The business of child justice

• Jurisdiction: South Africa
• Date: 15 August 2019
• Citation: 2003 Acta Juridica 175
• Author: Julia Sloth-Nielsen
• Published date: 15 August 2019
• Pages: 175-193

The business of child justice

JULIA SLOTH–NIELSEN*

University of the Western Cape

I INTRODUCTION

The Child Justice Bill

1

will, when enacted, provide legislatively for a

separate juvenile justice system for South Africa. Although non-govern-

mental organisations can be regarded as having provided the impetus for

law reform in the f‌irst half of the 1990s,

2

the formal law reform process

commenced at the end of 1996 with the appointment of a project

committee of the South African Law Commission briefed to undertake

the investigation. The law commission produced three documents during

the life span of the project committee: an Issue Paper, a Discussion Paper

and Draft Bill and the Report on Juvenile Justice,

3

which also contained a

more polished version of the proposed new statute. The Child Justice

Bill, which was introduced into parliament on 13 August 2002, was

debated in 2003.

During the law reform process, several articles which prof‌iled the

salient themes of the envisaged system were published, both within South

Africa and in international journals.

4

The writers of many of these

publications were members of the South African Law Commission

Project Committee that drafted the Report on Juvenile Justice. The

present author, too, was part of that process.

Chief‌ly, existing documents point to three distinctive characteristics of

the draft legislation.

5

First, they highlight the importance of restorative

*BA LLB (Stell) LLM (Cape Town),LLD (Western Cape), Professor of Law, University of

the WesternCape. I would like to thank A Skelton, B van Heerden, D Trollip and L Muntingh

for useful suggestions and comments on various drafts of this chapter.

1

Bill 49 of 2002.

2

See for an overview of this process, J Sloth-Nielsen ‘The role of international law in

juvenile justice reform in South Africa’ unpublished LLD Thesis, University of the Western

Cape 2001.

3

South African Law Commission Issue Paper No 9, Project 106 (1996), Discussion Paper

No 79 Project 106 (1998) and Report on Juvenile Justice (2000).

4

A Skelton ‘Developing a juvenile justice system for South Africa: International

instruments and restorative justice’ in R Keightley Children’s Rights (1996); P Singh ‘Juvenile

justice and constitutionalism’ (1995) 58 THRHR 297; A Skelton ‘Juvenile justice reform:

Children’s rights and responsibilities versus crime control’ in C J Davel Children’s Rights in a

Transitional Society (1999); J Sloth-Nielsen ‘The juvenile justice law reform process in South

Africa: Can a children’s rights approach carry the day?’(1999) 18 Quinnipiac Law Review 469; A

Skelton and C Franks ‘Conferencing in South Africa: Returning to our future’in A Morris and

G Maxwell Restorative justice for juveniles: Conferencing, mediation and circles (2001) 103–19; A

Skelton ‘Restorative justice as a framework for juvenile justice reform: A South African

perspective’ (2002) 42(3) British Journalof Criminology 496–513.

5

E van der Spuy and W Schärf ‘The politics of youth crime and justice in South Africa’ in

Blackwells Companion to Criminology (forthcoming 2003).

175

2003 Acta Juridica 175

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justice principles which f‌lavour the Bill’s provisions, especially in relation

to diversion, sentencing, and the overall objectives of the Bill as a whole.

Secondly, they relay how the international legal principles contained in

the United Nations Convention on the Rights of the Child, the Beijing

Rules and the Standard Minimum Rules for Juveniles Deprived of their

Liberty have been translated into domestic legal rules via both the

Constitution of the Republic of South Africa and, more pertinently,

encapsulated directly in many provisions of the Bill.

Thirdly, they outline the novel attempt made in the Bill to regulate and

provide a framework for diversion. Diversion of young offenders from

criminal courts into a variety of programmes is now well-established

practice, especially in many larger urban courts. Hitherto, diversion

occurred at the discretion of the prosecution, although there have been

initiatives within the prosecutorial service to develop guidelines on

diversion for use by lower court prosecutors, and one or two case reports

regarding diversion have seen the light of day. Centrally, the Bill devotes

an entire chapter to the regulation of diversion, establishing the principle

that diversion must at least be considered in each case before the matter

proceeds to trial. In addition, diversion is provided for on a series of levels,

indicating that more intensive programmes should be reserved for more

complex cases. A signal feature, too, is the inclusion of a range of new

diversion options, designed to supplement and extend the list of

possibilities presently available.

‘Corporatism’and ‘managerialism’as ‘theories’of youth justice brief‌ly

featured in the late 1980s in British criminological theory,

6

and appear, to

a certain extent, to have re-entered the debates recently. The corporatist

analysis points to an approach –at least in British literature –which is

based on multi-agency interaction by social services, probation, the

voluntary services, the police and Crown prosecution service to decrease

the number of individuals channeled into the most intensive parts of the

juvenile justice network.

Those espousing corporatism held that youth justice was characterised

by ever greater administrative decision-making, greater sentencing

diversity, growing decentralisation of authority, increasing involvement

of non-juridical and voluntary sector agencies, and, in contrast to this,

high levels of containment and control in sentencing programmes where

youth were convicted of more serious offences. The aims of the

corporatist juvenile justice system were depicted as striving to achieve the

most effective and eff‌icient way of managing delinquency.

6

J Pratt ‘Corporation: The third model of juvenile justice’(1989) 29 British Journal of

Criminology 236–59 f‌irst introduced this theory (perhaps better depicted as a descriptive

assessment of policy and practice) based on a huge growth in police cautioning practices, which

had become the most prevalent sanction administered to juvenile offenders.

176 CRIMINAL JUSTICE IN A NEW SOCIETY

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