VISITING EXPERTS’ PAPERS
REFORMING THE JUVENILE JUSTICE SYSTEM IN SOUTH AFRICA:
POLICY, LAW REFORM AND PARALLEL DEVELOPMENTS
Dr. Anne Skelton*

I. A NEW APPROACH: POLICY DEVELOPMENTS FROM 1992 TO 1996
The death of Neville Snyman in 1992 was a watershed moment for the movement working towards
reform of South Africa’s juvenile justice system. Neville was just 13 years old when he and a group of friends
broke into the local shop in Robertson and stole sweets and cold drinks. Neville was detained in police cellswith other offenders under the age of 21. He was beaten to death by his cellmates. Non-governmentalorganizations (NGOs) had been raising the issue of children in the criminal justice system and calling for law
reform (Community Law Centre et al. 1992). Until this time, however, their calls had fallen on deaf ears.
Neville’s tragic death led to a public outcry, and the government took action by setting up a national working
committee on children in detention.
In the meanwhile, NGOs redoubled their efforts. Lawyers for Human Rights ran a campaign called “Freea Child for Christmas”, which resulted in the release of 260 children by Christmas 1992. The NGOs alsodecided that legislative reform was necessary, and in 1993, they set about drafting proposals for a newjuvenile justice system. The proposals were published in 1994 and were based on restorative justiceprinciples, centred on the procedure of family group conferencing (Juvenile Justice Drafting Consultancy1994). This was drawn from the New Zealand model (Pinnock et al. 1994). Although the proposals did nothave any official status, they did influence future developments, in particular the rights-based approach andthe principle of restorative justice.
In 1994 a new government came to power, and President Nelson Mandela made a promise during his first
address to Parliament that the issue of children in prison would be dealt with and that in the future thecriminal justice system would be the last resort when dealing with juvenile offenders.
The ratification of the United Nations Convention on the Rights of the Child by the South African
government in 1995 set the scene for broad-reaching policy and legislative change. The South African
Constitution embodies a section protecting children’s rights and includes the statement that children havethe right not to be detained, except as a measure of last resort, and then for the shortest appropriate periodof time, separate from adults and in conditions that take account of their age. One of the earliest cases tocome before the new Constitutional Court was S v Williams 1995 (3) SA 632 (CC), which dealt with thesentence of corporal punishment, until then a sentence commonly used for the punishment of children by
the courts. The court struck down corporal punishment on the grounds that it was cruel, inhuman anddegrading treatment.
The government did act with urgency on the issue of children in prison, as President Nelson Mandela hadpromised it would. In this regard, however, the country learned that the practice of proceeding with toomuch haste can create problems of its own. An amendment to an existing law, which was intended to outlaw
entirely the imprisonment of children during the pre-trial phase, led to chaos when it was suddenly
promulgated. Inadequate consultation between the relevant government departments, as well as a lack ofalternative residential facilities for children, caused the application of the new law to be fraught with practicalproblems. So serious were the consequences of this that within a year the government had to amend the law
again, this time allowing children charged with certain offences to be detained in prison awaiting trial. The
debacle also had some positive results, however. It led directly to the setting up of a structure called theInterministerial Committee on Young People at Risk (IMC), which became an important agency for policymaking in the field of child and youth care, including the management of children who come into conflict with
* Litigation Project Director, Centre for Child Law, Faculty of Law, University of Pretoria, South Africa.

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the law. The IMC set up a number of pilot projects to try out its new policy recommendations, and some ofthese were important incubators for the development of new ways of dealing with children. Of particular
relevance to children accused of crimes were projects that dealt with the management of offenders
immediately following arrest, and family group conferencing in which young offenders were brought into a
restorative justice process together with the victims of crime.

II. FROM POLICY TO LAW REFORM: 1997 TO THE PRESENTThe law-making process began when the Minister of Justice requested the South African Law
Commission to include an investigation into juvenile justice in its programme. The Juvenile Justice Project
Committee of the South African Law Commission commenced its work in 1997 and a discussion paper witha draft Bill was published for comment in 1999. The project committee followed a consultative approach,holding workshops and receiving written submissions from a range of criminal justice role-players. Children
were also consulted on the Bill while it was being developed (Community Law Centre 2000). The final
report of the Commission was completed and handed to the Minister of Justice in August 2000 (SALC 2000).
The Child Justice Bill was approved by Cabinet in November 2001 for introduction into Parliament, and wasintroduced into Parliament in August 2002 as Bill No. B49 of 2002. However there have been significant
delays in the passing of the Bill, and at the time of writing (2007), the Bill has still not become law. It is
important that the reader should verify the current status of the Bill, and also check that the details
described below are still features of the Act, as changes may occur during the legislative process.
The Child Justice Bill aims to establish a criminal justice process for children accused of committing
offences that protects the rights of children as entrenched in the Constitution and as provided for ininternational instruments. The objectives clause of the Bill focuses on the promotion of ubuntu in the childjustice system through the fostering of children’s sense of dignity and worth, and reinforcing their respect
for the human rights of others. The clause also stresses the importance of restorative justice concepts suchas accountability and reconciliation, and the involvement of victims, families and communities.
The Bill applies to any person under the age of 18 years who is alleged to have committed an offence. It
is proposed that the minimum age of criminal capacity will be raised from seven to 10 years. It is presumed
that children aged 10-14 years lack criminal capacity, but the state may prove such capacity beyond
reasonable doubt.
In order to keep children out of police cells and prisons, the Bill encourages the release of young
offenders into the care of their parents and entrenches the constitutional injunction that imprisonment
should be a measure of last resort for a child. A probation officer will assess every child before the childappears at a preliminary inquiry. A preliminary inquiry is held in respect of every child within 48 hours ofarrest and is presided over by a magistrate, referred to as the “inquiry magistrate”. Decisions to divert thechild away from the formal court procedure to a suitable programme may be taken at the preliminary inquiry
stage, if the prosecutor indicates that the matter may be diverted.
If a child is not diverted, the matter will proceed to plea and trial. Any court before which a child appears
for plea or trial is regarded as a child justice court. Provisions have also been proposed in the Bill for theestablishment of one-stop child justice centres. The Bill provides a wide range of sentencing options forchildren as alternatives to prison sentences. Children who are 14 years or older may nevertheless besentenced to imprisonment in certain specified circumstances.
The Bill also proposes monitoring mechanisms for ensuring the effective operation of this legislation, andpromotes co-operation between all government departments and other organizations and agencies involved
in implementing an effective child justice system.
The Bill, when introduced to Parliament, was accompanied by a budget and implementation plan. The
juvenile justice project committee had, with a great deal of foresight, predicted that the Bill would not
succeed if questions about implementation could not be answered effectively. Consequently, the projectcommittee made history at the South African Law Reform Commission by being the first project committee
to undertake a costing of their proposals (Barberton and Stuart, 1999). Following the handover of the South
African Law Commission Report on Juvenile Justice to the Minister of Justice in August 2000, work on

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implementation planning began. The Child Justice Project, a United Nations technical assistance project of
the government of South Africa, followed up on the costing work already done by assisting the government
to produce a comprehensive budget and implementation strategy for the Child Justice Bill. This is an intersectoral budget developed with the involvement of the Treasury, and linked to the government’s medium
term expenditure framework. The Deputy Minister of Justice and Constitutional Development has described
it as a model according to which all future Bills should be costed and planned for.
Sloth Nielsen (2003), in her innovative article entitled “The Business of Child Justice” undertakes an indepth analysis of the pragmatic approach which was followed by the project committee and by government.
She concedes that children’s rights and restorative justice were important influencing factors in thedevelopment of the Child Justice Bill, but she makes the following observation: “The article has describedand explained how, in the child justice sphere, a growing realism about the transition South Africa is facing
resulted in a measurable shift in emphasis from human rights values (as philosophical constructs), and froma stance based on the righteousness derived from the worthiness of the cause. The increasing reliance forboth law reformers and government’s technical advisers on arguments and practices related to economic
modelling and cost efficiency have been illustrated here in support of the contention that, while providing a
useful backdrop, children’s rights and restorative justice ideology have been eclipsed by business-speak.
This could give the impression that an efficiency model, along corporatist lines, has supplanted the idealismof the endeavour.” (Sloth-Nielsen, 2003 at p. 192).
Sloth Nielsen, a well-known South African children’s rights advocate and academic, is no doubt being alittle provocative in this statement. In the closing remarks of her article she concludes that children’s rights
ideology and pragmatic management philosophy are not competing discourses if we want to ensure that we
provide a system that can actually deliver rights to children.

III. PARALLEL DEVELOPMENTS IN PRACTICE
A. Introduction
The system proposed by the Child Justice Bill is not a completely new one. It incorporates and builds onsome sections in existing laws that have in the past provided sporadic, unco-ordinated protection for children
accused of crimes. The new system has been in a process of organic development for a number of years.
This development has grown through the introduction of reforms and pilot projects by NGOs andgovernment departments, often working in partnership. The implementation of the new child justicelegislation will be made easier by the fact that there is an existing infrastructure on which to build.
B. Probation Services
1. Current Practice and Recent Developments
Probation work consists of a body of occupation-specific knowledge and skills (Department of Social
Development 2002a). Probation officers are currently all social workers who carry out work in the fields ofcrime prevention, treatment of offenders, and the care and treatment of victims of crime, as well as working
with families and communities.
Over the past decade in South Africa, the importance of probation officers as agents in an integrated
criminal justice system has grown. The Department has accordingly strengthened probation services
through increasing the number of probation officers and through widespread training. The University ofCape Town was the pioneer of post-graduate specialized training for probation officers, being the first
university in the country to offer a social science honours degree in probation practice. The Nelson Mandela
Metropolitan University, Rhodes University, the University of Johannesburg and the University of Fort Hareare all now offering honours degrees in probation practice. Probation practice is drawn from a number ofdisciplines including social work, criminology, penology, criminal law, psychology and sociology.
Probation work is currently carried out in terms of the Probation Services Act 116 of 1991, which
provides for the establishment and implementation of programmes to combat crime and for rendering
assistance to and treatment of both victims and offenders. An amendment to the Act in 2002 (Probation
Services Amendment Act 35 of 2002) inserted certain definitions for terms such as “diversion” and“restorative justice”, provided for compulsory assessment of all arrested children within 24 hours of arrest,and introduced home-based supervision as an alternative to detention – both in the pre-trial phase and as a

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sentence. Pursuant to the amendments, assistant probation officers can now be appointed and be
empowered to carry out certain functions under the Act. Assistant probation officers are not required tohave third level education, and this is a very practical way of extending the services that the probation
services department can carry out. However, statutory services remain the sole preserve of probation
officers. The Department of Social Development has undertaken an intensive drive to appoint new assistantprobation officers since the end of 2005.
The Annual Report of the Department of Social Development (2005/2006 Financial Year) points out thatwhilst there are only 780 probation officers, 940 young assistant probation officers have recently embarked
on an 18 month training course (the curriculum developed by the University of Cape Town). The report goeson to say the following: “This complemented efforts to improve the quality of learning in the probation
services environment that, during the period under review, saw the Standards Generating Body (SGB)
Board for Probation Services come into being in April 2005, with the added result of a Probation Work
Certificate Course at NQF Level 4 being registered with the South African Qualifications Authority(SAQA).” (Annual Report 2005/2006: 100)
2. Future Prospects
The Child Justice Bill provides for a more central role for probation officers. They will carry out
assessments of every child who comes into conflict with the law, and make recommendations about theprospects for diversion, as well as the release or placement of the child. They will also be required to attend
the preliminary inquiry, render pre-sentence reports, and carry out supervision of children in thecommunity. In addition, probation services must ensure that there are sufficient programmes in place tosupport diversion and alternative sentencing.

C. Assessment
1. Current Practice and Recent Developments
The Interim Policy Recommendations for the Transformation of the Child and Youth Care Systemstressed the importance of an individual assessment of every child (IMC 1996). The Department of Social
Development has adopted a model of developmental, strengths-based assessment, and many probation
officers have been trained in the use of this method.
The assessment of children by probation officers during the first 24 hours after arrest and prior to thefirst court appearance is already the general practice in a number of urban centres. This has now become
part of statutory law with the passing of the amendment to the Probation Services Amendment Act.
2. Future Prospects
With regard to the availability of probation officers to carry out these assessments within 24 hours, themajor urban areas are reasonably well served. There are some smaller towns and rural areas that may nothave sufficient staff to undertake these assessments, and some probation officers are required to cover alarge geographical area. The purchasing of such services by contracting on a fee-for-service basis withtrained personnel in the private or non-government sector is part of the plan envisaged by the Department
of Social Development to ensure the availability of probation services to meet the assessment requirementsthat the forthcoming legislation will set (Intersectoral Committee on Child Justice 2002).

D. Diversion
1. Current Practice and Recent Developments
Diversion is the channelling of children away from the formal court system into reintegrative
programmes. If a child acknowledges responsibility for the wrongdoing, he or she can be “diverted” to sucha programme, thereby avoiding the stigmatizing, and even brutalizing, effects of the criminal justice system.
Diversion gives children a chance to avoid a criminal record, while at the same time, the programmes are
aimed at teaching them to take responsibility for their actions and to avoid getting into trouble again.
Current law does not specifically provide for diversion practised in South Africa. Experiments withdiversion of young offenders have been pioneered by NICRO (an NGO partially subsidized by thegovernment) since 1992, with the co-operation of public prosecutors and probation officers (Muntingh &Shapiro 1997).

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Although diversion is currently not mentioned in the statutes, it has recently been recognized andpronounced upon by the courts in S v D 1997 (2) SACR 673 (C), S v Z en vier andere sake 1999 (1) SACR
427 (E), and M v The Senior Public Prosecutor, Randburg and another (Case 3284/00 WLD, unreported).
Diversion can thus be said to be officially recognized by South African law.
The National Prosecuting Authority (NPA) issued a national policy manual in 1999, Chapter 7 of which
deals with diversion. It was tabled and approved by Parliament in November 1999. The manual defines
diversion, how it should be implemented, the selection criteria, and the processes to be followed. In addition,
training manuals on Child Law have been developed by the Justice College for both prosecutors andmagistrates, and each of the manuals contains detailed information about diversion.
In 2000, the NPA conducted a national audit on diversion programmes. The audit revealed that access todiversion was uneven, with children in rural areas receiving few opportunities. The NPA (with theassistance of NICRO and the Department of Social Development) has carried out training throughout thecountry since that time. Data collection remains weak in this area. The NPA reports that from July 1999 to
December 2005, a total of 115,582 matters were diverted. However, a major shortcoming is that the figures
do not indicate the kinds of offences and the ages of the children diverted (Tserere 2006: 38).
2. Future Prospects
The Child Justice Bill will make diversion part of the law, instead of being solely dependent on thediscretion of a prosecutor, as it is in the current system. The Department of Social Development hasdeveloped minimum standards for diversion. These are aimed at ensuring that diversion services will, in the
future, be offered by accredited service providers. The quality of the programmes will be subject toevaluation, using the minimum standards as an evaluative benchmark.

E. Restorative Justice
1. Current Practice and Recent Developments
Restorative Justice is recognized as being closely linked to African traditional justice systems. This
traditional form of justice preceded colonization and still exists in South Africa today, more commonly inrural areas. Modern restorative justice practice has its roots in victim-offender mediation, which became
popular in the Western world during the 1970s. The term “restorative justice” began to be applied to suchpractices during the 1980s, and was first comprehensively presented as a theorized model in 1990 with
Zehr’s Changing Lenses. South Africa’s participation in the modern international movement of restorative
justice began in 1992. The first initiatives were taken by a non-governmental organization, the National
Institute for Crime Prevention and Reintegration of Offenders (NICRO), in 1992 to establish and later
evaluate South Africa’s first victim-offender mediation project. A person was employed to get the project
going, and he undertook a study visit to the United States. The visit was hosted by the Mennonite Central
Committee and included time at a training conference in San Francisco, Los Angeles to observe a victimoffender mediation project, and then on to Elkhart, Indiana to observe the victim-offender programme there.
NICRO’s first victim-offender mediation project was established in Cape Town. The results of the project
were published in a report that describes Zehr’s model of restorative justice as the theoretical framework forthe project, and gives several examples of victim-offender mediation projects in North America and Europe
as well as a brief description of the Japanese legal system, with reference to a parallel mediation track(Muntingh 2003). The project targeted referrals at both the pre-trial and pre-sentence stages. The report
indicated that prosecutors had been reluctant to refer serious cases to the project, and had referred amajority of juvenile offenders, as opposed to adults.
In 1995 an Interministerial Committee for Young People at Risk was established. Restorative justice wasadopted as a “practice principle” for the transformation of the child and youth care system. A study tour to
New Zealand was authorized by the IMC in 1996 and four South Africans travelled there to consider theapplicability of the New Zealand youth justice system to South Africa. Following the study tour to New
Zealand, the IMC established a pilot project on family group conferencing in Pretoria that handled 42 cases in
1997, some of which dealt with relatively serious offences. The project was evaluated and the findings were
published in a document that is both a practice research study and an implementation manual (Branken andBatley 1998).

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The Restorative Justice Centre was established in Pretoria in 1998. From the outset the organization
aimed not only to offer victim-offender conferencing as an alternative to the criminal justice system, but also
to build capacity within South Africa for the delivery of restorative justice programmes. The Centre has
forged links with other organizations in a consortium called the Restorative Justice Initiative.
Several training initiatives have also played an important role in helping to establish restorative justice inSouth Africa. Since it began to function in 2000, the Restorative Justice Centre has offered a three-day
workshop in the theory of restorative justice as well as conferencing skills. This package was adapted forprobation officers, first for the North West province in 2001, and later for the whole country as a project of
the National Department of Social Development funded by the Royal Netherlands Embassy in 2003. During
2005 and 2006 there has been a rapid growth in training on restorative justice, with the Department ofJustice, magistrates’ organizations and the National Prosecuting Authority all commissioning training fortheir officials.
A recent audit by Skelton and Batley entitled “Mapping Progress, Charting the Future: Restorative
Justice in South Africa” (2006) has found that there are restorative justice initiatives in all nine provinces inSouth Africa. The probation sector appears to be the most active, which is probably due to the fact that this
sector was the first to receive training. The role of the NGOs has been very important, but government
departments are definitely coming on board. Victim-support service involvement has not been very active,
which given that restorative justice is a victim-centred process, is disappointing, but it may be due to general
weaknesses and lack of funding in that sector.
Very recently, a fledgling jurisprudence has begun to emerge from the superior courts. Justice
Bertelsman, in a High Court judgment called S v Joyce Maluleke (an as yet unreported case no. CC 83/04
Transvaal Provincial Division, handed down on 13 June 2006) has set the groundwork.
Drawing on other judgments, one from Zimbabwe, S v Shariwa [2003] JOL 11015 (ZH) and another fromthe Transvaal Provincial Division, S v Shilubane 2005 [JOL 15671(T)], the judge opened the door in an
explicit way to the use of restorative justice in sentencing. He remarked as follows: “In addition, restorative
justice, seen in the context of an innovative approach to sentencing, may become an important tool inreconciling the victim and the offender and the community and the offender. It may provide a whole range ofsupple alternatives to imprisonment.”
This judgment was mentioned in one of the dissenting judgments in the recent constitutional case ofDavid Dikoko v Thupi Zacharia Mohkatla CCT 62/05, an as yet unreported judgment delivered on 3 August
2006 by the Constitutional Court of South Africa. This case dealt, interestingly enough, not with a criminal
matter but a civil claim for damages arising from defamation. Whilst the majority awarded a hefty claim offinancial damages, the two separate but concurring minority judgments, by Justices Mokgoro and Sachs,
focused instead on a restorative justice approach, making the point that dignity could not be restored
through disproportionate punitive monetary claims, and that apology would have been a more powerful tool,
more in keeping with African notions of ubuntu and our constitutional commitment to dignity.
2. Future Prospects
The development of standards for restorative justice practice are currently being developed, led by thenon-government sector, but with active participation by government department officials and consultation
with pracititioners. The National Prosecuting Authority has announced that it plans to roll out a restorative
justice pilot project to numerous courts around the country, in which child offenders will benefit fromdiversion and alternative sentencing options.

F. Assessment Centres and One-Stop Child Justice Centres
1. Current Practice and Recent Developments
Over the past decade, service arrangements have been developed at grass-roots level in an attempt tostreamline pre-trial services to children. Some of these are called assessment centres, others are named
arrest, reception and referral centres. These centres, usually based at the magistrate’s court, are staffed byprobation officers. They are service hubs, designed to streamline the process of children who have beenarrested by police being transferred as swiftly as possible to a probation officer for assessment prior to theirfirst appearance (IMC 1998).
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A more complex and developed model of a service centre is the One-Stop Child Justice Centre, which has
a range of services involving several departments housed under one roof. This model has been operating at“Stepping Stones” in Port Elizabeth since 1996 (IMC 1998). The project has now been incorporated as partof the normal services rendered, with permanently appointed staff. A second One-Stop Child Justice Centre
has been established at Mangaung, in Bloemfontein. Although initially these centres were co-ordinated by
the Department of Social Development, there have been moves for the Department of Justice andConstitutional Development to take a more active lead in the promotion of such centres. This is in line with
the Child Justice Bill, which empowers the Minister to establish such centres in the future system, in
consultation with Ministers of other relevant departments. The Department of Justice and Constitutional
Development has been leading a process to develop a blueprint for the establishment and maintenance of
One-Stop Child Justice Centres.
2. Future Prospects
Assessment and referral centres, and One-Stop Child Justice Centres, are very useful as service hubs
(different services are inter-related and form a hub), which enhance efficient service delivery. However, it is
not essential that such centres be universally in place for the implementation of the Child Justice Bill.
Rather, such centres can be progressively realized and promoted, in an organic manner that suits the specificneeds of that particular district or region. In their report on costing and implementation of the Child Justice
Bill, Barberton and Stuart (1999) recommended that the distribution of One-Stop Child Justice Centres
should seek to maximize impact by being established across metropolitan and certain large urban areas.
They proposed that the establishment of 19 such centres would serve at least 30% of the country’s arrested
children, or possibly more, given the metropolitan and urban bias in child crime rates (Barberton & Stuart
1999). The Department of Justice budgeted R31 million between 2003 and 2005 to be spent on
infrastructural costs for One-Stop Child Justice Centres (Intersectoral Committee on Child Justice 2002).

G. Children Awaiting Trial in Detention
1. Current Practice and Recent Developments
The South African Constitution, in section 28(1)(g), gives every child the right not to be detained except
as a measure of last resort, in which case he or she may be detained only for the shortest period of time.
Despite this provision and numerous ad hoc efforts on the part of the legislature to limit pre-trial detentionof children, South Africa has had an ongoing battle with the problem of too many children being detained inprison. The concerted efforts of government to reduce the numbers has paid off, however, and theDepartment of Social Development reports a 40% reduction of children in prison during the period 2004 to2006 (Department of Social Development 2006: 97). The annual report issued by the Office of the Inspecting
Judge of prisons reports that in December 2005 there were 1,217 children in prison awaiting trial. Dissel(2006: 116) attributes this to the Interim National Protocol for the Management of Children Awaiting Trial
which was issued by the Intersectoral Committee for Child Justice in June 2001. This is an intersectoral
document that clearly sets out procedures to be followed after the arrest of a child. It emphasizes measures
to get children released into the care of a parent or guardian, failing which, to have them placed in the least
restrictive residential option available.
In addition to children detained in prison, there are also children awaiting trial in facilities run by theprovincial Departments of Social Development. In 1998, the Department of Social Development commenced aprogramme to support the establishment of secure care facilities and funds have been made available by theTreasury for this purpose. The number of children accommodated in these facilities has risen over recent
years, which is to be expected as children who were previously in prison may be held in secure care. However,the facilities are still not fully utilized. The Department had provided 2,199 secure care beds by February 2006,
but reported that only 71% of these were being occupied on 28 February 2006 (Dissel 2006: 114).
A national workshop on secure care was held in March 2001 in Bloemfontein to consider thedevelopment of a protocol for secure care, uniformity of secure care practice and the development of aprogramme for document quality assurance (DQA); to establish a forum for secure care; to consult on theregulations for secure care; and to finalize an audit of all facilities accommodating children awaiting trial.

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2. Future Prospects
The forthcoming legislation, while continuing to allow older children charged with serious offences to beheld in prison to await trial, does aim to limit the number by removing the discretionary clause andincorporates as part of law the principle that imprisonment should always be used as a measure of lastresort. It is predicted that as a result the total number of children awaiting trial in prison will not rise and islikely, in fact, to be reduced.
A further consideration is the fact that, due to crowded court rolls in the current system, trials are taking
longer to complete and this backlog tends to keep detention figures high. The Child Justice Bill encourages
the completion of trials within a six-month period from the taking of the plea, as children will not be able tobe detained for longer than this (unless they are charged with murder, rape, car hijacking or aggravatedrobbery). This provision will hopefully speed up trials where children are the accused.
In addition to increasing the number of beds available in residential facilities, the Department of Social
Development is committed to providing community-based alternatives to pre-trial detention. The
Department, in partnership with the Western Cape Provincial Department, started a home-based
supervision project during September 1998. The arrested child is placed in the care of his or her parents
under the supervision of a probation officer. The child is then monitored by an assistant probation officer. It
is recorded that from September 1998 until February 2002, a total of 379 children were in this programme.
An interesting observation is that out of all these cases of children in this programme 188 cases were
eventually withdrawn from court. This means that at least that many children could have been in prison
awaiting trial for up to a year or longer, their young lives totally disrupted and their schooling interrupted,
only to have the charges ultimately withdrawn. It is also noted that such programmes are highly costeffective when compared with the expensive option of residential care.
In the Annual Report of the Department of Social Development 2005/2006 Financial Year it is reported
that a blueprint for secure care is being developed to regulate norms and standards in secure care. Securecare is a component of residential care, and the running of such facilities will in future be governed by theChildren’s Act 35 of 2005, expected to become operational in 2008.

H. Pre-Sentence Reports
1. Current Practice and Recent Developments
Although current statutory law in South Africa does not make pre-sentence reports by a probation officer
compulsory, a series of recent High Court judgments have created precedents for the requirement of presentence reports, at least in cases where children are likely to be sent to reform school or prison. S v Z envier andere sake 1999 (1) SACR 427 (E) sent a clear message that due to the importance of understanding
the personality and personal circumstances of the child offender, a pre-sentence report is vital. The approach
was also followed in S v Kwalase 2000 (2) SACR 135 (C), which also stressed the importance of anindividualized approach. In the case of S v J and others 2000 (2) SACR 384 (C) a 16 year old offender had
been sentenced on the basis of an “assessment record” instead of a proper probation officer’s pre-sentence
report. The court found that the form was inadequate for purposes of sentencing. The role of the probation
officer was fully discussed in the Supreme Court of Appeal in S v Petersen en ‘n Ander 2001 (1) SACR 16(SCA). In that the case the Director of Social Services had submitted a letter saying that probation officers
do not undertake home visits to gang infested areas in Port Elizabeth. The Appeal court firmly stated thatthe magistrate had misdirected himself when he accepted this excuse, and that he should not havesentenced a young offender without the benefit of a probation officer’s report. This case was cited andfollowed in S v M and another 2005 (1) SACR 481 (E). In the same year, the case of S v N and Another 2005
(1) SACR 201 (CkH) dealt with the fact that it is preferable for a probation officer to be called to give
evidence, rather than just hand in a written report.
2. Future Prospects
The Child Justice Bill provides that pre-sentence reports should be requested in every case, and that thismay only be dispensed with if the matter is a petty offence or if the pre-sentence report would cause a delaythat would prejudice the child. However, no sentence involving “a residential element” can be imposed
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new system may require the provision of more pre-sentence reports than are required in the current
system, and the Bill also requires that a report be completed within one calendar month from the date on
which it is requested. However, the fact that a probation officer will have already completed a pre-trial
assessment will shorten the process of the preparation of the pre-sentence report. Probation officers are
already dealing with pre-sentence reports in the majority of serious matters.

I. Community-Based Sentences
1. Current Practice and Recent Developments
A range of non-custodial sentences are available to the courts for the sentencing of convicted children. It
is possible to postpone the passing of sentence conditionally or unconditionally. In the case of unconditional
postponement, the court does not pass sentence but warns that the offender may have to appear again
before the court if called upon to do so. The postponement may be made conditional to compensation,
rendering of a benefit or service to the victim, community service, instruction or treatment, supervision, or
attendance at a centre for a specified purpose. Postponement of sentence is used regularly by the courts,
particularly for non-violent offences. Also available under the current law is the option of correctional
supervision. This provides for an offender to be placed under correctional supervision which takes the formof house arrest, combined with a set period of community service and attendance at a relevant course. Thiscan either be completed as a wholly community-based sentence, or a person can spend a portion of thesentence in prison, and then be released to carry out the rest of the sentence under correctional
supervision. Correctional supervision is not designed for child offenders specifically and is not used as
frequently as it could be.
In the case of The Director of Public Prosecutions, KwaZulu Natal v P 2006(1) SACR 243 (SCA), theSupreme Court of Appeal reviewed a sentence of correctional supervision for a girl who had been 12 years
old at the time of the commission of murder. Although the court set the sentence aside, it did not interferewith the correctional supervision part of the sentence, but replaced the postponed sentence to a whollysuspended sentence of imprisonment.
2. Future Prospects
While the courts have for many years had the power to use community-based sentences, they have often
opted for less imaginative options from the list available to them, such as postponed sentences (Skelton, in
Robinson 1997:174). The Child Justice Bill offers a comprehensive range of options for diversion. In thecommunity-based sentencing section it refers back to the options for diversion, indicating that any of thesecan also be used as a sentence, or be linked to a sentence, through postponement or suspension.
Probation services will play an important role in ensuring and brokering the availability of programmes
for sentences (which in most cases will be the same programmes used for diversion). Probation officers need
to be thoroughly trained in this field.
With regard to correctional supervision, the content of this sentencing option should be reconsidered toensure that it is suitable for the needs of child offenders, and it should then be promoted as a sentencing
option. The availability of correctional officials to supervise these sentences also needs to be considered andplanned for.

J. Reform School
1. Current Practice and Recent Developments
In the current system, children may be sentenced to reform schools (managed by the Department of
Education), which are compulsory residential facilities offering academic and technical education. In 1996,
there was a Cabinet-requested investigation into the availability and suitability of such facilities and it was
found that there were nine reform schools in South Africa, seven for boys and two for girls. Since then,however, the Western Cape facilities have been “rationalized” and a reform school in KwaZulu-Natal has
been closed.
Currently, there are only four facilities receiving sentenced children, namely Ethokomala Reform School(for boys) and Faure Youth Centre (for boys and girls) in Mpumalanga, Ottery Youth Centre (for boys only) in
the Western Cape, and Denovo in the Western Cape, which is still being developed. The total number of49

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beds for sentenced children in these facilities is 420. Due to the fact that these facilities are not evenly
spread throughout the country, numerous children who have already been sentenced to reform school haveto await designation to such a facility in prison. The situation has been commented upon with concern by theHigh Court in a series of cases, notably S v M 2001 (2) SACR 316 (T); S v Z and 23 similar cases 2004 (4)BCLR 410 (E) and S v Z and 23 similar cases 2004 (1) SACR 400 (E). In these reported cases, and otherunreported ones, the courts have expressed grave concern about the situation where issues relating toprovisioning, transport and other practical concerns are leading to a serious violation of the rights of children
sentenced to reform school.
2. Future Prospects
The Child Justice Bill is moving away from the terminology of “reform school” and is instead allowing forchildren to be sentenced to a “residential facility”. The definition of the latter is broad enough to include
facilities run by either the Department of Education or the Department of Social Development. This will
mean that the former department will be able to consider utilizing schools of industry for the accommodationof sentenced children, and also that currently existing and planned secure care facilities can be utilized for
sentenced children and not just for children awaiting trial, as is currently the case. Reform schools will in
future fall under the administration of the Children’s Act 35 of 2005, which is expected to become
operational by 2008.

K. Prison Sentences
1. Current Practice and Recent Developments
Children can be sentenced to imprisonment and under the current law there is no limit regarding aminimum age for imprisonment of sentenced children. In practice, children under the age of 14 are not often
sentenced to imprisonment, but the fact that it happens at all remains a concern. According to the annual
report issued by the Office of the Inspecting Judge of Prisons (2005/2006), of the 2,354 children in prison(awaiting trial and sentenced) 12 are under the age of 14 years.
The statistics relating to children being sentenced to imprisonment indicate that the number of children
being sentenced to imprisonment is decreasing, but the length of their sentences is increasing on average.
According to the annual report issued by the Office of the Inspecting Judge of Prisons (2005/2006), thenumber of persons serving sentences of imprisonment in December 2005 was 1,137.
The minimum sentences introduced by the Criminal Law Amendment Act No 105 of 1997 may haveaffected the length of sentences because some courts initially applied the legislation to 16 and 17 year olds.
The legal uncertainty on this issue was resolved when the Supreme Court of Appeal ruled in the case of
Brandt v S [2005] 2 All SA 1 (SCA) that minimum sentences do not apply to persons who were below theage of 18 years at the time of the commission of the offence.
South Africa remains one of only a few countries in the world that retains life imprisonment as a sentence
for children, with 32 such prisoners having been identified. In South Africa, a person sentenced to life
imprisonment must serve 25 years in prison before he or she can be considered for parole (Du Toit 2006: 13).
2. Future Prospects
The fact that any children under the age of 14 years are being sentenced to imprisonment is cause forconcern, and the proposed new legislation seeks to remove the possibility of sentences to imprisonment forchildren under this age, although other forms of secure residential care will remain available.
With regard to children of 14 years and older, it is not predicted that the Child Justice Bill will bring about
any increase in the number of children being sentenced to imprisonment. Hopefully, there will be a reductionin the number of such sentences, especially in those categories of children sentenced to less than two years.
Community-based alternatives are being developed and promoted, and may be appropriately used in thesematters. The Bill as introduced into parliament included a clause outlawing the use of life imprisonment.

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VISITING EXPERTS’ PAPERS

L. Legal Representation
1. Current Practice and Recent Developments
Children have a right to legal assistance in South Africa in cases where a substantial injustice would
otherwise occur, and where a child’s family cannot afford to pay for the services of a lawyer. State-funded
legal representation can be obtained through the Legal Aid Board (Zaal & Skelton 1998:520). Although thepercentage of children being legally represented has increased in recent years, it is still estimated to be lessthan half of all cases appearing in court (Intersectoral Committee on Child Justice 2002). A large number ofchildren who are offered state-funded legal aid decline these services, which indicates a need for theeducation of children who have come into contact with the criminal justice system. There has previously
been little or no specialization amongst lawyers regarding the legal representation of children.
The Legal Aid Board has committed itself to providing legal representation for children. The Board has
appointed legal representatives for children – both in child justice and children’s court matters – in several of
their justice centres.
2. Future Prospects
The Child Justice Bill provides for access to state-funded legal representation when the child is remanded
in detention, when there is a likelihood that a sentence involving a residential requirement is to be imposed,
and when the child is at least ten years old but not yet 14 years and the matter is to be tried in court. The
children in these categories may not waive legal representation.
The idea of non-waiver may appear to be a provision that will cause a large increase in the number ofcases that will have to be taken on by the Legal Aid Board. The Legal Aid Board agrees, however, that thesecategories correspond with the constitutional test of whether a substantial injustice would otherwise occur(Intersectoral Committee on Child Justice 2002). It is also likely that the Child Justice Bill, with its focus ondiversion of cases, will result in fewer cases going to trial overall, although the number of serious cases
going to trial will probably remain much the same. These serious cases tend to be the ones in which children
do have legal representation in the current system.
Planning for legal representation will be done primarily through making the legal aid officers as well as
legal aid justice centre managers and staff aware of the requirements of the Bill, and through the training of
relevant justice centre staff. Further, efforts to provide some specialization in legal representation of children
will be supported.

M. Monitoring
1. Current Practice and Recent Developments
Since its inception in 2000, the government-led Intersectoral Committee on Child Justice has attempted
to set up structures and systems to monitor the situation of children in the criminal justice system, althoughthese have focused mainly on pre-trial detention. By 2006 all provinces had set up some form of monitoring
structure. However, data collection remains incomplete.
There is a general monitoring system for all prisoners, the “independent prison vsitors” model thatprovides for each prison to have a paid prison visitor, and this nationwide structure is overseen by a judicial
inspectorate of prisons. Children have benefited from this system, although the quality of the services does
differ from prison to prison. The Office of the Inspecting Judge has taken an interest in children in prison,and does include specific details about them in its annual reports.
The process of automatic appeal in certain cases is also a useful part of the monitoring process. A numberof High Court judgments have picked up irregularities and injustices relating to cases involving children in
the criminal justice system. This helps to monitor what is happening in the courts and also contributes tolaw reform and improvement in practice.
2. Future Prospects
The Child Justice Bill does include a section on monitoring. Much of the detail on monitoring that was
included in the draft Child Justice Bill, itself included in the Law Commission Report on Juvenile Justice, has

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been removed, and the Child Justice Bill as introduced into Parliament includes only a simple framework formonitoring. The detailed provisions are likely to appear in the regulations to the Act.

IV. CONCLUSION
The issue of child justice is very fluid in South Africa, which is why it is necessary to describe a systemin the making, as this chapter has aimed to do. It is necessary for the reader to check the current status of
the law when using this text, since changes to the Child Justice Bill may occur during the parliamentary
process, and the Act that emerges may be different from the Bill as it is described in this paper. To check thestatus of the law, visit the following website: www.childjustice.org.za .

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136TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSREFERENCES
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