Review of the Age of Criminal Capacity

Meeting report

Overview: Department of Justice and Constitutional Development

Mr Jacob Skosana, Deputy Director-General (DDG), Department of Justice and Constitutional Development (DoJ&CD), said that South Africa was among the few countries that had developed and implemented a criminal justice system for children. The system ensured that children were treated differently from hardened criminals. The legislation had come into effect in 2010. The DoJ&CD was grappling with the implementation of that law, as it had introduced a new value chain on how to deal with children in conflict with the law.

There were two kinds of major laws dealing with the child in SA. One was the Children’s Act. which dealt with children in need of care. The other was the Child Justice Act, 2008 (Act 75 of 2008), which dealt with children in conflict with the law, which were those who were arrested and had been processed through the court. There was a separate process with suitable measures for children, which ensured that they were nurtured and corrected into becoming responsible adults.    

When the law had been passed in 2005, the age of criminal capacity had been increased from seven to ten years, and that meant that before the Act came into operation, SA courts had been unable to deal with any child below the age of seven years, as they had been deemed incapable of committing a crime.  Now, any child below ten years old was incapable of formulating an intention that made the child culpable of a crime. Any child between ten and 14 years old in SA was presumed to be doli incapax: deemed incapable of forming the intent to commit a crime.

There had been a provision in the Act when it came into effect that had required a revision of the age of criminal capacity within five years of the enactment of the Act, and the report was to initiate that discussion at the meeting.

The collective presenting to the joint Committee would present its considerations and propose whether to increase the age limit or not to, in terms of the age of criminal capacity. Certainly the collective would recommend a shift to an upper limit in the age of criminal capacity.

Secondly, the collective would submit the statistics for the basis of its recommendation.

Thirdly the collective would submit the lessons learned from its comparative research from other countries, in particular from the African continent, on how they had dealt with the matter on the age of criminal capacity.

Mr Skosana said many of the factors perpetuating child criminality were social, rather than legal.. The child justice system had been created so that it provided an array of diversion measures which committed parents to play some role in terms of the development of children, while acknowledging that there were social ills like drug abuse and peer pressure that influenced children towards a particular direction.

The report on which the presentation had been based, had been tabled in Parliament on 2 March 2016. The Act had required that the report be developed and approved by the Cabinet, and then tabled in Parliament. Once in Parliament, it had been envisaged that public participation would occur so that the adoption thereof would result in the amendment of the law.

Co-Chairperson Motshekga said he was wondering whether it would not have helped the Committee if the collective presenting could indicate what empirical evidence it had looked at from SA courts, and research which had led it to the conclusion that there was a need to amend the law under review -- whether upwards or downwards.

Ms Skosana replied that the report would certainly delve more deeply as a starting point in the conversation to amend the law. 

The SA Constitution and International Instruments on Criminal Capacity

Dr Charmain Badenhorst, Directorate: Family Law and Child Justice, DoJ&CD, said the project and the subsequent report submitted to Parliament had been an objective process that had taken cognisance of the various regional instruments that SA had ratified. The collective had also looked into the legal issues, practical considerations and the statistical information at its disposal and had included the views of various stakeholders consulted during the evolution of the project. These had included the government sector, including the DoJ&CD’s partner departments in the implementation of the law, non-governmental organisations (NGOs) and health professionals from the health sector.

She then read with the Committee through the presentation.

Children under the minimum age of criminal capacity (and children 10 years or older but under 14 years who do not have criminal capacity)    

The probation officer, having elected to not take action against a child handed over by a police officer, was required to record all assessments she/he had done on the child and to give reasons why he/she had decided in the particular manner in which they had decided. The Department of Social Development (DSD) was also expected to keep a record and a register; as well as the actions taken and the reasons for the actions against or for the child by the probation officer.

Minimum age of criminal responsibility in selected African countries 

Dr Badenhorst said that the situation in Namibia to date was that the country had the common law principles which SA had had before the Child Justice Act, that children below seven years did not have criminal capacity, and that those seven years old and under the age of 14 years had criminal capacity. There had been proposals that that country raise the minimum age to ten years, so that the rebuttable presumption would be applicable to ten years and older, but under the age of 14 years. However; that had been rejected in 2003.

Data collection project  

Dr Badenhorst said that the purpose of the data statistics in the presentation was to give the Committee a glimpse of the service points where ten to 13 year olds were in the child justice system, what kind of crimes the children committed and how the courts dealt with them. She then read the statistics for the Committee.

Challenges in the application of the provisions of the Act relating to criminal capacity

The DoJ&CD had in 2014 published a notice to address the shortage of resource capacity challenges in the public sector on the evaluation of criminal capacity in children. The notice had identified different categories of professionals to evaluate different developmental aspects in the child, in an effort to try and expand the pool of people that could do the assessments. Following the comments from that exercise, the DoJ&CD was in the process of amending the notice which identified psychiatrists and clinical psychologists, to include educational and counselling psychologists to be able to assist with the evaluations.

The other challenge identified by the Department of Health (DoH) had been that the tariffs payable to the above-mentioned professionals had been very low to date, and as part of the tariff revisions to witnesses in the justice system, the tariffs would form part of those revisions.   

The forensic mental health assessment of criminal capacity in children was multifaceted, and there was not enough literature in SA in that respect. The tools used therein had not been standardised by the mental health sector and there was a need for more refinement to give more clarity and precision in the recommendations brought to the courts. The mental health experts often referred to that challenge as the difficult marriage between the law and psychology, as criminal capacity had been a legal term on which mental health experts had had to give a recommendation. The experts had felt there was a need to focus more on training psychologists on how to present the reports in an accessible manner to the legal profession.

Co-Chairperson Motshekga observed that there was law reform and transformation of the SA legal system. However, the DoJ&CD was reforming the law in the new dispensation, whereas transformation of the legal system was what had been envisaged. The transformation of the judiciary had been completed, but the system remained unchanged.

The presentation had referred to common law, and international instruments which were informed by foreign laws. There had also been reference to Malawi, which used common law, which was un-African.  There had been hardly any indication that indigenous African law of the people of SA had been considered, which meant that the DoJ&CD had been Eurocentric in its approach and had not taken the social context of SA into consideration, though the law being proposed was for Africans and its children by and large. 

Concepts like the rebuttable presumption were all complicated western terms, where some court interpreters would not even understand how to translate it to a rural child with her parents in a court process. There had been a heavy reliance on experts where the DoJ&CD had reported that the services of those people had been very expensive, as there had to be an evaluation of the mental capacity of the children. Would all of that be workable?

His concern was that traditional communities had not been consulted to find out how they dealt with children in delinquency. From his knowledge of African people, they had a way of bringing up children.  From birth to seven years, that was infancy, and between seven and 14 years, that was puberty, so that between 14- 21 that individual was vastly different from a child in the range of seven to14 years. In the final range of 14-21 years, there were rites of passage. That meant that up to 14 years was the time for the education of a child, but when the DoJ&CD was saying the child was mentally capable, then the child would have been educated, without first having to assume culpability. Therefore that western approach was quite arbitrary and devoid of science which was concerning for Dr Motshekga, as it sounded like making law on a trial and error basis. Possibly the DoJ&CD would have to re-look the matter of consulting the African traditional communities that comprised the majority population in SA because otherwise the status quo of the colonial system would be maintained where South Africans would continue to be objects of a system that was irrational and arbitrary, and which would continue to deny people justice.

Discussion

Ms M Pilane-Majake (ANC) said it was important to acknowledge the review of legislation, but what had been happening in SA, at the Southern African Development Community (SADEC) and at the African Union (AU) level, and even at United Nations (UN), had to be considered also, for the country to develop national legislation that would be in line with those trends. Looking at the International Human Rights and Regional Treaties and Conventions, what emerged seemed to be saying the age of criminal capacity was not supposed to be set too low, though there had been no clear definition of what too low was. Looking at SA’s age of criminal capacity compared to what had been happening in the rest of the African continent, she realised the age of capacity was quite low. Additionally, when looking at the types of crimes as presented by the DoJ&CD, one became concerned again, as rape and murder were serious crimes. She felt therefore that in discussions there had to be some balance, and she did not know whether putting everything together in one bag to determine the age of criminal capacity would assist, because looking at shoplifting and then comparing it to rape was different, especially when it was children who were involved.

As the DoJ&CD had indicated, when children faltered it was rather a matter of social dynamics in society that led to deviant behaviour, and the DoJ&CD had to consider some provisions the Committee had made in other pieces of legislation. For example, the Committee had been discussing the Sexual Offences and Related Matters Amendment Bill, which had been looking at the age of consent for children when it came to sexual relations. What had that law been saying about the age of consent for a child to give consent to terminating their own pregnancy without the approval of parents, when there were utterances such as SA was a country that did not care for its children? A balance had to be found somehow. 

Adv L Mpumlwana (ANC) empathised with the DoJ&CD, because the difference between African justice and law compared to the western laws was vastly different. In the African legal system, a person was not taken away from the family, because a case was brought into the family structure for interrogation and intervention familiarly. In the western law, a person was imprisoned first to be interrogated later with no relation between the perpetrator and victims of a crime.

The DoJ&CD had to then decide whether, and at what age, it was appropriate to take a child away from their biological family, because the majority of Africans still believed that familial and community intervention was better off than the eurocentric view on matters of justice.

He concurred with co-Chairperson Motshekga that the DoJ&CD should consult rural and traditional African communities on how they intervened in the matters of the rights of the child, as there were not enough incarceration centres and other resources for intervening in terms of the age of criminal capacity. Certainly, he felt that 12 years was too low, as his proposal was for the age of criminal capacity to be set at even 16 years, as there was the issue of whether then the justice system would be dealing with an individual, or a child still within a community being nurtured.

Mr W Horn (DA) asked whether there was any data available on the rebuttal presumption and evaluations that were to be conducted, and the percentages for the different age groups over different time periods, where children had been found to have criminal capacity. His interest was that whilst SA was sitting with the international instruments it had ratified, one thing that had not been factored in was that there was an understanding that from one decade to another, children matured earlier.

Adv G Breytenbach (DA) asked if there was anything factored into the presentation that dealt with adults abusing children into committing the crimes, as children could not be held liable for some of the offences shown by the statistics which had been presented. 

Ms M Mothapo (ANC) said that coming from rural areas growing up, they had ‘played house’ as children.  That was a game played within the age range of five to ten years, where children assumed the roles of husband and wife without mimicking real life. She was aware that in terms of Section 28 of the SA Constitution, children's rights were the human rights of children, with particular attention to the rights of special protection and care afforded to minors. It was surprising and confusing therefore, that currently the age of criminality would imply a ten year old could be deemed to have committed such a serious contact crime as rape, when interpretation of such a provision could not be expected by such a child. 

In terms of preliminary investigations, where cases had been withdrawn against children, what psychological intervention was given to them to ensure that there were no repeat offences later in life?

SA had the Domicile Act 3 of 1992, the Children's Act No. 38 of 2005; the Long-Term Insurance Act 52 of 1998, which all dealt with the age of majority, which had been put at 18 years. There was quite a lot of legislation in the country, for example, the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998) and others. How did the DoJ&CD reconcile its recommendations with all those laws, including those in the Southern African Development Community (SADEC) region, like the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC)?

What proactive role was the DoJ&CD playing in article 11 and 17 of the ACRWC?

Adv Praise Kambule, Chief Director (CD), DoJ&CD, said as indicated in the overview, the presentation was based on a collective effort of the mentioned Departments, as the DG’s intersectoral Committee had been required by the Child Justice Act to undertake that project of investigating.  The Committee was made up of stakeholders including the National House of Traditional Leaders (NHTL), though it had been co-opted. The DoJ&CD had also been aware that Parliament would also avail a public participation opportunity for communities to speak to the collective recommendation of the DG’s intersectoral committee.

There were collective protocols that the intersectoral committee had considered, including the ACRWC, which stated that as the African states, the minimum age of criminal capacity was not supposed to be below 15 years, compared to the UN perspective which had specified that the minimum age of criminal capacity was not supposed to be less than 12 years. The DoJ&CD could not separate that age determination from the social ills the country was experiencing, such as the child-headed homes which meant a lack of parental supervision, domestic violence, substance abuse in the form of Nyaope and other street-manufactured drugs, which had become a common phenomenon in SA. That was also the reason that 67% of the children through the various service points of the child justice system had been committing serious offences like murder, rape and other Schedule 3 offences. As a country, SA had to also be cognisant of that, as children were maturing at a younger age nowadays which was a consideration that the DoJ&CD had considered. hence the recommendation of 12 years as the age of criminal capacity.

Co-Chairperson Motshekga observed that Ms Kambule had pointed out correctly that SA suffered from social ills which the Government of the day recognised as moral degeneration, meaning society was sick. The children therefore were victims of a sick society. Was the recommendation then seeking to punish SA’s children for being victims of a sick society, or did the inter-sectoral committee want to deal first with the sickness within society, because when children committed murder at an early age, that could not translate into a sign of maturity -- it could be a sign of victimhood. He therefore disagreed that children committed crime because they matured earlier, because if one watched television children were shown how to perform sex, how to use guns. Would there be no expectation that children would try out these things?

What was the inter-sectoral committee expecting when the collective wisdom of Africa had put the age of criminal capacity not below 15 years? However, lo and behold, SA was choosing 12 years! This was a eurocentric determination, where the children of the west came from literate families, and Africa’s children did not always have that opportunity. How was it that European standards were being applied to an African context when the two situations were not comparable?

Ms Kambule said the core intention of the Child Justice Act was to correct the behaviour of children to ensure they became responsible citizens later in life. The recommendation said a child below 12 years could not be charged with a criminal offence, rather than from the age of 12 years going up, the criminal conduct could be evaluated.  Furthermore, it proposed that the doli incapax be retained to say that if a child was above 12 years but under 14 years, an investigation could be done.

Ms Pilane-Majake interjected that the Committee had possibly gone beyond the proposed determination of age of capacity, as the sentiment emerging was that looking at the ACRWC, the proposed age of capacity had been proposed at 15 years. Could the collective before the Committee not prioritise that recommendation from the continent?

Ms Vuyokazi Ketelo, Senior State Advocate, National Prosecuting Authority (NPA), said that the withdrawal of cases against children because of lack of criminal capacity during the preliminary inquiry was simply to say there was a need for more information about the alleged offending child. Only once that was done could a way forward emerge. Therefore, if a child had been found to lack criminal capacity at the time of an offence, the case would be withdrawn, rather than the child being handed over to a probation officer so that the child could be counselled to try and address the issue of the offence, since the possibility of a repeat offence was too great if the child was simply left unattended. Sometimes during preliminary investigations, it could be found that the child would be in need of care and protection, for example, a child who would have stolen bread from a Spar grocery. Such cases were referred to the children’s court as the main intention of the Child Justice Act was to assist children, instead of letting them fall through the cracks.     

Co-Chairperson Motshekga said his information was that the Department of Correctional Services (DCS) did not even have enough social workers and psychologists, that that those services had to be bought for the children’s court. At rural courts in South Africa, those services were not accessible. Was the insinuation that the SA justice system, especially the child justice system, would depend on services that were not there?

Adv Ketelo concurred that indeed there was a shortage of professionals in rural courts, but the same Child Justice Act would give the prosecution the right to consider cases without having had to access those counselling services.

Co-Chairperson Motshekga interjected that the counselling professionals’ knowledge was needed in the cases of children, but now that responsibility was being transferred non-counselling legal professionals.  Would that be doing justice for the children?

Adv Ketelo replied that that indeed that would not be justice.

Major General Phillip Jacobs, Head: Legal and Policy Services, South African Police Service (SAPS), said that reviewing the international instruments ratified by SA, the basic consideration was what was in the best interest of the child. As the discussion was at inception considering the best for the child when a crime was being committed, was it a choice between the society, a correctional institution or social services? What was the capacity of social services? There was also the consideration of a child being used as an instrument to offend, and the discussion did not seem to consider this, though it was anecdotally known that such happened. There was a reported case where a 12 year old had been prosecuted for murder, as it had been found that it had been a contracted hit. Doli incapax had been found and such issues also had to be resolved. However; the process which was being initiated was certainly much more complicated.

Co-Chairperson Motshekga said that it was not enough to say the issue of age of criminality was complicated. Ms Mothapo had raised the matter of education, because if the plan was to bring traditional societies into the modernist system, that presupposed education. There was the ACRWC and other charters as alluded to by Ms Mothapo, which had been produced by African leaders when they had realised that European philosophy and systems could not be transplanted into Africa with a prayer that they would suit the continent. The law had to be indigenised, and that could not always be the work of experts. The communities that would be affected had to participate in the indigenisation of the law. It was also not enough that the Chairperson of the NHTL had been co-opted on to a Committee. If one took Limpopo, for example, there were queens who were the wives of traditional leaders, and they had traditional parenting programmes whose experiences could add more value to the process that the inter-sectoral committee had undertaken. The inter-sectoral committee was doing very well, but that work was for the children of SA instead of the international community. His proposal was further and thorough consultation with ordinary South Africans,

Ms Mbali Mxadi, Section Head: Vulnerable Groups & Victim Empowerment, SAPS, said that in certain instances, children perceived to be ‘playing house’ had been found to have committed serious sexual assaults. This had been uncovered in preliminary inquiries, and where then a child would be asked if they thought that that conduct was right or wrong, the response would be that since the other child had been screaming, it could not have been right.

In terms of preventative programmes, the age of criminal capacity was one aspect. Others were related to where SAPS liaised with parents in looking at school-based crime prevention programmes, for example, and ‘safe schools’ committees, where parents discussed what age appropriate programmes there were on television.

Co-Chairperson Motshekga said that Mrs Albertina Sisulu and Sister Bernard Ncube had from 1987 worked to establish the National Children’s Rights Committee (NCRC) which had committees in most townships and rural areas working with children. Did the collective know about them, had they been consulted? Nelson Mandela and Brigitte Mabandla had worked with those people.

Mr M Mhlanga (ANC: Mpumalanga) had observed the discussion speaking about the variety of ages of responsibility throughout all the international instruments, whereas the Commonwealth had agreed that the minimum age of consent to marry for either young women or men would be no lower than 18 years, whereas the ACRWC had put the age of criminal capacity at no lower than 15 years. There had been many forums created to deal with such matters since 1994, such as the moral regeneration sector, which also had to be prioritised in consultation on the age of criminal capacity of the child. He certainly was in agreement with co-Chairperson Motshekga that African or indigenous justice systems should be prioritised in determining the age of criminal capacity, rather than International and western laws. Indeed, the collective had to go back and consult further.

Ms Pilane-Majake said that having social ills was not supposed to influence legislation in a manner that would compromise the best interests of the child. Looking at the idea of increasing the age of criminal capacity, there had been mention of probation officers, and where the Committee had also spoken of the shortage of social workers in the Department of Correctional Services (DCS). What was supposed to be the coordinating point, as the Department of Social Development (DSD) had not attended the meeting? As long as the DSD was not coordinating everything that had been discussed, there would be no progress. If the age of criminal capacity was increased, that could also assist in alleviating the shortage of professional skills. SA would also be adhering to the agreed standard in the region and it would also be in line with Beijing rules, which prohibited setting the age too low. Moving forward, those were some of the things needing consideration in developing the Bill.

There had been a time in SA’s recent history, when there had been a National Programme of Development desks in government departments. Where those still functional or existing? There had been gender focal points -- were they in existence?

Co-Chairperson Motshekga proposed that the inter-sectoral committee develop a workshop framework and actually hold a workshop where the committee on social development and the moral regeneration sector could assist the inter-sectoral committee. Indeed, the committee had captured well that the Government wanted to change the law because of the moral degeneration, but the proposed change at that stage was going to penalise the children who were the victims of social circumstances that had not been of their creation.

The Committee was grateful for the presentation, though it maintained there had to be some common approach which would include the stakeholders the Committee had alluded to.

The meeting was adjourned.