No. 32225 - Child Justice

1 Cape Town,Vol. 527 Kaapstad,112009 MayMeiNo. 32225 THE PRESIDENCYMOPRESIDENTE No. 54911 May 2009 No. 54911 May 2009It is hereby notified that the President hasassented to the following Act, which ishereby published for general informa-tion: Go itsisiwi fano gore MoPresidente osaennwe Molao o o latelang o ophasalediwang kitso ya botlhe fano: No. 75 of 2008: Child Justice Act, 2008. No. 75 wa 2008: Molao wa Bosiamisiwa Ngwana, 771682 58400332225 ACTTo establish a criminal Justice system for children, who are in conflict with the lawand are accused of committing offences, in accordance with the values underpin-ning the Constitution and the international obligations of the Republic; to providefor the minimum age of criminal capacity of children; to provide a mechanism fordealing with children who lack criminal capacity outside the criminal justicesystem; to make special provision for securing attendance at court and the releaseor detention and placement of children; to make provision for the assessment ofchildren; to provide for the holding of a preliminary inquiry and to incorporate, asa central feature, the possibility of diverting matters away from the formalcriminal Justice system, in appropriate circumstances.

2 To make provision for childjustice courts to hear all trials of children whose matters are not diverted; to extendthe sentencing options available in respect of children who have been convicted; toentrench the notion of restorative Justice in the criminal Justice system in respect ofchildren who are in conflict with the law; and to provide for matters Othat before 1994, South Africa, as a country, had not given many of itschildren, particularly black children, the opportunity to live and act likechildren, and also that some children, as a result of circumstances in whichtheyfind themselves, have come into conflict with the law;AND MINDFUL that Othe Constitution of the Republic of South Africa, 1996, as the supreme law ofthe Republic, was adopted to establish a society based on democratic values,social and economic Justice , equality and fundamental human rights and toimprove the quality of life of all its people and to free the potential of everyperson by all means possible;Othe Constitution, while envisaging the limitation of fundamental rights incertain circumstances, emphasises the best interests of children, and singlesthem out for special protection, affording children in conflict with the lawspecific safeguards, among others, the right * not to be detained, except as a measure of last resort, and if detained, onlyfor the shortest appropriate period of time;* to be treated in a manner and kept in conditions that take account of thechild s age;* to be kept separately from adults, and to separate boys from girls, whilein detention;2 No.

3 32225 GOVERNMENT GAZETTE, 11 MAY 2009 Act No. 75, 2008 Child Justice ACT, 2008 (English text signed by the President.)(Assented to 7 May 2009.) * to family, parental or appropriate alternative care;* to be protected from maltreatment, neglect, abuse or degradation; and* not to be subjected to practices that could endanger the Child swell-being, education, physical or mental health or spiritual, moral orsocial development; andOthe current statutory law does not effectively approach the plight of childrenin conflict with the law in a comprehensive and integrated manner that takesinto account their vulnerability and special needs;AND ACKNOWLEDGING THAT Othere are capacity, resource and other constraints on the State which mayrequire a pragmatic and incremental strategy to implement the new criminaljustice system for children;THIS ACT THEREFORE AIMS TO Oestablish a criminal Justice system for children, who are in conflict with thelaw, in accordance with the values underpinning our Constitution and ourinternational obligations, by, among others, creating, as a central feature ofthis new criminal Justice system for children, the possibility of divertingmatters involving children who have committed offences away from thecriminal Justice system, in appropriate circumstances, while children whosematters are not diverted, are to be dealt with in the criminal Justice systemin Child Justice courts;Oexpand and entrench the principles of restorative Justice in the criminaljustice system for children who are in conflict with the law, while ensuringtheir responsibility and accountability for crimes committed.

4 Orecognise the present realities of crime in the country and the need to beproactive in crime prevention by placing increased emphasis on theeffective rehabilitation and reintegration of children in order to minimise thepotential for re-offending;Obalance the interests of children and those of society, with due regard to therights of victims;Ocreate incrementally, where appropriate, special mechanisms, processes orprocedures for children in conflict with the law that in broad terms take into account xthe past and sometimes unduly harsh measures taken against some ofthese children;xthe long-term benefits of a less rigid criminal Justice process that suitsthe needs of children in conflict with the law in appropriate cases; andxSouth Africa s obligations as party to international and regionalinstruments relating to children, with particular reference to theUnited Nations Convention on the Rights of the Child and theAfrican Charter on the Rights and Welfare of the Child ; in specific terms, by xraising the minimum age of criminal capacity for children;xensuring that the individual needs and circumstances of children inconflict with the law are assessed;xproviding for special processes or procedures for securing attendanceat court of, the release or detention and placement of, children;xcreating an informal, inquisitorial, pre-trial procedure, designed tofacilitate the disposal of cases in the best interests of children byallowing for the diversion of matters involving children away fromformal criminal proceedings in appropriate cases;4 No.

5 32225 GOVERNMENT GAZETTE, 11 MAY 2009 Act No. 75, 2008 Child Justice ACT, 2008xproviding for the adjudication of matters involving children whichare not diverted in Child Justice courts; andxproviding for a wide range of appropriate sentencing optionsspecifically suited to the needs of children,PARLIAMENT of the Republic of South Africa therefore enacts as follows: TABLE OF CONTENTSCHAPTER 1 DEFINITIONS, OBJECTS AND GUIDING PRINCIPLES OF ACT1. Definitions2. Objects of Act3. Guiding principlesCHAPTER 2 APPLICATION OFACT, CRIMINALCAPACITY OF CHILDREN UNDER THEAGE OF 14 YEARS AND MATTERS RELATED TO AGEPART 1: APPLICATION OF ACT4. Application of Act5. Manner of dealing with children who are alleged to have committed offences6. Seriousness of offencesPART 2: CRIMINAL CAPACITY OF CHILDREN UNDER THE AGE OF 14 YEARS7. Minimum age of criminal capacity8. Review of minimum age of criminal capacity9. Manner of dealing with Child under the age of 10 years10.

6 Decision to prosecute Child who is 10 years or older but under the age of 14years11. Proof of criminal capacityPART 3: AGE ESTIMATION, AGE DETERMINATION AND ERROR RE-GARDING AGE12. Responsibility of police official where age of Child is uncertain13. Age estimation by probation officer14. Age determination by inquiry magistrate or Child Justice court15. Age determination by any other court16. Error regarding age of Child who is alleged to have committed offenceCHAPTER 3 WRITTEN NOTICE, SUMMONS AND ARREST17. Methods of securing attendance of Child at preliminary inquiry18. Written notice to appear at preliminary inquiry19. Summons20. Arrest6 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 Act No. 75, 2008 Child Justice ACT, 20085101520253035 CHAPTER 4 RELEASE OR DETENTION AND PLACEMENT OF Child PRIOR TOSENTENCE AND RELATED MATTERSPART 1: RELEASE OR DETENTION21. Approach to be followed when considering release or detention of Child afterarrest22.

7 Release of Child on written notice into care of parent or appropriate adult orguardian beforefirst appearance at preliminary inquiry23. Duty of police official when releasing Child into care of parent or appropriateadult or guardian24. Release of Child into care of parent or appropriate adult or guardian or on ownrecognisance at preliminary inquiry or Child Justice court25. Release of Child on bailPART 2: PLACEMENT26. Approach to be followed when considering placement of child27. Placement options for Child who has not been released beforefirst appearanceat preliminary inquiry28. Protection of children detained in police custody29. Placement in a Child and youth care centre30. Placement in a prison31. Error regarding placementPART 3: FACTORS TO BE TAKEN INTO ACCOUNT BY PRESIDINGOFFICER REGARDING FURTHER DETENTION AND PLACEMENT ANDCONDITIONS OF DETENTION AT PRELIMINARY INQUIRY OR CHILDJUSTICE COURT32. Factors to be taken into account by presiding officer regarding further detentionand placement at preliminary inquiry or Child Justice court33.

8 Conditions of detention at preliminary inquiry or Child Justice courtCHAPTER 5 ASSESSMENT OF CHILD34. Duty of probation officer to assess children35. Purpose of assessment36. Confidentiality of information obtained at assessment37. Place where assessment is to be conducted38. Persons to attend assessment39. Powers and duties of probation officer at assessment40. Assessment report of probation officer8 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 Act No. 75, 2008 Child Justice ACT, 20085101520253035 CHAPTER 6 DIVERSION BY PROSECUTOR IN RESPECT OF MINOR OFFENCES41. Diversion by prosecutor before preliminary inquiry in respect of offencesreferred to in Schedule 142. Diversion option to be made order of courtCHAPTER 7 PRELIMINARY INQUIRY43. Nature and objectives of preliminary inquiry44. Persons to attend preliminary inquiry45. Confidentiality of information furnished at preliminary inquiry46. Failure to appear at preliminary inquiry47.

9 Procedure relating to holding of preliminary inquiry48. Postponement of preliminary inquiry49. Orders at preliminary inquiry50. Referral of children in need of care and protection to children s courtCHAPTER 8 DIVERSION51. Objectives of diversion52. Consideration of diversion53. Diversion options54. Selection of diversion option55. Minimum standards applicable to diversion56. Provision and accreditation of diversion programmes and diversion serviceproviders57. Monitoring of compliance with diversion order58. Failure to comply with diversion order59. Legal consequences of diversion60. Register of children in respect of whom diversion order has been made61. Family group conference62. Victim-offender mediationCHAPTER 9 TRIAL IN Child Justice COURT63. Child Justice courts and conduct of trials involving children64. Referral of children in need of care and protection to children s court65. Parental assistance66.

10 Time limits relating to postponements67. Child Justice court may divert matterCHAPTER 10 SENTENCINGPART 1: GENERAL68. Child to be sentenced in terms of this Chapter10 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 Act No. 75, 2008 Child Justice ACT, 200851015202530354069. Objectives of sentencing and factors to be considered70. Impact of offence on victim71. Pre-sentence reportsPART 2: SENTENCING OPTIONS72. Community-based sentences73. Restorative Justice sentences74. Fine or alternatives tofine75. Sentences involving correctional supervision76. Sentence of compulsory residence in Child and youth care centre77. Sentence of imprisonment78. Postponement or suspension of passing of sentence79. Failure to comply with certain sentencesCHAPTER 11 LEGAL REPRESENTATION80. Requirements to be complied with by legal representatives81. Legal representation at preliminary inquiry82. Child to be provided with legal representation at State expense in certaincircumstances83.