Government increases age for criminal capacity in South Africa

 ·19 Aug 2022

The Department of Justice and Correctional Services has implemented new regulatory amendments that increase the age of criminal capacity in South Africa.

The amendments increase the age of criminal capacity in the country from 10 years to 12 years, taking effect from Friday (19 August 2022).

Previously, children up to 10 years of age were deemed to lack criminal capacity and could not be arrested for committing an offence. Such children are usually referred to the Children’s Courts or to the Department of Social Development.

The new laws increase this age to 12 wherever applicable in the Child Justice Act, 2008. A child aged between 12 and 14 who commits an offence is presumed to lack criminal capacity unless the state proves beyond reasonable doubt that the child has such criminal capacity.

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

Additional changes include whenever there is an order by a child justice court for an evaluation of the criminal capacity of a child, this must be accompanied by a new form detailing the child’s particulars and referrals to therapy or other programmes.

The form also includes an evaluation of the child’s cognitive, moral, emotional, psychological and social development.

The form must be submitted to the person who must conduct the evaluation, together with any documents handed in at the preliminary inquiry or in the child justice court, including the charge sheet and the probation officer’s assessment report.

The amendments also introduce a new regulation that instructs the director-general for health to annually compile and keep a list of private psychiatrists and clinical, counselling and educational psychologists who are prepared to conduct the evaluation in respect of a child’s criminal capacity.

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