YOUNG OFFENDERS AND THE LAW: SHOULD SOUTH AFRICAN JUVENILE JUSTICE PRIORITISE PUNISHMENT OR REHABILITATION?
Does South Africa’s child justice system strike an appropriate balance between holding children accountable for their actions and recognising their capacity for change? That question sits at the centre of the debate about how the law should respond when children commit offences.
Children are often associated with innocence, but some become involved in conduct ranging from theft, assault, to serious violence. The Child Justice Act 75 of 2008 provides a framework for responding to such conduct while recognising children’s age, development and circumstances. It promotes diversion, restorative justice and rehabilitation where appropriate, without removing the possibility of prosecution or a sentence where the law permits it.
The challenge is to protect the community and recognise the harm suffered by victims, while giving children a meaningful opportunity to change their behaviour and reintegrate into society.
What is the Child Justice Act?
The Child Justice Act establishes a specialised process for dealing with children alleged to have committed offences. It provides for assessment, preliminary inquiries, diversion, child justice courts and child-specific sentencing options. Rehabilitation and re-integration are important aims, but they operate alongside accountability, public safety and interests of victims.
Who is legally considered a “child”?
Section 28(3) of the Constitution defines a child as a person under the age of 18. The Child Justice Act uses the same general definition, but in limited circumstances its procedures may also apply to a person who is 18 or older but under 21. Under section 4(2), the Director of Public Prosecutions may direct that the relevant assessment and preliminary-inquiry provisions apply where the person is alleged to have committed the offence before turning 18 and was between 18 and 21 when notice was given, a summons was served or the person was arrested.
Age must be distinguished from criminal capacity. Under section 7 of the Child Justice Act, a child who commits an offence before turning 12 is deemed not to have criminal capacity and cannot be prosecuted for that offence. The child must instead be dealt with under section 9, which provides for assessment and possible support measures. A child aged 12 or 13 is presumed to lack criminal capacity, the State must prove beyond reasonable doubt that the child had the required capacity at the time of the alleged offence. For children aged 14 to under 18, the special statutory presumption in section 7 does not apply, but the State must still prove the elements of the offence and comply with the child justice framework.
These rules recognise that children’s understanding and development matter when deciding how the law should respond. They do not, however, mean that every child who is old enough to be prosecuted will necessarily be prosecuted or sentenced in the same way as an adult.
The Constitutional and Legislative Framework
The term “juvenile offender” is often used in general discussion, but South African legislation generally refers to a “child” in conflict with the law.
The Child Justice Act came into operation on 1 April 2010 and established a specialised framework for the children accused of offences. The minimum age of criminal capacity was subsequently raised from 10 to 12 by the Child Justice Amendment Act 28 of 2019, which came into operation on 19 August 2022.
The Act deals with criminal capacity, assessment, preliminary inquiries, diversion, child justice courts and sentencing. It must be read with section 28 of the Constitution, including the child’s right not to be detained except as a measure of last resort and then only for the shortest appropriate period. Section 28(2) provides that a child’s best interests are of paramount importance in every matter concerning the child. These protections must be considered alongside the seriousness of the offence, the impact on victims and the interests of the community.
Depending on circumstances and statutory requirements, a matter may be diverted from formal prosecution or may proceed to trial. Responses can include counselling, community service, restitution, restorative processes, a court may impose a sentence where the legal requirements are met.
Child Justice Act 75 of 2008: Scope and Objectives?
The Act provides a structured way to deal with children accused of offences, with the aims of promoting accountability, rehabilitation and reintegration.
Its objectives include setting the minimum age of criminal capacity, assessing children in conflict with the law, conducting preliminary inquiries, diverting suitable cases from formal prosecution, creating specialised child justice courts, tailoring sentencing options and embedding restorative justice.
The Act does not require the same response in every case. The appropriate process depends on factors including the child’s age and circumstances, the nature and seriousness of the alleged offence, its impact on any victim and the requirements of the Act. Diversion is not automatic, and prosecution and sentencing remain possible where the law allows them.
Restorative Justice and Victims' Rights
Restorative justice seeks to address the harm caused by an offence and encourage the child to take responsibility. Depending on the case, it may involve victim-offender mediation, a family group conference, an apology or restitution. It recognises that an offence can affect victims, families and communities, while offering a way to promote accountability and, where possible, repair harm.
Restorative justice must not be imposed in a way that disregards victims’ rights, safety or wishes. A victim should not be pressured to participate or to forgive the child. Rehabilitation must be pursued without minimising the harm caused or overlooking the community’s legitimate interest in safety.
In Centre for Child Law v Director of Public Prosecutions, Johannesburg and Others [2022] ZACC 35, the proceedings originated from four children who tested positive for cannabis during school-sanctioned drug tests and were subsequently drawn into the child justice system. The Constitutional Court confirmed that criminalising the use or possession of cannabis by children was unconstitutional to the extent that it criminalised a child’s use or possession of cannabis. The Court suspended the operation of the invalidity order for 24 months to allow Parliament to address the issue; during that period, a child could not be arrested, prosecuted or diverted for the relevant offence. The Court made clear that it was not legalising cannabis use by children. Rather, it held that the response should be child-centred and located in social systems, including prevention, support and rehabilitation, rather than the criminal justice system. The judgment was specifically about cannabis and should not be treated as a ruling on children’s use or possession of other substances.
The decision illustrates the importance of considering children’s constitutional rights and the consequences of criminalisation. It supports the use of non-punitive, rehabilitative responses in the specific context of cannabis use or possession by children; it is not a general rule that children should never face criminal proceedings or punishment.[1]
In S v N (469/2007) [2008] ZASCA 30, the Supreme Court of Appeal considered the sentence imposed on a 17-year-old convicted of rape. The Court discussed the constitutional principle that a child should be deprived of liberty only as a last resort and for the shortest appropriate period, while also emphasising that a sentence must be proportionate to the offence and fair to both the child and society.
The case does not establish that imprisonment is never appropriate for a serious offence committed by a child. It demonstrates that sentencing must be individualised: a court must consider the child’s circumstances and prospects for rehabilitation as well as the seriousness of the offence and the interests of society. In that case, the Court substituted a sentence of five years’ imprisonment under section 276(1)(i) of the Criminal Procedure Act 51 of 1977.[2]
Practical Barriers to Implementation
The success of rehabilitation depends on more than legislation. Children need access to appropriate diversion programmes, social services, education and professional support. Where these services are unavailable or difficult to access, the intended benefits of the child justice system may not be realised.
Resource constraints and uneven access to services can make implementation difficult. Expanding community‑based initiatives, improving coordination between justice and social development agencies, and monitoring outcomes are key to overcoming these challenges.
Victims’ rights must remain part of this discussion. Restorative justice should never be used to pressure victims into participation or downplay the seriousness of an offence.
Conclusion
South Africa’s child justice system embodies a constitutional commitment to rehabilitation, diversion, and restorative justice. Section 28 of the Constitution and the Child Justice Act 75 of 2008 require that children be held accountable for unlawful conduct while receiving treatment appropriate to their age and developmental stage.
The framework does not rule out punishment, nor does it require victims to set aside the harm they have suffered. It aims to balance accountability, public safety, victims’ rights and the possibility of rehabilitation.
The central question is not whether punishment or rehabilitation should always take priority. It is how the justice system can respond proportionately to each case, protect the community, acknowledge victims’ experiences and give children a realistic opportunity to change.
By Alina Jones
(Paralegal)
29 October 2026
This article should not be construed as legal advice. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this article, neither the writer/s of this article nor the publisher shall bear any responsibility for the consequences of any actions based on information and/or recommendations contained herein. This article material is for informational and educational purposes only.
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References
Constitution of the Republic of South Africa, 1996, section 28.
Child Justice Act 75 of 2008, as amended.
Child Justice Amendment Act 28 of 2019 (commenced on 19 August 2022).
Centre for Child Law v Director of Public Prosecutions, Johannesburg and Others [2022] ZACC 35.
S v N [2008] ZASCA 30.
