Juvenile Justice And Restorative Justice (CJA)

Answers to question 1

The Child Justice Act 75 of 2008 (hereafter "the CJA") has changed the kind of sentences that may be imposed on a child offender and the principles in terms of which the appropriate sentence should be established. This new procedural framework for dealing with children who come into conflict with the law represents a rights-based approach. Some of the more significant changes include:

I. Diversion

In terms of the definition in the CJA diversion means “diversion of a matter involving a child away from the formal court procedures in a criminal matter by means of the procedures established by Chapter 6 and Chapter 8” of the act. A diversion therefore involves a referral away from the formal criminal court procedure where

Sections 52(1)(a)-(e) set out the general prerequisites for diversion to be considered for minor offences while Schedule 2 offences require the views of the victim to also be considered. Section 97(4) identifies exceptional circumstances that the DPP must indicate when considering diverting Schedule 3 offences.

II. Restorative justice

In terms of the definition in the CJA restorative justice means an approach to justice that aims to involve the child offender, the victim, the families concerned and 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 and promoting reconciliation.

Restorative justice has a role in identifying “substantial and compelling” reasons not to impose a prescribed minimum sentence. Section 73 of the CJA contains provisions related to when restorative justice is imposed as a sentence. Generally, any procedure that could be seen to resolve and restore the dignity of the offender and the victim can be imposed as restorative

In other words, in keeping with the objectives of the CJA of keep child offenders out of the formal criminal justice system, arrest of a child is discouraged and only permissible under exceptional circumstances. Answers to question 3

a) The right to assistance to a suspect is entrenched in Sections 35(2) and (3) of the Constitution, is well established in the common law and further embodied in Sections 73(1), (2) and (2A)-(2C) of the Criminal Procedures Act, hereafter CPA. In addition to this right as it is applicable in the provisions noted above, the Child Justice Act also contains provisions that regulate access by accused children to assistance. There are some differences between how it is affected at the pre-trial and trial stage for children and adults.

For an adult suspect at the pre-trial stage, the police have a duty to inform the suspect of the right to assistance during arrest, interrogation and investigation with the consequences of being deprived of this right being that it is likely the statements made by the accused will be excluded during their