SayPro IDENTIFY THE APPLICABLE LEGISLATIVE FRAMEWORKS RELEVANT TO RESTORATIVE WORK (CHILD JUSTICE ACT) (MANDATES);

Child Justice ActThe Child Justice Act 75 of 2008 establishes a criminal justice system for child accused, separate from the criminal justice system which continues to apply for adult accused in South Africa. The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to the tried and sentenced in child justice courts. Until now there has been little discussion of the details of the provisions dealing with sentencing.Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the "jurisdictional" provision of the new child sentencing system: it not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place.Despite its brevity, section 68 is not without interpretative challenges. Of course, it has to be interpreted within the context of the entire Act. Explaining this context is the first function of this article. The various aspects of section 68 are further critically explored and discussed.One of the main principles of the Act is to minimise children’s contact with the criminal justice system, and to use detention only as a measure of last resort and for the shortest appropriate period of time. The Act places a focus on how children are managed in the first 48 hours following the child coming into contact with the system. Provisions encourage the avoidance of arrest, and where children are arrested, encourage their release as soon as possible into the care of their parents, guardians or other suitable adults. In addition, the preliminary inquiry is a key process introduced by the Act.It aims to ensure that a collective, determined effort is made to consider what should be done in the case of each child, and that the inquiry occurs within 48 hours of arrest if the child is detained. In line with the avoidance of prolonged contact with the criminal justice system, the Act has, as one of its main areas of focus, the diversion of children away from formal criminal court procedures into a diversion option or programme. This alternative to the formal criminal justice system is one where the child is held accountable for his or her actions throughout the process. It is worth noting that the Act requires the monitoring of the safety of children being held in police cells upon arrest as this is an area of potential danger for a child. The Act also addresses the issue of re-offending among child offenders which has been attributed, at least in part, to the corrupting and damaging effect that incarceration has on children in conflict with the law. It is in response to this, as well as the constitutional injunction of section 28 (1) (g) that the Act provides for the incarceration of children only as a measure of last resort and for the shortest appropriate period of time.The Children’s Act, 2005 provides for the protection of children in need of care and protection and for the establishment of child and youth care centres which provides for the reception, development and safe care of children in terms of an order under Chapter 10 of the Act. The child and youth care centres are managed by the Department of Social Development and the Department of Basic Education is responsible for the educational programmes of the children sentenced to compulsory residence in a child and youth care centre.The Correctional Services Act, 1998 (Act No. 111 of 1998), contains provisions which deal specifically with children and provides for the following:

1. Section 7(2) (c) provides that children in detention must be kept separate from adult inmates and in accommodation appropriate to their age.
2. Section 13(6) (c) provides that in the case of a child, the National Commissioner must notify the appropriate state authorities who have statutory responsibility for the education and welfare of children as well as the parents or next of kin (including relatives) of such a child when the child has been admitted in the Department of Correctional Services facility or transferred to another facility.
3. Section 19 provides that –

1. every inmate who is a child and is subject to compulsory education must attend and have access to such educational programmes;
2. ii) where practicable, all children who are inmates and not subject to compulsory education must be allowed access to educational programmes;
3. the National Commissioner must provide every inmate who is a child with social work services, religious care, recreational programmes and psychological services; and
4. The National Commissioner must, if practicable, ensure that inmates who are children remain in contact with their families through additional visits and by other means.

4. Section 40(3) provides that a child who is a sentenced offender may only do work for the purposes of training aimed at obtaining skills for his or her development and may not be subjected to work if the work that is to be performed is inappropriate for the age of the child or if the work places the child’s educational, physical, mental, moral or social well-being at risk.
5. Section 69 provides that –

1. a child who is subject to community corrections may be required to attend educational programmes whether or not he or she is otherwise subject to compulsory education; and
2. The National Commissioner must, in addition to any programmes which the child may be required to take part in, ensure that if the child requires support, he or she has access to adequate social work services, religious care, recreational programmes and psychological services.

The importance of diversionIt is one of the central themes of the Act that children in conflict with the law should be diverted from the formal criminal justice system whenever possible. Generally, diversion means that an accused person is not put through formal criminal proceedings but is subjected to an alternative process that does not involve a formal trial, conviction and a criminal record. No sentence is imposed, although the alternative process may require the person to perform services or tasks, or to submit to training or other regimes, some of which might be of a punitive nature.Diversion is widely considered to provide people in conflict with the law with a better opportunity of being successfully reintegrated into society than dealing with their behaviour through the formal criminal justice system. There is abundant evidence that the deeper child offenders get involved in the formal criminal justice system, the better the chances are that, as adults, they will end up living a life of crimeManagement of Infrastructure for the Implementation of the ActThe establishment and management of child-friendly infrastructure, such as courts and facilities for awaiting trial and sentenced children, should receive priority attention by all Departments, within the available resources of the State. This is to safeguard the right of children not to be detained except as a measure of last resort, and if detained, to be kept separately from adults, boys to be kept separately from girls, and also be treated in a manner that takes account of their age, as provided by section 28(1)(g) of the Constitution,1996. Where separate child-appropriate facilities cannot be built, alternative measures must be taken to ensure that children are kept separately from detained adults.Child and Youth Care Centres

1. Section 196 of the Children’s Act, 2005 defines a Child and Youth Care Centre as a facility for the provision of residential care to more than 6 children outside the child’s family environment. This definition covers not just children’s homes but also places of safety, secure care centres and shelters for street children.

2. Section 196(4) of the Children’s Act, 2005 provides that all existing government children’s homes, places of safety, secure care facilities, schools of industries and reform schools must be registered as Child and Youth Care Centres within two years of the commencement of the relevant provisions in the Children’s Act, 2005.

3. In terms of the Children’s Act, 2005 these centres must offer a therapeutic programme designed for the residential care of children outside the family environment, which may include a programme designed for, among other purposes: “the reception, development and secure care of children awaiting trial or sentence;”

4. Secure care is defined as a residential facility and/or programme of intervention which ensures the appropriate physical, behavioural and emotional containment of children who are charged with criminal offences and who are awaiting trial or have been sentenced. Such a facility provides an environment, milieu and programme conducive to the care, safety and healthy development of each child while at the same time ensuring the protection of communities.

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