Criminal Capacity of Children in South Africa

In January 2019, Parliament’s portfolio committee on justice and correctional services adopted the Child Justice Amendment Bill and pushed the minimum age of criminal capacity of children from 10 years to 12 years. South African law currently states that children under the age of 10 do not have criminal capacity and cannot be prosecuted for committing crimes.

Committee chairperson Madipoane Refiloe Moremadi Mothapo said, “The primary objective of the Child Justice Amendment Bill is to increase the minimum age of criminal capacity of children from 10 to 12 years and to remove the requirement to prove criminal capacity for purposes of diversion and preliminary inquiries.”

Currently, the Child Justice Act regulates the criminal justice system that caters for children under the age of 18 years. On the issue of capacity, the Act states the following:

  • Children up to 10 years of age, lack criminal capacity and may not be arrested for committing an offence. These children must be referred to the Children’s Courts or the Department of Social Development.
  • Children from 10 years of age and up to 14 years of age have criminal capacity, but the onus rests on the State to prove beyond a reasonable doubt that an accused child had criminal capacity when committing a crime.
  • Children above 14 years of age are regarded by the law to have the mental ability to distinguish between right and wrong and can understand the consequences of their actions. They can be prosecuted for their crimes.

The amendment to the law will make provision for the following categories that will determine the appropriate punishment:

  • Schedule 1: less serious offences
  • Schedule 2: slightly more serious offences
  • Schedule 3: very serious offences, such as murder, rape, sexual offences and aggravated robbery

The serious offences will usually be adjudicated in the Child Justice Court, and if a child is convicted, they can be sentenced to or complete any of the following: community service, peer association, written apologies or supervisions. In terms of actual being in custody, a child can be sent to a youth care centre or prison. A child will only be sent to the latter if they have already served time in a youth care centre and if it’s a last resort.

A child may not be sentenced to a term of more than 25 years behind bars.

In some instances, however, young children are used by older children to commit crimes. The amendment will also substitute the word “adult” with “persons” to deal with this.

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