Comments: Determining the criminal capacity of children aged 10 to 14 years: A comment in light of S v TS 2015 (1) SACR 489 (WCC)

• Jurisdiction: South Africa
• Author: Shelley Walker
• Citation: (2015) 28 SACJ 337
• Pages: 337-346
• Published date: 24 May 2019
• Date: 24 May 2019

Determining the criminal capacity

of children aged 10 to 14 years:

A comment in light of S v TS 2015

(1) SACR 489 (WCC)

SHELLEY WALKER

University of KwaZulu-Natal, Durban

1 Introduction

Although the Child Justice Act 75 of 200 8 (‘the CJA’) allows for the

prosecution of children aged 10 years and older, s 7(2) of the CJA has

retained the common-law presumption that a ch ild under 14 years lacks

criminal c apacity. The requirements for rebutting this presumption are

prescribed in s 11(1) of the CJA, namely that the child must have had

the capacity ‘to appreciate the difference bet ween right and wrong

at the time of the commission of [the] alleged offence and to act in

accordance with that appreciation’.

As I explained in an earlier comment on t he provisions of s 11(1),

these requirements are not an exact res tatement of the common law

as it applied immediately before the commencement of the CJA (S

Walker ‘The requirements for crimi nal capacity in s 11(1) of the new

Child Justice Act, 2008: A s tep in the wrong direction?’ (2011) 24 SACJ

33). Although, like the common law, s 11(1) requires an assessment of

the child’s cognitive and conative capacity at the time of the offence,

the common-law enquiry for the cognit ive component of criminal

capacity (the so-called ‘insight’ leg of the enquir y) was not whether

the child could distingu ish between right and wrong in a general or

abstract sense, but whether he could appreciate the wrongful ness of

his particula r unlawful conduct, in t he circumstances in which it was

committed (S v Pietersen (1983 (4) SA 904 (E) at 907A-C; S v Ngobese

2002 (1) SACR 562 (W) at 564H-J; see also Walker op cit 35-38, CR

Snyman S trafreg 6ed (2012) 186, G Kemp et al Criminal Law in South

Africa 2e d (2015) 178 -180).

COMMENTS

337

(2015) 28 SACJ 337

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