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South Africa: Judging Ubuntu and Africanisation of the Child Justice Act

September 24, 2013

…The CJA took its cue from the 1996 Constitution. Therefore, the CJA is mindful of the Constitution as the highest law of the country and aims to improve the quality of life of all its people and to free the potential of every person by all means possible.

The Constitution emphasises the ‘best interests’ of children and guarantees their special protection within the ambit of criminal justice system. (Apart from the provisions of the Constitution Section 28(1) (g) of the Constitution it affords children in conflict with the law special safeguards such as; not to be detained and if so for the shortest period of time possible; to be treated and kept in conditions taking into account the child’s age; and to be kept separately from adults.)

In Centre for Child Law v Minister for Justice and Constitutional Development and Other [2009] ZACC 18, the Constitutional Court stated that the constitutional injunction that a child’s best interests are of paramount importance in every matter concerning the child means that the child’s interests are ‘more important than anything else’, but not that everything else is unimportant.

The Constitutional Court further stated that the entire spectrum of considerations relating to the child offender, the offence and the interests of society may require incarceration as the last resort of punishment.

…The CJA entrenches the notion of restorative justice in the criminal justice system in respect of children who are in conflict with the law. This legislation inter alia defines restorative justice as follows:

‘An approach to justice that aims to involve the child offender, the victim, the families concerned and the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent a recurrence of the incident.’

The CJA provides for several diversion options in an attempt to humanize the child justice system and protect the rights of children. The CJA facilitates diverting offenders under the age of 18 away from the mainstream criminal justice.

Diversion alternatives include family group conferencing and victim offender mediation. The objectives of diversion programme must inter alia impart useful skills, include a restorative element which aims at healing relationships, include the relationship with the victim, and include an element which seeks to ensure that the child understands the impact of his or her behaviour on others, including the victims of the offence and may include compensation or restitution.

The CJA makes special provision for young offenders showing remorse by addressing the original crime in such a way that the offender does not enter a continuous cycle of crime and violence.

Read the full article.


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