Parliament Briefed on Child Justice Amendment Bill

Department of Justice and Constitutional Development

The Child Justice Amendment Bill seeks to remove the expression “prima facie case against a child” from the act as the threshold is too high.

The justice and constitutional development department pointed this out during a briefing on the bill in parliament.

The department added that the expression can be interpreted to include proving criminal capacity “which can have a chilling effect on children being placed under diversion”.

The department wants to replace the expression with “prima facie evidence that the child committed the offence” which is designed to “facilitate children being placed under diversion, in deserving and appropriate circumstances and in their best interests where the child freely and voluntarily acknowledges responsibility”.

The bill was tabled in parliament at the beginning of October 2018.

It aims to increase the minimum age of criminal capacity of a child from ten years to twelve years.

The bill also seeks to remove the requirement to prove criminal capacity for purposes of diversion and preliminary inquiries.

The bill aims to amend the Child Justice Act of 2008, so as to:

•    amend a definition;
•    further regulate the minimum age of criminal capacity;
•    further regulate the provisions relating to the decision to prosecute a child who is 12 years or older but under the age of 14 years;
•    further regulate the proof of criminal capacity;
•    further regulate the assessment report by the probation officer;
•    further regulate the factors to be considered by a prosecutor when diverting a matter before a preliminary inquiry;
•    further regulate the factors to be considered by an inquiry magistrate when diverting a matter at a preliminary inquiry;
•    further regulate the orders that may be made at the preliminary inquiry;
•    amend wording in order to facilitate the interpretation of a phrase;
•    further regulate the factors to be considered by a judicial officer when diverting a matter in a child justice court; and
•    provide for matters connected therewith.

The proposed legislation flows from a Report on the Review of the Minimum Age of Criminal Capacity drawn up in 2016.

The department also highlighted that the bill sought to give effect to recommendations that diversion be de-linked from the issue of criminal capacity and that criminal capacity only be addressed during plea and trial in a child justice court.

This is necessary in order to avoid unintended consequences in the implementation of the rebuttal presumption and to overcome practical challenges in respect of financial and human capacity.

Meanwhile, speaking at a Symposium on Human Trafficking in Johannesburg, the deputy minister of justice and constitutional development, John Jeffery, confirmed that the National Policy Framework on Trafficking in Persons is currently awaiting ministerial approval.

The deputy minister also indicated that a workshop in July 2018 agreed that South Africa should “adopt the SADC Tool on human trafficking, after adapting it to suit our specific conditions”.

Processes are currently underway to obtain cabinet approval for the proposed adoption.

Sabinet Cape Town Office

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