The following article aims to explore the importance of the efficient administration of juvenile diversion in South Africa. It begins by discussing how The Child Justice Bill (the juvenile justice system) was developed, before briefly discussing what diversion is, as well as the aims and purposes of diversion and how it is administered. We have got to acknowledge that recently, SA has seen a drastic increase in the number of juveniles (people under the age of 18) involved in criminal activities. We’ve had the Lotter twins, who conspired to have their parents murdered; to the endless incidents of criminal activities going on at some schools to the ‘samurai sword killer’ and more recently the Jules High School matter. The examples I could give you are endless, but they all infer the same thing; efficient juvenile diversion is becoming more and more important within the South African context.
The need for juvenile diversion was recognised many decades ago, but came into place in 1989 during the United Nations Convention on the Rights of a Child. According to the preamble of this convention, “… childhood is entitled to special care and assistance, convinced that the family; as the fundamental group of society and the natural environment for the growth and well-being of all its members, but children in particular, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community…” The preamble goes on further to state that, “…there are children living in exceptionally difficult conditions and such children need special consideration, taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child…”
54 Articles from the convention go on to describe the U.N.’s standard minimum rules for the administration of Juvenile Justice. It is from these standards that The Child Justice Bill was developed.
Diversion is a manner of disposing a criminal case, other than through normal court proceedings. It usually implies the provisional withdrawal of the charges against the accused, on condition that the accused participates in particular programmes and/or makes reparation to the complainant. Diversion is preferable to the mere withdrawal of cases, as the offender is charged with taking responsibility for his/her actions. This becomes even more important when applying to juveniles, as a sentence that effectively ends the minute a child walks out of court is hardly ever suitable and the offence committed is more likely to be reinforced in the child’s behaviour as no punishment was met.
The aims and purposes of diversion include:
-To encourage the child to be accountable for the harm caused by his or her actions
-To promote an individualised response to the harm caused, which is appropriate to the child’s circumstances and proportionate to the circumstances surrounding the harm caused
-To promote the re-integration of the child into the family and the community
-To provide an opportunity to the person, persons or community affected by the harm caused to express their views regarding the impact of such crime
-To provide an opportunity for reparation
-To identify underlying problems motivating offending behaviour (this is very important in ensuring that the behaviour does not recur)
-To prevent less serious offenders from receiving criminal records and being labelled as criminals, as this may become a self fulfilling prophecy
-To provide educational and rehabilitative programmes to benefit all parties concerned
-To lessen the case load of the formal justice system
-To prevent the stigmatisation of a child which may occur through the exposure to the rigours of the criminal justice system
Some people may argue that diversion is being too lenient and condones the criminal activity undertaken by juveniles. I beg to differ, we have to realise that before criminal proceedings are initiated, criminal capacity is taken into account. Criminal capacity is one’s ability to distinguish between right and wrong and the ability to conduct oneself in accordance with one’s insight into right and wrong. We have to ask ourselves, what criminal capacity is someone under the age of 18 really capable of? Some may argue that it is understandable for children under the age of 10yrs, but those over know exactly what they are doing. Bear in mind that on many occasions a child’s chronological age has no bearing on their developmental age. I want us to remember that traditionally, within the criminal justice system, a probation officer who provides probation services to the court in which the child may appear performs the process of assessment. This assessment is crucial in the establishment of the child’s chronological age; developmental age; the criminal capacity of the child and assessing the suitability of the child for diversion and the conditions for diversion, amongst other things.
In the child justice field, assessment refers to the process of gathering information about a child offender; the circumstances of the child, as well as, the circumstances and facts surrounding the child’s [alleged] criminal activity. The process of assessment continues with developing this information gathering process, an evaluation of the child that gives insight into the development, abilities and situation of the child. This will enable professionals within the criminal justice system to make decisions that are in the best interest of the child; that ensure the safety of the community as a whole and that serve the interests of justice.
Finally, when instituting proceedings it is very important to consider the child’s age; the nature of the crime; the possible benefits of diversion; the possible benefits of prosecution; the views & concerns of the complainant; the interests of the community; the results of any assessment and most importantly, balancing relevant considerations.
Taking all this into account, I believe that juvenile diversion is certainly a necessity, not only for the reasons stated in this article, but because it provides us with a unique tool of shaping up the future of our country and ensuring that those who fall prey to crime, from factors beyond their control; are given a chance at making right, what went wrong. I also believe that it should be taken into account that more often than not, when a juvenile gets involved in criminal activities; it is at times through faulty learning encouraged their whole lives; a failure of all the child’s socialisers in producing a sound support structure and above all, the failure of society in making demands beyond the reach of most and warping better judgement…