When can a child be imprisoned?
Over the past few weeks South Africa has witnessed a spate of crimes where children are committing heinous offences against each other and some even against adults. Community members from all over the country have called for these children to feel the full might of the law.
Prof Pieter du Toit from the North-West University’s (NWU’s) Faculty of Law explains the process that follows after a child has committed an offence.
The age and criminal capacity of the child
A child under the age of 10 years is deemed to not have criminal capacity, and cannot be prosecuted. When a child between the ages of 10 to 14 years commits a crime, the State must prove beyond reasonable doubt that the child had criminal capacity at the time of the incident.
“Children over the age of 14 who commit offences are regarded by law to have the mental ability to distinguish between right and wrong and and understand the consequences that come with their actions,” says Prof Du Toit. “They are therefore deemed to have criminal capacity.”
Prof Du Toit says that when a child has committed a crime, he/she is dealt with in terms of the Child Justice Act (CJA).
Within this act offences fall into three categories. Schedule one is for less serious offences, and schedule two for cases that are more serious. Schedule three is for offences such as murder, rape, sexual offences and robbery with aggravated circumstances.
For offences that are not too serious the child can be diverted from the criminal justice system. There are different diversion options depending on what schedule the offence falls under.
Sentencing a minor
Most serious cases are adjudicated in the Child Justice Court. After a child has been convicted of a crime, they can either be sentenced to a custodial or non-custodial sentence.
Prof Du Toit adds that there are numerous sentencing options. These include community based sentences, peer association, supervision and guidance, written apologies, sentencing the child to a child youth care centre and imprisonment.
He says a child can be imprisoned after serving time in a youth care sentence, but there are strict prerequisites that need to be met before that decision can be made. “Imprisonment of children over the age of 14 is only considered as a last resort. A child may not be sentenced to a term of more than 25 years imprisonment.”