Children’s rights
Children and the Criminal Justice System
Legal Aid SA works with Childline South Africa in matters where children’s rights are violated. Childline SA is an effective non-profit organisation that works collectively to protect children from all forms of violence and to create a culture of children’s rights in South Africa. Learn more here: https://www.childlinesa.org.za/
What is the Child Justice Act?
The Child Justice Act creates a unique and separate criminal justice system for children. The Act places an increased emphasis on restorative justice as well as on the rehabilitation and re-integration of children.
Who is legally considered a “child”?
According to the Constitution, a child is any person under the age of 18. However, the Child Justice Act recognizes that in certain instances, it would be fair to apply its provisions to persons older than 18 years. Therefore, the Child Justice Act creates three distinct categories of children and persons:
•Children under 10 years old at the time of the offence – while children under 10 are not criminally liable, the Act sets out procedures that apply to children under 10 who commit a crime. These include referral to a children’s court or counselling if necessary.
•Children over 10 years old but younger than 18 years at the time of arrest or when the summons or written notice was served on them – these are the children who the Act specifically targets and aims to protect.
•Persons between the ages of 18 and 21 who committed the offence when they were under 18 years of age – this provision recognizes that 18 to 21 year olds are still young and can benefit from the procedures in the Act.
What is Criminal Capacity?
“Criminal Capacity” relates to the age at which a child has the mental ability to distinguish between right and wrong and can understand or appreciate the consequences of his or her actions. It is the age at which children have the capacity to commit crimes and to accept responsibility for their actions.
The Child Justice Act has raised the minimum age of criminal capacity in South Africa to 10 years of age. Therefore, a child who (at the time of the alleged offence) is under 10, cannot be prosecuted. However, the Act provides for interventions for children who commit criminal acts but are under the minimum age of criminal capacity. These are educational and non-punitive measures rather than criminal sanctions.
The Act says that a child who is 10 years or older but under the age of 14 at the time of the alleged offence, is presumed NOT to have criminal capacity unless it is subsequently proved beyond a reasonable doubt that the child had such capacity at the time he or she committed the offence.
According to the law, children who are 14 years and older have full criminal capacity.
What kind of crimes does the Act deal with?
The Child Justice Act applies to all criminal offences. However it divides them into three schedules depending on the seriousness of the offences. Schedule 1 contains the least serious offences and Schedule 3 the most serious offences. These schedules then have different implications for children who are charged in terms of one of them.
If a child is charged with more than one offence and these are all dealt with in the same criminal proceedings, the most serious offence must guide the manner in which the child must be dealt with in terms of the Act.
Children and Arrest
Police may not arrest children under the age of 10. Police must hand the child over to his or her parents or a guardian. Police must also notify a probation officer that a child under the age of 10 years is alleged to have committed a crime.
Children over the age of 10 may not be arrested for a Schedule 1 offence unless there are compelling reasons justifying the arrest.
If a warrant of arrest is issued against a child, the police official that arrests that child must:
•Inform the child of his or her rights;
•Inform the child of the nature of the allegation made against him or her;
•Explain to the child the immediate procedures to be followed;
•And notify the child’s parent, an appropriate adult or guardian of the arrest.
Any child who has been arrested and remains in custody must be taken to the magistrate’s court as soon as possible but not later than 48 hours after arrest. This is regardless of whether or not an assessment has been done on the child.
Children and Pre-Trial Detention
The Act states that a child of 14 years and older charged with a Schedule 1 or 2 offence may only be sent to prison to await trial if there are substantial and compelling reasons to do so.
In addition, the Act provides that where a child is 14 years or older but under 16 years, and charged with a Schedule 3 offence, he or she may only be detained in prison if there are compelling reasons to do so. The Director of Public Prosecutions or an authorised prosecutor must also issue a certificate that shows that there is sufficient evidence to institute a prosecution against the child.
If the decision is made to detain the child before his or her first appearance at a preliminary inquiry, the police official must, depending on the age of the child and the alleged offence, consider placing the child in an appropriate child and youth care centre. If there is no centre near the court or if there are no places available in the centre, the child can be held in a police cell or lock-up pending his or her first appearance.
A child who is held in police custody must be:
•Detained separately from adults, and boys must be held separately from girls;
•Detained in conditions that will reduce the risk of harm to that child, including the risk of harm caused by other children;
•Permitted visits by parents, appropriate adults, guardians, legal representatives, social workers, probation officers, health workers, religious counsellors, etc.
•Provided with immediate and appropriate healthcare in the event of any illness, injury or psychological trauma;
•Provided with adequate food, water, blankets and bedding.
Children and Sentencing
One of the aims of the Child Justice Act is to increase the sentencing options available to the courts with regards to children.
The Act provides for the following sentencing options:
•Referral to counselling or therapy, which may include a period of temporary residence;
•Restorative justice sentences such as family group conferences and/or victim offender mediation;
•Fines or alternative fines which may include symbolic restitution, payment of compensation or any other option that the court thinks appropriate;
•Correctional supervision;
•Compulsory attendance at a non-custodial sanctions programme;
•Compulsory residence in child and youth care centres;
•Placement under the supervision of a probation officer on conditions, which may include the restriction of the child’s movement without prior written approval.
The Act states that a sentence of imprisonment may only be imposed on a child who is 14 years and older when sentenced. Furthermore a court may only do so as a measure of last resort and for the shortest appropriate period of time.
The Act states that the child can only be sentenced to imprisonment if convicted of a Schedule 3 offence; or a Schedule 2 offence where there are substantial and compelling reasons for imposing such a sentence; and a Schedule 1 offence, if the child has a record of previous convictions and substantial and compelling reasons exist for imposing a sentence of imprisonment.
These children may NOT be sentenced to more than 25 years imprisonment.
Diversion Programmes
Diversion programmes are separated from the mainstream Criminal Justice System to prevent children from being exposed to the adverse effects of the formal justice system.
Instead of the normal prosecutorial processes, children are ordered to attend programmes to address their criminal conduct. Examples of “diversions” include the child making an oral or written apology; the child being referred to counselling or therapy; doing community service or paying compensation to the victim. The purpose of a diversion programme is rehabilitative and to address the underlying problem that led the child to commit a crime.
A child is only eligible for diversion if they acknowledge their offence. The child’s compliance with the diversion order is monitored and reported back to the court. These diversions only apply to Schedule 1 offences.
Where Schedule 2 and 3 offences are involved, the child may be ordered to do a diversion but it will be supplemented with referral to intensive therapy, and/or compulsory attendance of vocational, educational or therapeutic programmes or placement. These will be under the supervision of a probation officer and may also include restrictions on the child’s movement.
Removing Criminal Records
The Act also allows for the expungement or removal of criminal records. Only criminal records for Schedule 1 and 2 offences may be wiped out. For Schedule 1 offences, a child’s criminal record can be removed after 5 years from the date of conviction and for Schedule 2 offences, after 10 years.
For the record to be removed or expunged, an application must be made to the Director-General of Justice and Constitutional Development. If the Director-General is satisfied that the child meets the requirements, he or she will issue a ‘Certificate of Expungement’.
Child rights based on age*
Legal Aid SA works with Childline South Africa in matters where children’s rights are violated. Childline SA is an effective non-profit organisation that works collectively to protect children from all forms of violence and to create a culture of children’s rights in South Africa. Learn more here: https://www.childlinesa.org.za/
The age of majority in South Africa is 18 years of age. Before you turn 18 you are still considered a child. However, a child is able to legally perform certain acts and enter into certain agreements before he or she becomes an adult at the age of 18 years.
What can a child do once they reach the age of 16?
For example if a child reaches the age of 16, the law says that he or she:
•Can open and operate a bank account and be liable for all the obligations and conditions applicable to adult clients;
•Can make a valid will;
•Can buy and sell cigarettes or any other tobacco products;
•Can legally drive a motorcycle;
•Can register as a voter but can only actually vote when 18;
•Can be served papers by the court of law;
•Can consent to sex;
•Can agree to donate his/her own body organs (after death);
•Can consent to being circumcised;
•Can consent to virginity testing;
•Can apply for a Child Support Grant in his/her own name for his/her own child or younger siblings if the primary caregiver;
•Can be considered the head of a household and bear rights and responsibilities as a caregiver;
•And can work underground in a mine as part of a vocational training programme (but may NOT be employed at an underground mine until the age of 18).
What can a child do once they reach the age of 15?
When a child reaches the age of 15, the law says that he or she:
•Can be employed;
•Can choose to leave school;
•Can enter into a civil law marriage with the consent of parents or guardians. If under the age of 15, a child needs the consent of the Minister of Home Affairs as well.
What can a child do once they reach the age of 14?
Once a child reaches the age of 14, the law says that he or she:
•Can be a witness to someone else’s will;
•Can consent to his/her own medical treatment;
•Can consent to donating blood;
•Is considered to have criminal capacity and he/she can be tried and prosecuted.
What happens if a minor has a baby?
•A minor who is pregnant (or recently gave birth) can continue to depend on her parents or legal guardians for financial support;
•If the minor is not married, her parents or guardians can become the legal guardians of the baby and claim parental responsibilities. But only the High Court can grant full guardianship and only if they believe it is in the best interest of the child.
•If the minor is legally married at the time of the baby’s birth, then they have full parental rights and responsibilities;
•A minor may terminate their own pregnancy at any age.
HIV Testing/Contraceptives
Although the legal age of sexual consent is 16, minors above the age of 12 have the right to access contraceptives and undergo HIV testing. At age 12, a child may also consent to disclose his or her HIV status.
*Permission to use this material has been granted by Black Sash http://www.blacksash.org.za/
The Hague Convention
The left-behind parent should try as much as possible to establish the details of the departure and destination of the abducting parent and/or the child.
The Hague Convention gives the left-behind parent the option of approaching the office of the designated Central Authority for the RSA, which is the office of the Chief Family Advocate or the Central Authority of the country where the child has been abducted to.
The abducted child must be below sixteen years of age.
What documents do I need to apply for assistance from the office of the Family Advocate?
•Original/certified copies of documents setting out custody/guardianship rights. Examples of these are marriage certificates, court orders granting the alleged rights, unabridged birth certificates, et cetera.
•Recent photographs of the abductor and the child.
•A sworn statement setting out the facts and circumstances around the alleged abduction.
•Copies of pleadings filed in pending litigation in RSA courts, where applicable.
The left-behind parent will also be required to complete a prescribed form which is used by central authorities in most of the contracting countries.
What are the steps taken in recovering an abducted child, in terms of The Hague Convention and South African Children’s Act?
The RSA Central Authority (CA), immediately after receipt of the necessary documents, considers the legal aspects of the request as well as the Convention status of the country to which the child has been taken.
If the child has been taken to a contracting country and all legalities have been satisfied, the CA will compile a bundle and forward the application to the foreign CA, requesting prompt return of the child.
The procedure does not apply where a child has been taken to a non-Convention country.
All CAs are required by the Convention to take steps to obtain a voluntary return of the child.
This is done through cross-border mediation. Litigation is resorted to in the event that the mediation fails.
This approach is also consistent with the general principles set out in the Children’s Act, namely, that in any matter concerning a child “an approach which is conducive to conciliation and problem-solving should be followed”.
It is however important that the left-behind parent alert the Central Authority to the possibility of further movement/possible harm to the child, should the abducting parent know of the application for return. In such cases the CA will take steps to obtain an urgent court order to prevent further movement of, or possible harm to the child.
There are limitations to the treaty’s application, in that the Convention applies only between countries that have adopted it as ‘Contracting States’.
Which countries subscribe to The Hague Convention?
Signatory countries:
HAGUE CONVENTION OF 25 OCTOBER 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
SOUTH AFRICA: 1 October 1997
Entry into force between South Africa and the following:
- Albania (1 May 2016)
- Andorra (1 May 2016)
- Argentina (1 November 1998)
- Armenia (1 May 2016)
- Australia (1 January 1998)
- Austria (1 March 2002)
- Bahamas (2016)
- Belarus (1 May 2016)
- Belgium (1 May 2003)
- Belize (2016)
- Bulgaria (1 May 2016)
- Canada (1 May 1999)
- Chile (1 June 1999)
- China, Hong Kong Special Administrative Region (1 December 1998)
- China, Macao Special Administrative Region (1 September 2003)
- China People’s Republic (2016)
- Colombia (1 April 2001)
- Costa Rica (1 May 2016)
- Croatia (2016)
- Cyprus (1 April 2004)
- Czech Republic (1 August 1998)
- Denmark (1 June 2003)
- Dominican Republic (1 May 2016)
- El Salvador (1 May 2016)
- Estonia (1 May 2016)
- Fiji (1 May 2016)
- Finland (1 December 1997)
- France (2016)
- Gabon (1 May 2016)
- Georgia (1 May 2016)
- Germany (1 February 1998)
- Greece (1 March 2000)
- Guatemala (1 May 2016)
- Guinea (1 May 2016)
- Honduras (2016)
- Hungary (1 June 2002)
- Iceland (2016)
- Ireland (1 December 1997)
- Israel (1 December 1997)
- Italy (1 August 2001)
- Kazakhstan (1 May 2016)
- Latvia (1 May 2016)
- Lesotho (1 May 2016)
- Lithuania (1 May 2016)
- Malta (1 May 2016)
- Mauritius (2016)
- Mexico (1 June 2001)
- Monaco (2016)
- Morocco (1 May 2016)
- Netherlands (for the Kingdom in Europe) (1 November 1997)
- New Zealand (1 March 1998)
- Nicaragua (1 May 2016)
- Norway (1 March 1998)
- Panama (2016)
- Paraguay (1 May 2016)
- Poland (1 March 1998)
- Portugal (1 January 2002)
- Republic of Korea (1 May 2016)
- Republic of Moldova (1 May 2016)
- Russian Federation (1 May 2016)
- San Marino (1 May 2016)
- Serbia and Montenegro (1 November 2003)
- Seychelles (1 May 2016)
- Singapore (1 May 2016)
- Slovak Republic (1 February 2001)
- Slovenia (2016)
- Slovakia (2016)
- Spain (1 February 2000)
- Sri Lanka (1 May 2016)
- Sweden (1 January 1998)
- Switzerland (1 August 1998)
- Thailand (1 May 2016)
- Trinidad and Tobago (1 May 2016)
- Turkey (2016)
- Turkmenistan (1 May 2016)
- Ukraine (1 May 2016)
- United Kingdom of Great Britain and Northern Ireland* (1 December 1997)
- United States of America (1 November 1997)
- Uruguay (1 June 2001)
- Uzbekistan (1 May 2016)
- Venezuela (2016)
- Zambia (1 May 2016)
Schools Searchers
Your child’s rights during search, seizure and drug tests at school
Schools may carry out searches, seizures and drug tests on its learners, as the South African Schools Act prohibits learners from being in possession of dangerous weapons and illegal substances on school premises and during school activities.
Every learner has a constitutional right to a safe learning environment that is free of disruptions.
However, does this mean that a learner may be subjected to random searches or even drug testing at school?
Reasonable suspicion
The South African Schools Act states that only the principal or his/her delegate may randomly search or administer a drug test on any learner, if there is a reasonable suspicion that a particular learner is in possession of, or under the influence of, an illegal drug.
Both search and drug testing can only conducted after the best interests and safety of all learners has been considered, as well as all the evidence at hand.
Learners may not be unfairly targeted.
Your child’s rights during a search or drug testing at school
- The search or drug testing must be done in a way that is reasonable and proportional to the illegal activity.
- A body search or drug test should be conducted by a person who is of the same gender as your child.
- The body search or drug test must be conducted in a private place and not in front of other learners.
- There must be an adult witness of similar gender when the search or drug test is conducted.
- The drug test must be administered as a urine or non-invasive test.
- If your child is found in possession of a dangerous weapon or illegal substance, the school cannot institute any criminal proceedings but can initiate disciplinary proceedings in line with their code of conduct.