Child Justice Act soon to be amended
Kids below 12 years will no longer be held accountable for the commission of criminal offences, but it will create the possibility for all children aged 12 to 14 (who meet all the requirements for accountability) to be held criminally liable and accountable for their criminal acts.
Early next year South Africa will possibly have to adhere to new legislation as the Child Justice Act 75 of 2008 has been placed under review because it has not complied with international standards for the past five years.
According to the United Nations Committee on the Rights of the Child, a minimum age of criminal capacity below the age of 12 is considered not to be internationally acceptable. On June 17, 2008 the minimum age of criminal capacity in South Africa, however, was fixed on 10 years and it came into operation on April 1, 2010. South Africa also retained the doli incapax presumption, which was also suggested to be abandoned by the United Nations in order to comply to international standards.
Doli incapax refers to someone who is not in the possession of sufficient discretion and intelligence to distinguish between right and wrong to the extent of being criminally responsible for his actions (Black’s Law Dictionary). In South Africa this is applicable to children aged 10 or older but under 14 which means that if any such child was to be prosecuted, the prosecution had to prove that the accused had the required criminal capacity at the time of committing the crime, a report states.
According to this research report conducted by Ann Skelton, director of the Centre for Child Law at the University of Pretoria, and Charmain Badenhorst, senior researcher at the Meraka Institute at CSIR in Pretoria who obtained a doctorate in law on criminal capacity at the University of South Africa, state parties such as South Africa are encouraged by the United Nations to increase their minimum age of criminal capacity to 12 years as an “absolute minimum” and to continue to increase it to a higher age level.
According to the report, the main reason why the portfolio committee did not raise the minimum age of criminal capacity and reject the doli incapax was due to the fact that no reliable or accurate statistics could be provided of kids aged 10 to 13 who have been accused of committing offences or the type of crimes that they have allegedly committed in South Africa.
It states raising the minimum age of criminal capacity and abandoning the doli incapax presumption will not only comply with international standards, but also balance the accountability of children in this age group. Kids below 12 years will no longer be held accountable for the commission of criminal offences, but it will create the possibility for all children aged 12 to 14 (who meet all the requirements for accountability) to be held criminally liable and accountable for their criminal acts. They will therefore be dealt with in the same way as children from the ages of 14 to under 17 years.
