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3.1 In both international and national law, the definition of a juvenile is directly or indirectly related to age. The term "juvenile", however, may differ from that of "child". The Constitution of South Africa, in section 28, defines a child as a person below the age of 18. Section 28 also enshrines certain rights relevant to juvenile justice, which then apply to those below the age of 18: specifically, the right to be detained only as a matter of last resort, and the right when detained to be treated in a manner consistent with the child's age. Also, children under 18 are to be detained separately from adults. The Criminal Procedure Act 51 of 1977 provides for special procedures in instances where children under 18 are dealt with after arrest, and during court proceedings. Examples in point are section 50(4) and (5) (duty to notify parent or guardian of arrest of person under the age of 18; duty to notify probation officer of arrest of child under the age of 18); section 72(3) (accused under the age of 18 entitled to be assisted at criminal proceedings by parent or guardian) and section 153(4) (proceedings to be held in camera where the accused is under the age of 18 years).
3.2 The present Correctional Services Act 8 of 1959 defines a juvenile as a person under the age of 21 years. Within the departmental practice, however, the category "child" has now been recognised as distinct from juvenile and children are those under the age of 18. In the new draft Correctional Services Bill, a definition of child has been incorporated, and the age limit of 18 is used. No definition of juvenile or youth other than this has been included.
3.3 According to Rule 2(2) (a) of the Beijing Rules, "a juvenile is a child or young person who under the respective legal system may be dealt with for an offence in a manner which is different for an adult". This definition allows a national system to define who should be considered to be a juvenile. However, the later United Nations Rules for the Protection of Juveniles Deprived of their Liberty addresses this anomaly by defining a juvenile as every person under the age of 18 years.[5] The United Nations Convention on the Rights of the Child (hereafter “the CRC”) is applicable to all children under the age of 18 years. The Convention's juvenile justice rules apply to all persons below this age, regardless of whether national criminal law treats younger persons as if they were adults. For those states who are party to the CRC, the principal definitional limitation of the Beijing Rules is overcome and the concepts of juvenility and childhood under 18 are linked.
3.4 Both international law and national law have recognised the age of 18 years as the appropriate age for separation of young people from the adult criminal justice system. It would appear that no reform in respect of this age is necessary. However, the choice of the terminology ‘juvenile’ or ‘child’ or ‘youth’ or ‘young person’ would be relevant to the title and wording of the new proposed legislation. The word juvenile has negative connotations and is no longer accepted internationally.[6] The word youth has particular meanings within the South African context and includes people over the age of 18 years. Child and/or young person would seem to be the most appropriate choices. The word offender, for example as in Child Offenders Act, should be avoided as it is labelling and assumes guilt. Comment on this issue is invited.
3.5 In South Africa the minimum age of criminal capacity is determined by the doli capax/ doli incapax rule. Below the age of 7 years, the child is irrebuttably presumed to lack criminal capacity.[7] Between the ages of 7 and 14 years there is a rebuttable presumption that children under 14 years, but 7 years or older, are deemed to lack criminal capacity unless the State proves that the child in question can distinguish between right and wrong and knew the wrongfulness of the offending at the time of commission of the offence. This rule dates back to Roman law.
3.6 The presumption was designed to protect children, but practitioners have noted that it is all too easily rebutted, and that it does not in fact present an impediment to the prosecution and conviction of young people.[8] For instance, mothers of children are asked to indicate whether their children understand the difference between right and wrong. An answer in the affirmative is often considered sufficient grounds to rebut the presumption of doli incapax. The courts have noted that caution should be exercised where accused are illiterate, unsophisticated, and moreover are children "with limited grasp of the proceedings".[9]
3.7 The practical considerations noted here, namely the fact that many children do not enjoy legal representation during criminal proceedings - many appear without parental assistance and are ill-equipped to defend themselves in criminal proceedings - may have a bearing on decisions relating to the fixing of a minimum age of criminal capacity.
3.8 “International law incorporates a number of basic principles upon which a juvenile justice system should be based. The first purpose is the encouragement of the well-being of children; the second goal is that children should be dealt with in a manner proportionate both to their circumstances and to the offence”;[10] “another principle ... is that the concept of criminal responsibility should be related to the age at which children are able to understand the consequences of their actions”.[11]
3.9 The Convention on the Rights of the Child places a duty on state parties to establish a minimum age below which children shall be presumed not to have the capacity to infringe penal law. The Beijing Rules (Rule 4) recommend that when states establish such an age of criminal responsibility, “the beginning of that age shall not be fixed at too low an age level bearing in mind the facts of emotional mental and intellectual maturity”. The Commentary to the Rules points out that if the age were set too low or was non-existent, the concept of responsibility would become meaningless.
3.10 There are wide differences internationally in relation to when criminal capacity is deemed to commence. Within Europe, for example, the lowest is Ireland (7 years), while in Sweden it is 15 years. In the USA, different states have adopted different ages, with the lowest reportedly being 10 years.[12]
3.11 In Africa, recent legislative reforms have indicated a trend towards raising the age of criminal capacity. In the 1996 Uganda Children's Statute, the age of criminal capacity has been fixed at 12 years (article 89). It had previously been 7 years. In Ghana, the Proposals for a Children's Code recommend that "the minimum age of criminal responsibility shall be fourteen years".[13]
3.12 A survey of available statistics and published research indicate that a rough estimate can be made as to the percentage of children who would be affected by raising the age of criminal capacity. Field research in six geographical areas, spanning 5 provinces and encompassing both rural and urban areas, using a 2 month sample of juvenile court records, found that out of an overall sample of 970 cases, fewer than 10% of the sample concerned children below the age of 14.[14] No child of 10 or younger was actually tried by a criminal court. In 80% of the cases where the accused was 12 years or younger, no criminal trial eventuated.
3.13 The most recent official statistics concerning juvenile arrest and detention pertain to 1993/1994, and are not age differentiated. Arrest statistics for 1995 and 1996 for the Western Cape, the only province for which this information was available, demonstrate that the proportion of children arrested in 1995 aged between 7 and 13 years was 16,3%. This proportion dropped to 14,7% in 1996.
3.14 There are indications that younger children are rarely convicted in criminal courts. Raising the age of criminal capacity to 12 or 14 as described below may prevent unnecessary pre-trial arrest and detention of such younger children.
3.15 Widespread dissatisfaction has been noted with respect to the rebuttable presumption of incapacity that applies to children between the ages of 7 and 14, on the basis that it is too easily rebutted, and does not protect children from prosecution and conviction.
3.16 One option would be to retain the doli capax / doli incapax presumption, ie with a lower threshold age of 7 years, placing more emphasis on rebutting the presumption. Suggestions in this regard have included raising the burden of proof from a balance of probabilities to beyond all reasonable doubt, and/or a requirement that the state lead expert testimony on an accused child’s development. This option may have cost implications and because it involves a distinct procedural step, may cause delays.
3.17 A second option would be to raise the lower age of criminal capacity from 7 to 10 years and retain the presumption for children over 10 years and under 14 years with the safeguards referred to in paragraph 3.16.
3.18 A third option would be to part with the rule of doli capax / doli incapax and to raise the minimum age of criminal responsibility to the age of 12 or 14 years. South Africa has one of the lowest threshold ages of criminal capacity in the world. Many academics and practitioners have argued that the minimum age should be raised in accordance with international rules. The age set should be related to the age at which children are able to understand the consequences of their actions. The age chosen should be linked to cultural conceptions relating to childhood and maturity, as well as to the practical realities noted above. Recent examples from neighbouring countries in Africa suggest an age of 12 or 14 years.
Comment is invited on these or on any other options.
Children’s court inquiry
3.19 Use of children’s court inquiries is linked to debates about raising the age of criminal capacity. Many countries which have a higher minimum age of criminal capacity than does South Africa retain care and protection or welfare-oriented proceedings. World wide, very young children who find themselves in trouble with the law are often those who require social welfare investigation and support.
3.20 The Children’s court exists in terms of the Child Care Act, 1983. It is a non-adversarial forum in which inquiries are held as to the care needs of children. The option of converting criminal cases into Children’s court inquiries where the child accused is perceived to be in need of care, is provided for in section 254 of the Criminal Procedure Act, 1977. The advantage of a Children’s court inquiry for children in trouble with the law who also have care needs is that a full assessment is made by a social worker relating to the child’s circumstances, and also the fact that the criminal matter falls away, thereby giving the child a chance of avoiding a criminal record. There are, however, problems associated with the Children’s court inquiry process. The procedure of conversion is not frequently used. Research[15] involving a specific sample of 970 cases found that only 11 cases were routed to the children's court.[16] A second disadvantage is that the current Children’s courts require additional personnel, better resources and more training.
3.21 One option is the proposal of the Inter-Ministerial Committee on Young People at Risk[17] (hereafter “the IMC”) that "[t]he children's court should become far more central to the issue of youth justice than it currently is ... It is recommended that serious consideration be given to the referral of all cases of children under the age of 14 or under the age of 12 to a children's court. This would require legislative change".[18] This would mean mandatory referral to the children’s court regardless of the seriousness of the offence.
3.22 A second option is discretionary referral of children under the age of 14 or under the age of 12 to a children’s court with other options such as police cautioning or family group conferencing being retained.
3.23 Because a new, higher age of criminal capacity would place additional demands on the children's court system, the IMC report notes that "appropriate expansion of the [Children's Court] would need to be planned and budgeted for".[19]
Comment is invited on these issues.
3.24 It is not uncommon for South African children to be unaware of their ages and dates of birth. In some cases even the parents of such children are unable to give particulars in this regard.
3.25 In terms of section 337 of the Criminal Procedure Act 51 of 1977 the presiding judicial officer may estimate the age of a person if in any criminal proceedings the age of that person is a relevant fact of which no or insufficient evidence is available. The Court has correctly indicated, however, that the finding of the presiding officer may not be simply based on observation.[20] There should be a proper attempt at finding evidence and in the absence of such evidence the accused should, for example, be examined by a district surgeon.[21]
3.26 The recent changes to the law concerning pre-trial juvenile detention[22] put the question of age determination firmly on the agenda. In the past “there were few benefits to be had by false declarations of youthfulness. This changed dramatically with the introduction of section 29[23] with its twin cut-off points of 14 years and 18 years. It was, for juveniles and adults, all the more tempting to deceive about age, since release from custody was more or less guaranteed”.[24] A related problem reflects the converse: it also became more tempting for officials to record ages of arrestees on warrants as being 14 or over, since only then was the option of detention after first appearance in court possible.
3.27 Documentary proof of age is not always available, for several reasons, one of which is that many children's births were not registered in the past. Alternative methods, such as examination by the district surgeon, are inexact, and are not always helpful when precise cut off points (like 14 or 18 years) have to be established.
3.28 In the past it has been argued that the best way in which to solve the problem of proof of age (or lack thereof), would be to formulate a presumption that a juvenile should be deemed to be the age he or she claims to be until such time as the contrary is proved.[25]
3.29 However, given recent unfavourable experiences with the implementation of section 29,[26] and abuse by adults claiming to be juveniles, this proposal may not be ideal. Monitoring of prisons by the IMC[27] has revealed the presence of older persons incarcerated with children, claiming to be juveniles, as well as the converse: very young children, whose ages are reflected on the warrants of detention as being 14 years or over.
3.30 The IMC report concludes that "the only answer to the problem in the long term is for the birth date of every young person to be registered ...".[28] There are no quick solutions to this issue.
3.31 The problem of age determination is not discussed in the international instruments.
3.32 The proof of age problem is one that, in the short term, could increase with a dedicated juvenile justice act, rather than diminish. There are, however, no clear practical solutions where documentary evidence cannot be found, and where the age of the child is in dispute. It is however, essential that the issue be addressed within the confines of legislation on juvenile justice. Clear guidelines are required for the guidance of all role-players - probation officers, police and judicial personnel - as well as for the young people concerned. Duties should also be placed upon probation officers, police and other relevant officials to collect and find documentary proof of age where possible.
3.33 Guidelines on age determination could be cast as a series of options, the weight of each diminishing from the most reliable evidence (a birth certificate) to the least reliable, and could include presumptions where no oral or documentary proof exists. The determination envisaged by the present section 337 of the Criminal Procedure Act may warrant re-enactment in juvenile justice legislation.
Comment on these proposals and/or alternative suggestions are invited.
[5] Rule 11 (a).
[6] The term “juvenile” has been used throughout this document as the committee’s brief was to investigate “juvenile justice”. Use of the term does not indicate support for it.
[7] It has been pointed out that this is one of the lowest ages of commencement of criminal capacity in the world. See A Skelton 1996 Acta Juridica (supra) 186.
[8] C McClain Problems relating to age and criminal capacity in J Sloth-Nielsen (ed) South African Juvenile Justice: Law Practice and Policy (forthcoming).
[9] S v M 1982 (1) SA 240 (N).
[10] G van Bueren The International Law on the Rights of the Child Dordrecht: Kluver Academic Publishers 1995 172 (hereafter “Van Bueren”).
[11] Van Bueren 173.
[12] C McClain (supra).
[13] Report by the Ghana National Commission on Children 1996 Part VII article 1.
[14] J Sloth-Nielsen and S Said Statistical research on juvenile justice: Examining court records of juvenile offenders in J Sloth-Nielsen (ed) South African Juvenile Justice: Law Practice and Policy (forthcoming).
[15] J Sloth-Nielsen and S Said in South African Juvenile Justice: Law Practice and Policy (supra).
[16] For further discussion of problems impeding the use of Children’s courts see N Zaal and C Matthias Journeys to Nowhere: Moving children from juvenile courts to children's courts in J Sloth-Nielsen (ed) South African Juvenile Justice: Law Practice and Policy (forthcoming).
[17] Established as a result of the crisis which ensued after the promulgation of Act 17 of 1994.
[18] IMC Interim Policy Recommendations November 1996 46 (hereafter “IMC Recommendations”).
[19] IMC Recommendations 48.
[20] S v Manyololo 1969 (4) SA 356 (E); S v Job 1978 (1) SA 736 (NC).
[21] A Skelton Children, young persons and the criminal procedure in J A Robinson (ed) Children, Young People and the Law (forthcoming).
[22] See the discussion of pre-trial detention and release policy below.
[23] Section 29 of Act 8 of 1959, as amended by Act 74 of 1994 and re-amended by Act 14 of 1996.
[24] J Sloth-Nielsen Recent changes in South African juvenile justice in South African Juvenile Justice: Law Practice and Policy (forthcoming).
[25] C V McClain (ed) Report of the International Seminar on Children in Trouble with the Law Community Law Centre, 1995.
[26] The IMC Report asserts that police and probation officers have said that the promulgation of section 29 has led to an upsurge of young people claiming to be under 18 or under 14 (p51).
[27] A monitoring project involving NGOs was set up by the IMC to investigate the effects of the Correctional Services Amendment Act 14 of 1996. Reference is made hereafter to the work of “the monitors”.
[28] IMC Recommendations 51.
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