Inclusive Pre-Sentencing Reports for Children Who Conflict With the Law: Applying and Executing Section 71 of the Child Justice Act

• Citation: (2024) 37 SACJ 1
• DOI: https://doi.org/10.47348/SACJ/v37/i1a1
• Published date: 21 August 2024
• Pages: 1-20
• Author: Human, M.
• Date: 21 August 2024

Inclusive pre-sentencing reports

for children who conict with

the law: Applying and executing

section 71 of the Child Justice Act

MARYNA HUMAN,* LEANDRÉ C GEOFFREY**

and1THEOPHILUS LAZARUS***

ABSTRACT

Despite the progressive nature of t he Child Justice Act (CJA) to uphold

the best interest pri nciple of all children who come into con ict with the

law, s 71(1) and (2) of the CJA that outlines the pre -sentencing evaluation

reports requi red for sentencing, fail to meet and uphold this object ive.

This is of par ticular import ance given the multi-complex and mult i-

faceted advancements in scienti c ndings regarding the development of

crimina l behaviour in children. T his paper reviewed and concluded the

following key aspects pert inent to the execution of pre-sentenci ng reports:

(1) practitioners are not provided wit h clear guidelines speci fying key

factors that need emphasis in t he pre-sentence report s; (2) practitioners

are often inexper ienced in child development (brain a nd psychological)

processes and lack the requisite k nowledge and skills in cr ime causation

to compile the reports; and (3) the best i nterest principle is hampered by a

severe stafng problem, heav y workloads, and tight timefr ames governing

the compilation and submission of rep orts.

This submission was pr imarily in uenced by the ndings from resea rch

that explored and subsequently developed an act ion plan for criminologis ts

with a view toward speciali sation in child justice. A liter ature review and

analysis of pre-ex isting ndings from t he aforesaid research, coupled with

reviews of academic l iterature fro m various academic s cientic sources

formed the basis of the arg uments presented in thi s submission.

* PhD; Schoo l of Criminal Ju stice, University of Sout h Africa.

** BA(Hons) MA Ph D (Unisa); Senior Lectu rer, Department of Cr iminology and

Crimina l Justice, University of L impopo.

*** PhD M NAN (USA); Adjunct Professor, Departm ent of Psychology, Emory University,

Registered Neurops ychologist (Health Profession s Council of South A frica).

https://doi.org/10.47348/SACJ/v37/i1a1

1

(2024) 37 SACJ 1

© Juta and Company (Pty) Ltd

1 Introduction

Worldwide, children1 are considered to be vulnerable members of

society. Reports of riots, murder, various forms of domestic violence,

interpersonal violence, gender-based violence, as well as forms of

sexual abuse (incest and rape), physical abuse (unpredictable and

harsh punishment), and emotional abuse are normal rather than the

exception in the daily lives of South Af rican children. Since a signicant

proportion of South African children are exposed to the stressors that

stem from these incidents, it is not surprising that crime and violence

have become ‘culturally acceptable’ to some of these young children

through constant exposure (observation and experience) this kind of

behaviour in their socialisation.2 The consequences of these stressors

are evident and documented in several crime and news reports.3 For

example, the 2019/20 crime statistics reected 779 murders committed

by South African chi ldren, reecting a victim- offender overlap

resulting from exposure to the aforesaid stressors.4 Rape, robbery

1 The Child Justice Ac t 75 of 2008 denes a ‘chi ld in conict wit h the law’ as any

person under 18 years of age, and i n certain circumst ances, persons under 21years

of age, who comes into contact w ith the crimi nal justice system d ue to being

suspected of, accused , or found guilty of i nfringing upon the law.’

2 Refer to RL Akers and GF Jens en ‘Empirical status o f Social Learni ng Theory of Crime

and Deviance: The pa st, present, and future’ in F T Cullen, JP Wright andKRBlevins

(eds )Taking Stock: T he Status of Criminological Theor y(2006) 37–76. and T Meena

‘Psychological theorie s of juvenile delinquenc y – a criminologic al perspective’

(2016) 2 Imperial J Interdiscipl Res 1644-1651.

3 See S Naik ‘Child ren responsible for 779 murder s in 2019/20’ IOL, 1 August 2020,

available at https://www.iol.co.za/sa turday-star/ne ws/children-r esponsible -for-779-

murders-in-201920-d658ee2b -d17d-430b-9465-81300b6d62a0, acc essed on 6 July

2023, which speaks to t he increase in violen t crimes, such as murde r committed

by children; See S M lamla ‘Large nu mber of juveniles in pr ison system a cause for

concern’ IOL, 17 June 2021, available at https://www.iol.co.za/capeargus/news/large-

number-of-juveniles-in-sa-prison-system-a-cause-for-concern-edfee2e9-f113-4d53-

890d- 4d93c36df417, accessed on 27 November 2023, which provides a di scussion

on the existing ju venile prisons det aining child ren who have conicted wit h the

law for various crim inal offences. Th is article also r efers to suitable rehabil itation

strategies for thi s vulnerable group. See to M Nganga ‘Concern over chi ldren being

entangled in the li fe of crime grows’ IOL, 24 S eptember 2022, avai lable at http s://

www.iol.co.za/weekend-argus/news/concern-over-children-being-entangled-in-

the-life-of-crime -grows-ade45650-c39b- 4f6a-9fb6 -fe0dba869d2f, accessed on

27November 2023, which highl ights several Schedule 3-related of fences committed

by children in So uth Africa.

4 Refer to P Hoosen, S Adams, H Ti liouine and S Savahl ‘Youth and adole scents’

perceptions on violence i n post-apartheid S outh Africa: A sy stematic review of

the literature, w hich speaks to the hi storical exposu re to violence in South Af rica

which has consistent neg ative impacts on all a reas of the child’s li fe’ (2022) 15

Child Indicators Res 8 85–911; see A Meulenberg ‘Cri me statistics on viole nce

against chi ldren in SA are nothi ng short of horric ’ Daily Maverick, 2 June 2022 ,

available at https://www.dailymav erick.co.za/article/2022- 06-02-cr ime-statistic s-

on-violence-against- children-in-sa-ar e-nothing-short-of-horr ic/, accessed on

2 SACJ . (2024) 1

https://doi.org/10.47348/SACJ/v37/i1a1

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