court must have regard to the recommendations of the probation officer in such officer’s assessment report.

(4) Where a child is 14 years of age or older, and charged with an offence in Schedule 3 and release or referral of the child to a place of safety or secure care facility is not possible because -

the child may be remanded to a prison.

(5) Where a child is remanded to a place of safety, secure care facility or prison in terms of subsections (1) and (4) -

(6) In making an order that a child be remanded to prison, the inquiry magistrate or court must record the reasons for remanding such child to prison.

Application for release from detention

37. (1) Nothing contained in this Act or any other law must be construed as precluding a detained child from applying for release from detention at any stage before the passing of sentence, or when an appeal against a sentence is lodged, before the conclusion of the appeal.

(2) There is a right of appeal against any decision refusing an application for release from detention to the High Court having jurisdiction, which appeal is to be heard as a matter of urgency.

CHAPTER 5: ASSESSMENT

Purposes of assessment

38. The purposes of assessment are to -

Place where assessment is to be conducted

39. (1) A probation must make or authorise an assessment which may take place at a magistrate’s court, the offices of the Department of Welfare or any other suitable place identified by the probation officer or authorised person.

(2) In order to protect the privacy of the child to be assessed, the place identified in terms of subsection (1) should be conducive to confidentiality.

Persons who must attend assessment

40. The persons who must attend the assessment of a child are -

Persons who may attend assessment

41. (1) Persons who may attend the assessment are -

(2) If considered necessary, the probation officer may exclude any person referred to in subsection (1) or any person referred to in section 40(c) from attending an assessment if the presence of such person is obstructing the completion of the assessment.

(3) If there is any risk that the child who is to be assessed may escape or may endanger the safety of the probation officer, a police official must be present during the assessment.

Child to be assessed prior to preliminary inquiry

42. (1) Any child who is to appear at a preliminary inquiry must be assessed by a probation officer in accordance with the provisions of this Chapter when notified by a police official that the attendance of such child at a preliminary inquiry has been secured in terms of section 11(1).

(2) The assessment must take place as soon as is reasonably possible after the probation officer has been notified in terms of subsection (1) but prior to the appearance of the child at a preliminary inquiry.

(3) The Minister of Welfare and Population Development must provide probation services to give effect to the provisions of subsection (1).

(4) Where a child has been arrested and a probation officer is not immediately available to assess such child, the child may, pending assessment, be detained in a police cell or a place of safety, subject to the provisions of Chapter 4 of this Act.

Parent or appropriate adult to attend assessment

43. (1) A parent or an appropriate adult who has been notified to appear at an assessment of a child in terms of section 44(1)(c), (2)(b) or (3), must attend the assessment unless exempted in terms of subsection (4).

(2) If it appears that a parent or an appropriate adult has not been notified to attend the assessment, the probation officer concerned may at any time before such assessment issue a requisition notice in the prescribed manner to such person, notifying him or her to appear at an assessment, or where the interests of justice so require, the probation officer may orally notify such person to appear at an assessment.

(3) A notice referred to in subsection (2) must be delivered by a police official to the person specified in such notice upon request by the probation officer.

(4) A person who has been notified in terms of subsection (1) or (2) may apply to the probation officer for exemption from the obligation to attend the assessment, and if such probation officer exempts such person, the exemption must be in writing.

(5) A person notified in terms of subsection (1) or (2) and not exempted in terms of subsection (4) who fails to attend the assessment, is guilty of an offence and liable upon conviction to the penalty in section 117.

Powers and duties of probation officer prior to assessment

44. (1) A probation officer may, by issuing a requisition notice in the prescribed manner, require the arresting officer or any other police official to -

(2) A probation officer may, in accordance with the provisions of the Probation Services Act, 1991 (Act No. 116 of 1991) authorise any person to -

(3) A probation officer may, for purposes of section 46, issue a requisition notice in the prescribed manner to a child’s parent or an appropriate adult notifying such person to attend a conference as contemplated in that section.

(4) The probation officer must make every effort to locate a parent or an appropriate adult for the purposes of concluding the assessment process of a child.

(5) Where all reasonable efforts to locate such person have failed, the probation officer may conclude the assessment in the absence of such person.

(6) The probation officer may contact or consult with any other person who has any information relating to the assessment, and if such additional information is obtained, the child must be informed of such information.

Powers and duties of probation officer at assessment

45. (1) The probation officer must -

(2) If the age of the child is uncertain, the probation officer must obtain information relevant to the age estimation referred to in section 8 and must complete the form referred to in section 8(2).

(3) The probation officer may at any stage during the assessment of a child consult -

if such person is not at the assessment.

(4) The probation officer may at any stage during the assessment consult individually with any person at the assessment.

(5) Where a child is accused with another child, the probation officer may conduct the assessment of such children simultaneously.

(6) The probation officer must encourage the participation of the child during the assessment process.

(7) Unless the child is below the age of ten years, the probation officer must complete an assessment report in the prescribed manner with recommendations as to -

(8) The report referred to in subsection (7) must as soon as possible be submitted to the prosecutor to decide whether or not to withdraw charges pending against the child or to open a preliminary inquiry.

(9) If it appears to the probation officer that the child does not intend to accept responsibility for the alleged offence, this must be indicated in the assessment report.

(10) Where a child is not in detention and no written warning to appear at a preliminary inquiry has been issued, the probation officer, upon completion of the assessment, must issue a written warning to the child and the parent or an appropriate adult to appear at a preliminary inquiry at a specified place and time and to remain in attendance.

(11) A warning issued by a probation officer in terms of subsection (10) is to be regarded as one issued by a police official in terms of section 11(6)(b) and remains in force until the appearance of the child at a preliminary inquiry.

Powers of probation officer in relation to child below the age of ten years

46. (1) After assessment of a child below the age of ten years, the probation officer concerned may -

(2) The purposes of the conference convened by a probation officer in terms of paragraph (d) of subsection (1) are to -

(3) The written plan referred to in subsection 2(b) must -

(4) The probation officer must record, with reasons, the outcome of the assessment and the decision made in terms of subsection (1).

(5) The record referred to in subsection (4) must be submitted within a month of the decision to the Child Justice Committee referred to in section 104 for consideration.

Failure of child below the age of ten years to attend assessment or to comply with obligations

47. Where a child is below the age of ten years and such child or the parent or appropriate adult fails to attend an assessment or fails to comply with any obligation imposed upon such child or upon the parent or appropriate adult by a probation officer in terms of section 46, the probation officer may request the children’s court having jurisdiction to open an inquiry.

CHAPTER 6: DIVERSION

Purposes of diversion

48. The purposes of diversion in terms of this Act are to -

Minimum standards applicable to diversion and diversion options

49. (1) No child may be excluded from a diversion programme due to an inability to pay any fee required for such programme.

(2) A child of the age of ten years and over may be required to perform community service as an element of diversion, with due consideration to the child’s age and development.

(3) Diversion options must -

(4) Diversion options must, where reasonably possible -

(5) Any diversion option that has a predetermined content and duration and either involves a service to groups of children or offers a service to individual children on a regular basis, which service is presented by a government department or a non-governmental organisation, must be registered in terms of the regulations to this Act.

Availability of diversion options and the keeping of records

50. (1) The Minister of Welfare and Population Development is responsible for the development of suitable diversion options as contemplated in this Chapter.

(2) The provisions of subsection (1) must not be construed as precluding any government department or non-governmental organisation from developing suitable diversion options for children who are alleged to have committed offences.

(3) For purposes of sections 63(1) and 110(5)(b)(iv), a register of children who have been diverted is to be kept by the Minister of Welfare and Population Development.

Diversion only to occur in certain circumstances

51. (1) A child suspected of having committed an offence may only be considered for diversion if -

(2) Where circumstances as referred to in subsection (1) exist, diversion must be considered.

Diversion options

52. (1) In selecting a specific diversion option for a particular child at a preliminary inquiry or in a court, consideration must be given to -

(2) For purposes of this Act a range of diversion options are set out in three levels for children aged ten years or older and subject to the provisions of this Act, with level one comprising the least onerous and level three the most onerous options.

(3) Level one diversion options are -

(4) Level two diversion options are -

(5) Level three diversion options may only be applied in the case of a child of the age of 14 years or older if there is reason to believe that a court, upon conviction of the child, would impose a sentence involving detention of the child for a period exceeding six months, and are -

2. referral to a programme with a residential element, where the duration of the programme does not exceed six months, and no portion of the residence requirement exceeds 21 consecutive nights with a maximum of 35 nights during the operation of the programme;

3. performance without remuneration of some service for the benefit of the community under the supervision and control of an organisation or institution, or a specified person or group identified by the probation officer effecting the assessment or by the Child Justice Committee referred to in section 104 for a maximum period of 250 hours, to be completed within a maximum period of 12 months;

4. where a child is over the age of compulsory school attendance as referred to in the South African Schools Act, 1996 (Act No. 84 of 1996), and is not attending formal schooling, compulsory attendance at a specified centre or place for a specified vocational or educational purpose for a maximum period of no more than 35 hours per week, to be completed within a maximum period of six months;

5. referral to counselling or therapeutic intervention in conjunction with any of the options listed in this subsection.

(6) For purposes of subsection (3) -

(7) Upon the selection of a diversion option as contemplated in this section, the inquiry magistrate or court must identify a probation officer or other suitable person to monitor the child’s compliance with the conditions of the selected diversion option, and such officer or person must, in the event of the child’s failure to comply with any conditions, notify the inquiry magistrate or court in writing of such failure.

Family group conference

53. (1) Whenever a child has been referred at a preliminary inquiry or by a court to appear at a family group conference, the probation officer concerned must forthwith be notified in writing of such referral in the prescribed manner by the inquiry magistrate or court responsible for the referral of the child.

(2) Upon receipt of the notice the probation officer must convene a conference within 14 days, but not later than 21 days, after such receipt by -

(3) No notice contemplated in subsection (2)(b) need be given to any person whose whereabouts, after reasonable enquiries, are unknown and failure to notify any person in accordance with that subsection does not affect the validity of the proceedings of a family group conference unless such failure is likely to affect the outcome of the conference materially.

(4) Where a family group conference fails to take place, the probation officer must arrange for an alternative date and notify the persons referred to in subsection (5).

(5) The persons entitled to attend a family group conference are -

(6) It is for the family group conference to regulate its procedure and make such plan as it deems fit.

(7) The plan referred to in subsection (6) may include -

(8) Any plan must -

(9) The probation officer must record, with reasons, any plan formulated at a family group conference, and must furnish a copy of such record to the child and to the person referred to in section 52(7).

(10) If no agreement on the plan can be reached, the conference must be closed and the probation officer must forthwith refer the matter back to the inquiry magistrate or the court for further consideration.

(11) Where a child fails to comply with a plan made by a family group conference, the provisions of sections 68 and 82(9) apply.

(12) Where a family group conference has been held pursuant to sections 82 or 88, the record referred to in subsection (9) must be submitted by the probation officer within seven days after completion to the inquiry magistrate or the court and within one month after completion to the Child Justice Committee referred to in section 104.

(13) The proceedings of a family group conference are confidential and statements made by anyone may not be used as evidence in any subsequent court proceedings.

Victim-offender mediation or other restorative justice process

54. (1) Where an inquiry magistrate or presiding officer in a court refers a child to a victim-offender mediation or other restorative justice process, the provisions of section 53(1), (2), (3), (4), (7), (8), (9), (10) and (13) apply with such changes as the context requires.

(2) A probation officer must convene a victim-offender mediation or other restorative justice process and may regulate its procedure as he or she deems fit.

Powers of prosecution

55. (1) The probation officer must submit the assessment report containing recommendations in respect of the child to the prosecutor of the district court having jurisdiction.

(2) Upon consideration of the recommendations of the probation officer, the prosecutor may withdraw the charges against the child or arrange for a preliminary inquiry.

(3) Where an assessment has not been made, the prosecutor must arrange for an assessment or, if this is not possible, arrange for a preliminary inquiry.

CHAPTER 7: PRELIMINARY INQUIRY

Nature and objectives of preliminary inquiry

56. (1) A preliminary inquiry must be held in respect of every child subject to this Act prior to plea.

(2) The chief magistrate of each magisterial district must designate a district court magistrate as the inquiry magistrate of that district unless a One-Stop Child Justice Centre has been established for a particular area in terms of section 72, in which case the provisions of that section apply.

(3) The place where a child must appear for purposes of the holding of the preliminary inquiry, must be determined in accordance with section 90 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944) except where a One-Stop Child Justice Centre has been established, in which case section 72 of this Act applies.

(4) The objectives of a preliminary inquiry are to -

(5) A preliminary inquiry may be held at any place but may not be held in a court, unless no suitable place other than a court room is available.

(6) The inquiry magistrate is to conduct the proceedings in an informal manner by asking questions, interviewing persons at the inquiry and eliciting information.

Persons who must attend preliminary inquiry

57. (1) Persons who must attend the preliminary inquiry are -

(2) In exceptional circumstances a preliminary inquiry may proceed in the absence of the persons referred to in subsection (1)(d), (e) and (f).

(3) Where a preliminary inquiry proceeds in the absence of a probation officer, such officer’s assessment report must be available at the preliminary inquiry, unless assessment has been dispensed with in terms of section 60(3).

(4) The inquiry magistrate may, if necessary, exclude any person referred to in subsection 1(d) and (e) from attending the preliminary inquiry.

Persons who may attend preliminary inquiry

58. Persons who may attend the preliminary inquiry are -

Procedure relating to holding of preliminary inquiry

59. (1) At the start of the preliminary inquiry, the inquiry magistrate must -

(2) At the start of the preliminary inquiry, the prosecutor or the probation officer must ensure that the inquiry magistrate has the probation officer’s assessment report and an age assessment form referred to in section 8(2) with any documents attached.

(3) Where a child does not acknowledge responsibility for the offence with which he or she is being charged, no further questions regarding such offence may be put to the child and the prosecutor may set the matter down for plea and trial in a court.

(4) A record must be kept of the proceedings of the preliminary inquiry.

(5) No decision taken at a preliminary inquiry is subject to appeal, save for a decision by the inquiry magistrate to remand a child in detention.

General powers and duties of inquiry magistrate

60. (1) The inquiry magistrate may -

(2) The inquiry magistrate may, where the conduct of the proceedings of the preliminary inquiry or any aspect is in dispute, rule on the conduct of the proceedings in a manner consistent with the provisions of this Act.

(3) If it is ascertained that the child had not yet been assessed, the inquiry magistrate may remand the preliminary inquiry in terms of section 65(1)(f) pending assessment of the child, or may dispense with assessment if it is in the best interests of the child to do so.

(4) The inquiry magistrate must ensure that the persons present at the inquiry know of the recommendations in the probation officer’s assessment report.

(5) Where the probation officer is present at a preliminary inquiry, the inquiry magistrate may request the probation officer to explain, elaborate upon or justify any recommendation or statement made in the assessment report, or to provide additional information.

(6) The correctness of any statement made in the probation officer’s assessment report may be challenged by any person present at the preliminary inquiry.

(7) The inquiry magistrate must ensure that the persons present at a preliminary inquiry are informed of diversion options available in the district or area of his or her jurisdiction as well as of their aims and content.

(8) The inquiry magistrate must consider the reports regarding arrest of the child and detention in police custody provided by the arresting police official and if the inquiry magistrate considers that an arrest or detention in a police cell was unnecessary, the Child Justice Committee of the district referred to in section 104 must be notified.

Decisions regarding diversion, prosecution or transfer to a children’s court

61. (1) After consideration of -

(c) any further information provided by any person present;

the inquiry magistrate must ascertain from the prosecutor whether the matter can be diverted.

(2) Where the prosecutor indicates that the matter can be diverted, the inquiry magistrate must make an order regarding an appropriate diversion option or options.

(3) In addition to the diversion options set out in section 52, the inquiry magistrate may, after consultation with the persons present at the preliminary inquiry, develop an individual diversion option which meets the purposes of and standards applicable to diversion set out in sections 48 and 49.

(4) Where the inquiry magistrate has reason to believe that the child is in need of care in terms of section 70(2), the magistrate may order that the preliminary inquiry be closed and the matter be transferred to the children’s court as contemplated in that section.

(5) Where the prosecutor decides to proceed with the prosecution of the child, the matter may be set down for plea and trial in a court.

Release or placement of child by inquiry magistrate

62. (1) The inquiry magistrate must make an order regarding release or placement of the child pending the further appearance of the child at a preliminary inquiry or court, where -

(2) When considering the placement of the child, the inquiry magistrate must, if such child is in detention, apply the provisions of Chapter 4 of this Act regarding detention and release from detention.

(3) Where the matter is to be set down for plea and trial in a court or is to be transferred to the children’s court, the preliminary inquiry must be closed.

(4) Where it is decided that the matter must be diverted, the prosecutor must withdraw the charges against the child conditionally or unconditionally, and the preliminary inquiry must be closed.

Evidentiary matters

63. (1) Information regarding a previous diversion or previous conviction may be furnished at the preliminary inquiry by any person.

(2) No information furnished at a preliminary inquiry by any person is admissible in any subsequent court proceedings.

Separation and joinder of proceedings of preliminary inquiry

64. (1) If the child in respect of whom the preliminary inquiry is held, is a co-accused with an adult, the case of the adult must, save where this would not be in the interests of justice, be separated from that of the child.

(2) If the child in respect of whom the holding of a preliminary inquiry is contemplated, is a co-accused with one or more other children, a joint preliminary inquiry may be held.

(3) Where a joint preliminary inquiry is held, different decisions may be made in respect of each child.

Remanding of preliminary inquiry

65. (1) The inquiry magistrate may only remand the preliminary inquiry and then for a period of no longer than 48 hours, for the purposes of -

(2) Where the preliminary inquiry is remanded for purpose of noting a confession, admission or a pointing-out, or the holding of an identity parade, the inquiry magistrate must inform the child of the right to have a parent, an appropriate adult or legal representative present during such proceedings.

(3) The preliminary inquiry may be remanded for a further period of 48 hours if there is reason for believing that such remand will increase the prospects of diversion, after which the preliminary inquiry, if it has not been concluded upon the expiry of the further period of 48 hours must, subject to section 66, be closed and the matter referred to the prosecutor to set the matter down for plea and trial in a court.

(4) The provisions of section 26 apply to failure of the child and his or her parent or an appropriate adult to comply with any conditions of release of the child pursuant to a remand of the preliminary inquiry in terms of this section and section 66.

Remanding of preliminary inquiry for detailed assessment

66. (1) Any person may request the inquiry magistrate to remand the inquiry for purposes of detailed assessment of the child.

(2) The inquiry magistrate may, if satisfied that there are exceptional circumstances warranting a further assessment of the child and that such circumstances relate to -

remand the preliminary inquiry for a period of 14 days to enable a detailed assessment to be conducted.

(3) Any detailed assessment ought to be conducted in the home of the child, unless there are circumstances causing assessment in the home not to be in the best interests of the child or to be impossible, in which case assessment may be conducted at any residential facility.

(4) Upon consideration of the probation officer’s report following a detailed assessment of the child as contemplated in this section, any decision referred to in section 61 may be made, after which the preliminary inquiry must be closed.

Failure to appear at preliminary inquiry

67. (1) Where a child and his or her parent or an appropriate adult has been warned to appear at a preliminary inquiry by a police official in terms of section 26(1) or by a probation officer in terms of section 45(10) and such child or person fails to appear at such inquiry, the provisions of section 26(3), (4) and (5) apply, with the changes required by the context, to such failure.

Failure to comply with diversion orders

68. (1) Where a child has been diverted at a preliminary inquiry and fails to comply with any order relating to diversion, the inquiry magistrate may, upon being notified in writing by the person referred to in section 52(7) of such failure, issue a warrant of arrest or written notice to appear in respect of the child.

(2) When a child appears before an inquiry magistrate after a warrant of arrest or written notice to appear has been issued in terms of subsection (1), the inquiry magistrate must inquire as to the reasons for the child’s failure to comply with the diversion order.

(3) The inquiry magistrate may, after consideration of the views of any person present at the inquiry referred to in subsection (2), decide to -

(4) Despite the provisions of subsection (3), the prosecutor may decide to proceed with the prosecution, in which case the matter must be set down for plea and trial in a court.

(5) The execution of a warrant of arrest referred to in this Chapter may be suspended by the inquiry magistrate, and the police official required to execute such warrant may, instead of arresting a child, employ one of the alternatives to arrest referred to in section 11(6).

Procedure upon referral of matter to court

69. (1) If the matter has not been diverted or transferred to a children’s court inquiry upon conclusion of the preliminary inquiry, the prosecutor must inform the inquiry magistrate of the place and time when the child must appear for plea and trial in a court.

(2) On being thus informed, the inquiry magistrate must -

(3) Where an inquiry magistrate has presided over a preliminary inquiry and has heard any information prejudicial to the impartial determination of the matter, such magistrate may not preside over any subsequent trial emanating from that inquiry.

Referral to a children’s court inquiry

70. (1) If it appears during proceedings at a preliminary inquiry or a court that a child is a child as referred to in section 14(4) of the Child Care Act, 1983 (Act No. 74 of 1983), and that it is desirable to deal with that child in terms of sections 13, 14 and 15 of that Act, the inquiry magistrate or court may stop the proceedings and order that the matter be referred to the children's court referred to in section 5 of that Act.

(2) Referral of a matter to the children’s court must be considered by -

if it becomes evident that a child -

or is a child as described in section 14 of the Child Care Act, 1983.

(3) Where the referral of a matter to the children’s court has been considered and it appears that such referral is not in the best interests of the child or does not serve the interests of justice, the other measures in terms of this Act must be considered.

(4) Where a decision is made in terms of subsection (3) not to refer the matter to the children’s court, the reasons must be noted on the assessment report, in the case of a person referred to in subsection (2)(a), and entered on the written record of the proceedings, in the case of a person referred to in subsection (2)(b) or (c).

(5) In the event of the referral of a matter to a children’s court inquiry after conviction of the child, any finding of guilt must be considered not to have been made.

CHAPTER 8: CHILD JUSTICE COURT

Designation and jurisdiction of child justice court

71. (1) A child justice court is a court at district court level which must adjudicate on all cases referred to such court in terms of the provisions of this Act, subject to the provisions of subsection (3).

(2) In deciding whether cases should be heard in a child justice court, a Regional Court or a High Court, preference must be given to referral to the child justice court, subject to the provisions of subsection (3) and sections 73 and 80.

(3) The child justice court has jurisdiction to adjudicate in respect of all offences except treason, murder and rape in accordance with the provisions of section 89 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944).

(4) The child justice court in which a child must appear, must be determined in accordance with section 90 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), and where a One-Stop Child Justice Centre has been established for a particular area, the geographical jurisdiction of the child justice court at such centre must be determined in accordance with section 72 of this Act.

(5) The child justice court and the officer presiding in such court must be designated by the Chief Magistrate of each magisterial district and such court must, as far as is possible, be staffed by specially selected and trained personnel.

(6) The court room, where practicable, should be located and designed in a way conducive to the dignity and well-being of children, the informality of the proceedings and the participation of all persons involved in the proceedings.

(7) The child justice court has the same sentencing jurisdiction as a district court.

Establishment and jurisdiction of One-Stop Child Justice Centres

72. (1) The Minister of Justice and Constitutional Development, in consultation with the Ministers of Safety and Security, Welfare and Population Development and Correctional Services, may establish centralised services for child justice to be known as One-Stop Child Justice Centres which may be situated at a place other than the local magistrate’s court or police station.

(2) At a One-Stop Child Justice Centre there must be -

(3) A One-Stop Child Justice Centre may provide for -

(4) Each government department headed by the Ministers referred to in subsection (1) is severally responsible for the provision of such resources and services as may be required to enable the efficient functioning of a One-Stop Child Justice Centre contemplated in this section.

(5) The Minister of Justice and Constitutional Development may determine, by notice in the Gazette, the boundaries of jurisdiction of One-Stop Child Justice Centres that need not correspond to the boundaries of existing magisterial districts.

(6) Where a One-Stop Child Justice Centre has concurrent jurisdiction with a magistrate’s court due to the fact that the geographical area of jurisdiction of such magistrate’s court or part thereof falls within the boundaries of geographical jurisdiction of such One-Stop Child Justice Centre, as determined in terms of subsection (5), the jurisdiction of such One-Stop Child Justice Centre in relation to the hearing of cases in terms of the provisions of this Act takes precedence.

Proceedings in terms of this Act by a court other than a child justice court

73. (1) Any court other than a child justice court that hears the case of a child accused of committing an offence, must apply the provisions of this Act and has the powers conferred upon a child justice court by this Act.

(2) A Regional Court has jurisdiction to hear the case of an accused child where such child is charged with -

(3) Where the Director of Public Prosecutions or a designated prosecutor is satisfied that circumstances referred to in subsection (2)(b)(i) or (ii) exist, the matter may, prior to the commencement of the trial, be referred to the Regional Court for plea and trial.

(4) A district court other than a child justice court has jurisdiction in respect of matters in which a child justice court has jurisdiction if a child is co-accused with an adult and a successful application for joinder of trials has been made in terms of section 80.

(5) If a child justice court has convicted a child and is of the view that exceptional circumstances exist which indicate that the appropriate sentence is likely to exceed the sentencing jurisdiction of such court, that court may refer the matter to the Regional Court or the High Court for sentencing.

(6) Where a matter has been referred to the Regional Court or the High Court for sentencing in terms of subsection (5), such court must sentence the child in terms of the provisions of this Act.

Child to plead on instructions of Director of Public Prosecutions

74. Further to the provisions of section 119 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) relating to plea in a magistrate’s court on instructions of the Director of Public Prosecutions, a charge may only be put to a child if such child is assisted by a legal representative.

Parent or an appropriate adult to attend proceedings

75. (1) Any parent of a child or an appropriate adult who has been warned by an inquiry magistrate to attend proceedings in terms of section 69(2)(c), must attend such proceedings unless exempted in terms of subsection (3).

(2) If such person has not been warned to attend, the court may at any time during the proceedings direct any police official to warn a person referred to in subsection (1) to attend.

(3) A person warned in terms of subsection (1) or (2) may apply to the court in which the child is to appear for exemption from the obligation to attend the proceedings in question, and if the court grants exemption, it must be in writing.

(4) A person warned in terms of subsection (1) or (2) who has not been exempted from attending the relevant proceedings in terms of subsection (3), and a person who is present at criminal proceedings and who is warned by the court to remain in attendance, must comply, unless excused by the court before which such proceedings are pending.

(5) A person warned in terms of subsection (1) or (2) who fails to attend the proceedings or fails to remain in attendance at such proceedings in accordance with the provisions of subsection (4), is guilty of an offence and liable upon conviction to the penalty set out in section 117.

Parental assistance

76. (1) A child must be assisted by a parent or an appropriate adult at criminal proceedings under this Act: Provided that this requirement may be dispensed with where all reasonable efforts to locate such person have been exhausted and any further delay would be prejudicial to the best interests of the child.

(2) Where a child is not assisted by a parent or an appropriate adult, and such child requests assistance, an independent observer nominated by a Child Justice Committee referred to in section 105(i) may, if such observer is available, assist a child in circumstances referred to in subsection (1) of this section.

Conduct of proceedings in court

77. (1) At the start of proceedings in a court, the presiding officer must -

(2) Irrespective of the provisions of section 93 ter of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), a court may not summon lay assessors to such court’s assistance.

(3) The court may, if it would be in the best interests of the child, participate in eliciting evidence from any person involved in the proceedings.

(4) The proceedings of the court must, with due regard to the child’s procedural rights, be conducted in an informal manner to encourage the maximum participation of the child, his or her parent or an appropriate adult.

(5) The court must protect an accused child from hostile cross-examination where such cross-examination is regarded by the court as being prejudicial to the well-being of the child or the fairness of the proceedings.

Children in detention at court

78. (1) No child may be subjected to the wearing of leg-irons when appearing in any court, and handcuffs may only be used in court if there are exceptional circumstances warranting their use.

(2) A child held in a cell in or at the court or who is being transported to court must be kept separate from adults and be treated in a manner and kept in conditions which take account of his or her age.

(3) Further to the provisions of subsection (2) a female child must be kept separate from any male child and must be under the care of an adult woman.

(4) The National Commissioner of the South African Police Service must issue a national instruction on the treatment and conditions of children while in detention at court.

Establishment of criminal capacity

79. (1) The criminal capacity of a child who is at least ten years of age but not yet 14 years must be proved by the State beyond a reasonable doubt.

(2) The prosecutor or the child’s legal representative may request the court to order an evaluation of the child by a suitably qualified person to be conducted at State expense.

(3) If an order has been made by the court in terms of subsection (2), the person identified to conduct an evaluation of the child must furnish the court with a written report of the evaluation within 30 days of the date of the order.

(4) The evaluation must include an assessment of the cognitive, emotional, psychological and social development of the child.

(5) The person who conducts the evaluation may be called to attend the court proceedings and give evidence and, if called, must be remunerated by the State according to a prescribed tariff.

Separation and joinder of trials involving children and adults

80. (1) Where a child and an adult are alleged to have committed the same offence, they are to be tried separately unless there are compelling reasons for joinder of the trials.

(2) An application for such joinder must be directed to the court after notice to the child, the adult and their legal representatives.

(3) If the court grants an application for joinder of trials, the matter must be transferred to the court in which the adult is to appear.

(4) The court to which the matter has been transferred must afford the child concerned all such benefits conferred upon such child by this Act as are reasonably consistent with the provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

Time limits relating to the conclusion of trials

81. (1) A court must conclude all trials of accused children as speedily as possible and must ensure that remands are limited in number and in duration.

(2) A court acting in terms of the provisions of this Act, other than a child justice court, must ensure that trials of accused children receive priority on the roll.

(3) Where the child has been remanded to a place of safety, secure care facility or a prison, the court must ensure that the requirements set out in section 36 regarding remands to places of safety, secure care facilities or prisons are complied with.

(4) Where a child remains in detention in a place of safety, secure care facility or prison pending trial in a court and the trial of the child is not concluded within a period of six months from the date upon which the child has pleaded to the charge, the child must be released from detention, unless charged with an offence listed under Items 1, 2 or 3 in Schedule 3.

Court may divert matter

82. (1) If at any time before the conclusion of the case for the prosecution it comes to the attention of a court that a child acknowledges or intends to acknowledge responsibility for an alleged offence, the court may, subject to section 51, with the consent of the prosecutor, refer the child to any diversion option as referred to in section 52 and may postpone the matter to enable the child to comply with the diversion conditions.

(2) Where a court acts in terms of subsection (1), the acknowledgement of responsibility must be recorded as an admission as contemplated in section 220 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

(3) Where a court has referred a child to a diversion option in terms of subsection (1), the presiding officer must forthwith notify the probation officer concerned in writing of such referral in the prescribed manner.

(4) Where a child has been referred to a diversion option by a court, the court must, upon receipt of a report from a probation officer that the child has successfully complied with the diversion conditions, acquit such child, which acquittal may be made in the absence of such child.

(5) Where a child has been referred to a diversion option by a court and such child fails to comply with the diversion conditions, the probation officer must notify the Director of Public Prosecutions or a designated prosecutor as soon as possible of such failure.

(6) The Director of Public Prosecutions or a designated prosecutor may, upon receipt of a notice by a probation officer in terms of subsection (5), have the matter placed on the roll of the court that referred the child concerned to a diversion option and if the matter is so placed, must issue a summons in respect of such child in order to proceed with the trial.

(7) Where the court acts in terms of subsection (1) and the diversion option selected is a family group conference, victim-offender mediation or other restorative justice process, the probation officer must, after such conference, mediation or process, furnish the court with the written recommendations emanating from such conference, mediation or process within the time periods referred to in section 53(12).

(8) Upon receipt of the written recommendations referred to in subsection (7), the court may -

(9) Where an order in terms of subsection (8)(a) or (b) is made, the provisions of subsections (3), (4), (5) and (6) apply with regard to compliance with or failure to comply with such order.

Privacy and confidentiality

83. (1) Where a child appears before a court, no person may be present other than a person whose presence is necessary in connection with such proceedings or is authorised by the court on good cause shown.

(2) No person may publish any information which reveals or may reveal the identity of a child under the age of 18 years who is accused of an offence or of a witness under the age of 18 years appearing at any proceedings referred to in this Act.

(3) Subject to the provisions of subsection (4), no prohibition under this section precludes -

(4) The reports or record referred to in subsection 3(b), (c) and (d) may not mention the name of the person charged or of the person against whom or in connection with whom the offence in question was alleged to have been committed or of any witness at such proceedings, and may not mention the place where the offence in question was alleged to have been committed.

(5) Any person contravening the provisions of this section is guilty of an offence and liable on conviction to the penalties mentioned in section 117.

CHAPTER 9: SENTENCING

Convicted children to be sentenced in terms of this Chapter

84. A court must, after convicting a child, impose a sentence in accordance with the provisions of this Chapter.

Pre-sentence reports required

85. (1) A court imposing a sentence in terms of this Act, must request a pre-sentence report prepared by a probation officer or any other suitable person prior to the imposition of sentence.

(2) A court may dispense with a pre-sentence report where the conviction is for an offence listed in Schedule 1, or where requiring such report would cause undue delay in the conclusion of the case, to the prejudice of the child: Provided that no court sentencing a child in terms of this Act may impose a sentence with a residential requirement, unless a pre-sentence report has been placed before such court.

(3) A sentence with a residential requirement includes a sentence where the residential requirement of the sentence is suspended.

(4) The officer presiding in a court who imposes any sentence involving detention in a residential facility, must certify on the warrant of detention that a pre-sentence report has been placed before the court prior to imposition of sentence.

(5) Where the certification referred to in subsection (4) does not appear on a warrant of detention issued in terms of the provisions of this Act, the persons admitting a child to the residential facility in question must refer the matter back to court.

(6) Where a court sentencing a person in terms of this Act requests a pre-sentence report, such report must be completed as soon as possible but no later than one calendar month following the date upon which such report was requested.

(7) Where a court imposes a sentence other than that recommended in the pre-sentence report, reasons for this must be recorded.

Purposes of sentencing

86. The purposes of sentencing in terms of this Act are to -

Community-based sentences

87. (1) Sentences which allow a child to remain in the open community and which may be imposed in terms of this Act are -

(2) Where a child receives a sentence in terms of subsection (1)(e), and such child is below the age of 14 years, due consideration must be given to the child’s age and development in determining the type of community service, the number of hours that the child may be required to perform such service and the extent of the child’s duties.

Restorative justice sentences

88. (1) A court may, after convicting a child of an offence, refer the matter to a family group conference, victim-offender mediation or other restorative justice process referred to in subsection (2).

(2) The provisions of section 53 apply where a court has referred a matter to a family group conference, and the provisions of section 54 apply where a court has referred a matter to a victim-offender mediation or other restorative justice process.

(3) Upon receipt of the written recommendations from a family group conference in terms of section 53 or a victim-offender mediation or other restorative justice process in terms of section 54 by a court, such court may -

(4) Where the officer presiding in a court passing sentence in terms of this Act does not agree with the terms of the plan made at a family group conference, victim-offender mediation or other restorative justice process referred to in subsection (1) and imposes a sentence which differs in a material respect from that agreed to or decided upon, the reasons for deviating from the plan must be noted on the record of the proceedings.

(5) Where a child has been sentenced in accordance with an order arising from a family group conference, victim-offender mediation or other restorative justice process, and fails to comply with that order, the probation officer must notify the court issuing the order of such failure as soon as possible, upon which notification the court must issue a summons in respect of such child to appear before such court in order to impose an appropriate sentence.

Sentences involving correctional supervision

89. (1) Correctional supervision referred to in section 276(1)(h) and 276A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) for a maximum period of three years may, for the purposes of this Act, be imposed as a sentence on a child who is 14 years or older.

(2) The whole or any part of a sentence referred to in subsection (1) may be postponed or suspended with or without conditions in terms of section 93(2), on condition that the child be placed under the supervision of a probation officer or a correctional official, and on the further condition that the child attend a specified centre for any purpose specified by the court, or on the condition that the child performs a service for the benefit of the community under the supervision or control of an organisation or an institution, or a specified person or group identified by the court.

Sentences with a compulsory residential requirement

90. (1) No sentence involving a compulsory residential requirement may be imposed upon a child unless the presiding officer is satisfied that such a sentence is justified by -

(b) the previous failure of the child to respond to non-residential alternatives.

(2) A presiding officer imposing any sentence involving a compulsory residential requirement on a child must note the reasons for the sentence on the record and explain them to the child in language that he or she can understand.

(3) A sentence involving a compulsory residential requirement includes referral to a -

Referral to a residential facility

91. (1) A sentence to a residential facility may be imposed for a period not less than six months and, subject to subsection (2), a period not exceeding two years.

(2) A sentence referred to in subsection (1) may be imposed for longer than two years where the child is below the age of 14 years and such child, were it not for the provisions of section 92(1)(a) which prohibit sentences of imprisonment in respect of children below the age of 14 years, would otherwise have been sentenced to imprisonment due to the seriousness of the offence: Provided that such child may not be required to reside in a residential facility beyond the age of 18 years.

(3) Any child who has received a sentence as referred to in subsection (1) may not be required to reside in a residential facility beyond expiry of such sentence, which sentence may not be extended by administrative action.

(4) Upon completion of a sentence referred to in subsection (1) or upon attainment of the age of 18 years in the case of a child referred to in subsection (2), such child or person may request permission in writing in the prescribed manner from the head of the residential facility to continue to reside at such residential facility for the purposes of completing his or her education, and such permission may be granted if accommodation is available.

Referral to a prison

92. (1) A sentence of imprisonment may not be imposed unless -

(2) No sentence of imprisonment may be imposed on a child in respect of an offence listed in Schedule 1.

(3) No sentence of imprisonment may be imposed on a child in terms of this Act as an alternative to any other sentence specified in this Act.

(4) Where a child fails to comply with any condition imposed in relation to any sentence, such child may be brought before the court which imposed the original sentence for reconsideration of an appropriate sentence, which may, subject to subsections (1) and (2), include a sentence of imprisonment.

(5) If a term of imprisonment is to be imposed on a child as a sentence, such term must be announced in open court and the coming into effect of the term of imprisonment must be antedated by the number of days that the child concerned has spent in prison prior to the sentence being pronounced on the charge for which he or she is being sentenced.

(6) Nothing contained in this Act must be construed as precluding the Commissioner of Correctional Services from placing a child who is serving a sentence of imprisonment under correctional supervision as referred to in section 276(1)(i) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

Postponement or suspension

93. (1) The passing of any sentence may be postponed, with or without one or more of the conditions referred to in subsection (3), for a period not less than three months but not exceeding three years.

(2) The whole or any part of any sentence may be suspended, with or without one or more of the conditions referred to in subsection (3), for a period not exceeding five years.

(3) The conditions of postponement referred to in subsection (1) or suspension referred to in subsection (2) may include -

(b) an apology;

(c) the obligation not to commit a further offence of a similar nature;

(d) good behaviour;

(e) regular school attendance for a specified period;

(4) Where a court has postponed the passing of sentence in terms of subsection (1) for a specified period and the court is after expiry of that period satisfied that any conditions imposed have been complied with, the conviction is rescinded and must be expunged from any record.

(5) Where a court has postponed the passing of sentence in terms of subsection (1), the court may request the probation officer concerned for regular progress reports indicating the child’s compliance with conditions as referred to in this section.

Fines

94. (1) No fine payable to the State may be imposed as a sentence by a court.

(2) Where a penalty involving a fine and imprisonment in the alternative is prescribed for an offence, the presiding officer may impose -

Prohibition on certain forms of punishment

95. (1) No sentence of life imprisonment may be imposed on a child who, at the time of commission of the offence, was under the age of 18 years.

(2) A child who has been sentenced to attend a residential facility may not be detained in a prison or in police custody pending designation of the place where the sentence is to be served.

CHAPTER 10: LEGAL REPRESENTATION

Requirements to be complied with by legal representatives

96. (1) A legal representative representing a child in terms of this Act must -

(2) A legal representative representing a child in terms of this Act must be admitted as an attorney or an advocate.

(3) An attorney referred to in subsection (2) may delegate the power to represent a child to any candidate attorney under his or her supervision who has 12 months experience as a candidate attorney.

Access to legal representation

97. (1) A child has the right to give instructions to a legal representative in the language of his or her choice, with the assistance of an interpreter where necessary.

(2) The child, the parent or an appropriate adult may appoint a legal representative of own choice.

(3) Where a legal representative is appointed in terms of subsection (2) -

Child to be provided with legal representation at State expense in certain instances

98. (1) Where a child is subject to proceedings under this Act, legal representation must, upon conclusion of the preliminary inquiry and subject to the provisions of the Legal Aid Act, 1969 (Act No. 22 of 1969), be provided at State expense, if -

and no representative was appointed by the child, the parent or an appropriate adult in terms of section 97(2).

(2) The prosecutor must, prior to plea and trial in a court, indicate to the court whether, in his or her opinion, the matter is a matter contemplated in subsection (1)(b), and if so, the plea may not be taken until a legal representative has been appointed.

(3) The Legal Aid Board may designate an attorney or candidate attorney employed at a Legal Aid Clinic to represent children charged under this Act in a particular magisterial district.

(4) If the parent or guardian of a child who is granted legal representation at State expense under this Act would be ineligible for entitlement to legal representation at State expense due to the fact that such parent or guardian’s income exceeds the means test applied by the Legal Aid Board, the Legal Aid Board may recover from such parent or guardian the costs of the legal representation afforded such child.

Means of securing legal representation at State expense

99. (1) Where a child requires legal representation at State expense, a request for such legal representation must be made to the Legal Aid Officer concerned as soon as is reasonably possible.

(2) Where a child requests legal representation in terms of subsection (1), the police official, probation officer or prosecutor to whom the child communicates such request must forthwith, or if such communication is made after office hours or over a weekend, as soon as the Legal Aid Officer is available, request the Legal Aid Officer to appoint a legal representative to represent the child.

(3) Where a child is remanded in detention as referred to in section 98(1)(a), the legal representative employed at a Legal Aid Clinic, who has been appointed to provide legal representation in terms of the provisions of this Act must, before the next court date, consult with the child at the place where he or she is being detained: Provided that such place is within a reasonable distance from the court in which the child is appearing.

Child may not waive legal representation in some circumstances

100. (1) A child in need of legal representation in terms of the provisions of section 98(1) may not waive the right to legal representation.

(2) Where a child referred to in section 98(1) declines to give instructions to the legal representative, this factor must be brought to the attention of the inquiry magistrate or the court, whereupon such magistrate or court must question the child to ascertain the reasons for the child so declining and note such reasons on the record of the proceedings.

(3) If, after questioning the child in terms of subsection (2), the inquiry magistrate or court is of the opinion that such application would be appropriate, the child may be given the opportunity to make a further application to the Legal Aid Board for the appointment of a substitute legal representative, if such person is available.

(4) If the questioning in terms of subsection (2) reveals that the child does not wish to have a legal representative, the inquiry magistrate or court must instruct a legal representative employed at a Legal Aid Clinic or a legal representative appointed in terms of section 3 of the Legal Aid Act, 1969 (Act No. 22 of 1969), to assist the child.

(5) A person assisting a child in terms of subsection (4) must -

(6) A person assisting a child in terms of subsection (4) may -

(c) raise objections to the introduction of evidence by the State.

Accreditation of legal representatives

101. (1) A legal representative who is appointed by the Legal Aid Board in terms of section 98 must be accredited by the National Office for Child Justice in the prescribed manner.

(2) In order to be accredited in terms of subsection (1), a legal representative must apply to the National Office for Child Justice to be registered in a specialised roster.

CHAPTER 11: AUTOMATIC REVIEW OF CERTAIN CONVICTIONS AND SENTENCES

Automatic review in certain cases decided by a court

102. (1) Any sentence with a residential requirement imposed in terms of section 90 and any sentence involving correctional supervision imposed in terms of section 89, must be subject to review in terms of section 302 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

(2) Any sentence involving a residential requirement which is wholly or partially suspended, is subject to review in terms of subsection (1).

(3) Proceedings which fall within the ambit of this section for the purposes of review must be reviewed whether or not the accused was legally represented at any stage of the proceedings.

Suspension of execution of sentence

103. (1) On suspension of a sentence pending an appeal or review, a child is to be released on the conditions referred to in section 32, and in the case of a sentence without a residential requirement, the operation of such sentence is to be suspended pending an appeal or review.

(2) Where execution of a sentence has been suspended in terms of subsection (1), it may be a further condition, where appropriate, that the convicted child must report at a specified place and time and upon service, in the manner prescribed by the rules of court, of a written order upon him or her in order that effect may be given to any sentence in respect of the proceedings in question.

CHAPTER 12: MONITORING OF CHILD JUSTICE

Establishment and regulation of Child Justice Committees at district level

104. (1) The inquiry magistrate appointed in respect of each magisterial district as provided for in this Act must convene a Child Justice Committee in such district which must meet not less than four times annually.

(2) The members of the Child Justice Committee established under subsection (1) who are required to attend the meetings of that committee are -

(3) The following persons, organisations or institutions may attend the meetings of the Child Justice Committee -

Duties and role of Child Justice Committees

105. The Child Justice Committee must -

Powers of Child Justice Committees

106. (1) A Child Justice Committee may receive complaints concerning matters relating to this Act from any person or organisation involved in or affected by the administration of child justice within its area of jurisdiction, and must attempt to resolve such complaints.

(2) A Child Justice Committee may, when appropriate, refer a matter, complaint or question to the National Office for Child Justice referred to in section 110 for assistance.

(3) Any member of a Child Justice Committee may notify the local or provincial division of the High Court having jurisdiction or any judge of such court that the proceedings in which a sentence was imposed by a court were not in accordance with justice as referred to in section 304(4) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

Report to Provincial Office for Child Justice

107. The Child Justice Committee must elect a chairperson on an annual basis, who must submit an annual report of the functioning of the child justice system in the district to the Provincial Office for Child Justice referred to in section 109.

Remuneration

108. No remuneration is payable for attending meetings or for the performance of services for the Child Justice Committee, save for a person acting on behalf of or at the request of the committee as an independent observer who may be entitled to payment of witness fees as referred to in section 191(1) and (3) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

Establishment of Provincial Office for Child Justice

(2) The Member of the Executive Council for Safety and Security of a province and the Member of the Executive Council for Welfare and Population Development of a province must appoint to the Provincial Office for Child Justice an official from each of the respective provincial departments under their control, whose function it is to -