SUBJECT 3

Question 1

Pre-Trial Procedure for Children

What is the definition of a child according to sec 1 of the CJA?

Answer 1

a. Person under age of 18
b. In certain circumstances: person older than 18 but under 21 where matter is
dealt with in terms of s 5(2) of CJA
= DPP can in accordance with NDPP directives direct that b. applies

Question 2

What is a child justice court?

Answer 2

Any court provided for in CPA dealing with bail application, plea, trial & sentencing of
child

Question 3

What are the objectives of the CJA as held in sec 2(a)-(e)?

Answer 3

2(a) = protect rights of children as provided for in Constitution
2(b) = promote spirit of ubuntu in child justice system
2(c) = provide for special treatment of children in child justice system designed to
break cycle of crime
2(d) = prevent children from being exposed to adverse effects of formal criminal
justice system
2(e) = promote cooperation between gov departments to ensure integrated approach to implementation of CJA

Question 4

Application of the Child Justice Act

What are the 3 categories of children that the CJA applies to?

Answer 4

(1) Child under age of 12 when crime was committed
(2) Child 12 years or older but under 18 when handed written notice/served with
summons/arrested
(3) Child committed offence under age of 18 but only taken to court after reach
age of 18

Question 5

Application of the Child Justice Act

who are children under category (1) referred to?

Section 4 of the CJA

Answer 5

(1) Child under age of 12 when crime was committed= referred to a probation officer

Question 6

Application of the Child Justice Act

Who are children under categories (2) +(3) referred to?

Section 4 of the CJA

Answer 6

(2) Child 12 years or older but under 18 when handed written notice/served with summons/arrested
(3) Child committed offence under age of 18 but only taken to court after reach age of 18

=Both a probation officer+prosecutor are involved

Question 7

Application of the Child Justice Act

What is the criminal Capacity of children in terms of sec 7 of the CJA?

Answer 7

(1) Children under 12 → have no criminal capacity
(2) Child is 12 but not yet 14 → presumption that do not have criminal capacity
(3) Child that is 14 but not yet 18 → have criminal capacity

Question 8

Assessment

How is the assessment of a child carried out according to sec 34(1) of the CJA?

Answer 8

every child who is alleged to have committed offence must be assessed by probation officer
ie. for every child offender this will be starting point

Question 9

Assessment

What is the purpose of assessment according to section 35 of the CJA?

Answer 9

a) Establish whether child is in need of care + protection to refer them to children’s court
(b) Estimate age of child
(c) Gather info regarding previous convictions, previous diversion or pending charges of child
(d) Formulate recommendations regarding release/detention/placement of child
(e) Establish prospects for diversion of matter
(f) Determine whether expert evidence is needed (for child aged 12-14)
(g) Determine whether child was used by adult to commit crime
(h) Provide other relevant info probation officer regards as in best interest of child
or which may further objective of CJA

Question 10

Assessment

How must a probation officer act when carrying out the assessment according to section 39?

Answer 10

, probation officer must –
(a) Explain purpose of assessment to child
(b) Inform child of their rights
(c) Explain to child immediate procedures to be followed in terms of Act
(d) Inquire from child whether they intend to acknowledge responsibility for offence

Question 11

Assessment

Who must+ who may attend the assessment according to section 38?

Answer 11

A. MUST
-(1) Child
(2) Child’s parent/appropriate adult/guardian (unless exempted or excluded from attending by probation officer)

B.MAY
when it is permitted by probation officer –
- Diversion service provider
- Any other person whose presence is necessary/desirable for assessment

Question 12

Assessment

What information does the probabtion officers assessment report contain according to section 40?

Answer 12

= possible referral of matter to children’s court
= appropriateness of diversion
= possible release of child into care of parent/guardian

= likely that child could be detained after first appearance @ preliminary inquiry
→ placement of child in specified child + youth care centre or prison
= where child is under 12 → what special measures need to take place
= possible criminal capacity of child who is 12 but not yet 14
= whether further + more detailed assessment of chid is required
= estimation of age of child if uncertain

Question 13

Assessment

How is the information obtained by the probation officer during assessment treated?

Answer 13

s 36 of CJA → info obtained during assessment is confidential
= this info is inadmissible evidence in bail applications, pleas, trials, or sentencing
proceedings where child appears
=Can only be revealed if authorized by a provision of the CJA

Question 14

Assessment

What stage happens after the conducting of an assessment?

Answer 14

• Prosecutor will make decision after assessment+ before preliminary inquiry to
  determine whether matter is to be diverted

Question 15

Preliminary Inquiry

what is the purpose of the PI?

Answer 15

= pre-trail procedure
= inquisitorial informal process
= this inquiry is not to decide guilt or not of child → used to decide what lead to child
committing crime
=s43-the PI takes place after in court or any suitable place

Question 16

Preliminary Inquiry

When must the PI take place according to sec 43?

Answer 16

Child must appear @ preliminary inquiry
a. Within 48 hours after arrest – if are arrested + detained
a. Within time periods specified in written notice or summons

Question 17

Preliminary Inquiry

Who presides over the PI according sec 43?

Answer 17

• Preliminary inquiry of child will always be heard by magistrate of district court
  – regardless of whether offence is one that district court cannot hear
  = 4 km applies to PI’s for child offenders even in respect of matters district court is excluded from hearing

Question 18

Preliminary Inquiry

What are the objectives of the PI according to sec 43 of the CJA?

Answer 18

-Assessment report by PO must be made available
(b) Establish whether matter can be diverted
(c) Identify suitable diversion option (where applicable)
(d) Establish whether matter should be referred to children’s court
(e) Ensure that all available info regarding child, their circumstances + offence
are considered in order to make decision about diversion + placement of child
(f) Ensure views of all persons present are considered before decision is taken
(g) Encourage child + parent to participate in decision

Question 19

Preliminary Inquiry

When does the PI not have to take place?

Answer 19

General rule = preliminary inquiry must take place
Exceptions –
* Schedule 1 offence which is diverted
* Child under 12
* Child between 12-14: where prosecutor is of opinion that criminal capacity cannot be proved
* Matter is withdrawn

Question 20

Preliminary Inquiry

How is a child/parent directed to appear at a PI according to s46?

Read s46 with s27 of the CJA

Answer 20

(a) In terms of written notice
(b) Summons
(c) Written notice by police official
(d) Warning by presiding officer

Question 21

Preliminary Inquiry

What are the consequences of failing to appear at a PI according to s24(7)?

Read s46 with s24(7)

Answer 21

1.presiding officer (PO)
a. Issue warrant for arrest to appear before court
b. Issue summons

2.Where child appears before PO because of warrent/summon
→ PO must –
a. Inquire into reasons for child’s failure to appear/comply with conditions> must determine whether failure was due to child’s fault
b.If due to child’s fault → can postpone case with harsher conditions than previously imposed
c.Not child’s fault → provide same/altered conditions to appear on another day
d.As last resort: child can be arrested

Question 22

Preliminary Inquiry

What orders can a prosecutor make after the PI according to s49 of the CJA?

Answer 22

• Child referred to children’s court
• Matter is diverted
• Child referred to child justice court
  **Note that even where child is sent to trial in child justice court or children’s court = prosecutor can still make decision to divert matter

Question 23

Diversion

When can prosecutor divert a matter involving a child?

Answer 23

(1) Must be schedule 1 offence
Schedule 1 offences are less serious offences (Schedule 1 of the CJA)
(2) Child must comply with requirements set out in s 52(1)(a) – (e)
(a) Child must accept responsibility for offence
(b) Child must not be unduly influenced to say committed crime
(c) Prima facie case against child
(d) Guardian/parent consents to diversion
(e) Court thinks child will benefit OR is appropriate to be diverted

Question 24

Diversion

What happens when a child does not accept responsibility for an offence?

Answer 24

= they do not qualify for
diversion → prosecutor then has 2 options –
a. Postpone case to be heard at later stage in court
b. Refer child to children’s court

Question 25

# Procedure to be followed for offenders under 12 What is the procedure to be followed for children under 12 years? | Children below 12 have no criminal capacity

Answer 25

s 5(1) → child must be referred to probation officer to be dealt with in terms of s9 s 9(1)(a) → police official cannot arrest child; where police suspect child under 12 has committed crime they must hand over child immediately to their p/g - Where p/g is unavailable OR in best interests of child not to hand them over = child must be sent to suitable child + youth care centre & must notify probation officer s 9(2) → probation officer must assess child in terms of chapter 5 - Time period for assessment-Should be ASAP but no longer than 7 days after referred to probation officer

Question 26

# Procedure to be followed for offenders under 12 What conclusions must the probation officer reach after concluding the assessment

Answer 26

* Refer child to children’s court in terms of s 50 grounds * Refer child to counselling/therapy * Refer child to accredited programme suited to needs of child under 12 * Arrange support services for child * Arrange meeting which must be attended by child, parent or appropriate adult/guardian * Decide to do nothing

Question 27

# Procedures to be followed for offenders under 12 What happens if a child doesn't comply with an obligation imposed by the PO?

Answer 27

s 9(7) → if child does not comply with obligation imposed by probation officer, matter must be referred to children’s court to be dealt with in terms of chapter 9 of Children’s Act

Question 28

# Procedure to be followed by an offender of 12+ years but under 18 What is the procedure to be followed for children older than 12 but under 18?

Answer 28

**A.s5(2)** → child must be assessed before appearing @ preliminary inquiry Exceptions – = in terms of s 41(3) + s 47(5): where is in best interest of child not to assess **B.s5(3)** → preliminary inquiry must be held Exceptions – = matter has been diverted = child is 12 or older but under 14 & criminal capacity is not likely to be proved = matter is withdrawn If 1 of exceptions do not apply → matter must be referred to child justice court for plea + trial in terms of chapter 9 Before close of prosecution matter @ trial may be considered for diversion by child justice court