The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:10176 |
| Date | January 2011 |
| Creators | Jokani, Mkhuseli Christopher |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | vi, 58 leaves, pdf |
| Rights | Nelson Mandela Metropolitan University |
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