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23. IN WHAT WAY ARE MINORS TREATED DIFFERENTLY TO ADULTS BY THE CRIMINAL JUSTICE SYSTEM IN SOUTH AFRICA?

In terms of the Constitution, every child (under 18 years) has, amongst others, the right:

to family care or parental care, or to appropriate alternative care when removed from the family environment;

to basic nutrition, shelter, basic health care services and social services;

to be protected from maltreatment, neglect, abuse or degradation;

not to be detained except as a measure of last resort, in which case;

to be detained only for the shortest appropriate period of time;

to be kept separately from detained persons over the age of 18 years;

to be treated in a manner, and kept in conditions, that take account of the child’s age;

to have a legal practitioner assigned to the child by the state, and at state expense;

A child’s best interests are of paramount importance in every matter concerning the child.

Arrest and Detention Awaiting Trial.

Because an accused person, before conviction, ought to be treated as far as possible as being innocent, arrest should be effected only where it is likely that a summons or written notice to appear would be ineffective. In most cases children are not arrested in the normal sense of the word. The investigating officer in a matter would often arrange with a child’s parent or guardian to bring the child to the police station. If the need arises, however, a child will be arrested like any other suspect.

Any arrested child must, before he is released, be assessed by a probation officer as soon as reasonably possible, but before his or her first

Sec 28 0f Act 108 0f 1996 S v More 1993

(2) SACR 606 (W) 608appearance in court. A probation officer is normally a trained social worker in the employ of the state. The probation officer must make a recommendation to the court as to whether the child should be placed in the care of his parent, or be detained in custody. In most cases a child would be kept in a special detention facility known as a “place of safety”. A Child would only be detained in prison in extreme cases.

Trial

Children, especially first offenders, are often not prosecuted for less serious offences. Before commencement of the trial the children can be enrolled in a juvenile diversion programme like one offered by NICRO. An accused who had successfully completed the program would have the charges withdrawn against him.

The general principle is that criminal trials are to be open to the public. When a child is the accused, only the court officials and the child’s parents or guardians may be present at the proceedings. The rest of a criminal trial of a juvenile is the same as for an adult.

Sentencing

The objective of sentencing of juvenile offenders is the desirability of ‘promoting the child’s reintegration and assuming a constructive role in society’.

As a rule of practice, a court must obtain a pre-sentence report from a probation officer or a correctional officer. Such a report is necessary where the accused has committed a serious offence, or where he has previous convictions.

Sec 4B Probation Services Act 16 of 1991

Sec 153(4) Criminal Procedure Act 51 of 1977

Article 40(1) and 40(4) of the Convention on the Rights of the Child The court must exercise its wide discretion sympathetically and imaginatively, to determine a sentence which is suited to the accused, in the light of his personal circumstances and of the crime of which he stands convicted. This entails, firstly, the determination of the most appropriate form of punishment and, secondly, the adaptation of that punishment to suite the needs of the particular accused.

The courts normally adopt as its point of departure the principle that, where possible, a sentence of imprisonment should be avoided.

Child Justice Act 2009

It is expected that the new act will take effect on 10 April 2010. The act aims to establish specialised child justice courts to ensure an appropriate environment for child offenders. New Child Justice Centres will be opened as a “One Stop Shop” for dealing with all phases of a child’s dealing with the criminal justice system. The act regulates the entire process from arrest to appeals.

S v Z 1999(1) SACR 427 (E)

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