The legal position of a child charged with a crime who is apprehended as an adult and the impact of sentencing

October 1st, 2021

By Marvin De Vos

‘The Child Justice Act 75 of 2008 [the Act] was introduced to give effect to the principles in the Constitution and to domesticate the international law relating to child offenders. The preamble of the [Act] states that the purpose of the [Act] is to establish a criminal justice system for children in conflict with the law, based on the values underpinning the Constitution. In his judgment in S v CKM and Others [2013 (2) SACR 303 (GNP) at para 7], Judge Bertelsmann described the [Acts’s] basic tenets in the following manner:

“[The Act] represents a decisive break with the traditional criminal justice system. The traditional pillars of punishment, retribution and deterrence are replaced with [continued] emphasis on the need to gain understanding of a child caught up in behaviour transgressing the law by assessing [their] personality, determining whether the child is in need of care, and correcting errant actions as far as possible by diversion, community based programmes, the application of restorative-justice processes and reintegration of the child into the community”’ (Carina du Toit and Zita Hansungule ‘S v SN unreported case no 141114/14 (WCC) – Sentencing child offenders after they turn 18’ (2015) 54 SA Crime Quarterly 65).

In terms of the provisions of the Act, a separate court, the Child Justice Court was created where these cases had to be adjudicated. The Child Justice Court is defined in the Act as ‘any court provided for in the Criminal Procedure Act, dealing with the bail application, plea, trial or sentencing of a child’.

The Act also defines a child as ‘any person under the age of 18 years’ and, and in certain circumstances it also means a person who is 18 years or older but under the age of 21 years whose matter is dealt with in terms of s 4(2).

Section 4(2)(b) permits prosecution to be initiated in terms of the Act against an offender who is older than 18 but under the age of 21. However, this only happens in certain circumstances as set out in the National Director of Public Prosecutions Directives. These include, inter alia, if –

‘(a) the offence is a Schedule 1 offence … ; or

(b) the co-accused is a child; or

(c) there is doubt about the accused’s age; or

(d) the accused “appears to be intellectually or developmentally challenged”’ (SS Terblanche ‘The Child Justice Act: A detailed consideration of section 68 as a point of departure with respect to the sentencing of young offenders’ (2012) PER 58.

‘This provision was included to give the prosecution more flexibility in the exercise of its powers. The provision also envisions the possibility that there could be occasions where an offender has just turned 18, is still attending school, and could benefit from diversion as set out in the Act. Lastly, the provision also takes into account that if there is more than one accused in an offence, it would be “artificial to separate the cases of one or two who are slightly older from those of their contemporaries”’ (Du Toit and Hansungule (op cit)). While s 4(2)(iii) of the Act specifically stipulates where a child offender who commits an offence when they are under the age of 18 years and is 18 years or older at the time of their arrest, the Director of Public Prosecutions (DPP) may direct that the Act still applies.

This means that where an accused person who has committed an offence at the time when they were still a child in terms of the Act, but only apprehended or arraigned when they are an adult, can also be dealt with in terms of the Act as stated above.

The National Director of Public Prosecutions, Child Justice Act 75 of 2008: Directives in terms of section 97(4), GN R252 GG33067/31-3-2010 prescribes, in Part M points 1 and 4 of the Directives that the DPP may decide that the Act still applies in respect of a matter such as the present, where the child offender was under 18 years when they committed the offence but is now 18 years or older at the time of their arrest.

The Constitution also prescribes that ‘it is established law that child offenders should be afforded special treatment and given sentences that are more lenient than those imposed on adults. The Constitutional Court [CC] has embedded child-centred sentencing principles through its judgments by applying s 28 of the Constitution to child offenders. In particular, the [CC] has emphasised the importance of applying section 28(2), which provides that the best interests of the child are paramount in every matter concerning them and section 28(1)(g), which states that children should not be imprisoned except as a measure of last resort’ (Du Toit and Hansungule (op cit)).

The Western Cape High Court in S v SN (WCC) (unreported case no 141114/14) was called ‘to decide whether the above principles were applicable in the sentencing of persons who commit offences as children and become adults during child justice court procedures’ (Du Toit and Hansungule (op cit)). The court concluded that it does find application.

Du Toit and Hansungule (op cit) note this was restated in the case of Mpofu v Minister for Justice and Constitutional Development 2013 (2) SACR 407 (CC); Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC). The court in S v N and Another (WCC) (unreported case no SHE 59/14, 9-1-2015) (Binns-Ward J) held that:

‘When a person commits an offence while under the age of 18, their conduct falls to be judged in the context of these considerations. It would make no sense then to treat them as adults for sentencing purposes simply because the intervening passage of time has resulted in their being adults when sentencing occurs. That would mean punishing them for what they had done as children as if it had been done when they were adults. That such an approach would impinge on the substance of the rights provided in terms of s 28 of the Constitution is axiomatic.’

The CC above reiterated and confirmed that the ‘relevant age for sentencing’ is the ‘age at which the offence was committed’ (Du Toit and Hansungule (op cit)).

In practice, legal practitioners and presiding officers who are considered as the upper guardians of all children, must be vigilant when dealing with these matters and invoke these provisions, where it finds application.

Marvin De Vos Legal Diploma LLB Law (UWC) is a legal practitioner and Acting Magistrate in Oudtshoorn.

This article was first published in De Rebus in 2021 (Oct) DR 12.


De Rebus