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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

M. Directives in respect of persons who were children at the time of commission of a crime but are 18 years and older, but under 21 years

 

M. Directives in respect of persons who were children at the time of commission of a crime but are 18 years and older, but under 21 years

 

1. Where a person is 18 years or older, but under the age of 21 years, when handed a written notice, served with a summons or arrested for allegedly having committed an offence when he or she was under the age of 18 years, a DPP may direct that the matter be conducted in accordance with the provisions of the Act as if the person were still a child.

 

2. Thus, the person will need to be assessed by a probation officer, a preliminary inquiry held in respect of the offence and consideration be given to diversion—
(a) by the prosecution prior to the preliminary inquiry in the case of minor offences (listed in Schedule 1); or
(b) at the preliminary inquiry.

 

3. Where the matter is not diverted, withdrawn or referred to a children’s court, the matter will be referred to child justice court for plea and trial.

 

4. A DPP may issue such a direction—
(a) in the event of a Schedule 1 offence;
(b) if the co-accused is a child;
(c) if the person was used by an adult to commit the crime;
(d) where there is doubt regards the age of the person;
(e) where the person appears to be intellectually or developmentally challenged; or
(f) where other pertinent and relevant circumstances so demand, such as those listed in paragraph J.2.

 

5. A direction should generally not be given where the co-accused are adults, unless the person was used by them to commit the crime.

 

6. The relevant DPP should be requested for a directive at the earliest possible opportunity. This may be done telephonically and as soon as it appears that the person will probably be prosecuted and where any of the above criteria are met. The DPP should confirm his/her telephonic directive in writing.

 

7. Prosecutors may, in respect of a Schedule 1 offence, where there is no indication that a direction in terms of section 4(2) of the Act is appropriate and if circumstances so dictate and the requirements are met divert the person without requesting a direction from the DPP. In such instances adult diversion finds application and the diversion is then not in terms of this Act.

 

8. Allowing for the benefit of proper assessment and appropriate handling does not imply that the person must also be diverted: Diversion will depend on the usual weighing up of relevant interests and the prescribed requirements will also need to be met.

 

9. If the prosecutor holds the view that the person will probably be diverted, the prosecutor may mero motu cause the person to be assessed pending the directive from the DPP.