South Africa to increase age for criminal capacity

·18 Nov 2018

Parliament’s portfolio committee on justice and correctional services has adopted the Child Justice Amendment Bill which aims to increase the age of criminal capacity for South African children.

In a statement released on Wednesday (14 November) committee chairperson, Madipoane Refiloe Moremadi Mothapo, said that the Act currently provides that a child under the age of 10 years who commits an offence does not have criminal capacity and cannot be prosecuted.

It further states that a child who is 10 years or older (but under 14 years) who commits an offence is presumed to lack criminal capacity unless the state proves beyond reasonable doubt that the child has such criminal capacity.

The primary objective of the new bill is to increase the minimum age of criminal capacity of children from 10 years to 12 years – and to remove the requirement to prove criminal capacity for purposes of diversion and preliminary inquiries.

A diversion program is a form of sentence in which the criminal offender joins a rehabilitation program, which will help remedy the behaviour leading to the original arrest and avoid conviction and a criminal record.

Child Justice Act

South Africa’s Child Justice Act currently regulates the criminal justice system which caters for children under the age of 18 years.

On the issue of capacity, the CJA currently states the following:

Children up to 10 years of age, lack criminal capacity and may not be arrested for committing an offence. Such children will be referred to the Children’s Courts or to the Department of Social Development.

Children from 10 years of age and up to 14 years of age have criminal capacity and the onus to prove criminal capacity on the part of the child accused of having committed a crime rests with the state.