This is the version of this Act as it was from 19 May 2014 to 28 February 2015. Read the latest available version.
South Africa
Child Justice Act, 2008
Act 75 of 2008
- Published in Government Gazette 32225 on 11 May 2009
- Assented to on 7 May 2009
- Commenced on 1 April 2010
- Note: See section 100
- [This is the version of this document as it was from 19 May 2014 to 28 February 2015.]
- [Amended by Judicial Matters Amendment Act, 2013 (Act 42 of 2013) on 22 January 2014]
- [Amended by Judicial Matters Amendment Act, 2014 (Act 14 of 2014) on 19 May 2014]
Chapter 1
Definitions, objects and guiding principles of Act
1. Definitions
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;"child justice 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" mans 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 1 of 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 1 of the Children’s Act;"National Director of Public Prosecutions" means the person appointed in terms 55 of section 10 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);"One-Stop Child Justice Centre" means a centre established in terms of section 89;"police cell or lock-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 15 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 62.2. Objects of Act
The objects of this Act are to—3. Guiding principles
In the application of this act, the following guiding principles must be taken into account:Chapter 2
Application of Act, criminal capacity of children under the age of 14 years and matters related to age
Part 1 – Application of Act
4. Application of Act
5. Manner of dealing with children who are alleged to have committed offences
6. Seriousness of offences
Part 2 – Criminal capacity of children under the age of 14 years
7. Minimum age of criminal capacity
8. Review of minimum age of criminal capacity
In order to determine whether or not the minimum age of criminal capacity as set 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).9. Manner of dealing with child under the age of 10 years
10. Decision to prosecute child who is 10 years or older but under the age of 14 years
11. Proof of criminal capacity
Part 3 – Age estimation, age determination and error regarding age
12. Responsibility of police official where age of child is uncertain
If a police official is uncertain about the age of a person suspected of having committed an offence but has reason to believe that—13. Age estimation by probation officer
14. Age determination by inquiry magistrate or child justice court
15. Age determination by any other court
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—16. Error regarding age of child or adult who is alleged to have committed offence
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
20. Arrest
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 arrest
22. Release of child on written notice into care of parent, appropriate adult or guardian before first appearance at preliminary inquiry
23. Duty of police official when releasing child into care of parent, appropriate adult or guardian
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 18.24. Release of child into care of parent, 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
27. Placement options for child who has not been released before first appearance at preliminary inquiry
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 child who is—28. Protection of children detained in police custody
29. Placement in a child and youth care centre
30. Placement in a prison
31. Error regarding placement
Where a child is placed in a child and youth care centre, police cell or lock-up or 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 the error to be corrected.Part 3 – Factors to be taken into account by presiding officer regarding further detention and placement and conditions of detention at preliminary inquiry or child justice court
32. Factors to be taken into account by presiding officer regarding further detention and placement at preliminary inquiry or child justice court
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 child or at any time thereafter—33. Conditions of detention at preliminary inquiry or child justice court
Chapter 5
Assessment of child
34. Duty of probation officer to assess children
35. Purpose of assessment
The purpose of an assessment is to—36. Confidentiality of information obtained at assessment
37. Place where assessment is to be conducted
38. Persons to attend assessment
39. Powers and duties of probation officer at assessment
40. Assessment report of probation officer
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. Nature and objectives of preliminary inquiry
44. Persons to attend preliminary inquiry
45. Confidentiality of information furnished at preliminary inquiry
46. Failure to appear at preliminary inquiry
A child or his or her parent, an appropriate adult or a guardian, who has been directed to appear at a preliminary inquiry in terms of—47. Procedure relating to holding of preliminary inquiry
48. Postponement of preliminary inquiry
49. Orders at preliminary inquiry
50. Referral of children in need of care and protection to children’s court
If it appears to the inquiry magistrate during the course of a preliminary inquiry that—Chapter 8
Diversion
51. Objectives of diversion
The objectives of diversion are to—52. Consideration of diversion
53. Diversion options
54. Selection of diversion option
55. Minimum standards applicable to diversion
56. Provision and accreditation of diversion programmes and diversion service providers
57. Monitoring of compliance with diversion order
58. Failure to comply with diversion order
59. Legal consequences of diversion
60. Register of children in respect of whom diversion order has been made
61. Family group conference
62. Victim-offender mediation
Chapter 9
Trial in child justice court
63. Child justice courts and conduct of trials involving children
64. Referral of children in need of care and protection to children’s court
If it appears to the presiding officer during the course of proceedings at a child justice court that a child is a child in need of care and protection referred to in section 50, the court must act in accordance with that section.65. Parental assistance
66. Time limits relating to postponements
67. Child justice court may divert matter
Chapter 10
Sentencing
Part 1 – General
68. Child to be sentenced in terms of this Chapter
A child justice court must, after convicting a child, impose a sentence in accordance with this Chapter.69. Objectives of sentencing and factors to be considered
70. Impact of offence on victim
71. Pre-sentence reports
Part 2 – Sentencing options
72. Community-based sentences
73. Restorative justice sentences
74. Fine or alternatives to fine
75. Sentences of correctional supervision
A child justice court that convicts a child of an offence may impose a sentence of correctional supervision envisaged in section 276(1)(h) of the Criminal Procedure Act.[section 75 substituted by section 38 of Act 42 of 2013]76. Sentence of compulsory residence in child and youth care centre
77. Sentence of imprisonment
78. Postponement or suspension of passing of sentence
79. Failure to comply with certain sentences
Chapter 11
Legal representation
80. Requirements to be complied with by legal representatives
81. Legal representation at preliminary inquiry
Nothing in this act precludes a child from being represented by a legal representative at a preliminary inquiry.82. Child to be provided with legal representation at State expense in certain instances
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
Whenever the release of a child on bail is considered, pending—Chapter 13
Records of conviction and sentence
87. Expungement of records of certain convictions and diversion orders
Chapter 14
General provisions
88. Rules of Court
89. Establishment and jurisdiction of One-Stop Child Justice Centres
90. Referral of information relating to age to Department of Home Affairs
91. Liability for patrimonial loss arising from execution of diversion order
Section 297A of the Criminal Procedure Act applies, with the changes required by the context, in the case of any patrimonial loss suffered by any person as a result of a delict committed by a child during the execution of a diversion order made in terms of this act.92. Children used by adults to commit crime
If it comes to the attention of any court official or probation officer that a child has been used by an adult to commit a crime referred to in Schedule 1 or 2 of the Criminal Procedure Act, that adult must be reported to the South African Police Service for the consideration of a prosecution as provided for in section 141(1)(d), read with section 305(1)(c), of the Children’s Act, and the fact of the adult’s involvement must be taken into account when determining the treatment of the child in the child justice system.93. National policy framework
94. Establishment of Intersectoral Committee
95. Meetings of Intersectoral Committee
The Intersectoral Committee must—96. Responsibilities, functions and duties of Intersectoral Committee
97. Regulations, directives, national instructions and register
98. Transitional arrangements
99. Repeal or amendment of laws
100. Short title and commencement
This Act is called the Child Justice Act, 2008, and takes effect on 1 April 2010, or any earlier date fixed by the president by proclamation in the Gazette.History of this document
19 August 2022
01 December 2021
Amended by
Cybercrimes Act, 2020
Read this version
01 December 2017
08 January 2016
09 August 2015
01 March 2015
19 May 2014 this version
Amended by
Judicial Matters Amendment Act, 2014
22 January 2014
01 April 2010
Commenced
Note: See section 100
07 May 2009
Assented to
Subsidiary legislation
Title | Numbered title |
---|---|
Regulations relating to Child Justice, 2010 | Government Notice R251 of 2010 |
Cited documents 14
Legislation 14
1. | Criminal Procedure Act, 1977 | 3575 citations |
2. | Constitution of the Republic of South Africa, 1996 | 3458 citations |
3. | Magistrates' Courts Act, 1944 | 2700 citations |
4. | Promotion of Access to Information Act, 2000 | 1624 citations |
5. | Prevention of Organised Crime Act, 1998 | 1003 citations |
6. | Children's Act, 2005 | 504 citations |
7. | Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 | 380 citations |
8. | Prevention and Combating of Corrupt Activities Act, 2004 | 359 citations |
9. | National Prosecuting Authority Act, 1998 | 202 citations |
10. | Rules Board for Courts of Law Act, 1985 | 188 citations |
11. | Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 | 134 citations |
12. | Social Assistance Act, 2004 | 102 citations |
13. | Correctional Services Act, 1998 | 49 citations |
14. | Legal Aid South Africa Act, 2014 | 30 citations |
Documents citing this one 113
Gazette 63
Judgment 42
Legislation 8
1. | Social Assistance Act, 2004 | 102 citations |
2. | Prevention and Combating of Trafficking in Persons Act, 2013 | 50 citations |
3. | Legal Aid South Africa Act, 2014 | 30 citations |
4. | Customary Initiation Act, 2021 | 14 citations |
5. | Cybercrimes Act, 2020 | 14 citations |
6. | Prevention and Combating of Hate Crimes and Hate Speech Act, 2023 | 3 citations |
7. | Legal Aid of South Africa Regulations, 2017 | |
8. | Regulations relating to Child Justice, 2010 |