PROTECTION OF THE BEST INTEREST OF A CHILD OFFENDER IN

THE SOUTH AFRICAN CRIMINAL SYSTEM

By

Thabang Mojaje
53130650

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: Ms L Pienaar
(ASSIGNMENT NUMBER 02)
2022
 Table of contents

1. Introduction page 1

2. Problem statement page 3

3. Hypothesis page 3

4. Points of departure and assumptions page 3

5. Conceptualisation of central research themes page 3

6. Proposed chapter outlay page 7

7. Projected time scale page 8

8. Research method page 8

10. Conclusion page 9

10. Bibliography page 11

11. Academic honesty declaration page 14

1. Introduction and background study

“No civilized society regards children as accountable for their actions to the same extent as
adults”.1 If there is an absence of a justice system that is exclusively applicable to child
offenders in South Africa, unfortunately children will be exposed to the same punctiliousness
of the criminal law system that is applicable to South African adults.

As one of the members of the United Nations Convention on the Rights of the Child, South
Africa is obliged to make sure that child offenders are treated in a way that is in alignment
with the protectionary codes of the Convention. As a result, in July of 2000 the South
African Law Commission (Project 106) concluded a Child Justice Bill coupled with Report
on Juvenile Justice2. In order to counteract uncertainty and inconsistency based on the fact
that there was no legislation that governed child justice system at the time.

Before the democratization of South Africa, all children that were in conflict with the law
were being subjected to the same criminal charges that was similar to adults that were in
conflict with the law, that was primarily regulated by the Criminal Procedure Act of 1977.2
As a result, this led to children being subjected to harsh and inhuman sanctions.

Before the adoption of the interim constitution,3 corporal punishment was a sanction that was
mostly used in cases that involved children. Therefore, in context of the study one of the first
legal changes was to abolish corporal punishment as a sentence that could be imposed to a
child. It was further decided that a creation of a separate children justice system was a vital
element in improving the manner in which children that are in conflict with the law are
treated.2

However, it was not until the 1st of April 2010, that the child justice act was introduced.3 The
aim of this act was to set up a child justice system for children who were in conflict with the
law. This act entails that any person under the age of 18, who is suspected to have committed
a crime, will not be confronted with in terms of normal procedures that are used for adults,
but the child justice process will be aligned to.4

1
Gibson-Morgan E The Handling of Youth Offending in England and in France (Open Edition Books
2019) 45.
2
McGregor M “An Evaluation of the Child Justice Act” (LLM thesis Nelson Mandela Metropolitan
University 2010) 1.
3
Department of Justice and Correctional development: “Child Justice Act Regulations”
https://www.justice.gov.za/vg/childjustice.html (Date of use 05 November 2022) 1.

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The child justice act aims to ensure that the child justice matters are dealt with in an
appropriate manner in order to assist children who are suspected to have committed a crime
to turn their lives around and become productive members of society by engaging with the
child in a restorative justice manner, diversions and other alternative sentencing options. 4

It is however important to mention that this act was intended for children between the ages of
10 and 18.4 As a result, a child under the age of 10 years cannot be arrested!!! Based on the
fact that a child under this age does not have criminal capacity and cannot be charged or
arrested for an offence. If it then happens that a child commits an offence at this age, he or
she is referred to the Children’s court. Additionally, a child older than 10 but below the age
14 is presumed to lack criminal capacity and its up to the state to prove that he or she has
criminal capacity. As a result, such a child can be arrested. Then finally, a child above 14 but
under 18 years of age, is deemed to have criminal capacity and can be arrested.5

One of the central concepts that governs the child justice act is diversion. 5 Diversion can be
defined as the directing of criminal cases that involves a child away from the criminal justice
system with or without conditions. In essences, the aim of diversion is to grant a child
offender a second chance by preventing the child from having a criminal record and to
address the root causes that might have caused the criminal behaviour through relevant
diversions interventions.6 Diversions is considered in all cases, irrespective of the nature of
the crime and whether or not previous diversions were ordered to the child a hand. The
diversion may be considered during the trial in the justice court until before the closure of the
state’s case.6

2. Problem statement

The purpose of this research is to evaluate the efficiency of the integration of the of the Child
Justice Act 75 of 2008 into the South African criminal system as a measure of protecting the
best interest of the child offender.

3. Hypothesis

4
Department of Justice and Correctional development: “Amendments to the Child Justice Act, 2008 (Act
75 Of 2008) which increase the minimum age of criminal capacity for Children now in Operation”
https://www.justice.gov.za/m_statements/2022/20220825-CJA-Amendments.html (Date of use 05 November
2022) 2.
5
Child Justice Act 75 of 2008 8.

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The integration of the Child Justice Act 75 of 2008 into the South Africa criminal procedure
is efficient in ensuring the protection of the best interest of a child offender by minimising
contact with the criminal justice system, and to use detention only as a measure of last resort.

Therefore, the aim of this research is:

 Is the current legislature able to ensure that all child offenders are dealt with
appropriately, constantly, and fairly?
 Is the current child justice system in alignment with the values that are entrenched in
the Constitution as well is the Convention?
 Is it in alignment with the notion of restorative justice?
4. Points of departure and assumptions

Firstly, the point of departure for this study will be the criminal law procedure will special
emphasis being placed on The Child Justice Act 75 of 2008. 5 Reason being that, the act aims
to prevent children from being detained and also away from the formal criminal justice
system that is being governed by the Criminal Procedure Act 51 of 1977,6 mainly through
diversion.7 When all these mitigating factors come short, the Act provides for juvenile
offenders to be tried and sentenced in juvenile courts.

Over and above that, sentencing in the juvenile justice system is governed by chapter 10 of
the Act section 68.10 This section deals with “jurisdictional” provisions of the new child
sentencing system it goes further by just mandating child justice courts in regards to imposing
their sentences in terms of the Act, but is also provides a set of boundaries within which
sentencing should take place.8

Secondly, the research method that will be used for this study is historical methods. The
reason being that historical methods helps untangle legal problems rooted in the past by
providing road signs of how things have developed and evolved over time.8 It illustrates
many legal conundrums that often requires looking back to the past. Any legal conception
needs revisitation from time to time in order to assess the changes that take place
continuously. Therefore, developments on international law, the constitution, decided court
cases, legislation as well as academic reports will be considered when conclusions are drawn
for the study.
6
Criminal Procedure Act 51 of 1977.
7
Reyneke M “Child Justice” 2016 University of the Free State 376.
8
Shama NC “Legal Research and Methodology Perspectives, Process and Practice” 2020 (Satyam Law
International) 75.

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Thirdly, the following assumptions will be considered for the study:

 The Constitution is the supreme law of the country.

 The Bill of Rights is a corner stone of democracy in South Africa and
 Section 28 of the Bill Rights highlights
 The Child Justice Act 75 of 2008 is legislation that deals with the child justice system in
South Africa.
 South Africa being a signatory of The United Nations Convention on the Rights of the
Child, all efforts regarding children have to be in alignment with their codes.
5. Conceptualisation of central research themes

The Central theme of the study will be protecting the rights of children in the criminal
system. The rights in section 289 of the constitution are in alignment with international
agreements with respect to children. The most important being United Nations Convention
on the Rights of the Child. South Africa was already a signatory when the Constitution came
into existence, but it had not yet fully complied with all the requirements of its signatories.10
Therefore, a South African Law commission was tasked to investigate child justice in South
Africa. This led to the inception of the Child Justice Act 75 of 2008, which established a
criminal system for accused children, separate from the criminal justice system that apply to
accused adults.11

Furthermore, according to section 28(2) of the Constitution, a "child's best interests are of
paramount importance in every matter concerning the child". 10 This notion if often applied to
matters relating to family law when issues such custody of a child after a divorce, foster care
adoption etc. Nonetheless, section 28(2) is worth taking into consideration "in every matter
concerning the child", which would certainly include criminal law and criminal justice as
well.11 The appendage of the best interest principal beyond its normal application in family
law has been precipitated by the convention.

A child best interest plays an important role in interpreting any provision that affects the
child. It is a consideration that must be given a practical effect in the light of any purpose of a
specific provision of the Child Justice Act 75 of 2008.12 As is normally the case, the best
interest of a child offender can only be established through careful examination of all facts
9
Constitution of the Republic of South Africa, 1996.
10
Skeleton A “Child Justice in South Africa: Application of International Instruments in the
Constitutional Court” 2018 Centre for Child Law, University of Pretoria, South Africa 26.
11
Terblanche SS “The Child Justice Act: a detailed consideration of section 68 as a point of departure
with respect to the sentencing of young offenders” 2012 Potchefstroom Electronic Law Journal (PELJ) 35.

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relevant to the issue in question. The courts have a wide discretionary power that enables it to
ensure that effect is given to the best interest of a child. 11 They have to take all factors
involved in every individual case in order to precisely exercise judgement that best interest
decision inevitably requires.

Most of other rights in section 28 gives effects to the best interest notion, for example “every
child has the right to basic nutrition, shelter, health care and social services, as well as the
right to be protected from maltreatment, neglect, abuse or degradation” 10. Additionally,
children are also entitled to other Constitutional rights in the Bill of Rights. Most especially,
related to sentencing, these rights include the rights to dignity, life, a fair trial, and also not to
be punished in a cruel, inhuman, or degrading manner, just to mention a few obvious
examples.

Increasingly, it become paramount, in regard to the constitutional injunction of detention as a

measure of last resort, that if there was a legitimate option other than detention, courts may
alternatively purse that route.12 In rare circumstances, where imprisonment was sanctioned,
the rules of proportionality come to the fore in aiding, the sentencing court to inspect what
will constitute the shortest appropriated period, on a case-to-case basis. It was believed that
unique circumstances of each case will invariably determine the appropriateness of the
sentence, being in alignment with the concept of the best interest of the child offender. 13

The very first case that the Constitutional Court had to face in regard to the children’s rights
was that of S v Williams,14 it was decided in this case that whipping should be abolished as a
sentence.15 The court was tasked with aligning the best interest of the child and disciplining
the child as well as other rights violations, but the court based its verdict on a violation of
“cruel, inhuman and degrading treatment". 16 A couple of years later, the court had to consider
corporal punishment in private Christian schools in the case of Christian Education South
Africa v Minister of Education. 16 In deciding that the legal abolishment of corporal
punishment was both a reasonable and justifiable limitation on the parent’s right to religious
12
Mhlanga PE “The legitimacy of judicial law-making and the application of judicial discretion in South
Africa: A legal comparative study” (LLD thesis University of South Africa 2020) 65.
13
Fambasayi R “ The best interests of the child offender in the context of detention as a measure of last
resort: A comparative analysis of legal developments in South Africa, Kenya and Zimbabwe” (LLD thesis
North-West University South Africa) 12.
14
S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (9
June 1995)
15
Skeleton A “Too much of a good thing? Best interests of the child in South African jurisprudence”
2019 De Jure Law Journal (Pretoria) 7.
16
Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000 (4) SA
757; 2000 (10) BCLR 1051 (18 August 2000)

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freedom, the court considered best interest, but it again also focused on the children’s right to
dignity and to freedom and security of the person. 16 In these early cases, it was observant that
the court applied other rights in the Constitution, surprisingly, the rights that the courts
focused on were the rights are not included in section 28 (which is the foundation of all
children’s rights) but considered other rights in the Bill of Rights, showing that, from the
outset, the court ensured that applied all the rights in the Bill Rights to children.16

Most importantly in context of the study, the process of taking into consideration the best
interest of the child received detailed attention in the case of S v M, leveraging on previous
jurisprudence.17 In this case the court went further than any previous judgement in attempt of
explaining the paramountcy but putting more emphasis on what is not rather than detailing
what it is.16 It was held that "the fact that the best interests of the child are paramount does
not mean that they are absolute." Even though S v M related to a criminal matter of a mother,
the issue that had to be considered leaned to whether the separation of the primary caregiver
from her children by the state would be a violation of the children’s rights, if there best
interest were not considered at the time of sentencing. And the court decided that it would.16

6. Proposed chapter outlay

Chapter 1: Introduction, parameters, and This chapter will consist of the problem
conceptualisation statement, research proposal as well as the
conceptualisation of the central research
themes
Chapter 2: International development of This chapter inspects the historical
children rights development of children rights
Chapter 3: South African development of This chapter will focus on the historical
children rights development of children rights in alignment
with the constitution and legislation
Chapter 4: Methodology This chapter will focus on the methods that
will be used to conduct the study
Chapter 5: Conclusions and This chapter provides conclusions, in
Recommendations alignment with the hypothesis and provides
recommendations on reforms that have to be

17
S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) (26 September
2007)

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 undertaken

7. Projected time scale

Expected date of submission

Chapter 1 12 September 2022
Chapter 2 12 October 2022
Chapter 3 11 November 2022
Chapter 4 12 December 2022
Chapter 5 15 February 2023

8. Research method

The study will be conducted using qualitative legal research, which is a subjective form of
research that relies on the analysis of controlled observation of the of the researcher. Unlike
in quantitative approach were statistical methods from larger sample is used to draw
conclusion for the study, in qualitative approach a relatively small group of subjects is used to
draw data and make a conclusion.

Furthermore, the sub-method for the study will be a historical approach. Historical approach
looks at the development and evolution of certain kind of rules in order to provide a useful
contextual background and a fuller understanding of a particular legal discipline for the topic
at hand.18

18
iEduNote “Legal Research Methodologies (5 Approaches to Legal Research)
https://www.iedunote.com/legal-research-methodologies-approaches#5-historical-approach-to-legal-research
(Date of use: 06 September 2022) 3.

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A historical approach investigates the connection between law and events and demonstrates
how the law has been used in different times for different purposes9. It helps us understand
how the law has evolved and why it further needs a change in the present context. It regards
history as a significant factor in explaining current law, its past development, and the
direction it has to take for the future.19

In context of the study at hand, as early as 1959 the United Nations’ adopted the Universal
Declaration of the Rights of the Child that gave comprehensive guidelines for the recognition
and protection of the children’s rights.19 As a result, the declaration will serve as a
cornerstone for the study. Here at home, children suffered severely under apartheid. For
example, some were detained without a trial, assaulted, tortured and as a result murdered.
And many were deprived of deprived access to adequate healthcare, adequate housing, and
education.20

Secondly, in the constitution our Bill of Rights emphasises that in every matter that concerns
a child, the child's best interests are the most important consideration. Most importantly for
the study at hand, each child sentence has to be considered individually, with the provisions
of the section into consideration. 20 This requirement was brought about by the case of the
Centre for Child Law v Minister of Justice and Constitutional Development and Others,
which will be our third avenue to look into for the study.

Then finally, the last resort will be legislation in which Child Justice Act 75 of 2008 will be
inspected. Which among other things states that every child has the right to:5

 “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 adults, and to separate boys from girls, while in detention.5

9. Conclusion

The study will aim at examining the legal developments in South Africa with a view of
assessing the implementation of the best interest of the child in light of detention of juvenile
offenders as a measure of last resort. It was highlighted throughout the document that, in the
19
SAHA “The cornerstone of democracy: South Africa’s Bill of Rights – Children’s rights”
https://www.saha.org.za/billofrights/childrens_rights.htm (Date of use: 06 September 2022)
20
Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA
632 (CC) 1.

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international children’s rights law, the best interest of the child is an overriding principal as a
result, it sets the benchmark upon which the study will aim at measuring all the child’s justice
laws and procedures in South Africa. The best interest principal is a self-explanatory right
that strongly dictates the interpretation and scope of other rights, including the right not to be
imprisoned except as a measure if last resort and for the shortest appropriate time.

Furthermore, it was shown in the study that the courts in South Africa have construed the
constitutional entrenchment of the best interest of the child as a special inbuild protection
mechanism in the context of pre-trial detention, without outlawing the detention of juveniles
in exceptionally deserving circumstances. It then becomes clear that, the principal of the best
interest of a child plays a very important role in the sentencing of a child offender. Based on
systems that are in place, it seems as if the sentences that are imposed on children for serious
criminal offences are debatably consistent with both the best interest of a child as well as the
child’s right not to be detained except as a measure of last resort in which the study will wish
to further explore.

Bibliography

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Legislations

Child Justice Act 75 of 2008

Constitution of the Republic of South Africa, 1996

Criminal Procedure Act 51 of 1977

The Interim Constitution 1994

Journal articles

Terblanche SS “The Child Justice Act: a detailed consideration of section 68 as a point of

departure with respect to the sentencing of young offenders” 2012 Potchefstroom Electronic
Law Journal (PELJ).

Skeleton A “Too much of a good thing? Best interests of the child in South African
jurisprudence” 2019 De Jure Law Journal (Pretoria).

Skeleton A Child justice in South Africa: Application of international instruments in the

Constitutional Court” 2017 De Jure Law Journal (Pretoria).

Skeleton A “Child Justice in South Africa: Application of International Instruments in the

Constitutional Court” 2018 Centre for Child Law, University of Pretoria, South Africa.

Shama NC “Legal Research and Methodology Perspectives, Process and Practice” 2020
(Satyam Law International)

Internet sources

Department of Justice and Correctional development: “Child Justice Act Regulations”

https://www.justice.gov.za/vg/childjustice.html (Date of use 05 November 2022)

Department of Justice and Correctional development: “Amendments to the Child Justice Act,
2008 (Act 75 Of 2008) which increase the minimum age of criminal capacity for Children
now in Operation” https://www.justice.gov.za/m_statements/2022/20220825-CJA-
Amendments.html (Date of use 05 November 2022)

iEduNote “Legal Research Methodologies (5 Approaches to Legal Research)”

https://www.iedunote.com/legal-research-methodologies-approaches5-historical-approach-to-
legal-research (Date of use: 06 September 2022).

Case law

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Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000
(4) SA 757; 2000 (10) BCLR 1051 (18 August 2000)

S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632 ; 1995 (7) BCLR 861
(CC) (9 June 1995)

S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC)
(26 September 2007)

Law reports

Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009
(6) SA 632 (CC) 1

Gibson-Morgan The Handling of Youth Offending in England and in France

McGregor M An Evaluation of the Child Justice Act 1

Reyneke M Child Justice 2016 University of the Free State

Terblanche SS The Child Justice Act: a detailed consideration of section 68 as a point of

departure with respect to the sentencing of young offenders

Books

Gibson-Morgan E The Handling of Youth Offending in England and in France (Open Edition
Books 2019)

Dissetations and Theses

Fambasayi R “ The best interests of the child offender in the context of detention as a
measure of last resort: A comparative analysis of legal developments in South Africa, Kenya
and Zimbabwe” (LLD thesis North-West University South Africa)

McGregor M “An Evaluation of the Child Justice Act” (LLM thesis Nelson Mandela
Metropolitan University 2010)

Mhlanga PE “The legitimacy of judicial law-making and the application of judicial discretion
in South Africa: A legal comparative study” (LLD thesis University of South Africa 2020)

11 | P a g e
SAHA “The cornerstone of democracy: South Africa’s Bill of Rights Children’s rights”
https://www.saha.org.za/billofrights/childrens_rights.htm

Sharma NC Legal Research and Methodology Perspectives, Process and Practice

ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa’s policies in this
regard.

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2. I declare that this assignment is my own, original work. Where I have used someone else’s
work, I have indicated this by using the prescribed style of referencing. Every contribution to,
and quotation in, this assignment from the work or works of other people has been referenced
according to this style.

3. I have not allowed and will not allow anyone to copy my work with the intention of
passing it off as his or her own work.

4. I did not make use of another student’s work and submitted it as my own.

NAME: Thabang Mojaje

SIGNATURE:

STUDENT NUMBER: 53130650

MODULE CODE: LME3701

DATE: 11 November 2022

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