The development of a juvenile sentencing jurisprudence in the absence of legislation

Parker, Gadija

The development of a juvenile sentencing jurisprudence in the absence of legislation

Master Thesis

2014-07-30

Publisher

University of Cape Town

Department

Institute of Criminology

Faculty

Faculty of Law

Abstract

The South African Law Commission Project Committee submitted a report and draft Bill to Parliament on 8 August 2000 addressing the creation of a juvenile justice system.i Parliament has to date failed to implement legislation regulating juvenile justice in South Africa thereby failing to create a distinct juvenile justice system. The purpose of this paper is to consider the extent to which the judiciary has been developing juvenile justice practises in light of the fact that legislation regulating juvenile justice is practically non-existent. The development of the law by the judiciary is not unique to juvenile justice. However, it is worthwhile discussing the judiciaries' involvement in the development of juvenile justice in light of challenges faced by the judiciary while developing this area of law. The challenging task faced by the judiciary involves developing juvenile justice practices which satisfies Constitutional and international principles while also adhering to the needs of the society. In South Africa, the Criminal Procedure Act, 51 of 1977 governs children and adults who are accused of having committed a crime. Separate legislation governing children justice has to date not been implemented by Parliament. It is also interesting to note how in light of the inequalities of the past and the absence of legislation pertaining specifically to children, the judiciary grapples with giving effect to Constitutional and International principles such as the best interest of the child, the principle of last resort and the principle of proportionality, while still trying to give effect to the needs of the victim and society. i J Sloth-Nielsen 'Justice for children as victims and as offenders' in CJ Davel (ed) Introduction to child law in South Africa (2000) 392

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