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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

P. The trial in a child justice court (section 63)

 

P. The trial in a child justice court (section 63)

 

1. A referral to a child justice court following the preliminary inquiry means a referral to any court having jurisdiction and therefore may also be a Regional or High Court. In instances where a child is charged with an adult, the court sits simultaneously as an ordinary court and a child justice court. There is no reason to request a separation of trials, even though the child was dealt with separately during the preliminary inquiry.

 

2. Prevailing prescripts with regards to forum still apply (High or Lower Courts). However, the High Court will only be a suitable forum in cases of children 12 years and older but under 14 years of age if compelling reasons exist.

 

3. The trials have to be prioritised and section 66 places limitations on the length of postponements. Prosecutors should make all efforts to ensure that the trials are finalised speedily.

 

4. The child has to be informed by the court of his/her rights and the procedure that will be followed. The presence of a legal representative will not alleviate the court of this duty and prosecutors should remind courts of such duty if necessary.

 

5. Prosecutors should refrain from hostile and inappropriate cross-examination of the child and should, as officers of the court, object, where necessary, to such cross-examination by any other party.

 

6. The court may divert the case at the request of the prosecutor at any stage prior to the close of the state case (section 67(1) read with section 52(5)). Prosecutors should consider making a request where a diversion would have been favourably considered at an earlier stage had the child accepted responsibility; or where the child is now prepared to consent to the diversion options; or where the court in the exercise of its independent discretion is now prepared to make such an order contrary to the decision of the inquiry magistrate. Where the prosecution has previously not agreed to diversion, there should be compelling reasons for deviating at this stage from the initial decision.

 

7. The court must warn the child prior to making a diversion order that any acknowledgement of responsibility may, upon non-compliance with a diversion order, be recorded as an admission in terms of section 220 of the Criminal Procedure Act. Where the court fails to warn the child, the prosecutor should request the court to do so timeously. The purpose of the warning is to encourage compliance and to ensure that the admission has evidential value (section 67 (1)(b)).

 

8. The proceedings are postponed pending completion of the diversion and in the event of compliance, they are stopped. Where the child fails to comply with a diversion order and this is found to be due to the child’s fault, the trial may proceed or a more onerous diversion option may be decided on.

 

9. At the trial the magistrate must 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.