CHILD OFFENDERS IN THE SOUTH AFRICAN AND AUSTRALIAN

CRIMINAL JUSTICE SYSTEMS: A COMPARATIVE APPROACH

By

EDIAAN SMIT
(65109309)

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: UNATHI POYO

(ASSIGNMENT NUMBER 02 / 03)
2022

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CONTENTS

1. WORKING TITLE…………………………………………………………………...3
2. INTRODUCTION……………………………………………………………………3
3. PROBLEM STATEMENT…………………………………………………………..3
4. HYPOTHESIS……………………………………………………………………….4
5. POINTS OF DEPARTURE AND ASSUMPTIONS………………………………5
6. CONCEPTUALIZTION OF CENTRAL RESEARCH THEMES…………………5
7. PROPOSED CHAPTER OUTLAY…………………………………………………6
8. PROJECTED TIME SCALE………………………………………………………..7
9. DESCRIPTION OF PROPOSED RESEARCH METHOD………………………7
10. PREPARATORY STUDY…………………………………………………………..7
11. CONCLUSION……………………………………………………………………..10
12. BIBLIOGRAPHY……………………………………………………………………10
13. ACADEMIC HONESTY DECLARATION………………………………………..12

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 1. WORKING TITLE

Child offenders in the South African and Australian criminal justice systems: A
comparative approach.

2. INTRODUCTION

This research investigates and critically discusses the differences between the
procedures and the procedural rights of minors when they are found guilty of an
offense and focus on the steps that are followed by the South African and Australian
criminal justice systems when children are offenders and when they are considered to
have criminal capacity and when they are found guilty of an offense, which
punishments are meted out by the courts and comparing it critically to the Australian
procedures.

In order to explain the criminal procedures applicable to the trial of a juvenile offender,
the researcher critically investigates and analyses selected provisions of the South
African Constitution1, the Australian Constitution2, South African3 and Australian4 Acts
relating to criminal justice, case law5 and journal articles6.

The intention of this study is to compare different approaches to protecting juvenile

offenders' rights to a fair trial and to offer recommendations that will hopefully raise
awareness of those rights in South Africa. In addition to the aforementioned, this
research product attempts to draw attention to several flaws in the South African legal
system as it pertains specifically to the judicial procedures involving a juvenile
offender.

3. PROBLEM STATEMENT

1 The Constitution of the Republic of South Africa, 1996.

2 The Commonwealth of Australia Constitution Act.
3 Child justice Act 75 of 2008; Children’s Act 38 of 2005; Criminal Procedure Act 51 of 1977.
4 Australian Criminal Code no 12 of 1995.
5
S v Mbane and others (2013) JOL 30083 (ECB)
6
John Seymour, 'Dealing with Young Offenders: The Report of the Australian Law Reform
Commission' (1982) 15 Aust & NZ J Criminology 245 - 255

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The purpose of this research is to objectively look at the differences between child
offenders and their rights when they are found guilty of an offense. This research will
also compare the similarities and disparities between the South African and Australian
laws and the procedures that are followed when child offenders are accused and found
guilty of an offense.

All cases are looked at by the court and judgment is made on merit and in some cases,
where a child offender would normally be considered to lack criminal capacity, the
court may find, through objective consideration, that a child may have known that their
actions were unlawful if it can be proven that the offender could or should have known
that the act was indeed wrong and found guilty of an offense.

This research will cover facets which will include:

a. When a child offender is considered to have criminal capacity and when they
lack criminal capacity and how the courts make their decision.
b. Possible contrasting views in the Constitution, Child Justice Act and Children’s
Act when dealing with child offenders.
c. When do courts decide that a child offender is guilty of a crime, where other
offenders of the same age may be considered to lack criminal capacity for a
different, but serious offense.
d. What Australia’s position is on child offenders and when they are considered to
lack criminal capacity.

4. HYPOTHESIS

Section 5 of the Child Justice Act7 (CJA) makes provisions in the manner of dealing
with children who are alleged to have committed offenses. Preliminary enquiries have
to be done for children older than ten but younger than fourteen after they have been
assessed by a probation officer. The seriousness of offenses are categorised in
section 6 of the Child Justice Act8.

When looking at the Mbane9 case, one can see that sometimes the court a quo can
err in sentencing and conviction. In this specific case, the accused pleaded guilty but

775 of 2008
8S 6(1) (a)-(c) of the Child Justice Act 75 of 2008
9 S v Mbane and others [2013] JOL 30083 (ECB)

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it was held that the proceedings of this case was conducted in terms of The Criminal
Procedure Act10 (CPA) whereas the CJA applied to the accused. In S v Ngubo11 the
accused pleaded guilty to housebreaking and theft and was sentenced to 12 months
imprisonment. The whole sentence was suspended for five (5) years subject to certain
conditions.

It is evident that each case is dealt with on merit and on the specificities of each case
which may pose an issue as similar cases may be dealt with differently by another
court. Not all cases are reported or carry precedence and it is therefore at the
discretion of the presiding officer to decide what the punishment, if any, should be.

5. POINTS OF DEPARTURE AND ASSUMPTIONS

The Australian laws on child justice, referred to as juvenile justice, is governed by state
and territory legislation.12 With jurisdictional responsibility for juvenile justice in
Australia, there are considerable disparities in the systems between states and
territories.13

In South Africa, we have 3 main Acts of parliament that deals with children and child
offenders. The Constitution, the Child Justice Act and the Children’s Act. Various case
law deals as authoritative sources that determines the court’s decisions on whether
child offenders are criminally liable or not and to what extent they should be punished.

If a child offender is under the age of ten, he or she should not be arrested and should
instead be referred to his or her parents or an appropriate adult or a guardian; or if no
parent, appropriate adult, or guardian is available, or if it is not in the best interests of
the child to be handed over to the parent/ appropriate adult/ guardian, the child should
be referred to a suitable child and youth care centre. Following that, the police officer

10 51 of 1977
11 [2001] JOL 8258 (Tk)
12
AIC (Australian Institute of Criminology) 2006. Juvenile detention rates 1981–2005. Crime
Technical and Background Paper no. 22. Canberra: AIC.
13
AIHW: Loke K & Johnston I 2007. Juvenile justice in Australia 2004–05. Juvenile justice no. 2. Cat.
no. JUV 2. Canberra: AIHW.

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must notify a probation officer, who will conduct an assessment to determine the child's
next steps.14

Arrests can be made against minors in the remaining two age groups, albeit it is
preferable that police officers utilise alternative means to ensure attendance at court.
Nonetheless, once apprehended, the Act states that where there is a choice between
detaining or releasing the child, their release should always be prioritised, with proper
consideration given to the schedule of offence and the factors outlined in the Criminal
Procedure Act.15

6. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES

6.1. Child Offender
A child offender can be defined16 as a child who has been convicted of a
criminal offence.
6.2. Criminal Capacity
As outlined by section 7 of the CJA, in subsection 1, a child who commits
an offence while under the age of 10 years does not have criminal capacity
and cannot be prosecuted for that offence, but must be dealt with in terms
of section 9. In subsection 2, it is provided that a child who is 10 years or
older but under the age of 14 years and who commits an offence is
presumed to lack criminal capacity, unless the State proves that he or she
has criminal capacity in accordance with section 11.
6.3. Rights of Minors
The rights of minors are outlined as per the CJA as well as Children’s Act
and the Constitution.

7. PROPOSED CHAPTER OUTLAY

14 “Juvenile Offenders” (Burger Huyser AttorneysAugust 29, 2022)

https://www.burgerhuyserattorneys.co.za/juvenile-offenders/ accessed September 12, 2022

15 “Juvenile Offenders” (Burger Huyser AttorneysAugust 29, 2022)

https://www.burgerhuyserattorneys.co.za/juvenile-offenders/ accessed September 12, 2022

16 “Child Offender Definition” (Law Insider) https://www.lawinsider.com/dictionary/child-offender

accessed September 18, 2022

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 Chapter 1: General conceptualisation of research problem and
methodology:
This chapter will conceptualise components of the research problem that will
be needed later in the dissertation preparation process.
Chapter 2: General contextualisation of the research topic in South
African law:
This chapter examines pertinent sections of relevant laws as well as existing
case law in South Africa pertaining to minor offenders The goal of this chapter
is to highlight the aspects of all pertinent legislation, such as the Child Justice
Act, the Children’s Act, and the Criminal Procedure Act.
Chapter 3: Comparative analyses of topic in chosen jurisdictions:
This chapter compares and contrasts the current legal situation in South Africa
with the legal situation in Australia. This chapter will analyse parallels and
differences, with a focus on the legal perspective on juvenile offenders.
Chapter 4: Conclusion and recommendations:
This chapter presents research findings that pertain to the hypotheses and
contains suggestions that are validated by legislative review, case law,
electronic documents, textbooks, related journal articles, and comparative
study mentioned in the research.

8. PROJECTED TIME SCALE

CHAPTER SUBMISSION DATE COMMENTARY

Chapter 1 30-Sep-22 15-Oct-22
Chapter 2 30-Oct-22 15-Nov-22
Chapter 3 30-Nov-22 15-Jan-23
Chapter 4 29-Jan-22 15-Mar-23
FINAL PROPOSAL 30-Apr-23

9. DESCRIPTION OF PROPOSED RESEARCH METHOD

A comparative approach will be taken in the research in the form of comparing the
current legal position in South Africa and Australia and comparing the similarities and
disparities by looking at legislation, case law, journal articles and the constitutions of
both countries.

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Australia’s constitution is similar to ours in that it grants it’s citizens specific rights but
it also allows each state to effectuate its own laws regarding criminal offenses and a
lot of the territories in Australia have their own Acts that deal with crime and criminal
offenses.

With regard to juveniles in particular, Australia's legal principles and procedure are
comparable to South Africa’s. This is the rationale behind the researcher's decision to
examine the principles of Australian law regarding the evaluation and trial of juvenile
offenders.

10. CONCLUSION

The research highlights not only the differences between the processes and legislation
dealing with child offenders in South Africa as compared to Australia, it also shows the
ambiguity on the case-by-case decision that the courts make. This research also
alludes to the fact that much more needs to be done to develop the process in order
to mitigate the challenges of executing objective decisions which can be remedied by
the courts ensuring that the law is developed in order to ensure that all child offenders
are treated the same way.

It remains to be seen how the decisions by the courts and the implementation thereof
would play out in light of the legal problems of developing the law accordingly, as
indicated in the research.

11. BIBLIOGRAPHY

LEGISLATION
Child Justice Act 75 of 2008
Children’s Act 38 of 2005
Constitution of the Republic of South Africa, 1996
Criminal Procedure Act 51 of 1977
Australian Criminal Code no 12 of 1995.

The Commonwealth of Australia Constitution Act.

CASE LAW
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 Pawuli v S [2005] JOL 14665 (Tk)

S v Mbane and others [2013] JOL 30083 (ECB)

S v Ngubo [2001] JOL 8258 (Tk)

JOURNAL ARTICLES
John Seymour, 'Dealing with Young Offenders: The Report of the Australian
Law Reform Commission' (1982) 15 Aust & NZ J Criminology 245 – 255

AIC (Australian Institute of Criminology) 2006. Juvenile detention rates 1981–

2005. Crime Technical and Background Paper no. 22. Canberra: AIC
AIHW: Loke K & Johnston I 2007. Juvenile justice in Australia 2004–05.
Juvenile justice no. 2. Cat. no. JUV 2. Canberra: AIHW
INTERNET SOURCES
Child Offender Definition” (Law Insider)
https://www.lawinsider.com/dictionary/child-offender accessed September 18,
2022
“Juvenile Offenders” (Burger Huyser AttorneysAugust 29, 2022)
https://www.burgerhuyserattorneys.co.za/juvenile-offenders/ accessed
September 12, 2022

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DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa's policies in this

regard.

2. I declare that this assignment is my own, original work. Where I have used someone else's

work I have indicated this by using the prescribed style of referencing. Every contribution to,

and quotation in, this assignment from the work or works of other people has been referenced

according to this style.

3. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it

off as his or her own work.

4. I did not make use of another student's work and submitted it as my own.

NAME: Ediaan Smit

SIGNATURE: ………………………………………………….………………….…….

STUDENT NUMBER:65109309
DATE: 01/11/2022

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