LEGAL PROTECTIONS OF CHILD OFFENDERS IN SOUTH AFRICA

Introduction:

Section 28 of the Constitution of the Republic of South Africa (“the Constitution”) enshrines the right to children having their best interests being kept open at all times.[1] This means to say that children’s rights are to be considered first before anything as they are incapable of safeguarding those rights themselves. Thus, the state and all person in South Africa have a duty to ensure that children’s rights are never infringed but what happens when the same persons protected by this provision are the ones infringing on other persons’ rights? This article assesses South Africa’s legal protection of juvenile offenders and how its legal system addresses the conflict between their best interests and society’s own.

Background information:

Section 1 of the Child Justice Act (“the Act”) defines a child as anyone under 18 and in some instances, under 21 but is alleged to have committed a crime when they were still under the age of 18.[2] S28 of the Constitution and S7 of the Children’s Act emphasise the importance of keeping children’s interests paramount as their development is a reflection of the country’s future.[3] However, there has been a concerning increase in the number of child offenders being reported at a time. Benida Phillips points out the increasing number of reports of violent crimes being committed by children and suggests that this statistic provides an opportunity to address social ills in communities.[4] This begs the question as to how the crisis is being perpetuated in courts and through legislation.

Main body:

Sentencing:

Firstly, S28(1)(g) of the Constitution enshrines the right of a child to only be detained as a measure of last resort.[5] This means to say that a child’s detention is to be avoided unless all other measures have been exhausted. This poses an ethical problem because it sets apart a strict distinction between juvenile and adult sentencing.

In Weber v Santam Versekeringsmaatskappy Bpk, the court warns against ‘placing an old head on young shoulders’.[6] Courts make it clear that children are not to be treated the same as adults in sentencing.

In Centre for Child Law v Minister of Justice,[7] the court made it clear that this distinction was drawn for practical reasons which include the recognition that children’s actions may be a result of immature judgement, underdeveloped character, youthful vulnerability to error impulse or influence. Placing them on par with adults who are not as susceptible to the abovementioned factors would be harsh and strip children of the hope and leeway afforded to them by S28 of the Constitution.[8]

However, this does not mean that children have a free get-out-of-jail card. A duty is then placed on courts to ensure that justice is still promoted in the presence of such legal protections.S69(1) of the Act ensures this by stating that the sentencing of child offenders should leave room for the recognition of accountability, promotion of subjective considerations for all interested persons, promotion of reintegration of the child into their respective communities while ensuring all services necessary for that to occur are present and finally, that detainment is still the last resort approached.[9]

Age restrictions:

S7 of the Act stipulates that children under 12 years cannot be prosecuted and that children aged 12 to 14 years are rebuttably presumed to be criminally incapable.[10]The purpose with which this provision was drafted was to account for the psychological differences between children and adults who commit crimes. It serves the purpose of giving child offenders a chance to mature and come to their full capabilities in differentiating between right and wrong. However, there are instances where this provision fails to fulfil that purpose.

In S v SN,[11] the accused had been convicted of housebreaking with intent to steal and theft. Six years following this conviction the accused had been accused of more serious offences. The court in this case mentioned that the law worked to offer mercy where due and the accused had failed to show gratitude for that mercy and had displayed disrespect for women and the law. Although the case does not delve deeply into this manner, it leaves one wondering if child offenders being protected by provisions such as those in S7 of the Act serves the rest of society in the way the drafters intended it to.

Duties of the State and everyone in protecting child offenders:

Beyond the age and sentencing protections, there are rights and alternative measures the court must consider before sentencing a child offender. These measures and duties are discussed in the following provisions of the Act:

• S82 of the Act provides that every child has the right to be provided with legal representation even if it is at the expense of the State in certain instances.[12]
• S63 of the Act details that a child justice court has a duty to ensure that the child’s best interests are upheld which includes ensuring that the child’s privacy is kept and that they proceedings are fair and appropriate for the child’s understanding.[13]
• S41(1) of the Act provides that a prosecutor may divert a matter regarding a child offender as an alternative measure.[14]
• Finally, s34 places a duty on a probation officer to first assess the child who is alleged to have committed an offence before the institution of proceedings.[15]

Discussion:

Therefore, legislation sets apart the need for justice and the protection of child offenders’ rights as an important point of discussion. The goal is to ensure society’s rights are protected without the children’s lives being permanently ruined. This conflict can be addressed through the judiciary’s application of longer sentencing where absolutely necessary as affirmed in the Centre for Child Law case. Courts should also approach justice subjectively. By rejecting uniformity, courts can better suit the pursuit of justice to the needs of society while ensuring child offenders are owed the protection they deserve. By investing in rehabilitative and restorative justice, courts could bridge the gap between leniency and justice in child justice law.

Conclusion:

To conclude, the legal system in South Africa is framed in a manner that honours keeps children’s interests open. The conflict arises where society’s interests are not on par with child offenders’ interests. Looking at the landscape of the increasing crime rate, courts then have a duty to resolve this by allowing longer sentences, approaching justice subjectively, rejecting uniformity and investing in rehabilitative and restorative justice. Thus, child offenders may be protected without risking the public’s right to a just and fair legal system.

Reference(S):

Articles:

1. Benida Phillips, ‘Focus on child-on-child violence’ Diamond Field Advertiser (Kimberly, 06 June 2019) 5.

Cases:

2. Weber v Santam Versekeringsmaatskappy Bpk [1983] SA 381, [1983] 1 SA 381 (A) [400E-G].
3. Centre for Child Law v Minister of Justice and Constitutional Development and Others (National Institute for Crime Prevention and the Re-Integration of Offenders as Amicus Curiae) [2009] SACR 477, [2009] 2 SACR 477.
4. S v SN [2016] JOL 36959, [2016] JOL 36959 (GSJ).

Legislation:

5. Constitution of the Republic of South Africa, 1996.
6. Child Justice Act 75 of 2008.
7. Children’s Act 38 of 2005.

[1] Constitution of the Republic of  South Africa, 1996.

[2] Child Justice Act 75 of 2008.

[3] Children’s Act 38 of 2005.

[4] Benida Phillips, ‘Focus on child-on-child violence’ Diamond Field Advertiser (Kimberly, 06 June 2019) 5.

[5] Constitution, s28(1)(g).

[6] Weber v Santam Versekeringsmaatskappy Bpk [1983] SA 381, [1983] 1 SA 381 (A) [400E-G].

[7] Centre for Child Law v Minister of Justice and Constitutional Development and Others (National Institute for Crime Prevention and the Re-Integration of Offenders as Amicus Curiae) [2009] SACR 477, [2009] 2 SACR 477.

[8] The Constitution, s28.

[9] Child Justice Act, s69(1).

[10] Child Justice Act, s7.

[11] S v SN [2016] JOL 36959, [2016] JOL 36959 (GSJ).

[12] Child Justice Act, s82.

[13] Child Justice Act, s63.

[14] Child Justice Act, s41(1).

[15] Child Justice Act, s34.