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

Notices

Directives issued in terms of Section 97(4) of the Child Justice Act, 2008 (Act 75 of 2008)

Children in Conflict with the Law

G. Diversion of matters in respect of minor offences before a preliminary inquiry

 

G. Diversion of matters in respect of minor offences before a preliminary inquiry

 

1. A prosecutor may divert a matter involving a child alleged to have committed a minor offence listed in Schedule 1 of the Act before a preliminary inquiry is held in terms of the Act, where the general requirements for diversion are present. This may be done after an assessment of the child by a probation officer, unless this requirement is dispensed with by the prosecutor where it is in the best interests of the child to do so (see paragraph K below).

 

2. Although the prosecutor may summarily indicate that the matter may be diverted where the offence is minor as listed in Schedule 1 of the Act, where the investigating officer and/or victim or any person with a direct interest in the affairs of the victim is readily available, such persons should be consulted.

 

3. Prosecutors may select one or any combination of the level 1 diversion options set out in section 53(3) of the Act. If the matter is to be diverted, the child and, where possible, his or her parent, appropriate person or guardian must appear before a magistrate in chambers in order to have the diversion option made an order of court. Where the prosecutor has decided to dispense with the requirements of an assessment, the reasons must be provided to the magistrate to enter on the record of proceedings.

 

4. Where the child has been arrested, and remains in detention, a preliminary inquiry must be held within 48 hours of arrest. Consequently, consideration of diversion must take place as soon as possible. Where it is not possible to consider diversion during this time period, the preliminary inquiry must be held and paragraph H below finds application.

 

5. Where the child has been released and a written notice been issued to appear at a preliminary inquiry, the consideration of diversion must take place prior to the appearance at the inquiry. Similarly, where a summons has been issued, the consideration of diversion must take place before appearance at the inquiry. Where a decision is made to divert such a matter, the return of service should be obtained from the clerk of the court and this, together with the diversion option, must be taken to a magistrate in chambers in order to make it an order of court.

 

6. Diversion of matters before a preliminary Inquiry should not take place in, for example, the following circumstances:
(a) The offence is listed in Schedule 1, but the facts or circumstances of the offence are of a serious nature, e.g. the consequences are very serious.
(b) The child has a previous conviction, previous diversion or pending charge in respect of a similar or more serious offence.
(c) Prosecutors are of the view that the child—
(i) has been abandoned or orphaned and is without any visible means of support;
(ii) displays behaviour which cannot be controlled by the parent or care-giver;
(iii) lives or works on the streets or begs for a living;
(iv) is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency;
(v) has been exploited or lives in circumstances that expose the child to exploitation;
(vi) lives in or is exposed to circumstances which may seriously harm that child’s physical, mental or social well-being;
(vii) may be at risk if returned to the custody of the parent, guardian or care-giver of the child as there is reason to believe that he or she will live in or be exposed to circumstances which may seriously harm the physical, mental or social well-being of the child;
(viii) is in a state of physical or mental neglect;
(ix) is being maltreated, abused, deliberately neglected or degraded by a parent, a care-giver, a person who has parental responsibilities and rights or a family member of the child or by a person under whose control the child is;
(x) is a victim of child labour;
(xi) is in a child-headed household; or
(xii) is due to its conduct not suitable for diversion.

 

7. 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. The prosecutor is required to report on these referrals.