REPUBLIC OF SOUTH AFRICA COMBINED SECOND PERIODIC REPORT UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLE`S RIGHTS
and INITIAL REPORT UNDER THE PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN AFRICA
Average
2007
for
Average
2008
for
Average
2009
for
1196
892
2087
928
870
1799
696
854
1550
346
658
1004
366
552
918
367
417
784
241
296
537
Child Justice Act (14 to below 18 years)
87.
Average
2010
for
Average
2011
for
Average
2012
for
Average
2013
for
Section 28(g) of the Constitution stipulates that a child should not be detained except as a
measure of last resort and only for the shortest appropriate period of time. Upon detention
the child is entitled, in addition to the rights that generally accrue to detained persons, the
right to be kept separately from detained persons over the age of 18 years and the right to
be treated in a manner, and kept in conditions that take account of the child’s age. Our
courts have held that – “All our courts are obliged when imposing sentence to ensure that
a sentence of imprisonment must be imposed on any child, who by definition is any person
under the age of 18 years, only as a matter of last resort and only for the shortest
appropriate period.”60
Legislation and Policy measures for children in conflict with the law
88.
60
61
The Child Justice Act, 200861 was put into operation in April 2010. Its main focus is to create
a child related procedure to deal with children in conflict with the law, both within and
outside the criminal justice system, by establishing a constitutional approach, based on
assessment and the notion of restorative justice. It has to date been used to institute
diversions and bring about a child sensitive criminal justice system. The Child Justice Act
puts in place a criminal justice system which provides for children under the age of 18
years. One of the aspects in the Child Justice Act is the issue of the criminal capacity of
children. The CJA states as follows:
That children up to 10 years of age, lack criminal capacity and may not be arrested for
committing an offence. Such children will be referred to the Children’s Courts or to
the Department of Social Development.
Centre for Child Law v Minister of Justice and Constitutional Development 2009 (11) BCLR 1105 at para 86
Act No 75 of 2008
31