LEGISLATIVE DEVELOPMENT IN THE CRIMINAL JUSTICE SYSTEM OF CHILD

OFFENDERS IN SOUTH AFRICA

By

ALBERTINE MKHOSI
49685627

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: UNATHI POYO

(ASSIGNMENT NUMBER 02 / 03)
2022
Table of Contents
1. Introduction
 ........................................................................................................3
2. Problem statement...............................................................................................3
3. Hypothesis. ..........................................................................................................3
4. Points of departure and assumptions. 
...............................................................3
5. Conceptualisation of central research themes
 ...................................................5
6. Proposed chapter outlay
 ....................................................................................6
6.1. Chapter 1 General Conceptualisation...........................................................6
6.2. Chapter 2 General Contextualisation............................................................7
6.3. Chapter 3 Historic review of the development of legislation in the criminal
justice system of child offenders in South Africa between 1910 and 2022 ..............8
6.4. Chapter 4 Conclusions and recommendations ...........................................10
7. Projected time scale
.........................................................................................10
8. Description of proposed research method .........................................................11
9. Preparatory study and research.........................................................................11
10. Conclusion. 
 .....................................................................................................13
11. Bibliography .......................................................................................................14

2
1. Introduction


This research investigates the field of South African public law at the micro-level
within the South African criminal justice system. The research focuses specifically on
the legislative development in terms of child offenders in South Africa with specific
focus on pre and post the adoption of the Constitution. Prisons in South Africa are
described as the worse in the world (G Makou, Ina Skosana; Ruth Hopkins, 2017),
the impact of colonisation and apartheid on the legislations will be reviewed to
ascertained its evolution.

A desktop review of the state of the prisons in South Africa, case law and legislation.

2. Problem statement

The purpose of this research is to assess the evolution of child offenders legislative
development and its application in the criminal justice system pre and post the
Constitution. The appalling conditions of South African prisons raises concerns on
the impact of children that have come in conflict with the law and who may be
incarcerated. We seek to demonstrate how child offenders cases were dealt with in
customary law, during the colonial stage and democratic area.

3. Hypothesis.

The South African legislation prior to the Constitution did not focused on the values
that promotes the bill of rights. However, post the Constitution various legislation
have been required to align to the bill of right; with the aim to promote the country’s
values, human dignity, equality and freedom.1 This will include how, the children are
assisted in a restorative justice manner in the Criminal Justice System.

4. Points of departure and assumptions. 


The South African law is intertwined with its historical map, pre colonisation,
colonisation and pre and post-apartheid. In terms of African customary law, a child
was not defined by chronological age but other characteristics such as gender, a
woman was always considered a child. In the Xhosa’s culture circumcision and

1
The Constitution, 1996 – Chapter 2 bill of rights.

3
initiation resulted in a child acquiring a man status. (Tshehla, 2008). Dispute and
transgressions were dealt with in traditional leader’s courts and the
2
institutionalisation of children did not occur. “Colonisation of South Africa caused
customary law system to be over laid by the Roman Dutch and English legal system
“ This system brought about punitive approach to dealing with child justice, where
children, who committed a crime were dealt with as adult.

Various legislation were put in place to protect children from imprisonment such as
the Prisons and Reformatories Act 1 of 1911 and the Children’s Protection Act 25 of
1913. The children Act did not provide any protection as the offenders were heard
through the criminal justice system. However, change in 1930’s when the Young
Offenders Bill of 1937 was enacted in law as Children’s Act of 1937. This brought
various changes such as raising of minimum age of criminal capacity, a ban in child
imprisonment and abolition of the death penalty for children.

1992 saw the call by NGO for a comprehensive juvenile justice system with the aim
to divert minor offences away from the criminal justice system which humanises
young offenders.

In 1997, a committee was appointed to draft the Child Justice Bill, this was enacted
into law on the 1 April 2010 as the Child Justice Act, with the sole purpose to
“establish a criminal justice system for children’s who are in conflict with the law and
are accused of committing offences, in accordance with the values underpinning the
Constitution and the international obligations of the Republic; to provide for the
minimum age of criminal capacity of children; to provide a mechanism for dealing
with children who lack criminal capacity outside the criminal justice system; to make
special provision for securing attendance at court and the release or detention and
placement of children; to make provision for the assessment of children; to provide
for the holding of a preliminary inquiry and to incorporate, as a central feature, the
possibility of diverting matters away from the formal criminal justice system, in
appropriate circumstances; to make provision for child justice courts to hear all trials
of children whose matters are not diverted; to extend the sentencing options
available in respect of children who have been convicted; to entrench the notion of
restorative justice in the criminal justice system in respect of children who are in
2
Juvenile Justice in South Africa, A Cooper (65-66)

4
conflict with the law; and to provide for matters incidental thereto.”3. This piece of
legislation has brought the restorative aspect to the child offenders in the Criminal
justice system.

5. Conceptualisation of central research themes


Colonialism began in South Africa in 1652, came the Slavery and Forced Labour
Model. This was the original model of colonialism brought by the Dutch in 1652, and
subsequently exported from the Western Cape to the Afrikaner Republics of the
Orange Free State and the Zuid-Afrikaansche Republiek. Many South Africans are
the descendants of slaves brought to the Cape Colony from 1653 until 1822.4 (South
AfricanHistory Online , 2022).

Child offender definition in terms the Child Justice Act 75 of 2008.

“child” because the South African Department of Correctional Services (1998)

defines children as people under 18 years of age, whilst juveniles and youth are 18–
21 and 22–24 years old respectively. 



The juvenile justice system refers to a legal system which is designed to deal
specifically with young people who come into contact with the law.

The Geneva Declaration of the Rights of the Child of 1924

The United Nations Convention on the Rights of the Child (UNCRC) in terms of
Article 37 and 40. (United Nations Human Rights , 1990)

The African Charter on the Rights and Welfare of the Child in terms of Article 4, 16,
17, who become signatories on the 7 January 2000.

Diversion is the channelling of children in trouble with the law away from formal court
proceedings into restorative programmes in order to avoid the stigmatising and often
detrimental effects of the Criminal Justice System. This was developed since the
endorsement of the Beijing Rules in 1985. (Traggy Maepa, 2005)

3
Child Justice Act 75 of 2008
4
South African History online

5
Restorative Justice (RJ) is about addressing the hurts and the needs of both victims
and offenders in such a way that both parties, as well as the communities which they
are part of, are healed. (Traggy Maepa, 2005)

• Retributive theory – offenders are punished (normally through incapacitation) as a

consequence of their wrongdoings and this punishment should be proportionate

to the harm caused by the crime. This idea of “the punishment fits the crime”
means that individual characteristics and mitigating factors are not taken into
consideration – punishment is seen as morally right within itself regardless of the
effects it may or may not have on the offender (Sumner, 2001, 249)

• Deterrence theory – the punishments for breaking the law should outweigh the

pleasures derived from offending (McLaughlin, 2001, 88). Deterrence rests on

three key principles: certainty of punishment, severity of punishment, i.e. the
punishment outweighs the potential benefits and clarity of punishment, i.e. the
relationship between the punishment and criminal behaviour (McLaughlin, 2001,
88). Protagonists of the deterrence theory assert that the punishment
experienced should be enough to prevent the offender from re-offending and
prison is thus seen as a preventative measure for further offending.

Ubuntu – an African concept from the Nguni linguistic family. It is a philosophical

belief system which encompasses the idea of “I am because you are”, and “because
of you, therefore I am” (Paulson, 2020).

6. Proposed chapter outlay


6.1. Chapter 1 General Conceptualisation

Faircloth reported in the Borgen magazine that South Africa prisons are considered
the worst correctional centres in the world. The challenges recorded originates from
the high incarceration rate to conditions within centres such as violence,
overcrowding, human rights violations and lack basic human dignity and post
incarceration impact.5 (Faircloth, 2021)

5
Solving inmate problems in South Africa

6
Safe spaces reported that “Inmates and remand detainees experience extreme
overcrowding and inhumane living conditions, including: poor ventilation; inadequate
ablution facilities; lack of sanitation and privacy; a shortage of beds and bedding;
insufficient supervision and oversight; and poor healthcare provision, sexual
violence, disease transmission such as HIV/AIDS and tuberculosis. This is below the
minimum standard established in national and international legislation and
declarations, breach of rights as enshrined in the South African Constitution; rights to
dignity, bodily integrity, right to protected from cruel, inhuman and degrading
treatment”.6 (Wasserman). with such backdrop, the fear of a parent is warranted.

Are they special provisions of Child offenders in the criminal justice system?

This research seeks to demonstrates the legislative developmental provision of a

child offender in the Criminal Justice system in South Africa.

6.2. Chapter 2 General Contextualisation

The first South Africa reformatory was established in in the early 1900’s for crimes
such as theft and girls were imprisoned for crime such as prostitution and child birth.7
South Africa prisons conditions are appalling, the legislations in the last century
demonstrates the alignment requirement in terms of the changes in the legislation in
such as the United Nations Convention on the Rights of the Child and the African
Union Charter. This resulted in the development and amendments to the Child
Justice Act, 2008 (Act 75 Of 2008), which increase the minimum age of criminal
capacity for Children now in Operation, where 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/ 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 directions8. (South Africa Government News Agency, 2022)

6
Prison violence in South Africa: Context, prevention and response.
7
Juvenile Justice in South Africa, Adam Cooper 65
8
Minimum age for criminal capacity increased, SAnews.gov.za

7
6.3. Chapter 3 Historic review of the development of legislation in the criminal
justice system of child offenders in South Africa between 1910 and 2022

Correctional Services Act 111 of 1998 & regulations and related

Prisons and Reformatories Act (No. 13 of 1911), which decreed that children and
young adults should not be imprisoned.

Juvenile justice in the pre-colonial, colonial and apartheid periods therefore reflected
the ideologies and broader societal practices that existed in South Africa during
these different eras. Juvenile justice policies and practices increasingly differentiated
between race groups as the apartheid state took shape, and when the anti-apartheid
struggle began to involve increased numbers of children, young people were often
dealt with through violence and repression. (Cooper, 2015).

The post-apartheid period was known for its restorative justice, “Ubuntu” concept;
which promoted rreconciliation, restitution and responsibility through the involvement
of a child, a child’s parent, family members, victims
and communities in child justice
processes.”

In terms of the development of new legislation, child justice in the democratic
era

was catalyzed by South Africa ratifying the United Nations Convention on
the Rights
of the Child (1989) in 1995. The Constitution of South Africa, the African Charter on
the Rights and
Welfare of the Child was also adopted by South Africa in 2000 and
the Child Justice bill was adopted and enforced 2010

The 1996 Constitution of the Republic of South Africa states that children have the
right not to be detained except as a measure of last resort and
for the shortest
appropriate period of time; they should be separated from persons over the age of
18 and treated in a manner and kept in conditions that take account of their age.9;


Section 29 of the Correctional Services Act of 1959 stated that the detention of
children awaiting trial should be minimized as far as possible, and that only children

9
The Constitution of South Africa, 1996

8
charged with serious offenses,
who are between the ages of 14 and 18 years old,
should await trial in prisons.

In the African customary perspective, fathers are responsible for their children and
accountable for their behaviour – good or bad. “Among the Bafokeng it is not
customary for a child under the age of twelve, whether a boy or girl, to appear in
court, even when the charge relates to an offence committed by him, or when
compensation is claimed on his behalf. The child will be called before the family
court. Traditional Leaders and they headmen played the role of mediators in family
matters, whether civil or criminal. This was evident as the courts were held in public,
everyone participated and punishment was based on an agreement by the
community.

During the apartheid era, Children, especially black children were the main victims of
human rights violations under the apartheid regime. (Mosikatsana, 1998)10
Mosikatsana reported that between 1984-1986, children between the age of 11-18
years were affected as follows; 11000 detained without trail and tortured and 18000
more arrested on charges arising from political activities, 17300 held in police cells
awaiting trails.

The Correctional Services Act 29(1), A person under the age of nineteen years who
is accused of having committed an offence shall before his conviction, not be
detained in a prison or a police cell or lock-up unless his detention is necessary and
no suitable place or detention mentioned in section thirty-seven of the Children's.
Act, 1937 (Act No. 31 of 1937), is available for his detention.

(2) In deciding as to the suitability of any place for the detention of a person referred
to in sub-section (1) regard may be had to the nature of the offence with which he is
charged and to his age, sex, race and character.

Section 7(1) of the Correctional Services Act 1998, state that children should be kept
separate from adults prisoners and in accommodation that is appropriate for their
age.11,

10
Mosikatsana T; Michigan Journal of Race and law 1998
11
The Correctional Services Act 1998

9
The legislative evolutions has been obverse in terms of the age of criminal Capacity
from 10 years to 12 years.

6.4. Chapter 4 Conclusions and recommendations

South Africa’s new Child Justice Bill is a monumental achievement, both in terms
of
its final form and the persistence of civil society organizations working with
government to achieve this end product. The ethos of the South African transition,
one that was permeated by a spirit of peaceful reconciliation, combined with
the
growing momentum of an international restorative child justice paradigm, were
structural antecedents that led to the production and particular form of the final
Child
Justice Bill (Skelton & Tshehla, 2008).

7. Projected time scale


Chapter Expected date of submission

Submit draft research proposal 12 September 2022

Introduction 14 September 2022

Problem statement 14 September 2022

Hypothesis / Aim of research 14 September 2022

Points of departure and assumptions 14 September 2022

Central research themes 14 September 2022

Proposed chapter layout 11 November 2022

Projected time scale 11 November 2022

Description of proposed research method 11 November 2022

Preparatory reading 11 November 2022

Conclusion 11 November 2022

10
Chapter Expected date of submission

Bibliography 11 November 2022

Submit for examination 11 November 2022

8. Description of proposed research method

This is a historical research, which will review South African’s legislation relating to
child offenders from 1910 to 2010 when the children Justice Act was promulgated to
assess the evolution of the criminal justice system in relation to children. We will rely
on journal articles, case reports, legislation, through UNISA library and internet.

This research will be a desktop review of the legal application of child offenders in
customary law, colonial and post-apartheid era. Various legislations will be reviewed
and not limited to the Constitution, the child Justice Act 75 of 2008, Children
Protection Act 1913, Children Act of 2005 and the handbook of juvenile delinquency
and juvenile justice.

9. Preparatory study and research.

§ A Skelton, B Tshehla, (2008). Child Justice in South Africa . Monograph 150,

29-34. This article provides an overview of the South African development o f
child justice in south Africa

§ Bekker, J. (2008). Commentary of the impact of the Children's Act on selected

aspects of the custody and care of African chidren in South Africa. Obiter,
402. This journal provides a commentary on the impact of the children’s Act
bill.

§ Faircloth, J. (2021, December 16). Solving inmate Problems in South Africa.

Retrieved from Borgen magazine.com:
https://www.borgenmagazine.com/prisons-in-south-africa/. This article
provided an overview of the conditions of prisons in South Africa.

11
§ Wasserman, Z. (n.d.). Safer spaces. Retrieved from www.safespaces.org.za:
https://www.saferspaces.org.za/understand/entry/prison-violence-in-south-
africa-context-prevention-and-response

§ United Nations Centre against Apartheid; McLachlan, Fiona. (1985-01-00).

Children in Prison: South Africa. New York: United Nations, New York. This
article provided an overview of the conditions of prisons in South Africa.

§ Manby, J. W. (1994). Prison Conditions n South Africa . New York: Human

Right Watch . Retrieved from
https://www.hrw.org/reports/1994/southafrica/index.htm This article provided
an overview of the conditions of prisons in South Africa.

§ Cooper, A. (2015). Juvenile Justice in South Africa. This writing provides both
the historical and current of child justice policies in South Africa.

§ G Makou, Ina Skosana; Ruth Hopkins. (2017, July 18). Daily Maverick.
Retrieved from dailymaverick.co.za:
https://www.dailymaverick.co.za/article/2017-07-18-fact-sheet-the-state-of-
south-africas-prisons/ - This article provided an overview of the conditions of
prisons in South Africa.

§ South African History Online . (2022, June 1). SA History online. Retrieved
from www.sahistory.org.za: https://www.sahistory.org.za/article/history-
slavery-and-early-colonisation-south-africa - Defines South Africa history.

§ United Nations Human Rights . (1990, September 2). United Nations .

Retrieved from www.ohchr.org: https://www.ohchr.org/en/instruments-
mechanisms/instruments/convention-rights-child. The untimate base of the
change in the legislation of children offenders in South Africa. 16 june 1995.

§ Traggy M, R. J. (2005). Beyond Retribution. Monograph Series, Feb.

§ Paulson, S. (2020, September 30). ttbook.org. Retrieved from The bes:

https://www.ttbook.org/interview/i-am-because-we-are-african-philosophy-
ubuntu

12
10. Conclusion. 


South African historical background has a major influence in the development of its
legislation. From customary perspective, it’s evident of the protection provided by the
elders to ensure any behaviour that is contrary to the law are addressed with the aim
of restorative and not punitive. The influence of colonialism, apartheid as
demonstrated it effects through the aim of the regime on the racial aspect and its
law. Furthermore the shift into democracy and the global influence drove the change
and adaptation of UN charter and articles and protect the right of children offenders
from the harsh and unmanageable correction services based on the crime and it’s
decree, the criminal age capacity of the offender and the Constitution which is
enshrine in the bill of right.

13
11. Bibliography

Bekker, J. (2008). Commentary of the impact of the Children's Act on selected

aspects of the custody and care of African chidren in South Africa. Obiter,
402.

Adam Cooper, (2015). Juvenile Justice in South Africa.

Faircloth, J. (2021, December 16). Solving inmate Problems in South Africa.

Retrieved from Borgenmagazine.com:
https://www.borgenmagazine.com/prisons-in-south-africa/

G Makou, Ina Skosana and Ruth Hopkins. (2017, July 18). Daily Maverick. Retrieved
from dailymaverick.co.za: https://www.dailymaverick.co.za/article/2017-07-18-
fact-sheet-the-state-of-south-africas-prisons/

Manby, J. W. (1994). Prison Conditions in South Africa . New York: Human Right
Watch . Retrieved from
https://www.hrw.org/reports/1994/southafrica/index.htm

Mosikatsana, T. L. (1998). Children's Rights and Family Autonomy in the South

African Context: A Comment on Children's Rights Under the Final
Constitution. Michigan Journal of Race and Law, 343-349.

Paulson, S. (2020, September 30). ttbook.org. Retrieved from The best:

https://www.ttbook.org/interview/i-am-because-we-are-african-philosophy-
ubuntu. Concept of Ubuntu.

Skelton A and Tshehla, B (2008). Child Justice in South Africa . Monograph 150,
29-34.

South Africa Government News Agency. (2022, August 25). www.sanews.gov.za.

Retrieved from SAnews.gov.za: https://www.sanews.gov.za/south-
africa/minimum-age-criminal-capacity-increased

South African History Online . (2022, June 1). SA History online. Retrieved from
www.sahistory.org.za: https://www.sahistory.org.za/article/history-slavery-and-early-
colonisation-south-africa

14
Traggy Maepa, R. J. (2005). Beyond Retribution. Monograph Series, Feb.

United Nations Centre against Apartheid; McLachlan, Fiona. (1985-01-00). Children

in Prison: South Africa. New York: United Nations, New York.

United Nations Human Rights . (1990, September 2). United Nations . Retrieved
from www.ohchr.org: https://www.ohchr.org/en/instruments-
mechanisms/instruments/convention-rights-child

Wasserman, Z. (n.d.). Safer spaces. Retrieved from www.safespaces.org.za:

https://www.saferspaces.org.za/understand/entry/prison-violence-in-south-
africa-context-prevention-and-response

15
ACADEMIC HONESTY DECLARATION

Declaration: .............................................
• I understand what academic dishonesty entails and am aware of UNISA’s
policies in this regard.
• 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.
• 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.
• I did not make use of another student’s work and submit it as my own.

NAME: .............Albertine Mkhosi........................................................

SIGNATURE: ....................................................................................

STUDENT NUMBER: ...49685627...................................................

MODULE CODE: ..LEM3701...............................................................

DATE: .......14 September 2022................................................................

16