Section Analysis Of The Child Justice Act 75 Of 2008 (CJA)
“The introduction of the CJA brought about many changes in South Africa came into operation on 1 April 2010 and with it came a criminal justice system for children and new standards for protecting child offenders”.
In its section 7, the CJA revised the prevailing common law age discrimination thereby raising the minimum age of criminal capacity from seven to ten years, the upper age of 14 years for the rebuttable presumption of doli incapax was retained. Section 7(2) of the CJA states: “ A child who is ten years or older but under the age of 14 years and who commits an offence is presumed to lack criminal capacity, unless the State proves that s/he has criminal capacity in accordance with section 11 of the CJA”.
“The concept of criminal capacity is equated with an acceptance that there are certain characteristics need to be present before an individual can be held responsible for his/her actions (or negligence) and such responsibility is a prerequisite for a conviction of guilt”. It is also a requirement for a guilty plea and, in the South African context for ‘diversion that is, dealing with children in conflict with the law ‘outside the formal criminal justice says capacity is usually understood to have a cognitive and a conative component which translates to the need to prove: “(i) the presence of an understanding of wrongfulness; and (ii) an ability to control one’s behavior in accordance with such an understanding”. If one of the two or both are lacking then the accused cannot be held criminally liable.
“A substantial change is observed in relation to criminal liability by raising this minimum age of criminal capacity from seven to ten years, CJA amends the common law principle by raising the minimum age of criminal capacity from 7 years to 10 years”. “In terms of section 7(2) of the Act a child, who is 10 years or older but under the age of 14 years and who commits a criminal offence is presumed to lack criminal capacity”. “The State must prove, beyond reasonable doubt, the capacity to appreciate the difference between right and wrong at the time of the commission of an alleged offence, and the capacity to act in accordance with that appreciation”.
Children under ten years old According to Burchell, Milton &Kenwyn (1997) “For a child that has not yet reached its tenth year, he/she is irrebuttably presumed to lack criminal capacity and as such cannot be said to be criminally responsible”. This applies regardless of whether the child is adequately mature to be able to appreciate the wrongfulness of the behavior and act in agreement with such an obligation as such a child is presumed to be criminally unaccountable by the CJA Although this rule is occasionally observed as being one of evidence, it is actually one of substantive law and currently integrated into the CJA in section 7.
Children between ten and 14 years “Children between the ages of ten and 14 years are presumed to be criminally unaccountable and as such lack criminal capacity”. The difference, however, lies in the fact that this presumption is rebuttable and as the child reaches the age of 14 it fades. “This concept of doli incapax for children between ten and 14 years was also relied upon by English law but not without reservations”.
According to Skelton &, BadenhorIt (2011) “Disapproval was established with regard to this presumption of lack of capacity as it was recognized that it exempted children who were in greatest need of reformative or corrective measures”According to Report of the workshop on criminal capacity of children (2011) every child who is alleged to have committed an offence must be assessed by a probation officer. “One of the purposes of the assessment, in the case of a child who is 10 years or older but under the age of 14 years, is to express a view on whether expert evidence on the criminal capacity of such child would be required”. “The probation officer makes recommendations on various issues, including the possible criminal capacity of the child, if the child is 10 years or older but under the age of 14 years, as well as measures to be taken in order to prove criminal capacity”.
“When deciding to prosecute a child between the ages of 10 years or older but under the age of 14 years, the prosecutor must consider factors such, as the educational level, cognitive ability, domestic and environmental circumstances, age and maturity of the child, the nature and seriousness of the alleged offence, the impact of the alleged offence on any victim, the interests of the community, the probation officer’s assessment report, the prospects of establishing criminal capacity if the matter were to be referred to a preliminary inquiry, the appropriateness of diversion, and any other relevant factor”. “The assessment report must be submitted to the prosecutor before commencement of the preliminary inquiry, and in the case where the child offender has been arrested, the preliminary inquiry must be conducted within 48 hours after the arrest”.
Skelton &, Badenhor (2011) claims that “If matter has not been withdrawn or diverted by the prosecutor before the preliminary inquiry, the matter must be referred to a preliminary inquiry”. The preliminary inquiry is in essence the first appearance of the child in a criminal court. Diversion is one of the objectives of the preliminary inquiry, but the inquiry magistrate may only consider diversion the matter if he or she is satisfied that the child had the necessary criminal capacity at the time of the commission of the offence. Contrary to the evaluation by psychiatrists and clinical psychologists, probation officers are not obligated to include an assessment of a child’s cognitive, moral, emotional, psychological and social development in their reports. “It is therefore questionable whether probation officers’ reports are adequate to determine criminal capacity beyond reasonable doubt, when these reports lack in-depth analysis of the child’s psychosocial development and functioning”.
It should also be noted that in accordance with section 40(1) of the Child Justice Act, an estimation of criminal capacity is only one of many issues that probation officers. “The inquiry magistrate or child justice court may, of its own accord, or on the request of the prosecutor or the child’s legal representative, order an evaluation of the criminal capacity of the child by a suitably qualified person. The evaluation must include assessment of cognitive, emotional, moral, psychological and social development”.
“The provisions of sections 77 and 78 of the Criminal Procedure Act 51 of 1977, dealing with ‘Capacity to Understand Proceedings: Mental Illness and Criminal Responsibility’ are very important when deciding whether or not to prosecute child offenders and also to determine whether they will follow what is happening during their appearance in a child justice court. Section 77 provides that the accused must be capable of understanding the proceedings so as to make a proper defence”.
Section 78 provides that if an accused person suffers from a mental illness or mental defect which makes him incapable of appreciating the wrongfulness of his act or incapable to act in accordance with such appreciation, he or she shall not be criminally responsible for such act. “These sections are still applicable to children and have not been repealed”. The Child Justice Act No. 75 of 2008 instructs that both the cognitive and conative components must be satisfied to prove criminal capacity in a child between 10 and 14 years of age. Conversely, in the case of adults the Criminal Procedure Act No. 51 of 1977 requires evidence of deficit in one of those components to render the accused not criminally responsible.
Although sometimes used interchangeably, the term criminal responsibility becomes relevant as a consequence to a finding of criminal capacity. In other words, an individual can be deemed criminally responsible only if it is proven that he/she has criminal capacity, that is, a lack of criminal capacity is one of the ways in which one can lack criminal responsibility. Risks associated with setting the age too low: The potential dangers associated with assuming the criminal capacity of children who do not have the requisite cognitive and conative capacity have been identified by those campaigning internationally to raise the chronological age at which such capacity is assumed, and include: Subjecting children to a criminal justice system labels children with an identity at a critical stage of their identity formation, and could have a marked effect on the trajectory of their social and psychological development”.
Consequences of a guilty conviction may often include a period of incarceration. Such places are ill equipped to provide therapeutic environments and are more inclined to arrest development than facilitate healthy growth and address deficiencies in early development. A period of exclusion from normal educational facilities is likely to inhibit career advancement and condemn the future young adult to underemployment or unemployment. The lack of a legitimate means of financial independence in adulthood may act as an incentive for future criminal activity and should such procedures and consequences be interpreted as unfair it is likely that this will contribute to an anti-social or anti-establishment attitude to further compound a personal sense of alienation.
Risks associated with setting the age too high: It is, however, necessary to question the basis for such changes and ‘enlightened developments’. Possible dangers of setting the age of capacity too high include the following: It would be necessary to find justification for increasing the age at which children are assumed to have criminal capacity whilst decreasing the age at which children are afforded civil liberties and responsibilities.
It may even be insulting to children to recognize that they have access to information and education which equips them with an ever increasing amount of knowledge, yet simultaneously for adult society to assume an ever-decreasing cognitive capacity to appreciate the difference between right and wrong, even though knowledge does not equate to appreciation of the difference between right and wrong, one has to ponder whether this approach is contributing to a generalized ‘dumbing down’ of children, despite the availability of an increasing amount of information.
Another area of potential significance is the conflation of the child’s ability to appreciate wrongfulness with the child’s ability to appreciate the difference between lies and truth. Much campaigning has taken place in recent years to encourage courts to adopt a more informed approach to the testimony of children both as victims and as witnesses. Whilst there is some merit in a cautionary attitude to such testimony there is sufficient knowledge, supported by research, to advance the view that a child’s capacity to be accurate in their testimony is perhaps greater than was previously assumed. When viewed in parallel with the increasing age of assumed criminal capacity (the ability to discern right from wrong), we are witness to a decreasing age of assumed reliability of a child’s testimony and their ability to discern truth from falsehood.
