Durban – An amendment to the Child Justice Act (Act 75 of 2008) has increased the minimum age of criminal capacity for children. This effectively means that children under the age of 12 cannot be guilty of a crime.
“As a result the minimum age of criminal incapacity is no longer 10 years but 12 years. Therefore, children below the minimum age of criminal capacity of 12 years may no longer be arrested or charged by the South African police and may also not be prosecuted for the commission of a criminal offence.
“Such children who may have committed crimes must be dealt with outside of the criminal justice system by social workers who may refer the child to a children’s court for their directions,” explained Department of Justice and Correctional Services spokesperson Chrispin Phiri.
He said children aged 12 or older but below 14 were still presumed not to have criminal capacity and the State must prove their criminal capacity beyond reasonable doubt in a child justice court.
“This means that children in the age group may be charged/ arrested by the South African Police Service if they commit a criminal offence but the State must prove that they had the capacity to appreciate the difference between right and wrong and the capacity to act in accordance with this appreciation at the time of the commission of the offence,” he said.
The department said South Africa had signed the UN Convention on the Rights of the Child in 1995. To comply with the obligations as a state party to the convention, South Africa had enacted the Child Justice Act, 2008, which came into operation on April 1, 2010.
Before the implementation of the act, the issue of the criminal capacity of children was governed by two common law presumptions.
"In terms of these common law presumptions all children under the age of 7 years were irrebuttably presumed to be incapable of criminal intent. This effectively meant that a child under the age of 7 could never be prosecuted.
“Children… aged 7 or older but under the age of 14, were rebuttably presumed to be incapable of criminal intent. As a result if any such child was to be prosecuted, the prosecution had to prove that the accused child had the required criminal capacity at the time of committing the offence,” Phiri said.
He said the Child Justice Act, 2008 increased the minimum age of criminal capacity from 7 to 10. It retained the presumption that children 10 or older but under the age of 14 did not have criminal capacity and therefore if such child was to be prosecuted, the prosecution had to prove that the accused had the required criminal capacity at the time of committing the offence.
Countries approach the issue of the criminal capacity of children differently. The UN Committee on the Rights of the Child has frequently expressed its concern over this.
In 2007 a fixed minimum age of criminal responsibility of not lower that 12 was established by the UN Committee on the Rights of the Child and it was recommended that states should progressively raise the minimum age of criminal capacity where possible. In General Comment 24 of 2019, issued in October 2019, the Committee on the Rights of the Child advises that states “are encouraged to take note of recent scientific findings, and to increase their minimum age accordingly, to at least 14 years of age”.
The Child Justice Act, 2008 Act has been duly amended to ensure that South Africa complies with the recommendation by the UN Committee on the Rights of the Child to progressively raise the minimum age of criminal capacity. On August 19, President Cyril Ramaphosa proclaimed that the Child Justice Amendment Act, 2019 (Act 28 of 2019) had been implemented.
IOL