A review of the minimum age of criminal capacity and the presumption of doli incapax

Abstract

This dissertation deals with the minimum age of criminal capacity (which is currently set at 10 years in terms of the Child Justice Act 75 of 2008). It deals in particular with the question of whether the minimum age of criminal capacity should be raised and if so, whether the presumption of doli incapax should be retained. A consideration of the relevant international instruments shows that the situation as it currently stands in South African law is not internationally acceptable. South Africa is failing to comply with the obligations which it incurred through the ratification of the United Nations Convention on the Rights of the Child and with the current international practice pertaining to the minimum age of criminal capacity. The current minimum age of criminal capacity is simply too low. The question of whether the presumption of doli incapax should be retained is also dealt with. The problems that are being experienced by its application in practice (inter alia the difficulties in the assessment of criminal capacity by mental health professionals and the possibility of an over reliance on prosecutorial discretion) leads to the conclusion that the “protective mantle” which the presumption was intended to provide no longer exists. Copyright