2. PRINCIPLES AND FRAMEWORK

2.1 In recent years the enshrining of principles within the body of juvenile justice legislation has found favour internationally, for example in New Zealand and Uganda. There are a number of international instruments which can be drawn on in order to crystallise what the relevant principles should be. The United Nations Convention on the Rights of the Child, referred to above, is a binding instrument and provides a backdrop to relevant sections in the Constitution such as sections 28 and 35. Other international instruments which have a direct bearing on the subject of young people in conflict with the law are the 1990 United Nations Guidelines for the Prevention of Juvenile Delinquency (known as the Riyadh Guidelines); the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the Beijing Rules), and the 1990 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (known as the JDLs). Although not legally in force, the African Charter on the Rights and Welfare of the Child is a useful document for the purposes of defining relevant principles.

2.2 Comment is invited on the question as to whether and in what way identified principles should be incorporated into proposed legislation for juveniles. The following four options are given for consideration:

(i) General principles could be set out at the beginning of the legislation.

(ii) Principles pertaining to a particular section could be set out at that section where they could be used to assist with interpretation of those provisions, for example principles relating to sentencing.

(iii) A combination of the above two options could be applied.

(iv) Principles could be incorporated as provisions within specific clauses.

2.3 In addition to principles, the objectives of the legislation could be set out in order to enlighten all persons involved with the administration of such legislation as well as the public at large.

2.4 The international instruments read together with the South African Constitution are useful in two respects. Firstly, they may be incorporated into legislation to guide interpretation and action within its scope. Secondly, they can offer guidance in the legislative process by providing standards that new juvenile justice legislation should meet.

Framework derived from the principles

2.5 The South African Constitution and international instruments give an outline of what should be included in a future South African juvenile justice system. In line with these principles the project committee is of the view that the over-all approach should aim to promote the well-being of the child, and to deal with each child in an individualised way. A key aspect should be diversion of cases in defined circumstances away from the criminal justice system as early as possible, either to the welfare system, or to suitable diversion programmes run by competent staff. There should be a vigilant approach to the protection of due process rights. The involvement of family and community is of vital importance, as is sensitivity to culture, tradition and the empowerment of victims. There should be an emphasis on young people being held accountable for their actions. This should be done in a manner which gives them an opportunity to turn away from criminal activity.

2.6 Children going through the criminal justice system should be tried by a competent authority (with legal representation and parental assistance) in an atmosphere of understanding conducive to his or her best interests. The child should be able to participate in decision-making. All proceedings should take place within the shortest appropriate period of time and there should be no unnecessary delays.

2.7 In deciding on the outcome of any matter involving a young offender, the presiding officer should be guided by the principle of proportionality, the best interests of the child, the least possible restriction on the child’s liberty and the right of the community to live in safety. Depriving children of their liberty, either whilst they await trial or as a sentence, should be a measure of last resort and should be restricted to the shortest possible period of time. Mechanisms for ensuring all of this need to be built into the juvenile justice system.^[3]

Framework derived from the South African policy documents

2.8 Linked to international developments is the recent endorsement in the National Crime Prevention Strategy and the IMC’s Interim Policy Recommendations of the need to introduce restorative justice values, principles and practices for juvenile justice. Restorative justice relies on reconciliation rather than punishment, on offenders accepting responsibility for their behaviour, and on the involvement of victims in the negotiation of an agreement or outcome including restitution, which may be symbolic. Restorative justice practices facilitate the reintegration of the offender back into society,^[4] drawing on community-based and indigenous models of dispute resolution. In line with national policy, the restorative justice approach forms part of the framework underpinning a new juvenile justice system.

[3] A Skelton Developing a juvenile justice system for South Africa: International instruments and restorative justice 1996 Acta Juridica 180 - 196.

[4] United Nations Convention on the Rights of the Child, article 40(1).

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