Description

The Department of Justice and Constitutional Development helps to protect the dignity and well-being of children who are in conflict with the law. A new child justice system has come into operation on the 1st of April 2010 which deals with children from 11 to 18 years of age who are accused of having committed a crime. The Child Justice Act puts in place a criminal justice system which caters for children under the age of 18 years.
One of the aspects in the Child Justice Act 75 of 2008 (CJA) is the issue of criminal capacity.

The CJA states as follows:

• that children who up to 10 years lack criminal capacity and may not be arrested
• children above 11 years of age and up to 14years of age have criminal capacity and the onus to prove criminal capacity on the part of the child accused of having committed a crime, rests with the State
• that children above 14 years of age have criminal capacity unless otherwise proved by the accused child.

The Constitution of South Africa and Child Justice Act set out provisions which seek to protect the child under the age of 18 in all interactions in the criminal justice system.

The dignity and well-being of the child must be protected at all times during an arrest, during the preliminary stages as well as during the trial period. For example, if a child has committed a petty offence, the child could be diverted. Diversion includes options such as releasing the child into the care of a parent or appropriate adult or guardian.
 
For more information on Child Justice, click here.

Steps to follow

• If a child is arrested by a police officer, a probation officer from the Department of Social Development must be contacted by the police officer to do an assessment of the child.
• The child will be asked to make a sworn statement or declare under oath what had taken place. The police officer or probation officer will assist.
• The child is entitled to legal representation from Legal Aid South Africa should this be required. The probation officer or the SAPS official can provide details.
• If appropriate, the official responsible for the case will follow steps to ensure that the child is diverted from the mainstream criminal justice system by either releasing the child into the care of his or her parent(s) or appropriate adult or placed in a secure care facility or place of safety until the preliminary inquiry hearing.

Service standard

• In every matter concerning a child, the child's interests are more important than anything else.
• The detention of a child should only be considered as the last resort.
• A child may only be detained for the shortest period of time. If detained, the child has the right to be kept separately from other detained persons over the age of 18 years, to be held in the same holding cells as the child's own sex, as well as the right to be treated and kept in conditions that are suitable for the child's r age.
• If you think that any of these rights are being violated, you must immediately contact your attorney, legal aid practitioner, probation or welfare officer or the public prosecutor.

Cost

• If you appoint a private attorney, you will have to pay him or her at your own expense.   
  
• Normally if you ask for legal aid, your income determines whether you qualify or not. If you qualify, an attorney is appointed to represent you.
  
• However, every child qualifies for legal aid assistance.

Forms to complete

There are no forms to complete.

Contact details

Contact your nearest:

• Magistrate’s court,
• One Stop Child Justice Centre,
• probation officer at the Provincial Department of Welfare,
• public prosecutor at the magistrate’s court or
• the office of the Director of Public Prosecutions.