The CRC in South Africa 15 years on: does the new Child Justice Act 75 of 2008 comply with international children’s rights instruments?
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Date
2011
Authors
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Journal ISSN
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Publisher
Queens University, Belfast School of Law
Abstract
Article 40 of the United Nations Convention on the Rights of the Child1 requires states parties to take
appropriate measures to ensure that children accused of committing offences are treated in a manner that
would ensure that their best interests are upheld. South Africa2 ratified the CRC in 1995, the provisions
of which have influenced the children’s rights clause in its 1996 Constitution. Section 28(1)(g) of the
Constitution stipulates that children may not be detained, except as a measure of last resort and, should
they be detained, it should be for the shortest appropriate period of time. Section 28(1)(g) goes further to
give domestic effect to the following guarantees stipulated in Article 40 of the CRC: (1) the right to be
treated in a manner, and kept in conditions, that take account of the child’s age; and (2) to have a legal
practitioner assigned to the child. Recently, SA has enacted its Child Justice Act 75 of 2008, which came
into operation on 1 April 2010. The question to be covered in this article is whether this Act truly complies
with the international standards set by the CRC (15 years after SA ratified it); the general comments by
the United Nations Committee on the Rights of the Child 3 and other non-binding, yet persuasive
instruments like the Standard Minimum Rules on the Administration of Juvenile Justice and the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty. This article only examines four
aspects of the Child Justice Act, being: criminal capacity; pretrial release and detention; diversion; and
sentencing. It concludes that, but for a few technical aspects of the Child Justice Act, SA took significant
steps to comply with its international obligations when it domesticated the CRC in relation to children who
commit offences.
Description
Keywords
Child justice, South Africa, Child Justice Act 75 of 2008, Diversion, Criminal procedure, Criminal law
Citation
Wakefield, L. (2011). The CRC in South Africa 15 years on: does the new Child Justice Act 75 of 2008 comply with international children’s rights instruments? Northern Ireland Legal Quarterly, 62(2):167–82