The primary objectives of the Child Justice Amendment Bill are to amend the Child Justice Act of 2008 to increase the minimum age of criminal capacity of children from 10 years to 12 years. Secondly, to remove the requirement of proving criminal capacity for the purposes of diversion and to facilitate preliminary inquiries. Section 7 of the Act stipulates that a child under the age of 10 does not have criminal capacity and cannot be prosecuted, and a child who is above the age of 10, but under the age of 14, is presumed to lack criminal capacity, unless the state proves beyond reasonable doubt that the child does have criminal capacity. Section 8 allows for a review of the minimum age of criminal capacity after five years and the Minister of Justice must compile a Report with recommendations to address this. The Amendment Bill amends section 7 of the Act to give effect to the recommendation in the Report to increase the minimum age of criminal capacity from 10 to 12 years. The replacement of “appropriate adult” with “appropriate person” is to provide for circumstances where family members and relatives that are younger than 16 years would be able to assist the child that is in contact with the criminal justice system, and participate in decisions.
Members asked how probation officers are allocated; what “appropriate adult” means; if there was general consensus amongst stakeholders consulted when drafting the Bill about raising the minimum age of criminal capacity and what was the view on retaining the rebuttable presumption, since the minimum age of criminal capacity in most other countries is 12 years. Members requested the 2016 Report that had been before the Committee previously be circulated again as well as relevant legislation. They asked why the Bill creates a situation where another child assists a child who is in contact with the criminal justice system. Had the Department conducted research on the kinds of crimes that are prevalent amongst children?
In response it was noted that probation officers are not qualified to assess the criminal capacity of a child as provided in section 11. It was noted that in the 2015 stakeholder workshop there was consensus about raising the minimum age of criminal capacity from 10 to 14. There was scientific evidence suggesting that the development of the prefrontal cortex is only achieved later in a child’s life. The Department of Justice had not conducted specific research but the Department of Correctional Services usually give an indication of the crimes for which children have been sentenced.
For the Cybercrimes Bill, the State Law Advisor presented the changes made to the 23 October working draft as proposed by the Committee at that meeting. It was noted that the discretion of the Chief Justice to issue directives under the Bill is because a similar discretion existed elsewhere in legislation. The Department again noted that most of the criticisms of the Bill related to the powers granted to the state to regulate cybersecurity and the declaration of critical information infrastructure, which have been struck out of the current Bill. All public comments were taken into account in the current version of the Bill.
Child Justice Amendment Bill: briefing
Ms Thandazile Skhosana, Senior State Law Advisor, Department of Justice, stated that the primary objectives of the Child Justice Amendment Bill are to amend the Child Justice Act of 2008 to increase the minimum age of criminal capacity of children from 10 years to 12 years. Secondly, it is to remove the requirement of proving criminal capacity for the purposes of diversion and to facilitate preliminary inquiries.
The Act provides for the minimum age of the criminal capacity of children (thus amending the common law) and for mechanisms to deal with children who lack criminal capacity.
Section 7 of the Act stipulates that a child under the age of 10 does not have criminal capacity and cannot be prosecuted, and a child who is above the age of 10, but under the age of 14, is presumed to lack criminal capacity, unless the state proves beyond reasonable doubt that the child does have criminal capacity.
Section 8 allows for a review of the minimum age of criminal capacity after five years and the Minister of Justice must compile a Report with recommendations to address this. Section 96(6) sets out the information that must be contained in this report, which must be submitted to the Cabinet for approval and later to parliament for consideration.
When compiling that Report, a consultative workshop was conducted, with the input of experts and other stakeholders. One such workshop was a National Experts Workshop on the Review of the Minimum Age of Criminal Capacity. The main findings of this Report were that according to statistics, very few children aged between 10 and 11 years were in conflict with the law. In addition, scientific research on the brain indicates that development of the prefrontal cortex is not achieved until the early twenties or later. This plays a role in the decision on the establishment of the minimum age of criminal capacity of a child.
The Report also noted that the Africa Charter Human and Peoples’ Rights Principles and Guidelines, urged states not to set the age of criminal capacity under 15 years. It noted that some Africa states have set the minimum age of criminal capacity at 18 years and some at 16 years. Despite this, the Report recommends that the age be capped at 12 years because it may be “too big much of a leap to raise the minimum age from 10 to 14 without tangible evidence of the effectiveness, availability and adequacy of the support and programmes offered currently to the under 10 year olds in conflict with the law in terms of section 9 of the Act.”
The Report recommended that the minimum age of criminal capacity should be increased from 10 years to 12 years and that the rebuttable presumption be retained for children who are 12 years and older, but younger than 14 years, and that a further review of the minimum age of criminal capacity should take place after five years. The Report also recommended that the provisions under the Act that require the state to prove the criminal capacity of a child who is 10 years or older but under the age of 14 years for the purposes of diversion and preliminary inquiries, should be removed because it has unintended negative consequences for children.
The Report was approved by Cabinet in February 2016 and submitted to Parliament in March 2016. The Department briefed a joint sitting of the Justice Committees on the Report in September 2016 and submitted to the Portfolio Committee, a Report on its consultation with the House of Traditional Leaders and some civil society organisations specialising in children’s issues.
The main amendments in the Bill include Clause 4, which amends section 7 of the Act to give effect to recommendations in the Report to increase the minimum age of criminal capacity from 10 to 12 years. The amended section 7 provides that a child under the age of 12 years does not have criminal capacity and cannot be prosecuted. A child who is 12 years or older but under the age of 14 is presumed not to have criminal capacity, unless the state proves beyond reasonable doubt that the child has criminal capacity. These amendments have necessitated other amendments to other sections of the Act to substitute references to a child under the age of 10 years with references to a child under the age of 12 years.
The amendments that give effect to recommendations that diversion be de-linked from criminal capacity and that criminal capacity only be addressed during plea and trial in a child justice court are motivated by two factors. Since the Act commenced, many Magistrates are uncertain if they may still decide on the criminal capacity of children themselves, without referring the child for evaluation in terms of section 11 of the Act. As a result, every child who is 10 years or older but under the age of 14 who is brought into the criminal justice system is referred for evaluation in terms of section 11. These children are therefore “pathologised” and unnecessarily exposed to the mental health system, which is undesirable and not in the best interests of the child. Another factor is that the referral of children for evaluation results in clogging the criminal justice system as there are few competent persons available to do the evaluations, causing delays and exacerbating the burden of the already overstrained mental health system.
Clauses 10, 15 and 17 amend section 10, 41 and 49 to remove provisions that require the prosecutor or a preliminary magistrate to consider the criminal capacity of a child when considering diversion. A provision is inserted in Clauses 15, 17 and 20 to ensure that a prosecutor, preliminary inquiry magistrate or presiding officer must, when considering diversion, be satisfied that the child will benefit from diversion.
Clause 8, amending section 11 ensures that the criminal capacity of a child who is 12 years or older, but under the age of 14, is considered when a matter is in the child justice court for purposes of plea and trial. It also removes references to the inquiry magistrate and preliminary inquiry.
Additionally, Clause 19 inserts a new subsection (5) in section 58 to ensure the state proves criminal capacity of a child in terms of section 11, where a child fails to comply with a diversion order because criminal capacity would not have been considered at the diversion stage.
Clauses 13, 14 and 16 address concerns that probation officers are not qualified to express a view on issues relating to the criminal capacity of a child. The following are deleted: section 35(g) that requires probation officers to express a view on criminal capacity of the child; section 40(1)(f) that requires a probation officer to include in the assessment report a recommendation on the possible criminal capacity of a child; section 43(2)(a)(ii) that requires a preliminary magistrate to consider the assessment report, including the views of the probation officer on the criminal capacity of a child.
Clauses 1, 25 and 26 are technical amendments to the definition of “appropriate adult” in the Act, which includes a sibling or a family member who is 16 years or older. This caters for children who are living by themselves or in child-headed households.
Clause 18 amends section 52 by substituting the expression “prima facie case against the child” with “prima facie evidence that the child committed the offence”. Clause 21 amends section 71 to align it with section 50(2)(c)(ii) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (SORMA), so as to ensure that a child justice court does not dispense with a pre-sentence report in circumstances referred to in this section.
Clause 22 amends section 92 of the Act dealing with children used by adults to commit crimes. The section is being amended to substitute the word “adult” with “person” to include a child using another child to commit a crime. Clauses 24 to 17 are technical amendments.
Clause 28 that contains the short title and commencement provision.
The Chair asked how probation officers are allocated and what “appropriate adult” means.
Ms G Breytenbach (DA) asked, since the Department consulted a wide range of stakeholders during the drafting of the Bill was there a general consensus in raising the minimum age for criminal capacity. What was the view on retaining the rebuttable presumption, considering the minimum age of criminal capacity in most other countries is 12 years? In the interim annual general report of 2017, a number of statistics on crimes perpetrated by children are laid out, were these taken into consideration for these amendments and how do they affect the amendments?”
Mr S Swart (ACDP) requested that the 2016 Report that was before the Committee previously, be circulated to Members again as well as the relevant legislation. He asked why particular words were removed from clause 5. He asked about clause dealing with adults causing children to commit crimes. Is there any data proving the assertion that children today are maturing earlier. “If there is such data, why are we then raising the age for criminal capacity?”
Ms Skhosana replied that probation officers are not qualified to assess the criminal capacity of a child, as provided in s11, which states that the criminal capacity must be assessed by a competent person, as determined by the Minister. This is why this is deleted.
She replied that the definition of “appropriate adult” is amended to “appropriate person” because a child is included in the definition. This provision allows such persons to assist children in proceedings in terms of this Act and, wherever possible, to participate in decisions affecting them.
Ms Breytenbach expressed concern that the criminal justice system creates a situation where another child assists a child who is in contact with the criminal justice system. “Our criminal justice system must be able to do better than that… how can you have a child who is under the age of 16 being assisted by someone who is 16? What kind of assistance are they going to get…?”
Dr Charmain Badenhorst, Director: Child Justice and Family Law, Department of Justice and Constitutional Development, explained that the reason for the replacement of “appropriate adult” with “appropriate person” is to provide for circumstances where family members and relatives that are younger than 16 years would be able to assist the child that is in contact with the criminal justice system.
Ms Skhosana emphasised that the “appropriate person” is only there to accompany and be there with the child and provide support for them. On the question of cognitive ability being removed from section 10, she stated that cognitive ability is one of the factors to be considered by a suitable person who is required to make a decision on whether or not to prosecute a child. It is not for the prosecutor to assess the cognitive ability of a child when making that decision, therefore this provision in the Act should be omitted.
Dr Badenhorst said that there was a national workshop in 2015 where there was consensus on raising the minimum age of criminal capacity from 10, but the recommendation from the workshop was that it should be raised to the age of 14, whilst some of the members were of the view that it should be raised to the age of 12. The presumption, on the other hand, has been contentious since the deliberations on the original Bill and the responsible UN Committee expressed criticism.
On children maturing more quickly, Dr Badenhorst replied that there was scientific evidence suggesting that the development of the prefrontal cortex is achieved only later in a child’s life. This is the part of the brain that concerns the ability to make decisions and appreciate consequences of one’s actions. Its rate of development depends on a child’s exposure. “People in rural areas are less exposed…”
Mr T Mulaudzi (EFF) asked if the Department has ever conducted research on the kinds of crimes that are prevalent amongst children and compare these between different areas of the country. What were the consequences would those committing crimes using children, particularly adults.
Mr G Skosana (ANC) asked what would be the effect of leaving the minimum age of criminal capacity at 10 years old. What is the disadvantage of leaving it as the status quo?
Dr Badenhorst replied that she is not aware of any specific research about crimes committed by children but the annual reports of the Department of Correctional Services usually gives an indication of the crimes for which children have been sentenced. Children can only be sentenced to imprisonment if they are over 14 years. On the question of adults using children to commit offences, the Children’s Act makes it an offence for anyone to use a child to commit a crime. It also provides that it is the duty of court officials and probation officers to report once they become aware that a child has been influenced or coerced by another to commit a crime. She undertook to confirm what the punishment is for a person who uses a child to perpetrate crime and would get back to the Committee. The Children’s Act does not prescribe a penalty for this offence.
On the disadvantages of leaving the minimum age of criminal capacity at 10 years, Dr Badenhorst asserted that if the minimum age is increased, it protects children from exposure to the criminal justice system. For example, already children under the age of 14 cannot be imprisoned and cannot be subjected to mental assessments and this protects them from that exposure.
Mr Swart expressed doubt whether there has been any prosecutions in our criminal justice system for people that use children to commit crimes. He requested Dr Badenhorst to confirm this.
Mr Dingaan Mangena, State Law Advisor: Department of Justice, went through the drafting changes made since the meeting of 23 October 2018. In that meeting, it was agreed that changes suggested by the Committee would be added to the working draft of the Bill and these were presented in this meeting.
Proposed omissions are in red ink with strikethrough and proposed additions are in green ink and underlined. The provisions were rearranged from the previous meeting for ease of reference. Only the layout has changed, not the content (apart from the specific additions and deletions). The amendments addressed and resolved contentious issues and clarified some items that could cause interpretation problems.
There are omissions in page 2 of the Bill. On page 13, certain words have been omitted and others added. On page 41, the section numbers have been changed. On page 50, section 23(1) has been omitted because this provision has been provided elsewhere in the Bill. On page 59, words have been included to increase discretion and not only limit it to the Chief Justice; therefore, someone else can exercise that power in place of the Chief Justice. On page 67, particular words have also been removed from the clause dealing with wrongful search, access or seizure.
On page 74, specific words have been omitted from the provision and replaced. On page 81, some words have been added to section 43(4)(a) ii). Similarly, on pages 86 and 88, words have been added to the clause and others omitted.
On page 93, words have been added. On pages 99 and 107, words have both been omitted and others added. The chapter now states Chapter 9 rather than 10. With reference to the Schedule on page 112, he noted that contravention of sections 8, 9 and 10 of the Cybercrimes Act is included to allow for the Criminal Procedure Act to be applicable to deal with their transgression.
Mr Sarel Robbertse, Senior State Law Advisor: Department of Justice, noted that the discretion of the Chief Justice to issue certain directives under the Bill is because a similar discretion existed under another law. “We omitted everything that dealt with cybersecurity and consulted widely with other stakeholders. Most of the criticisms of the Bill related to the powers granted to the state to regulate issues of cybersecurity and the declaration of critical information infrastructure, which have been struck out of the Bill…All comments were taken into account when finalising this Bill that is currently before the Committee.”
As there were no questions or comments from Members, the Chairperson adjourned the meeting.
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