Government Gazette REPUBLIC OF SOUTH AFRICA Vol. 527 Cape Town 11 May 2009 No. 32225 THE PRESIDENCY No. 549 11 May 2009 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 75 of 2008: Child Justice Act, 2008 AIDS HELPLINE: 0800-123-22 Prevention is the cure 2 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE Aer, 2008 Act No. 75. 2008 ----.--- ­ (English text signed by the President.) (Assented to 7 May 2009.) ACT To establish a criminal justice system for children, who are in conflict with the law and are accused of committing offences, in accordance with the values underpin ­ ning the Constitution and the international obligations of the Republic; to provide for the minimum age of criminal capacity of children; to provide a mechanism for dealing with children who lack criminal capacity outside the criminal justice system; to make special provision for securing attendance at court and the release or detention and placement of children; to make provision for the assessment of children; to provide for the holding of a preliminary inquiry and to incorporate, as a central feature, the possibility of diverting matters away from the formal criminal justice system, in appropriate circumstances; to make provision for child justice courts to hear all trials of children whose matters are not diverted; to extend the sentencing options available in respect of children who have been convicted; to entrench the notion of restorative justice in the criminal justice system in respect of children who are in conflict with the law; and to provide for matters incidental . thereto. PREAMBLE RECOGNISING­ • that before 1994, South Africa, as a country, had not given many of its children, particularly black children, the opportunity to live and act like children, and also that some children, as a result of circumstances in which they find themselves, have come into conflict with the law; AND MINDFUL that­ • the Constitution of the Republic of South Africa, 1996, as the supreme law of the Republic, was adopted to establish a society based on democratic values, social and economic justice, equality and fundamental human rights and to improve the quality of life of all its people and to free the potential of every person by all means possible; • the Constitution, while envisaging the limitation of fundamental rights in certain circumstances, emphasises the best interests of children, and singles them out for special protection, affording children in conflict with the law specific safeguards, among others, the right ­ * not to be detained, except as a measure of last resort, and if detained, only for the shortest appropriate period of time; * to be treated in a manner and kept in conditions that take account of the child's age; * to be kept separately from adult'>, and to separate boys from girls, while in detention; 4 No. 32225 GOVERNMENT GAZElTE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 * to family, parental or appropriate alternative care; * to be protected from maltreatment, neglect, abuse or degradation; and * not to be subjected to practices that could endanger the child's well-being, education, physical or mental health or spiritual, moral or social development; and • the current statutory law does not effectively approach the plight of children in conflict with the law in a comprehensive and integrated manner that takes into account their vulnerability and special needs; AND ACKNOWLEDGING THAT­ • there are capacity, resource and other constraints on the State which may require a pragmatic and incremental strategy to implement the new criminal justice system for children; THIS ACT THEREFORE AIMS TO­ • establish a criminal justice system for children, who are in conflict with the law, in accordance with the values underpinning our Constitution and our international obligations, by, among others, creating, as a central feature of this new criminal justice system for children, the possibility of diverting matters involving children who have committed offences away from the criminal justice system, in appropriate circumstances, while children whose matters are not diverted, are to be dealt with in the criminal justice system in child justice courts; • expand and entrench the principles of restorative justice in the criminal justice system for children who are in conflict with the law, while ensuring their responsibility and accountability for crimes committed; • recognise the present realities of crime in the country and the need to be proactive in crime prevention by placing increased emphasis on the effective rehabilitation and reintegration of children in order to minimise the potential for re-offending; • balance the interests of children and those of society, with due regard to the rights of victims; • create incrementally, where appropriate, special mechanisms, processes or procedures for children in conflict with the law ­ » that in broad terms take into account ­ • the past and sometimes unduly harsh measures taken against some of these children; • the long-term benefits of a less rigid criminal justice process that suits the needs of children in conflict with the law in appropriate cases; and • South Africa's obligations as party to international and regional instruments relating to children, with particular reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child; » in specific terms, by­ • raising the minimum age of criminal capacity for children; • ensuring that the individual needs and circumstances of children in conflict with the law are assessed; • providing for special processes or procedures for securing attendance at court of, the release or detention and placement of, children; • creating an informal, inquisitorial, pre-trial procedure, designed to facilitate the disposal of cases in the best interests of children by allowing for the diversion of matters involving children away from formal criminal proceedings in appropriate cases; 6 No. 32225 GOVERNMENT GAZETfE, 11 MAY 2009 Act No. 75, 2008 CHILD JUSllCE ACT, 2008 • providing for the adjudication of matters involving children which are not diverted in child justice courts; and • providing for a wide range of appropriate sentencing options specifically suited to the needs of children, pARUAMENT of the Republic of South Africa therefore enacts as follows: ­ TABLE OF CONTENTS CHAPTER 1 DEFINITIONS, OBJECTS AND GUIDING PRINCIPLES OF ACT 1. 2. 3. 5 Definitions Objects of Act Guiding principles CHAPTER 2 APPLICATION OF ACT, CRIMINAL CAPACITY OF CHILDREN UNDER THE 10 AGE OF 14 YEARS AND MAITERS RELATED TO AGE PART 1: APPLICATION OF ACT 4. 5. 6. Application of Act Manner of dealing with children who are alleged to have committed offences Seriousness of offences 15 PART 2: CRIMINAL CAPACITY OF CHILDREN UNDER THE AGE OF 14 YEARS 7. Minimum age of criminal capacity Review of minimum age of criminal capacity Manner of dealing with child under the age of 10 years 20 10. Decision to prosecute child who is 10 years or older but under the age of 14 years 11. Proof of criminal capacity 8. 9. PART 3: AGE ESTIMATION, AGE DETERMINATION AND ERROR RE· GARDING AGE 25 12. Responsibility of police official where age of child is uncertain 13. Age estimation by probation officer 14. Age determination by inquiry magistrate or child justice court 15. Age determination by any other court 16. Error regarding age of child who is alleged to have committed offence 30 CHAPTER 3 WRITTEN NOTICE, SUMMONS AND ARREST 17. Methods of securing attendance of child at preliminary inquiry 18. Written notice to appear at preliminary inquiry 19. Summons 35 20. Arrest 8 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE ACf, 2008 Act No. 75, 2008 CHAPTER 4 RELEASE OR DETENTION AND PLACEMENT OF CHILD PRIOR TO SENTENCE AND RELATED MATTERS PART 1: RELEASE OR DETENTION 21. Approach to be followed when considering release or detention of child after 5 arrest 22. Release of child on written notice into care of parent or appropriate adult or guardian before first appearance at preliminary inquiry 23. Duty of police official when releasing child into care of parent or appropriate adult or guardian 10 24. ReJease of child into care of parent or appropriate adult or guardian or on own recognisance at preliminary inquiry or child justice court 25. Release of child on bail PART 2: PLACEMENT 26. Approach to be followed when considering placement of child 15 27. Placement options for child who has not been released before first appearance at preliminary inquiry 28. Protection of children detained in police custody 29. Placement in a child and youth care centre 30. Placement in a prison 20 31. Error regarding placement PART 3: FACTORS TO BE TAKEN I]\TTO ACCOUNT BY PRESIDING OFFICER REGARDING FURTHER DETENTION AND PLACEMENT AND CONDITIONS OF DETENTION AT PRELIMINARY INQUffiY OR CHILD JUSTICE COURT 25 32. Factors to be taken into account by presiding officer regarding further detention and placement at preliminary inquiry or child justice court 33. Conditions of detention at preliminary inquiry or child justice court CHAPTERS ASSESSMENT OF CHILD 34. 35. 36. 37. 38. 39. 40. Duty of probation officer to assess children Purpose of assessment Confidentiality of information obtained at assessment Place where assessment is to be conducted Persons to attend assessment Powers and duties of probation officer at assessment Assessment report of probation officer 30 35 10 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 CHAPTER 6 DIVERSION BY PROSECUTOR IN RESPECT OF MINOR OFFENCES 41. Diversion by prosecutor before preliminary inquiry in respect of offences referred to in Schedule 1 42. Diversion option to be made order of court CHAPTER 7 PRELIMINARY INQUIRY 43. 44. 45. 46. 47. 48. 49. 50. Nature and objectives of preliminary inquiry Persons to attend preliminary inquiry Confidentiality of information furnished at preliminary inquiry Failure to appear at preliminary inquiry Procedure relating to holding of preliminary inquiry Postponement of preliminary inquiry Orders at preliminary inquiry Referral of children in need of care and protection to children's court CHAPTERS DIVERSION 51. 52. 53. 54. 55. 56, 57. 58. 59, 60. 61. 62. Objectives of diversion Consideration of diversion 20 Diversion options Selection of diversion option Minimum standards applicable to diversion Provision and accreditation of diversion programmes and diversion service providers Monitoring of compliance with diversion order 25 Failure to comply with diversion order Legal consequences of diversion Register of children in respect of whom diversion order has been made Family group conference Victim-offender mediation 30 CHAPTER 9 TRIAL IN CHILD JUSTICE COURT 63. Child justice courts and conduct of trials involving children 35 5 10 15 64. Referral of children in need of care and protection to children's court 65. Parental assistance 66. Time limits relating to postponements 67. Child justice court may divert matter CHAPTER 10 SEl\iENCING PART 1: GENERAL 68. Child to be sentenced in terms of this Chapter 40 12 No. 32225 GOVER<"lMENT GAZE'ITE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 69. Objectives of sentencing and factors to be considered 70. Impact of offence on victim 71. Pre-sentence reports PART 2: SENTENCING OPTIONS 72. 73. 74. 75. 76. 77. 78. 79. Community-based sentences Restorative justice sentences Fine or alternatives to fine Sentences involving correctional supervision Sentence of compulsory residence in child and youth care centre Sentence of imprisonment Postponement or suspension of passing of sentence Failure to comply with certain sentences CHAPTER 11 LEGAL REPRESENTATION 15 80. Requirement" to be complied with by legal representatives 81. Legal representation at preliminary inquiry 82. Child to be provided with legal representation at State expense in certain circumstances 83. Child may not waive legal representation in certain circumstances CHAPTER 12 APPEALS AND AUTOMATIC REVIEW OF CERTAIN CONVICTIONS AND SENTENCES 84. Appeals 85. Automatic review in certain cases 86. Release on bail pending review or appeal CHAPTER 13 RECORDS OF CONVICTION AND SENTENCE 87. Expungement of records of certain convictions and diversion orders 5 10 20 25 CHAPTER 14 GENERAL PROVISIONS 88. 89. 90. 9l. 92. 93. 94. 95. 96. 97. 98. 30 Rules of court Establishment and jurisdiction of One-Stop Child Justice Centres Referral of information relating to age to Department of Home Affairs Liability for patrimonial loss arising from execution of diversion order Children used by adults to commit crime National policy framework Establishment of lntersectoral Committee Meetings of lntersectoral Committee Responsibilities, functions and duties of Intersectoral Committee Regulations, directives, national instructions and register Transitional arrangements 35 40 14 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 99. Repeal or amendment of laws 100. Short title and commencement SCHEDULEl SCHEDULE 2 SCHEDULE 3 SCHEDULE 4 SCHEDULES 5 16 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 CHAPTER! DEFINTI'IONS, OBJECTS AND GUIDING PRINCIPLES OF ACT Definitions 1. In this Act, unless the context indicates otherwise­ "acknowledges responsibility" means acknowledges responsibility for an offence without a formal admission of guilt; "adult" means a person who is 18 years or older but does not include a person referred to in section 4(2); "appropriate adult" means any member of a child's family, including a sibling who is 16 years or older, or care-giver referred to in section 1 of the Children's Act; "assessment" means assessment of a child by a probation officer in terms of Chapter 5; "child" means any person under the age of 18 years and, in certain circumstances, means a person who is 18 years or older but under the age of 21 years whose matter is dealt with in terms of section 4(2); "child and youth care centre" means a child and youth care centre referred to in section 191 of the Children's Act; "childjustice court" means any court provided for in the Criminal Procedure Act, dealing with the bail application, plea, trial or sentencing of a child; "Children's Act" means the Children's Act, 2005 (Act No. 38 of 2005); "children's court" means the court established under section 42 of the Children's Act; "community service" means work for a community organisation or other work of value to the community performed by a child without payment; "Constitution" means the Constitution of the Republic of South Africa, 1996; "Criminal Procedure Act" means the Criminal Procedure Act, 1977 (Act No. 51 of 1977); "detention" includes confinement of a child prior to sentence in a police cell or lock-up, prison or a child and youth care centre, providing a programme referred to in section 191(2)(h) of the Children's Act; "Director of Public Prosecutions" means a Director of Public Prosecutions appointed in terms of section 13 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), acting in terms of any policy directives issued under this Act by the National Director of Public Prosecutions, where applicable, or in terms of any other prosecution policy or policy directives referred to in section 21 of the National Prosecuting Authority Act, 1998; "diversion" means diversion of a matter involving a child away from the formal court procedures in a criminal matter by means of the procedures established by Chapter 6 and Chapter 8; "diversion option" means an option referred to in section 53, and includes a diversion programme referred to in section 56; "diversion service provider" means a service provider accredited in terms of section 56; "guardian" means a guardian referred to in section lof the Children's Act; "family group conference" means a conference referred to in section 61; "independent observer", for purposes of section 65(6), means a representative from a community or organisation, or community police forum, who is not in the full-time employ of the State and whose name appears on a prescribed list for this purpose, which is to be kept by the magistrate of every district; "inquiry magistrate" means the judicial officer presiding at a preliminary inquiry; "Legal Aid Board" means the Legal Aid Board established under section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969); "medical practitioner" means a medical practitioner referred to in section lofthe Children's Act; "National Director of Public Prosecutions" means the person appointed in terms of section 10 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998); 5 10 15 20 25 30 35 40 45 50 55 18 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 "One-Stop Child Justice Centre" means a centre established in terms of section 89; "police cell or Jock-up" means any place which is used for the reception, detention or confinement of a person who is in custody of the South African Police Service or who is being detained by the South African Police Service, and includes all land, buildings and premises adjacent to any such place and used in connection therewith; "police official" means a member of the South African Police Service or of a municipal police service established in terms of the South African Police Service Act, 1995 (Act No. 68 of 1995); "preliminary inquiry" means an inquiry referred to in Chapter 7; " prescribed" means prescribed by regulation made under section 97; "presiding officer" means an inquiry magistrate or a judicial officer presiding at a child justice court; "prison" means a prison as defined in the Correctional Services Act, 1998 (Act No. 111 of 1998); "probation officer" means any person who has been appointed as a probation officer under section 2 of the Probation Services Act, 1991 (Act No. 116 of 1991); "restorative justice" means an approach to justice that aims to involve the child offender, the victim, the families concerned and community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent a recurrence of the incident and promoting reconciliation; "suitable person" means a person with standing in the community who has a special relationship with the child, identified by the probation officer to act in the best interests of the child; "symbolic restitution" means the giving of an object owned, made or bought by a child or the provision of any service to a specified person, persons, group of persons or community, charity or welfare organisation or institution as symbolic compensation for the harm caused by that child; "this Act" includes any regulation made under section 97; "victim-offender mediation" means a procedure referred to in section 62. Objects of Act 2. The objects of this Act are to-­ (a) protect the rights of children as provided for in the Constitution; (b) promote the spirit of ubuntu in the child justice system through­ 5 10 15 20 25 30 35 20 No. 32225 GOVERNMENT GAZETfE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 (i) fostering children's sense of dignity and worth; (ii) reinforcing children's respect for human rights and the fundamental freedoms of others by holding children accountable for their actions and safe-guarding the interests of victims and the community; (iii) supporting reconciliation by means of a restorative justice response; and 5 (iv) involving parents, families, victims and, where appropriate, other members of the community affected by the crime in procedures in terms of this Act in order to encourage the reintegration of children; (c) provide for the special treatment of children in a child justice system designed to break the cycle of crime, which will contribute to safer communities, and 10 encourage these children to become law-abiding and productive adults; (d) prevent children from being exposed to the adverse effects of the formal criminal justice system by using, where appropriate, processes, procedures, mechanisms, services or options more suitable to the needs of children and in accordance with the Constitution, including the use of diversion; and 15 (e) promote co-operation between government departments, and between gov­ ernment departments and the non-governmental sector and civil society, to ensure an integrated and holistic approach in the implementation of this Act. Guiding principles 3. In the application of this Act, the following guiding principles must be taken into account: (a) All consequences arising from the commission of an offence by a child should be proportionate to the circumstances of the child, the nature of the offence and the interests of society. (b) A child must not be treated more severely than an adult would have been treated in the same circumstances. (c) Every child should, as far as possible, be given an opportunity to participate in any proceedings, particularly the informal and inquisitorial proceedings in terms of this Act, where decisions affecting him or her might be taken. (d) Every child should be addressed in a manner appropriate to his or her age and intellectual development and should be spoken to and be allowed to speak in his or her language of choice, through an interpreter, if necessary. (e) Every child should be treated in a manner which takes into account his or her cultural values and beliefs. (f) All procedures in terms of this Act should be conducted and completed without unreasonable delay. (g) Parents, appropriate adults and guardians should be able to assist children in proceedings in terms of this Act and, wh~rever possible, participate in decisions affecting them. (h) A child lacking in family support or educational or employment opportunities must have equal access to available services and every effort should be made to ensure that children receive similar treatment when having committed similar offences. (i) The rights and obligations of children contained in international and regional instruments, with particular reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. 20 25 30 35 40 45 22 No. 32225 ----:-~------- _._------ GOVERNMENT GAZETTE, 11 MAY 2009 ~--.-------- Act No. 75, 2008 CHILD JUSTICE ACT, 2008 CHAPTER 2 APPLICATION OFACT, CRIMINAL CAPACITY OF CHILDREN UNDER THE AGE OF 14 YEARS AND MATTERS RElATED TO AGE PART 1: APPLICATION OF ACT Application of Act 4. (1) Subject to subsection (2), this Act applies to any person in the Republic who is alleged to have committed an offence and­ (a) was under the age of 10 years at the time of the commission of the alleged offence; or (b) was 10 years or older but under the age of 18 years when he or she was ­ (i) handed a written notice in terms of section 18 or 22; (ii) served with a summons in terms of section 19; or (iii) arrested in terms of section 20, for that offence. (2) The Director of Public Prosecutions having jurisdiction may, in accordance with directives issued by the National Director of Public Prosecutions in terms of section 97(4)(a)(i)(aa), in the case of a person who ­ (a) is alleged to have committed an offence when he or she was under the age of 18 years; and (b) is 18 years or older but under the age of 21 years, at the time referred to in subsection (1)(b), direct that the matter be dealt with in terms of section 5(2) to (4). (3) (a) The Criminal Procedure Act applies with the necessary changes as may be required by the context to any person referred to in this section, except in so far as this Act provides for amended, additional or different provisions or procedures in respect of that person. (b) For purposes of paragraph (a), Schedule 5 to this Act, which is not part of this Act and does not have the force of law, contains an exposition of the interface between the Criminal Procedure Act and this Act. 5 10 15 20 25 Manner of dealing with children who are alleged to have committed offences 30 5. (1) Every child who is alleged to have committed an offence and is under the age of 10 years, must be referred to a probation officer to be dealt with in terms of section 9. (2) Every child who is 10 years or older, who is alleged to have committed an offence and who is required to appear at a preliminary inquiry in respect of that offence must, before his or her first appearance at the preliminary inquiry, be assessed by a probation 35 officer, unless assessment is dispensed with in terms of section 41(3) or 47(5). (3) A preliminary inquiry must be held in respect of every child referred to in subsection (2) after he or she has been assessed, except where the matter-­ (a) has been diverted in accordance with Chapter 6; (b) involves a child who is 10 years or older but under the age of 14 years where 40 criminal capacity is not likely to be proved, as provided for in section 1O(2)(b); or (c) has been withdrawn. (4) (a) A matter in respect of a child referred to in subsection (2) may be considered for diversion45 (i) by a prosecutor in accordance with Chapter 6; or (ii) at a preliminary inquiry in accordance with Chapter 7. (b) A matter which is for any reason not diverted in terms of paragraph (a) must, 24 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE ACf, 2008 Act No. 75, 2008 unless the matter has been withdrawn or referred to a children's court, be referred to a child justice court for plea and trial in terms of Chapter 9. (e) A matter in respect of a child referred to in paragraph (b) may, before the conclusion of the case for the prosecution, be considered for diversion by a child justice court in terms of Chapter 9. Seriousness of offences 5 6. (1) In order to determine the seriousness of offences for purposes of this Act, the categories of offences are listed in the following order, beginning with the category of least serious offences: (a) Offences contained in Schedule 1; 10 (b) offences contained in Schedule 2; and (c) offences contained in Schedule 3. (2) In the case of a child being charged with more than one offence which are dealt with in the same criminal proceedings, the most serious offence must guide the manner 15 in which the child must be dealt with in terms of this Act. (3) In the case of a child being charged with more than one offence which are dealt with in separate criminal proceedings, subsection (2) does not apply. PART 2: CRIMINAL CAPACITY OF CHILDREN UNDER THE AGE OF 14 YEARS Minimum age of criminal capacity 20 7. (1) A child who commits an offence while under the age of 10 years does not have criminal capacity and cannot be prosecuted for that offence, but must be dealt with in terms of section 9. (2) A child who is 10 years or older but under the age of 14 years and who commits an offence is presumed to lack criminal capacity, unless the State proves that he or she 25 has criminal capacity in accordance with section 11. (3) The common law pertaining to the criminal capacity of children under the age of 14 years is hereby amended to the extent set out in this section. Review of minimum age of criminal capacity 8. In order to determine whether or not the minimum age of criminal capacity as set 30 out in section 7(1) should be raised, the Cabinet member responsible for the administration of justice must, not later than five years after the commencement of this section, submit a report to Parliament, as provided for in section 96(4) and (5). Manner of dealing with child under the age of 10 years 9. (1) Where a police official has reason to believe that a child suspected of having 35 committed an offence is under the age of 10 years, he or she may not arrest the child, and must, in the prescribed manner, immediately hand the child over ­ (a) to his or her parents or an appropriate adult or a guardian; or (b) if no parent, appropriate adult or a guardian is available or if it is not in the best interests of the child to be handed over to the parent, an appropriate adult or 40 a guardian, to a suitable child and youth care centre, and must notify a probation officer. (2) A probation officer who receives notification from a police official in terms of subsection (1), must assess the child in terms of the provisions of Chapter 5 which are applicable to children under the age of 10 years as soon as possible but not later than 45 seven days after being notified. (3) (a) After assessing a child in terms of subsection (2), the probation officer may, in the prescribed manner­ 26 No. 32225 GOVERNMENT GAZETfE, 11 MAY 2009 CHILD JUSTICE ACI~ 2008 Act No. 75, 2008 (i) refer the child to the children's court on any of the grounds set out in section 50; (ii) refer the child for counselling or therapy; (iii) refer the child to an accredited programme designed specifically to suit the needs of children under the age of 10 years; (iv) arrange support services for the child; (v) arrange a meeting, which must be attended by the child, his or her parent or an appropriate adult or a guardian, and which may be attended by any other person likely to provide information for the purposes of the meeting referred to in subsection (4); or (vi) decide to take no action. (b) Any action taken under paragraph (a) does not imply that the child is criminally liable for the incident that led to the assessment. (4) The purpose of the meeting convened by a probation officer in terms of subsection (3)(a)(v) is to­ (a) assist the probation officer to establish more fully the circumstances surrounding the allegations against a child; and (b) formulate a written plan appropriate to the child and relevant to the circumstances. (5) The written plan referred to in subsection (4)(b) must, at least­ (a) specify the objectives to be achieved for the child and the period within which they should be achieved; (b) contain details of the services and assistance to be provided for the child, as prescribed; (c) specify the persons or organisations to provide the services and assistance, as prescribed; and (d) state the responsibilities of the child and of the parent, appropriate adult or a guardian. (6) The probation officer must record, with reasons, the outcome of the assessment and the decision made in terms of subsection (3) in the prescribed manner. (7) In the event of a child failing to comply with any obligation imposed in terms of this section, including compliance with the written plan referred to in subsection (4)(b), the probation officer must refer the matter to a children's court to be dealt with in terms of Chapter 9 of the Children's Act. 5 10 15 20 25 30 Decision to prosecute child who is 10 years or older but under the age of 14 years 35 10. (1) A prosecutor who is required to make a decision whether or not to prosecute a child referred to in section 7(2) must take the following into consideration: (a) The educational level, cognitive ability, domestic and environmental circum­ stances, age and maturity of the child; (b) the nature and seriousness of the alleged offence; 40 (c) the impact of the alleged offence on any victim; (d) the interests of the community; (e) a probation officer's assesSment report in terms of Chapter 5; (f) the prospects of establishing criminal capacity in terms of section 11 if the 45 matter were to be referred to a preliminary inquiry in terms of Chapter 7; (g) the appropriateness of diversion; and (h) any other relevant factor. (2) If a prosecutor decides in respect of a child referred to in subsection (1) that criminal capacity is­ (a) likely to be proved in terms of section 11, he or she may ­ 50 28 No. 32225 GOVERNMENT GAZETIE, 11 MAY 2009 Act No. 75, 2008 CHILD JUSllCE ACT, 2008 (i) divert the matter in terms of Chapter 6 if the child is alleged to have committed an offence referred to in Schedule 1; or (ii) refer the matter to a preliminary inquiry as provided for in Chapter 7; or (b) not likely to be proved in terms of section 11, he or she may cause the child to be taken to a probation officer to be dealt with in terms of section 9. 5 Proof of criminal capacity 11. (1) The State must prove beyond reasonable doubt the capacity of a child who is 10 years or older but under the age of 14 years to appreciate the difference between right and wrong at the time of the commission of an alleged offence and to act in accordance with that appreciation. (2) In making a decision regarding the criminal capacity of the child in question ­ (a) the inquiry magistrate, for purposes of diversion; or (b) if the matter has not been diverted, the child justice court, for purposes of plea and trial, must consider the assessment report of the probation officer referred to in section 40 and all evidence placed before the inquiry magistrate or child justice court prior to diversion or conviction, as the case may be, which evidence may include a report of an evaluation referred to in subsection (3). (3)An inquiry magistrate or child justice court may, on own accord, or on the request of the prosecutor or the child's legal representative, order an evaluation of the criminal capacity of the child referred to in subsection (1), in the prescribed manner, by a suitably qualified person, which must include an assessment of the cognitive, moral, emotional, psychological and social development of the child. (4) If an order has been made by the inquiry magistrate or child justice court in terms of subsection (3), the person identified to conduct an evaluation of the child must furnish the inquiry magistrate or child justice court with a written report of the evaluation within 30 days of the date of the order. (5) Where an inquiry magistrate or child justice court has found that a child's criminal capacity has not been proved beyond a reasonable doubt, the inquiry magistrate or child justice court may, if it is in the interests of the child, cause the child to be taken to a probation officer for any further action in terms of section 9. 10 15 20 25 30 PART 3: AGE ESTIMATION, AGE DETERMINATION AND ERROR RE· GARDINGAGE Responsibility of police official where age of child is uncertain 12. If a police official is uncertain about the age of a person suspected of having 35 committed an offence but has reason to believe that ­ (a) the person may be a child under the age of 10 years, the official must act in accordance with the provisions of section 9; or (b) the person may be a child who is 10 years or older but under the age of 14 years, or a child who is 14 years or older but under the age of 18 years, the 40 policc official must treat the person as a child with due regard to the provisions relating to- ­ (i) arrest in terms of Chapter 3; or (ii) release or detention in terms of Chapter 4, and, in particular, section 27 relating to placement options before a child's first appearance at a 45 preliminary inquiry, 30 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 until a probation officer or medical practitioner has expressed an opinion on the age of the person or until the determination of that person's age at the preliminary inquiry or child justice court, after which the police official must treat the person in accordance with the opinion or determination. Age estimation by probation officer 13. (1) If, during an assessment of a child in terms of Chapter 5, the age of the child, at the time of the commission of the alleged offence, is uncertain, the probation officer must make an estimation of the child's age and must complete the prescribed form. (2) In making the estimation, the probation officer must consider any available information, including the following: (a) A previous determination of age by a magistrate under this Act or under the Criminal Procedure Act or an estimation of age in terms of the Children's Act; (b) statements made by a parent, an appropriate adult, guardian or any other person, including a religious or community leader, likely to have direct knowledge of the age of the child; (C) a statement made by the child concerned; (d) a school registration form, school report, other document of a similar nature, a baptismal or other similar religious certificate; or (e) an estimation of age by a medical practitioner. (3) The probation officer must submit the estimation on the prescribed form, together with any relevant documentation to the inquiry magistrate befon; the child's appearance at a preliminary inquiry. (4) Should evidence to the contrary emerge at any stage before sentence, the estimation of age by a probation officer in terms of this section may be altered and a different estimation of age may be recorded. 5 10 15 20 25 Age determination by inquiry magistrate or child justice court 14. (1) If, during a preliminary inquiry or during proceedings before a child justice court, the age of a child at the time of the commission of the alleged offence is uncertain, the presiding officer must determine the age of the child. (2) In order to determine the age of a child, a presiding officer may30 (a) consider the form and any documentation submitted by the probation officer in terms of section 13(3); (b) require any relevant documentation, information or statement from any person; (c) subpoena any person to produce the documentation, information or statements 35 referred to in paragraph (b); or (d) if necessary, refer the child to a medical practitioner, in the prescribed manner, for an estimation of age. (3) (a) The presiding officer must enter the age determined in terms of subsection (1) into the record of the proceedings as the age of the child. 40 (b) Should evidence to the contrary emerge, the presiding officer must alter the record to reflect the correct age. 32 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE Aer, 2008 Act No. 75, 2008 Age determination by any other court 15. Where there is any uncertainty as to whether a person appearing before any other court was over or under the age of 18 years at the time of the commission of the alleged offence, the court must ­ (a) determine the age of that person in accordance with section 14; and (b) where necessary, alter the record to reflect the correct age of that person, in accordance with the provisions of section 16, which apply with the changes required by the context. Error regarding age of child or adult who is alleged to have committed offence 16. (1) If, at any stage during proceedings in terms of this Act, a presiding officer is satisfied on the basis of evidence placed before him or her that the age of a child or adult who is alleged to have committed an offence (hereafter in this section referred to as person) is incorrect, the age must be altered on the record of the proceedings in accordance with section 14 and the proceedings must be finalised in accordance with the provisions of­ (a) this Act, if the person is found to be a child; or (b) the Criminal Procedure Act, if the person is found to be an adult, unless the provisions of section 4(2) are applicable. (2) If a presiding officer is of the opinion that an error regarding age may have caused any prejudice to a person during the proceedings in question, the presiding officer must transmit the record of the proceedings to the registrar of the High Court having jurisdiction, in the same manner as provided for in section 303 of the Criminal Procedure Act, in which event the proceedings must be dealt with in terms of the procedure on review as provided for in section 304 of the Criminal Procedure Act. (3) Subject to subsection (1), if a presiding officer is of the opinion that an error regarding age has not caused any prejudice to the person, the presiding officer must continue with the proceedings in terms of the provisions of this Act, in accordance with his or her age, as altered. CHAPTER 3 10 5 15 20 25 WRITTEN NOTICE, SUMMONS AND ARREST Methods of securing attendance of child at preliminary inquiry 30 17. (1) The methods of securing the attendance of a child at a preliminary inquiry are­ (a) a written notice, as provided for in section 18; (b) a summons, as provided for in section 19; or 35 (c) arrest, as provided for in section 20. (2) Where circumstances permit, a police official should obtain guidance from the Director of Public Prosecutions or a prosecutor on whether or not the child is required to attend a preliminary inquiry and, if so, the manner in which the child's attendance should be secured. 40 Written notice to appear at preliminary inquiry 18. (1) A police official may, in respect of a child who is alleged to have committed an offence referred to in Schedule 1, hand to the child a written notice provided for in section 56 of the Criminal Procedure Act, but as amended by this section in respect of children, requiring the child to appear at a preliminary inquiry. 45 . (2) The provisions of section 56(1)(c) of the Criminal Procedure Act relating to an admission of guilt and payment of a fine do not apply to a written notice in terms of this Act. (3) (a) A written notice must specify the date, time and place of the preliminary inquiry and be handed to the child in the presence of his or her parent, appropriate adult 50 34 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CH1LD JUST1CE ACT, 2008 Act No. 75, 2008 or guardian, in which case both the child and parent, appropriate adult or guardian must acknowledge receipt by way of a signature or mark. (b) In exceptional circumstances, where it is not possible to hand a written notice to the child in the presence of his or her parent, an appropriate adult or guardian, the written notice must be handed to the child and a copy must, as soon as circumstances permit, be 5 handed to the parent, appropriate adult or guardian, and both the child and parent, appropriate adult or guardian must acknowledge receipt by way of a signature or mark. (4)A police official must, in the prescribed manner ­ (a) when handing a written notice to the child, parent, appropriate adult or guardian­ 10 (i) inform them of the nature of the allegation against the child; (ii) inform them of the child's rights; (iii) explain to them the immediate procedures to be followed in terms of this Act; (iv) warn the child to appear at the preliminary inquiry on the date, and at the 15 time and place specified in the written notice and to remain in attendance; and (v) warn the parent, appropriate adult or guardian to bring or cause the child to be brought to the preliminary inquiry on the date and at the time and 20 place specified in the written notice and to remain in attendance; and (b) immediately but not later than 24 hours after handing the written notice to the child, notify the probation officer concerned. Summons 19. (1) A summons issued in respect of a child in terms of section 54 of the Criminal Procedure Act who is to appear at a preliminary inquiry, must specify the date, time and place of the preliminary inquiry. (2) (a) A summons must be served on a child in the presence of his or her parent, an appropriate adult or a guardian, in which case both the child and parent, appropriate adult or guardian must acknowledge service by way of a signature 'or mark. (b) In exceptional circumstances, where it is not possible to serve a summons on a child in the presence of his or her parent, an appropriate adult or a guardian, the summons must be served on the child and a copy of the summons must, as soon as circumstances permit, be served on the parent, appropriate adult or guardian, and both the child and parent, appropriate adult or guardian must acknowledge service by way of a signature or mark. (3) A police official must, in the prescribed manner~ (a) when serving a summons on the child, parent, appropriate adult or guardian ­ (i) inform them of the nature of the allegation against the child; (ii) inform them of the child's rights; (iii) explain to them the immediate procedures to be followed in terms of this Act; (iv) warn the child to appear at the preliminary inquiry on the date and at the time and place specified in the summons and to remain in attendance; and (v) warn the parent, appropriate adult or guardian to bring or cause the child to be brought to the preliminary inquiry on the date and at the time and place specified in the summons and to remain in attendance; and 25 30 35 40 45 36 No. 32225 GOVERNMENT GAZEITE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 (b) immediately but not later than 24 hours after the service of the summons notify the probation officer concerned. Arrest 20. (1) A child may not be arrested for an offence referred to in Schedule 1, unless there are compelling reasons justifying the arrest, which may include the following circumstances: (a) Where the police official has reason to believe that the child does not have a fixed residential address; (b) where the police official has reason to believe that the child will continue to commit offences, unless he or she is arrested; (e) where the police official has reason to believe that the child poses a danger to any person; (d) where the offence is in the process of being committed; or (e) where the offence is committed in circumstances as set out in national instructions referred to in section 97(5)(a)(ii). (2) A warrant of arrest issued under section 43 of the Criminal Procedure Act in respect of a child must direct that the child be brought to appear at a preliminary inquiry. (3) The police official arresting a child must, in the prescribed manner ­ (a) inform the child of the nature of the allegation against him or her; (b) inform the child of his or her rights; (e) explain to the child the immediate procedures to be followed in terms of this Act; and (d) notify the child's parent, an appropriate adult or guardian of the arrest: Provided that if a police official is unable to notify the child's parent, an appropriate adult or guardian of the arrest, the police official must submit a written report to the presiding officer at the preliminary inquiry. (4) (a) A police official, where possible the police official who arrested the child, must immediately, but not later than 24 hours after the arrest, inform the probation officer in whose area of jurisdiction the child was arrested of the arrest in the prescribed manner. (b) If a police official is unable to inform a probation officer of the arrest, the police official must submit a written report to the inquiry magistrate at the preliminary inquiry, furnishing reasons for non-compliance, as prescribed. (5) Any child who has been arrested and who remains in custody must, whether or not an assessment of the child has been done, be taken by a police official to the magistrate's court having jurisdiction, in order to deal with the matter in terms of section 5(2) to (4), as soon as possible but not later than 48 hours after arrest, in which case the provisions of section 50(1)(d) of the Criminal Procedure Act dealing with ­ (i) ordinary court hours; (ii) physical illness or other physical condition; and (iii) arrest outside of the area of jurisdiction of the court, apply in respect of the expiry of the period of 48 hours. 5 10 15 20 25 30 35 40 CHAPTER 4 RELEASE OR DETENTION .!\.ND PLACEMENT OF CHILD PRIOR TO SENTENCE AND RELATED MATfERS PART 1: RELEASE OR DETENTION Approach to be followed when considering release or detention of child after arrest 21. (1) When considering the release or detention of a child who has been arrested, 45 38 No. 3222S GOVERNMENT GAZETTE. 11 MAY 2009 Act No. 75, 2008 CHILD JUSTICE ACT, 2008 preference must be given to releasing the child, as set out in subsections (2) and (3). (2) Prior to the child's first appearance at a preliminary inquiry­ (a) a police official must, in respect of an offence referred to in Schedule 1, where appropriate, release a child on written notice into the care of a parent, an appropriate adult or guardian in terms of section 18, read with section 22; or 5 (b) a prosecutor may, in respect of an offence referred to in Schedule 1 or 2, authorise the release of a child on bail in terms of section 25, read with section 59A of the Criminal Procedure Act, in which case the reference to Schedule 7 in section 59A of that Act is to be regarded as a reference to Schedule 2 of this 10 Act. (3) A presiding officer may, at a child's first appearance at a preliminary inquiry or thereafter at a child justice court ­ (a) in respect of any offence, release a child into the care of a parent, an appropriate adult or guardian in terms of section 24(2)(a); (b) in respect of an offence referred to in Schedule 1 or 2, release a child on his or 15 her own recognisance in terms of section 24(2)(b); or (c) if a child is not released from detention in terms of paragraph (a) or (b), release the child on bail in terms of section 25. Release of child on written notice into care of' parent, appropriate adult or guardian before first appearance at preliminary inquiry 20 22. (1) A police official must release a child on written notice in terms of section 18 into the care of a parent, an appropriate adult or guardian if the child is in detention in police custody in respect of an offence referred to in Schedule 1, as soon as possible and before the child appears at the preliminary inquiry, unless­ (a) the child's parent or an appropriate adult or guardian cannot be located or is 25 not available and all reasonable efforts have been made to locate the parent or appropriate adult or guardian; or (b) there is a substantial risk that the child may be a danger to any other person or to himself or herself. (2) Where a child has not been released in terms of subsection (1), the investigating 30 police official must provide the inquiry magistrate with a written report in the prescribed manner, giving reasons why the child could not be released, with particular reference to the factors referred to in subsection (1)(a) or (b). Duty of'police official when releasing child into care of parent, appropriate adult or guardian 35 23. A police official who releases a child from detention in terms of section 22 and places the child in the care of a parent or an appropriate adult or guardian, must, at the time of the release of the child, hand to the child and to the person into whose care the child is released, a written notice in accordance with section 18. 40 No. 32225 GOVERNMENT GAZETfE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 Release of child into care of parent, appropriate adult or guardian or on own recognisance at preliminary inquiry or child justice court 24. (1) Where a child who is in detention in respect of any offence appears­ (a) at a preliminary inquiry and the inquiry is to be postponed, or the matter, at the conclusion of the preliminary inquiry, is set down for trial in a child justice court; or (b) at a child justice court and the matter is to be postponed, the presiding officer must, subject to subsection (2)(b), consider the release of the child in terms of this section. (2) The presiding officer may release a child referred to in subsection (1)(a) into the care of a parent, an appropriate adult or guardian; or (b) if the child is alleged to have committed an offence referred to in Schedule 1 or 2, on the child's own recognisance, if it is in the interests of justice to release the child. (3) In considering whether or not it would be in the interests of justice to release a child in terms of subsection (2), the presiding officer must have regard to the recommendations of the probation officer's assessment report and all other relevant factors, including­ (a) the best interests of the child; (b) whether the child has previous convictions; (c) the fact that the child is 10 years or older but under the age of 14 years and is presumed to lack criminal capacity; (d) the interests and safety of the community in which the child resides; and (e) the seriousness of the offence. (4) The presiding officer must, when releasing a child in terms of this section, warn him or her to appear on a specified date and at a specified time and place and may impose one or more conditions, namely that the child must ­ (a) report periodically to a specified person or at a specified place; (b) attend a particular school; (c) reside at a particular address; (d) be placed under the supervision of a specified person; (e) not interfere with any witness, tamper with any evidence or associate with any person or group of specified persons; or (f) comply with any other condition that the presiding officer deems fit in the circumstances. (5) If a child is released into the care of a parent, appropriate adult or guardian, the presiding officer must direct the parent, appropriate adult or guardian to appear and warn the parent, appropriate adult or guardian to ensure that the child appears on a specified date and at a specified time and place and, if a condition has been imposed in terms of this section, to ensure that the child complies with that condition. (6) If a child is released on his or her own recognisance, the presiding officer must warn the child to appear on a specified date and at a specified time and place and, if a condition has been imposed in terms of this section, to comply with that condition. (7) (a) If a child fails to appear on the date and at the time and place referred to in subsection (4) or (6) or comply with any condition referred to in this section, the presiding officer may, on being notified of the failure, in the prescribed manner, issue a warrant for the arrest of the child or cause a summons to be issued in accordance with section 19, for the child to appear at the preliminary inquiry or child justice court. 5 10 15 20 25 30 35 40 45 42 No. 32225 GOVERNMENT GAZEITE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75,2008 (b) When a child appears before a presiding officer pursuant to a warrant of arrest or summons referred to in paragraph (a), the presiding officer must inquire into the reasons for the child's failure to appear or comply with the conditions or to remain in attendance and make a determination whether or not the failure is due to the child's fault. (c) If it is found that the failure is not due to the child's fault, the presiding officer 5 may ­ (i) order the child's release on the same conditions; or (ii) order the child's release on any other condition; and (iii) if necessary, make an appropriate order which will assist the child and his or her family to comply with the conditions initially imposed. 10 (d) If it is found that the failure is due to the child's fault, the presiding officer may order the release of the child on different or further conditions or make an order that the child be detained, subject to the provisions of section 26. (e) A parent, an appropriate adult or guardian who fails to comply with subsection (5) is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period 15 not exceeding three months. Release of child on bail 25. (1) Chapter 9 of the Criminal Procedure Act applies to an application for the release of a child on bail, except for section 59 and section 59A, to the extent set out in section 21(2)(b). 20 (2) An application for the release of a child, referred to in section 21(3)(c), on bail, must be considered in the following three stages: (a) Whether the interests of justice permit the release of the child on bail; and (b) if so, a separate inquiry must be held into the ability of the child and his or her parent, an appropriate adult or guardian to pay the amount of money being 25 considered or any other appropriate amount; and (c) if after an inquiry referred to in paragraph (b), it is found that the child and his or her parent, an appropriate adult or guardian are ­ (i) unable to pay any amount of money, the presiding officer must set appropriate conditions that do not include an amount of money for the 30 release of the child on bail; or (ii) able to pay an amount of money, the presiding officer must set conditions for the release of the child on bail and an amount which is appropriate in the circumstances. PART 2: PLACEMENT Approach to be followed when considering placement of child 26. (1) If after due consideration of the options for release of a child in terms of Part 1, a decision is made that the child is to be detained or is to remain in detention a police official or presiding officer must give preference to the least restrictive option possible in the circumstances, as set out in subsections (2) and (3), beginning with the least 40 restrictive option. (2) Prior to a child's first appearance at a preliminary inquiry within 48 hours after arrest ­ (a) a police official must, depending on the age of the child and the alleged offence committed by the child, consider the placement of the child in a 45 suitable child and youth care centre in accordance with section 27(a); or (b) if placement referred to in paragraph (a) is not appropriate or applicable, a police official must detain the child in a police cell or lock-up, in accordance with section 27 (b). 35 44 No. 32225 GOVERNMENT GAZETJ'E, 11 MAY 2009 CHILD JUSTICE Aer, 2008 Act No. 75, 2008 (3) A presiding officer may, at a child's first or subsequent appearance at a preliminary inquiry or thereafter at a child justice court order the detention of a child in ­ (a) a child and youth care centre in accordance with section 29; or (b) prison in accordance with section 30, subject to the limitations set out in that section. 5 Placement options for child who has not been released before first appearance at preliminary inquiry 27. If, at any stage before a child's first appearance at a preliminary inquiry, the child has not been released from detention in police custody and is charged, in the case of a 10 child who is- ­ (a) (i) 10 years or older but under the age of 14 years, with any offence; or (ii) 14 years or older, with an offence referred to in Schedule 1 or 2, the police official must give consideration to the detention of the child in an appropriate child and youth care centre, if a centre is available and there is a 15 vacancy, or if a centre or vacancy is not available, in a police cell or lock-up; or (b) 14 years or older, with an offence referred to in Schedule 3, the police official must cause the child to be detained in a police cell or lock-up. Protection of children detained in police custody 28. (1) A child who is in detention in police custody must be ­ (a) detained separately from adults, and boys must be held separately from girls; (b) detained in conditions which take into account their particular vulnerability and will reduce the risk of harm to that child, including the risk of harm caused by other children; (c) permitted visits by parents, appropriate adults, guardians, legal representa­ tives, registered social workers, probation officers, assistant probation officers, health workers, religious counsellors and any other person who, in terms of any law, is entitled to visit; and (d) cared for in a manner consistent with the special needs of children, including the provision of­ (i) immediate and appropriate health care in the event of any illness, injury or severe psychological trauma; and (ii) adequate food, water, blankeL,> and bedding. (2) (a) If any complaint is received from a child or any other person during an arrest or while the child is in detention in police custody relating to any injury sustained or severe psychological trauma suffered by the child or if a police official observes that a child has been injured or is severely traumatised, that complaint or observation must, in the prescribed manner, be recorded and reported to the station commissioner, who must ensure that the child receives immediate and appropriate medical treatment if he or she is satisfied that any of the following circumstances exist: (i) There is evidence of physical injury or severe psychological trauma; (ii) the child appears to be in pain as a result of an injury; (iii) there is an allegation that a sexual offence as defined in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), has been committed against the child; or (iv) there are other circumstances which warrant medical treatment. 20 25 30 35 40 45 46 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 (b) In the event of a report being made as referred to in paragraph (a), that report must, in the prescribed manner, as soon as is reasonably possil51e, be submitted to the National Commissioner of Police, indicating ­ (i) the nature of the injury sustained or severe psychological trauma suffered by ~~~ 5 (ii) an explanation of the circumstances surrounding the injury or trauma; and (iii) a recommendation as to whether any further action is required. (c) A copy of the medical report, if applicable, must accompany the report by the station commissioner referred to in paragraph (b), and a further copy must be filed in the 10 docket. (3) The station commissioner of each police station must keep a register in which prescribed details regarding the detention of all children in police cells or lock-ups must be recorded in a manner that entries regarding the detention of children are clearly distinguishable from those of adults. (4) The register may be examined by any person, as may be prescribed. 15 Placement in a child and youth care centre 29. (1) A presiding officer may order the detention of a child who is alleged to have committed any offence in a specified child and youth care centre. (2) When a presiding officer must decide whether to place a child in a child and youth care centre referred to in subsection (1), consideration must be given to the following factors: (a) The age and maturity of the child; (b) the seriousness of the offence in question; (c) the risk that the child may be a danger to himself, herself or to any other person or child in the child and youth care centre; (d) the appropriateness of the level of security of the child and youth care centre when regard is had to the seriousness of the offence allegedly committed by the child; and (e) the availability of accommodation in an appropriate child and youth care centre. (3) Whenever a presiding officer is required to make a decision in terms of subsection (1), the presiding officer must consider the information referred to in section 40(2). (4) Where the information referred to in subsection (3) is, for any reason, not available, called into question or no longer current, the presiding officer may request the . functionary responsible for the management of a child and youth care centre to furnish a prescribed sworn statement in respect of ­ (a) the availability or otherwise of accommodation for the child in question; and (b) all other available information relating to the level of security, amenities and features of the centre. 20 25 30 35 Placement in a prison 40 30. (1) A presiding officer may only order the detention of a child in a specified prison, if­ (a) an application for bail has been postponed or refused or bail has been granted but one or more conditions have not been complied with; (b) the child is 14 years or older; 45 (c) the child is accused of having committed an offence referred to in Schedule 3; (d) the detention is necessary in the interests of the administration of justice or the safety or protection of the public or the child or another child in detention; and (e) there is a likelihood that the child, if convicted, could be sentenced to 50 imprisonment. (2) A child who is 14 years or older but under the age of 16 years may only be detained in a prison if, in addition to the factors referred to in subsection (l)(a), (c), (d) and (e), the Director of Public Prosecutions or a prosecutor authorised thereto in writing by him or her issues a certificate which confirms that there is sufficient evidence to institute a 48 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE ACT. 2008 Act No. 75, 2008 prosecution against the child for an offence referred to in Schedule 3 and is charging the child with the offence. (3) Before a decision is made to detain or further detain a child in prison, the presiding officer must consider any recommendations relating to placement in the probation officer's assessment report, the information referred to in section 40(2) and any relevant evidence placed before him or her, including evidence, where applicable, in respect of ­ (a) the best interests of the child; (b) the child's state of health; (c) previous convictions, previous diversions or charges pending against the child; (d) the risk that the child may be a danger to himself, herself or to any other person or child in a child and youth care centre; (e) any danger that the child may pose to the safety of members of the public; (f) whether the child can be placed in a child and youth care centre, which complies with the appropriate level of security; (g) the risk of the child absconding from a child and youth care centre; (h) the probable period of detention until the conclusion of the matter; (i) any impediment to the preparation of the child's defence or any delay in obtaining legal representation which may be brought about by the detention of the child; (j) the seriousness of the offence in question; or (k) any other relevant factor. (4) A presiding officer ordering the detention of a child in prison in terms of this section must direct that the child be brought before him or her or any other court every 14 days to reconsider the order. (5) (a) A presiding officer may order the detention of a child who is alleged to have committed an offence referred to in Schedule 1 or 2 in a prison instead of a child and youth care centre, if he or she, in addition to the factors referred to in subsections (1) and (3), finds substantial and compelling reasons, including any relevant serious previous convictions or any relevant pending serious charges against the child, provided that the child is 14 years or older. (b) A presiding officer who makes an order to place a child in a prison in terms of paragraph (a), must entcr the reasons for the decision on the record of the proceedings. 5 10 15 20 25 30 Error regarding placement 31. Where a child is placed in a child and youth care centre, police cell or lock-up or 35 a prison and it comes to the attention of the person admitting the child that an error has been made regarding placement, that person must act in accordance with the order of the court, committing the child to the child and youth care centre, police cell, lock-up or prison and receive the child but must, as soon as practicable, not later than the next court day, in the prescribed manner, refer the child back to the presiding officer in question for 40 the error to be corrected. 50 No. 32225 GOVERNMENT GAZETrE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 PART 3: FACTORS TO BE TAKEN INTO ACCOUNT BY PRESIDING OFFICER REGARDING FURTHER DETENTION AND PLACEMENT AND CONDITIONS OF DETENTION AT PRELIMINARY INQUIRY OR CIDLD JUSTICE COURT Factors to be taken into account by presiding officer regarding further detention and placement at preliminary inquiry or child justice court 5 32. Where a child, in terms of Parts 1 and 2 of this Chapter, has been or is to be detained and placed in a child and youth care centre or prison, the presiding officer at a preliminary inquiry or child justice court must, at every subsequent appearance of the 10 child or at any time thereafter­ (a) determine whether or not the detention is or remains necessary and whether the placement is or remains appropriate; (b) enter the reasons for the detention or further detention on the record of the proceedings; (c) consider a reduction of the amount of bail, if applicable; 15 (d) inquire whether or not the child is being treated properly and being kept in suitable conditions, if applicable; (e) if not satisfied that the child is being treated properly and being kept in suitable conditions, order that an inspection or investigation be undertaken into the treatment and conditions and make an appropriate remedial order; and 20 (j) enter the reasons for any decision made in this regard on the record of the proceedi ngs. Conditions of detention at preliminary inquiry or child justice court 33. (1) No child may be subjected to the wearing of leg-irons when he or she appears at a preliminary inquiry or child justice court, and handcuffs may only be used if there 25 are exceptional circumstances warranting their use. (2) (a) A child held in a police cell or lock-up while waiting to appear at a preliminary inquiry or child justice court must be kept separately from adults and be treated in a manner and kept in conditions which take account of his or her age. (b) Girls must be kept separately from boys and must be under the care of an adult 30 female. (c) Where a child is transported to or from a preliminary inquiry or child justice court, the child must be transported separately from adults: Provided that where it is not possible to comply, the police official must, within 48 hours, submit a prescribed written report to the presiding officer, furnishing reasons for non-compliance. 35 CRAPTER5 ASSESSMENT OF CHILD Duty of probation officer to assess children 34. (1) Every child who is alleged to have committed an offence must be assessed by a probation officer, as set out in subsections (2) and (3), unless assessment has been 40 dispensed with in terms of section 41(3). 52 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE Aer, 2008 Act No. 75, 2008 (2) A probation officer who has been notified by a police official that a child has been handed a written notice, served with a summons or arrested must assess the child before the child appears at a preliminary inquiry within the time periods provided for in section 43(3)(b). (3) A probation officer who has been notified by a police official that a child under the age of 10 years has been dealt with in terms of section 9, must make arrangements to assess the child within seven days of the notification. Purpose of assessment 35. The purpose of an assessment is to ­ (a) establish whether a child may be in need of care and protection in order to refer the child to a children's court in terms of section 50 or 64; (b) estimate the age of the child if the age is uncertain; (c) gather information relating to any previous conviction, previous diversion or pending charge in respect of the child; (d) formulate recommendations regarding the release or detention and placement of the child; (e) where appropriate, establish the prospects for diversion of the matter; (f) in the case of a child under the age of 10 years or a child referred to in section 1O(2)(b), establish what measures need to be taken in terms of section 9; (g) in the case of a child who is 10 years or older but under the age of 14 years, express a view on whether expert evidence referred to in section 11(3) would be required; (h) determine whether the child has been used by an adult to commit the crime in question; and (i) provide any other relevant information regarding the child which the probation officer may regard to be in the best interests of the child or which may further any objective which this Act intends to achieve. Confidentiality of information obtained at assessment 5 10 15 20 25 36.(1) Any information obtained at an assessment is confidential and ­ (a) may only be used for any purpose authorised by this Act, including at a 30 preliminary inquiry; and (b) is inadmissible as evidence during any bail application, plea, trial or sentencing proceedings in which the child appears. (2) Any person who contravenes the provisions of subsection (1)(a) is guilty of an offence and, if convicted, liable to a fine or to imprisonment for a period not exceeding 35 three months. Place where assessment is to be conducted 37. (1) The assessment of a child may take place in any suitable plaec identified by the probation officer, which may include a room at a police station, a magistrate's court, the offices of the Department of Social Development or a One-Stop Child Justice Centre. 40 (2) The place identified in terms of subsection (1) must, as far as possible, be conducive to privacy. 54 No. 32225 GOVERNMENT GAZETTE, 11 MAY 2009 CHILD JUSTICE AC1~ 2008 Act No. 75, 2008 Persons to attend assessment 38. (1) The child must be present at his or her assessment in terms of this Act. (2) A child's parent or an appropriate adult or a guardian must attend the assessment of the child, unless he or she has been ­ (a) exempted by the probation officer from attending; or 5 (b) excluded by the probation officer from attending because he or she has disrupted, undermined or obstructed the assessment or it is in the best interests of the child or the administration of justice. (3) A probation officer may permit the following persons to attend an assessment: (a) A diversion service provider; 10 . (b) a researcher; or (e) any other person whose presence is necessary or desirable for the assessment. (4) A probation officer may, if there is any risk that the child may escape or endanger the safety of the probation officer or any other person, request a police official to be 15 present at an assessment. (5) A probation officer may, where appropriate, elicit the views of the child in private regarding the presence of any person who is attending the assessment. (6) (a) A probation officer must make every effort to locate a parent or an appropriate adult or a guardian in order to conclude the assessment of a child and may request a police official to assist in thc location of that person. 20 (b) A probation officer may conclude the assessment of a child in the absence of a parent, appropriate adult or guardian if all reasonable efforts to locate that person have failed or if that person has been notified of the assessment and has failed to attend. Powers and duties of probation officer at assessment 39. (1) The probation officer must- (a) explain the purpose of the assessment to the child; (b) inform the child of his or her rights in the prescribed manner; (e) explain to the child the immediate procedures to be followed in terms of this Act; and (d) inquire from the child whether or not he or she intends acknowledging responsibility for the offence in question. (2) The probation officer may, at any stage during the assessment of a child, consult with any person who may provide information necessary for the assessment, including a prosecutor, police official or diversion service provider. (3) The probation officer may, at any stage during the assessment, consult privately with any person present. (4) The probation officer may consult any person who is not at the assessment and who has any information relating to the assessment, but if additional information is obtained, the child must be informed accordingly. (5) Where a child is accused with another child or other children, the probation officer may conduct the assessment of the children simultaneously if this will be in the best interests of all the children concerned. 25 30 35 40 56 No. 32225 GOVERNMENT GAZETfE, 11 MAY 2009 CHILD JUSTICE AGr, 2008 Act No. 75,2008 (6) The probation officer must encourage the participation of the child during the assessment. Assessment report of probation officer 40. (1) The probation officer must complete an assessment report in the prescribed manner with recommendations on the following issues, where applicable: (a) The possible referral ofthe matter to a children's court in terms of section 50 or 64; (b) the appropriateness of diversion, including a particular diversion service pro­ vider, or a particular diversion option or options, as provided for in section 53; (c) the possible release of the child into the care of a parent, an appropriate adult or guardian or on his or her own recognisance, in terms of section 24; (d) if it is likely that the child could be detained after the first appearance at the preliminary inquiry, the placement of the child in a specified child and youth care centre or prison in terms of section 29 or 30; (e) in the case of a child under the age of 10 years, establish what measures need to be taken in terms of section 9; (j) the possible criminal capacity of the child if the child is 10 years or older but under the age of 14 years, as provided for in section 10, as well as measures to be taken in order to prove criminal capacity; (g) whether a further and more detailed assessment of the child is required in order to consider the circumstances referred to in subsection (3); and (h) an estimation of the age of the child if this is uncertain, as provided for in section 13. (2) A recommendation referred to in subsection (1)(d) relating to the placement of the child in a child and youth care centre must be supported by current and reliable information in a prescribed form, obtained by the probation officer from the functionary responsible for the management of the centre regarding­ (a) the availability or otherwise of accommodation for the child in question; and (b) the level of security, amenities and features of the centre. (3)Arecommendation referred to in subsection (l)(g) may be made in one or more of the following circumstances: (a) The possibility that the child may be a danger to others or to himself or herself; (b) the fact that the child has a history of repeatedly committing offences or absconding; (c) where the social welfare history of the child warrants a further assessment; and (d) the possibility that the child may be admitted to a sexual offenders' programme, substance abuse programme or other intensive treatment programme. (4) The probation officer must indicate in the assessment report whether or not the child intends to acknowledge responsibility for the alleged offence. (5) The report referred to in subsection (1) must he submitted to the prosecutor before the commencement of a preliminary inquiry, with due regard to the time periods referred to in section 43(3)(b). 5 10 15 20 25 30 35 40 58 No. 32225 GOVERNMENT GAZETIE, 11 MAY 2009 CHILD JUSTICE ACT, 2008 Act No. 75, 2008 CHAPTER 6 DIVERSION BY PROSECUTOR IN RESPECT OF MINOR OFFENCES Diversion by prosecutor before preliminary inquiry in respect of offences referred to in Schedule 1 41. (1) A prosecutor may divert a matter involving a child who is alleged to have committed an offence referred to in Schedule 1 and may, for this purpose, select any level one diversion option set out in section 53(3) or any combination thereof, if the prosecutor is satisfied ­ (a) that the factors referred to in section 52(1)(a) to (d) have been complied with; and (b) in the case of a child who is 10 years or older but under the age of 14 years, that criminal capacity is likely to be proved in terms of section 11. (2) The diversion referred to in subsection (1) must take place­ (a) in accordance with directives issued by the National Director of Public Prosecutions, as provided for in section 97(4)(a)(i)(bb); (b) subject to subsection (3), after an assessment of the child in accordance with Chapter 5; and (e) before a preliminary inquiry as provided for in Chapter 7. (3) If the child has not been assessed, the prosecutor may dispense with the assessment if it is in the best interests of the child to do so: Provided that the reasons for dispensing with the assessment must be entered on the record of the proceedings by the magistrate in chambers referred to in section 42. (4) If the prosecutor is of the opinion that the child is in need of care and protection as envisaged by section 150 of the Children's Act, he or she must not divert the matter but refer the matter to a preliminary inquiry for consideration of referring it to a children's court. (5) In order to decide whether to divert the matter or not, the prosecutor must take into account whether the child has a record of previous diversions. (6) If the prosecutor decides not to divert a matter in terms of this section, he or she must immediately make arrangements for the child to appear at a preliminary inquiry referred to in Chapter 7. 5 10 15 20 25 30 Diversion option to be made order of court 42. (1) If a matter is diverted in terms of section 41, the child and, where possible, his or her parent, appropriate adult or guardian must appear before a magistrate in chambers, in order to have the diversion option that has been selected by the prosecutor, made an 35 order of court. (2) The provisions of section 58 apply with the changes required by the context, to a child who fails to comply with any order referred to in subsection (1). CHAPTER 7 PRELIMINARY INQUIRY 40 Nature and objectives of preliminary inquiry 43. (1) A preliminary inquiry ­ 60 NQ.32225 GOVERNMENT GAZE1TE, 11 MAY 2009 Act No. 75, 2008 CHILD JUSTICE ACT, 2008 (a) is an informal pre-trial procedure which is inquisitorial in nature; and (b) may be held in a court or any other suitable place. (2) The objectives of a preliminary inquiry are to­ (a) consider the assessment report of the probation officer, with particular reference t