Over the past few weeks, Mzansi has
witnessed a spate of crimes where children are committing heinous offences
against each other and some even against adults.
Community members from all over the country
have called for these children to feel the full might of the law.
Prof Pieter du Toit from the North-West
University’s (NWU’s) Faculty of Law explains the process that follows after a
child has committed an offence.
A child under the age of 10 years is deemed
to not have criminal capacity, and cannot be prosecuted.
When a child between
the ages of 10 to 14 years commits a crime, the State must prove beyond
reasonable doubt that the child had criminal capacity at the time of the
“Children over the age of 14 who commit
offences are regarded by law to have the mental ability to distinguish between
right and wrong and understand the consequences that come with their actions,”
says Prof Du Toit.
“They are therefore deemed to have criminal capacity.”
Prof Du Toit says that when a child has
committed a crime, he/she is dealt with in terms of the Child Justice Act
Within this act offences fall into three
categories. Schedule one is for less serious offences, and schedule two for
cases that are more serious.
Schedule three is for offences such as murder,
rape, sexual offences and robbery with aggravated circumstances.
For offences that are not too serious the
child can be diverted from the criminal justice system. There are different
diversion options depending on what schedule the offence falls under.
Most serious cases are adjudicated in the
Child Justice Court. After a child has been convicted of a crime, they can
either be sentenced to a custodial or non-custodial sentence.
Prof Du Toit adds that there are numerous
sentencing options. These include community based sentences, peer association,
supervision and guidance, written apologies, sentencing the child to a child
youth care centre and imprisonment.
He says a child can be imprisoned after
serving time in a youth care sentence, but there are strict prerequisites that
need to be met before that decision can be made. “Imprisonment of children over
the age of 14 is only considered as a last resort. A child may not be sentenced
to a term of more than 25 years imprisonment.”