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Legal and Institutional Frameworks on Child Justice Administration in South Africa

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Abstract

This chapter examines the development of child justice system in South Africa. It demonstrates how the system of child justice gained constitutional recognition and how the ratification and domestication of the UN Convention on the Rights of the Child, the Hague Conventions on Abduction and Adoption ushered in a comprehensive legislation on the protection of the rights of the children who are in conflict with the law or in need of care and protection. The chapter examines the Children’s Act 38 of 2005 and Child Justice Act 75 of 2008 which were the new sets of legislation enacted to complement the constitutional protection with other laws and policies put in place for the welfare of children in South Africa. The author interrogates the establishment of custodial institutions and the extent of their achievements of the primary objective of reintegration of child offender into the society. The empirical findings in this book revealed the models put in place for alternative care of children in need of care and protection which inadequate budgetary allocations have been observed by the author to be the major hindrance of the huge success which could have been recorded in the administration of child justice in South Africa.

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Notes

  1. 1.

    By Section 1 of the South Africa Constitution, 1996, “Republic of South Africa is one, sovereign, democratic state founded on the following values” to wit: Section 1(c) that states: “supremacy of the Constitution and the rule of law”. By Section 2 of the Constitution further provides that “this Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.

  2. 2.

    By Section 7(1)(2) of the Constitution, “this Bill of Rights is a cornerstone of democracy in South Africa”. “It enshrines the rights of all people in ‘South Africa’ and affirms the democratic values of human dignity, equality and freedom”. Therefore, “the state must respect, protect, promote and fulfil the rights in the Bill of Rights”. Although, these rights “are subject to the limitations contained or referred to in section 35, or elsewhere in the Bill of Rights”. See Section 7(3) of the Constitution.

  3. 3.

    See Section 34(1)(a) of the 1996 Constitution.

  4. 4.

    See Section 34(1)(b) of the Constitution, ibid.

  5. 5.

    See Section 34(1)(c) of the Constitution, ibid.

  6. 6.

    See Section 34(1)(d) of the Constitution, ibid.

  7. 7.

    See Section 34(2)(b) of the Constitution, ibid.

  8. 8.

    See Section 34(1)(c) of the Constitution, ibid.

  9. 9.

    Section 35(3)(h) and the section further gives general detail provisions of rights to fair trial of every accused person.

  10. 10.

    See Section 11 of the 1996 Constitution.

  11. 11.

    See Section 21 of the Constitution, ibid.

  12. 12.

    It should be noted that Section 12 of the Constitution needs to be read together with Section 9 especially Subsection 3 which provides that “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, colour, age”, etc.

  13. 13.

    See Section 14 of the Constitution, ibid.

  14. 14.

    See Section 10 of the Constitution, ibid.

  15. 15.

    See Section 13 of the Constitution, ibid.

  16. 16.

    See Section 29 of the Constitution, ibid.

  17. 17.

    See Section 27 of the Constitution, ibid.

  18. 18.

    All these rights were not classified as they are enshrined under the Bill of Rights. Socio-economic rights such as “rights to education” and “security of the people” are enshrined under Chapter II of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and as such they are not enforceable.

  19. 19.

    See Chapter 4 of the Criminal Procedure Act 51 of 1977.

  20. 20.

    Chapter 5, ibid.

  21. 21.

    Chapter 9, ibid.

  22. 22.

    Chapter 11, ibid.

  23. 23.

    Chapters 15, 17, and 18, ibid.

  24. 24.

    Chapter 21, ibid.

  25. 25.

    Chapter 22, ibid.

  26. 26.

    Chapter 28, ibid.

  27. 27.

    Chapters 30 and 3, ibid.

  28. 28.

    See detail examination of Child Justice Act in the next section of this chapter.

  29. 29.

    See generally the case of S v. Gani NO 2012 (2) SACR 468 (GSJ).

  30. 30.

    See S v. Thonga 1993 (1) SACR 365 (V).

  31. 31.

    See S v. Z en vier ander sake 1999 (1) SACR 427 (E). See also, Mpofu v. Minister for Justice and Constitutional Development & Others 2013 (2) SACR 407 (CC).

  32. 32.

    Although, the provision of Section 337 of the Criminal Procedure Act has been substituted by Section 99(1) of the Child Justice Act. See generally the case of R v. Matipa & Others 1959 (2) SA 396 (T).

  33. 33.

    1969 (4) SA 250 (C).

  34. 34.

    1988 (3) SA 67 (V). See also S v. Naude 1978 (1) SA 566 (T).

  35. 35.

    2006 (1) SACR 395 (E) at 4–10. At page 13 of the judgement, Plasker J. and Pickering J. emphasised that “the consequences of estimating age can be significant; an estimation of 19 years instead of 17 years can, for example, deprive an accused person of the special protection afforded by section 28 of the Constitution as well as the provisions of Child Justice Act 75 of 2008”. See also, S v. R 1991 (2) SACR 287 (T); S v. Gumede (unreported, ECG Case No. CA&R181/2011, 17 November 2011); Mpofu v. Minister for Justice and Constitutional Development 2013 (2) SACR 407 (CC); S v. Swato 1977 (3) SA 992 (O); R v. Machambere & Another 1950 (1) SA 315 (SR); R v. Botha & Another 1947 (2) SA 1281 (C); S v. M 1967 (1) SA 70 (N).

  36. 36.

    See the case of S v. Dial (supra). See also S v. Dumba 2011 (2) SACR 5 (NCK) at 4.

  37. 37.

    See the case of S v. Naude (supra) and S v. Dial (supra).

  38. 38.

    See the following cases: S v. Nyathi 1978 (2) SA 20 (B); R v. Hadebe & Another 1960 (1) SA 488 (T); R v. Hlongwane 1960 (1) SA 309 (T); R v. Fana 1960 (4) SA 277 (T); S v. Sibiya 1964 (2) SA 379 (N); S v. Butelezi 1964 (3) SA 519 (N); S v. Manyololo 1969 (4) SA 356 (E); S v. Tango 1969 (2) SA 648 (C); S v. Mavundla & Another; S v. Sibisi 1976 (2) SA 162 (N); S v. Mavhungu 1988 (2) SA 67 (V); S v. Gumede (unreported, ECG Case No. CA&R181/2011, 17 November 2011; Mpofuv. Minister for Justice and Constitutional Development & Others 2013 (2) SACR 407 (CC); S v. Kumalo 1991 (2) SACR 694 (W); S v. Dumba 2011 (2) SACR 5 (NCK); and S v. Ngoma 1984 (3) SA 666 (A).

  39. 39.

    See the following case: S v. Thomas 1961 (4) SA 850 (C); S v. Skenjane 1965 (2) SA 86 (O).

  40. 40.

    See case of R v. Ndhlovu 1948 (1) SA 289 (O) and R v. Kuwuseb 1949 (1) SA 651 (SWA).

  41. 41.

    See the following cases: S v. Chiloane; S v. Masango; S v. Mabusa 1977 (4) SA 69 (T); R v. Kaplan 1942 OPD 232; R v. C 1955 (1) SA 380 (C).

  42. 42.

    See the case of S v. Mbelo 2003 (1) SACR 84 (NC).

  43. 43.

    The “Directives (Public Prosecutions), 2010 which is in terms of section 97(4) of the Child Justice Act 75 of 2008” was published under “GN R252 in GG 33067 of 31 March, 2010”. These directives were “issued by the National Director of Public Prosecutions in consultation with the Cabinet member responsible for the administration of justice”.

  44. 44.

    See Directives D, E, G, I, J, K, L, M, N, O, P, Q, R, and S of the Schedule to the Criminal Procedure Act.

  45. 45.

    See Directive O of the Schedule to the Criminal Procedure Act.

  46. 46.

    Section 59A of the Criminal Procedure Act provides that “Prosecutor may in respect of the offences referred to in Schedule 1 of the Child Justice Act and in consultation with the police officer charged with the investigation authorise the release of the child on bail”.

  47. 47.

    See Directive O of the Schedule to the Criminal Procedure Act.

  48. 48.

    2014 (1) SACR 183 (NCK) at 13–14, 16, 19.

  49. 49.

    See also the case of National Directorate of Public Prosecution v. Puma 2009 (1) SACR 361 (SCA) at 39, 80.

  50. 50.

    Unreported NCK Case No. 38/2011, at 13 particularly at 64.

  51. 51.

    See also the case of S v. FM 2013 (1) SACR 57 (GNP) where the court held that “sentences imposed on children who were legally represented were not for that reason alone excluded from automatic review”. Further, see S v. CS 2012 (1) SACR 595 (ECP) at 13 and 26.

  52. 52.

    See S v. LM (Faculty of Law, University of the Western Cape: Children Rights Project of the Community Law Centre & Others as Amici Curiae) 2013 (1) SACR 188 (WCC). In S v. Sekoere 2013 (2) SACR 426 (FB) at 28.2, 30, Daffue J. Hold that “all matters falling within the provisions of Section 85(1) of the Child Justice Act must be referred to the High Court for automatic review in accordance with that section, whether or not the children concerned wee represented by legal representatives”. The judge hold in another paragraph that “to hold that Section 85(1) applies to unrepresented minor accused only, will make a mockery of the constitutional rights of minors and the introduction of a new criminal justice option for children”.

  53. 53.

    See also Section 390(1) of the Criminal procedure Amendment Act 42 of 2003 as amended by Section 10 of the Judicial Matters Amendment Act 42 of 2013.

  54. 54.

    2004 (1) 400 (E) 1 at 403f–h.

  55. 55.

    See Van Zyl, ‘Pre-trial Detention in South Africa: Trial and Error’, in Van Kempen (ed.), Pre-trial Detention: Human Rights, Criminal Procedural Law and Penitentiary Law, Comparative Law (2012), 661 at 672.

  56. 56.

    See S v. Myaka & Others (unreported, GSJ Case No. A5040/2011, 215/2005, 21 September 2012) at 4; New Clicks South Africa (Pty) Ltd. v. Minister of Health & Another 2005 (3) SA 238 (SCA) at 4–6.

  57. 57.

    2000 (1) SACR 611 (T).

  58. 58.

    2008 (2) SACR 274 (C). In Sanderson v. Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC), 1997 (12) BCLR 1075 (CC), the Constitutional Court pointed three factors to be consider in the investigation of unreasonable delay of trial to be—“the nature of the prejudice suffered by the accused; the nature of the case; and the systemic delay”. See also, Barker v. Wingo 407 US 514 (1972).

  59. 59.

    See also S v. Ndibe (unreported, WCC Case No. 14/544/2010, 14 December 2013) at 6; Director of Public Prosecutions North Gauteng v. Makhubela (unreported, GNP Case No. A91/2014, 6 August 2014) at 19.

  60. 60.

    See S v. Khalema and Five Similar Cases 2008 (1) SACR 165 (C) at 26–30. See also, S v. Thenga 2012 (2) SACR 628 (NCK).

  61. 61.

    See S v. Mahlangu & Another GSJ Case No. CC70/2010, 22 May 2012 (unreported).

  62. 62.

    See section 28(2) of the South Africa Constitution, 1996 discussed above.

  63. 63.

    KZP Case R 99/12, 6 August 2012 (unreported).

  64. 64.

    See Sections 5, 17, and 29 of the Child Justice Act 75, 2008.

  65. 65.

    See Sections 9 and 10 of the Child Justice Act 75, 2008.

  66. 66.

    see Section 20 of the Act, ibid.

  67. 67.

    See Section 19 of the Act, ibid.

  68. 68.

    See Section 18 of the Act, ibid.

  69. 69.

    See Section 10 of the Child Justice Act, ibid.

  70. 70.

    See generally Chapter 5 of the Act, ibid.

  71. 71.

    See generally Chapter 4 of the Act, ibid.

  72. 72.

    See generally Chapter 7 of the Act, ibid.

  73. 73.

    See generally Chapters 6 and 8 of the Act, ibid.

  74. 74.

    See Sections 12–16 of the Act, ibid.

  75. 75.

    The South African cabinet met on 17 February 2016 and approved the report on upward review of the minimum age for criminal responsibility to 12 years with some special protection measures in place for 13- and 14-year-old children. See South African Press Report dated 22 February 2016.

  76. 76.

    The implementation of Child Justice Act consolidated annual report by the Department: Justice and Constitutional Development Republic of South Africa from 1 April 2015 to 31 March 2016. Available at http://www.justice.gov.za.cja-anr-2015-2016. Accessed 24 December 2018.

  77. 77.

    See Section 63 of the Act, ibid.

  78. 78.

    Ibid.

  79. 79.

    Ibid.

  80. 80.

    See Section 11 of the Act, ibid. See also, S v. Mgcina 2007 (1) SACR 82 (T).

  81. 81.

    See generally Sections 80–83 of the Act, ibid.

  82. 82.

    See Section 83 of the Act, ibid.

  83. 83.

    See Section 24(1) of the Legal Aid South Africa Act, 2014. See also Section 25(1) of the Child Justice Act 39 of 2014; S v. Bekisi 1992 (1) SACR 39 N (C); S v. Manuel & Others 1997 (2) SACR 505 (C).

  84. 84.

    See generally Chapter 8 of the Child Justice Act.

  85. 85.

    Section 64 of the Act provides to the effect that “if it appears to a presiding officer at the Child Justice Court during the course of proceedings that a child is in need of care and protection, the presiding officer must act in accordance with this Act and refer such child to the children’s court as contemplated under section 50 of this Act”.

  86. 86.

    See generally Chapter 10 of the Act ibid. The sentencing options range from “community-based sentences”; “restorative justice sentences”; “correctional supervision”; “postponement or suspension of passing of sentences”; “fine or alternative to fine”; “sentence of imprisonment” and “compulsory residence in a child and youth care centre”.

  87. 87.

    See generally Chapters 9 and 10 of the Act, ibid.

  88. 88.

    Interview conducted by the author at Grahamstown, South Africa, 2015.

  89. 89.

    Maepa, T., ‘Magistrates’ and Prosecutors’ Views of Restorative Justice’ (ISS Monograph, 2007). Available at http://www.iss.co.za/pubs/monograph/no111.htm. Accessed 23 June 2013.

  90. 90.

    Ibid.

  91. 91.

    Steyn, F., Approaches to Diversion of Child Offenders in South Africa: A Comparative Analysis of Programme Theories (Pretoria: University of the Free State, 2010).

  92. 92.

    See Section 76 of the Child Justice Act.

  93. 93.

    See Section 89 of the Child Justice Act.

  94. 94.

    Terblanche, S. S., ‘The Child Justice Act: A Detailed Consideration of Section 68 as a Point of Departure with Respect to the Sentencing of Young Offenders’ (2012), Potchefstroom Electronic Law Journal, 15(5). Available at http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500014#top4.

  95. 95.

    See Chapter 2 of the Act, ibid.

  96. 96.

    See generally Chapter 9 of the Act, ibid.

  97. 97.

    Section 63(5) of the Act, ibid.

  98. 98.

    See Section 63(6) of the Act, ibid.

  99. 99.

    See generally Chapter 12 of the Act, ibid.

  100. 100.

    See generally Chapter 13 of the Act, ibid.

  101. 101.

    See Section 67 of the Act, ibid.

  102. 102.

    The implementation of Child Justice Act consolidated annual report by the Department: Justice and Constitutional Development Republic of South Africa from 1 April 2015 to 31 March 2016. Available at http://www.justice.gov.za.cja-anr-2015-2016. Accessed 24 December 2018.

  103. 103.

    Interviews conducted by the author at Cape Town and Grahamstown, 2015.

  104. 104.

    See South Africa (Republic). National Prosecuting Authority, 2012. Annual Report 2011/2012. Available at http://www.npa.gov.za. Accessed 20 February 2013. See also, Badenhorst, C., “Second Year of the Child Justice Act’s Implementation: Dwindling Numbers”. Child Justice Alliance Research Report. The Child Justice Alliance, c/o The Children’s Rights Project, Community Law Centre (University of the Western Cape).

  105. 105.

    See Dawes, A., ‘The South African Children’s Act’ (2009), Journal of Child and Adolescent Health, 30(10), iv–vi.

  106. 106.

    See Department of Social Development: Consolidated Regulations Pertaining to the Children’s Act, 2005. Government Gazette 33076, Government Printer, Pretoria (2010).

  107. 107.

    See Section 8 of the Children’s Act 35, 2005 (as amended).

  108. 108.

    See Section 9 of the Children’s Act, ibid.

  109. 109.

    The Constitutional Court emphasised in S v. M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para. 25 at 249D that “the correct approach is to apply the ‘paramountcy’ principle in a meaningful way without unduly obliterating other valuable and constitutionally protected interests”.

  110. 110.

    See Section 2(b)(iv) of the Children’s Act 35, 2005 (as amended).

  111. 111.

    1966 (4) SA 260 (R) at 261H. See also, French v. French 1971 (4) SA 298 (W) 298H; Martens v. Martens 1991 (4) SA 287 (T); McCall v. MacCall 1994 (3) SA 201(C) 205 B-G.

  112. 112.

    See Boezaat, T., and De Bruin, D. W., ‘Section 14 of the Children’s Act 38 of 2005 and the Child’s Capacity to Litigate’ (2011), De Jure, 416–438. See also, Boezaat, T., ‘Law of Persons’ (2010), 87; and Boezaat, and De Bruin (2011), De Jure, 418–419, 422; Legal Aid Board in re Four Children (unreported, 512/10 [2011] ZASCA 39, 29 March 2011), para. 11.

  113. 113.

    See Section 44(1)(a) of the Children’s Act.

  114. 114.

    See Section 44(1)(b) of the Children’s Act.

  115. 115.

    1956 (2) SA 330 (C).

  116. 116.

    1978 (2) SA 301 (N).

  117. 117.

    See Chapter 5 of this book for typical example.

  118. 118.

    The underline is author’s emphasis.

  119. 119.

    Interviews conducted by the author at Cape Town and Grahamstown, 2015.

  120. 120.

    The implementation of Child Justice Act consolidated annual report by the Department: Justice and Constitutional Development Republic of South Africa from 1 April 2015 to 31 March 2016. Available at http://www.justice.gov.za.cja-anr-2015-2016. Accessed 24 December 2018.

  121. 121.

    See Section 45 and generally Chapter 9 of the Children’s Act 38, 2005 (as amended).

  122. 122.

    See Section 45(4) of the Children’s Act. See also, AD and Another v. DW and Others (Centre for Child Las as Amicus Curiae; Department for Social Development as Intervening Party) 2008 (3) SA 183 (CC); De Gree and Another v. Webb and Others (Centre for Child Law, University of Pretoria as Amicus Curiae) 2006 (6) SA 51 (W); and De Gree and Another v. Webb and Others (Centre for Child Law, University of Pretoria as Amicus Curiae) 2007 (5) SA 185 (SCA).

  123. 123.

    Unreported GSJ Case No. A3056/11, 29 August 2012, para. 19.

  124. 124.

    See Section 49 of the Children’s Act.

  125. 125.

    See Elizabeth Municipality v. Various Occupiers 2005 (1) SA 217 (CC); S v. M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC); Dikko v. Mokhatla 2006 (6) SA 235 (CC); Le Roux and Others v. Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC); Sloth-Nielsen, J., and Gallinetti, J., ‘Just Say Sorry? Ubuntu, Africanisation and the Child Justice System in the Child Justice Act 75 of 2008’ (2011), Potchefstroom Electronic Law Journal, 14(4), 63.

  126. 126.

    Case of Centre for Child Law v. Minister for Social Development and Others (unreported, GNP Case No. 21726/11) is apposite.

  127. 127.

    See Section 52 of the Children’s Act.

  128. 128.

    Sections 54 and 55 of the Act, ibid.

  129. 129.

    Sections 56 and 57 of the Act, ibid.

  130. 130.

    Section 74 of the Act, ibid. See also, Johncom Media Investments Ltd. v. M and Others (Media Monitoring Project as Amicus Curiae) 2009 (4)(CC).

  131. 131.

    Sections 58 and 59 of the Act, ibid.

  132. 132.

    Section 60 of the Act, ibid.

  133. 133.

    See generally Chapter 5 of the Act, ibid.

  134. 134.

    See generally Chapter 12 of the Act, ibid.

  135. 135.

    See generally Chapter 13 of the Act, ibid.

  136. 136.

    See generally Chapter 14 of the Act, ibid.

  137. 137.

    See Section 89(4) of the Child Justice Act 75, 2008 (as amended).

  138. 138.

    See Preamble to the Child Justice Act, ibid.

  139. 139.

    See Preamble to the Children’s Act, ibid.

  140. 140.

    The implementation of Child Justice Act consolidated annual report by the Department: Justice and Constitutional Development Republic of South Africa from 1 April 2015 to 31 March 2016. Available at http://www.justice.gov.za.cja-anr-2015-2016. Accessed 24 December 2018.

  141. 141.

    Ibid.

  142. 142.

    See the Nerina One-Stop Child Justice Centre, 2013/2014–2015/2016 reported in the implementation of Child Justice Act consolidated annual report from the Department: Justice and Constitutional Development Republic of South Africa from 1 April 2015 to 31 March 2016. Available at http://www.justice.gov.za.cja-anr-2015-2016. Accessed 24 December 2018.

  143. 143.

    The implementation of Child Justice Act consolidated annual report by the Department: Justice and Constitutional Development Republic of South Africa from 1 April 2015 to 31 March 2016. Available at http://www.justice.gov.za.cja-anr-2015-2016. Accessed 24 December 2018.

  144. 144.

    Ibid.

  145. 145.

    See the Mangaung One-Stop Child Justice Centre, 2013/2014–2015/2016 reported in the implementation of Child Justice Act consolidated annual report from the Department: Justice and Constitutional Development Republic of South Africa from 1 April 2015 to 31 March 2016. Available at http://www.justice.gov.za.cja-anr-2015-2016. Accessed 24 December 2018.

  146. 146.

    The implementation of Child Justice Act consolidated annual report by the Department: Justice and Constitutional Development Republic of South Africa from 1 April 2015 to 31 March 2016. Available at http://www.justice.gov.za.cja-anr-2015-2016. Accessed 24 December 2018.

  147. 147.

    Ibid.

  148. 148.

    See the Matlosana One-Stop Child Justice Centre, 2013/2014–2015/2016 reported in the implementation of Child Justice Act consolidated annual report from the Department: Justice and Constitutional Development Republic of South Africa from 1 April 2015 to 31 March 2016. Available at http://www.justice.gov.za.cja-anr-2015-2016. Accessed 24 December 2018.

  149. 149.

    Section 193 of the Children’s Act.

  150. 150.

    See the South African Development Planning Evaluation and Research Study into the funding of government subsidised children’s homes in South Africa (2004) Pretoria.

  151. 151.

    See generally Chapter 13 of the Children’s Act.

  152. 152.

    Ibid.

  153. 153.

    See generally Chapter 12 of the Act, ibid.

  154. 154.

    Ibid.

  155. 155.

    See Skelton, A. M., and Proudlock, P., ‘Interpretation, Objects, Application and Implementation of the Children’s Act’, in C. J. Davel and A. M. Skelton (eds.), Commentary on the Children’s Act (2014), 74. Available at http://www.jutalaw.co.za. Accessed 20 February 2015.

  156. 156.

    Ibid.

  157. 157.

    See White Paper on Corrections in South Africa (2005). Available at https://www.acjr.or.za. Accessed 10 November 2018.

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  1. Department of Public Law, Faculty of Law, University of Ilorin, Ilorin, Kwara State, Nigeria

    Mariam Adepeju Abdulraheem-Mustapha

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Abdulraheem-Mustapha, M.A. (2020). Legal and Institutional Frameworks on Child Justice Administration in South Africa. In: Child Justice Administration in Africa. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-19015-6_6

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