Amendments to the Child Justice Act, 2008 (Act 75 Of 2008) which increase the minimum age of criminal capacity for Children now in Operation
According to the Constitution, a child is any person under the age of 18.
South Africa ratified the United Nations Convention on the Rights of the Child in 1995 . In order to comply with the obligations as a State Party to the United Nations Convention on the Rights of the Child, South Africa enacted the Child Justice Act, 2008 (Act 75 of 2008) which came into operation on 1 April 2010.
Prior to the implementation of the Child Justice Act, 2008 the issue of criminal capacity of children was governed by two common law presumptions.
In terms of these common law presumptions all children under the age of 7 years were irrebuttabley presumed to be incapable of criminal intent. This effectively meant that a child under the age of 7 could never be prosecuted.
Children between the ages of 7 years or older but under the age of 14 years were rebuttably presumed to be incapable of criminal intent. As a result if any such child was to be prosecuted, the prosecution had to prove that the accused child had the required criminal capacity at the time of committing the offence.
The Child Justice Act, 2008 increased the minimum age of criminal capacity of children from 7 years to 10 years. It retained the presumption that children 10 years or older but under the age of 14 years did not have criminal capacity and therefore if such child was to be prosecuted, the prosecution had to prove that the accused had the required criminal capacity at the time of committing the offence.
Various States approach the issue of criminal capacity of children differently. The United Nations Committee on the Rights of the Child has continuously expressed its concern with regard to the vast international differences in setting a minimum age of criminal capacity.
In 2007 a fixed minimum age of criminal responsibility of not lower that 12 years was established by the United Nations Committee on the Rights of the Child and it was recommended that States Parties should progressively raise the minimum age of criminal capacity where possible. In General Comment 24 of 2019, issued in October 2019, the Committee on the Rights of the Child stated that: “States parties are encouraged to take note of recent scientific findings, and to increase their minimum age accordingly, to at least 14 years of age.”
After the various legislative processes the Child Justice Act, 2008 Act has been duly amended to ensure that South Africa complies with the recommendation by the United Nations Committee on the Rights of the Child to progressively raise the minimum age of criminal capacity. On the 19 August 2022 President Ramaphosa proclaimed that the Child Justice Amendment Act, 2019 (Act 28 of 2019) has duly commenced.
As a result the minimum age of criminal incapacity is no longer 10 years but 12 years. Therefore, children below the minimum age of criminal capacity of 12 years may no longer be arrested/ charged by the South African Police and may also not be prosecuted for the commission of a criminal offence. Such children, who may have committed crimes must be dealt with outside of the criminal justice system by social workers who may refer the child to a children’s court for their directions.
Children aged 12 years or older but below 14 years are still presumed not to have criminal capacity and the State must prove their criminal capacity beyond reasonable doubt in a child justice court.
This means that children in the age group may be charged/ arrested by the South African Police Service, if they commit a criminal offence but the State must prove that they had the capacity to appreciate the difference between right and wrong and the capacity to act in accordance with this appreciation at the time of the commission of the offence.
Enquiries: Chrispin Phiri
Spokesperson for the Ministry of Justice and Correctional Services
Cell: 081 781 2261
