Acting in the best interest of children in conflict with the law : determining the age of criminal capacity

• Author: Marelize Isabel Schoeman
• DOI: 10.10520/EJC195506
• Published date: 01 January 2016
• Date: 01 January 2016
• Pages: 35-42
• publishedBy: Institute for Security Studies (ISS)

35

SA Crime QuArterly No. 57 • SePtemBer 2016

Determining the age

of criminal capacity

Acting in the best interest of

children in conflict with the law

* Marelize Schoeman is an Associate Professor in the Department

of Criminology and Security Science at the University of South

Africa (Unisa). The article draws on research conducted in the

Unisa College of Law’s Criminal Capacity of Children in Conflict

with the Law community engagement project.

Marelize Isabel Schoeman*

schoemi@unisa.ac.za

http://dx.doi.org/10.17159/2413-3108/2016/v0n57a39

The Child Justice Act 2008 (Act 75 of 2008,

hereafter the ‘Child Justice Act’) is celebrating

its fifth year since becoming operational on

1 April 2010.1 This is significant, since section 8

of the act determines that the minister of justice

and constitutional development must submit a

report to Parliament to review the minimum age

of criminal capacity no later than five years after

the operationalisation of the act.2 The decision

taken in 2008 to set the minimum age of criminal

capacity at 10 years was contentious to begin

with, since it is lower than the recommended

minimum age of 12 years proposed in General

Comment No. 10.3 The decision was also

opposed by civil society organisations that

made submissions to Parliament advocating

for a higher minimum age of criminal capacity.4

Even though these initial attempts to secure a

higher minimum age of criminal capacity were

unsuccessful, a compromise was reached to

review the minimum age no later than five years

after the act became operational.5 At face value,

the debate about the age of criminal capacity is

limited to establishing an age at which children

are believed to have the ability and maturity

to appreciate the nature and impact of their

actions, and the ability to assume responsibility

for them. In reality the debate is more complex,

since any decision is moot if the procedural

mechanisms and available infrastructures are

inadequate to deal with the implementation of

the decision.

The Child Justice Act is regarded as an

extension of the Constitution of the Republic of

South Africa, Act 108 of 1996, and is also seen

as a regional and international human rights

instrument.6 It is grounded in the principle that

the best interest of the child is paramount in all

actions concerning children.7 With that in mind,

this article aims to explore if current procedural

Section 8 of the Child Justice Act determines that the minister of justice and constitutional

development must submit a report to Parliament no later than five years after the operationalisation

of the act to review the minimum age of criminal capacity. With that in mind, this article aims

to explore if current procedural mechanisms used to assess the criminal capacity of children in

conflict with the law are in their best interest. This article will examine criminal capacity procedural

mechanisms that could hamper the best interests of children in conflict with the law.