The detention of sentenced juveniles

Abstract

This study examines the various factors that the courts need to take into consideration before placing a sentenced juvenile. These factors will be discussed within the scope of the Constitution and other legislation in the context of the provision that detention should be considered only as a measure of last resort. Section 28(1)(g) of the Constitution provides that every child has the right not to be detained except as a measure of last resort. If the detention of a child is then deemed to be the only suitable punishment, such detention may be for only the shortest appropriate period of time. The Children's Act was created to give effect to certain rights of children as contained in the Constitution and to set out principles relating to the care and protection of children. One of the most important provisions in the Children's Act is the best interests of the child principle. This confirms the provision in the Constitution that a child's best interests are of paramount importance in every matter concerning the child. The CRC, ACRWC, Beijing Rules and Havana Rules were studied as being relevant to this context. The CJA states that when considering the placement of a child in a youth care centre, the age and maturity of the child are factors in need of consideration. Legislation also provides for alternative sanctions that should be considered first before detainment. This dissertation, therefore, also examines these sanctions in the context of the principle of restorative justice and the role it plays within the society. The juvenile justice system of the Netherlands was examined in order to determine whether there are any lessons to be learned, for South Africa. It was found that although South Africa has ratified most of the international instruments studied, there are still valuable lessons to be learned with regards to the implementation of children's rights.