Authored By: Nontobeko Msibi
University of South Africa
South Africa’s child justice system is built on a progressive legal foundation: the Child Justice Act 75 of 2008 prioritises diversion and restorative justice, the Constitution mandates detention only as a measure of last resort, and the courts have developed a robust body of child-centred jurisprudence. Yet empirical evidence suggests that rehabilitation programs are failing to achieve their statutory goals. This article assesses whether those programs effectively reduce reoffending and reintegrate young offenders, and argues that the system faces a tripartite crisis demanding urgent systemic reform.
Introduction
The tragic case of Wandisile Ntaka, a 17-year-old sentenced to effective imprisonment for rape,1 illustrates the profound tensions in South Africa’s child justice system: between punishment and rehabilitation, and between constitutional ideals and harsh realities. Despite section 28 of the Constitution mandating detention only as a measure of last resort,2 and the transformative Child Justice Act 75 of 2008 giving effect to international law obligations under the UN Convention on the Rights of the Child,3 empirical evidence suggests rehabilitation programs are failing to achieve their statutory goals.4
This article assesses whether rehabilitation programs for child offenders under the Child Justice Act effectively reduce reoffending and reintegrate youth. It argues that current programs face a tripartite crisis:
- Gang prevalence in correctional schools undermines Ubuntu-based rehabilitation.5
- Recidivism rates remain disturbingly high.6
- Courts inconsistently apply child-centred sentencing principles despite robust Constitutional Court jurisprudence.7
The article concludes that meaningful rehabilitation requires systemic reform addressing gang activity, adequate teacher training, and consistent judicial application of child justice principles.
Legislative Framework
The Child Justice Act 75 of 2008 constitutes the primary legislative framework for child offenders in South Africa. Section 2 prioritises diversion and restorative justice, while section 3 enshrines detention as a measure of last resort.8 The Act’s preamble explicitly acknowledges obligations under the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.9 Section 28(1)(g) of the Constitution reinforces that children are not to be detained except as a measure of last resort, and section 28(2) mandates that a child’s best interests are of paramount importance.10
Constitutional Court Jurisprudence
The Constitutional Court has developed robust child-centred jurisprudence. In Centre for Child Law v Minister of Justice, the Court held that minimum sentences cannot apply to children aged 16 and 17, emphasising proportionality and detention as a last resort.11 In S v M, the Court required sentencing courts to ascertain primary caregiver status and consider children’s best interests independently.12 However, in S v S, the Court divided on whether sufficient inquiry into alternative care had occurred, with Khampepe J dissenting that courts must conduct “more robust child-centred enquiries.”13
Implementation Challenges
Despite progressive legal frameworks, implementation failures persist. Gangs in correctional schools undermine Ubuntu-based rehabilitation, with research showing that gang membership remains prevalent due to young offenders’ need for protection.14 Recidivism rates remain high: empirical studies demonstrate that 60% of family group conferencing interventions showed no treatment effect on reoffending.15 Judicial application remains inconsistent, with lower courts failing to apply child-centred principles uniformly.16
Reform Requirements
Effective reform requires addressing gang activity through positive management strategies and supervised programmes.17 Teachers in correctional schools require adequate training to instil Ubuntu values and manage behavioural challenges.18 Courts must consistently apply Constitutional Court jurisprudence, ensuring individualised sentencing and proper inquiry into children’s circumstances.19 Legislative amendments should strengthen oversight mechanisms and mandate regular programme evaluation to reduce recidivism and align outcomes with constitutional rights.20
Conclusion
South Africa has the legal framework to get child justice right—the Constitution, the Child Justice Act, and a series of progressive court judgments all point in the right direction. Yet something is going wrong in practice. Young offenders are still leaving correctional facilities only to reoffend. Gangs, not Ubuntu, are teaching them how to survive.21 And despite clear guidance from our highest courts, sentencing is not always as child-centred as it should be.22 The case of Wandisile Ntaka reminds us that children who commit serious crimes cannot simply avoid accountability, but neither should they be written off.23
If we truly believe that a child is different from an adult—more capable of change, more deserving of hope—then we must do better. That means facing the hard realities of gang culture, training those who work with young offenders, and ensuring that every court puts children’s best interests first.24 The law has laid the foundation. Now the work of building a system that actually rehabilitates must begin.
Endnote(S):
1 S v Ntaka [2008] JOL 21579 (SCA) [1].
2 Constitution of the Republic of South Africa, 1996, s 28(1)(g).
3 S v FM (Centre for Child Law as Amicus Curiae) [2012] 4 All SA 351 (GNP) [18].
4 W Bradshaw and D Roseborough ‘An Empirical Review of Family Group Conferencing in Juvenile Offenses’ (2005) 56 Juv & Fam Ct J 21, 24.
5 F Makhuranne and MD Magano ‘The Use of Ubuntu in Promoting the Wellness of Juvenile Offenders in South African Correctional Schools’ (2022) 170, 180–81.
6 W Bradshaw and D Roseborough ‘An Empirical Review of Family Group Conferencing in Juvenile Offenses’ (2005) 56 Juv & Fam Ct J 24.
7 S v S (Centre for Child Law as Amicus Curiae) 2011 (7) BCLR 740 (CC) [48] (Khampepe J dissenting); Centre for Child Law v Minister of Justice and Constitutional Development 2009 (2) SACR 477 (CC) [28].
8 Child Justice Act 75 of 2008, ss 2–3.
9 Child Justice Act 75 of 2008, preamble.
10 Constitution of the Republic of South Africa, 1996, s 28.
11 Centre for Child Law v Minister of Justice and Constitutional Development 2009 (2) SACR 477 (CC) [28].
12 S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) [36].
13 S v S (Centre for Child Law as Amicus Curiae) 2011 (7) BCLR 740 (CC) [48] (Khampepe J dissenting).
14 F Makhuranne and MD Magano ‘The Use of Ubuntu in Promoting the Wellness of Juvenile Offenders in South African Correctional Schools’ (2022) 170, 180–81.
15 W Bradshaw and D Roseborough ‘An Empirical Review of Family Group Conferencing in Juvenile Offenses’ (2005) 56 Juv & Fam Ct J 21, 24.
16 S v S (Centre for Child Law as Amicus Curiae) 2011 (7) BCLR 740 (CC) [48].
17 F Makhuranne and MD Magano ‘The Use of Ubuntu in Promoting the Wellness of Juvenile Offenders in South African Correctional Schools’ (2022) 183.
18 F Makhuranne and MD Magano ‘The Use of Ubuntu in Promoting the Wellness of Juvenile Offenders in South African Correctional Schools’ (2022) 183.
19 Centre for Child Law v Minister of Justice and Constitutional Development 2009 (2) SACR 477 (CC) [28]; S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) [36].
20 W Bradshaw and D Roseborough ‘An Empirical Review of Family Group Conferencing in Juvenile Offenses’ (2005) 56 Juv & Fam Ct J 27–28.
21 W Bradshaw and D Roseborough ‘An Empirical Review of Family Group Conferencing in Juvenile Offenses’ (2005) 56 Juv & Fam Ct J 21–24.
22 F Makhuranne and MD Magano ‘The Use of Ubuntu in Promoting the Wellness of Juvenile Offenders in South African Correctional Schools’ (2022) 170, 180–81.
23 S v S (Centre for Child Law as Amicus Curiae) 2011 (7) BCLR 740 (CC) [48] (Khampepe J dissenting).
24 A Skelton ‘Child Justice in South Africa: Application of International Instruments in the Constitutional Court’ (2018) 26 Int’l J Child Rts 391, 420–21.
Bibliography
Primary Sources
Constitution and Legislation
- Constitution of the Republic of South Africa, 1996
- Child Justice Act 75 of 2008
- Criminal Procedure Act 51 of 1977
International Instruments
- United Nations Convention on the Rights of the Child (1989)
Case Law
- Centre for Child Law v Minister of Justice and Constitutional Development 2009 (2) SACR 477 (CC)
- Ntaka v S [2008] JOL 21579 (SCA)
- S v FM (Centre for Child Law as Amicus Curiae) [2012] 4 All SA 351 (GNP)
- S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC)
- S v S (Centre for Child Law as Amicus Curiae) 2011 (7) BCLR 740 (CC)
Secondary Sources
Journal Articles
- Bradshaw W and Roseborough D ‘An Empirical Review of Family Group Conferencing in Juvenile Offenses’ (2005) 56 Juvenile and Family Court Journal 21
- Makhuranne F and Magano MD ‘The Use of Ubuntu in Promoting the Wellness of Juvenile Offenders in South African Correctional Schools’ (2022) 170
- Skelton A ‘Child Justice in South Africa: Application of International Instruments in the Constitutional Court’ (2018) 26 International Journal of Children’s Rights 391
