According to the Child Justice Act (CJA), a child is someone who is under the age of 18. The CJA is specifically intended for children between the ages 10 and 18. The CJA states that:
- A child under the age of 10 years cannot be arrested! This means that a child under 10 years does not have criminal capacity and cannot be charged or arrested for an offence. In such a case, the child will be referred to the Children’s Court.
- A child older than 10 years but below the ages of 14 years is presumed to lack criminal capacity unless the state proves that he/she has criminal capacity. Such a child can be arrested.
- A child above 14, but under 18 years of age, is said to have criminal capacity and can be arrested.
TYPES OF OFFENCES FOR CHILD JUSTICE APPLICATIONS
The Child Justice Act provides for three different categories of offences:
- Minor offences include theft of property worth not more than R2500, malicious damage to property that is not more than R1500 and common assault.
- More serious offences include theft of property worth more than R2500; robbery, but not robbery with aggravating circumstances; assault that includes causing grievous bodily harm; public violence; culpable homicide; and arson.
- The most serious offences include robbery, rape, murder and kidnapping amongst others.
PROCESS REGARDING THE EXPUNGEMENT OF RECORDS ON CHILD JUSTICE
- Where a court has convicted a child of an offence listed in Schedules 1 or 2, the conviction and sentence fall away as a previous conviction and the criminal record of the child must, subject to certain conditions, be expunged. Provided that the child is not convicted of a similar or more serious offence, the record can be expunged after 5 years has elapsed after the date of conviction in the case of Schedule 1 offences, or after 10 years in the case of Schedule 2 offences.
- If these requirements are met (namely sufficient time has lapsed and no further convictions for similar or more serious offences), the first step would be to process an application to the Director-General: Justice and Constitutional Development to have the record expunged. If there is a dispute about whether a subsequent offence (during the 5 or 10 year period) is ‘similar or more serious’, the Minister of Justice and Constitutional Development will have the final say. The same minister may also, under exceptional circumstances, issue a certificate of expungement prior to the period of 5 or 10 years lapsing, as applicable, and provided the child has complied with the other requirements. The legislation does not specify what constitutes such exceptional circumstances.
SecurityFirst Example Child Justice Expungement Document