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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

H. Diversion of matters at a preliminary inquiry

 

H. Diversion of matters at a preliminary inquiry

 

1. Where a matter has not been diverted in terms of paragraph E above, withdrawn or a decision made not to prosecute because of the probable lack of criminal capacity, a preliminary inquiry must be held in terms of the Act.

 

2. The preliminary inquiry is an informal pre-trial procedure before a magistrate which is inquisitorial in nature and the prosecutor is obliged to attend. This is the equivalent of the child’s first appearance in court although this procedure may not necessarily take place in court.

 

3. Despite the inquisitorial nature of the preliminary inquiry, prosecutors should play an active role in the proceedings for purposes of ensuring a just outcome. Prosecutors should be able to provide all information relevant to the offence, the views of the victim or of the person affected by the crime and those of the investigating officer.

 

4. Prior to the preliminary inquiry the prosecutor must as a general rule have been provided with an assessment report on the child by a probation officer. This report should be studied by the prosecutor as it will provide information relevant to the decision of how the matter should be further dealt with and if any further information may be necessary, this should be obtained from the probation officer before the start of the preliminary inquiry if possible. The information obtained is confidential and for purposes of the inquiry. The information furnished at the preliminary inquiry is inadmissible during any bail application, plea, trial or sentence proceedings in which the child appears.

 

5. A preliminary inquiry is not a trial and is not intended to become protracted proceedings for purposes of obtaining the presence of persons not listed as necessary. Whilst information obtained at the inquiry may not be used against the child in any other proceedings, there is no similar provision protecting victims or witnesses. Prosecutors should therefore object to victims or witnesses being called at such an inquiry.

 

6. At the preliminary inquiry the assessment report is considered. Inter alia, it is established whether the matter can be diverted and if so, the suitable diversion option.

 

7. However, an inquiry magistrate may stop the proceedings and order that the child be brought before a children’s court where he or she is of the view that the child is in need of care and protection, does not live at home or in appropriate care, or is alleged to have committed minor offences aimed at meeting the child’s basic need for food and warmth.

 

8. After the consideration of all relevant information presented at the preliminary inquiry, the possibility of diversion may be considered where the requirements set out in paragraph F1 above are met. Where a prosecutor indicates that the matter can be diverted, he or she must request the presiding officer to make an order for diversion of the matter.

 

9. 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.

 

10. Where the offence is a more serious offence listed in Schedule 2 of the Act, the prosecutor may only indicate that the matter may be diverted after he or she has—
(a) consulted with the investigation officer;
(b) considered the views of the victim or any person with a direct interest in the affairs of the victim, whether or not the matter may be diverted, unless it is not reasonably possible to do so; and
(c) obtained the authorisation of the Senior Public Prosecutor.

 

11. In the case of serious offences listed in Schedule 3 of the Act, the written indication of the relevant DPP is required (see Paragraph J below).

 

12. Prosecutors should inform the inquiry magistrate as soon as possible if a matter may not be diverted, provided that there is no likelihood of further information becoming available that might warrant a different decision. This should be done especially where the availability of a different magistrate to preside in any further proceedings might prove difficult. Given the nature of the inquiry the prosecutor should make all attempts possible to prevent the inquiry magistrate from receiving any information that may prevent the magistrate from hearing the trial.

 

13. Where the prosecutor indicates that the matter may not be diverted he or she must confirm to the magistrate that there is sufficient evidence available or there is reason to believe that further investigation is likely to result in the necessary evidence becoming available. The magistrate will record this and refer the matter to a child justice court.

 

14. A preliminary inquiry may be postponed for a period not exceeding 48 hours for specific purposes. These include where the prosecutor indicates that diversion is being considered, but an assessment has not been done and is required; where it is necessary to make arrangements in respect of a diversion option; or for the purposes of further investigation. A further postponement of the preliminary inquiry may only be granted where the postponement is likely to increase the prospect of diversion.

 

15. A preliminary inquiry may be postponed for a period not exceeding 14 days if a probation officer has recommended a further and more detailed assessment of the child be undertaken or where it is necessary to obtain the written direction of the relevant DPP for the diversion of a matter in the case of a serious offence referred to in Schedule 3 of the Act (see J below).

 

16. Where the child is referred for trial to a child justice court and where the same magistrate who presided in the preliminary inquiry is due to preside, the prosecutor should alert the magistrate to the provisions of section 47(10).