Delictual accountability and criminal capacity of children : why the age difference?

Abstract

The doli/culpae incapax presumption, which in the Republic of South Africa sets a minimum age of accountability at seven - one of the lowest in the world, derives from Roman and Roman-Dutch law. Children between the ages of seven and fourteen (the age of puberty in Private Law) rebuttably were presumed to lack accountability under the common law. In practice the incapax presumption was too easily rebutted: the courts incorrectly applied the accountability test and the low minimum age of accountability was out of touch with international law and disregarded the scientific evidence in childhood development. It was on this premise that the Child Justice Act amended the minimum age of criminal capacity to ten, retaining a rebuttable doli incapax presumption for children between the ages of ten and fourteen, albeit, in the face of criticism. However there has been no parallel amendment to Private Law despite the fact that the same test for accountability applies across the spectrum and that the problems with accountability encountered in criminal law are manifest in Private Law. The incapax presumption until now terminates at the age of puberty in Private Law, which may be accounted as gender discrimination. The legislature ought to rectify these discrepancies without delay, to the effect that the provisions of the civil law apply mutatis mutandis to the CJA. But this change would not offer a long-term solution. South Africa is a signatory country to a number of international instruments, such as the UNCRC, the ACRWC and the Beijing Rules, all of which require a minimum age of accountability (at least in the criminal law) to be established and which must not be set too low. The UNCRC declares it cannot be below twelve years and encourages the adoption of a single minimum age of accountability as opposed to the doli incapax presumption that applies in the RSA. The Beijing Rules point out that there is a close relationship between criminal and delictual capacity in being accountable. It is not easy to determine an approach to accountability for children: development science demonstrates that it is around the age of fourteen only that a child’s frontal lobe (the executive seat of the brain) matures and areas of the brain associated with risk and impulse-management continue to develop into late adolescence. At age twelve a child develops hypothetico-deductive reasoning, at which stage they can conceptualize scenarios associated with possible actions. This means the child thinks abstractly and can consider consequences in relation to others for the first time. Children between eleven to thirteen years demonstrate markedly poor reasoning skills and consequential thinking, and they tend to seek the approval of their peers in a phase of sensation-seeking, impulsivity and to take increased risks. Following a fixed minimum-age approach to accountability creates legal certainty that is fast and easy to ascertain but it disregards the characteristics of the individual child. However if a child’s accountability is to be determined on a case-to-case basis it would require the use of a battery of expensive experts that may cause a delay in the execution of justice. There is no uniform method of testing for accountability and tests must be culturally adapted. In addition, one must be mindful of the autonomy of children and attend to the interest of the innocent victims who may come in contact with delinquent minors in establishing a minimum age of accountability. In the absence of statistics relating to the civil and criminal law it is difficult to make an informed recommendation and in the future these statistics should be obtained, but the most appropriate and cost-effective solution to the problems in relation to a child’s accountability appears to be to set a fixed minimum age. With reference to the evidence from childhood development the age of fourteen seems to be the most appropriate. Beyond the threshold age of fourteen any party may approach a court to allege and prove that nevertheless a child lacks accountability; nothing in the law precludes such a plea.