Child Justice Bill [49-2002]

Submission to the Justice & Constitutional Development Portfolio Committee, National Assembly, 31 January 2008





The South African Human Rights Commission (SAHRC) welcomes the Child Justice Bill.  The Bill contains many positive aspects which will bring South Africa in line with international best practices in the area and forward compliance with South Africa’s obligations under the Convention on the Rights of the Child.  The Objects and Guiding Principles of the Act (clauses 2 & 3) clearly set out what the Bill seeks to achieve and reinforce the constitutional rights of children, emphasizes a restorative justice approach to criminal justice, encourages reintegration of children into society, promotes more appropriate procedures for children and promotes cooperation between government departments.


In spite of its general appreciation of the Bill, SAHRC does have several concerns with the Bill, which are detailed below.  The SAHRC would particularly like to emphasize its concerns relating to the diversion of sexual offenders, the detention of children in police cells for longer than 48 hours, and the provisions of the Bill exempting some children from assessments.


The mandate of the SAHRC

The Constitution sets out the functions of the SAHRC. Section 184(1) states:


“The South African Human rights commission must-

(a)     Promote respect for human rights and a culture of human rights;

(b)     Promote the protection, development and attainment of human rights, and

              (c) Monitor and assess the observance of human rights in the Republic.”


It is within this mandate that the SAHRC monitors the legislative process at a parliamentary and government department level. Where necessary the Commission will respond to requests for comments and submissions on proposed legislation, regulations, and policies.  In this instance, the SAHRC writes to draw the attention of the Committee to several requirements relevant to the treatment of children who come into contact with the justice system.  These requirements are set forth in national and international law.



1. Diversion and restorative justice

Diversion and restorative justice provisions are welcomed

The Commission warmly welcomes the diversion and restorative justice provisions in the Bill.  Diversion and restorative justice have been mandated by the UN Committee on the Rights of the Child as key elements in the creation of a child justice system that emphasizes rehabilitation and operates in the best interests of the child.  Accordingly, the diversion provisions in this Bill enhance South Africa’s compliance with its obligations under the Constitution and under international law.


The Commission would like to emphasize that diversion should not be viewed as a chance or a once off. The purpose of diversion is to provide an appropriate response in order to prevent reoffending. Accordingly, diversion must respond to the individual needs of the child. A range of responses are necessary in order to meet each child’s individual needs.  Additionally, diversion programs should be structured to promote accountability of children. 


Diversion should not be treated as part of a criminal record and used in future criminal matters at sentencing (clause 53).  This is required for internal consistency, as clause 52(j) lists preventing the child from having a criminal record as one of the objectives of diversion.  It is also consistent with the recommendations of the UN Committee on the Rights of the Child.[1]


The Bill should be modified to state clearly that a child can be diverted more than once.  This makes particular sense as a child may commit two very different crimes for very different reasons, and it will be in the best interests of the child to divert in both cases.  Likewise, the state could send a child to a diversion program that is not the best fit, and another attempt might be needed to rehabilitate the child through a more appropriate diversion program.


Clause 57 – Diversion of certain sexual offences cases by child below 14 years is in conflict with the constitution, international law, and domestic legislation.


The SAHRC is strongly concerned by the provisions in clause 57 that limit the prosecutor’s authority to pursue diversion for children who commit certain sexual offences. This provision violates the Constitution and best practices of child justice as set forth in international law.  It also amounts to an amendment of the National Prosecuting Authority Act 32 of 1998. 


Firstly, it is not constitutionally permissible to prescribe that a prosecutor cannot exercise the option of diversion when exercising her or his prosecutorial prerogative. Section 179(2) of the Constitution grants the prosecutorial authority to prosecutors, including the authority to determine when to divert a case.[2]  Thus, legislation that prescribes that the prosecutor may not consider diversion interferes with the separation of powers doctrine. Parliament cannot interfere with the prosecutor’s role as dominus litis and should not be arbitrarily limiting the prosecutorial prerogative of the Prosecutor.[3]  To the extent that the Committee would prefer some limit on the prosecutor’s discretion in an individual case, Prosecutorial Guidelines could be developed.  


Additionally, as currently drafted, the exclusion of sexual offences is so irrational and arbitrary that it undermines the rule of law.[4]  This is because some of the crimes excluded from diversion are far less serious than other crimes where diversion is permissible.  A 15-year-old girl who kisses her 15-year-old boyfriend, for example, would have committed a sexual offence and be ineligible for diversion.  However, if she burned down his house, she would qualify for diversion.  Because eligibility for diversion “bears no relation to the gravity of the offence . . . the offender is being used essentially as a means to an end and the offender’s dignity assailed.”[5]


Prohibiting consideration of diversion for children also runs contrary to the Convention on the Rights of the Child.[6]  The Convention emphasizes the importance of diversion programs and requires equal treatment under the law for children and adults.[7]  South African law does not prohibit diversion for adults in sexual offences cases.  Thus, prohibiting consideration of diversion for children is unequal treatment.  Moreover, this inequality runs contrary to the goal of facilitating rehabilitation through diversion and makes little sense as children come to appreciate the nature of sexual offences at a later stage from that of other crimes.


In addition to the constitutional and international law concerns, clause 57 amounts to a de facto amendment of the National Prosecuting Authority Act.[8]  This Act expressly gives the National Director the authority to institute, conduct and discontinue criminal proceedings.[9]  Rules guiding the exercise of the prosecutor’s discretion in this regard are to be determined by the National Director rather than Parliament.[10]  The Act also encourages prosecutors to exercise their prosecutorial authority by diverting cases, particularly cases involving children.[11]   


For the reasons stated above, the SAHRC strongly advises that this provision be eliminated or be made consistent with other provisions in the Bill that address issues of prosecutorial prerogative.  Section 42, for example, uses non prescriptive language, such as “may”, “decide”, and “is of the opinion”, which is appropriate in the context of the prosecutorial prerogative.


2. Conditions of detention

The Bill should state explicitly that children cannot be detained in police cells for longer than 48 hours (clauses 26 and 28)

It is critical that children be detained in police cells only as a measure of absolute last resort and for the shortest possible time.  Currently there is no system of regular monitoring visits to police cells. This is of concern given the fact that 698 people died in police custody in fiscal year 2006/07, an 11 percent increase over the preceding year.[12]  In order to rectify this situation, South Africa needs to ratify the Optional Protocol of the Convention Against Torture (OPCAT) and move towards the establishment of a National Preventative Mechanism (NPM) in terms of the OPCAT.  An NPM would be invaluable in making police cells safer for detainees of all ages.  At least until a NPM is established, the Committee should not alter the 48 hour time limit established by current law.

Protection of children detained in police custody

Clause 28 is welcomed.  However, the clause needs to cover mental abuse and neglect.  The Constitution, in section 28(1)(d), provides that children should be protected from abuse and neglect.  Accordingly, neglect should be included in this sub clause.  Neglect could include for example, inadequately warm clothing or bedding or lack of nutritious regular meals.  Additionally, mental abuse or suffering should be added to clause 28(2)(a). 

Remove the word lock-up from the Bill

It is unclear what a lock-up actually is. Dictionaries define the word in a variety of ways, including “a jail,”[13] “a place where someone cannot escape,”[14] and “a place where persons under arrest are temporarily locked up; a watchhouse.”[15]  This makes the concept subject to interpretation by police officials and thus could potentially lead to children being detained in unsuitable places.  Accordingly, the SAHRC recommends that the word lock-up be removed from the entire Bill and be replaced with “designated place.”  The phrase “designated place” could then be defined in terms of regulations that would mandate, for example, what kind of room could be used for detention and what types of things should be in the room.

Conditions of detention at preliminary inquiry or child justice court

This section on the whole is welcomed. However, it needs to be pointed out that whilst children are being transported they are still being detained and thus they may never in terms of the constitutional stipulations be transported together with adults (section 28(g)(i)). The words “if reasonably possible” should accordingly be removed form clause 34(2)(c).

Children who are detained awaiting trail are not provided with access to basic education

The Commission remains concerned that detained children awaiting trial do not receive access to basic education. This is in clear violation of the constitutional right to basic education (clause 29) and the recommendations of the CRC.[16]  The violations of the child’s right to education could be quite severe as the Act provides for pre-trial detention of up to two years.  The Commission recommends that a provision requiring access to basic education for children in detention be added to Chapter 4, Part 2.

All children in detention should be provided with adequate, age-appropriate stimuli.

Unlike adults, children can often not entertain themselves for long periods of time.  Accordingly, it is essential that all children in detention, including children in police detention, be provided with adequate and age-appropriate stimuli consistent with the recommendations of the Committee on the Rights of the Child.[17]    


3. Assessments

All children below the age of 14 years should be assessed

The SAHRC welcomes the assessment requirements in the Bill.  The SAHRC considers assessments to be a critical component of ensuring that criminal matters relating to children are handled in accordance with the best interests of the child, as required by the Constitution (clause 28(2)).  Fulfilling the best interests of the child requires an individualized analysis of the child’s needs, which is what an assessment provides.  Thus, the decision whether or not to assess a child should not be based on the charge.  All children should be assessed unless performing an assessment is not in the best interests of the child.  Accordingly, clause 9 should be modified so that all children below the age of 14 years are assessed.

Qualified persons who are not probation officers should be authorized to perform assessments

Because of the shortage of qualified probation officers and the importance of handling matters relating to children quickly, as discussed in other parts of this submission, the persons who conduct assessments should not be limited to probation officers but should include other suitable qualified persons.  (This could be further extrapolated and prescribed in regulations.)


4. Criminal Capacity

The capacity of a child vs the decision to prosecute must not be conflated.

The UN Committee on the Rights of the Child has warned that children who commit serious crimes are often prosecuted regardless of their actual criminal capacity.[18]   The current form of the Bill raises particularly strong concerns that children may be prosecuted unlawfully because section 9(2) appears to combine the inquiry as to whether the child has criminal capacity with the inquiry about whether the case should be prosecuted.   Dealing with both of these issues within one clause is likely to result in confusion and the conflation of the issues.  This could be remedied by creating a new section within section 9(2)(b) with an appropriate heading.

Criminal capacity of children is too low (clause 6)

In terms of international law and commentary from the UN Committee on the Rights of the Child, criminal capacity is recommended to be set at 12 years of age.  The Committee has explained that countries should set the minimum age of criminal responsibility to “12 years as the absolute minimum age and to continue to increase it to a higher age level.”[19]  Moreover, the Committee specifically recommended that “South Africa reassess its draft legislation on criminal responsibility with a view to increasing the proposed legal minimum age” to 12.[20]  The SAHRC recommends using this Bill as an opportunity to follow the Committee’s recommendations in advance of South Africa’s next report to the Committee, which is already overdue. 

Treatment of some 18 to 20 year olds as children

The Commission would like to commend the Committee for the inclusion of clause 4(2)(b).  This clause is consistent with the recommendations of the Committee on the Rights of the Child, and forwards South Africa’s compliance with the Convention on the Rights of the Child.


5. The Bill should be more onerous on police officials to ensure that parents are informed about the alleged criminal activities of their children.

Parental notification is important under both South African and international law.  A right to parental notification is implicit in clause 28(1)(b) of the Constitution, which guarantees the right to family or parental care, as a parent cannot provide appropriate care if unaware of allegations that his or her child is involved in criminal activity.  The Committee on the Rights of the Child also recommended that South Africa take steps to “ensure that children remain in contact with their families while in the juvenile justice system” in order to comply with its obligations under the Convention on the Rights of the Child. [21]


The right to parental care is particularly critical for children involved in the child justice system, as parental care is an important component of preventing recidivism.   Additionally, children are unlikely to have the knowledge to protect their own rights and often need the assistance of a trusted adult.  The Bill itself recognises the importance of parental involvement in the juvenile justice system.  See, for example, clause 48(7). 


Accordingly, the words “where circumstances permit” ought to be removed from clause 18(3)(d). Should parental notification be considered impractical in a particular case, the police official should be required to provide a report to the court indicating the steps that were taken to inform the parent of the child’s’ arrest.



6. The maximum time periods awaiting trail contained in clause 67 should be decreased.

The 2-year time period provided in 67(2)(a) is unduly long.  This is particularly true in light of 67(2)(b), which requires that trial be completed within one year of the child pleading to a charge.  Clauses 67(2)(a) and (b), viewed together, would allow for children to be held for a full year without even pleading to a charge, even though the Convention on the Rights of the Child requires that children who are detained be charged within 30 days.[22] Moreover, there is the danger that stipulating the maximum period will make it the norm and will inhibit efforts to ensure that children are detained for the shortest appropriate period of time as prescribed by the constitution (section 28(1)(g)).


7. Sentencing

Minimum sentencing legislation should not apply to children (clause 78).

Applying minimum sentencing to children is contrary to South Africa’s obligations under the Convention on the Rights of the Child.  The Convention requires that judges have “a wide variety of possible alternatives” so that they can “assure that deprivation of liberty be used only as a measure of last resort and for the shortest possible period of time.”[23]  Obviously, minimum sentencing requirements prevent judges from exercising all alternatives and may result in a child being imprisoned beyond the shortest possible period of time.

The maximum sentence should be reduced from 25 years (clause 78)

The SAHRC would like to draw the attention of the Committee to the fact that the maximum sentence of 25 years, provided in section 78(5) is quite lengthy for a child.  Whilst it may be appropriate for a court to impose such a lengthy sentence, the Committee should ensure that the children in such cases come regularly before the parole board as recommended by the Committee on the Rights of the Child.[24] 


8. The drafting style of the Bill is convoluted and makes it difficult to read and understand.


  • Many definitions refer to clauses of the Bill which contain the actual definition. This defeats the object of a definitions section, makes a reading of the Bill difficult, and may lead to ambiguities.  For example, the definition of “child” in Chapter 1 states that child “in certain circumstances, means a  person contemplated in section 4(2)(a) or (b).”  Section 4(2)(a) states, in full, “only Part 1 of this Chapter applies to any person who, at the time of the commission of the alleged offence, was under the age or 10 years.”  This suggests that “child” can only include persons under 10 years of age in Chapter 1, part 2.  However, other sections of the Bill use the term child when referring to children under the age of 10.  For example, paragraph 35.   
  • Many of the clauses with “or” do not expressly provide for the alternatives, but rather seem to rely on context.  For example, clause 31(1)(a) appears to say that all children who are not sent to prison can be sent to a secure care facility or place of safety.  If this is the case, it is not clear why 31(1)(b) specifies certain types of crimes.  Likewise, clause 67(2)(a) does not make clear what brings the 2-year detention period to a close.  Conviction? Sentencing?  As it reads currently, it could be interpreted as saying that no child can be held for more than two years, regardless of whether that child has been sentenced.  Additionally, the placement of subclauses 67(2)(b)(i) and (ii) make them seem to apply only to 67(2)(b), not 67(2)(a).  If these subclauses are maintained, they should be renumbered for clarity.
  • Clause 8 is complicated and it is not clear from a reading of the clause what is being said.
  • It is unclear how clause 50(4) relates to the subject of Clause 50, “consideration of diversion.”  Perhaps 50(4) should be moved or renumbered.
  • The reference to section 95(4)(a)(i)(bb) in Clause 57(1)(b) does not make sense.  Perhaps the reference should be to section 95(5)(a)(i)(bb).
  • Clause 6(2) seems to be missing a word at the end of the clause.
  • The Bill is unclear as to what happens to a child whose preliminary inquiry is postponed under section 49 and not held within 96 hours.  The Bill should be modified to make clear that such children still have preliminary inquiries and are eligible for diversion at that time.
  • 57(2)(b)(i) states that, in diverting a child under section 57, only a diversion option under 58(5) can be considered, but 58(7) states that a child can be sent to a family group conference or victim-offender mediation in lieu of or in combination with any of the options under 58(5).  This creates confusion as to whether a child under section 57 can be sent to a family group conference or victim-offender mediation.
  • The title of Clause 7 (“Manner of dealing with child below 10 years of age”) and of Chapter 2, Part 2 (“Children below 10 years of age”) are misleading given that children aged 10 to 13 who lack criminal capacity can also be handled under this Part.  (See 9(1)(c)(ii)). 
  • See also clause 25(4), especially (4)(a), and clause 42(1)(a).




9.  Miscellaneous

  • The Children’s Act needs to be incorporated into the Bill; currently the Bill refers to the Child Care Act 74/83. E.g. clauses 1, 13, 51, 64, and 96.
  • There is a need to insert a definition of ‘service provider’, which is used in clauses 41, 45, 54, 62 and 96.
  • Clause 31 should come before Clause 30 to promote the constitutional rights that children only be detained as a measure of last resort (section 28(1)(g)). The more drastic option of placement in a prison should thus come last within the sequencing of the clauses.
  • Children below the age of 14 years should never be placed in prison awaiting trial.  Unless the children have criminal capacity, they are to be treated in the same way as children under 10 and accommodated in suitable homes and treatment facilities.  Since children under 14 are presumed to lack criminal capacity (clause 9(1)(a)), they should be treated like children under 10 unless and until the state proves criminal capacity in trial.  Doing otherwise might run afoul on the constitutional requirement that children are only to be detained as a measure of last resort, section 28(1)(g), since children who lack criminal capacity can be handled outside the prison system.   
  • Clause 41(2) is unnecessary. The magistrate must merely be advised by the probation officer and/or the prosecutor that it has been confirmed that space is available. At many facilities, the population changes on a daily basis. It is quite conceivable that from the time the sworn statement is drafted and the date of appearance of the child that the space available at the facility has changed.
  • The clauses on preliminary inquiry do not clearly describe what the preliminary inquiry is about (clause 44).
  • Clause 54 – Provision and accreditation of diversion programmes, service providers and register of previous diversions, are very detailed and could be placed in Regulations in order to simplify the drafting style of the Bill. Also, sexual offences diversion should not be singled out for special treatment (clause 54(3)). These programmes require a high level of expertise in order for their efficacy to be assessed and it would be more appropriate for this to be done by suitably qualified experts rather than parliamentarians.
  • Pre-sentence reports should be made available sooner in cases of children who are detained (clause 72). For example these reports could be made available within three weeks whilst children who are not detained the time period could be 6 weeks. This would giver further effect to the constitutional provision that children should be detained only for the shortest appropriate period of time (section 28 (1)(g)).
  • The Committee on the Rights of the Child has commented that “every child arrested and deprived of his/her liberty should be brought before a competent authority to examine the legality of (the continuation of) this deprivation of liberty within 24 hours.”[25]  The Committee has also commented that the child should be charged and brought before a court not later than 30 days after he or she is detained.[26]  This Bill presents the opportunity to implement these recommendations in advance of South Africa’s next report to the Committee.
  • The drafter should seek to provide fewer schedules in order to simplify the Bill.
  • Bestiality appears in both schedule 1 and schedule 2, and the Bill is unclear about the distinction between the schedule 1 and schedule 2 offences.  This is problematic, as 78(4)(b) and 88(3) specify different treatment for children who commit schedule 1 and schedule 2 offences.
  • Clause 16 is ambiguous as to the treatment of children thought to be 18 but found to be 10-13.  Sections 16(4)(a) and 16(4)(b) both apply to these children, but require different proceedings.  The same is true for 16(3)(b) and 16(3)(e).  Perhaps 16(3)(e) and 16(4)(b) should be modified to apply only to children aged 14-17.




[1] Committee on the Rights of the Child, General Comment No. 10 (2007), Children’s rights in juvenile justice, CRC/C/GC/10, at para. 21.

[2] Section 179(2); see also NPA 20(1) (defining the scope of prosecutorial powers).

[3] Cf. State v. Dodo, 2001 (3) SA 382 paras. 26, 40 (CC) (stating that, in the context of a minimum sentencing law, parliament cannot legislate to “exclude the important function and power of a court to apply and adapt a general principle to the individual case,” but upholding the law in question because the court has discretion in determining whether imposing such a sentence would be fair).  No such discretion is provided for in clause 57 of the Child Justice Bill.

[4] The Bill of Rights Handbook (2005) p. 13, citing New National Party v Government of the Republic of South Africa 1999 (3) SA 191 (CC) at para. 24; cf. State v. Dodo, 2001 (3) SA 382 (CC) (“In the field of sentencing, however, it can be stated as a matter of principle, that the legislature ought not to oblige the judiciary to impose a punishment which is wholly lacking in proportionality to the crime. This would be inimical to the rule of law and the constitutional state.”)

[5] State v. Dodo, 2001 (3) SA 382 para 38 (CC) (discussing proportionality in the context of sentencing).

[6] Supra, note 1, at pp. 5, 25.

[7] Supra, note 1, at pp. 5, 25.


[8] Act 32 of 1998.

[9] Id. at s 20(1). 

[10] Id. at s 22(2). 

[11] National Prosecuting Authority Act states that National Director must bring attention to UN Guidelines on the Role of Prosecutors, which state that “Prosecutors shall use their best efforts to take prosecutory action against juveniles only to the extent strictly necessary.” Guidelines on the Role of Prosecutors, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, A/CONF.144/28/Rev.1 (1990), para. 19, available at  The Guidelines also state that, “[i]n accordance with national law, prosecutors shall give due consideration to waiving prosecution, discontinuing proceedings conditionally or unconditionally, or diverting criminal cases from the formal justice system, with full respect for the rights of suspect(s) and the victim(s).”  Id. at para. 18.

[12] Report shows increase of deaths in police custody, Mail and Guardian Online, 8 Oct. 2007, at

[13], available at

[14] Free Dictionary, available at

[15], available at

[16] Supra, note 1, at para. 89.

[17] See supra, note 1, at para 89.

[18] Id.

[19] Id.

[20] Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: South Africa. 23/02/2000, CRC/C/15/Add.122. at para. 17, available at

[21] Id. at para. 42.

[22] Supra, note 1, at para. 83.

[23] Supra, note 1, at para. 70 (citing the Convention on the Rights of the Child Arts. 40(4) and 37(b)).

[24] Supra, note 1, at para. 77.

[25] Supra, note 1, at para. 82. 

[26] Id.