South Africa: Minimum Age for Criminal Capacity Increased

The minimum age for capacity of criminal intent in children has been increased from 10 years to 12 years old through the amendment of the Child Justice Act of 2008.

This means that police will no longer be allowed to arrest or prosecute children under the age of 12.

The Department of Justice and Consitutional Development explained that this has brought South Africa in line with the United Nations Committee on the Rights of the Child.

“In 2007, a fixed minimum age of criminal responsibility of not lower that 12 years was established by the United Nations Committee on the Rights of the Child and it was recommended that States Parties should progressively raise the minimum age of criminal capacity where possible.

“After the various legislative processes the Child Justice Act 2008 Act has been duly amended to ensure that South Africa complies with the recommendation by the United Nations Committee on the Rights of the Child to progressively raise the minimum age of criminal capacity,” the department said.

According to the department, children under the age of 12 who may have committed criminal acts will be “dealt with outside of the criminal justice system by social workers who may refer the child to a children’s court for their directions”.

“Children aged 12 years or older but below 14 years are still presumed not to have criminal capacity and the state must prove their criminal capacity beyond reasonable doubt in a child justice court.

“This means that children in the age group may be charged or arrested by the South African Police Service, if they commit a criminal offence but the state must prove that they had the capacity to appreciate the difference between right and wrong and the capacity to act in accordance with this appreciation at the time of the commission of the offence,” the department explained.

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