Thesis (LLM) -- University of Limpopo, 2008 / The Constitution of the Republic of South Africa 108 of 1996 has brought about an inspiration for the development of our legal system. Youthful offenders like any other person in South Africa have fundamental rights. Section 28 provides for the rights of children in general and section 28(2) makes provisions for the supremacy of children’s rights in every field of the law. With regard to child offenders charged with serious crimes, courts and all those dealing with them need to take their basic rights into account. Courts should observe the rules and procedures of fair trial in order to protect and promote the individual or group of child offender’s rights. Courts are enjoined to act dynamically to obtain full particulars of the child offender’s personality and personal circumstances, and to engage the services of the probation officers or correctional service officials. The Constitution of the Republic of South Africa Act 108 of 1996, the Child Care Act 74 of 1983 and 38 of 2005, Criminal Law Amendment Act 105 of 1997, Criminal Procedure Act 51 of 1977, etc regulate and guide courts in dealing with children who fall foul of the law. Firstly, I am indebted to Mrs. A.T Thoka, and Prof. Scheepers my supervisors who unselfishly assisted and encouraged me through the maze I had to go through this dissertation. I would also like to express my gratitude to the late Mrs Motimele Mapula Rebecca, my wife Ramadimetja Teresiah, my daughter Isabel Madithotsana Mokonyama and my two sons Mokitlelo and Matsimela to whom this short dissertation is dedicated for their kindness in allowing me to use their quality time for my personal advancement. Last, but not least, my thanks are extended to Ms Makgatho Jerminah for having typed and compiled this dissertation.

Dissertation (LLM)--University of Pretoria, 2013. / gm2015 / Centre for Human Rights / LLM / Unrestricted

Derived from centuries-old English laws, Australian laws ascribe criminal responsibility to children according to their age and their assumed level of understanding of the rightness and wrongness of certain acts. This project first charts the creation and development of the English and Australian positions. Then, using insights from postmodernity and the idea of deconstruction, the law is critically assessed to reveal practical, theoretical and moral limits in the law's attempt to do justice. The justifiability of the current Australian legal positions is questioned by demonstrating the law's internal inconsistencies, by revealing the law's historical and philosophical preferences, and by contrasting the law's restricted ambit of inquiry with contemporary knowledge from other disciplines including developmental psychology and sociology.

"It is the responsibility of every government to protect the fundamental rights and freedoms of its citizenry and to ensure that the rule of law and justice prevails at all times. Hovewer, children accused of committing crimes are more susceptible to human rights abuses and violations of their legal rights while in detention, either in police cells, prisons or authorised detention centres. They mostly suffer from both the agents of the state as well as from inmates. These violations often take place [behind] closed doors, and society being primarily concerned with keeping offenders locked up rather than about their conditions and human rights being respected, the cries of these children to be treated with dignity and worth go unnoticed despite the constitutional and international guarantee of their rights. The problem therefore is first to examine what rights do children in trouble with the law have under international law in general and specifically within the African human rights sytem with special emphasiis on the rights of children deprived of their liberty. Secondly, to examine how these international instruments are given effect domestically and whether there are challenges encountered in realising these rights. These are the main issues that this research intends to grapple with using South Africa and the Gambia as case studies with a view to making recommendations for better protection of the rights of this category of children. ... This research consist of four chapters. The first chapter is the introduction. It will give the basis and structure of the research which will include a general overview of the problem in the two countries under study. In the second chapter, it will explore the relevant international and African normative framework that protects the rights of children in trouble with the law and the obligations of states towards these children. However, the main focus will be the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), because they are the two main human rights instruments providing specific protection for children's rights in all spheres. The third chapter will be a comparative analysis of the rights of children deprived of their liberty as provided in the municipal laws of South African and the Gambia vis a vis the minimum standards set [out] in the CRC and ACRWC. It will discuss the following issues, namely: defintion of a child, age of criminal responsibility, the best interest, detention as a last resort and for the shortest possible time, separation from adult detainees, role of parents, establishment of separate criminal procedures, right to legal respresentation and assistance, and sentencing options. It will also examine the problems and challenges for implementation. The fourth chapter will conclude and make recommendations on how best to implement the laws and who should be the role players in ensuring that the rights of these children are well protected." -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005. / Prepared under the supervision of Professor Gilles Cistac at the Faculty of Law, Universidade Eduardo Mondlane, Maputo, Mocambique / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

Thesis (M.A. (Social Work)) -- University Of Lmpopo, 2022 / The study concentrated on factors that hinder the utilisation of intermediary social work support services to alleged child offenders in Mopani District. The study aimed to assess knowledge from probation officers in respect of awareness, utilisation and effectiveness of referral to intermediary services, as well as the level at which they can refer alleged child offenders to an intermediary. The study employed the qualitative research design. The Integrated Service model was employed to understand the utilisation of intermediary social work support services to alleged child offenders. Purposive sampling was used to obtain nine participants who were probation officers. Ethical clearance was obtained from the University of Limpopo and gatekeepers approval from the Department of Social Development. Participation was voluntary and no one was forced to participate. The findings of the study revealed that there are no clear guidelines or legislation for probation officers to guide them on how and when to recommend the alleged child offenders to the intermediary services. The study also revealed that section 158(2) of the Criminal Procedure Act 51 of 1977 is not effective to alleged child offenders but rather is used to child victims. Therefore, probation officers must have understanding of the role of an intermediary, process and referral when conducting assessments. As a result, the study recommends that the probation officers should come to the developmental level of the child, speak the language of the child and follow up assessment interviews as opposed to informed allegation interviews. However, training is also recommended to all probation officers about the Criminal Procedure Act 51 of 1977 and amendments of the Child Justice Act 75 of 2008 with the inclusion of intermediary services to alleged child offenders

The aim of this explorative study is to establish if psychiatric disorders influence the criminal capacity of child offenders. A qualitative approach was adopted in the study to develop an in-depth understanding of the issues pertaining to criminal capacity assessments for child offenders with psychiatric disorders. The risks associated with various psychiatric disorders in relation to childhood criminality, and the methods that are used to deal with child offenders who suffer from psychiatric disorders, were also explored. The data collection tool for this study was a semi-structured interview schedule. Telephonic and face-to-face interviews were conducted with child justice and mental health experts from four provinces in South Africa, namely, KwaZulu-Natal, Gauteng, Eastern Cape and Western Cape. These experts included psychiatrists, psychologists, social workers, academic professors of law, a criminologist and an advocate. Snowball sampling was employed and although this is a pure qualitative study, the open coding, axial coding and selective coding process from the grounded theory was applied to analyse and interpret the data. The findings from this study indicate that psychiatric disorders are a risk factor associated with the causation of criminal behaviour. A high prevalence of psychiatric disorders, such as intellectual disability, learning disorder, attention deficit hyperactivity disorder, oppositional defiant disorder and conduct disorder, were generally found in children in conflict with the law. The influence and consequences of these psychiatric disorders, in conjunction with environmental and societal factors, were found to influence criminal behaviour and were highlighted as factors that ought to be taken into consideration when determining the criminal capacity of a child who is in conflict with the law. Findings from the study identified that adequate recognition was not granted to the influence of a psychiatric disorder in the assessment of a child‟s criminal capacity. It was established that, in the criminal capacity assessment, the emphasis should not be on the psychiatric disorder per se, but on the effect that the disorder and associated symptoms may have on the child‟s ability to distinguish between the wrongfulness of their actions and to act in accordance with this understanding. Operational challenges and ambiguities identified in the legislative framework pertaining to child offenders with psychiatric disorders were found to negatively influence criminal capacity assessments for children in conflict with the law. The lack of services available to child offenders with psychiatric disorders, as well as child offenders without psychiatric disorders, was found to hamper the best interest of the children in conflict with the law. Lastly, legislative and service recommendations for good practice to deal with child offenders with psychiatric disorder were identified by the experts. / Criminology and Security Science / M.A. (Criminology)

This study aimed to develop a framework for improved legislation, methods of practice and services used to meet the best interest of child offenders with psychiatric disorders within the South African child justice system. This aim was achieved via a qualitative study, which evaluated child justice and mental health legislation, methods of practice, role-players, and services in South Africa, and compared same to those in Namibia, Botswana, and Nigeria; to establish if the best interest of child offenders with psychiatric disorders are currently met from a South African perspective. Data collection occurred in two phases: a document analysis of legislation, policies, and procedures in the selected comparative jurisdictions; followed by semi-structured interviews with child justice and mental health experts. During phase one the researcher analysed child justice and mental health legislation, human rights protections, and policy related to child justice in Nigeria, Botswana, Namibia, and South Africa. In addition, she interrogated literature relating to child justice and mental health, in comparative jurisdictions. This phase formed the foundation for the semi-structured interview schedule. Purposive and theoretical sampling was used to conduct 24 semi-structured interviews. Data was analysed and interpreted using pure qualitative document and thematic analysis. The overarching findings indicate that the best interest of child offenders with psychiatric disorders, in the South African child justice system, are unprotected. This vulnerable group is not dealt with from an individualised, case-specific, multi-disciplinary perspective; informed by legislation, practice-policy, and a service-orientated approach. Further, certain domestic legislation and methods of practice are inadequate in holistically assessing a child who comes into conflict with the law in the jurisdictions of comparison. Further findings identified that biological, psychological, environmental, cultural, and social factors influence the development of psychiatric disorders in children, which may bring them into conflict with the law. This study further confirmed that Attention Deficit Hyperactivity Disorder, Intellectual Development Disorder, Learning Disorder, Oppositional Defiant Disorder, and Conduct Disorder are prevalent in children who iv come into conflict with the law. Further, substance abuse disorder, depression and attachment disorder were identified as predominant factors affecting children who come into conflict with the law. The influence of these factors, in conjunction with biological, psychological, environmental, cultural, and social factors, were found to predispose children to psychiatric disorders linked to criminal behaviour. Thus, to meet the best interest standard; children in conflict with the law must be dealt with using a multi-factorial approach which considers biological, environmental, social, cultural, and psychological factors. In this way, the behaviour of child offenders with psychiatric disorders will be addressed holistically in a manner that considers all factors influencing behaviour. The empirical data supported the recommendations used to develop a trans-disciplinary framework for child offenders with psychiatric disorders. / Olu phononongo lwesi sifundo lujolise ekuphuhliseni isakhelo somthetho ophuculiweyo, iindlela zokusebenza kunye neenkonzo ukwenzela ukunikezela ezona zilungileyo iimfuno zabantwana abangabaphuli-mthetho benengulo yesifo sengqondo kwinkqubo yobulungisa yabantwana eMzantsi Afrika. Le njongo yaphunyezwa ngokwenziwa kwezifundo ezisemgangathweni ezahlola umthetho wobulungisa kubantwana kunye nomthetho olawula ezempilo ngokwengqondo, iindlela zokusebenza, abathathi-nxaxheba kunye neenkonzo eMzantsi Afrika. Ezi zathi ngoko zathelekiswa nomthetho, umsebenzi abathathi-nxaxheba kunye neenkonzo eNamibia, eBotswana, kunye naseNigeria ukufumanisa ukuba iimfanelo ezizizo zabantwana abangabaphuli-mthetho abaneengxaki zengqondo bayanakekelwa ngoku eMzantsi Afrika. Ukuqokelelwa kweenkcukacha kwenzeka kumanqanaba amabini: uhlalutyo lwemiqulu yomthetho, umgaqo-nkqubo kunye nenkqubo; Ukucazululwa kwamaxwebhu/kwemiqulu omthetho, umgaqo-nkqubo kunye neenkqubo ezikhethiweyo zothelekiso kulawulo lwezobulungisa, lilandelwe ludliwano-ndlebe olungahlelwanga ngokupheleleyo neengcaphephe/neengcali zezobulungisa lwabantwana kunye nemilo yezengqondo. Kwinqanaba lokuqala umphandi ucazulule umthetho wobulungisa kubantwana kunye nempilo yezengqondo, ukhuseleko lwamalungelo oluntu.kunye nemigaqo-nkqubo ehambelana/ enxulumene nobulungisa kubantwana eNigeria, eBotswana, eNamibia naseMzantsi Afrika. Ukongezelela walugocagoca uncwadi olubhekisele kubulungisa babantwana nezempilo yezengqondo kulawulo lwezobulungisa Eli nqanaba libe sisiseko soludwe lwenkqubo yodliwano-ndlebe olungamiselwanga ngokupheleleyo. Isampulu enenjongo neyingcingane yasetyenziswa ukuze kuqhutywe udliwano-ndlebe olungama-24 olungahlelwanga ngokupheleleyo. Ulwazi (idata) lwacalulwa lwacaciswa kusetyenziswa uxwebhu olusemgangathweni kunye nocalulo (analysis) olusemxholweni. Iziphumo ezicacileyo/eziqaqambileyo eziluphahla zibonisa ukuba okukokona kulungele abantwana abangabaphuli-mthetho abaneengxaki zezengqondo, abakhuselekanga kwinkqubo yezobulungisa babantwana eMzantsi Afrika. Eli qela lingakhuselekanga alivelelwa ngokomntu neengxaki zakhe yedwa, ngokwengxaki yakhe ngokuthe ngqo kusetyenziswe indlela ezahlukileyo ezilawulwa ngumthetho, ngumgaqo-nkqubo osebenzayo nokuvelela ngendlela yokuziqhelanisa nemeko. Ukuya phambili, eminye yemithetho yasekhaya neendlela zokusebenza azonelanga ekuhloleni ngokupheleleyo kumntwana ohlangabezana nokuphikisana nomthetho kummandla wothelekiso. Kuphinde kwafunyaniswa ukuba iimeko zozalo, zengqondo, zendawo, zenkcubeko nezentlalo ziyaziphembelela iingxaki zezengqondo ezivelayo ebantwaneni, ezinokwenza baphikisane nomthetho. Olu phononongo luqhubeka lungqina ukuba ukunganiki ngqalelo kwingxaki yokuphaphazela, ingxaki yokukhula kwengqiqo, ingxaki yokufunda, ingxaki yenkcaso yokulungileyo/ ukudelela kunye nengxaki yokuziphatha zixhaphakile kubantwana (abonayo) abaphikisana nomthetho. Ingxaki yokusebenzisa iziyobisi, ingcinezelo kunye nokuxhomekeka ziye zaphawulwa njengeemeko ezixhaphakileyo ezikhathaza abantwana abalwa nomthetho (abonayo). Iimpembelelo zezi meko, zidibene neemeko zozalo, zezengqondo, zendawo, zenkcubeko nezentlalo, zifunyenwe zilungiselela kwangaphambili abantwana kwezi ngxaki zezengqondo zithungelene ekuziphatheni ngokolwaphulo-mthetho. Ngoko ke ukuhlangabezana nomgangatho ofanelekileyo nobalulekileyo, ebhekelela abantwana abaphikisana nomthetho (abonayo) makusetyenzwe ngabo kusetyenziswe indlela ejongene neemeko ezininzi ezibandakanya iimeko zozalo, zendawo, zentlalo, zenkcubeko kunye nezengqondo. Ngale ndlela abantwana abaphula umthetho abanengxaki yezengqondo baya kuncedwa ngokupheleleyo ngendlela ebandakanya zonke iimeko eziphembelela ukuziphatha. Idatha ekholose ngamava avela kumava nokuboniweyo ixhasa izindululo ezenziweyo zokumisa isakhelo esisebenza kulo lonke uqeqesho lomntwana ophikisana nomthetho (owonayo) onengxaki yezengqondo. / Patlisiso ena e reretswe ho hlahisa moralo wa molao o ntlafetseng, mekgwa ya tshebetso le ditshebeletso bakeng sa molemo wa batlodi ba molao bao e leng bana ba nang le mathata a kelello tshebeletsong ya toka ya bana Afrika Borwa. Morero ona o fihletswe ka boithuto ba boleng, bo lekantseng melao ya toka ya bana le ya bophelo bo botle ba kelello, mekgwa ya tshebetso, baamehi le ditshebeletso Afrika Borwa. Tsona di ile tsa bapiswa le melao, tshebetso, baamehi le ditshebeletso dinaheng tsa Namibia, Botswana le Nigeria ho fumana hore na melemo e loketseng ya batlodi ba molao bao e leng bana ba nang le mathata a kelello e ya fumaneha hajwale Afrika Borwa. Pokeletso ya dintlha e etsahetse ka mekgahlelo e mmedi: manollo ya ditokomane tsa molao, melawana le mekgwatshebetso dibakeng tse kgethilweng tsa papiso tsa semolao; ho latetswe ke di-inthavu tse sa hlophiswang le ditsebi tsa toka ya bana le tsa molao wa bophelo bo botle ba kelello. Mokgahlelong wa pele mofuputsi o ile a manolla molao wa toka ya bana le wa bophelo bo botle ba kelello, ditshireletso tsa ditokelo tsa botho le melawana e amanang le toka ya bana dinaheng tsa Nigeria, Botswana, Namibia le South Africa. Ho feta moo, o ile a batlisisa dingolwa tse mabapi le toka ya bana le bophelo bo botle ba kelello dibakeng tse ka bapiswang tsa semolao. Mokgahlelo ona o bile motheo wa lenane la di-inthavu tse sa hlophiswang. Ho sebedisitswe mokgwa wa disampole wa kgetho le wa theho ya thiori ho etsa di-inthavu tse 24 tse sa hlophiswang. Dintlha di manollotswe le ho tolokwa ka manollo e sa tswakwang ya boleng ba ditokomane le ditema. Diphetho tse akaretsang di supa hore melemo e nepahetseng ya batlodi ba molao bao e leng bana ba nang le mathata a kelello ha e ya sireletswa moralong wa toka ya bana wa Afrika Borwa. Sehlopha sena se kotsing ha se sebetswe ka tjhebo ya bo-motho ka mong, ya kgetsi e kgethehileng, ya mafapha a mangata e tshehedistsweng ke molao, molawana wa tshebetso le tjhebo ya tshebetso. Ho feta moo, melao e meng ya lehae le mekgwa ya tshebetso e ne e fokola bakeng sa ho lekola ngwana ka tsela e felletseng, ya iphumanang a le kgahlano le molao dibakeng tsa semolao tse neng di bapiswa. ix Ho boetse ha fumanwa hore dintlha tsa tlhaho, kelello, tikoloho, setso le botjhaba di susumetso tlhaho ya bokudi ba kelello baneng, e leng ho etsang hore ba iphumane ba le kgahlano le molao. Boithuto bona hape bo tiisitse hore bokudi ba tlholeho ya tsepamiso le ketso e fetang tekano, bokudi ba kgolo ya bohlale, bokudi ba ho ithuta, bokudi ba ho ba kgahlano le ba bang le bokudi ba boitshwaro bo bongata bakeng ba iphumanang ba le kgahlano le molao. Bokudi ba tshebediso e mpe ya tahi kapa dithethefatsi, tshithabelo ya maikutlo le bokudi ba kgokahano di fumanwe e le mabaka a mantlha a amang bana ba qwaketsanang le molao. Tshusumetso ya dintlha tsena, hammoho le dintlha tsa tlhaho, kelello, tikoloho, setso le botjhaba, di fumanwe e le hore di pepesa bana ho bokudi ba mafu a kelello a amanngwang le botlokotsebe. Kahoo, e le ho ka fihlella maemo a melemo e nepahetseng, bana ba kgahlano le molao ba lokela ho sebetswa ka mokgwa wa ditsela tse fapaneng tse ngata, o kenyeletsang dintlha tsa tlhaho, tikoloho, setso, botjhaba le kelello. Ka mokgwa ona, batlodi ba molao bao e leng bana ba nang le bokudi ba kelello ba tla shejwa le ho sebetswa ka mokgwa o phethahetseng o kenyelletsang dintlha tsohle tse susumetsang boitshwaro. Dintlha tse bokelleditsweng di tsheheditse ditlhahiso tse sebedisitsweng ho hlahisa moralo wa makala a fapaneng bakeng sa batlodi ba molao bao e leng bana ba nang le bokudi ba kelello. / Criminology and Security Science / D. Phil. (Criminal Justice)