New rules for arresting child criminals in South Africa
The South African Police Service has published a new national instruction outlining how officers and members of the SAPS need to deal with children in conflict with the law.
The instructions come after the Department of Justice and Correctional Services raised the age of criminal capacity in South Africa to 12 years old earlier in August.
Previously, children up to 10 years of age were deemed to lack criminal capacity and could not be arrested for committing an offence. Such children are usually referred to the Children’s Courts or to the Department of Social Development.
The new laws increase this age to 12 wherever applicable in the Child Justice Act, 2008.
In its national instruction, the rules for engaging children caught up in criminal offences are virtually unchanged from previous instructions, except to increase the age of criminal capacity to 12.
The SAPS noted that a ‘child’ in South Africa is anyone under the age of 18 and requires a different set of rules when engaging them over offences.
In terms of the Child Justice Act:
- A child under the age of 12 years cannot be arrested or prosecuted – this means that a child under 12 years does not have criminal capacity and cannot be charged or arrested for an offence. In such a case, the child will be referred to the probation officer to investigate the child’s individual circumstances and decide on the need for intervention.
- A child older than 12 years but below the age of 14 years is presumed to lack criminal capacity unless the state proves that they have criminal capacity. Such a child can be arrested under certain circumstances.
- A child above 14, but under 18 years of age, is said to have criminal capacity and can be arrested.
When dealing with children under 12 who have been caught up in a crime, the SAPS needs to find a way to get the child to their parent(s), guardian(s) or an appropriate person. If they are present, the officer can issue a notice or have the parents escort the child to the police station to get the notice.
If the parents/guardians/appropriate person are not present, arrangements must be made for them to collect the child from the police station.
When dealing with children over the age of 12, the SAPS said that arrest should be a last resort and only used in exceptional circumstances – such as when:
- The child does not have a fixed residential address;
- The child has absconded from foster care, a child and youth care centre or temporary safe care;
- The child is likely to continue to commit offences unless they are arrested;
- The child will pose a danger to any person (including themselves or the officer)
- The child is likely to destroy or tamper with evidential material relating to the offence;
- The child is likely to interfere with the investigation into the offence unless arrested; or
- The offence is in progress and is not yet completed.
The decision on whether to arrest a child over the age of 12 also depends on the crime committed.
Schedule 1 offences – which are ‘lower rated’ crimes like theft, trespassing, public indecency, and possession of drugs – require compelling reasons for arrest in lieu of handing the child over to their parents.
However, as the crimes climb the schedules to Schedule 2 (major theft, culpable homicide, sexual assault, among others) and Schedule 3 (murder, robbery, treason, etc), arrest becomes a more pressing issue, and it is up to officers to determine the best course of action.
Whether children over 12 are arrested or not, both routes are accompanied by a lot of paperwork for the officer involved.
The instruction also makes it clear that, where possible, arrested children be transported in unmarked sedan police vehicles, and if those are not available, they be transported in the cabin, not the back of a police truck.
Children must also be separated from adults when transported, and boys from girls.
The full notice can be read below: