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DOJCD Shines Light on Child Justice Amendment Act

April 28, 2022

Department of Justice and Constitutional Development

The justice and constitutional development department anticipates that the Child Justice Amendment Act and the Draft Regulations will come into effect by 30 June 2022.

The department revealed this in a briefing to the select committee on security and justice in parliament.

President Ramaphosa assented to the act in May 2020.

The act aims to amend the Child Justice Act, 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 act seeks to increase the minimum age of criminal capacity of a child from ten years to twelve years.

It also aims to remove the requirement to prove criminal capacity for purposes of diversion and preliminary inquiries.

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.

According to the department, most of the amendments to the regulations are of a consequential nature in order to align them with the changes brought about by the amendment act.