Law Clinix

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Correctional supervision - Is a form of sentence whereby a child is monitored by the correctional officers.

Court order - It is a court decision that can be taken at any stage of the case e.g. child is ordered by court to go for mental observation.

Criminal capacity - To be in a position to appreciate consequences of your actions. For example, do you understand that stealing is wrong? If the answer is yes, you might have criminal capacity. If the answer is no, then maybe, you may not have criminal capacity as a child.

Non-custodial sanctions program – Where sentences which do not warrant the child being placed in detention or the child is not sent to prison.

Preliminary inquiry - Hearing in a room which is in the court building where the circumstances which led to the child committing the offence are discussed. The magistrate, child, parent, prosecutor, victims and any other person whom the court may require, need to be present.

Probation Officer – Is a social worker dealing with the assessment of children who are accused of committing an offence.

Child Justice Court

Prior to 1 April 2010, children who committed a crime were dealt with, in terms of the Criminal Procedure Act, 1977 (Act 51 of 1977) which also deals with adults who have committed a crime.

The aim of the CJA (Child Justice Act) is to set up a child justice system for children in conflict with the law. This means that children under the age of 18, who are suspected to have committed crime, will not be dealt with in terms of the normal criminal procedure which is used for adults, but the child justice process will be followed.

The CJA seeks to ensure that child justice matters are managed in a rights-based manner and to assist children suspected of committing crime to turn their lives around and become productive members of society by engaging with the child in restorative justice measures, diversions and other alternative sentencing option.


The CJA will have long term benefits for children and the country as a whole. It allows for a justice system that heals children and those who were affected by a child’s action, encourages forgiveness and rehabilitation, and looks after the needs and rights of children and victims.

The CJA allows the child’s background or upbringing to be taken into consideration. It ensures that the individual needs and circumstances of certain children in conflict with the law are assessed when a decision is made about the child.

The CJA balances the rights and responsibilities of the child, the victim and the community. When considering diversion options before a trial, the victim’s or his/her families’ views are also  taken into consideration by the prosecutor and the court.

The CJA also states that the damage caused by the child to the victim should be considered.

The victim or someone representing the victim may submit a statement that reflects the physical, psychological, financial, or any other impact that the child may have caused as a result of the crime on the victim. This helps make a healing and peace-making process happen and further expands and entrenches the notion of restorative justice.

 The CJA makes it easier to help the rehabilitation and integration of the child who is in conflict with the law, into society so that he/she can grow up and make a useful contribution to society.

Courts continue to prioritize and fast-track children’s matters in the child justice system and this leads to the reduction of children awaiting trial.

This also leads to an increase in the numbers of children in home-based supervision and in secure care facilities. 



According to the CJA, a child is someone who is under the age of 18. The CJA is specifically intended for children between the ages 10 and 18. The CJA states that:

• A child under the age of 10 years cannot be arrested! This means that a child under the age of 10 years does not have criminal capacity and cannot be charged or arrested for an offence. In such a case, the child will be referred to the Children’s Court.

• A child older than 10 years but below the ages of 14 years is presumed to lack criminal capacity unless the state proves that he/she has criminal capacity. Such a child can be arrested.

• A child above 14, but under 18 years of age, is said to have criminal capacity and can be arrested.



The CJA provides for three different categories of offences: 

1. Schedule 1 - Minor offences include theft of property with a value of no greater than R 2500-00, malicious damage to property that is not more than R 1500-00 and common assault.

2. Schedule 2 -More serious offences include theft of property with a value of more than R 2500-00, robbery, but not robbery with aggravating circumstances, assault that includes causing of grievous bodily harm, public violence, culpable homicide and arson.

3. Schedule 3 - The most serious offences include robbery, rape, murder and kidnapping amongst others.



1. A child is suspected to have committed an offence. In the event of an offence that is not serious, the child will not be arrested but be warned to appear in court.

2.  If the offence is serious, the child is informed, arrested and charged by the police. If the offence is less serious, the child and his/her parents or care givers, will be warned or summonsed to appear in court by the police.

3.  The are two possibilities at this stage: 

  • A child under 10 may be referred to a children’s court, or THE CHILD JUSTICE ACT, 2008 (ACT NO 75 OF 2008)
  • The child above 10 years must be assessed by a probation officer (Social Worker).

4.  The parents or other care givers or police bring the child to court.

5.  A preliminary inquiry will be set-up to inquire into the matter and how the child may be assisted if he or she accepts responsibility.

6.  At the preliminary inquiry there are four possible steps that may be taken:

a).  If the child is in need of care and protection i.t.o Sec 50 of Children's Act 38 of 2008, the matter will be referred to the children’s court which will determine the best possible environment for the child.

b).  At the preliminary inquiry, the probation officer’s assessment report will be considered to determine if the child has criminal capacity. The child could then be referred to the Children’s Court or be diverted.

c).  If the child accepts responsibility, The court may recommend at the preliminary inquiry that the child be diverted. If the child does not complete or comply with the diversion, he/she will be brought back to court.

d).    If the child does NOT accepts responsibility no diversion order made by the court or the child does not comply with the diversion, the case is referred to the Child Justice Court for trial.

7.  At the trial the child could be convicted and sentenced or acquitted. 


Applications for expungement of diversions in terms of the Child Justice Act, 2008 (Act No 75 of 2008), can also be done. 

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