8. JUVENILE COURTS

Current South African law

(i) Juvenile court

8.1 There is no separate criminal court for juveniles in South Africa. In some urban areas where there are sufficient numbers of accused persons under the age of eighteen to warrant it, a court is set aside to deal exclusively with such cases and these courts are referred to administratively as juvenile courts. In areas where there is a lower population all criminal cases are channelled through the same courts. Trials of juveniles are required by law to be held in camera, regardless of which court they are appearing in.^[70]

8.2 In the present system, courts at all three levels (district, regional and high court) can and do have jurisdiction over cases where juveniles are accused. The choice of forum usually depends on the seriousness of the charge and the sentencing powers of the courts. District courts do exercise an increased jurisdiction with regard to juvenile cases linked to the fact that the sentences for juveniles differ from those of their adult counterparts, and it is therefore not uncommon for robbery cases involving juveniles, for example, to be dealt with by the district court. However, there appears to be a lack of consistency in this approach and some cases involving juvenile accused are referred to the regional and high courts. Cases may also be referred to the regional court only for sentence, especially if the accused has previous convictions, meaning that a sentence in excess of district court jurisdiction is warranted.

8.3 It has generally been advocated that the procedure and conduct of juvenile courts in South Africa fall short of the minimum standards provided by the international children’s rights instruments. This is despite some statutory provisions meant, at least in theory, to protect and promote children’s rights under the juvenile justice system and courts.

8.4 It would appear that the courts have not succeeded in promoting the dignity and worth of young people appearing before them, their proper growth and development and their reintegration into society, as is required by the international instruments. Some problems relate to the physical appearance of court rooms, with elevated benches and an absence of a child friendly environment. In addition there are a number of specific concerns which have been noted by academics and activists in the field. These relate to procedural problems such as the lack of legal representation of children in the criminal courts,^[71] long delays in the finalisation of trials involving juveniles and problems with the separation of young offenders from adult co-accused persons. In addition personnel working with young offenders are not specially qualified or trained for this work and there is a high turnover of staff.^[72]

(ii) Children’s court

8.5 The children’s court is a creation in terms of the Child Care Act 74 of 1983 and as such does not form part of the criminal process. There are, however, a number of overlaps with the criminal justice system. Every magistrate is automatically a Commissioner of Child Welfare in terms of section 6 of the Child Care Act.

8.6 There are at present three ways in which cases can be diverted from the criminal courts to a children’s court. Firstly, the prosecutor may decide that a matter should be heard in the children’s court rather than in a criminal court. The case is then referred by the prosecutor withdrawing the charges against the accused juvenile and instructing that the case be referred. The grounds upon which prosecutors tend to base the decision to withdraw the charge would generally include one of the following: that the offence with which the child has been charged is of a less serious nature; that the child appears physically to be in need of care; that the motive for the crime is of a less serious nature, or because the prosecutor knows the child from previous appearances and feels that he or she is merely mischievous or still too young to deserve the possibility of a criminal conviction.^[73]

8.7 Secondly, section 11 of the Child Care Act provides that if it appears to a magistrate during the course of proceedings or on the grounds of any information given under oath that the child does not have a parent or guardian or that it would be in the interest of the safety or welfare of the child to be taken to a place of safety, the magistrate may order that the child be taken to a place of safety and brought as soon as possible before a children’s court. Thirdly, section 254 of the Criminal Procedure Act provides that if it appears to a magistrate at the trial of any person under 18 that the accused may be a child as referred to in section 14(4) of the Child Care Act, the trial may be stopped and the court may order that the accused be brought before a children’s court. If conviction has already occurred before the court decides to stop the proceedings, the verdict shall be of no force and the court may refer the case to the children’s court.

8.8 The children’s court proceedings take the form of an inquiry, not of a trial, and no conviction or sentence is given at the end of it. After the inquiry the court is empowered to make an order placing the child, normally with parents under supervision, with foster parents, in a children’s home or in a school of industries.

8.9 Currently the option of referring or converting a criminal matter involving a child charged with an offence is under-utilised, with only an estimated 5% of cases being referred.^[74]

International perspective

8.10 A wide variety of models which establish juvenile justice court systems are to be found in international literature. These range from separate criminal courts for juveniles, which are in many other respects similar to adult criminal courts (for example Canada), to child and family courts which have jurisdiction over both criminal and civil matters concerning children (Uganda), to lay systems of adjudication, rather than court systems, such as the renowned Scottish Children’s panels.

8.11 In the last decade, all international examples of juvenile justice legislation are characterised by the creation of a separate court system for children in trouble with the law, sometimes together with children in difficult circumstances. Examples in point are India, Uganda, New Zealand and Canada.

8.12 It would seem therefore, that in order to give effect to the international standards, the proposed legislation should provide for some form of differentiated juvenile court.

Proposals

8.13 In making proposals regarding possible models of a juvenile court for South Africa, there are certain problems which need to be kept in mind.

(i) Jurisdiction.

8.14 A fundamental question to be considered is whether multi-level jurisdiction should be preserved in a juvenile justice court structure. The alternatives are a specialised court which manages all juvenile cases, or a juvenile court which handles the majority of cases, but which refers certain matters on to superior courts. The process of transferring young people charged with more serious offences out of the juvenile court to other levels is common in the USA. This approach, however, may render pointless the creation of a separate juvenile justice system, especially if significant proportions of juveniles are no longer subject to juvenile court jurisdiction.

(ii) Separation of juveniles from adult co-accused

8.15 A related problem is where a juvenile is co-accused with an adult or adults. Estimates have shown that as many as 30% of all juvenile cases involve co-accused, many of whom are adults. In many jurisdictions, for example, Canada, the juvenile justice system does not try adults, who proceed conventionally to criminal courts. There is thus an obligatory separation of trials. The difficulty with this approach is that trials have to be duplicated, and successful prosecution becomes more difficult due to evidentiary problems (one accused can shift blame to the other, who is being tried in another forum). However, the advantage is the maintenance of a completely separate juvenile justice system, and avoidance of “criminal contamination” by adults.

8.16 The 1996 Uganda Children’s Statute takes a different approach, and allows for trial of all children who are co-accused with adults in the adult system. If children are convicted, they are transferred back to the special Family and Children court for an appropriate order to be made.^[75]

(iii) Rural and urban differences.

8.17 The differences in the urban and rural situations in South Africa pose a particular problem to the setting up of a separate juvenile court system. The number of young people under 18 years old charged with offences in urban areas is substantial enough to warrant the setting up of specialised courts with specially selected and trained staff. In many rural areas, however, there may be only one or two young people charged with offences per week or even per month and it is difficult to justify the setting up of special courts with specially trained staff in such areas.

8.18 Solutions will need to be provided by the proposed legislation to ensure equality of services for young people. One possible solution may be a circuit court system for juvenile cases, as long as this does not cause unreasonable delays or necessitate the unnecessary holding of young people in custody. Another possible solution would be widespread specialised training of all prosecutors, magistrates, interpreters and social workers. The role of indigenous law systems in dealing with young offenders needs to be considered, including the possibility of fusing the two systems or keeping them separate but ensuring that in either situation the rights of children are protected.

8.19 There are several options which might be considered with regard to a proposed new juvenile court system. The following are set out for discussion:

(a) A completely separate juvenile court which does not form part of the current district, regional and high court structure. These would be special courts, with increased jurisdiction to try all juvenile cases. The formulation of these courts need not follow any current court structure, but could instead operate through panels or assessors in order to reach their outcomes. They would nevertheless be bound by statutory and common law provisions regarding criminal law and procedure save in the case of specific provisions which could be set out in the proposed legislation.

(b) A specialised juvenile court at district level with increased jurisdiction, but with an additional capacity to refer certain serious cases to the regional or high courts.

(c) No separate division or special court but special rules and procedures set out in the legislation binding any court before which an accused person under 18 appears. In urban areas and at district court level such courts could become permanent and specialised. In rural areas and at regional or high court level the court would reconstitute itself as a juvenile court and would conduct itself according to the rules and procedures as set out in the legislation.^[76] This option provides flexibility but would require widespread training for personnel.

(d) A juvenile court which operates chiefly as a mechanism to refer juvenile matters to other community based fora such as family group conferences^[77] or sentencing circles.^[78] Trials would be run in such courts, according to rules set out in the proposed legislation, but sentencing could be referred to the community, to be decided upon in terms of special rules or guidelines provided by the legislation. This model could be used in combination with any of the above-mentioned options.

8.20 In addition to the above-mentioned 4 options, there are two further proposals which might be applicable in any form of juvenile court;

Lay assessors

8.21 While the law provides for the appointment of assessors in magistrates’ courts,^[79] this does not appear to be a widespread practice in juvenile courts even though they are part of the magistrates’ courts system. The following proposal is put forward for consideration:

In all cases before a juvenile court, there should be at least two lay assessors sitting with the presiding officer. These assessors must also have a say on the disposition of all matters before the court. Such assessors must be persons with an appreciation of children’s rights and must all have an understanding and appreciation of the backgrounds of the children appearing in the court.

Probation officers or social workers

8.22 There is provision for social enquiry reports, or probationers reports as they are referred to in South Africa, in juvenile courts in cases involving children.^[80] These reports help the court to determine the appropriate disposition measure against any child appearing before it. However, few of these reports are submitted to the court by probation officers or social workers, and those few are usually inadequate and sometime come late and even delay the conclusion of a matter against a child. The explanation is usually that there are not enough probation officers or social workers, and the few that are available are over-worked and have excessive case-loads to perform their task properly. The juvenile courts, as a result, often hear and dispose of many cases without the assistance of such reports. This certainly results in some injustices and inappropriate disposition in some instances by the juvenile court.^[81]

8.23 In order to address this situation, it is proposed that there should be a state appointed probation officer or social worker based at or connected to every juvenile court who would be involved in a number of functions relating to the child, including the preparation of social enquiry reports on children appearing in the court.

8.24 This proposal would help to overcome the apparent lack of adequate understanding and appreciation of the socio-economic backgrounds of many children appearing in juvenile courts and might replace the need for assessors.

Family courts

8.25 There is currently much debate regarding a family court model for South Africa. It is proposed that the debate should include a discussion of the suitability of incorporating the juvenile court in the structure of a future family court.

[70] Section 153 of the Criminal Procedure Act 51 of 1977.

[71] Also see par 4.2.

[72] T Thipanyane Transformation of the South African juvenile justice system: Court procedures and conduct in J Sloth-Nielsen (ed) South African Juvenile Justice: Law Practice and Policy (supra).

[73] F N Zaal and C R Matthias Journeys to nowhere: Moving children from juvenile courts to children’s courts in South African Juvenile Justice: Law Practice and Policy (supra).

[74] Ibid.

[75] An equivalent proposal features in the Ghanaian draft code.

[76] Juvenile Justice for South Africa: Proposals for policy and legislative change (supra).

[77] In New Zealand.

[78] In Canada.

[79] Section 93ter of the Magistrate’s Courts Act 32 of 1944.

[80] See ss 50 (5) and 274 (1) of the Criminal Procedure Act 51 of 1977.

[81] This was highlighted in S v M 1982 (1) SA 240 (N) where Didcott J, as he then was, said at 245H: “To make matters worse, the magistrate did nothing at all to investigate the boy’s background and personality, to seek the advice of a probation officer, to consult his parents. She did not enquire what sort of a child he was, how a whipping might affect him, whether his parents had already punished him, what they might yet do in that connection, whether the experience of a criminal prosecution had already taught him a lesson sufficient to deter him from playing again with fire. It is plain from her reply to this Court’s query that none of this occurred to her. More insight and imagination could fairly have been expected from a judicial officer.”

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