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n Acta Juridica - The business of child justice : evidence, criminal process and criminology
The Child Justice Bill will, when enacted, provide legislatively for a separate juvenile justice system for South Africa. Although non-governmental organisations can be regarded as having provided the impetus for law reform in the first half of the 1990s, the formal law reform process commenced at the end of 1996 with the appointment of a project committee of the South African Law Commission briefed to undertake the investigation. The law commission produced three documents during the life span of the project committee: an Issue Paper, a Discussion Paper and Draft Bill and the Report on Juvenile Justice, which also contained a more polished version of the proposed new statute. The Child Justice Bill, which was introduced into parliament on 13 August 2002, was debated in 2003.
During the law reform process, several articles which profiled the salient themes of the envisaged system were published, both within South Africa and in international journals. The writers of many of these publications were members of the South African Law Commission Project Committee that drafted the Report on Juvenile Justice. The present author, too, was part of that process.
Chiefly, existing documents point to three distinctive characteristics of the draft legislation. First, they highlight the importance of restorative justice principles which flavour the Bill's provisions, especially in relation to diversion, sentencing, and the overall objectives of the Bill as a whole.
Secondly, they relay how the international legal principles contained in the United Nations Convention on the Rights of the Child, the Beijing Rules and the Standard Minimum Rules for Juveniles Deprived of their Liberty have been translated into domestic legal rules via both the Constitution of the Republic of South Africa and, more pertinently, encapsulated directly in many provisions of the Bill.
Thirdly, they outline the novel attempt made in the Bill to regulate and provide a framework for diversion. Diversion of young offenders from criminal courts into a variety of programmes is now well-established practice, especially in many larger urban courts. Hitherto, diversion occurred at the discretion of the prosecution, although there have been initiatives within the prosecutorial service to develop guidelines on diversion for use by lower court prosecutors, and one or two case reports regarding diversion have seen the light of day. Centrally, the Bill devotes an entire chapter to the regulation of diversion, establishing the principle that diversion must at least be considered in each case before the matter proceeds to trial. In addition, diversion is provided for on a series of levels, indicating that more intensive programmes should be reserved for more complex cases. A signal feature, too, is the inclusion of a range of new diversion options, designed to supplement and extend the list of possibilities presently available.
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