oa Article 40 - Recognising the existence of a court based child sensitive criminal justice system before the advent of the Child Justice Act

Abstract

The introduction of the Child Justice Act 75 of 2008 ('the Act') brought certainty on the procedures to be followed by the courts and those in the criminal justice system when in contact with children in conflict with the law. The Act establishes a criminal justice system for children in conflict with the law in accordance with the Constitution. However this does not mean that before the advent of the Child Justice Act, children in conflict with the law were left completely at the mercy of a criminal justice system that was suited to adult offenders only. The courts had, before the Act, developed progressive attitudes towards children in conflict with the law as a result of the influence of the Constitution, in particular section 28 dealing with the rights of the child.

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This point is important in instances where courts have to hear cases that began before the commencement of the Child Justice Act 75 of 2008, and courts are required to turn to the approach used before the commencement of the Act in order to formulate their judgments.