The criminal capacity of child offenders in South Africa revisited

Abstract

Criminal capacity concerns the ability of individuals to understand the implications of their actions related to the commission of an offence. The consideration of criminal capacity for children, however, is determined by their age. The minimum age of criminal capacity of a child in South Africa is currently at ten years and as provided for by Section 8 of the Child Justice Act it must be reviewed within five years of commencement of the Act. Since the coming into operation of the Child Justice Act in April 2010, the necessary information required for the review of the minimum age of criminal capacity has not yet been gathered completely. The Committee on the Rights of the Child (the United Nations Committee responsible for monitoring the implementation of the UNCRC) then decided on conducting a workshop on criminal capacity with the prospect of viewing the diverse debates put forward regarding the minimum age of criminal responsibility. It also aimed to contemplate the hurdles faced during evaluation of criminal capacity, to deliberate on solutions and the authority responsibility for conducting evaluations of criminal capacity of children in instances where rebuttable presumption was concerned. This was done so as to minimize the inconsistencies between State parties around the issue and to raise international standards. The aim of this study is to determine whether the time has come for South Africa to review its current practice/standards on the age of criminal capacity hence the research question: To what extent are the laws relating to the criminal capacity of child offenders in South Africa, aligned with international standards?