Act No. 75, 2008 CHILD JUSTICE ACT, 2008 38. (1) The child must be present at his or her assessment in terms of this Act.
excluded by the probation officer from attending because he or she has disrupted, undermined or obstructed the assessment or it is in the best interests of the child or the administration of justice.
inquire from the child whether or not he or she intends acknowledging 30 responsibility for the offence in question.
with any person who may provide information necessary for the assessment, including a prosecutor, police official or diversion service provider.
an estimation of the age of the child if this is uncertain, as provided for in section 13.
within 48 hours of arrest as provided for in section 20(5) if a child is arrested and remains in detention; or within the time periods speciï¬ed in a written notice in terms of section 18 or a summons in terms of section 19.
a warning by a presiding officer in terms of section 24(4), (5) or (6), or is otherwise obliged to appear at a preliminary inquiry and who fails to appear at the inquiry or to remain in attendance at the proceedings must be dealt with in accordance with the provisions of section 24(7), which apply with the changes required by the context.
the report regarding the detention of the child in police custody provided by the investigating police official in terms of section 22(2), if applicable; and any other information that may be relevant to the proceedings.
An inquiry magistrate who dispenses with an assessment in terms of paragraph (a), must enter the reasons for that decision on the record of the proceedings.
(a)If the child is a co-accused with one or more other children, a joint preliminary inquiry may be held if the inquiry magistrate is satisï¬ed that this will be in the best interests of all the children concerned.
If the proceedings of a preliminary inquiry are postponed in terms of subsection (1)(c) in order to note a confession or an admission or hold an identity parade or a pointing-out, the inquiry magistrate must inform the child of the right to have a parent, an appropriate adult, guardian or a legal representative present during those proceedings.
in order to obtain the written indication from the Director of Public Prosecutions having jurisdiction for the diversion of the matter in terms of section 52(3).
the child has been referred for a decision relating to mental illness or defect in terms of section 77 or 78 of the Criminal Procedure Act.
Section 50(1)(d) of the Criminal Procedure Act applies in relation to the period of 48 hours as provided for in this section.
(a) An inquiry magistrate may, subject to paragraph (b), make an order that the matter be diverted in terms of section 52(5).
if he or she is satisï¬ed that the child has criminal capacity.
may alter or extend any condition imposed in terms of section 24(4); and must warn the child and his or her parent, an appropriate adult or a guardian to appear in a child justice court on the speciï¬ed date and at the speciï¬ed time and place.
the prosecutor indicates that the matter may be diverted in accordance with subsection (2) or the Director of Public Prosecutions indicates that the matter may be diverted in accordance with subsection (3).
consulted with the police official responsible for the investigation of the matter, indicate that the matter may be diverted.
The Director of Public Prosecutions having jurisdiction may, in the case of an offence referred to in Schedule 3, in writing, indicate that the matter be diverted if exceptional circumstances exist, as determined by the National Director of Public Prosecutions in directives issued in terms of section 97(4)(a)(iii).
''a supervision and guidance order'' means an order issued in the prescribed manner, placing a child under the supervision and guidance of a mentor or peer in order to monitor and guide the child's behaviour.
A magistrate referred to in section 42, an inquiry magistrate or child justice court may order a child to appear at a family group conference in terms of section 61 or a victim-offender mediation in terms of section 62 on a speciï¬ed date and at a speciï¬ed time and place, or order any other restorative justice option in appropriate cases in the place of any of the diversion options referred to in subsections (3) or (4), or in combination with any of the diversion options referred to in subsections (3) and (4).
In the case of an offence referred to in Schedule 1, level one diversion options set out in section 53(3) are applicable and may be used in combination.
in the case of a probation officer or person who is in the employ of the State, the magistrate, inquiry magistrate or child justice court must bring the ï¬nding to the attention of the appropriate authority in order to take the necessary action; or in the case of a person who is not in the employ of the State, the magistrate, inquiry magistrate or child justice court must notify the Director-General: Social Development.
respect of diversion programmes and diversion service providers which existed at the time of commencement of this Act.
add or apply any other diversion option; or make an appropriate order which will assist the child and his or her family to comply with the diversion option initially applied, with or without altered or additional conditions.
made by the child as an admission referred to in section 220 of the Criminal Procedure Act and proceed with the trial; or the prosecutor or child justice court must, where the matter does not go to trial, decide on another diversion option which is more onerous than the diversion option originally decided on.
setting the date, time and place of the conference; and taking steps to ensure that all persons who may attend the conference are timeously notiï¬ed of the date, time and place of the conference.
Section 154(3) of the Criminal Procedure Act applies with the changes required by the context regarding the publication of information.
The child justice court must, on receipt of a report from the probation officer that a child has successfully complied with the diversion order, and if the child justice court is satisï¬ed that the child has complied, make an order to stop the proceedings.
ensure that any necessary supervision, guidance, treatment or services which form part of the sentence assist the child in the process of reintegration; and use imprisonment only as a measure of last resort and only for the shortest appropriate period of time.
for victim-offender mediation in terms of section 62; or to any other restorative justice process which is in accordance with the deï¬nition of restorative justice.
manner, indicating compliance; and in terms of section 79.
276(1)(h) of the Criminal Procedure Act.
Sentence of compulsory residence in child and youth care centre 35 76. (1) A child justice court that convicts a child of an offence may sentence him or her to compulsory residence in a child and youth care centre providing a programme referred to in section 191(2)(j) of the Children's Act.
A sentence referred to in subsection (1) may, subject to subsection (3), be imposed for a period not exceeding ï¬ve years or for a period which may not exceed the date on 40 which the child in question turns 21 years of age, whichever date is the earliest.
which, if committed by an adult, would have justiï¬ed a term of imprisonment exceeding ten years, 45 may, if substantial and compelling reasons exist, in addition to a sentence in terms of subsection (1), sentence the child to a period of imprisonment which is to be served after completion of the period determined in accordance with subsection (2).
The head of the child and youth care centre to which a child has been sentenced in terms of subsection (1) must, on the child's completion of that sentence, submit a 50 prescribed report to the child justice court which imposed the sentence, containing his or her views on the extent to which the relevant objectives of sentencing referred to in section 69 have been achieved and the possibility of the child's reintegration into society without serving the additional term of imprisonment.
If a sentence has been conï¬rmed in accordance with paragraph (c)(i), the period served by the child in a child and youth care centre must be taken into account when consideration is given as to whether or not the child should be released on parole in accordance with Chapter VII of the Correctional Services Act, 1998 (Act No. 111 of 1998).
A child who is sentenced in terms of this section, must be taken in the prescribed manner to the centre speciï¬ed in the order as soon as possible, but not later than one month after the order was made.
direct a probation officer to monitor the movement of the child to the centre speciï¬ed in the order, in compliance with the order, and to report to the court in writing once the child has been admitted to the centre.
Where the information referred to in section 71(3) is, for any reason, not available, the presiding officer may request any official of the rank of Director or above at the Department of Social Development dealing with the designation of children to child and youth care centres to furnish that information, in respect of the availability or otherwise of accommodation for the child in question.
If the presiding officer ï¬nds that the failure to admit the child is due to the fault of any official, he or she must cause a copy of the ï¬nding to this effect to be brought to the attention of the appropriate authority to take the necessary action.
Notwithstanding any provision in this or any other law, a child who was 16 years or older at the time of the commission of an offence referred to in Schedule 2 to the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997) must, if convicted, be dealt with in accordance with the provisions of section 51 of that Act.
Subject to section 77(2), the provisions of section 297 of the Criminal Procedure Act apply in relation to the postponement or suspension of passing of sentence by a child justice court in terms of this Act.
If, upon the conclusion of the inquiry, it is found that the child has failed to comply with the sentence provided for in subsection (1), the child justice court may conï¬rm, amend or substitute the sentence.
the relevant law society referred to in section 56 of the Attorneys Act, 1979 (Act No.
Where a child appears before a child justice court in terms of Chapter 9 and is not represented by a legal representative of his or her own choice, at his or her own expense the presiding officer must refer the child to the Legal Aid Board for the matter to be evaluated by the Board as provided for in section 3B(1)(b) of the Legal Aid Act, 1969 (Act No. 22 of 1969).
If a child referred to in subsection (1) does not wish to have a legal representative or declines to give instructions to an appointed legal representative, the court must enter this on the record of the proceedings and a legal representative must, subject to the provisions of the Legal Aid Guide referred to in section 3A of the Legal Aid Act, 1969 (Act No. 22 of 1969), be appointed by the Legal Aid Board to assist the court in the prescribed manner.
Criminal Procedure Act, the provisions of section 25 of this Act, dealing with the release of children on bail, apply.
The Director-General: Justice and Constitutional Development must, on receipt of the written application of an applicant referred to in subsection (1), issue a prescribed certiï¬cate of expungement, directing that the conviction and sentence of the child be expunged, if the Director-General is satisï¬ed that the child complies with the criteria set out in subsection (1).
the period of ï¬ve years, referred to in subsection (1)(a)(i); or the period of 10 years, referred to in subsection (1)(a)(ii), has not yet elapsed, if the Cabinet member responsible for the administration of justice is satisï¬ed that the child otherwise complies with the criteria set out in subsection (1).
Any rule made in terms of subsection (1) must, before publication in the Gazette, be approved by Parliament.
The objective of a One-Stop Child Justice Centre is to promote co-operation between government departments, and between government departments and the non-governmental sector and civil society, to ensure an integrated and holistic approach in the implementation of this Act.
If it comes to the attention of any court official or probation officer that a child has been used by an adult to commit a crime referred to in Schedule 1 or 2 of the Criminal Procedure Act, that adult must be reported to the South African Police Service for the consideration of a prosecution as provided for in section 141(1)(d), read with section 305(1)(c), of the Children's Act, and the fact of the adult's involvement must be taken into account when determining the treatment of the child in the child justice system.
review the policy framework within three years after its publication in the Gazette and at least once every ï¬ve years thereafter; and amend the policy framework when required, in which case the amendments must be tabled in Parliament and published in the Gazette for public comment, as provided for in paragraph (b).
the Director-General: Health.
The Cabinet member responsible for the administration of justice, after 5 development, safety and security, education, correctional services and health, may make in order to achieve the objects of this Act.
the issuing of a certiï¬cate expunging the criminal record of a child referred to in section 87(5)(b).
Every diversion programme and diversion service provider which existed at the time of the commencement of this Act may continue to operate until it has been informed of the decision in respect of its application as provided for in section 56(2)(c)(iii).
The initial regulations referred to in section 97(1) must be tabled in Parliament for approval by no later than 1 December 2009, and must be approved before the commencement of this Act, failing which they will be deemed to have been approved by Parliament.
The laws speciï¬ed in Schedule 4 are hereby repealed or amended to the extent set out in the third column of that Schedule.
Fraud, extortion, forgery and uttering or an offence referred to in the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), where the amount involved does not exceed R1 500.
Malicious injury to property, where the amount involved does not exceed R1 500.
Common assault where grievous bodily harm has not been inï¬icted.
Contempt of court.
Theft, whether under the common law or a statutory provision, receiving stolen property knowing it to have been stolen, or theft by false pretences, where the 5 amount involved exceeds R2 500.
Fraud, extortion, forgery and uttering or an offence referred to in the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), where the amount involved exceeds R1 500.
Robbery, other than robbery with aggravating circumstances. 10 4.
Malicious injury to property, where the amount involved exceeds R1 500.
Assault, involving the inï¬iction of grievous bodily harm.
Arson. 15 9.
Housebreaking, whether under the common law or a statutory provision, with the intent to commit an offence.
Administering poisonous or noxious substance.
Crimen expositionis infantis.
Exposure or display of or causing exposure or display of genital organs, anus or female breasts to any person (''ï¬ashing''), referred to in sections 9 or 22 of 35 the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
Violating a dead body or grave.
Extortion, where there are aggravating circumstances present.
where there are aggravating circumstances; or involving the taking of a motor vehicle.
Sexual exploitation of persons who are mentally disabled, sexual grooming of persons who are mentally disabled, exposure or display of or causing exposure or display of child pornography or pornography to persons who are mentally disabled or using persons who are mentally disabled for pornographic purposes or beneï¬ting therefrom, referred to in sections 23, 24, 25, and 26 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
Trafficking in persons for sexual purposes referred to in section 71(1) and involvement in trafficking in persons for sexual purposes referred to in section 71(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
Any offence referred to in Parts 1, 2 and 3 of Chapter 2 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004).
the proceeds of unlawful activities referred to in Chapter 3, of the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998).
The crimes of genocide, crimes against humanity and war crimes referred to in the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002).
Any offence referred to in section 13(f) of the Drugs and Drug Trafficking Act, 10 1992 (Act No. 140 of 1992).
Act No. 71 of 1968 Dangerous Weapons Act, 1968 Amendment of section 4 by the substitution for subsection (2) of the following subsection: ''(2) Notwithstanding anything to the contrary in any law contained, no person in respect of whom the imposition of a sentence of imprisonment is compulsory in terms of subsection (1), shall be dealt with under section [290 or] 297 of the Criminal Procedure Act, 1977.''.
Act No. 51 of 1977 Criminal Procedure Act, 1977 (a) Amendment of section 7 by the substitution for subsection (1) of the following subsection: ''(1) In any case in which [an attorney-general] a Director of Public Prosecutions declines to prosecute for an alleged offence- (a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence; (b) a husband, if the said offence was committed in respect of his wife; (c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or (d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward, may, subject to the provisions of section 9 and section 59(2) of the Child Justice Act, 2008, either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.''.
''Methods of securing attendance of accused in court 5 38. (1) Subject to section 4(2) of the Child Justice Act, the methods of securing the attendance of an accused who is eighteen years or older in court for the purposes of his or her trial shall be arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act. (2) The methods of securing the attendance of an accused who is under the age of eighteen years at a preliminary inquiry or child justice court are those contemplated in section 17 of the Child Justice Act, 2008.''.
''(1) Subject to section 4(2) of the Child Justice Act, 2008, an accused who is eighteen years or older and who is summoned under section 54 to appear at criminal proceedings and who fails to appear at the place and on the date and at the time speciï¬ed in the summons or who fails to remain in attendance at such proceedings, shall be guilty of an offence and liable to the punishment prescribed under subsection (2).'
''(1A) The provisions of section 46 of the Child Justice Act, 2008, apply to an accused who is under the age of eighteen years and who fails to appear at a preliminary inquiry in terms of a summons issued under that Act.''.
Repeal of section 71. (f) Amendment of section 72- (i) by the substitution for the introductory part of subsection (1) of the following introductory part: ''(1) Subject to section 4(2) of the Child Justice Act, 2008, if an accused who is eighteen years or older is in custody in respect of any offence and a police official or a court may in respect of such offence release the accused on bail under section 59 or 60, as the case may be, such police official or such court, as the case may be, may, in lieu of bail and if the offence is not, in the case of such police official, an offence referred to in Part II or Part III of Schedule 2-''; and (ii) by the deletion of paragraph (b) of subsection (1) and paragraph (b) of subsection (2). (g) Amendment of section 73 by the substitution for subsection (3) of the following subsection: ''(3) [An accused who is under the age of eighteen years may be assisted by his parent or guardian at criminal proceedings, and any] In addition to the provisions of sections 3(g), 38(2), 44(1)(b) and 65 of the Child Justice Act, 2008, relating to the assistance of an accused who is under the age of eighteen years by his or her parent or an appropriate adult at criminal proceedings, any accused who, in the opinion of the court, requires the assistance of another person at criminal proceedings, may, with the permission of the court, be so assisted at such proceedings.''. (h) Repeal of section 74.
''and such court, whether or not it is, in the case of a court other than a court of equal or superior jurisdiction, constituted differently than it was at the time of such postponement or suspension, may then, in the case of subparagraph (i), impose any competent sentence [which may, where the person concerned is under the age of twenty one years, include an order under the provisions of section 290,] or, in the case of subparagraph (ii), put into operation the sentence which was suspended.''.
''(i) which, in the case of imprisonment (including detention in a [reform school as deï¬ned in section 1 of the Child Care Act, 1983 (Act 74 of 1983))] child and youth care centre providing a programme contemplated in section 191(2)(j) of the Children's Act, 2005 (Act No. 32 of 2005)), exceeds a period of three months, if imposed by a judicial ofï¬cer who has not held the substantive rank of magistrate or higher for a period of seven years, or which exceeds a period of six months, if imposed by a judicial officer who has held the substantive rank of magistrate or higher for a period of seven years or longer;''.
was sentenced to any form of imprisonment as contemplated in section 276(1) that was not wholly suspended, he or she may note such an appeal without having to apply for leave in terms of section 309B]: Provided [further] that the provisions of section 302(1)(b) shall apply in respect of a person who duly notes an appeal against a conviction, sentence or order as contemplated in section 302(1)(a).''.
''(a) An accused, other than a child contemplated in the Child Justice Act, 2008, [contemplated in the ï¬rst proviso to section 309(1)(a) or] who is unrepresented at the time he or she is convicted and sentenced, must be informed by the presiding officer of his or her rights in respect of appeal and legal representation and of the correct procedures to give effect to these rights.''.
Amendment of section 316- (i) by the substitution for paragraph (a) of subsection (1) of the following paragraph: ''(a) Subject to section 84 of the Child Justice Act, 2008, any accused[, other than an accused contemplated in paragraph (c),] convicted of any offence by a High Court may apply to that court for leave to appeal against such conviction or against any resultant sentence or order.''; and (ii) by the deletion of paragraph (c) of subsection (1). (u) Substitution for section 337 of the following section: ''Estimating age of person 337. If in any criminal proceedings the age of any person is a relevant fact of which no or insufficient evidence is available at the proceedings, the presiding judge or judicial officer may, in addition to the provisions of sections 14 to 16 of the Child Justice Act, 2008, estimate the age of such person by his or her appearance or from any information which may be available, and the age so estimated shall be deemed to be the correct age of such person, unless- (a) it is subsequently proved that the said estimate was incorrect; and (b) the accused at such proceedings could not lawfully have been convicted of the offence with which he or she was charged if the correct age had been proved.''.
Act No. 38 of 2005 Children's Act, 2005 (a) Amendment of section 167 by the substitution for paragraph (b) of subsection (1) of the following paragraph: ''(b) in the care of a child and youth care centre following an order of a court in terms of this Act, [the Criminal Procedure Act, 1977 (Act No. 51 of 1977] section 29 or Chapter 10 of the Child Justice Act, 2008;''; and (b) amendment of section 191 by the substitution for paragraph (j) of subsection (2) of the following paragraph: ''(j) the reception, development and secure care of children in terms of an order- (i) under [the Criminal Procedure Act, 1977 (Act No. 51 of 1977)] section 29 or Chapter 10 of the Child Justice Act, 2008; (ii) in terms of section 156(1)(i) placing the child in a child and youth care centre which provides a secure care programme; or (iii) in terms of section 171 transferring a child in alternative care;''.