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Child Justice Amendment Bill Sent for Assent

November 27, 2019


27 November 2019

The Child Justice Amendment Bill has been passed by parliament and sent to president Ramaphosa for assent.

The national assembly (NA) passed the bill and sent it to the national council of provinces (NCOP) for concurrence in November 2018.

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

The bill lapsed at the end of the 5th parliament but was revived by the NCOP in October 2019.

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.

During deliberations, the portfolio committee on justice and constitutional development introduced amendments to the bill.

Clause 15 stipulates that a prosecutor may divert a matter in the case of a child 12 years or older but under the age of 14 years if he/she is satisfied that the child will benefit from diversion.

In cases where prosecutors and inquiry magistrates hold the view that a child is unlikely to benefit from diversion, or if diversion is inappropriate, the child may be referred to a probation officer to be dealt with as a child that lacks criminal capacity in terms of section 9 of the act.

A new clause 20 stipulated that the above-mentioned provisions also apply to child justice courts.

Meanwhile, the NA rules committee has agreed to draft rules for removing office bearers and commissioners in Institutions Supporting Constitutional Democracy.

The Chapter 9 institutions are the Auditor General; the Commission for Gender Equality; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Electoral Commission; the Public Protector; and the South African Human
Rights Commission.

According to a statement, the draft rules outline what will constitute the grounds of misconduct, incapacity or incompetence:

• “misconduct” means the intentional or gross negligent failure to meet the standard of
behaviour or conduct expected of a holder of a public office;
• “incapacity” includes a permanent or temporary condition that impairs a holder of public
office’s ability to perform his or her work and any legal impediment to employment;
• “incompetence” in relation to a holder of public office, includes demonstrated and sustained lack of knowledge to carry out and ability to perform or skill to perform his or her duties effectively and efficiently.

Any member of the National Assembly will also be empowered to initiate, through a substantive motion, proceedings for a section 194 inquiry.

“The National Assembly Speaker must refer the motion and any supporting documents for preliminary assessment to an independent panel. The Speaker must also, without delay, inform the Assembly and the President of this referral.”

If a special section 194 committee “recommends that the holder of a public office be removed from office, the question must be put to the Assembly directly for a vote in terms of the rules and if the required majority of Assembly members support the question, the Assembly must convey the decision to the President”.