An amendment to the Child Justice Act (Act 75 of 2008) has increased the minimum capacity for children to face criminal charges to 12 years. This effectively means that children under the age of 12 cannot be found guilty of crime.
Children younger that 12 may not be arrested, charged or prosecuted.
“As a result, the minimum age of criminal incapacity is no longer 10 years but 12 years. Therefore, children below the minimum age of criminal capacity of 12 years may no longer be arrested or charged by the South African police and may also not be prosecuted for the commission of a criminal offence.
“Such children who may have committed crimes must be dealt with outside of the criminal justice system by social workers who may refer the child to a children’s court for their directions,” explained Chrispin Phiri, the Department of Justice and Correctional Services spokesperson.
Phiri said although children between 12 and 14 were considered incapable of criminal capacity, they may be arrested if the state proved their criminal capacity beyond reasonable doubt.
“This means that children in the age group may be charged/ arrest by the South African Police Service if they commit a criminal offence, but the State must prove that they had the capacity to appreciate the difference between right and wrong and the capacity to act in accordance with this appreciation at the time of the commission of the offence,” he said.
Previously, the criminal intent of children was governed in accordance with two common law presumptions, which considered children seven years or younger incapable of criminal intent.
The same applied for children between seven and 14 years, but they could be charged and prosecuted if the state proved beyond reasonable doubt their criminal capacity.
Phiri said President Cyril Ramaphosa approved the amendment last week.
“After various legislative processes, the Child Justice Act of 2008 has been duly amended to ensure that South Africa complies with the recommendation by the United Nations Committee on the Rights of the Child to progressively raise the minimum age of criminal capacity,” said Phiri.
Source: News24, ENCA, IOL, The Constitution, image from Twitter Jozi FM