The Department of Justice and Constitutional Development (DOJ) informed the Committee that the Bill is working to move the age of criminal responsibility from 10 years to 12 years. The Department reported that it had received submissions from two organisations on the bill: NICRO and the Centre for Child law. The Centre for Child Law proposed additional amendments relating to the question of diversion. The Department was happy with the proposed amendments and suggested that these be accommodated.
Members of the Committee wanted to know why the age could not be put at 14 years instead of having it reviewed again after 5 years. The Department responded that it does not want to move up so fast and have a situation where a lot of the children are out of the justice system. The Department was emphatic that it would rather work slowly while assessing the impact of the Children’s Court and the social workers.
Members of the Committee expressed concern that the Bill allows a 16-year old, who is still a child, to provide support to another child. Members were of the view that there must be a requirement for a more responsible person to provide support to child offenders. The Department responded that the reality in South Africa is that there are many child headed homes but is open to suggestions from Members on how best to deal with the issue. The Department indicated that there is very little statistics on children who are using other children to commit crimes. The Deputy Minister recommended that the Committee includes in its report a recommendation for SAPS to avail statistics on the arrests done under section 92 of the Child Justice Act, which section deals with children using other children to commit crimes.
The Chairperson welcomed everyone to the meeting.
Remarks by Deputy Minister
Mr John Jeffrey, Deputy Minister of Justice and Constitutional Development, stated that the age of criminal capacity was previously moved from 8 to 10. A review was then done and a report tabled before the Committee in 2016 with a proposal to move the age from 10 to 12 years. The Child Justice Amendment Bill is working to give effect to that. The age of criminal capacity is when someone is able to know what is right and what is wrong. In Brazil, the age of criminal capacity is 18. Internationally the proposal is 14 whereas the United Commission on Human Rights (UNCHR) proposes 15 years. The Bill is moving the age to 12 with a provision for review in 5 years’ time. The position In Brazil resulted in street kids being killed. He added that there is a need to evaluate the Department of Social Development and the children’s court to assess whether the system is working. In terms of the law, for children between the ages of 10 and 14, the state has to prove that the child has criminal capacity. To do this, the state gets experts to prove this. The magistrate can then send the child on a diversion programme if the prosecutor feels the child will benefit from it.
The Department had received submissions from the National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and the Centre for Child Law (CCL).
The Centre supports clause 15 of the Bill. It reflects consequential amendments required as a result of the amended age of criminal capacity. It also removes the requirement that “criminal capacity is likely to be proved in terms of section 11” for a prosecutor to divert a child 12 years or older but under 14 years; and instead states that the prosecutor must consider whether the “child will benefit from diversion.” This places less restrictions on the prosecutor’s exercise of discretion as they do not have to determine whether criminal capacity will be proved; something that prosecutors may not have the capability to do. We propose an additional subsection here, which will allow more protection for the child. This may also require a consequential amendment to clause 20 of this Bill, which amends section 67 of the Act:
Where the prosecutor is of the view that the child is unlikely to benefit from diversion, or if diversion is for any other reason not appropriate, he or she may refer to the child to a probation officer to be dealt with as a child who lacks criminal capacity, in terms of section 9 of the Act.
The Centre supports clause 20 of the Bill as it inserts an additional order that can be made by the child justice court; which is an order of diversion. Consideration should be given to inserting a provision in section 67:
Where the child justice court is of the view that the child is unlikely to benefit from diversion, or if diversion is for any other reason not appropriate, the court may refer to the child to a probation officer to be dealt with as a child who lacks criminal capacity, in terms of section 9 of the Act.
The Department was happy with the amendments proposed by the Centre and proposed that these be accommodated.
Mr W Horn (DA) stated that it was not sufficient for the DOJ to provide Members with a summary of the submissions. On the issue of minimum age for criminal capacity, if the government is of the view that ultimately the age for criminal responsibility will be 14 years, why not go to 14 years now? The issue of criminal responsibility is a grey area and there must be room to individualize it. He asked what will change in the 5 years’ time.
Adv G Breytenbach (DA) agreed with Mr Horn. She stated that 16 year old person, who is a child, should not be required to provide support to another child. There must be a provision requiring a more responsible person to provide support and that it is possible to do better.
Deputy Minister Jeffrey responded that as the age goes up, the number of children involved in crime increases. It is an exponential growth. The DOJ does not want to move up so fast and have a situation where a lot of the children are out of the justice system. The Department wants to do it slowly while assessing the impact of the children’s court and the social workers. The DOJ does not want a situation where people take matters in their own hands.
Dr Charmain Badenhorst, Directorate: Family Law and Child Justice, DoJ&CD, responded to Adv Breytenbach’s question on a child of 16 years taking responsibility. She explained that this was a correction in the definition. The Bill has replaced adult with person because a person who is 16 years is not an adult. An appropriate person is defined to mean any member of a child’s family, including a sibling who is 16 years or older. A child will always have legal representation and the 16 year old sibling will be responsible for the child being brought back to court. There is need for someone to take responsibility for a child when the child is arrested because sometimes parents do not want to take the child whenever a child is released to them. The current position is that 16 year olds can take responsibility.
Adv Breytenbach stated that this will translate to children looking after each other. She asked whether there could be another measure where children are given support by someone more responsible.
Deputy Minister Jeffrey responded that the reality in South Africa is child headed households. However; the Department is ready to look at alternatives. He asked Adv. Breytenbach to offer suggestions on how to deal with the issue.
Dr Badenhorst stated that a caregiver in the Children’s Act is defined as a head of children’s household and that the amendment was necessary to bring the provision in line with definition in the Children’s Act.
Mr S Swart (ACDP) noted that clause 22 amends section 92 of the principal Act. Changing adult to person in the definitions is a good amendment. He was however concerned that there are no statistics on persons using children to commit crimes. He added that the DOJ should be concerned since moving the age for criminal responsibility from 10 to 12 years will result in children being used by other children to commit crimes.
Dr Badenhorst responded that the issue of persons using children is not linked to the age of criminal capacity because it depends on the crime the persons want the child to commit. She however agreed with Mr Swart that it is a concern and that there is need to create awareness.
Deputy Minister Jeffrey added that section 92 is covering a 17 year old using a child to commit a crime. He stated that there are no statistics because it is not clear on the number of arrests that have been made under the section.
Mr Swart added that there is need to monitor this especially in gang related activities since word can go around that 11 year olds can not be charged for criminal activities.
Deputy Minister Jeffrey suggested that the Committee includes in its report recommendation for SAPS to provide statistics on the arrests done under section 92 of the Child Justice Act.
Adv Breytenbach proposed to the Chairperson that it is not necessary to go through the Bill clause by Clause.
The Chairperson requested the parliamentary legal advisor to check on everything prior to the Committee dealing with the report the following day.
The meeting was adjourned.
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