Monitoring Children In Conflict With The Law

CHAPTER 16

Monitoring children in conflict with the lawLukas Muntingh

Introduction: objectives and scopeThe South African criminal justice system is notorious for violations of children’srights. During apartheid thousands of children were detained without trial. Manywere tortured and otherwise abused by the security and criminal justice systems(McLachlan, 1983; Dawes, 1994; Reynolds & Dawes, 1999). Juveniles were frequentlysentenced to whippings for a variety of offences (McLachlan, 1983).

In the post-apartheid period, problems in the correctional system remain (Children’sRights Project, 1997). Media reports have highlighted violations of children incustody. For example, Grootvlei Prison warders were found to have been complicitin trading children for sex with adult prisoners (Sekhonyane, 2002). Anotherexample is the ten children that died in state custody between January 1999 and 30 April 2000 (Muntingh, 2003).

However, it can safely be assumed that most children who enter the justice systemare already vulnerable. By the time a child is arrested, a number of risk factors arelikely to have been present in the child’s life. Arrest is therefore often an indicator offamily, social and economic support systems which have failed the child, and inSouth Africa it is predominantly poor (and black) children who come into conflictwith the law.

The purpose of this chapter is to develop indicators which enable monitoring ofwhat happens to children in the criminal justice system, rather than monitoring whychildren come into conflict with the law. In addition, it focuses on monitoringcompliance with broad policy statements that can be traced back to the UnitedNations Convention on the Rights of the Child (CRC – see Appendix 1 in thisvolume) and on monitoring child outcomes, rather than on the outputs of theapplicable system(s).

The chapter does not cover the implementation of particular child justice legislation(such as the envisaged Child Justice Act1), save for where the legislation or outputsrelate directly to or are of critical value in determining the outcomes of children inconflict with the law, as in the case of the rule requiring assessment of the childwithin 48 hours of arrest.

Like other sectors, the South African criminal justice system is characterised bysubstantial information gaps, and where they exist, data are often collected andmanaged in a manner that does not facilitate communication with other

child protection domain • 329

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information systems. Effective monitoring is reliant on high-quality, accurate andaccessible information that feeds into an accountability mechanism with a clear andcomprehensive mandate supported by the resources required to exercise thatmandate. Systematic information collection by means of reliable and valid indicatorswould facilitate addressing systemic problems, and would prevent isolated and unco-ordinated responses to individual incidents.

Rationale

A rights-based approach to monitoring children (under 18) in conflict with the law

Two critical points relate to monitoring the rights of children in conflict with thelaw. First, is the state accepting its responsibility towards protecting the rights ofchildren who have come into conflict with law? Second, is this protection (services,legislation, policies and implementation thereof) of an acceptable standard?

State Parties are obliged to create a facilitative environment for compliance with the CRC, with specific reference to i) overall obligations (see Article 3 of the CRC),ii) reporting duties (see Article 44 of the CRC), and iii) legislative and policyframework (see Article 4 of the CRC). State Parties to the CRC have a number ofbroad obligations to adhere to which create a particular framework for treating anddealing with children, including children in conflict with the law. In the criminaljustice context, this means that children need to be afforded special protection andthat reintegration (see Article 39 of the CRC) should be the overall purpose ofservices aimed at children in conflict with the law. This also relates to the reportingof State Parties in terms of the CRC.

South African constitutional and other legal provisionsThe CRC articulates a set of principles aimed at protecting children against variousforms of victimisation, discrimination, marginalisation and exclusion. The criminaljustice system sets a particular context for these rights to be protected in – a contextthat in most instances works against the best interests and well-being of the child.

The CRC deals specifically with children in conflict with the law in three articles,namely 37, 39 and 40. Article 37 affords protection against torture, and cruel,inhuman and degrading treatment; Article 39 focuses on rehabilitation andreintegration; and Article 40 on the administration of juvenile justice.2 Someadditional and supporting provisions are made in other articles (including thefoundation principles covered in Chapter 2 of this volume), but the rights directlyrelevant to children in conflict with the law are dealt with in the threeaforementioned articles.

When considering the rights of children in conflict with the law, it soon becomesapparent that there is a fair amount of overlap between the different internationalinstruments, and that all statements and policies can be traced back to a limitednumber of core values underpinning the CRC. Attempts to develop indicators formonitoring these broad-spectrum core values would not be useful, as indicators

330 • monitoring child well-being

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need to be specific, quantifiable and supported by qualitative statements. Further-more, the value of indicators lies in their connectedness to a system of accountabilityrelating to a course of action (Saporiti, 1996).

Figure 16.1 illustrates the overall architecture as it applies to the rights of children inconflict with the law.

The CRC, in articles 37, 39 and 40, sets the foundation for other instruments.The African Charter on the Rights and Welfare of the Child (see Appendix 3)corresponds in many instances directly with the CRC. The UN Convention AgainstTorture (UNCAT) protects persons suspected of a crime and those alreadyconvicted, from torture and inhumane and degrading treatment or punishment. Arecent addition in 2002 is the Optional Protocol to the Convention Against Torture(OPCAT), which provides for national and international visiting mechanisms tofacilities where people are detained.3 Over the years, a range of instruments(standards, guidelines and bodies of principle) has been developed. They providefurther clarity on the rights of children in the criminal justice system, as well aspreventing their entry into the criminal justice system. These include:


Figure 16.1 Overview of child rights architecture

Criminal Procedure

Act

Child Justice Bill

Probation Services

Amendment Act

Children’s Act (No. 38 of 2005),

and Children’sAmendment Bill(No. 19 of 2006)

SA Constitutions. 28 and 35

DCS Regulations

Regulations

UNCRCs. 37 and 40

African Charters. 5, 16, 17, 25

SA Constitutions. 28 and 35

UN Convention

• Beijing Rules• Standard Minimum Rules for the

Treatment of Prisoners• Tokyo Rules• UN Rules for the Protection of

Juveniles Deprived of their Liberty• Guidelines for action on children

in the criminal justice system• Body of principles for the

protection of all persons under anyform of detention or imprisonment

• Riyadh Guidelines

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• UN Convention Against Torture and Other Cruel, Inhuman and DegradingTreatment or Punishment;

• UN Standard Minimum Rules for the Administration of Juvenile Justice (BeijingRules);

• Standard Minimum Rules for the Treatment of Prisoners;• UN Standard Minimum Rules for Non-custodial Measures (Tokyo Rules);• UN Rules for the Protection of Juveniles Deprived of their Liberty;• Guidelines for Action on Children in the Criminal Justice System;• Body of Principles for the Protection of all Persons under any form of Detention

or Imprisonment;• UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines).

The South African Constitution (Act No. 108 of 1996), in sections 28 and 35respectively, describes the rights of children as well as the rights of arrested, detainedand accused persons. Three core pieces of legislation currently regulate the situationof children in conflict with the law. These are the Correctional Services Act (No. 111of 1998) (CSA),4 the Criminal Procedure Act (No. 51 of 1977) (CPA) and theProbation Services Amendment Act (No. 35 of 2002). There were also one Act andtwo Bills before Parliament at the time of writing (November 2006) which will havea significant impact on the situation of children in conflict with the law, once theyare enacted. The most significant is the Child Justice Bill (No. 49 of 2002) (CJB),5

which establishes a criminal justice process for children in conflict with the law.The Children’s Act (No. 38 of 2005) and the associated Children’s Amendment Bill(No. 19 of 2006) aim to define the rights and responsibilities of children, and is anattempt to consolidate the legislation relating to children.

A guide to applying the CRC is provided by Hodgkin and Newell (2002). Their workprovides checklists to assist State Parties and civil society in the monitoring process.These checklists do, however, remain subject to effective indicator development.They also provide detailed discussions of each article.

Priority areas for monitoringThe criminal justice system is dynamic. Its functioning is dependent on the decisions madeby officials. The decision to release a child to his or her caregivers, or to detain him or her,has important consequences for the child’s development. The availability of information toinform decisions is critical in preventing the child from moving ‘deeper into the system’.The criminal justice system is not set up to deal with individual characteristics and needs,but with cases in terms of strict rules: one action opens up a new, but limited, set of rigidoptions. Furthermore, once a decision has been made and implemented, it is difficult toreverse. The power to reverse decisions does not lie with the accused.

The first step towards managing the risks posed by the criminal justice system toyoung offenders is the development and implementation of legislation and policythat deal exclusively with children in conflict with the law, as required in Article 4 ofthe CRC and Beijing Rule 2.3. If such legislation and policy are absent, it means thatchildren will either be dealt with in the same manner as adults or, through a processof unco-ordinated legislation and procedure, children will ‘fall through the cracks’ ofthe system, as has been the situation in South Africa for many years.


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There are specific steps or stages in the criminal justice system which need to bemanaged and, thus, monitored closely. The first is arrest. The moment a child isarrested, they engage in a relationship which is unequal in power and which placestheir well-being at risk. The CRC and other instruments such as the Child Justice Bill (CJB) clearly discourage arrest, as the worst child rights abuses often occur inthe stage directly after arrest prior to the child’s first appearance in court (if there isa first appearance) (UNICEF ICDC, 1998). Torture, poor holding facilities, denial of access to family and services are some of the common abuses at this stage. For acomprehensive description of children in South Africa’s prisons see Children’s RightsProject (1997), European Convention for the Prevention of Torture and Inhuman orDegrading Treatment or Punishment (CPT, 2004) and South African Police Services(SAPS, n.d.).

The CRC and other instruments repeatedly urge State Parties to use detention as ameasure of last resort, and encourage the use of alternatives (Beijing Rules, Rule10.2; Tokyo Rules, Rule 6). A child justice system which discourages detention is thusnot one which is lenient or ‘soft on crime’, but rather one which is in compliancewith key children’s rights instruments. Child justice systems which discouragedetention aim to avoid the involvement of the formal court system and purelypunitive responses wherever possible, and give special importance to constructivecommunity-based solutions (UNICEF ICDC, 1998). Research has shown thatdeterrence or punitive interventions may increase antisocial and offendingbehaviour, while residential settings diminish the positive effects of otherwiseappropriate interventions, and enhance the weak or negative effects of inappropriateinterventions (Andrews et al., 1990; Lipsey & Wilson, 1993; Lipsey, 1995; McGuire & Priestley, 1995). Alternatives to detention, particularly community-basedinterventions which target multiple aspects or contexts of the child’s life (forexample family, peers), are most effective in encouraging behavioural change andreducing offending behaviour (Lösel, 1993; Mulvey et al., 1993; McGuire & Priestley,1995; Rutter et al., 1998). As such, non-custodial interventions tend to fosterintegration rather than alienation.

In what follows, indicators6 for monitoring the situation of children in conflict withthe law are presented accompanied by a short description, unless the indicator isself-explanatory. Seven classifications (six refer to stages of the justice process) areused to group the indicators that are discussed below and summarised in the tablesin Part 2 of this volume:• Indicators for monitoring the legislative and policy environment and for

multiple stages of the justice system;• Indicators for monitoring arrest, including detention, release to appear, and

assessment prior to first appearance;• Indicators for monitoring children awaiting trial in custody post first court

appearance;• Indicators for monitoring diversion and diversion programmes;• Indicators for monitoring the trial;• Indicators for monitoring sentencing and sentenced children;• Indicators for monitoring reintegration.


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Indicators for monitoring the legislative and policy environment and for multiple stages of the justice system

Indicators in this section are categorised according to the typical stages of thecriminal justice process, for example, arrest, diversion, trial, and sentencing. Thereare, however, a number that apply to most, if not all, stages of the process. Instead ofrepeating these in the following sections in each discussion, they are presented hereas a consolidated set. Indicators for monitoring the state’s overall obligations and thelegislative and policy environment are also presented below.

Type 5 indicator: Service quality

The South African country report to the CRC is comprehensive and complies withreporting requirements regarding child justice (CRC 3.1).7

An assessment of the comprehensiveness of the State Party report can be done by means of a comparison of the subsequent shadow reports submitted by non-governmental organisations in that country, as well as by referring to comments of the committee on previous reports. The country report requires a substantialamount of research in preparation, but this should also be followed with an equallyrigorous verification and monitoring process from one report to the next. The‘comprehensiveness’ and standard of the country report is in itself an indicator ofgovernment’s commitment to compliance with the CRC. The extent to which acountry report complies with the General Guidelines is therefore an indicator of its‘comprehensiveness’.

The data required from State Parties in relation to articles 37 and 40 are as follows:8

• Alternatives to deprivation of liberty, frequency with which they are used, anddisaggregated data on the children concerned;

• Disaggregated data on all children deprived of their liberty – unlawfully,arbitrarily and within the law – and on the reasons for, and period of,deprivation of liberty;

• Details of cases concerning children who have been deprived of their liberty,including the percentage of cases in which legal or other assistance has beenprovided, and in which the legality of the deprivation of liberty has beenchallenged before an appropriate authority, together with the results of suchchallenges (paragraphs 139, 141 and 145);

• Disaggregated data on the children alleged as, accused of, or recognised as havinginfringed the penal law, inter alia by age, gender, region, rural/urban area,national, social and ethnic origin, offence and disposition (paragraph 137).


An integrated legislative framework regulating children in the criminal justice systemis in place (CRC 3.2, 4, 40.3, 40.4).

The existence of comprehensive legislation dealing with all children’s issues is key toprotecting the rights of children, particularly in the criminal justice system, wherechildren are vulnerable to rights violations. This has been an accepted principle sincethe late nineteenth century in western legal systems, with the first juvenile justicesystem being introduced in Illinois in 1899 (UNICEF ICDC, 1998). The internationalinstruments listed earlier in the chapter go a long way in assisting State Parties in


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formulating legislation and policy that are in line with the CRC. The key issue,however, is the existence of legislation describing the procedures, processes, rules,rights and obligations applicable to children in conflict with the law, and those whodeal with these children. In South Africa, many of the ills suffered by children in thecriminal justice system can be traced back to the absence of appropriate legislationor to poorly formulated legislation.

There are a number of ways in which the existence of an integrative legislativeframework can be assessed, including:

Number of judgements and comments against the provisions of the Child Justice Act/Bill (CJB 2(a))

The Constitutional Court performs a vital function in terms of testing legislationagainst the Constitution, and employs international instruments as well asinternational case law to support its judgements. It was indeed the ConstitutionalCourt that outlawed corporal punishment in S v. Williams in 1995,9 aligning SouthAfrican legislation and practice with the Bill of Rights (see Appendix 2 in thisvolume) and the CRC. The CJB, when enacted, will need to survive constitutionalscrutiny. Rulings against the envisaged Act will indicate whether or not it complieswith the Constitution, and ultimately the CRC.

The South African legal system further makes provision for the Supreme Court ofAppeal and the high court to comment on, and issue orders relating to, the state’sfailure to provide adequately for children in the criminal justice system.

Existence of specialised courts and procedures for children (CRC 40.2(b))

The CRC deals with the requirement for specialised courts10 for children in Article40.2(b). Their existence improves the situation of children in conflict with the lawfor a number of reasons.

First, specialised personnel are required who are familiar with children’s rights,the reasons why children come into conflict with the law, and what constitutesappropriate responses to such children. The United Nations Children’s Fund(UNICEF) Indicators for Juvenile Justice (see Appendix 8 in this volume) requirethat the availability of specialised staff be expressed as a per 1 000 ratio of arrestedchildren for the following categories of personnel: judges, lawyers, prosecutors,police and social workers (probation officers) (Skelton, 2004).

Second, the existence of specialised courts gives true expression to the right ofchildren within the criminal justice system to special protection, as outlined inArticle 3.2 of the CRC.

Compliance with specialised procedures (CRC 40.2(b))

Article 40.2(b) provides guidelines for ensuring procedural fairness that can bedivided into specific procedural requirements (for example privacy and protection of identity).

It is also necessary to make available information on the compliance of eachjurisdiction with the specialised procedures in terms of domestic legislation. Wherethere is non-compliance, research should establish the reasons and the extent towhich it impacts negatively on children’s rights.

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The number of jurisdictions designated as one-stop child justice centres

This is an important measure because it denotes the ability of the government toprovide accessible, comprehensive and focused services to arrested children. Thecentres are of particular significance in areas where substantial numbers of childrenare arrested, such as urban areas.

The existence of requirements in policy and legislation to ensure that services are of anacceptable quality (for example accreditation, licensing) (CRC 3)

It is not enough that the state merely accepts its responsibility for children; it also has aquality control function in the execution of these responsibilities. The absence ofstandards, accreditation and licensing creates enormous risks for children, especially inthe criminal justice environment where an element of coercion is omnipresent. Eventsover the last five years at the Noupoort Christian Care Centre in the Northern Capebear testimony to this.11 The CJB accepted this principle from the CRC, and in Section49 it outlines the requirements for diversion programmes, placing the duty ofaccreditation with the director-general of the Department of Social Development(DoSD). The Correctional Services Act also makes reference to the treatment ofchildren in conflict with the law as it relates to support services, diet, notification ofcaregivers and so forth. This measure therefore aims firstly to identify gaps in standardsetting, and secondly to assess the quality of existing standards and the requirements tomeet these standards. An accountability mechanism (such as accreditation and licensingas well as inspections) should form an integral part of any service quality standards.


The existence of a body or bodies responsible for overseeing the services to children(CRC 3).

A body overseeing services to children in the criminal justice and related systems iskey to ensuring that:• Children receive services that are of the appropriate quality;• A body of knowledge and research is developed over time to reflect and inform

the local context;• There is an avenue for complaints and grievances with regard to services.

Such a body or bodies would furthermore continue to inform policy and legislation,and generate data on the existence and execution of mandatory and unannouncedvisits by judges and magistrates to facilities where children are detained.


Detention facilities for children are inspected at least once per annum (Children’sBill, 297).

The Children’s Bill and the Correctional Services Act (through the JudicialInspectorate) make provision for unannounced visits to facilities where children aredetained. The frequency, duration and timing of these visits are important indicatorsof the commitment of oversight bodies to detention conditions which comply withthe legislative requirements. Frequent visits have by now been accepted as an effectivemethod to prevent torture, abuse and ill-treatment of detained persons, and one ofthe key purposes of OPCAT is the establishment of a frequent system of such visits.12


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Revision of the age of criminal capacity to 10 years with a rebuttable presumption oflack of capacity up to 14 years (CRC 40.1, 40.3(a)).

The CRC does not prescribe the age of criminal capacity, but states that it must beincluded in domestic legislation. The Beijing Rules (in Rule 4.1) assist somewhat in this regard, stating that it should be determined with due consideration to theemotional, mental and intellectual maturity of the child. These guidelines do not,however, provide sufficient guidance on this matter, and the age of criminal capacitystill ranges from 7 years (for example South Africa, Ireland and Zimbabwe) to 18 years (for example Belgium, Guatemala, and Uruguay).

The age of criminal capacity has always been a hotly debated issue in jurisprudence,and is likely to continue to be as it has implications for children as a societal group.13

It reflects the way in which a criminal justice system (and society) defines childhoodand crime and, based on these understandings, what constitutes appropriateresponses. As such, age stands central to comprehensive legislation and policies whichdeal with children, as required in terms of Article 3.2 of the CRC. At present, the ageof criminal capacity in South Africa is set at seven years, and the CJB proposesmoving it up to ten years, with a rebuttable presumption of lack of criminal capacityfor the age category 10 to 14 years. These age categories and our understandingthereof determine the decisions made regarding the child after their arrest.


Constitutionality of retroactive legislation (CRC 40.2(a)).

Section 35.3(l) of the Constitution effectively prohibits retroactive legislation, so thisis a relatively easy issue to monitor. The Constitutional Court rulings as referred toabove can be utilised as an additional measure.


Use of the presumption of innocence by courts (CRC 40.2(b)).

Whilst this presumption forms a fundamental principle of the South African legalsystem, it is often tested in practice when children come into conflict with the law.Due process principles are frequently adapted to accommodate the ‘best interests’of the child. This is nowhere more apparent than in the decisions around diversionwhere there is often a considerable amount of pressure (if not coercion) on the childto accept the offer of diversion without the guilt or responsibility of the child beingestablished to a reasonable degree. Whilst this is not an issue which can reasonablybe monitored on a continuous basis, it is justified to periodically conduct researchaddressing this issue to assess how this presumption operates in practice, and issafeguarded.


Assessment of automatic review of custodial sentences for children under 16 years(CRC 40.2(b)).

The South African legal system has a comprehensive apparatus in place in the lowerand higher courts for the appeal of decisions. In the case of children below the age of


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14 years, there is an automatic right of appeal and, consequently, there is no need toapply for leave to appeal.

The CJB in Section 80 states that Chapter 30 of the CPA (which deals with thereview of criminal proceedings in the lower courts) applies to all children convictedin terms of the CJB. In addition, all cases of children below the age of 16 yearsreceiving sentences of imprisonment will be subject to automatic review before ajudge of the high court. Reviewing of decisions is an important component ofdeveloping jurisprudence and is likely to increase in importance once the CJBbecomes law.

Whilst the law makes provision for review, and this has been long established inprinciple and practice in our legal system, the results of this review mechanism, aswell as its consequences for children, need to be monitored. A growing body of caselaw emanating from the new child justice legislation will provide additionalinformation on the review process.


Children contribute to the development of legislation and policy (CRC 12.1).

Measuring children’s participation in decision-making is perhaps one of the mostdifficult requirements to measure. To some extent the requirement is a legislativeand policy requirement as articulated in Article 4 of the CRC in the sense that theremust be provision for input from the child.

An example of this in existing legislation is the provision in Section 18(4)(e) of the Child Care Act (CCA), which stipulates that children over the age often must consent to adoption. Similarly, Section 6 in the Divorce Act makesprovision for input from the child. In addition, the CJB in 32(6), for example,places a duty on the probation officer to encourage the child’s participationduring the assessment.

Indicators designed to assess child participation are lacking and will require research todevelop. The Committee on the Rights of the Child has proposed that states shouldreview the extent of implementation of Article 12, which implies asking children abouttheir experiences and the degree to which they believe that their views are heard andrespected:

The Committee recommends, further, that the State Party undertake a regularreview of the extent to which children’s views are taken into consideration and ofthe impact this has on policy, programme implementation and on childrenthemselves. (cited in Hodgkin & Newell, 2002, p. 167)

Type 1 & 5 indicators: Child status and Service quality

Deaths in the child justice system (CRC 6.1).

Deaths in custody14 are perhaps the crudest indicator of the safety of children whenplaced in the care of the state. Of particular concern are deaths due to unnaturalcauses and sudden upsurges in mortality figures or suicide rates.

The duty of the state is to provide safe custody, as articulated in the relevantlegislation, including the Constitution. All deaths in prison are to be reported to the


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Office of the Inspecting Judge (OIJ),15 and all deaths in police custody must bereported to the Independent Complaints Directorate (ICD) in terms of Section53(8) of the South African Police Service Act (No. 68 of 1995). In addition, the ICDmakes provision for various classes of complaints, and deaths in custody areregarded as Class 1 complaints (the highest priority of complaints which must beinvestigated) (ICD, n.d.). All deaths in facilities operated by the DoSD and theDepartment of Education (DoE) must be reported in terms of the Regulationsaccompanying the CCA. Children serving a sentence of correctional supervision, orwho are released on parole, are covered by the CSA provisions.

A serious shortcoming in current provisions is that there does not appear to be anexplicit legislated duty on places of safety, reform schools and any other secure carefacilities to report deaths of children in custody to a central authority. In addition,there is as yet no system for reporting deaths of children participating in diversionprogrammes. It is essential that the implementation of a reporting system beincorporated into the diversion minimum standards.


Children subject to torture, abuse, cruel and inhuman treatment while in the care ofthe state (UNCAT; CRC 37.1(a), 19.1).

Allegations of torture16 and cruel and inhuman treatment or punishment can bereported to a number of institutions such as the ICD, OIJ, the South African HumanRights Commission (SAHRC), the Public Protector, or the South African PoliceServices (SAPS). The emphasis will be placed here on the ICD and the OIJ,17 as thesebodies have been set up specifically to provide oversight over the police and prisons.The ICD’s complaints classification system regards this type of complaint as a Class3 complaint, which applies to any SAPS member alleged to have committed anoffence,18 or who is allegedly guilty of police misconduct which involves seriousbodily injury resulting in inpatient hospital treatment while an individual is inpolice custody. The complaints lodged with the Independent Prison Visitors systems(IPVs) are recorded electronically and can be traced back to specific institutionswhere children are being held. It is important to monitor trends in complaints ofthis nature, and investigate the resolution of said complaints (Gallinetti, 2004a).

A significant challenge is the reporting of torture in the absence of a legal definition.For the purpose of this indicator the UNCAT definition formulated in 1987 shouldbe used:

For the purposes of this Convention, the term ‘torture’ means any act by whichsevere pain or suffering, whether physical or mental, is intentionally inflicted ona person for such purposes as obtaining from him or a third person informationor a confession, punishing him for an act he or a third person has committed oris suspected of having committed, or intimidating or coercing him or a thirdperson, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent oracquiescence of a public official or other person acting in an official capacity. Itdoes not include pain or suffering arising only from, inherent in or incidental tolawful sanctions.


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It should be noted that bodies like those overseeing prisons and the police do notexist for facilities managed by the DoSD and the DoE. The OPCAT, when signed,would facilitate a visiting mechanism to all detention facilities.

In the absence of a legal definition, it is difficult to investigate and collectinformation on allegations of torture. Efforts should be dedicated to investigatingalleged cases of torture, abuse and maltreatment (CRC 19.1), including the numberof complaints lodged, as this will indicate the state’s willingness and capacity torespond to such allegations. Data from the ICD on Class 3 complaints will providevaluable information, as will complaints lodged with IPVs.

Conviction rates of alleged cases of torture, abuse or maltreatment (CRC 19.1) interms of the envisaged criminalisation of torture legislation, as well as informationfrom the ICD and the OIJ, will indicate the commitment of the state and thejudiciary to protecting the rights of children from individual officials who misusetheir positions of authority.

Type 4 indicator: Service access

Cases reported to the Public Protector, the Commission on Gender Equality (CGE),the SAHRC, the OIJ and any other body resulting from alleged discrimination in thecriminal justice system against a child (CJB 3(g); South African Constitution [SAC]9(3)).

The CGE, ICD, SAHRC and OIJ (through the IPVs) provide children (and theirparents) with four accessible complaints mechanisms, and cases reported to thesebodies therefore provide information on the manner in which children are treated inthe criminal justice system in terms of Section 9(3) of the South AfricanConstitution.19 The national Public Protector can investigate the following:• Improper prejudice suffered by the complainant or another person, for example

as a result of:• abuse of power• unfair, capricious, discourteous or other improper conduct • undue delay• the violation of a human right • any other cause brought about, or decision taken by the authorities

• Maladministration;• Dishonesty or improper dealings with respect to public money;• Improper enrichment;• Receipt of improper advantage.

It is, however, debatable how quickly these bodies, especially the SAHRC, ICD andCGE, can follow up on complaints. On a longitudinal basis, complaints to thesebodies and the results of investigations will provide important information on thesituation of children in the criminal justice system. It has also been reported thatwhilst there are multiple reporting bodies provided for in the Constitution and thatthey are indeed reporting as mandated, there is no co-ordination of the complaintsbetween the bodies nor are there thorough follow-up mechanisms and proceduresonce a complaint has been lodged with any of the bodies and referred from one toanother (OSF, 2004). This will naturally need to be corrected.


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Children injured in state custody by those responsible for the child (CRC 6.2; SAC28.1(d)).

All persons received into and in police custody that are injured or who havesustained an injury or illness and require medical attention (including hospitalis-ation) are reported as such on the prescribed form, the SAP 70. In addition, the SAP70 is cross-referenced in the SAP 14, which records all persons in police custody at that police station. The SAP 14 records all the relevant biographical details(including age) of the detained person, and as such forms the basis for compliancewith Rule 7.1 of the Standard Minimum Rules for the Treatment of Prisoners. Thisinformation can then with relative ease be collected on a regular basis, especially injurisdictions that have been designated as a one-stop child justice centre (in terms ofSection 84 of the CJB).

In prisons, all new admissions are assessed by a paramedic and a doctor. It is also the duty of the medical staff at prisons to do regular cell visits to enquire aboutprisoners’ health concerns and complaints. Places of safety are regulated by the CCAand the Minimum Standards for the Transformation of the Child and Youth CareSystem. Both these stipulate that serious injuries or illnesses requiring hospitalisationfall under the category of ‘reportable incidents’.


Services provided to children in detention (sentenced and unsentenced in terms ofthe Education Act, Child Care Act and Correctional Services Act [Section 19]).

Facilities offer services which meet the psychological, educational, health, spiritualand recreational needs of children serving custodial sentences (CSA 69(1), 69(2),19.2; CRC 28.1).


Record keeping of arrests and detention of children is in compliance with the UNStandard Minimum Rules for the Treatment of Prisoners (in Rule 7.1 and 7.2), andSouth African regulations.


Capacity of secure and residential facilities to hold children apart from adults, andsegregate genders (CRC 37.1(c); SAC 28.1(h)).

The ability to keep children separate from adults is highly dependent on the capacityof secure and residential facilities to do so. This capacity needs to be monitored on acontinuous basis, and should include assessments of whether children are beingdetained in overcrowded conditions.

Detention facilities at police stations are often of an unacceptable nature – smallpolice stations in particular frequently have only two cells (one for males and one forfemales), and therefore have no capacity to keep children separate from adults.

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Indicators for monitoring arrest, including detention, release to appear,and assessment prior to first appearance

Based on the international instruments and domestic legislation, the followingsummarises the policy position on arrest, assessment and referral. Where arrest isnecessitated by the crime and circumstances, the actions of the police need to beclosely monitored against well-defined standards and procedures. Arrest should assoon as possible be followed by an assessment of the child by a suitably qualifiedperson (such as a probation officer) who is required to gather information on thepersonal, social and familial circumstances of the child, so as to inform the decisionsmade by relevant criminal justice officials, and ensure that they are in the bestinterests of the child. Decisions should be guided by following the least restrictivemeasures, minimising exposure to the hardships of the criminal justice system anddue process. The proposed mechanism is the preliminary inquiry (Section 38 of theCJB), which is an informal, pre-trial procedure of an inquisitorial nature with thepurpose of directing matters away from the formal court procedures.

The emphasis in this section is on the police and their conduct. Although notresponsible for it, the police play an important role in ensuring that the assessmenttakes place on time.

Type 1 indicator: Child status

Children arrested (CRC 40.1).

The number of children arrested in a jurisdiction is the primary indicator of thenumber of children entering the criminal justice process. As such, all subsequentsteps and measures are measured against the number of children that were arrested.At a minimum, it is required to establish accurately the number of children arrested,stratified by age, in a particular jurisdiction over a particular period of time.Additional variables can be added depending on the quality and reliability of databeing collected, such as time and date of arrest, race, gender, language, and so on. Itis the duty of the police to record all arrests on the Case Administration System, andrecords should therefore be available from that source.

Section 6.1 of the CJB prohibits the arrest of a child who is under the age of tenyears, and further instructs the police official concerned to take the child home or toa placement facility, and inform a probation officer within 48 hours. The age issue is therefore significant not only when it comes to trial, as it pertains to criminalcapacity, but also at the first stage of arrest. The number of children arrested who arefound to be under the age of ten years then becomes a significant indicator as tohow the police apply the legislation. Even in the absence of Section 6.1, the numberof children aged ten years or younger who are arrested is also significant, as it reflectschildren’s position in the criminal justice system.

It is also important to take into account the offence profile (including the categoryof offence/s) of arrested children (CRC 40.1). Children are primarily arrested forproperty offences (theft, shoplifting, damage to property and possession of stolengoods) and victimless crimes (Muntingh, 2003). Children’s involvement in crime, aswell as the types of crimes for which they are arrested, assists us in understandingtrends, and also in understanding society’s perceptions of children and crime.


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Arrests are always subject to policing policy, and as such become a less than reliableindicator of children’s involvement in crime. There is also the informal ‘policy’ ofpolice officers who, in the presence of diversion programmes, tend to ask themisguided question, ‘Why arrest them if nothing is going to happen?’ Despite theseundermining factors, offence profiles of arrested children continue to inform us ofwhat it is that children are arrested for, and whether we agree with the policingpolicies and practices.


Placements of children prior to first appearance (CJB Chapter 4).

Section 16(1)(a)(i) of the CJB makes provision for a child to be released by a policeofficer into the care of their caregiver or another appropriate adult prior to firstcourt appearance. Monitoring the use of this provision will indicate the police’swillingness and ability to limit the child’s exposure to the criminal justice system,as well as the use of detention as a measure of last resort.


Children in detention in police cells for over 48 hours (CRC 9.1).

The reason for collecting this information is self-evident and is already arequirement of SAPS regulations as pertaining to the SAP 14. The number ofchildren in detention in a particular jurisdiction should be further disaggregated in terms of i) the average number of children in detention per week/month/year,ii) date-specific counts, for example at month end or on Mondays, iii) newadmissions to police custody, iv) number of children who have been in custody for less than 48 hours, and v) children in custody for more than one week.


Children are assessed using a standard assessment system prior to the preliminaryinquiry (CJB Chapter 5).

Section 49 of the CJB provides for the establishment of minimum standards fordiversion programmes. The drafters of the standards20 established early on in theresearch process that the effectiveness of diversion programmes is highly dependenton the use of a standardised and comprehensive assessment tool (as required interms of Section 27 of the CJB). The assessment process is key to all the steps thatfollow and, as such, signifies a vital component of a child justice process. Theexistence of and consistent utilisation of the assessment tool is thus a critical featureof a well-functioning child justice system.

From the Probation Services Amendment Act (No. 35 of 2002) – as well as the CJB –it follows that the number of assessments should correspond to the number ofarrests. The number of assessments is usually a reflection of the DoSD’s ability toprovide sufficient capacity to assess the approximately 160 000 children arrestedannually in South Africa (Muntingh, 2003). The purpose of the assessment isdefined as follows in the CJB (Section 27):• To assess whether a child may be in need of care for purposes of referring the

child to a children’s court;• To estimate the age of the child if the age is uncertain;


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• To establish the prospects for diversion of the matter;• To formulate recommendations regarding the release or detention and placement

of the child;• To gather information relating to previous convictions, pending charges, and any

previous participation in diversion; and• In the case of children below the age of ten years, establish what measures need

to be taken.


Timely assessments of arrested children (CJB Chapter 5; Probation ServiceAmendment Act [Act No. 35 of 2002]):• Children assessed within 48 hours;• Children assessed after 48 hours but before 7 days;• Children assessed after 7 days of arrest.

Forty-eight hours is the deadline set in the CJB for attending the preliminaryinquiry, which must be preceded by an assessment of the arrested child. TheProbation Services Amendment Act (in Section 4B) states that the assessment mustbe done before the first court appearance (which must take place within 48 hours ofarrest) but, if not completed, the court may request that it is and postpone the firsthearing for not more than seven days.

Existing figures based on an analysis done in Gauteng province indicate that lessthan one-third of arrested children were assessed (Muntingh, 2003).


Preliminary inquiry outcome (CJB Chapter 8): diversion, prosecution, conversion tochildren’s court inquiry.


Illegal detentions of children (CRC 9.1).

Such detention will in all likelihood only be identified through a review and/orinspection process which finds that the warrant of detention is invalid, or thecircumstances of the arrest were not legal.


Children who are arrested but no further action is taken (arrested children who arenot assessed do not appear in court or before a prosecutor) (CJB Chapter 4).

Arbitrary detention and detention without being charged are serious rights violations.There have been numerous anecdotal reports from various parts of the country thatpolice arrest children and keep them in custody for anything from a few hours up to a couple of days, only to release them without being charged. The internationalinstruments, as well as the domestic legislation, are clear on the prohibition of thispractice. To develop an adequate process flow picture in a specific jurisdiction, and itsadherence to the prescriptions of the CJB, will require sifting through records toidentify the number of arrests, assessments, court appearances and appearances before aprosecutor. This data will additionally point to barriers and breakdowns in the process.


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Children accompanied by parent/guardian at first court appearance (CRC 40.2(b)).

The police have the responsibility to inform the parents/guardian of a child’s arrestand to provide information on the child’s court appearance (date, time, etc.). Theabsence of a parent/guardian can have grave consequences for the child, as it is oftenthe case that magistrates remand such children to custody until the next courtappearance.

Type 1 & 4 indicators: Child status and Service Access

Children at first court appearance with legal representation (CRC 40.2(b)).

Legal representation remains a luxury for most children in conflict with the law,especially at first court appearance. Legal representation at first appearance is,however, critical, especially if a parent or guardian is not present. It is for this reasonthat the CJB in Section 78(1) states that the child may not waive their right to legalrepresentation under certain circumstances. Section 76 of the CJB further placesresponsibility with the legal representative of a child, and compliance with thesespecific obligations will provide further insight into compliance with the rights ofchildren in conflict with the law.


Judicial decisions are informed by the assessments of arrested children (CJB Chapter6 Section 35).

Provision is essentially made for three options:• Referral to a prosecutor;• Referral to a preliminary inquiry;• Referral to a child justice court.


Record keeping of arrests and detention of children (UNSMR 7.1).

The UN Standard Minimum Rules for the Treatment of Prisoners (in Rule 7.1 andRule 7.2) is firm that the authorities must keep clear records on detained persons.21

Poor quality record keeping contributes to children ‘getting lost’ in the system,especially if they are transferred from one police station to another. As referred toabove, the SAPS are obliged to keep records on all persons in their custody in theSAP 14 form.


Children’s experience of their treatment by the police and private security agents.22

Children’s experience of the police is a qualitative indicator; consequently, thisinformation will not be recorded in administrative data capturing systems, orcollected on a continuous basis. This data will in all likelihood require a specificresearch project to collect the relevant information including, for example,information on how the child was apprehended, how the police communicated withthe child, whether the child understood why she or he was being arrested, whetherthe child was assaulted, and so forth.


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Many children are arrested in public spaces that are policed by private securitycompanies, and it is therefore logical that these agents of security will apprehendchildren who are suspected of having committed crimes. Over the years it has alsobecome apparent that it is often not the police, but rather private security agentswho are responsible for some of the worst assaults during arrest.23 In the absence ofa clear oversight mechanism (such as the police’s ICD), private security firms are not as accountable as the police are in this regard. This is a serious gap in oversightarchitecture, and highlights the importance of monitoring children’s experiences ofpolice and private security agents.

Indicators for monitoring children awaiting trial in custody post first court appearance

As previously noted, detention poses a tremendous risk for the rights of children,particularly in the awaiting trial or unsentenced phase, and should therefore beavoided as far as possible. The undefined and transient status of awaiting trial incustody makes it difficult to allocate and sustain services to such detainees. Practicaland logistical problems such as high turnover rates complicate matters, resulting infew or no services being rendered to children awaiting trial. Where such detention isused as a measure of last resort, this needs to be closely monitored to ensure that thechild’s rights are protected. Article 37 of the CRC (as cited in Hodgkin & Newell,2002) states that any detained child should be protected from:• Torture;• Other cruel, inhuman or degrading treatment or punishment;• Capital punishment;• Life imprisonment without possibility of release;• Unlawful or arbitrary deprivation of liberty.

The article sets out conditions for any arrest, detention or imprisonment of thechild, requiring that it is:• In conformity with the law;• Used only as a measure of last resort; and• For the shortest possible time.

Article 37 also requires that detained children:• Are treated with humanity and respect for the inherent dignity of the human

person;• Are treated in a manner which takes into account the needs of a person of

his/her age;• Are separated from adults unless it is considered in the child’s best interest not to

do so;• Maintain contact with his/her family, through correspondence and visits, save in

exceptional circumstances;• Have the right to prompt access to legal and other appropriate assistance;• Have the right to challenge the legality of the deprivation of liberty before a

court or other competent, independent and impartial authority;• Have the right to a prompt decision on such action.

Indicators relevant to this stage of the criminal justice process include:


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Placement of children awaiting trail, and placements of sentenced children (CRC37.1(b), 9.1, 20.1).

Children awaiting trial, and those awaiting deportation, may be detained in places ofsafety, prisons, secure care facilities, immigration centres or police cells, or releasedinto the care of their parents or guardians. It is important to monitor orders for theplacement of awaiting trial and sentenced children because children’s well-being andrights are at risk while in custody.

The trends in the number of children awaiting trial in custody are highly indicativeof the effectiveness and efficiency of the criminal justice system. Data from theDepartment of Correctional Services are readily available, while figures frominstitutions managed by or on behalf of the DoSD are not as accessible. The numberof children detained at deportation centres is also not readily available and steps willneed to be taken to establish a clear process for this.


Detention cycle time of children awaiting trial (CRC 37.1(b)).

The average detention cycle time is the average duration from when an accusedperson is admitted to custody for the first time until that matter is adjudicated(convicted and sentenced or acquitted), and the person is released or transferred to a section for sentenced offenders. This figure varies substantially between districtcourts and regional courts. More serious matters that are heard in regional courtstake longer to adjudicate than those heard in district courts, which deal with lesseroffences. In 2002 the average detention cycle time for district court cases (all agecategories) was estimated to be approximately 100 days, while the average detentioncycle time for regional courts was estimated to be approximately 300 days.24


Children detained awaiting trial in excess of 180 days (CJB 2(d)).

Whilst the Constitution guarantees the right to a speedy trial,25 it provides nodefinition of what a speedy trial is, so it is impossible to ascertain how long a personcan legitimately be detained awaiting trial.26 In the case of children, it is particularlyimportant to deal with matters expeditiously. Six months is regarded as a more thansufficiently long period to deal with a criminal matter involving a child, and childrenremaining in custody longer than six months need to be identified and action needsto be taken.

This indicator serves as a proxy indicator for a range of other services and requirementspertaining to children. Section 342A of the CPA (as amended by the Judicial MattersSecond Amendment Act [No. 55 of 2004]) requires the Director of Public Prosecutionsto submit a detailed report, twice a year, to the Minister of Justice on the awaiting trialpopulation. The minister must in turn submit this report to Parliament.


• Children under the age of 14 years awaiting trial in prison and police cells.• The use of non-custodial measures for children awaiting trial, and the


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effectiveness of non-custodial measures in securing children’s attendance at trial,can be monitored by assessing the proportion of children:• Released into care of parents (CRC 37.1(b));• Released on bail (CRC 37.1(b)) and bail amounts for children (CRC 40.2(b));• Placed under house arrest (CRC 37.1(b));• Placed under Section 62(f) of the CSA (CRC 37.1(b)).

There are a range of options not involving pre-trial detention available to the policeand to the courts, and these need to be monitored on a continuous (monthly) basis,as they provide information on the number of children awaiting trial in custody ineach particular jurisdiction, and point to levels of overcrowding.


Detention facilities for children have educational, health and social services (CSA19.1(a), 19.2; CRC 20.3).

The CSA stipulates in Section 38(2) that only sentenced prisoners with a sentence of longer than 12 months are entitled to a sentence plan. The sections dealing withunsentenced prisoners (46–49) do not make provision for programmes and otherservices to unsentenced prisoners. Thus, most awaiting trial prisons in South Africarender no services to children relating to education and development. However,detained children have a right to services which respond to their social, religious,recreational and psychological needs. In the absence of these services, as is often thecase, children are deprived of their rights to development and protection.

Children’s participation in educational programmes, especially in schooling whenthey are still of school-going age (under 16 years of age), is critical for theirdevelopment. During the often lengthy periods children spend awaiting trial incustody, they should be able to continue with their schooling.

Indicators for monitoring diversion and diversion programmesDiversion should be used as far as possible in order to limit children’s exposure to the risks of the criminal justice system. Article 40(3) of the CRC requires theestablishment of such measures for dealing with children without resorting tojudicial proceedings. Diversion is further encouraged in Rule 11 of the Beijing Rules.Diversion programmes should, however, be of an acceptable standard to ensure thatthe child receives quality services and that their rights are protected. Such standardsare contemplated in Section 49 of the CJB. To this end, standards are beingdeveloped to ensure compliance in terms of service provider requirements, as well as programme outcomes. Diversion programmes should encourage the child to takeresponsibility, build dignity and self-worth, and foster a sense of community andbelonging.


Children diverted from the justice system (for each type).

The diversion of cases at the earliest opportunity is an important indicator of thewillingness, skills and ability of the police and prosecution service to utilise theintended legislation to limit the child’s exposure to the criminal justice system.


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Equity in the diversion system.

Diversion services are accessible to all arrested children without discrimination, asindicated by data disaggregated by age, race, gender, and offence.

The profile of diverted cases in terms of the variables listed above should showwhether or not discrimination or unfair application of existing policies andguidelines is occurring.


Geographical accessibility and type of accredited diversion service providers (CRC40.1; CJB Section 49).

Children’s access to diversion services will be highly dependent on service availabilityin all jurisdictions. The availability of such services and the type of services availablein a specific area will impact on arrested children’s experience of the criminal justicesystem. Diversion services have to date developed mainly in and around urbancentres, and accessibility is a major challenge in rural areas.

The nature of diversion programmes available to children is also significant as theyimpact on the quality of services that the child and their family receive. Whilst sometypes of programmes can be made available and accessible fairly easily, others arehamstrung by limited resources and high caseloads.


Compliance of children with diversion conditions.

The compliance of children with the conditions of diversion is the first measure ofprogramme effectiveness. Although this point can be debated, a high level (80%+) of compliance does indicate that the programme participants show a sufficient levelof commitment to completing the programme. A low level (less than 50%) ofcompliance suggests that the programme may have significant problems, which arecontributing to more than half of diverted cases returning to court for prosecution.Problems may include logistical issues (such as transport to programme sessions), orthe selection of programme participants to specific programmes, or the quality offacilitation.


Compliance with diversion minimum standards in terms of service providers,requirements and programme outcomes (CRC 6.2; CJB Section 49).

Compliance with the overall requirements of the diversion minimum standards willneed to be verified on a regular basis with service providers. The DoSD is chargedwith this responsibility in terms of its licensing and accreditation obligations.


Recommendations for diversion in assessments are accepted by the prosecution service.

The purpose of this indicator is to assess the application of guidelines issued by theNational Prosecuting Authority, as well as the recommendations made by probation


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officers conducting the assessments. Whilst there are no norms to be followed (forexample, 50 per cent of cases should be diverted), data on diversion recommendedcompared to diversion accepted provide information on how the prosecutioninterpret the purpose of diversion and the application of guidelines. This data canfurther be related to offence profiles comparing different jurisdictions.

Indicators for monitoring the trialWhen it is indeed necessary to prosecute a child, the trial must be conducted in amanner which is fair, promotes the participation of the child, and is in accordance with due process principles as outlined in the CRC and the Constitution. The aim is to balance the interests of the child with the interests of justice. To this end, the CJB(Section 57(5)(a–b)) places a duty on the presiding officer to elicit additionalinformation as may be required, to protect the child from such cross-examinationwhich is inappropriate to the age and understanding of the child, and to ensure theprejudicial fairness of the hearing, including preventing undue hostility.


Child-friendly courts are in place, as indicated by the proportion of childrenreceiving legal representation (CRC 37.1(d); CJB 76, 77, 78); receiving requestedinterpretation services (CRC 40.2(b)); and whose hearings are held in camera (CRC 40.2(b); CJB 57(6)).

Very few children appear with legal representation, especially in district courts.Despite many reported flaws and problems related to legal representation, it fulfilsan important function in overseeing the rights and interests of the child, especiallywhen a sentence is being contemplated.

One of the primary measures of the accessibility of the trial is the availability andutilisation of interpretation services. In addition, trial accessibility measures shouldinclude assessments of children’s participation in the proceedings at various stages.


Adjudication results of court cases (CJB chapters 5, 9): acquitted; convicted;Children’s Court Inquiry conversions; diverted.


Decisions overturned due to non-compliance with the constitutional provisions asoutlined in Section 35(3)(a)–(o), 4 and 5.


Children prosecuted in the rebuttable age margins (7–10/10–14) (CRC 40.3(a); CJBChapter 2).

Indicators for monitoring sentencing and sentenced childrenWhen children are convicted by a criminal court, the sanction imposed should beproportionate to the offence, taking into account the age, abilities and maturity of


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the child. The sanction itself should place the emphasis on the reintegration of thechild; consequently, the number of children sentenced to imprisonment is of criticalimportance, as is the length of custodial sentences (Article 37 of CRC).

When custodial sentences are imposed, these should be for the shortest possibleperiod. Article 37 further bars the death penalty, life imprisonment without theoption of parole, and any cruel, inhuman or degrading treatment and/orpunishment.

In Article 4.4, the CRC urges State Parties to have available in the legislation a rangeof dispositions such as care, guidance and supervision orders; counselling;probation; foster care; education and vocational training programmes; and otheralternatives to institutional care to ensure that children are dealt with in a mannerwhich is appropriate to their well-being and proportionate both to theircircumstances and the offence.

The Beijing Rules provide further guidance with regard to the adjudication of casesin Rule 17:• The disposition of the competent authority shall be guided by the following

principles (17.1):(a) The reaction taken shall always be in proportion not only to the

circumstances and the gravity of the offence but also to the circumstancesand the needs of the juvenile as well as to the needs of the society;

(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possibleminimum;

(c) Deprivation of personal liberty shall not be imposed unless the juvenile isadjudicated of a serious act involving violence against another person or ofpersistence in committing other serious offences and unless there is no otherappropriate response;

(d) The well-being of the juvenile shall be the guiding factor in the considerationof her or his case.

• Capital punishment shall not be imposed for any crime committed by juveniles(17.2).

• Juveniles shall not be subject to corporal punishment (17.3).• The competent authority shall have the power to discontinue the proceedings at

any time.


Sentencing practices in the child justice system (CRC 37.1(b)) as assessed bydetermining the proportion of:• Children sentenced to life imprisonment (CRC 37.1(a));• Children receiving prison sentences of longer than 18 years (CRC 37.1(a));• Children sentenced to non-custodial options and profile (CRC 40.4, 9.1).

The significance of age in sentencing practices stems from the S v. Nkosi (2002)27 case– on appeal, Judge Cachalia overturned a life sentence to 18 years imprisonment,stating that ‘despite the peculiar wording of Section 51(3)(b), the legislatureintended children aged between 16 and 18 years of age to be treated more lenientlythan those offenders who have turned 18 and are consequently deemed to be more


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mature’. This leniency was also remarked upon previously in S v. Blaauw (2001)28

by Judge Van Heerden. In S v. Nkosi (2002) there is also an alleged implicitunderstanding that a child should not be sentenced to imprisonment for longer than they have been alive.


Detention of children in prisons is in compliance with the provisions of the CSAand other relevant legislation (CRC 37.1(c)).

Provisions would include whether prisons comply with dietary requirements asset out in the CSA and other regulations (CSA 8.2); complaints laid by childrenagainst state care (see IPVs) (SAC 28.1(d)); and notifications sent to parents andrelevant authorities informing them of the detention of the child (CSA13.6(c)(i)).

The CSA and its accompanying regulations have set down guidelines with regard tothe detention of children, and the services which should be available to them.Compliance with these guidelines reflects legal compliance.


Educational qualification attainment of children in custody (CRC 28.1 [The right toeducation]).

Continued education and support whilst serving a sentence forms the basis formeeting the requirements of Article 40 of the Convention (rights accorded tochildren in trouble with the law). If children serving custodial sentences do nothave access to these services because they are not available due to capacityconstraints, they are deprived of a right to which they would have been entitled as free citizens.


Number of children held in solitary confinement (CSA Section 25).

A reading of the legislation (the CSA) does not reveal a restriction on this form ofpunishment for children. The same legislation in Section 52(2) does, however,require that the penalty of solitary confinement may only be imposed onceconfirmed by the OIJ.


Parents and guardians are informed of detention and transfers of children by theCommissioner of Correctional Services (CSA 13.6(c)(i)).


References in the UNCAT country report to alleged and confirmed cases of tortureand ill-treatment where the victims were children serving custodial sentences (CRC37.1(a)).

The UNCAT country report will provide a valuable resource in addressingallegations of torture and ill-treatment. It also provides an official record ofproblems identified and steps taken to remedy problems.


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• Custodial sentences overturned upon review (CJB Chapter 12).• First time offenders receiving custodial sentences (proportionality) (CJB 3(f)).• Children serving full sentences.• Children released early on parole/correctional supervision.• Facilities where people are detained are subject to inspections at least once per

annum (CB 297).


Detention of children in prisons is in compliance with the provisions of the CSAand relevant legislation (CRC 37.1(c); CSA 8.2, 19).

Sections 8.2 and 19 of the CSA make special mention of children and it isparticularly Section 19 that refers to education and other support services that are ofcritical importance in the reintegration process. The Constitution places a furtherobligation with regard to the detention of children in that it must not be doneexcept as a last resort, in which case, in addition to the rights a child enjoys undersections 12 and 35, the child:• Should be detained only for the shortest period of time;• Has the right to be kept separately from detained persons over the age of 18

years; and • Should be treated in a manner, and kept in conditions, that take account of the

child’s age.


Staff–child ratios in custodial facilities (CRC 39).

Staff–child ratios are an indicator of service quality. The ability to supervise childrenadequately during detention is highly dependent on the availability of qualified staff.Injuries and deaths can often be traced back to children being left unsupervised forextended periods. In the majority of cases of child deaths in custody there is a strongindication that the police or other supervisory staff were not providing adequatecare and supervision, which created opportunities for assaults, suicides and escapes,leading to fatal consequences (Muntingh, 2003).

This is an especially important issue in South African prisons, which function on ashift system involving children being locked up at 3pm and released at 7am thefollowing day. If there are staff shortages during the lock-up period, this can poseserious risks to the welfare of these children.

Indicators which provide information on staff–child ratios should also pay particularattention to the availability of additional support staff such as social workers,psychologists, and educational staff.

Indicators for monitoring reintegrationThe overall purpose of a child justice system is to facilitate the (re)integration ofchildren who have come into conflict with the law, so that they may assume theirposition in society as productive citizens. The UN Rules for the Protection ofJunveniles Deprived of their Liberty (Rule 79) states that:

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All juveniles should benefit from arrangements designed to assist them inreturning to society, family life, education or employment after release.Procedures, including early release, and special courses should be devised to this end.

Rule 80 states:

Competent authorities should provide or ensure services to assist juveniles inreestablishing themselves in society and to lessen prejudice against such juveniles.These services should ensure, to the extent possible, that the juvenile is providedwith suitable residence, employment, clothing and sufficient means to maintainhimself or herself upon release in order to facilitate successful reintegration. Therepresentatives of agencies providing such services should be consulted andshould have access to juveniles while detained, with a view to assisting them intheir return to the community.

In its recommendation to the former Yugoslav Republic of Macedonia, theCommittee on the Rights of the Child was quite specific as to what is required interms of reintegration services:

‘Recognizing the existence of psychological assistance facilities under the auspicesof the Centres for Social Work, the Committee, nevertheless, remains concernedat the absence of measures to provide for the physical and psychological recoveryand reintegration of children who have been the victims of crime, and ofchildren who have participated in judicial proceedings or who have beenconfined in institutions.’ In the light of Article 39 of the CRC, the Committeerecommends that State Parties ‘urgently establish appropriate programmes toprovide for the physical and psychological recovery and reintegration of suchchildren and that these mechanisms be used in the administration of juvenilejustice’. (as cited in Hodgkin & Newell, 2002, p. 167)

To create a comprehensive picture of the factors promoting reintegration wouldrequire a research design that is sensitive to the broad range of circumstances andcharacteristics of ex-offenders which determine individual outcomes. Such researchwould also need to take context and local conditions into account, including riskfactors for recidivism or reoffending, and assess how they compare to internationalfindings (Social Exclusion Unit, 2002).

The overlapping risk factors and problem areas in a child’s life are important focal areas for future research studies, but for the present purposes only thoseindicators which are most feasible (in terms of measurement and data sources) are recommended.


The effectiveness of all services in reintegrating children in conflict with the law.

The primary purpose of all services aimed at children in conflict with the law is to reduce reoffending. The number of children who do not reoffend within areasonable period (18 months) after exiting a custodial facility or diversionprogramme is therefore a key indicator of the success or effectiveness ofrehabilitation services to children in conflict with the law.


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Re-imprisonment of children and young people.

The re-imprisonment of offenders aged between 18 and 20 years who have alreadyserved a term of imprisonment for an offence committed as a child provides a fairlyrobust indicator of the level of reintegration and rehabilitation attained as a result of a custodial sentence served. Whilst arrest and conviction rates may give someindication of reintegration, data of such a nature are very difficult to collect and arenot always reliable.


Compliance of children with non-custodial sentencing options.


Child criminal record expungements executed by the South African Criminal Bureauand the director-general of the DoSD in terms of Section 82(5) and Section 82(6)respectively per year (CJB Chapter 13).

The expungements of records are subject to the offender not being convicted of afurther offence and will give some indication of re-conviction rates.

ConclusionThis chapter has attempted to develop an indicator framework for children inconflict with the law which is based on CRC articles and domestic legislation. Fromthe above discussion, it is clear that the indicator development process, andsubsequent monitoring, will be greatly facilitated by the existence of onecomprehensive legislative and policy framework. This is not yet the case in SouthAfrica, although the CJB will attempt to deal with the administration of child justice,thus setting out the procedures for dealing with children in the criminal justicesystem.

In the development of indicators based on international law it is important to ensurethat indicators are compatible across different jurisdictions. To address this issue,UNICEF convened a meeting in November 2003 in New York with the goal ofdeveloping a very limited set of indicators that would monitor juvenile justice(Skelton, 2004). The set includes nine categories (see Appendix 8 in this volume forthe full list):• Children in detention;• Duration of detention;• Children coming into contact with the juvenile justice system;• Existence of a juvenile justice system;• Separation from adults;• Conditions for control of quality of services for children in detention;• Protection from torture, violence, abuse and exploitation;• Prevention;• Aftercare.


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All UNICEF’s categories are covered in this chapter, barring prevention, which wasbeyond the scope of the chapter since the purpose was to monitor the well-being ofchildren who have already come into conflict with the law.

It is worth noting in conclusion that the indicators developed for the purposes ofthis chapter, particularly the core indicators, were included not only because of theirdesirability, but also with consideration to the feasibility of implementing them.Consequently, the presented indicators are those which are not only necessary, butalso (to a greater or lesser extent) practical because of the availability, accessibility,robustness, and accuracy of data on children in conflict with the law.

The indicators described above are reflected in the tables in Part 2 of this volume. Ina number of instances, the indicators discussed above are blended in the tables inorder to promote clarity and consistency. For example, indicators for quality ofdetention for awaiting trial and sentenced children appear together in the indicatortables. However, as will be noted, the sections in the tables follow the indicatorsection heading in the chapter text.

NotesSee Chapter 2 and Part 2 in this volume for an explanation of the five indicator types used for indicatordesign.

1 An assumption is being made with regard to the Child Justice Bill – it is assumed that only minorchanges will be made to its current content, and that major structural features of the Bill will remainintact, such as diversion and the preliminary inquiry.

2 The term used in the UN literature is ‘juvenile justice’ whereas this term has been replaced in SouthAfrica with the term ‘child justice’. The latter will be used in this chapter except when quoting UNdocuments.

3 The OPCAT has been open for signature since 2003 but, despite expectations, South Africa has notsigned it.

4 Minor changes have been made to the legislation such as an amendment to the 1959 CSA in 1994(Correctional Services Amendment Act [Act No. 17 of 1994]) to change the provisions for thedetention of unsentenced children in prison.

5 The development of the Child Justice Bill was initiated in the 1990s but is yet to be enacted.Consequently, there has been little law reform since 1990 as it pertains to children in conflict with thelaw.

6 The distinction between core and additional indicators is made in the tables in Part 2 of this volumeand not in the body of the text.

7 The relevant section, article or rule of the international instrument or domestic legislation isindicated in brackets throughout the text.

8 General Guidelines regarding the form and contents of periodic reports to be submitted by StateParties under Article 44, paragraph 1(b) of the Convention. CRC/C/58. Adopted by the Committee atits 343rd meeting (thirteenth session) on 11 October 1996 in UNICEF (1999).

9 In S v. Williams in 1995, the Constitutional Court ruled on 9 June 1995 that a sentence of whippingas provided for juvenile sentencing in terms of Section 294 of the Criminal Procedures Act (No. 51 of1997) was unconstitutional and hence unlawful.

10 ‘Court’ may mean any competent authority.

11 The Noupoort Christian Care Centre provides a drug addiction treatment service that concentrateson physical exercise, religion and physical isolation. Other questionable practices have also beenreported from the Noupoort Christian Care Centre. In recent years two ‘patients’ died whilst lockedup in a cell.

12 Article 1 of the OPCAT (2002) states: ‘The objective of the present Protocol is to establish a system ofregular visits undertaken by independent international and national bodies to places where people


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are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degradingtreatment or punishment.’

13 Based on developing case law, the age of criminal capacity is continuously tested and two recent casesreported in Child Law Matters Vol. 1, July 2004, bear testimony to this.

14 Custody refers to all forms of internment in relation to the criminal justice system such as policecells, prisons, places of safety, reformatories, children’s homes and immigrant detention centres.

15 CSA (No. 111 of 1998) Section 15.2.

16 It should be noted that torture is not classified as a crime in South Africa, and is defined as assault orattempted murder, should a criminal charge arise from such an allegation. The Department of Justiceis in the process of drafting a Criminalisation of Torture Bill, as is required in terms of Article 4 ofthe UN Convention against Torture, which South Africa ratified on 18 December 1998. South Africahas as yet not met its reporting obligations in terms of said convention.

17 The Judicial Inspectorate receives complaints from prisoners according to the following categories asoutlined in the 2003/04 Annual Report (Fagan, 2004): Appeal, Assaults, Bail, Communication withfamilies, Conditions, Confiscation of possessions, Conversion of sentences, Corruption, Food,Healthcare, Hunger strike, Inhumane treatment, Legal representation, Mechanical restraints, Medicalrelease, Parole, Rehabilitation programmes, Remission, Transfers, and Other.

18 Abuse of power that has a significant community impact in terms of injuries caused; numbers ofpersons affected; amount of money involved; or period of time during which it occurs; Arson; Assaultwith intent to cause grievous bodily harm or attempted murder; Abduction; Defeating the ends ofjustice; Forgery or issuing a forged document knowing it to have been forged to a value of R50 000 orgreater; Fraud; Indecent assault; Perjury; Public violence; Intimidation; Kidnapping; Maliciousdamage to property; Participation in a criminal syndicate; Possession of stolen property; Rape;Receiving of stolen property; Robbery; Corruption; Sodomy; Theft; Torture; Extortion; Incitement,conspiracy or attempt to commit any of the offences listed above.

19 South African Constitution (No. 108 of 1996), Section 9(3) of the Bill of Rights: ‘The state may notunfairly discriminate directly or indirectly against anyone on one or more grounds, including race,gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age,disability, religion, conscience, belief, culture, language and birth.’

20 NICRO was contracted by the DoSD to develop the minimum standards for diversion. The report isavailable from the DoSD. See also Dawes and Van der Merwe (2004).

21 Rule 7(1): In every place where persons are imprisoned there shall be kept a bound registration bookwith numbered pages in which shall be entered in respect of each prisoner received:(a) Information concerning his identity;(b) The reasons for his commitment and the authority therefore;(c) The day and hour of his admission and release.

(2) No person shall be received in an institution without a valid commitment order of which thedetails shall have been previously entered in the register.

22 Research conducted by the author in Windhoek, Namibia (for the Legal Assistance Centre [LAC]),incorporated a short questionnaire on the child’s experience of the police into the assessmentinterview. This enabled the LAC as well as the Namibian police to identify problems quickly andmonitor trends (contact author for details).

23 Research conducted by author for LAC in Windhoek, Namibia, and personal observations.

24 Presentation by the Department of Correctional Services to the National Council on CorrectionalServices, 2002.

25 See Section 35(3)(d) of Act 108 of 1996.

26 Of the total awaiting trial population of 48 306 on 31 July 2004, 22 019 or 45.5 per cent had beenawaiting trial for more than three months, and 1 390 for more than 24 months (contact author fordetails).

27 2002(1) SACR 135 (W).

28 2001(2) SACR 255 (CPD).

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Documents

Monitoring Children In Conflict With The Law