By Ebraheem Fredericks

The Child Justice Act of 2008 has been amended to increase the minimum age of criminal capacity for children in South Africa. The increase, from 10-years-old, means that children under the age of 12 cannot be convicted of a crime.

A child between 12 and 14 years who commits a criminal offence is therefore presumed to lack criminal capacity unless the state proves beyond reasonable doubt that the child possesses criminal capacity.

These children will be passed out of the criminal justice system and handled by social workers who may refer the child to a children’s court. This is according to the Department of Justice and Correctional Services spokesperson, Chrispin Phiri.

In an interview on VOC Breakfast on Monday morning, Criminal expert Simon Howell stated that the adjustment would help improve the criminal justice system as it puts less strain on prisons and would result in less impoverished people ending up in jail.

Howell added that youth criminal offenses could be circumvented through good parenting and communities becoming more involved with taking care of their neighbours’ children. He believes that the criminal Justice system should be the last resort when dealing with minors who have committed criminal offences.

Mark De La Ray, a clinical psychologist at Akeso Kenilworth Clinic, also weighed in and said that children do not have the necessary mental capacity to understand what is happening at the age of 12. He explained that the prefrontal cortex, the part of the brain involved in planning, thinking, and reasoning only develops later. Some psychologists argue that it is not fully developed until 20.

De La Ray believes this law change is a positive one, as prosecuting children would overburden legal and police systems and potentially cause the children to become worse criminals.

Branwen Daniels – who was once himself in the legal system and now runs programmes to keep children off the street – believes that the change in law has both positives and negatives. One negative being that gangs will take advantage of the law and use children between 12 and 14 -years old to commit crimes because they know that the children will not be prosecuted.

Daniels believes that children often fall into crime as a result of impoverished backgrounds, no supervision or being coerced into it due to fear for their own lives or the lives of their loved ones.

The experts concluded that the change in law for the minimum age of criminal capacity from 12 to 14 years will have a large effect on the criminal justice system and the way the government legally handles children.

Listen to the full discussion here.

VOC