Jeff Radebe. Picture: SIYASANGA MBAMBANI
Jeff Radebe. Picture: SIYASANGA MBAMBANI

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THE age at which a child is assumed to know the difference between right and wrong — the minimum age of criminal capacity — could soon be raised by two years, up from the present 10 years of age.

However, regardless of where the minimum age of criminal capacity was set, all accused persons under the age of 18 years would be tried as juveniles.

There has been concern about young children getting involved in gangsterism and adult criminals using young people to assist them in their crimes, such as in gaining access to a property through narrow openings.

In the years leading up to the adoption of the Child Justice Act in 2008, MPs on Parliament’s justice committee debated long and hard about the minimum age at which a child could be accused and tried for a criminal offence.

The committee went for a minimum age of 10 years, with what is known in law as a "rebuttable presumption", raising the minimum age to 14 years if a court failed to prove that a child knew that he or she was committing a crime.

This means that if a child between the ages of 10 and 14 years, who had committed a crime, said he did not know it was a crime and the state was unable to counter that argument, he would be found to have no criminal capacity.

The issue came up again on Monday when Minister in the Presidency Jeff Radebe announced that the Cabinet had approved the submission of the report on the review of the minimum age of criminal capacity, to Parliament. When it was approved, the Child Justice Act ordered that this contentious issue be investigated further.

Mr Radebe said: "The report the recommends that the country adopts the international and regional obligations regarding the minimum age of criminal capacity of children who are in conflict with the law." Responding to a question, he said the mooted age was 12 years.

The director of the Centre for Child Law at the University of Pretoria, Ann Skelton, confirmed that presently, South African law had 10 years of age as the age of criminal capacity with a rebuttable presumption taking it up to 14 years.

"Twelve years of age is good because it is more in line with international practice, but I would hope that the presumption that takes the age up to 14 is retained," Prof Skelton said.

Deputy Justice Minister John Jeffery confirmed that in terms of the report, the age of 12 years was being considered. He said 14 years was the international norm and that 12 years of age was considered the bare minimum.

"The preferred proposal in the report is a minimum age of 12 years but there are four options that go with it, and one of them is a rebuttable presumption that between the ages of 12 and 14 years, a child is presumed not to have criminal capacity unless the reverse is proved in court," Mr Jeffery said.

He said the Child Justice Act provided for children in conflict with the law who did not know that they were committing crimes, to be diverted away from criminal prosecution. If a child between 12 and 14 years of age is to be prosecuted, then the state would have to prove that she knew that what she was doing was a crime.

An impeccable source close to the processing of the Child Justice Act, who declined to be named, said if a minimum of 12 years of age standard were accepted without the presumption, it would be "madness, because it will put more children in prison".

He drew attention to the provisions of the Sexual Offences Act that criminalised children younger than 16 years for statutory rape if they had consensual sex —these provisions had been struck down by the Constitutional Court. He also emphasised that diversion offered a means of keeping children away from criminal prosecution.

African Christian Democratic Party MP Steve Swart said it was a crime for adults to use children to commit crimes, but wondered if any had been caught or prosecuted.