An analysis of the legal response to children who commit serious crimes in South Africa

Abstract

South Africa’s first democratic elections in April 1994 led to the birth of a new political era which also brought constitutional guarantees for children in conflict with the law; one of the most important being section 28(1)(g) of the Constitution which provides that a child can only be detained as a measure of last resort and for the shortest appropriate period of time.

Despite this provision, past sentencing practice has shown an over-reliance on the use of custodial sentences. This could largely be attributed to the tug-of-war between the legislature and the courts about the applicability of the minimum sentencing legislation on children between the ages of sixteen and eighteen.

With the promulgation of the Child Justice Act, renewed emphasis has been placed on the desirability to keep children out of prison. To achieve this purpose, diversion of children is now a central feature of the child justice system. Should a matter however proceed to trial, the Act provides for a wide range of alternative sentencing options that can be imposed on children.

The purpose of this dissertation is to establish to what extent the courts make use of these alternatives to imprisonment, especially in cases where children committed very serious offences such as murder and rape. This dissertation concludes that, although alternative sentences are appropriate sentences for serious offences, courts still impose custodial sentences for these types of offences, and that the seriousness of the offence is the most important aggravating factor tipping the scale in favour of the imposition of custodial sentences.

The growing number of young people in already overcrowded South African prisons is a cause for concern, said the new Department of Correctional Services (DCS) Minister Nosiviwe Mapisa-Nqakula on Tuesday.

Mapisa-Nqakula, accompanied by her deputy, Hlengiwe Mkhize, was visiting the Boksburg Correctional Centre on their fourth leg of their regional visits to listen and familiarize themselves with correctional services.

She was shocked to find a number of young people, some aged 15, being held in the Boksburg prison for serious crimes.

Boksburg houses 554 juveniles, most of them serious offenders serving long sentences, including life terms.

Mapisa-Nqakula said she was becoming aware of the reality of a South African society that produced young people who commit serious crimes. […] Mapisa-Nqakula said the magnitude of the prisons problem was beyond correctional services. It required society to take responsibility for rehabilitation.