To establish a criminal justice system for children, who are in conflict with the law and are accused of committing offences, in accordance with the values underpinning the Constitution and the international obligations of the Republic; to provide for the minimum age of criminal capacity of children; to provide a mechanism for dealing with children who lack criminal capacity outside the criminal justice system; to make special provision for securing attendance at court and the release or detention and placement of children; to make provision for the assessment of children; to provide for the holding of a preliminary inquiry and to incorporate, as a central feature, the possibility of diverting matters away from the formal criminal justice system, in appropriate circumstances; to make provision for child justice courts to hear all trials of children whose matters are not diverted; to extend the sentencing options available in respect of children who have been convicted; to entrench the notion of restorative justice in the criminal justice system in respect of children who are in conflict with the law; and to provide for matters incidental thereto.
'victim-offender mediation' means a procedure referred to in section 62.
prevent children from being exposed to the adverse effects of the formal criminal justice system by using, where appropriate, processes, procedures, mechanisms, services or options more suitable to the needs of children and in accordance with the Constitution, including the use of diversion; and 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.
All consequences arising from the commission of an offence by a child should be proportionate to the circumstances of the child, the nature of the offence and the interests of society.
A child must not be treated more severely than an adult would have been treated in the same circumstances.
Every child should, as far as possible, be given an opportunity to participate in any proceedings, particularly the informal and inquisitorial proceedings in terms of this Act, where decisions affecting him or her might be taken.
Every child should be addressed in a manner appropriate to his or her age and intellectual development and should be spoken to and be allowed to speak in his or her language of choice, through an interpreter, if necessary.
Every child should be treated in a manner which takes into account his or her cultural values and beliefs.
All procedures in terms of this Act should be conducted and completed without unreasonable delay.
Parents, appropriate adults and guardians should be able to assist children in proceedings in terms of this Act and, wherever possible, participate in decisions affecting them.
A child lacking in family support or educational or employment opportunities must have equal access to available services and every effort should be made to ensure that children receive similar treatment when having committed similar offences.
The rights and obligations of children contained in international and regional instruments, with particular reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.
arrested in terms of section 20, for that offence.
(aa) , in the case of a person who is alleged to have committed an offence when he or she was under the age of 18 years; and is 18 years or older but under the age of 21 years, at the time referred to in subsection (1) (b) , direct that the matter be dealt with in terms of section 5 (2) to (4).
The Criminal Procedure Act applies with the necessary changes as may be required by the context to any person referred to in this section, except in so far as this Act provides for amended, additional or different provisions or procedures in respect of that person.
For purposes of paragraph (a) , Schedule 5 to this Act, which is not part of this Act and does not have the force of law, contains an exposition of the interface between the Criminal Procedure Act and this Act.
Every child who is alleged to have committed an offence and is under the age of 10 years, must be referred to a probation officer to be dealt with in terms of section 9.
Every child who is 10 years or older, who is alleged to have committed an offence and who is required to appear at a preliminary inquiry in respect of that offence must, before his or her first appearance at the preliminary inquiry, be assessed by a probation officer, unless assessment is dispensed with in terms of section 41 (3) or 47 (5).
A matter in respect of a child referred to in subsection (2) may be considered for diversion by a prosecutor in accordance with Chapter 6; or at a preliminary inquiry in accordance with Chapter 7.
A matter which is for any reason not diverted in terms of paragraph (a) must, unless the matter has been withdrawn or referred to a children's court, be referred to a child justice court for plea and trial in terms of Chapter 9.
A matter in respect of a child referred to in paragraph (b) may, before the conclusion of the case for the prosecution, be considered for diversion by a child justice court in terms of Chapter 9.
has been withdrawn.
offences contained in Schedule 2; and offences contained in Schedule 3.
In the case of a child being charged with more than one offence which are dealt with in the same criminal proceedings, the most serious offence must guide the manner in which the child must be dealt with in terms of this Act.
In the case of a child being charged with more than one offence which are dealt with in separate criminal proceedings, subsection (2) does not apply.
A child who commits an offence while under the age of 10 years does not have criminal capacity and cannot be prosecuted for that offence, but must be dealt with in terms of section 9.
A child who is 10 years or older but under the age of 14 years and who commits an offence is presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity in accordance with section 11.
The common law pertaining to the criminal capacity of children under the age of 14 years is hereby amended to the extent set out in this section.
In order to determine whether or not the minimum age of criminal capacity as set out in section 7 (1) should be raised, the Cabinet member responsible for the administration of justice must, not later than five years after the commencement of this section, submit a report to Parliament, as provided for in section 96 (4) and (5).
if no parent, appropriate adult or a guardian is available or if it is not in the best interests of the child to be handed over to the parent, an appropriate adult or a guardian, to a suitable child and youth care centre, and must notify a probation officer.
A probation officer who receives notification from a police official in terms of subsection (1), must assess the child in terms of the provisions of Chapter 5 which are applicable to children under the age of 10 years as soon as possible but not later than seven days after being notified.
arrange a meeting, which must be attended by the child, his or her parent or an appropriate adult or a guardian, and which may be attended by any other person likely to provide information for the purposes of the meeting referred to in subsection (4); or decide to take no action.
Any action taken under paragraph (a) does not imply that the child is criminally liable for the incident that led to the assessment.
assist the probation officer to establish more fully the circumstances surrounding the allegations against a child; and formulate a written plan appropriate to the child and relevant to the circumstances.
specify the persons or organisations to provide the services and assistance, as prescribed; and state the responsibilities of the child and of the parent, appropriate adult or a guardian.
The probation officer must record, with reasons, the outcome of the assessment and the decision made in terms of subsection (3) in the prescribed manner.
In the event of a child failing to comply with any obligation imposed in terms of this section, including compliance with the written plan referred to in subsection (4) (b) , the probation officer must refer the matter to a children's court to be dealt with in terms of Chapter 9 of the Children's Act.
the appropriateness of diversion; and any other relevant factor.
divert the matter in terms of Chapter 6 if the child is alleged to have committed an offence referred to in Schedule 1; or refer the matter to a preliminary inquiry as provided for in Chapter 7; or not likely to be proved in terms of section 11, he or she may cause the child to be taken to a probation officer to be dealt with in terms of section 9.
The State must prove beyond reasonable doubt the capacity of a child who is 10 years or older but under the age of 14 years to appreciate the difference between right and wrong at the time of the commission of an alleged offence and to act in accordance with that appreciation.
the inquiry magistrate, for purposes of diversion; or if the matter has not been diverted, the child justice court, for purposes of plea and trial, must consider the assessment report of the probation officer referred to in section 40 and all evidence placed before the inquiry magistrate or child justice court prior to diversion or conviction, as the case may be, which evidence may include a report of an evaluation referred to in subsection (3).
An inquiry magistrate or child justice court may, on own accord, or on the request of the prosecutor or the child's legal representative, order an evaluation of the criminal capacity of the child referred to in subsection (1), in the prescribed manner, by a suitably qualified person, which must include an assessment of the cognitive, moral, emotional, psychological and social development of the child.
If an order has been made by the inquiry magistrate or child justice court in terms of subsection (3), the person identified to conduct an evaluation of the child must furnish the inquiry magistrate or child justice court with a written report of the evaluation within 30 days of the date of the order.
Where an inquiry magistrate or child justice court has found that a child's criminal capacity has not been proved beyond a reasonable doubt, the inquiry magistrate or child justice court may, if it is in the interests of the child, cause the child to be taken to a probation officer for any further action in terms of section 9.
arrest in terms of Chapter 3; or release or detention in terms of Chapter 4, and, in particular, section 27 relating to placement options before a child's first appearance at a preliminary inquiry, until a probation officer or medical practitioner has expressed an opinion on the age of the person or until the determination of that person's age at the preliminary inquiry or child justice court, after which the police official must treat the person in accordance with the opinion or determination.
If, during an assessment of a child in terms of Chapter 5, the age of the child, at the time of the commission of the alleged offence, is uncertain, the probation officer must make an estimation of the child's age and must complete the prescribed form.
a school registration form, school report, other document of a similar nature, a baptismal or other similar religious certificate; or an estimation of age by a medical practitioner.
The probation officer must submit the estimation on the prescribed form, together with any relevant documentation to the inquiry magistrate before the child's appearance at a preliminary inquiry.
Should evidence to the contrary emerge at any stage before sentence, the estimation of age by a probation officer in terms of this section may be altered and a different estimation of age may be recorded.
If, during a preliminary inquiry or during proceedings before a child justice court, the age of a child at the time of the commission of the alleged offence is uncertain, the presiding officer must determine the age of the child.
subpoena any person to produce the documentation, information or statements referred to in paragraph (b) ; or if necessary, refer the child to a medical practitioner, in the prescribed manner, for an estimation of age.
The presiding officer must enter the age determined in terms of subsection (1) into the record of the proceedings as the age of the child.
Should evidence to the contrary emerge, the presiding officer must alter the record to reflect the correct age.
determine the age of that person in accordance with section 14; and where necessary, alter the record to reflect the correct age of that person, in accordance with the provisions of section 16, which apply with the changes required by the context.
this Act, if the person is found to be a child; or the Criminal Procedure Act, if the person is found to be an adult, unless the provisions of section 4 (2) are applicable.
If a presiding officer is of the opinion that an error regarding age may have caused any prejudice to a person during the proceedings in question, the presiding officer must transmit the record of the proceedings to the registrar of the High Court having jurisdiction, in the same manner as provided for in section 303 of the Criminal Procedure Act, in which event the proceedings must be dealt with in terms of the procedure on review as provided for in section 304 of the Criminal Procedure Act.
Subject to subsection (1), if a presiding officer is of the opinion that an error regarding age has not caused any prejudice to the person, the presiding officer must continue with the proceedings in terms of the provisions of this Act, in accordance with his or her age, as altered.
a summons, as provided for in section 19; or arrest, as provided for in section 20.
Director of Public Prosecutions or a prosecutor on whether or not the child is required to attend a preliminary inquiry and, if so, the manner in which the child's attendance should be secured.
A police official may, in respect of a child who is alleged to have committed an offence referred to in Schedule 1, hand to the child a written notice provided for in section 56 of the Criminal Procedure Act, but as amended by this section in respect of children, requiring the child to appear at a preliminary inquiry.
The provisions of section 56 (1) (c) of the Criminal Procedure Act relating to an admission of guilt and payment of a fine do not apply to a written notice in terms of this Act.
A written notice must specify the date, time and place of the preliminary inquiry and be handed to the child in the presence of his or her parent, appropriate adult or guardian, in which case both the child and parent, appropriate adult or guardian must acknowledge receipt by way of a signature or mark.
In exceptional circumstances, where it is not possible to hand a written notice to the child in the presence of his or her parent, an appropriate adult or guardian, the written notice must be handed to the child and a copy must, as soon as circumstances permit, be handed to the parent, appropriate adult or guardian, and both the child and parent, appropriate adult or guardian must acknowledge receipt by way of a signature or mark.
warn the child to appear at the preliminary inquiry on the date, and at the time and place specified in the written notice and to remain in attendance; and warn the parent, appropriate adult or guardian to bring or cause the child to be brought to the preliminary inquiry on the date and at the time and place specified in the written notice and to remain in attendance; and immediately but not later than 24 hours after handing the written notice to the child, notify the probation officer concerned.
A summons issued in respect of a child in terms of section 54 of the Criminal Procedure Act who is to appear at a preliminary inquiry, must specify the date, time and place of the preliminary inquiry.
A summons must be served on a child in the presence of his or her parent, an appropriate adult or a guardian, in which case both the child and parent, appropriate adult or guardian must acknowledge service by way of a signature or mark.
In exceptional circumstances, where it is not possible to serve a summons on a child in the presence of his or her parent, an appropriate adult or a guardian, the summons must be served on the child and a copy of the summons must, as soon as circumstances permit, be served on the parent, appropriate adult or guardian, and both the child and parent, appropriate adult or guardian must acknowledge service by way of a signature or mark.
immediately but not later than 24 hours after the service of the summons notify the probation officer concerned.
where the offence is in the process of being committed; or where the offence is committed in circumstances as set out in national instructions referred to in section 97 (5) (a) (ii).
A warrant of arrest issued under section 43 of the Criminal Procedure Act in respect of a child must direct that the child be brought to appear at a preliminary inquiry.
explain to the child the immediate procedures to be followed in terms of this Act; and notify the child's parent, an appropriate adult or guardian of the arrest: Provided that if a police official is unable to notify the child's parent, an appropriate adult or guardian of the arrest, the police official must submit a written report to the presiding officer at the preliminary inquiry.
A police official, where possible the police official who arrested the child, must immediately, but not later than 24 hours after the arrest, inform the probation officer in whose area of jurisdiction the child was arrested of the arrest in the prescribed manner.
If a police official is unable to inform a probation officer of the arrest, the police official must submit a written report to the inquiry magistrate at the preliminary inquiry, furnishing reasons for non-compliance, as prescribed.
arrest outside of the area of jurisdiction of the court, apply in respect of the expiry of the period of 48 hours.
When considering the release or detention of a child who has been arrested, preference must be given to releasing the child, as set out in subsections (2) and (3).
Prior to the child's first appearance at a preliminary inquiry a police official must, in respect of an offence referred to in Schedule 1, where appropriate, release a child on written notice into the care of a parent, an appropriate adult or guardian in terms of section 18, read with section 22; or a prosecutor may, in respect of an offence referred to in Schedule 1 or 2, authorise the release of a child on bail in terms of section 25, read with section 59A of the Criminal Procedure Act, in which case the reference to Schedule 7 in section 59A of that Act is to be regarded as a reference to Schedule 2 of this Act.
release the child on bail in terms of section 25.
A police official must release a child on written notice in terms of section 18 into the care of a parent, an appropriate adult or guardian if the child is in detention in police custody in respect of an offence referred to in Schedule 1, as soon as possible and before the child appears at the preliminary inquiry, unless the child's parent or an appropriate adult or guardian cannot be located or is not available and all reasonable efforts have been made to locate the parent or appropriate adult or guardian; or there is a substantial risk that the child may be a danger to any other person or to himself or herself.
Where a child has not been released in terms of subsection (1), the investigating police official must provide the inquiry magistrate with a written report in the prescribed manner, giving reasons why the child could not be released, with particular reference to the factors referred to in subsection (1) (a) or (b).
A police official who releases a child from detention in terms of section 22 and places the child in the care of a parent or an appropriate adult or guardian, must, at the time of the release of the child, hand to the child and to the person into whose care the child is released, a written notice in accordance with section 18.
at a preliminary inquiry and the inquiry is to be postponed, or the matter, at the conclusion of the preliminary inquiry, is set down for trial in a child justice court; or at a child justice court and the matter is to be postponed, the presiding officer must, subject to subsection (2) (b) , consider the release of the child in terms of this section.
into the care of a parent, an appropriate adult or guardian; or if the child is alleged to have committed an offence referred to in Schedule 1 or 2, on the child's own recognisance, if it is in the interests of justice to release the child.
the interests and safety of the community in which the child resides; and the seriousness of the offence.
If a child is released into the care of a parent, appropriate adult or guardian, the presiding officer must direct the parent, appropriate adult or guardian to appear and warn the parent, appropriate adult or guardian to ensure that the child appears on a specified date and at a specified time and place and, if a condition has been imposed in terms of this section, to ensure that the child complies with that condition.
If a child is released on his or her own recognisance, the presiding officer must warn the child to appear on a specified date and at a specified time and place and, if a condition has been imposed in terms of this section, to comply with that condition.
If a child fails to appear on the date and at the time and place referred to in subsection (4) or (6) or comply with any condition referred to in this section, the presiding officer may, on being notified of the failure, in the prescribed manner, issue a warrant for the arrest of the child or cause a summons to be issued in accordance with section 19, for the child to appear at the preliminary inquiry or child justice court.
When a child appears before a presiding officer pursuant to a warrant of arrest or summons referred to in paragraph (a) , the presiding officer must inquire into the reasons for the child's failure to appear or comply with the conditions or to remain in attendance and make a determination whether or not the failure is due to the child's fault.
if necessary, make an appropriate order which will assist the child and his or her family to comply with the conditions initially imposed.
If it is found that the failure is due to the child's fault, the presiding officer may order the release of the child on different or further conditions or make an order that the child be detained, subject to the provisions of section 26.
A parent, an appropriate adult or guardian who fails to comply with subsection (5) is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding three months.
comply with any other condition that the presiding officer deems fit in the circumstances.
unable to pay any amount of money, the presiding officer must set appropriate conditions that do not include an amount of money for the release of the child on bail; or able to pay an amount of money, the presiding officer must set conditions for the release of the child on bail and an amount which is appropriate in the circumstances.
If after due consideration of the options for release of a child in terms of Part 1, a decision is made that the child is to be detained or is to remain in detention a police official or presiding officer must give preference to the least restrictive option possible in the circumstances, as set out in subsections (2) and (3), beginning with the least restrictive option.
a police official must, depending on the age of the child and the alleged offence committed by the child, consider the placement of the child in a suitable child and youth care centre in accordance with section 27 (a) ; or if placement referred to in paragraph (a) is not appropriate or applicable, a police official must detain the child in a police cell or lock-up, in accordance with section 27 (b).
a child and youth care centre in accordance with section 29; or prison in accordance with section 30, subject to the limitations set out in that section.
14 years or older, with an offence referred to in Schedule 3, the police official must cause the child to be detained in a police cell or lock-up.
immediate and appropriate health care in the event of any illness, injury or severe psychological trauma; and adequate food, water, blankets and bedding.
there are other circumstances which warrant medical treatment.
a recommendation as to whether any further action is required.
A copy of the medical report, if applicable, must accompany the report by the station commissioner referred to in paragraph (b) , and a further copy must be filed in the docket.
The station commissioner of each police station must keep a register in which prescribed details regarding the detention of all children in police cells or lock-ups must be recorded in a manner that entries regarding the detention of children are clearly distinguishable from those of adults.
The register may be examined by any person, as may be prescribed.
A presiding officer may order the detention of a child who is alleged to have committed any offence in a specified child and youth care centre.
Whenever a presiding officer is required to make a decision in terms of subsection (1), the presiding officer must consider the information referred to in section 40 (2).
the availability or otherwise of accommodation for the child in question; and all other available information relating to the level of security, amenities and features of the centre.
the availability of accommodation in an appropriate child and youth care centre.
the detention is necessary in the interests of the administration of justice or the safety or protection of the public or the child or another child in detention; and there is a likelihood that the child, if convicted, could be sentenced to imprisonment.
A child who is 14 years or older but under the age of 16 years may only be detained in a prison if, in addition to the factors referred to in subsection (1) (a) , (c) , and (e) , the Director of Public Prosecutions or a prosecutor authorised thereto in writing by him or her issues a certificate which confirms that there is sufficient evidence to institute a prosecution against the child for an offence referred to in Schedule 3 and is charging the child with the offence.
the seriousness of the offence in question; or any other relevant factor.
A presiding officer ordering the detention of a child in prison in terms of this section must direct that the child be brought before him or her or any other court every 14 days to reconsider the order.
A presiding officer may order the detention of a child who is alleged to have committed an offence referred to in Schedule 1 or 2 in a prison instead of a child and youth care centre, if he or she, in addition to the factors referred to in subsections (1) and (3), finds substantial and compelling reasons, including any relevant serious previous convictions or any relevant pending serious charges against the child, provided that the child is 14 years or older.
A presiding officer who makes an order to place a child in a prison in terms of paragraph (a) , must enter the reasons for the decision on the record of the proceedings.
Where a child is placed in a child and youth care centre, police cell or lock-up or a prison and it comes to the attention of the person admitting the child that an error has been made regarding placement, that person must act in accordance with the order of the court, committing the child to the child and youth care centre, police cell, lock-up or prison and receive the child but must, as soon as practicable, not later than the next court day, in the prescribed manner, refer the child back to the presiding officer in question for the error to be corrected.
if not satisfied that the child is being treated properly and being kept in suitable conditions, order that an inspection or investigation be undertaken into the treatment and conditions and make an appropriate remedial order; and enter the reasons for any decision made in this regard on the record of the proceedings.
No child may be subjected to the wearing of leg-irons when he or she appears at a preliminary inquiry or child justice court, and handcuffs may only be used if there are exceptional circumstances warranting their use.
A child held in a police cell or lock-up while waiting to appear at a preliminary inquiry or child justice court must be kept separately from adults and be treated in a manner and kept in conditions which take account of his or her age.
Girls must be kept separately from boys and must be under the care of an adult female.
Where a child is transported to or from a preliminary inquiry or child justice court, the child must be transported separately from adults: Provided that where it is not possible to comply, the police official must, within 48 hours, submit a prescribed written report to the presiding officer, furnishing reasons for non-compliance.
Every child who is alleged to have committed an offence must be assessed by a probation officer, as set out in subsections (2) and (3), unless assessment has been dispensed with in terms of section 41 (3).
A probation officer who has been notified by a police official that a child has been handed a written notice, served with a summons or arrested must assess the child before the child appears at a preliminary inquiry within the time periods provided for in section 43 (3) (b).
A probation officer who has been notified by a police official that a child under the age of 10 years has been dealt with in terms of section 9, must make arrangements to assess the child within seven days of the notification.
determine whether the child has been used by an adult to commit the crime in question; and provide any other relevant information regarding the child which the probation officer may regard to be in the best interests of the child or which may further any objective which this Act intends to achieve.
may only be used for any purpose authorised by this Act, including at a preliminary inquiry; and is inadmissible as evidence during any bail application, plea, trial or sentencing proceedings in which the child appears.
Any person who contravenes the provisions of subsection (1) (a) is guilty of an offence and, if convicted, liable to a fine or to imprisonment for a period not exceeding three months.
The assessment of a child may take place in any suitable place identified by the probation officer, which may include a room at a police station, a magistrate's court, the offices of the Department of Social Development or a One-Stop Child Justice Centre.
The place identified in terms of subsection (1) must, as far as possible, be conducive to privacy.
The child must be present at his or her assessment in terms of this Act.
exempted by the probation officer from attending; or 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.
a researcher; or any other person whose presence is necessary or desirable for the assessment.
A probation officer may, if there is any risk that the child may escape or endanger the safety of the probation officer or any other person, request a police official to be present at an assessment.
A probation officer may, where appropriate, elicit the views of the child in private regarding the presence of any person who is attending the assessment.
A probation officer must make every effort to locate a parent or an appropriate adult or a guardian in order to conclude the assessment of a child and may request a police official to assist in the location of that person.
A probation officer may conclude the assessment of a child in the absence of a parent, appropriate adult or guardian if all reasonable efforts to locate that person have failed or if that person has been notified of the assessment and has failed to attend.
explain to the child the immediate procedures to be followed in terms of this Act; and inquire from the child whether or not he or she intends acknowledging responsibility for the offence in question.
The probation officer may, at any stage during the assessment of a child, consult with any person who may provide information necessary for the assessment, including a prosecutor, police official or diversion service provider.
The probation officer may, at any stage during the assessment, consult privately with any person present.
The probation officer may consult any person who is not at the assessment and who has any information relating to the assessment, but if additional information is obtained, the child must be informed accordingly.
Where a child is accused with another child or other children, the probation officer may conduct the assessment of the children simultaneously if this will be in the best interests of all the children concerned.
The probation officer must encourage the participation of the child during the assessment.
whether a further and more detailed assessment of the child is required in order to consider the circumstances referred to in subsection (3); and an estimation of the age of the child if this is uncertain, as provided for in section 13.
the availability or otherwise of accommodation for the child in question; and the level of security, amenities and features of the centre.
where the social welfare history of the child warrants a further assessment; and the possibility that the child may be admitted to a sexual offenders' programme, substance abuse programme or other intensive treatment programme.
The probation officer must indicate in the assessment report whether or not the child intends to acknowledge responsibility for the alleged offence.
The report referred to in subsection (1) must be submitted to the prosecutor before the commencement of a preliminary inquiry, with due regard to the time periods referred to in section 43 (3) (b).
subject to subsection (3), after an assessment of the child in accordance with Chapter 5; and before a preliminary inquiry as provided for in Chapter 7.
If the child has not been assessed, the prosecutor may dispense with the assessment if it is in the best interests of the child to do so: Provided that the reasons for dispensing with the assessment must be entered on the record of the proceedings by the magistrate in chambers referred to in section 42.
If the prosecutor is of the opinion that the child is in need of care and protection as envisaged by section 150 of the Children's Act, he or she must not divert the matter but refer the matter to a preliminary inquiry for consideration of referring it to a children's court.
In order to decide whether to divert the matter or not, the prosecutor must take into account whether the child has a record of previous diversions.
If the prosecutor decides not to divert a matter in terms of this section, he or she must immediately make arrangements for the child to appear at a preliminary inquiry referred to in Chapter 7.
in the case of a child who is 10 years or older but under the age of 14 years, that criminal capacity is likely to be proved in terms of section 11.
If a matter is diverted in terms of section 41, the child and, where possible, his or her parent, appropriate adult or guardian must appear before a magistrate in chambers, in order to have the diversion option that has been selected by the prosecutor, made an order of court.
The provisions of section 58 apply with the changes required by the context, to a child who fails to comply with any order referred to in subsection (1).
is an informal pre-trial procedure which is inquisitorial in nature; and may be held in a court or any other suitable place.
the referral of the matter to a children's court, where applicable.
the matter has been withdrawn.
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 specified in a written notice in terms of section 18 or a summons in terms of section 19.
A child's appearance at a preliminary inquiry is regarded as his or her first appearance before a lower court, in terms of section 50 of the Criminal Procedure Act.
If a diversion order is likely to be made, a diversion service provider identified by the probation officer should be present at the preliminary inquiry.
The inquiry magistrate may, subject to section 81, exclude any person from attending the preliminary inquiry if that person's presence is not in the best interests of the child or undermines the inquisitorial nature and objectives of a preliminary inquiry.
A preliminary inquiry may proceed in the absence of the child's parent, an appropriate adult, guardian or the probation officer if the inquiry magistrate is satisfied that to do so would be in the best interests of the child.
An inquiry magistrate who proceeds in the absence of the child's parent, an appropriate adult, guardian or probation officer in terms of paragraph (a) , must enter the reasons for the decision on the record of the proceedings.
The inquiry magistrate may permit the attendance of any other person who has an interest in attending or who may contribute to the proceedings.
The inquiry magistrate may subpoena or cause to be subpoenaed any person whose presence is necessary at the preliminary inquiry.
the probation officer.
Section 154 of the Criminal Procedure Act relating to the publication of information that reveals or may reveal the identity of a child or a witness under the age of 18 years applies with the changes required by the context to proceedings at a preliminary inquiry.
No information furnished by any person at a preliminary inquiry in relation to the child may be used against that child in any bail application, plea, trial or sentencing proceedings.
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 inquiry magistrate must conduct the preliminary inquiry in an informal manner by asking questions, interviewing persons at the inquiry and eliciting information, and must keep a record of the proceedings.
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.
If the child has not yet been assessed, the inquiry magistrate may dispense with assessment if it is in the best interests of the child to do so.
must enter the reasons for that decision on the record of the proceedings.
If a preliminary inquiry proceeds in the absence of a probation officer, the probation officer's assessment report must be available at the preliminary inquiry, unless assessment has been dispensed with in terms of subsection (5).
allow the child, the child's parent, an appropriate adult or a guardian or any other person present to ask questions and to raise issues which, in the opinion of the inquiry magistrate, are relevant for the purposes of a preliminary inquiry.
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 satisfied that this will be in the best interests of all the children concerned.
If a joint preliminary inquiry is held in terms of paragraph (a) , different decisions may be made in respect of each child.
enter the prosecutor's confirmation on the record of the proceedings; and inform the child that the matter is being referred to the child justice court to be dealt with in accordance with Chapter 9.
Where an inquiry magistrate has presided over a preliminary inquiry and has heard any information prejudicial to the impartial determination of the matter, the magistrate may not preside over any subsequent proceedings, procedure or trial arising from the same facts.
determine the age of a child in accordance with section 14, if necessary.
take any steps as may be necessary to establish the truth of any statement or the correctness of any submission.
The proceedings of a preliminary inquiry may be postponed for a further period not exceeding 48 hours, in addition to the period referred to in subsection (1) if the postponement is likely to increase the prospects of diversion, after which the preliminary inquiry, if it has not been concluded must, subject to subsection (4), be closed and the prosecutor must refer the matter to a child justice court to be dealt with in terms of Chapter 9.
in order to note a confession or an admission or hold an identity parade or a pointingout, 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.
if a probation officer has, in terms of section 40 (1) (g) , recommended that a further and more detailed assessment of the child be undertaken or makes a recommendation to that effect during the course of the preliminary inquiry and the inquiry magistrate is satisfied that there are reasons justifying such an assessment; or 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 proceedings of a preliminary inquiry may be postponed for a period determined by the inquiry magistrate in the case where the child is in need of medical treatment for illness, injury or severe psychological trauma; or 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.
for the purposes of further investigation of the matter.
An inquiry magistrate may, subject to paragraph (b) , make an order that the matter be diverted in terms of section 52 (5).
An inquiry magistrate may, in the case of a child who is 10 years or older but under the age of 14 years, only make an order that the matter be diverted in terms of paragraph (a) if he or she is satisfied 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 specified date and at the specified time and place.
a child is in need of care and protection referred to in section 150 (1) or (2) of the Children's Act, and it is desirable to deal with the child in terms of sections 155 and 156 of that Act; or the child does not live at his or her family home or in appropriate alternative care; or the child is alleged to have committed a minor offence or offences aimed at meeting the child's basic need for food and warmth, the inquiry magistrate may stop the proceedings and order that the child be brought before a children's court referred to in section 42 of that Act and that the child be dealt with under the said sections 155 and 156.
prevent the child from having a criminal record; and promote the dignity and well-being of the child, and the development of his or her sense of self-worth and ability to contribute to society.
the child and, if available, his or her parent, an appropriate adult or a guardian, consent to diversion; and 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).
considered the views of the victim or any person who has a direct interest in the affairs of the victim, whether or not the matter should be diverted, unless it is not reasonably possible to do so; and 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).
consulted with the police official responsible for the investigation of the matter.
In order to obtain the written indication of the Director of Public Prosecutions in terms of paragraph (a) , the inquiry magistrate or child justice court may postpone the matter.
A Director of Public Prosecutions may not delegate his or her power to decide whether a matter may be diverted in terms of paragraph (a).
The written indication referred to in subsection (3) must be handed to the presiding officer at the preliminary inquiry or child justice court and must form part of the record of the proceedings.
If the prosecutor or a Director of Public Prosecutions indicates that the matter can be diverted in terms of subsection (2) or (3), the prosecutor must request the presiding officer at the preliminary inquiry or child justice court to make an order for diversion in respect of the child, in accordance with the provisions of this Chapter.
If the presiding officer does not divert the matter as provided for in subsection (5), he or she must refer the matter to the child justice court to be dealt with in accordance with Chapter 9.
'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.
where there is no identifiable person, persons or group of persons to whom restitution or compensation can be made, provision of some service or benefit or payment of compensation to a community, charity or welfare organisation or institution.
which may include restriction of the child's movement outside the magisterial district in which the child usually resides without the prior written approval of the probation officer.
14 years or older, the order may, subject to paragraph (b) , not exceed 24 months in duration, if a time period is applicable.
An order exceeding the time period referred to in paragraph (a) may be given, in which case the reasons for exceeding the time period must be entered on the record of the proceedings.
14 years or older, the order may, subject to paragraph (b) , not exceed 48 months in duration, if a time period is applicable.
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 specified date and at a specified 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).
the child's age and developmental needs.
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 an offence referred to in Schedule 2 or 3, level two diversion options set out in section 53 (4) are applicable and may be used in combination, together with any one or more level one diversion options, where appropriate.
In addition to the diversion options set out in section 53, a prosecutor, in terms of section 41 (1), an inquiry magistrate, in terms of section 49 (1) (a) , or a presiding officer in a child justice court, in terms of section 67 (1) (a) , may, where appropriate, after consideration of all available information, develop an individual diversion option which meets the objectives of diversion in terms of section 51 and, where applicable, the minimum standards set out in section 55.
must be sensitive to the circumstances of the victim.
be promoted and developed with a view to equal application and access throughout the country, bearing in mind the special needs and circumstances of children in rural areas and vulnerable groups; and involve parents, appropriate adults or guardians, if applicable.
Subject to section 98 (2), a prosecutor, an inquiry magistrate or a child justice court may only refer a matter for diversion to a diversion programme and diversion service provider that has been accredited in terms of this section and has a valid certificate of accreditation, referred to in subsection (2) (e).
ensure the availability of resources to implement diversion programmes, as prescribed.
measures for the removal of diversion programmes and diversion service providers from the system, where appropriate.
within four months of the closing date for applications referred to in subparagraph (ii), ensure that all applications received are considered and decided on, with preference being given to the finalisation of applications in respect of diversion programmes and diversion service providers which existed at the time of commencement of this Act.
After the expiry of the time limits referred to in paragraph (c) , all applications for accreditation must be dealt with in the manner and within the time limits determined in the policy framework and system for accreditation.
The Cabinet member responsible for social development must issue a prescribed certificate of accreditation to each diversion programme and diversion service provider that is accredited in terms of this section.
A certificate of accreditation referred to in paragraph (e) is valid for a maximum period of four years from the date of accreditation.
A quality assurance process must be conducted in the prescribed manner in respect of each accredited diversion programme and diversion service provider.
The Cabinet member responsible for social development must publish the particulars of each diversion programme and diversion service provider that is accredited or removed from the system in terms of this section in the Gazette within 30 days of accreditation or removal.
the relevant role-players falling under his or her jurisdiction; and the Director-General: Justice and Constitutional Development, who must distribute the publication to all relevant role-players who are involved in the administration of this Act.
When making a diversion order, the magistrate referred to in section 42, inquiry magistrate or child justice court must identify a probation officer or other suitable person to monitor the child's compliance with the diversion order.
If a child fails to comply with the diversion order, the probation officer or person identified in terms of subsection (1) must, in the prescribed manner, notify the magistrate, inquiry magistrate or child justice court in writing of the failure.
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 finding 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.
The procedure set out in subsection (3) does not preclude the application of any other remedy in any other law.
The probation officer or other suitable person referred to in subsection (1) must, when a child has successfully complied with a diversion order, submit a prescribed report to the relevant prosecutor.
If a child fails to comply with any diversion order, the magistrate referred to in section 42, the inquiry magistrate or child justice court may, on being notified of the failure, in the prescribed manner, issue a warrant for the arrest of the child or cause a summons to be issued in respect of the child in terms of section 19, to appear before the magistrate, inquiry magistrate or child justice court.
When a child appears before the magistrate, inquiry magistrate or child justice court pursuant to a warrant of arrest or summons, the magistrate, inquiry magistrate or child justice court must inquire into the reasons for the child's failure to comply with the diversion order and make a determination whether or not the failure is due to the child's fault.
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.
the child justice court, in the case where the matter was diverted by the court in terms of section 67, may record the acknowledgement of responsibility 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.
If a matter has been diverted by a prosecutor in terms of Chapter 6, at a preliminary inquiry in terms of Chapter 7 or by a child justice court in terms of Chapter 9, and the diversion order has been successfully complied with, a prosecution on the same facts may not be instituted.
A diversion order made in terms of this Act does not constitute a previous conviction referred to in the Criminal Procedure Act.
A private prosecution in terms of section 7 of the Criminal Procedure Act may not be instituted against a child in respect of whom the matter has been diverted in terms of this Act.
the diversion option or options as described in the diversion order; and particulars of the child's compliance with the diversion order.
presiding officers, members of the national prosecuting authority referred to in section 4 of the National Prosecuting Authority Act, 1998 (Act 32 of 1998), or other court officials, when considering diversion in terms of Chapter 6, at a preliminary inquiry in terms of Chapter 7, and during proceedings at a child justice court in terms of Chapter 9; and in order to facilitate research relating to the effectiveness of diversion and trends relating to diversion.
Access to the register must be limited, as prescribed, to persons or organisations requiring the information for the purposes set out in subsection (2).
A family group conference is an informal procedure which is intended to bring a child who is alleged to have committed an offence and the victim together, supported by their families and other appropriate persons and, attended by persons referred to in subsection (3) (b) , at which a plan is developed on how the child will redress the effects of the offence.
A family group conference may only take place if both the victim and the child consent.
setting the date, time and place of the conference; and taking steps to ensure that all persons who may attend the conference are timeously notified of the date, time and place of the conference.
The family group conference must be facilitated by a family group conference facilitator, who may be a probation officer or a diversion service provider referred to in section 56 (1).
any person authorised by the family group conference facilitator to attend the conference.
If a family group conference fails to take place on the date and at the time and place set for the conference, the probation officer must convene another conference, as provided for in this section, within 21 days from the date on which it was to take place.
Participants in a family group conference must follow the procedure agreed on by them and may agree to a plan in respect of the child, in accordance with subsection (6).
include a mechanism to monitor the plan.
The family group conference facilitator must record the details of and reasons for any plan agreed to at the family group conference and must furnish a copy of the record to the child and to the probation officer or person referred to in section 57 (1).
In the event of the conference not taking place or the child failing to comply with the plan agreed to at the family group conference, the probation officer or person must notify the magistrate, inquiry magistrate or child justice court in writing of the failure, in which case section 58 applies.
If the participants in a family group conference cannot agree on a plan, the conference must be closed and the probation officer must refer the matter back to the magistrate, inquiry magistrate or child justice court for consideration of another diversion option.
No information furnished by the child at a family group conference may be used in any subsequent criminal proceedings arising from the same facts.
Victim-offender mediation means an informal procedure which is intended to bring a child who is alleged to have committed an offence and the victim together at which a plan is developed on how the child will redress the effects of the offence.
A victim-offender mediation may only take place if both the victim and the child consent.
If a child has been ordered to appear at a victim-offender mediation, section 61 (2), (4), (5), (6), (7), (8) and (9) applies with the changes required by the context.
A probation officer appointed by a magistrate referred to in section 42, an inquiry magistrate or a child justice court must convene the victim-offender mediation.
The victim-offender mediation must be mediated by a probation officer or a diversion service provider referred to in section 56 (1), who or which may regulate the procedure to be followed at the mediation.
Any child whose matter has been referred to the child justice court in terms of section 49 (2), must appear before a court with the requisite jurisdiction to be dealt with in terms of this Chapter.
A child justice court must apply the relevant provisions of the Criminal Procedure Act relating to plea and trial of accused persons, as extended or amended by the provisions as set out in this Chapter and Chapter 10.
Where a child and an adult are charged together in the same trial in respect of the same set of facts in terms of sections 155, 156 and 157 of the Criminal Procedure Act, a court must apply the provisions of this Act in respect of the child; and the Criminal Procedure Act in respect of the adult.
may elicit additional information from any person involved in the proceedings; and must, during all stages of the trial, especially during crossexamination of a child, ensure that the proceedings are fair and not unduly hostile and are appropriate to the age and understanding of the child.
No person may be present at any sitting of a child justice court, unless his or her presence is necessary in connection with the proceedings of the child justice court or the presiding officer has granted him or her permission to be present.
Section 154 (3) of the Criminal Procedure Act applies with the changes required by the context regarding the publication of information.
explain to the child the further procedures to be followed in terms of this Act.
If it appears to the presiding officer during the course of proceedings at a child justice court that a child is a child in need of care and protection referred to in section 50, the court must act in accordance with that section.
Subject to subsections (2) and (5), a child must be assisted by a parent, an appropriate adult or a guardian in proceedings in a child justice court.
If a parent, an appropriate adult or a guardian cannot be traced after reasonable efforts and any further delay would be prejudicial to the best interests of the child or to the administration of justice, the child justice court may dispense with the obligation that the child must be assisted by a parent, an appropriate adult or a guardian.
The parent of a child, an appropriate adult or a guardian who has been warned by an inquiry or a guardian magistrate to attend proceedings in terms of section 49 (2), must attend the proceedings, unless he or she has been exempted in terms of subsection (5).
If a parent, an appropriate adult or a guardian has not been warned to attend as referred to in subsection (3), the child justice court may, at any stage of the proceedings, subpoena or cause to be subpoenaed any parent, appropriate adult or a guardian to appear at the proceedings.
A parent, an appropriate adult or a guardian who has been warned to attend as referred to in subsection (3) or subpoenaed in terms of subsection (4), may apply to the child justice court for exemption from the obligation to attend the proceedings, and if the presiding officer of the child justice court exempts a parent, an appropriate adult or a guardian, he or she must do so in writing.
Where a child is not assisted by a parent, an appropriate adult or a guardian and the child requests assistance, an independent observer may, in exceptional circumstances, be appointed by the presiding officer in the prescribed manner to assist the child.
In the event of a failure to comply with the provisions of subsection (3), the procedure referred to in section 24 (7) (e) applies, with the changes required by the context.
Section 50 (6) (d) of the Criminal Procedure Act applies to a child whose bail application has not been finalised.
has been released, a child justice court may, prior to the commencement of a trial, not postpone the proceedings for a period longer than 60 days at a time.
A child justice court may, at any time before the conclusion of the case for the prosecution, make an order for diversion in respect of a child in accordance with the provisions of section 52 (5).
A child justice court that makes a diversion order must postpone those proceedings, pending the child's compliance with the diversion order and warn the child that any failure to comply with the diversion order may result in any acknowledgment of responsibility being recorded as an admission in the event of the trial being proceeded with as referred to in section 58 (4) (b).
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 satisfied that the child has complied, make an order to stop the proceedings.
A child justice court must, after convicting a child, impose a sentence in accordance with this Chapter.
In order to promote the objectives of sentencing referred to in subsection (1) and to encourage a restorative justice approach, sentences may be used in combination.
the extent to which the harm caused by the offence can be apportioned to the culpability of the child in causing or risking the harm; and whether the child is in need of a particular service provided at a child and youth care centre.
the previous failure of the child to respond to non-residential alternatives, if applicable; and the desirability of keeping the child out of prison.
use imprisonment only as a measure of last resort and only for the shortest appropriate period of time.
For purposes of this section, a victim impact statement means a sworn statement by the victim or someone authorised by the victim to make a statement on behalf of the victim which reflects the physical, psychological, social, financial or any other consequences of the offence for the victim.
The prosecutor may, when adducing evidence or addressing the court on sentence, consider the interests of a victim of the offence and the impact of the crime on the victim, and, where practicable, furnish the child justice court with a victim impact statement provided for in subsection (1).
If the contents of a victim impact statement are not disputed, a victim impact statement is admissible as evidence on its production.
A child justice court imposing a sentence must, subject to paragraph (b) , request a pre-sentence report prepared by a probation officer prior to the imposition of sentence.
A child justice court may dispense with a pre-sentence report where a child is convicted of an offence referred to in Schedule 1 or where requiring the report would cause undue delay in the conclusion of the case, to the prejudice of the child, but no child justice court sentencing a child may impose a sentence involving compulsory residence in a child and youth care centre providing a programme referred to in section 191 (2) (j) of the Children's Act or imprisonment, unless a pre-sentence report has first been obtained.
The probation officer must complete the report as soon as possible but no later than six weeks following the date on which the report was requested.
Where a probation officer recommends that a child be sentenced 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, the recommendation must be supported by current and reliable information, obtained by the probation officer from the person in charge of that centre, regarding the availability or otherwise of accommodation for the child in question.
A child justice court may impose a sentence other than that recommended in the pre-sentence report and must, in that event, enter the reasons for the imposition of a different sentence on the record of the proceedings.
A community-based sentence is a sentence which allows a child to remain in the community and includes any of the options referred to in section 53, as sentencing options, or any combination thereof and a sentence involving correctional supervision referred to in section 75.
request the probation officer concerned to monitor the child's compliance with the relevant order and to provide the court with progress reports, in the prescribed manner, indicating compliance; and warn the child that any failure to comply with the sentence will result in him or her being brought back before the child justice court for an inquiry to be held in terms of section 79.
for victim-offender mediation in terms of section 62; or to any other restorative justice process which is in accordance with the definition of restorative justice.
On receipt of the written recommendations from a family group conference, victimoffender mediation or other restorative justice process, the child justice court may impose a sentence by confirming, amending or substituting the recommendations.
If the child justice court does not agree with the terms of the plan made at a family group conference, victim-offender mediation or other restorative justice process, the court may impose any other sentence provided for in this Chapter and enter the reasons for substituting the plan with that sentence on the record of the proceedings.
request the probation officer concerned to monitor the child's compliance with the sentence referred to in subsection (2) and to provide the court with progress reports, in the prescribed manner, indicating compliance; and warn the child that any failure to comply with the sentence will result in the child being brought back before the child justice court for an inquiry to be held in terms of section 79.
inquire into the ability of the child or his or her parents, an appropriate adult or a guardian to pay the fine, whether in full or in instalments; and consider whether the failure to pay the fine may cause the child to be imprisoned.
any other option that the child justice court considers to be appropriate in the circumstances.
request the probation officer concerned to monitor the compliance with the sentence and to provide the court with progress reports, in the prescribed manner, indicating compliance; and warn the child that any failure to comply with the sentence will result in the child being brought back before the child justice court for an inquiry to be held in terms of section 79.
(h) or (i) of the Criminal Procedure Act; or in the case of a child who is under the age of 14 years, in terms of section 276 (1) (h) of the Criminal Procedure Act.
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 five years or for a period which may not exceed the date on which the child in question turns 21 years of age, whichever date is the earliest.
(a) A child justice court that convicts a child of an offence referred to in Schedule 3; and which, if committed by an adult, would have justified a term of imprisonment exceeding ten years, 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 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.
order the release of the child, with or without conditions.
If a sentence has been confirmed 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 111 of 1998).
A child who is sentenced in terms of this section, must be taken in the prescribed manner to the centre specified 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 specified 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.
Where a presiding officer has sentenced a child in terms of this section, he or she must cause the matter to be retained on the court roll for one month, and must, at the re-appearance of the matter, inquire whether the child has been admitted to the child and youth care centre.
If the child has not been admitted to a child and youth care centre, the presiding officer must hold an inquiry and take appropriate action, which may, after consideration of the evidence recorded, include the imposition of an alternative sentence, unless the child has been sentenced in terms of subsection (3).
If the presiding officer finds that the failure to admit the child is due to the fault of any official, he or she must cause a copy of the finding to this effect to be brought to the attention of the appropriate authority to take the necessary action.
when sentencing a child who is 14 years or older at the time of being sentenced for the offence, must only do so as a measure of last resort and for the shortest appropriate period of time.
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 105 of 1997) must, if convicted, be dealt with in accordance with the provisions of section 51 of that Act.
Schedule 1, if the child has a record of relevant previous convictions and substantial and compelling reasons exist for imposing a sentence of imprisonment.
A child referred to in subsection (3) may be sentenced to a sentence of imprisonment for a period not exceeding 25 years.
A child justice court imposing a sentence of imprisonment must antedate the term of imprisonment by the number of days that the child has spent in prison or child and youth care centre prior to the sentence being imposed.
In compliance with the Republic's international obligations, no law, or sentence of imprisonment imposed on a child, including a sentence of imprisonment for life, may, directly or indirectly, deny, restrict or limit the possibility of earlier release of a child sentenced to any term of imprisonment.
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.
(a) to (m) , (q) and (7) of this Act; and a requirement that the child or any other person designated by the child justice court must again appear before that child justice court on a date or dates to be determined by the child justice court for a periodic progress report.
A child justice court that has postponed the passing of sentence in terms of subsection (1) on one or more conditions must request the probation officer concerned to monitor the child's compliance with the conditions imposed and to provide the court with progress reports indicating compliance.
If a probation officer reports to a child justice court that a child has failed to comply with a community-based sentence imposed in terms of section 72, or a restorative justice sentence imposed in terms of section 73, or has failed to pay a fine, restitution or compensation provided for in section 74, the child may, in the prescribed manner, be brought before the child justice court which imposed the original sentence for the holding of an inquiry into the failure of the child to comply.
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 confirm, amend or substitute the sentence.
uphold the highest standards of ethical behaviour and professional conduct.
If a presiding officer is of the opinion that a legal representative at any stage during the conduct of any proceedings under this Act, acted contrary to subsection (1), he or she must record his or her displeasure by way of an order which includes an appropriate remedial action or sanction.
in the case of an advocate, the controlling body of which the advocate is a member, of the order.
Nothing in this Act precludes a child from being represented by a legal representative at a preliminary inquiry.
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 22 of 1969).
No plea may be taken until a child referred to in subsection (1) has been granted a reasonable opportunity to obtain a legal representative or a legal representative has been appointed.
No child appearing before a child justice court may waive his or her right to legal representation.
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 22 of 1969), be appointed by the Legal Aid Board to assist the court in the prescribed manner.
16 years or older but under the age of 18 years and has been sentenced to any form of imprisonment that was not wholly suspended, he or she may note the appeal without having to apply for leave in terms of section 309B of that Act in the case of an appeal from a lower court and in terms of section 316 of that Act in the case of an appeal from a High Court: Provided further that the provisions of section 302 (1) (b) of that Act apply in respect of a child who duly notes an appeal against a conviction, sentence or order as provided for in section 302 (1) (a) of that Act.
A child referred to in subsection (1) 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.
(j) of the Children's Act, the sentence is subject to review in terms of section 304 of the Criminal Procedure Act by a judge of the High Court having jurisdiction, irrespective of the duration of the sentence.
The provisions of subsection (1) do not apply if an appeal has been noted in terms of section 84.
the review of a sentence as provided for in section 307 of the Criminal Procedure Act; or the appeal against a sentence as provided for in sections 309(4) and 316 of the Criminal Procedure Act, the provisions of section 25 of this Act, dealing with the release of children on bail, apply.
10 years has elapsed after the date of conviction in the case of an offence referred to in Schedule 2, unless during that period the child is convicted of a similar or more serious offence.
In the case of a dispute or uncertainty as to whether another offence of which a child is convicted during the period is similar to or more serious than the offence in respect of which a record exists, the opinion of the Cabinet member responsible for the administration of justice prevails.
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 certificate of expungement, directing that the conviction and sentence of the child be expunged, if the Director-General is satisfied that the child complies with the criteria set out in subsection (1).
the period of five 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 satisfied that the child otherwise complies with the criteria set out in subsection (1).
An applicant to whom a certificate of expungement has been issued as provided for in subsection (2) or (3) must, in the prescribed manner, submit the certificate to the head of the Criminal Record Centre of the South African Police Service, to be dealt with in accordance with subsection (5).
The head of the Criminal Record Centre of the South African Police Service or a senior person or persons at the rank of Director or above, employed at the Centre, who has or have been authorised, in writing, by the head of the Centre to do so, must expunge the criminal record of a child if he or she is furnished by the applicant with a certificate of expungement as provided for in subsection (2) or (3).
The head of the Criminal Record Centre of the South African Police Service must, on the written request of an applicant, in writing, confirm that the criminal record of the child has been expunged.
without the authority of a certificate of expungement as provided for in this section; or intentionally or in a grossly negligent manner, expunges the criminal record of any child, is guilty of an offence and is, if convicted, liable to a fine or to a sentence of imprisonment for a period not exceeding 10 years or to both a fine and the imprisonment.
The Director-General: Social Development must, in the prescribed manner, expunge the record of any diversion order made in respect of a child in terms of this Act on the date on which that child turns 21 years of age, unless the child has been convicted of any other offence before that date or has failed to comply with the diversion order in question.
The Cabinet member responsible for the administration of justice may, after due consideration of any proposal put forward by the Rules Board for Courts of Law, established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), make and implement rules in respect of any aspect of this Act.
The Cabinet member responsible for the administration of justice, in consultation with the Cabinet members responsible for social development, safety and security and correctional services, may establish centres to be known as One-Stop Child Justice Centres.
Each Cabinet member referred to in subsection (1) is severally responsible for the provision of resources and services by their respective departments as may be agreed to enable a One-Stop Child Justice Centre to function effectively.
The objective of a One-Stop Child Justice Centre is to promote co-operation between government departments, and between government departments and the nongovernmental sector and civil society, to ensure an integrated and holistic approach in the implementation of this Act.
Each One-Stop Child Justice Centre must establish a management committee, consisting of senior officials of the Departments of Justice and Constitutional Development, Social Development and Correctional Services and the South African Police Service, the Legal Aid Board and other relevant organs of state.
The management committee may invite persons to its meetings, when necessary, for technical assistance, support or advice.
The management committee referred to in paragraph (a) must meet at least once every three months.
increase or reduce the area of jurisdiction of each One-Stop Child Justice Centre; and withdraw or vary any notice under this subsection.
any other relevant facility.
If an inquiry magistrate, child justice court or any other court makes a determination of age as provided for in section 14 or 15 that is not supported by a valid birth certificate, identity document or passport, a copy of the record of the determination must be forwarded to the Department of Home Affairs to consider the issuing of an identification document to the person concerned.
The Department of Home Affairs must report back to the inquiry magistrate or child justice court, the probation officer in question, the child and his or her parent, appropriate adult or guardian, in the manner prescribed by the Cabinet member responsible for the administration of justice, in consultation with the Cabinet member responsible for home affairs, that the age has been registered.
Section 297A of the Criminal Procedure Act applies, with the changes required by the context, in the case of any patrimonial loss suffered by any person as a result of a delict committed by a child during the execution of a diversion order made in terms 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 30 5(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.
enhance service delivery as envisaged in this Act by the development of a plan within available resources.
review the policy framework within three years after its publication in the Gazette and at least once every five 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).
There is hereby established a Committee to be known as the Intersectoral Committee for Child Justice.
the Director-General: Education; and the Director-General: Health.
A member of the Intersectoral Committee may designate a senior official in his or her Department as an alternate to attend a meeting of the Committee in his or her place.
The Intersectoral Committee must designate one of its members as deputy chairperson of the Intersectoral Committee, and when the chairperson is not available, the deputy chairperson acts as chairperson.
If neither the chairperson nor deputy chairperson is available, the members present at a meeting must elect a person from among their number to preside at that meeting.
representatives from the non-governmental sector and civil society to its meetings with the view to fostering co-operation between government and civil society in the implementation of this Act; and persons to its meetings, when necessary, for technical assistance, support or advice.
meet at least twice every year on a date and at the time and place determined by the chairperson; and report in writing to the Cabinet member responsible for the administration of justice within one month of every meeting.
any other relevant factor.
The Intersectoral Committee may make recommendations to the Cabinet member responsible for the administration of justice with regard to the amendment of the national policy framework.
The Cabinet member responsible for the administration of justice must, on receipt of the report referred to in subsection (4), submit the report to Cabinet for approval, and thereafter to Parliament for consideration.
every year thereafter submit those reports to Parliament.
a recommendation based on the analysis as to whether the minimum age of criminal capacity should remain at 10 years as provided for in section 7 (1) or whether the minimum age of criminal capacity should be raised.
The Cabinet member responsible for the administration of justice, after consultation, where appropriate, with the Cabinet members responsible for social development, safety and security, education, correctional services and health, may make regulations regarding any matter which is required or permitted by this Act to be prescribed by regulation or any other matter which is necessary or expedient to prescribe in order to achieve the objects of this Act.
The regulations referred to in subsection (1) must be tabled in Parliament for approval.
determine the persons or the category or class of persons who are competent to conduct the evaluation of the criminal capacity of a child referred to in section 11 (3); and in consultation with the Cabinet member responsible for finance, determine the allowances and remuneration of those persons.
determining the exceptional circumstances in which a matter may be diverted, as provided for in section 52 (3).
The first directives so issued must be submitted to Parliament before the commencement of this Act.
Any directive issued under this subsection may be amended or withdrawn.
The National Director of Public Prosecutions must develop training courses which the Gazette.
provide for and promote the use of uniform norms, standards and procedures, to ensure that all prosecutors are able to deal with child justice matters in an appropriate, efficient and sensitive manner.
the issuing of a certificate expunging the criminal record of a child referred to in section 87 (5) (b).
submit any national instructions provided for in this subsection to Parliament 30 days before they are issued; and after the expiry of the 30-day period publish them in the Gazette.
The first national instructions so issued must be submitted to Parliament before the commencement of this Act.
Any national instructions issued under this subsection may be amended or withdrawn.
provide for and promote the use of uniform norms, standards and procedures, to ensure that all police officials are able to deal with child justice matters in an appropriate, efficient and sensitive manner.
The Director-General: Social Development or any person designated by him or her must keep a register, as prescribed, of children in respect of whom a decision has been made and recorded by a probation officer in terms of section 9 (6).
particulars of the child's compliance with the decision, if applicable.
Access to the register must be limited, as prescribed, to persons or organisations requiring the information for the purposes of record-keeping, monitoring and research.
the level of security offered by each centre.
provide for and promote the use of uniform norms, standards and procedures, to ensure that all officials in their departments are able to deal with child justice matters in an appropriate, efficient and sensitive manner.
The directives or national instructions provided for in this section must ensure that adequate steps are taken against any functionary who fails to comply with any duty imposed on him or her in terms of this Act.
If Parliament is required in terms of any provision of this Act to approve any regulations, directives or national instructions, Parliament must do so within six months of those being tabled in Parliament, failing which they will be deemed to have been approved by Parliament.
All criminal proceedings in which children are accused of having committed an offence, which were instituted prior to the commencement of this Act and which are not concluded before the commencement of this Act, must be continued and concluded in all respects as if this Act had not been passed.
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 specified in Schedule 4 are hereby repealed or amended to the extent set out in the third column of that Schedule.
The Cabinet member responsible for the administration of justice may amend the amounts determined in Schedules 1, 2 and 3 of this Act by notice in the Gazette.
Any amount amended as provided for in paragraph (a) must, before publication in the Gazette , be submitted to and approved by Parliament.
This Act is called the Child Justice Act, 2008, and takes effect on 1 April 2010, or any earlier date fixed by the President by proclamation in the Gazette.
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 amount involved does not exceed R2 500.
2 Fraud, extortion, forgery and uttering or an offence referred to in the Prevention and Combating of Corrupt Activities Act, 2004 (Act 12 of 2004), where the amount involved does not exceed R1 500.
3 Malicious injury to property, where the amount involved does not exceed R1 500.
4 Common assault where grievous bodily harm has not been inflicted.
6 Contempt of court.
12 Public Indecency.
13 Engaging sexual services of persons 18 years or older, referred to in section 11 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007).
14 Bestiality, referred to in section 13 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
15 Acts of consensual sexual penetration with certain children (statutory rape) and acts of consensual sexual violation with certain children (statutory sexual assault), referred to in and subject to sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
16 Any offence under any law relating to the illicit possession of dependence producing drugs, other than any offence referred to in Item 17 of this Schedule, where the quantity involved does not exceed R500 in value.
17 Any other statutory offence where the maximum penalty determined by that statute is imprisonment for a period of no longer than three months or a fine for that period, calculated in accordance with the Adjustment of Fines Act, 1991 (Act 101 of 1991).
18 Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.
1 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 amount involved exceeds R2 500.
2 Fraud, extortion, forgery and uttering or an offence referred to in the Prevention and Combating of Corrupt Activities Act, 2004 (Act 12 of 2004), where the amount involved exceeds R1 500.
3 Robbery, other than robbery with aggravating circumstances.
4 Malicious injury to property, where the amount involved exceeds R1 500.
5 Assault, involving the infliction of grievous bodily harm.
6 Public violence.
7 Culpable homicide.
9 Housebreaking, whether under the common law or a statutory provision, with the intent to commit an offence.
10 Administering poisonous or noxious substance.
13 Sexual assault, compelled sexual assault or compelled self-sexual assault referred to in sections 5, 6 and 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007), respectively, where grievous bodily harm has not been inflicted.
14 Compelling or causing persons 18 years or older to witness sexual offences, sexual acts or self-masturbation, referred to in section 8 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
15 Exposure or display of or causing exposure or display of child pornography or pornography as referred to in sections 10 or 19 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
16 Incest and sexual acts with a corpse, referred to in sections 12 and 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
17 Exposure or display of or causing exposure or display of genital organs, anus or female breasts to any person ('flashing'), referred to in sections 9 or 22 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
18 Violating a dead body or grave.
19 Defeating or obstructing the course of justice.
20 Any offence referred to in section 1 or 1A of the Intimidation Act, 1982 (Act 72 of 1982).
21 Any offence relating to criminal gang activities referred to in Chapter 4 of the Prevention of Organised Crime Act, 1998 (Act 121 of 1998).
22 Any contravention of section 2 of the Animals Protection Act, 1962 (Act 71 of 1962).
23 Any offence under any law relating to the illicit possession of dependence producing drugs, other than any offence referred to in Item 24 of this Schedule, where the quantity involved exceeds R500 but does not exceed R5 000 in value.
24 Any other statutory offence where the maximum penalty determined by that statute is imprisonment for a period exceeding three months but less than five years or a fine for that period, calculated in accordance with the Adjustment of Fines Act, 1991 (Act 101 of 1991).
25 Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.
4 Extortion, where there are aggravating circumstances present.
7 Rape or compelled rape referred to in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007), respectively.
8 Sexual assault, compelled sexual assault or compelled self-sexual assault referred to in sections 5, 6 and 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, involving the infliction of grievous bodily harm.
9 Sexual exploitation of children, sexual grooming of children and using children for or benefiting from child pornography, referred to in sections 17, 18 and 20 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
the sexual exploitation or sexual grooming of a child referred to in section 17 or 18 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; or the use of a child for purposes of child pornography or in order to benefit in any manner from child pornography, as provided for in section 20 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
11 Compelling or causing children to witness sexual offences, sexual acts or selfmasturbation referred to in section 21 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
12 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 benefiting therefrom, referred to in sections 23, 24, 25, and 26 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.
14 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 33 of 2004).
racketeering activities referred to in Chapter 2; or the proceeds of unlawful activities referred to in Chapter 3, of the Prevention of Organised Crime Act, 1998 (Act 121 of 1998).
16 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 27 of 2002).
the possession of firearms, explosives or armament.
18 Any offence referred to in section 13 (f) of the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992).
CHILD JUSTICE ACT 75 OF 2008 Page 70 of 101 19 Any offence of a serious nature if it is alleged that the offence was committed by a person, group of persons, syndicate or any enterprise, acting in the execution or furtherance of a common purpose or conspiracy.
20 Any offence under any law relating to the illicit possession of dependence producing drugs, other than an offence referred to in Item 21 of this Schedule, where the quantity involved exceeds R5 000 in value.
21 Any other statutory offence where the maximum penalty determined by that statute is imprisonment for a period exceeding five years or a fine for that period, calculated in accordance with the Adjustment of Fines Act, 1991 (Act 101 of 1991).
22 Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.
'(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 297 of the Criminal Procedure Act, 1977.'.
CHILD JUSTICE ACT 75 OF 2008 Page 71 of 101 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.'.
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.'.
Amendment of section 50 by the deletion of subsections (4) and (5).
'(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 specified 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).'
CHILD JUSTICE ACT 75 OF 2008 Page 72 of 101 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.
'(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 by the deletion of paragraph (b) of subsection (1) and paragraph (b) of subsection (2).
'(3) 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.'.
Repeal of section 74.
CHILD JUSTICE ACT 75 OF 2008 Page 73 of 101 be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof.'
Except where otherwise expressly provided by this Act or the Child Justice Act, 2008, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he or she has been so convicted.'.
Repeal of section 254.
if the court is of the opinion that the offence justifies the imposing of imprisonment, with or without the option of a fine, for a period not exceeding five years; and for a fixed period not exceeding five years.'.
Repeal of section 290.
Repeal of section 291.
'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 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 child and youth care centre providing a programme contemplated in section 191 (2) (j) of the Children's Act, 2005 (Act 38 of 2005)), exceeds a period of three months, if imposed by a judicial officer 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;'.
(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) Subject to section 84 of the Child Justice Act, 2008, any accused, who wishes to note an appeal against any conviction or against any resultant sentence or order of a lower court, must apply to that court for leave to appeal against that conviction, sentence or order.'.
' (a) An accused, other than a child contemplated in the Child Justice Act, 2008, 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.'.
' (a) Subject to section 84 of the Child Justice Act, 2008, any accused 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.'
CHILD JUSTICE ACT 75 OF 2008 Page 76 of 101 paragraph (c) of subsection (1).
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.'.
'assessment' means a process of developmental assessment or evaluation of a person, the family circumstances of the person, the nature and circumstances surrounding the alleged commission of an offence, its impact on the victim, the attitude of the alleged offender in relation to the offence and any other relevant factor and, in the case of a child, also means an assessment as contemplated in the Child Justice Act, 2008;'.
'diversion' means diversion from the formal court procedure with or without conditions and, in the case of a child, also means diversion as contemplated in the Child Justice Act, 2008;'.
'diversion programme' means a programme within the context of the family and community in respect of a person who is alleged to have committed an offence; and which is aimed at keeping that person away from the formal court procedure, and in the case of a child also means a diversion programme as contemplated in the Child Justice Act, 2008;'.
'family group conferencing' means a gathering convened by a probation officer as a diversion or sentencing option to devise a restorative justice response to the offence and, in the case of a child, also means a family group conference contemplated in the Child Justice Act, 2008;'.
Amendment of section 3 (e) and (f) by the substitution for the expression 'reform school' wherever it appears of the expression 'child and youth care centre providing a programme contemplated in section 191 (2) (j) of the Children's Act, 2005 (Act 38 of 2005)'.
(3) (a) If a probationer, other than a probationer who is subject to the provisions of the Child Justice Act, 2008, fails to comply with the conditions on which he has been placed under the supervision of a probation officer, a probation officer may in writing apply to a magistrate or justice of the peace for the issue of a warrant for the arrest of such probationer.
If a warrant referred to in paragraph (a) is issued, the probationer concerned may be arrested by a peace officer as defined in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977), and shall be dealt with in accordance with the provisions of section 50 of the said Act, and thereupon the provisions of section 276A (4) of the said Act shall apply mutatis mutandis.
CHILD JUSTICE ACT 75 OF 2008 Page 78 of 101 of a probation officer, the provisions of sections 24 (7) and 58 of that Act apply.
The repeal of section 4B.
'foster parent' in section 1 by the substitution for the expression 'section 290 of the Criminal Procedure Act, 1977' by the expression 'section 72 or 76 of the Child Justice Act, 2008'.
'(4) The Commissioner may, in consultation with a provincial head of education, or a provincial head of social development, as the case may be, transfer a sentenced child to a child and youth care centre providing a programme contemplated in section 191 (2) (j) of the Children's Act, 2005 (Act 38 of 2005), and from the date of such transfer the provisions of section 76 of the Child Justice Act, 2008, will apply.'.
section 50 (1); and section 52 (2) (b) , by the substitution for the expression 'section 71 of the Criminal Procedure Act' wherever it appears in those provisions of the expression 'section 24 (4) (d) or 26 of the Child Justice Act, 2008'.
' (e) those placed under the supervision of a correctional official in terms of section 62 (f) of the Criminal Procedure Act or section 24 (4) (d) , 75 or 76 of the Child Justice Act, 2008.'.
This Schedule contains an exposition of the interface between the Criminal Procedure Act, 1977, and the Child Justice Act, 2008. It provides guidelines for persons involved in the application of the Child Justice Act. This Schedule does not form part of the Act and does not have the force of law . It is intended only to provide guidance and clarity in respect of the procedures contained in both Acts.
This Schedule should be seen in the context that the Child Justice Act creates numerous new procedures which are not evident from the exposition. The blank spaces in the third column indicate those sections of the Criminal Procedure Act (the CPA) which have not been affected by the Child Justice Act (the CJA) and which would still apply in respect of children.
Moreover, section 4 of the Child Justice Act provides that the Criminal Procedure Act applies in relation to children, except in so far as the Child Justice Act provides for amended, additional or different procedures.
Subsections (1) and (2) amended by Schedule 4 CJA (item (l) under amendments to the CPA).