Acts Online
GT Shield

Child Justice Act, 2008 (Act No. 75 of 2008)

Chapter 6 : Diversion by Prosecutor in respect of Minor Offences

41. Diversion by prosecutor before preliminary inquiry in respect of offences referred to in Schedule 1

 

(1) A prosecutor may divert a matter involving a child who is alleged to have committed an offence referred to in Schedule 1 and may, for this purpose, select any level one diversion option set out in section 53(3) or any combination thereof, if the prosecutor is satisfied—
(a) that the factors referred to in section 52(1)(a) to (d) have been complied with; and
(b) in the case of a child who is 12 years or older but under the age of 14 years, that the child will benefit from diversion.

[Section 41(1)(b) substituted by section 15(a) of the Child Justice Amendment Act, 2019 (Act No. 28 of 2019), Notice No. 641, GG43402, dated 4 June 2020 - effective 19 August 2022 per Proclamation Notice 2400, GG46752, dated 19 August 2022]

 

(1A) If the prosecutor is of the view that the child is unlikely to benefit from diversion, or if diversion is for any reason not appropriate, the prosecutor may refer the child to a probation officer to be dealt with as a child who lacks criminal capacity, in terms of section 9 of the Act.

[Section 41(1A) inserted by section 15(b) of the Child Justice Amendment Act, 2019 (Act No. 28 of 2019), Notice No. 641, GG43402, dated 4 June 2020 - effective 19 August 2022 per Proclamation Notice 2400, GG46752, dated 19 August 2022]

 

(2) The diversion referred to in subsection (1) must take place—
(a) in accordance with directives issued by the National Director of Public Prosecutions, as provided for in section 97(4)(a)(i)(bb);
(b) subject to subsection (3), after an assessment of the child in accordance with Chapter 5; and
(c) before a preliminary inquiry as provided for in Chapter 7.

 

(3) If the child has not been assessed, the prosecutor may dispense with the assessment if it is in the best interests of the child to do so: Provided that the reasons for dispensing with the assessment must be entered on the record of the proceedings by the magistrate in chambers referred to in section 42.

 

(4) If the prosecutor is of the opinion that the child is in need of care and protection as envisaged by section 150 of the Children's Act, he or she must not divert the matter but refer the matter to a preliminary inquiry for consideration of referring it to a children's court.

 

(5) In order to decide whether to divert the matter or not, the prosecutor must take into account whether the child has a record of previous diversions.

 

(6) If the prosecutor decides not to divert a matter in terms of this section, he or she must immediately make arrangements for the child to appear at a preliminary inquiry referred to in Chapter 7.