Crime has been on the rise in South Africa over the years and it is unfortunate that some of the perpetrators are children below the age of 18. It is not unheard of for a child to be accused of committing a crime and to be convicted of a crime, such as murder. But what happens when a child commits a crime and can they be, for example, sentenced to life imprisonment?
Section 28 of the Constitution provides that a child under the age of 18 has a right not to be detained, except as a last resort. If a child is detained, this must be for the shortest appropriate period of time and the child must be detained separately from adults. Being detained can also refer to imprisonment after being convicted of a crime, which means that even then a child must not be detained for an inappropriate period of time.
However, there have been cases in the past where life sentences were imposed on children. An example of this is a case where a 16-year-old, with no previous convictions, was sentenced to life imprisonment for housebreaking and murder. The child accused was able to successfully appeal the sentence on the basis of his age and was given a reduced sentence.
Another example was in 2001, where an offender was sentenced to life imprisonment for killing a person in a house robbery. The offender appealed the sentence on the basis of the rights afforded to child offenders in section 28 of the Constitution. Although he was not successful in the appeal, the Constitutional Court reiterated that the rights of children are of utmost importance and that the courts must distinguish a child offender from an adult offender when imposing a sentence.
The impact of the Child Justice Act on child offenders
The Constitutional Court's view that child offenders must be treated differently was solidified on 1 April 2010 when the Child Justice Act 75 of 2008 came into law. This Act established a criminal justice system specifically applicable to children. Although the Child Justice Act does not completely do away with the prosecution and sentencing of children accused of committing crimes, it offers alternatives for rehabilitation by diverting a child offender from a prison sentence to community service, counselling and therapy.
Under the Child Justice Act, a child under the age of 12 years has no criminal capacity and cannot be prosecuted or arrested for an offence. It does not mean that there will be no consequences if the child is found guilty. The child may still be found guilty of committing an offence, but will be assisted with rehabilitation in the form of counselling, therapy or support groups.
With regard to child offenders who are between the ages of 12 and 14 years, they are presumed to not have criminal capacity, unless the State can prove that they have criminal capacity. A child falling in this age group can only be arrested as a last resort.
The Child Justice Act provides more clarity about child arrests by stipulating that a child may not be arrested for certain less serious offences such as common assault, malicious damage to property with a value of less than R1500 and theft of property with a value of less than R2500. There is an exception to this general rule and a child can be arrested for these less serious offences if there are compelling reasons for an arrest, for example, where there is reason to believe that the child does not have a fixed residential address, that the child poses a danger to another person and so on.
With regard to more serious offences such as murder, assault with intent to cause grievous bodily harm and robbery, a child may be arrested. The child who commits this crime will be charged with allegedly committing the relevant offence just as an adult will be charged, but the procedures and consequences will be different from those of an adult.
When a child is arrested, s/he must be informed of his/her rights and his/her parents or guardian must be informed of the arrest. While in detention, the child must be kept in a suitable child and youth care centre, or where this is not possible, in a police cell. The child must also be kept separate from adults at all times.
Consequences if a child is found guilty of an offence
When an adult is found guilty of an offence, the sentence is usually between a period of imprisonment or the payment of a fine. However, this is not the case with children. One of the aims of the child justice system is to rehabilitate the child and not merely to provide a sentence as a form of punishment.
When considering the rehabilitation of a child found guilty of an offence, the court may order that the child serve a sentence in the form of diversion. Different types of diversion are listed in the Child Justice Act, including attending a programme such as counselling, therapy, community service or even writing an apology. Diversion is considered for a child if the child freely and without undue influence, acknowledges responsibility for the offence, when there is evidence that the child committed the offence, and when the child and his/her parents agree to the diversion and the prosecutor agrees that the matter may be diverted.
Apart from diversion, it is possible for children to also be sentenced to a period of imprisonment. However, this can only happen in certain instances and when the child is 14 years or older. If sentenced to imprisonment, the child must be detained in a facility specially designed for youth. Section 77 of the Child Justice Act provides that sentencing must be a measure of last resort and it must be for the shortest period possible. Furthermore, the period of imprisonment may not exceed 25 years.
Conclusion
A child with criminal capacity who commits an offence may be charged under criminal laws as any other adult would be. However, there is preferential treatment of children in relation to arrest and sentencing.