Juvenile Justice in South Africa: An exploration of the changing philosophies which underlie juvenile justice and it's potential impact on the penal and welfare system of South Africa

Goliath, Patricia Lynette

Juvenile Justice in South Africa: An exploration of the changing philosophies which underlie juvenile justice and it's potential impact on the penal and welfare system of South Africa

Thesis / Dissertation

1999

Publisher

University of Cape Town

Department

Centre for Socio-Legal Research

Faculty

Faculty of Law

Abstract

The South African juvenile justice system centres mainly around two basic paradigms namely the welfare model and the justice model. Under the justice model the juvenile is viewed as being one who is fully responsible for their actions. If convicted the juvenile must receive some form of punitive or rehabilitive punishment The welfare model on the other hand seeks to intervene to discover the antecedent causes of unlawful or deviant behaviour. It maintains that children in conflict with the law should be removed from the criminal justice system and dealt with in terms of their social and psychological needs. Because the boundaries between these two systems are interrelated we' are confronted with conflicting punishment ideologies. Before the establishment of the reformatory there had been no special institutional provision for the confinement of juvenile delinquents. The Prison and Reformatories Act 13 of 1911 made provision for the treatment of juvenile offenders. Further legislation was introduced in 1913 in the form of the Children's Protection Act and the 1917 Criminal and Evidence Act. The whole system was revised in 1934 culminating in the Children’s Act of 1937. This Act amended the 1917 Criminal and Evidence Act am/ defined sentences which could be imposed on young offenders. In 1960 new legislation was enacted with the aim of further protecting and caring for children in need of care. Act 33 of 1960 made provision for children's courts but no new procedures for dealing with juvenile offenders were introduced The welfare model gained wide popularity and the current Child Care Act 74 of 1983 has as it's primary function the " best interest of the child". Despite the adoption of child care legislation which purports to follow the welfare mode, the present system of juvenile justice adheres to a rather strict interpretation of the justice paradigm. In South African law there is often little distinction between a child in need and one who is found guilty under criminal law. The Criminal Procedure Act 51 of 1977 made provision for various sentencing options for juveniles. Corporal punishment in terms of Section 294 was the most common form of sentencing until the constitutional court abolished the sentence of whipping for juvenile offenders on 9 June 1995. However, pre-trial detention of children were prevalent. In September 1993 a seminar on legislative drafting was held in Cape Town where a committee representing a number of organisations was formed to draw up a draft document for the drafting of legislation for juvenile justice. This document, Juvenile Justice for South Africa: proposals for policy and legislative change, was the first step towards the legislative creation of a juvenile justice system. In May 1995 an amendment to Section 29 of the Correctional Services Act (act 8 of 1959) was promulgated namely the Correctional Services Amendment Act 17 of 1994 that finally prevented young people from being held in prisons and police cells. Also during May 1995 an Inter-Ministerial Committee of Young People at Risk was established with the sole purpose of managing and transforming the South African child and youth care system. These positive moves were overshadowed by problems such as inadequate secure care facilities, escapes from custody and even an increase in juvenile crime. Pressure from the public ·and various agents dealing with juvenile offenders led to the promulgation of a new Section 29 of the Correctional Services Act on 10 May 1996 namely Act 14 of 1996. This Act allowed for the holding of children over 14 and under 18 years charged with serious offences in prisons during the awaiting trial period. Under the auspices of the Inter-Ministerial Committee a policy document was drafted in October 1996 setting out proposals for a comprehensive juvenile justice system. A November 1996 study by the Inter-Ministerial Committee found that there was a daily population of more than 1600 children awaiting trial in prison and police cells countrywide. In 1997 the South African Law Commission published an Issue Paper, which identified and discussed various issues with a view to eliciting comment and stimulating debate on the entire question of juvenile justice legislation in South Africa. The South African Law Commission also released a discussion paper with draft legislation in 1998. The paper contains proposals relating to a new juvenile justice system and invites comment until 31 March 1999. The proposed system aims to entrench diversion as a central feature of the juvenile justice system and extend sentencing options to be more in line with the restorative justice model, including victim-offender mediation, and family group conferencing. The draft legislation includes proposals for a monitoring system as applied in New Zealand The Inter-Ministerial Committee also established Project Go to speed up the transformation of the child and youth care system and prepare for the release of children awaiting trial from prison. Despite this the creation of viable alternatives to prison for children still remains a contentious issue. Is a solution to the punishment dilemma possible?· Can we reasonably expect to approach agreement regarding the objectives of juvenile punishment. South Africa can only benefit by drawing from international instruments and child justice models developed by other countries in order to determine the principles of an ideal juvenile justice system. Consensus may not be possible but it is the responsibility of all role-players to reflect thoughtfully and intelligently on this subject. The transformation of the child and youth care system in South Africa therefore remains one of the major challenges facing the South African juvenile justice system.

Keywords

juvenile justice

welfare system

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