1. INTRODUCTION

1.1 South Africa ratified the United Nations Convention on the Rights of the Child (1989) on 16 June 1995. This important Convention deals with a broad range of children’s rights and provides a comprehensive framework within which the issue of juvenile justice must be understood. By ratifying the Convention, South Africa is now obliged, in terms of article 40(3) thereof, to establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law. The Convention requires, in article 40(1), that “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”.

1.2 A steering committee chaired by the Minister of Health has been established to develop a National Plan of Action to give life to the Convention, and the justice sectoral group linked to the National Plan of Action has identified the drafting of composite juvenile justice legislation as a priority. The justice sectoral group recommended that the South African Law Commission should be requested to develop a juvenile justice system to give effect to the Convention. Following a request by the Minister of Justice the Commission included an investigation into juvenile justice in its law reform programme. The Commission established a project committee for the investigation to which the Minister made appointments on 5 December 1996.

1.3 South Africa does not have a cohesive juvenile justice system. Limited provisions providing specifically for the management of young people caught up in the criminal justice system are spread throughout a number of separate statutes. They are the Criminal Procedure Act 51 of 1977, the Probation Services Act 116 of 1991, the Child Care Act 74 of 1983 and the Correctional Services Act 8 of 1959.

1.4 In the 1970's and 1980's the detention of children without trial was a major concern to NGOs, parent committees and other interested parties. Towards the end of the 1980's, political detention of children drew to an end but large numbers of children continued to be held in custody awaiting trial and NGOs focussed on the plight of these children. In 1993 the South African Government undertook an investigation into alternative centres for children in detention in which a number of suggestions were made but were not acted upon. In 1994 a group of NGOs published proposals for policy and legislative change in the field of juvenile justice.^[1] There have also in recent years been a number of national and international conferences on juvenile justice in South Africa as well as a range of NGO and Government initiatives and pilot projects. In addition interest in the field of juvenile justice has led to local research and publications.

1.5 Piece-meal attempts to introduce reforms to the criminal justice system with the aim of protecting young people charged with offences have not been effective. What is now needed, and what is propounded in this issue paper, is the development of a separate piece of legislation which governs a comprehensive juvenile justice system for South Africa. Apart from the international requirements, the National Crime Prevention Strategy and the Interim Policy Recommendations of the Inter-Ministerial Committee (IMC) on Young People at Risk^[2] which have been approved by Cabinet, also recognise the need for a separate juvenile justice system.

1.6 Ultimately the aim should be the achievement of composite legislation regarding children. For this reason all efforts at legislative reform for children should be coordinated.

1.7 The following issues, in respect of which certain preliminary proposals are made or options are put forward for consideration, have been identified and are discussed in this issue paper with a view to eliciting comment and stimulating debate on the entire question of juvenile justice legislation in South Africa:

(i) Principles to underpin juvenile justice legislation
(ii) Age and criminal capacity
(iii) Legal representation
(iv) Police procedures
(v) Release policy
(vi) Diversion
(vii) Juvenile courts
(viii) Sentencing
(ix) Monitoring

[1] Juvenile Justice Drafting Consultancy Juvenile Justice for South Africa: Proposals for Policy and Legislative Change Cape Town: Allies Printers 1994.

[2] November 1996. The IMC was established to manage the process of crisis intervention and transformation of the Child and Youth Care System over a limited time period.

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