Comparison of the African Charter, the CRC and the Rules of BeUing the Constitution of South Africa. Viljoen F "African Charter on the Rights and Welfare of the Child" (2000) In Oavel Cl (ed) Introduction to Children's Law in South Africa214-23 I.
KEY QUESTIONS TO BE ANS\VERED IN THIS STUDY
AIMS OF THE STUDY
Second, to determine how South Africa's current juvenile sentencing policy and practice compares to international standards, the case will be analyzed first to investigate the sentences that have previously been imposed on juvenile offenders. Additionally, current legislation will be analyzed to determine options available for sentencing juvenile offenders.
LAYOUT OF THE THESIS
INTERNATIONAL TREATIES
- The African Charter
- The Child Justice Bill
The United Convention on the Rights of the Child was ratified by South Africa on 16 June 1995. Viljoen F 'The African Charter on the Rights and Welfare of the Child' (2000) In DavelCl (ed) Introduction to Child Law in South Africa 217.
DIVERSION AND RESTORATIVE JUSTICE
INTRODUCTION
RESTORATIVE JUSTICE
On the one hand, the opportunity to recognize that injustice has occurred and that fairness must be restored. On the other hand, there is a danger that the victim, the perpetrator and the community will all become further alienated.8 The aim of restorative justice is to address the problems. There must be cooperation between the perpetrator, the victim and the community. Restorative justice is not a specific program, rather it is a way of thinking about crime and justice, and as such should influence the daily practice of justice.
ORIGIN OF THE CONCEPT OF RESTORATIVE JUSTICE
- International Framework for Diversion
The Lav Commission's Issues Paper,17 Discussion Paper18 and Report on Juvenile Justice19 proposed restorative justice for the children's justice system in South Africa. To prevent the stigmatization of the juvenile perpetrator by obstructing the process of the official judicial procedure. When measures are taken against the child, the needs of the child are considered as the reintegration of the child into society or the family.
It also promotes the development of programs to meet the specific needs of the child offender. If the child fails to comply with the conditions of the community service, the prosecutor can re-introduce the charges. 28. This program is used for the diversion of criminal cases, and also for the protection and discipline of the child offender.
THE ROLE OF THE NATIONAL PROSECUTING AUTHORITY AND THE
It is clear from these statistics that diversion is not used evenly across the provinces as 69.2% of these were from only three provinces namely the Western Cape, Eastern Cape and Kwa-Zulu Natal.35 It remains a cause for concern that that proportionally fewer cases are referred for diversion in the other provinces, especially when it is taken into account that 45% of the population lives in these four provinces.36 The number of children diverted in 2004 shows an increase in Gauteng. The Probation Service Amendment Act 35 of 2002 requires a probation officer to assess a child offender after being arrested and charged.39 The Probation Service will make recommendations to the prosecutor as to whether the case should be diverted or prosecuted for the child. perpetrator. Diversion has mostly been effected by prosecutors' pleas on the condition that the young offender complete any of the NICRO programs.
THE INTER-lVIINISTERIAL COMMITTEE ON YOUNG PEOPLE AT RISK
Feedback was included in the Discussion Paper issued in December 1998, which included a draft version of the Bill.43.
THE CHILD JUSTICE BILL
The draft law states that diversion should be initiated only in cases where there is sufficient evidence to prosecute. The mechanism and procedure provided by the draft law to facilitate the referral of children to appropriate diversion options are reflected in Figure 1.1.48. The bill also proposes an expanded range of diversion options that are categorized into three levels~ depending on the seriousness of the criminal offense.
During the parliamentary discussions of the bill, it was decided that children who have committed certain schedule three offenses will be excluded from diversion. It is clear that the bill has moved away from the concept that diversion always involves referring a child to a specific program, and provides for new diversion orders that recognize the dignity and well-being of the child. The bill insists that any diversion option considered must consist of a predetermined content and duration and that the diversion program must be registered.5~.
DIVERSION: RELEVANT CASE LA'V
In the unreported decision of the High Court in the case of M v Senior Public Prosecutor Randburg and another, 6.J two juvenile offenders were charged with shoplifting. The High Court held that the prosecutor's discretion was not properly exercised. The deputy judge, President Fleming, referred to the correctness of the decisions not to prosecute because of the human potential of the child and the harm that prosecution could cause to immature children.
These cases suggested not only the emergence of judicial support for diversion as a matter of good policy but, apart from S v Z, the desirability of active judicial participation in furthering the ideal of diversion. Often it seems that diversion comes through hallway negotiations with the attorneys or parents of the offending child. The decision of the Supreme Court in M v. Senior Prosecutor Randburg and Another66 constitutes a further advance in the march towards formalizing the process of diversion into a legitimate process of criminal proceedings involving the child offender.67.
FEASIBILITY OF DIVERSION
Muntingh further addresses the judicial side: if the court is informed that the child has previously been given the option of diversion, the court can assume that the child is appearing for more serious crimes. Sloth-Nielsen69 expresses the opinion that the feasibility of diversion depends on the child's cooperation. Without the child's cooperation, it will be very difficult to facilitate a meeting between the victim and the perpetrator.
The author mentions, like Muntingh, the aspect of the violation of human rights by inference. The procedural rights inherent in a formal court hearing, the requirement that the State must prove the commission of the offense beyond a reasonable doubt, and the privilege against self-incrimination are forfeited when the child offender consents to diversion.70 The diversion decision is not usually subject to judicial review. . The draft juvenile justice bill is central to the development of the juvenile justice system.
SOUTH AFRICAN SENTENCING POLICY AND PRA'CTICE
INTRODUCTION
- Dealing with convicted Juveniles
It is therefore important that the judge takes the background of the young offender into account when determining an appropriate sentence. These principles provide clear guidance that the punishment should be proportionate to the circumstances and seriousness of the crime. Some children earn a salary and fines are usually paid by the child's parents.
Article 254 of the Ace of Criminal Procedure determines that the court has the discretion to send the juvenile perpetrator to the children's court. However, the age of the child must be determined before the minimum sentence rule is applied. The court can impose the foreseen punishment if the circumstances of the case justify it.
INFLUENCE OF THE CONSTITUTION ON REPORTED CASES: SENTENCE AND PRE-SENTENCE REPORTS
Where a prison sentence is considered appropriate, it should be for as short a period as possible, taking into account the nature and gravity of the offense and the needs of society, as well as the particular needs and interests of the juvenile offender. . The court accepted the constitutional principle that the best interest of the child is paramount. A number of court cases have emphasized the importance of a pre-sentence report containing the accused's information.
Allow the parent or parents of the accused the opportunity to question the probation officer about the investigations and recommendations. Give the parent or parents of the accused the opportunity to give or lead evidence about the probation officer's recommendations. The need for a preliminary retrial, even if the accused is over the age of 18 at the time of the commission of the criminal offense, is a further step towards recognition by the court in that the quali must be clear. informed before punishing a child offender.
PROVISIONS FOR SENTENCING IN THE CHILD JUSTICE BILL 70
However, the bill states that no custodial sentence may be imposed on a juvenile offender unless, as a first step, the presiding judge is satisfied that such a sentence is justified by the seriousness of the offence; secondly, the protection of the community justifies direct imprisonment; and finally, the severity of the offender's impact on the victim justifies a residential sentence. The bill provides the concrete framework that detention should be used as a last n1;:, res0l1.i6 If the child has previously failed to respond to a non-resident sentence, a. Prison sentences can only be imposed if the following factors exist: the child must have been 14 years of age or older at the time the offense was committed; there must be 'substantial and compelling' reasons for imposing a custodial sentence, either because the child has been convicted of a serious or violent offense or because the child has previously failed to respond to alternative punishments.78 However, there is no imprisonment. may be imposed in relation to an offense listed in Schedule 1 of the Bill and no sentence may be imposed as an alternative to any other sentence.
79 A child can be sent to a reform school for a period of at least six months and no more than 20 years. 80.
CONCLUSION
DISCUSSION AND CONCLUSIONS
- INTRODUCTION
- THE INTERNATIONAL INSTRlThtlENTS
- Comparison of the African Charter, the CRe and the Beiiing Rules
- The Child Justice Bill
- DIVERSION AND RESTORATIVE JUSTICE
- THE SOUTH AFRICAN SENTENCING POLICY AND PRACTICE
- CONCLUSION
Viljoen, F 'African Charter on the Rights and Welfare of the Child' (2000) In CJ Davel (ed) Introduction to Child Lmv in South Africa 218. Van Bueren G 'The United Nations Convention on the Rights of the Child: An Evolutionary Revolution' (2000) in CJ Davel (ed) Introduction to Child Lmv in South Africa 202-205. The court in these cases accepted the principle that the 'best interest of the child' is of paramount importance.
The primary goal of justice is the rehabilitation and reintegration of the child into society. Van Bueren G 'The United Nations Convention on the Right of the Child: An Evolutionary Revolution' (2000) In Davel CJ (ed) Introduction to ChildL{nF in South Africa202-213. Viljoen F 'The African Charter on the Rights and Welfare of the Child' (2000) In Davel CJ (ed) Introduction to Child Law in South Africa 214-231.
