Abstract
The Child Justice Act 75 of 2008 establishes a criminal justice system for child accused, separate from the criminal justice system which continues to apply for adult accused in South Africa. The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to the tried and sentenced in child justice courts. Until now there has been little discussion of the details of the provisions dealing with sentencing. Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the “jurisdictional” provision of the new child sentencing system: it not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place. Despite its brevity, section 68 is not without interpretative challenges. Of course, it has to be interpreted within the context of the entire Act. Explaining this context is the first function of this article. The various aspects of section 68 are further critically explored and discussed.
Highlights
Sentences for young offenders[1] have for many decades been at least somewhat more lenient than those for adults.[2]
The Preamble emphasises "the long-term benefits of a less rigid criminal justice process that suits the needs of children in conflict with the law in appropriate cases." It acknowledges that there are resource and other constraints in South African society, which might require an incremental implementation of the reformed juvenile justice system
There is abundant evidence that the deeper child offenders get involved in the formal criminal justice system, the better the chances are that, as adults, they will end up living a life of crime.[62]
Summary
Nowadays, when reference is made in legislation to "a child", it is not unfair to assume that it refers to a person under the age of 18 years. The problem is this: offenders who committed their crimes as children might no longer be children by the time they appear in the child justice court for trial and sentence. This problem is acute in South Africa, where criminal cases can take years to complete, and where there are many examples of child offenders who are sentenced long after they had committed their crimes.[96]. 101 In terms of the proposals in SA Law Commission Report para 3.6 the juvenile justice legislation would have applied to all persons who were children at the time of the offence. For a brief exposition of the position in Ghana, see Ame 2011 Int'l J Children's Rts 274-275
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