Process and best practices at the Mangaung One-Stop Child Justice Centre

Process and best practices at the Mangaung One-Stop Child Justice

Centre*

JM REYNEKE** & RP REYNEKE***

aBstractThe Mangaung One-Stop Child Justice Centre (from hereon ‘the centre’) is one of the pioneering one-stop centres for child justice in South Africa and has received international recognition for its work. The centre implemented the provisions of the new Child Justice Act 75 of 2008 within the parameters of existing law before the Act came into operation. The centre also piloted the new preliminary inquiry process before it came into operation. In this article, the process followed from arrest to diversion or trial as provided for in the new legislation is described. In addition, the best practices used at the centre in this process are identified. Although the centre is setting an excellent example for dealing with children in conflict with the law, a few challenges exist and a few recommendations are therefore made.

1. Introduction

The Mangaung One-Stop Child Justice Centre (from hereon ‘the centre’) in Bloemfontein won the United Nations Settlements Programme (United Nations (UN) Habitat) Award for excellence in urban safety, crime prevention and youth in 2008. The centre was opened in May 2002 as part of a pilot project involving child justice. The operations at the centre informed some of the provisions of the new Child Justice Act, which was enacted to bring the South African legal system in line with its international obligations under the United Nations Convention on the Rights of the Child (UNCRC).1 The provisions of the new Child Justice Act,2 were applied as far as possible within the existing legisla-tive framework before the new Act came into operation on 1 April 2010. This centre deals only with child offenders.

* This material is based upon work financially supported by the National Research Council.

** BCom (Law) (PU for CHE), LLB (PU for CHE), LLM (UFS), Advocate of the High Court and Senior Lecturer, University of the Free State.

*** BA (Social Work) (PU for CHE), M Soc Sc (Clinical Social Work) (UFS), PhD (Social Work) (UFS), Senior Lecturer and Head of the Department of Social Work, University of the Free State.

1 Adopted by General Assembly Resolution 44/25 on 20 November 1989. South Africa ratified the UNCRC in June 1995.

2 Child Justice Act 75 of 2008.

137

SACJ-2011-2-Text.indd 137 11/9/11 2:32:48 PM

The significance of this particular centre is further highlighted by the fact that it also piloted the new preliminary inquiry process which was not contained in any of the legislation preceding the enactment of the new Act. The piloting of the preliminary inquiry process was done with the permission of the Justice Parliamentary Portfolio Committee in anticipation of the coming into operation of the Child Justice Act.3 It is envisaged that more of these centres will be established now that the Child Justice Act is operational.4 As a result of the valuable experience gained by the staff of the centre before the coming into operation of the Act, they now provide training for other role-players in the child justice system who have to start with the implementation of the Act.

One of the objects of the new Act is to promote cooperation between the different role-players in the child justice system.5 This is achieved inter alia through one-stop centres where all the role-players are to-gether under one roof. There are police officials, probation officers, assistant probation officers, a legal adviser and court personnel at the centre. There is office space for all the personnel, a reception area, a police station, holding facilities, consultation rooms, a conference room and a dedicated courtroom. There is also a secure care facility on the same premises. The centre operates within the objectives of the new legislation.

The research problem of this study is to perform an analysis of the service(s) rendered by the Mangaung One-Stop Child Justice Centre in order to determine the best practices of the centre. In order to do this a qualitative research strategy was used in the form of a case study.6 Case studies are distinguished by their exclusive focus on a particular case and their use of a full variety of evidence that could include exist-ing documents, observations and interviews.7 During this case study the focus will be on practices used at the centre that are seen as best practices which others could learn from. This case study was carefully chosen as it serves as a special example of services that should be provided by one-stop centres.8

3 Ibid.4 Section 89 of the Child Justice Act 75 of 2008.5 Section 2(e) of the Child Justice Act 75 of 2008.6 M Alston & W Bowles Research for social workers: An introduction to methods (2009)

198. 7 A Rubin & E Babbie Research methods for social work (2011) 442.8 Alston & Bowles op cit (n6) 198.

138 SACJ . (2011) 2

SACJ-2011-2-Text.indd 138 11/9/11 2:32:49 PM

2. The one-stop process

This article will discuss the child justice processes followed at the centre. The literature and several reports,9 on the centre were studied and the centre was visited for four days. The activities at the centre were observed and evaluated and the different role-players were in-terviewed to determine what best practices are followed at the centre. These best practices are in line with the new legislation but in some instances the centre has additional measures in place to ensure that the best interests of the child prevail without compromising justice. Such measures will be discussed. The preliminary enquiries provided for in the new legislation will also be discussed as these form an integral part of the services provided. The advantages of the practice at the centre, as well as challenges at the centre, are identified in this article and recommendations are made.

2.1 Bringing the child before the preliminary inquiry

After a crime is reported, the investigating officer will proceed to the crime scene. If the offender is a child and can be tracked down, the investigating officer has to ensure that the child’s parents or guardian are located as soon as possible. The traditional first appearance in court in terms of the Criminal Procedure Act 51 of 1977,10 is replaced with a preliminary inquiry in terms of the new Child Justice Act.11

Children older than ten years must be brought before a preliminary inquiry.12 The investigating officer will secure the child’s attendance at the preliminary inquiry by one of the following means: releasing the child on written notice into the care of a parent or guardian, sum-monsing the child to appear in court or arresting the child.13

If the parents of a child older than ten years are located quickly after the crime has been committed and the case involves a minor offence contained in Schedule 1, the police can release the child immediately into the care of the parent, guardian or appropriate adult, providing

9 A number of unpublished independent investigations were conducted into the effec-tiveness of the centre before the new Act came into operation. The researchers had access to these reports and used them as part of the qualitative assessment that was conducted at the centre.

10 Section 50(1) of the Criminal Procedure Act 51 of 1977.11 Section 43(3)(c) of the Child Justice Act 75 of 2008. See also J Gallinetti ‘Child justice

in South Africa: The rights of children accused of crime’ in T Boezaart (ed) Child Law in South Africa (2009) 653.

12 The criminal capacity of children was raised from seven to ten years of age in terms of the new legislation and must be reviewed after five years with a view to consider-ing another possible raise in the age of criminal capacity. See also sections 7 & 8 of the Child Justice Act 75 of 2008.

13 Chapter 3 of the Child Justice Act 75 of 2008.

Process and best practices at the Managing One-Stop Child Justice Centre 139

SACJ-2011-2-Text.indd 139 11/9/11 2:32:49 PM

them with a written notice informing them of the date, time and place of the preliminary inquiry. The adult into whose care the child is released must also be warned to attend the preliminary hearing. A probation officer must be notified within 24 hours of handing the written notice to the child in order to ensure that the child will be assessed before appearing at the preliminary inquiry.14

In terms of the new legislation, children should not be arrested for Schedule 1 offences unless compelling circumstances exist.15 However, owing to the fact that the police can only release a child into the care of the parents or guardian in the case of a limited number of minor offences and because difficulties are experienced in locating parents immediately, most children above ten years of age are arrested.16

In practice, most of the children who are arrested are eventually released by the police on written notice into the care of the parents, guardians or appropriate adult after they have been brought to the centre.17 However, there are instances where there is no one into whose care the child can be released or where the crimes are too serious to allow the release of the child.

In line with the provisions of the Criminal Procedure Act,18 an ar-rested child must also be brought before a court within 48 hours after arrest in terms of the new legislation.19 The new legislation further provides that if a child is arrested, a probation officer must be notified immediately but not later than 24 hours after arrest. Failure to do this will result in the arresting police official having to submit a written

14 Sections 18(4)(b) & 3(f) of the Child Justice Act 75 of 2008.15 Section 20(1) of the Child Justice Act 75 of 2008. See also section 28(1)(g) of the

Constitution of the Republic of South Africa, 1996; Article 40 of the UNCRC, availa-ble at http://www2.ohchr.org/english/law/crc.htm, accessed on 25 May 2011; General Comment 10: Child’s Rights in Juvenile Justice, of the Committee on the Rights of the Child, available at http://www.2.ohchr.org/english/bodies/crc/comments.htm, accessed on 25 May 2011; United Nations Rules for the Protection of Juveniles Deprived of their Liberty, GA Res. 45/113, annex, 45 UN GAOR Supp. (No 49A), at 205, UN Doc. A/45/49 (1990), available at, accessed on 30 May 2011; United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh guidelines) GA Res. 45/112, annex, 45 UN GAOR Supp. (No 49A) at 201, UN Doc. A/45/49 (1990), available at http://www1.umn.edu/humanrts/instree/j2ungpjd.htm, accessed on 30 May 2011; A Skelton & B Tshehla ‘Child justice in South Africa’ (2006) 150 ISS Monograph 15-27, available at http://www. iss.co.za /uploads/MONO150 FULL.PDF, accessed on 25 May 2011.

16 Personal interviews with staff at the centre. Staff members interviewed were C du Toit (Probation Officer), RJ du Plessis (Chief Probation Officer), V Khoko (Advanced District Public Prosecutor) and L Schoeman (Magistrate).

17 See also sections 21(2) & the 22(1)(a) of the Child Justice Act 75 of 2008; Skelton & Tshehla op cit (n15) 45.

18 Section 50(1) of the Criminal Procedure Act 51 of 1977.19 Section 20(5) of the Child Justice Act 75 of 2008.

140 SACJ . (2011) 2

SACJ-2011-2-Text.indd 140 11/9/11 2:32:49 PM

report to the inquiry magistrate at the preliminary inquiry explaining such failure.20

Stricter measures than these were introduced at a national level by the Divisional Commissioner for Visible Policing in February 2009. These measures are in line with the international standards recom-mended by the United Nations Working Group on Arbitrary Deten-tion.21 The police were instructed that children should be released as far as possible and as soon as possible into the care of parents or guardians or that they should be brought to a place of safety. Children should not be detained for longer than 24 hours except in exceptional circumstances. If exceptional circumstances necessitate the detention of the child, the child should nevertheless be brought before court within 24 hours. If it is necessary to detain the child for longer than 24 hours, the investigating officer should provide the court with a written report explaining the circumstances necessitating the detention for more than 24 hours.

At the centre, the standard procedure is even more stringent and is as follows: once a child is arrested, the investigating officer has to locate the parents immediately. Despite the fact that the investigating officer is still investigating the case or is still trying to locate the child’s parents, the child must be brought to the centre within two hours of arrest with or without the parents.22 Once the child has arrived at the centre, the necessary arrangements for screening by an assistant pro-bation officer are made by the police officials on duty at the centre.

Children under the age of ten years may not be arrested since they are not criminally liable. They must be handed over to their parents, guardian or an appropriate adult. If the child cannot be handed over to the parent, guardian or other appropriate adult, or if it is not in the best interests of the child, the child must be taken to a suitable child and youth care centre and a probation officer must be notified.23

In Bloemfontein, children under ten years who cannot be handed over to their parents, guardian or an appropriate adult as prescribed, must be brought to the centre where the assessment of the child by the assistant probation officer will start immediately and arrangements

20 Section 20(4)(a) & (b) of the Child Justice Act 75 of 2008. See also Skelton & Tshehla op cit (n15) 45 on the Department of Social Development’s other initiatives to facili-tate the required communication.

21 National Commissioner of the South African Police Service (SAPS) ‘The implemen-tation of recommendations of the United Nations Working Group on Arbitrary Detention’ (2009) – letter to all provincial commissioners, 26 February 2009 at point 2.5.

22 This is an arrangement made at the District Child Justice Forum. Children can be signed out again for further investigation by the investigating officer if necessary, but they must be brought to the centre within two hours of arrest.

23 Section 9(1) of the Child Justice Act 75 of 2008.


SACJ-2011-2-Text.indd 141 11/9/11 2:32:49 PM

will be made for the child’s placement. Police officials’ responsibilities are thus alleviated since they do not have to find a suitable child and youth care centre or try to locate probation officers because probation staff are available at the centre to assist.

The only exception to the mandatory appearance at a preliminary inquiry is in respect of Schedule 1 offences where prosecutors may in their discretion divert children older than ten but younger than fourteen before the preliminary inquiry under certain conditions.24

2.1.1 Challenges

Sometimes, children are detained at some of the police stations despite the arrangement that every child should be brought to the centre within two hours of arrest. Incidents were reported where investigat-ing officials assaulted children and deliberately kept them at the police stations for almost the entire 48 hours. No child is supposed to be taken to a police station in Bloemfontein. Therefore, all the police stations in Bloemfontein will be contacted again this year to confirm this arrangement.

2.1.2 Advantages and best practices

Some of the most important reasons for ensuring that children are brought to the centre are so that the child is not exposed to the risk of being detained with adults. The child is also handed over to a multi-disciplinary team of trained personnel who are mindful of the child’s rights and who will protect them. The child is dealt with immediately since assistant probation officers are on duty 24 hours a day, seven days a week.

The conduct of police officials at the centre contributes to the child-friendliness of the centre. The centre provides internal training on how to deal with children and has a positive attitude that focuses on restoring the child and solving problems rather than focusing on punishment. The child-friendly atmosphere is further enhanced by the absence of service pistols or cudgels. In some instances, police do not wear police uniforms and handcuffs are used only in extreme cases. Children are not allowed to appear in court wearing handcuffs and leg-irons are not allowed at all in the centre and are used only in exceptional cases when children are transported to jail.

To curb unnecessary delays and to ensure the protection of chil-dren’s rights, legislative provisions demand that the probation officer be notified of the issuing of a written notice or the issuing of a warrant

24 Section 41 of the Child Justice Act 75 of 2008.

142 SACJ . (2011) 2

SACJ-2011-2-Text.indd 142 11/9/11 2:32:49 PM

for the arrest of a child within 24 hours of issuing the notice or war-rant.25 Where children have been arrested, the probation officers must also be notified within 24 hours failing which the officials re-sponsible for such lack of notification must account to the court for their actions in this regard.26 The centre has an additional account-ability mechanism in place. Since the agreement that children should be brought to the centre within two hours of arrest also contributes to expediting the process, police officials at the centre hold the in-vestigating officials accountable for complying with this agreement. If the child is not brought to the centre within the two-hour limit, the matter will be reported to the District Child Justice Forum and to Station Commanders for investigation of the non-compliance and to help with the enforcement of this arrangement.

To ensure that children are not unnecessarily detained, investigating police officers are obliged to provide the inquiry magistrate with a written report if a child who is charged with a Schedule 1 offence has not been released on written notice.27 The dedication of the staff in ensuring that children are not unnecessarily detained is evident from the fact that the magistrate and chief probation officer often visit the centre during weekends to inquire whether everything possible has been done to release children who are in the holding facilities. They also monitor whether children are being properly cared for while they are in custody at the centre.

2.2 Screening by assistant probation officer

If children are under ten years and the police officials are unable to hand them over to their parents, guardian or an appropriate adult, such children must be taken to a child and youth centre. These chil-dren, and all other arrested children above ten years, are brought to the centre for screening by an assistant probation officer.

Although the new child justice legislation does not provide for an assistant probation officer, there are assistant probation officers at the centre and they are appointed in terms of the Probation Services Act.28 Assistant probation officers are on duty on a 24-hour basis including

25 Sections 2(a), 3(f), 18(4)(b) and 19(3)(b) of the Child Justice Act 75 of 2008.26 Section 20 of the Child Justice Act 75 of 2008.27 Section 22(2) of the Child Justice Act 75 of 2008.28 Section 4A of the Probation Services Act 116 of 1991. An assistant probation officer is

not a trained social worker but receives thorough in-house training, and is responsi-ble for the initial screening of the child and provides support services to alleviate the probation officer’s workload. See also Skelton & Tshehla op cit (n15) 38-39 & 48-50; D Kassan in J Sloth-Nielsen & J Gallinetti Child Justice in Africa. A Guide to Good Practice (2004) 130-132.


SACJ-2011-2-Text.indd 143 11/9/11 2:32:49 PM

weekends and public holidays. They are, however, only obliged to be at the centre until 22:00.

The assistant probation officer will assess the child and the South African Police Service will then try to contact the person in whose care the juvenile is. The aim of screening is to obtain as much information as possible to facilitate the release of the child. The assistant probation officer will make a recommendation in this regard to the investigating officer. If a child is brought to the centre after 22:00 on a minor charge and is eligible to be released by the investigating officer, the assistant probation officer is called to return to the centre to conduct screening and ensure the speedy release of the child.

2.2.1 Challenges

It is often difficult to locate parents and, sometimes, the screening has to be conducted in the absence of the parents which makes release less likely. However, if children have to be detained, they will be detained in the child-friendly holding facilities at the centre until alternative arrangements can be made by the probation staff.

Although the whole idea of assistant probation officers being avail-able 24 hours a day is highly plausible, it is unfortunate that some of the assistant probation officers are reluctant to return to the centre after 22:00. These assistant probation officers are still acting within the limits of the legislation but not within the ethos established by the centre.


The position of assistant probation officers facilitates not only the release of the child as soon as possible, but also alleviates the workload of probation officers in ensuring that the best possible services are rendered to the child. With the reduced workload, probation officers are able to spend more time on developmental assessments, individual therapy and group work.29 Thus, they are in a better position to serve the best interests of the child.

In line with national and international standards, children are kept in custody as a last resort and then only for the shortest period of time.30 Where investigating officers have not yet decided on release they will have access to the information gathered by the assistant probation officer during the screening, which can help them to make


30 See op cit (n15).

144 SACJ . (2011) 2

SACJ-2011-2-Text.indd 144 11/9/11 2:32:49 PM

an informed decision regarding the release of the child. This process further ensures that the child is released as soon as possible and within the 48-hour period after arrest. The availability of alternative placement is also investigated at a very early stage and the neces-sary arrangements can be made by the assistant probation officer immediately. The power to release the child for minor offences rests with the investigating officer.31 One however finds that some of them refuse to release the child on frivolous grounds. Nevertheless, assist-ant probation officers,32 and probation officers at the centre ‘go the extra mile’ to try to curb this abuse of power by contacting the station commanders who will then intervene. Thus, the after-hours screen-ing in particular provides the child with an additional mechanism for ensuring a speedy release.

2.3 Assessment by probation officer

The probation officers are available only during normal office hours. They have to assess a child who has been released on written notice, who has been served with a summons or who has been arrested, as soon as possible but before the preliminary inquiry.33 If a probation officer has been notified that a child under ten years has committed a crime an assessment must be conducted no later than seven days after the notification. The child will be assessed at one of the police branch offices, at home, at school or at the centre. Where children have been arrested, they will be in the holding facilities at the centre and will be assessed on the first working day before the preliminary inquiry which must be held within 48 hours after arrest.34

An initial assessment is conducted before the child’s appearance at the preliminary inquiry. After the preliminary inquiry, a comprehensive developmental assessment is conducted by the probation officer. The aim of the assessment is to: determine whether the child is in need of care which would result in such child being referred to the children’s court; estimate the child’s age if necessary; determine the history of the child regarding previous convictions; ascertain whether there was previous diversion or whether there are pending charges; make recom-mendations regarding detention and placement; determine prospects

31 Section 2(a) of the Child Justice Act 75 of 2008. Minor offences are contained in Schedule1.

32 This is also done by probation officers where necessary, but mostly by the after-hours assistant probation officers.

33 Sections 34(2) & 43(3)(b) of the Child Justice Act 75 of 2008.34 Skelton & Tshehla op cit (n15) 53-54; Kassan op cit (n28) 130-132; Gallinetti op cit

(n11) 655-656; C Wood ‘Diversion in South Africa: A review of policy and practice, 1990-2003’ (2003) 79 ISS Paper 5, available at http://www.iss.co.za/pubs/papers /79/Paper79.html, accessed on 25 May 2011.


SACJ-2011-2-Text.indd 145 11/9/11 2:32:49 PM

of diversion; determine suitable steps to be taken for children under ten in terms of section 9; determine whether a determination concern-ing criminal capacity in terms of section 11 is necessary; ascertain whether the child was used by an adult co-accused and gather any other relevant information which is in the best interests of the child and which is in line with the objective of the new Act.35

The gathering of this information will help the probation officer not only to make a thorough assessment of the juvenile, but also to make appropriate recommendations to the court during the preliminary inquiry.

The assessment of the child is very important as this will determine the further treatment of the child.36 This assessment, which is called the developmental assessment, is based on developmental social work and the developmental social service model. Developmental social work aims to promote social change through focusing on the person and the environment. It aspires to enhance problem solving in human relationships. This approach also aims to balance needs with resources and promotes the optimal use of the opportunities presented in the community as it taps into assets, strengths, the inner resources of the client and the broader environment.37 This assessment will thus focus on the child’s strengths and abilities rather than on the pathology linked to the offence or the family environment from which the child originates.38 This assessment, if conducted properly, also paves the way for the therapeutic intervention that is to follow if the child is not prosecuted but diverted. This will, among other things, include individual and group therapy as well as attendance of a diversion programme.

Assessment is also conducted in respect of children under the age of ten years even though they lack criminal capacity. Assessments are undertaken to determine: whether the child is in need of care and should therefore be referred to the children’s court; if the child has any previous convictions, was previously on diversion programmes or has

35 Section 35 of the Child Justice Act 75 of 2008; See also T Gxubane ‘Agents of restora-tive justice? Probation officers in the child justice system’ (2008) 25 SA Crime Quarterly 11-14, available at http://www.iss.org.za/uploads/CQ25GXUBANE2.PDF, accessed on 25 May 2011.


37 L Patel Social Welfare and Social Development in South Africa (2005) 207.38 J Sloth-Nielsen ‘“A short history of time.” Charting the contribution of social develop-

ment service delivery to enhance child justice 1996-2006’ in J Gallinetti, D Kassan & L Ehlers Conference Report. Child Justice in South Africa: Children’s Rights under Construction (2006) 17, 19.

146 SACJ . (2011) 2

SACJ-2011-2-Text.indd 146 11/9/11 2:32:50 PM

other pending charges; the prospects of diversion and the possibility of the child being used by an adult to commit the crime.39

After the assessment of the child under ten, the probation officer will do one or more of the following: refer the child to the children’s court; refer the child for counselling or therapy; refer the child to the programme for uncontrollable children at the centre or another suitable programme; arrange support services for the child; hold a meeting with interested parties to obtain more information; draft a written plan for providing services for the child or decide to take no action.40

Generally speaking, it is important to note that this assessment is a move away from the traditional task of the probation officer where a social work investigation was conducted after conviction for the purpose of preparing pre-sentence reports.41

2.3.1 Challenges

Language barriers might exist during the assessment but there is nor-mally an interpreter available. If an interpreter is not available, police officials often help with the task of interpreting. Staff at the centre try to ensure, as far as possible, that children are assessed by someone who is conversant in the child’s preferred language so as to avoid having to obtain interpreting services during assessments.

Some of the parents of children who have committed a crime do not want the child back home, sometimes even in the case of first offenders. This makes it very difficult and such children then have to be placed in foster care with the necessary children’s court procedures having to be followed.


The assessment prior to the preliminary inquiry will provide the pro-bation officer with the necessary information to make an informed recommendation to the prosecutor as well as at the preliminary in-quiry.42 The availability of alternative placement is also investigated at a very early stage which ensures that these arrangements are in place by the time the child appears at the preliminary inquiry, thereby preventing delays in the release of the child. Furthermore, it is recog-nised that since the same probation officer responsible for the initial assessment will mostly also be the therapeutic case manager in respect

39 Sections 9 & 35 of the Child Justice Act 75 of 2008.40 Section 9 of the Child Justice Act 75 of 2008.41 Sloth-Nielsen op cit (n38) 19. 42 Gxubane op cit (n35) 12.


SACJ-2011-2-Text.indd 147 11/9/11 2:32:50 PM

of the child, the therapeutic process is strengthened when the juvenile is diverted.

2.4 Public prosecutor

The public prosecutor receives the docket from the police together with the charge, available affidavits, the screening by the assistant probation officer and the assessment by the probation officer. In terms of the legislation, public prosecutors are now in a position to decide whether to withdraw the case or to divert Schedule 1 offences, in their discretion, without the child appearing in court, or to prosecute.43 In the case of diversion in terms of section 41, the child and where pos-sible a parent, appropriate adult or guardian must appear before the magistrate in chambers where this diversion option should be made an order of court.44

Children under ten may not be prosecuted since they lack criminal capacity.45 These children should be dealt with in terms of section 9 of the Child Justice Act which entails an assessment by the probation officer as explained above.

Children over ten years but under fourteen years are presumed to lack criminal capacity and the prosecutor would have to prove that the child has the necessary criminal capacity.46 The prosecutor thus first has to decide on the criminal capacity issue. If the prosecutor is of the opinion that it is unlikely that it will be proven that the child has the necessary criminal capacity, the child will be dealt with as if under ten years of age.47 If, however, the prosecutor is of the opinion that the child above ten but under fourteen is likely to be proven to have criminal capacity and a Schedule 1 offence has been committed, the matter can be diverted before the preliminary inquiry. If the child is above ten and under fourteen and the criminal capacity of such child is likely to be proven and an offence other than a Schedule 1 offence has been committed, the child has to appear at a preliminary inquiry.48

Children above fourteen who have committed a Schedule 1 offence may be diverted by the prosecutor before the preliminary inquiry.49

43 Section 41(6) of the Child Justice Act 75 of 2008.44 Section 42(1) of the Child Justice Act 75 of 2008.45 Section 7(1) of the Child Justice Act 75 of 2008.46 Section 7(2) & 11 of the Child Justice Act 75 of 2008.47 Section 10(2)(b) & 9 of the Child Justice Act 75 of 2008.48 Section 10(2)(a)(i) & (ii) of the Child Justice Act 75 of 2008.49 Section 41(1)(a) of the Child Justice Act 75 of 2008.

148 SACJ . (2011) 2

SACJ-2011-2-Text.indd 148 11/9/11 2:32:50 PM

Children above fourteen who have committed any other crimes must appear at a preliminary inquiry.50

2.5 Preliminary inquiry

During this case study, it was found that the actual procedure used during the preliminary inquiry had had to be developed by the staff themselves as there were no set guidelines for its implementation.

The preliminary inquiry is held in respect of every child who has not been diverted by the prosecutor in terms of chapter 6. The prelimi-nary inquiry must be held within 48 hours of the arrest of the child and if the child has been released on written notice or in terms of a summons, the preliminary inquiry is held on the date stipulated in the written notice or summons.51

The preliminary inquiry is an informal, inquisitorial, pre-trial pro-cedure.52 Information is elicited by asking questions and interviewing persons. The magistrate may take any steps necessary to determine the truth of the statements and the correctness of any submissions.53 At the centre, the preliminary inquiry is held in the child-friendly courtroom.

The aim of the preliminary inquiry is to ensure that decisions re-garding actions to be taken in connection with the child are made as soon as possible. The idea is to divert as many children as possible, who qualify for diversion, at the first possible opportunity. Therefore, the preliminary inquiry should preferably be held after the proba-tion officer has conducted the assessment to ensure that the necessary information is available.

The probation officer’s report, together with recommendations, is seen as a starting point in determining what will happen to the child. It should be determined if the child takes responsibility for the crime. If the child does, the probation officer should make a recommenda-tion regarding the suitability of diversion, as well as regards the most suitable diversion options and the possible release of the child. If the child has to be detained, the probation officer must make an informed recommendation in this regard.54

50 Section 43(3)(a) of the Child Justice Act 75 of 2008.51 Sections 43(1), (2) & (3) of the Child Justice Act 75 of 2008. See also Skelton &

Tshehla op cit (n15) 50-51.52 Section 43 of the Child Justice Act 75 of 2008. See also J Sloth Nielsen ‘Paperweight

or powertool: A critical appraisal of the potential of the proposed preliminary inquiry procedure’ (2004) 6 Article 40 3.

53 Section 47(1) & (4)(c) of the Child Justice Act 75 of 2008.54 Section 40 & 43 of the Child Justice Act 75 of 2008.


SACJ-2011-2-Text.indd 149 11/9/11 2:32:50 PM

Investigating officers might attend the inquiry to provide informa-tion on the gravity of the offence, on the progress being made with the investigation and, perhaps, on the attitude of the victims concerned to diversion.55 The investigating officer must also submit a report to the inquiry magistrate if the child has been detained for a Schedule 1 offence,56 or if the child has been detained for more than 24 hours.57

The victim or other person with a direct interest in the matter might also attend in person to give any relevant input. The input of the victim will mostly relate to the effect of the crime and to such victim’s attitude to diverting the matter.58 Thus far at the centre, it seems as if victims have not really been using the opportunity to appear at the preliminary inquiry. As the centre has a restorative justice approach, the involvement of the victim in the process is seen as an area in which to improve regarding the services provided.

Other persons who might provide relevant information could be educators, the spiritual counsellor of the offender or any other relevant person who knows the offender. The inquiry magistrate must ensure that all the information is presented and that everyone’s views are considered. The magistrate must, in particular, ensure that the views of the child and those of the child’s parents, guardian or an appropri-ate adult are voiced by encouraging them to ask questions, to raise issues and to give their opinions.59

The prosecutors remain dominus litis and, once all the information has been provided, will be asked by the magistrate whether they want to divert the matter. After the prosecutor has made a decision, the inquiry magistrate will make an order to divert the matter or refer the matter for trial depending on the decision of the prosecutor.60 If the matter is referred for trial, the magistrate must ensure that the child is aware of their right to legal representation at state expense.61

The inquiry magistrate has to ensure that where a child should rather be referred to the children’s court, the matter is referred ac-cordingly.62 The magistrate also has to make a ruling on the release

55 Section 44(4) of the Child Justice Act 75 of 2008.56 Section 47(3)(d) of the Child Justice Act 75 of 2008.57 National Commissioner of the SAPS op cit (n21) point 2.5. 58 Sections 44(4), 52(2) & (3) of the Child Justice Act 75 of 2008.59 Section 47(7) of the Child Justice Act 75 of 2008; Personal interviews with staff at

the centre. Staff members interviewed were C du Toit (Probation Officer), RJ du Plessis (Chief Probation Officer), V Khoko (Advanced District Public Prosecutor) and L Schoeman (Magistrate).

60 Section 52(5) & (6) of the Child Justice Act 75 of 2008.61 Section 49(2)(b) & 82(1) of the Child Justice Act 75 of 2008.62 Section 50 of the Child Justice Act 75 of 2008.

150 SACJ . (2011) 2

SACJ-2011-2-Text.indd 150 11/9/11 2:32:50 PM

or detention of the child concerned and on appropriate conditions of release or detention.63

If the matter is diverted, the magistrate at the centre will determine a return date – usually six weeks later – to follow up on the child’s progress and cooperation with regard to the diversion programme. If the matter is referred for trial, the magistrate will immediately set a trial date if possible, or will refer the matter for further investigation. This finalisation of dates at the preliminary inquiry is possible since everyone involved is present and the court rolls are managed by the magistrate.

2.5.1 Challenges

Sometimes, not every person who should or could provide input at the preliminary inquiry is available and this might prolong the process of making a decision regarding the diversion of the child. Fortunately, the preliminary inquiry can be postponed under strict conditions,64 and the witnesses can be subpoenaed to attend and testify.

The seating arrangements in the child-friendly court are in the form of a circle, with the magistrate’s bench being part of the circle but slightly raised in keeping with the magistrate’s status and the serious-ness of the proceedings. Unfortunately, owing to a lack of space, the child and the parents do not presently sit in the circle. The venue is very small and it is impossible to include the child and parents, especially when there are a number of co-accused. This also does not contribute to the restorative justice focus that emphasises equal participation from the start of the process.

The circle approach that forms part of the working method at the preliminary inquiry resembles the sentencing circles that were first used in the criminal justice system in Canada as an alternative way of sentencing involving all stakeholders in the decision. It is suggested that courtrooms used for preliminary enquiries should be big enough to accommodate all stakeholders as part of the circle, as this should pave the way for further restorative practices such as family-group conferencing, peacemaking circles and victim-offender mediation.65 This shortcoming will, it is hoped, be addressed as soon as the build-ing of additional facilities commences.

63 Section 49(2)(b) & (c) of the Child Justice Act 75 of 2008.64 Section 48 of the Child Justice Act 75 of 2008.65 H Zehr The Little Book of Restorative Justice (2002) 1-63; K Pranis, B Stuart & M

Wedge Peacemaking Circles. From Crime to Community (2003) 15; P McCold ‘The recent history of restorative justice: Mediation circles and conferencing’ in D Sullivan & L Tifft (eds) Handbook of Restorative Justice: A Global Perspective (2006) 23-24.


SACJ-2011-2-Text.indd 151 11/9/11 2:32:50 PM


Despite the fact that some children do not need to appear in court because the case has been diverted by the prosecutor in terms of chapter 6 of the Child Justice Act, every child who enters the crimi-nal justice system at the centre is assessed and appears in court.66 Although all the children will appear in court, a preliminary inquiry will only be held in terms of the legislative provisions. This is done to ensure that the causes of unlawful behaviour are identified as soon as possible and that the child is immediately diverted to the most appropriate programme or is referred to the children’s court. Children lacking criminal capacity are referred to the programme for uncontrol-lable children. The reason for all children appearing in court is to make sure that they understand the seriousness of the situation. According to the staff at the centre, such an approach also serves as deterrence in preventing further crime and motivates children to cooperate better as part of the diversion programmes.

The preliminary inquiry contributes significantly to speeding up the process of making decisions regarding what should happen next with the child, be it diversion or a trial. Future delays are also minimised, since important issues such as a formal age assessment and the ap-pointment of a legal representative are dealt with at the preliminary inquiry which is held within 48 hours of arrest. This is in sharp contrast to the previous dispensation where up to 56% of children in prison were not yet sentenced or awaiting trail. According to Muntingh,67 this indicates the excessively long periods it took to finalise court cases involving children. To further indicate the dire need for a measure to speed up the process is the fact that in 2007, 56% of children in prison were awaiting trial, while only 29.6% of adults in prison were awaiting trial. In the past, children often spent four to nine months waiting for the matter to be finalised. The vast majority of these children did not receive imprisonment and were thus ‘punished by the process’.

Experienced attorneys from the Legal Aid Board, who are well acquainted with children’s rights and the available programmes in particular, are always available at the centre. Since the same attorney deals with almost all the children’s cases, continuity is attained.68 In

66 Section 41 of the Child Justice Act 75 of 2008.67 LM Muntingh Child Justice Alliance: A Quantitative Overview of Children in the

Criminal Justice System: 2007 (2007) 10-11; LM Muntingh Children in Conflict with the Law: A Compendium of Child Justice Statistics: 1995-2001 (2003) 37-39 & 100-101.

68 Sections 80-83 of the Child Justice Act 75 of 2008. See also Skelton & Tshehla op cit (n15) 54-55.

152 SACJ . (2011) 2

SACJ-2011-2-Text.indd 152 11/9/11 2:32:50 PM

addition, this process also gives effect to the child’s right to be heard.69 At the centre, the prosecutor will rather lean towards diversion than prosecution in cases which might go either way, always focusing on the child’s best interests.70

Prosecutors are afforded an opportunity to make an informed decision. Any misunderstandings or faulty information in the docket which might influence the prosecutor’s decision can be clarified at the preliminary inquiry and the child’s personal circumstances are capable of being properly assessed and tabled. The attitude of the prosecutor towards diversion is a very important factor since the prosecutor is dominus litis.

Magistrates are also in a better position to make an informed deci-sion regarding the further detention or release of the child. Children can thus be removed from custody to an alternative place of safety where necessary and with immediate effect since all the necessary information on the availability of such places is furnished to the court by the probation officer.

At the centre, the chief probation officer will consult with the child on the same day and the child will be allocated to a specific probation officer if the child is diverted. An appointment for the first session with the probation officer, who will be responsible for the child, is also finalised and no time is wasted in starting with the rehabilitation process.

A costing was performed by Afrec,71 regarding the Child Justice Bill’s proposed preliminary inquiry. They found that the preliminary inquiry would result in substantial overall savings owing to ‘the likeli-hood of faster processing of diversion cases, the resultant lowering of court loads, and less recourse to detention facilities’. Sloth-Nielsen, also indicates that resources are used much more effectively since more resources are allocated to the development of proper assessment services and early intervention services, rather than to large numbers of personnel responsible for drafting pre-sentencing reports.72

In terms of the new legislation, a child whose case is referred for trial can now be diverted by the court even after the trial has started, until the close of the state’s case.73 Thus, children are afforded an additional opportunity to be diverted.

69 Article 12 of the UNCRC, available at http://www2.ohchr.org/english/law/crc.htm, accessed on 25 May 2011; Kassan op cit (n28) 63.

70 J Sloth-Nielsen in J Sloth-Nielsen & J Gallinetti Child Justice in Africa. A Guide to Good Practice (2004) 45.

71 C Baberton & J Stuart Re-costing the Child Justice Bill: Updating the original costing taking into consideration changes made to the bill (2001) ii – iv.

72 Sloth Nielsen op cit (n70) 46. 73 Section 5(4)(c) & chapter 9 of the Child Justice Act 75 of 2008.


SACJ-2011-2-Text.indd 153 11/9/11 2:32:50 PM

2.6 Diversion

According to Wood,74 diversion has been practised in South Africa since the early 1990s. She further indicates that from 1996 onwards substantial growth in the number of children referred to diversion pro-grammes has been noticed. This is in line with findings of Muntingh.75 In the 1996/97 financial year, 5 652 children completed diversion programs at the National Institute for Crime Prevention of Offenders (NICRO) nationwide. This figure rose to 16 211 in 2001/02. In 2006, a total of 21 975 cases were referred to NICRO,76 nationwide. In 2008, 791 children were diverted in the Motheo District where the One-Stop Centre is located. This figure rose to 1 322 children in 2009.77

In 2005, a study was commissioned by the Criminal Justice Initiative for the Open Society Foundation of South Africa which reviewed South African innovations regarding diversion and the reintegration of at-risk youths.78 The study evaluated 20 different programmes and showed that they could be divided into the following types of programmes: community-, family- and victim-focused programmes (e.g. family-group conferencing as practised by the Restorative Justice Centre); life skills training programmes (e.g. the Youth Empowerment Scheme (YES) programme provided by the National Institute for Crime Preven-tion of Offenders (NICRO)); expressive programmes (e.g. Diversion into Music Education (DIME)); outdoor experiential programmes (e.g. Ecotherapy: the National Peace Accord Trust); mentoring programmes (e.g. Big Brothers Big Sisters of South Africa) and reintegration pro-grammes (e.g. Discovery and Destinations: Khulisa Child Nurturing Services).79

Currently, there are seventeen different diversion programmes available to the centre for children to be referred. These programmes consist mainly of life skills training and community-, family- and victim-focused programmes.80

The Child Justice Act promotes the expanded use of diversion in a consistent and just manner with the aim of encouraging children to be accountable for the harm that was caused. Furthermore, it aims at di-

74 Wood op cit (n34) 1.75 Muntingh op cit (n67) 42. 76 Muntingh op cit (n67) 20. 77 R Reyneke & M Reyneke ‘Evaluating the application of restorative justice at the

Mangaung One Stop Child Justice Centre’ (2010) 46(3) Social Work/Maatskaplike Werk 374-376. Statistics provided by the Mangaung One Stop Child Justice Centre (2009).

78 F Steyn Review of South African Innovations in Diversion and Reintegration of Youth at Risk (2005).

79 Steyn op cit (n78) 5. 80 Reyneke & Reyneke op cit (n77) 372-374.

154 SACJ . (2011) 2

SACJ-2011-2-Text.indd 154 11/9/11 2:32:51 PM

verting children in conflict with the law away from the criminal justice system and into crime-prevention and reintegration programmes.81 Steyn, indicates that a critical outcome of a diversion programme should be for the participant to learn not to repeat the same unacceptable be-haviour.82 It can thus be said that diversion does not only restore but that it could also contribute to crime prevention in that at-risk youths are given a second chance and life skills that will prepare them to be successful, law-abiding adults.

Diversion takes place after the preliminary inquiry has been com-pleted and the probation officer has started working with the child. The probation officer will determine which programme the offender will have to attend and will also work individually with the juvenile.

It should also be stressed that some of the children attending the diversion programmes are not formally assigned to the diversion pro-gramme by the court. In some cases, children with uncontrollable behaviour are reported to the centre by schools and parents. They are then assessed and motivated to attend a programme to help them cope with their problems before they formally come into conflict with the law. This then also forms part of crime prevention.

2.6.1 Challenges

Parents of some of the children attending diversion programmes are uncooperative and do not motivate their children to undergo the programmes. Parents often expect the centre to ‘fix’ the children’s problems even though the parents themselves largely contribute to these problems. In many cases they also do not attend the parenting programmes. In order for diversion programmes to be successful, it is necessary that the whole family participate in the therapeutic process and not only the child. This need is emphasised by the fact that the four major features of family life associated with the offending be-haviour of young people are parental and sibling criminality, parental neglect (including a lack of supervision), chronic family conflict and harsh or erratic discipline.83 Some parents sometimes seem to be overwhelmed by the child’s criminal behaviour and by the demands of parenting. Therefore, parents need training in parental skills and

81 Section 2 of the Child Justice Act 75 of 2008; L Davis & M Busby ‘Diversion as an option for certain Offenders: The view of programme participants diverted during the Hatfield Court pilot project’ (2006) 19(1) Acta Criminologica 102; Gallinetti op cit (n11) 656-657.

82 Steyn op cit (n78) 17. 83 M Stephenson, H Giller & S Brown Effective Practice in Youth Justice (2007) 141, avail-

able at http://www.unodc.org/pdf/ criminal_justice/06-56290_Ebook.pdf, accessed on 27 May 2011.


SACJ-2011-2-Text.indd 155 11/9/11 2:32:51 PM

require emotional support. During the therapeutic process of the di-version programmes, parents are motivated to take responsibility for the development and transformation of the child. Family-group confer-ences, as one of the possible diversion programme options available, can play an important role in assisting parents.84 However, the centre held only three family-group conferences in 2008.85

It became clear during the evaluation that the staff concerned need more training, especially in restorative processes. The in-house training is appropriate but staff will benefit from more specialised training.

In line with the findings of Mbambo,86 the programmes presented at the centre have not been scientifically scrutinised and researched to determine their actual impact on the community and the child. This needs to be done in order to further develop the current programmes. Most of the programmes are general in nature and not always very specific in helping children with specific needs. Programmes that focus more on alcohol and drug abuse, aggression and interpersonal and sexual violence could be developed. Skills development programmes that could contribute to the reduction of poverty in South Africa could also be valuable.

Juveniles and their parents perceive community service as mere punishment and not as restoring harm caused by the offence, or as payback to the community.87 This could be because restorative justice practices in the form of circles are not sufficiently used at the centre.88 Community service is currently being carried out at schools, libraries, the Society for the Prevention of Cruelty to Animals (SPCA) and NICRO in the form of office work, working with the disabled, working at local clinics and at the centre. Attempts are being made to place juveniles in a facility that will benefit them and where mentoring will take place. During this placement it is important that there is effective supervision of the juvenile in order to ensure further development and restoration.

84 Section 61 of the Child Justice Act 75 of 2008; United Nations Office on Drugs and Crime Handbook on Restorative Justice Programmes (2006) 20; Steyn op cit (n78) 31; Stephenson, Giller & Brown op cit (n83) 165; G Maxwell, A Morris & H Hayes ‘Conferencing and restorative justice’ in D Sullivan & L Tifft (eds) Handbook of Restorative Justice: A Global Perspective (2006) 95.

85 Reyneke & Reyneke op cit (n77) 374. 86 B Mbambo ‘Diversion: A central feature of the new child justice system’ (2005) 111

ISS Monograph 83. See also United Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters ECOSOC Res. 2000/14, UN Doc.E/2000/INF/2/Add. 2 at 35 (2000); United Nations Office on Drugs and Crime op cit (n84) 33 on the basic principles applicable to the use of restorative justice programmes.


88 Reyneke & Reyneke op cit (n77) 358 at 374-376. On different models and forms of circles, see Stephenson, Giller & Brown op cit (n83) 163.

156 SACJ . (2011) 2

SACJ-2011-2-Text.indd 156 11/9/11 2:32:51 PM

This will also contribute to reintegration and prevention of further crime.89 Mentoring and the process of giving back to the community would be more in line with the restorative justice philosophy and the objective of the new Act. On a number of occasions the courts have recently referred to the importance of applying a restorative approach to child justice sentencing and have even highlighted its much-needed application in civil law cases.90

The caseload of therapeutic staff is very heavy. In 2008,91 1 306 assessments were conducted, 791 new children were diverted and 590 children had to be monitored for an additional six months in order to provide additional support when necessary. In 2009,92 numbers increased to 1 386 assessments, 1 322 diversions and 712 children who had to be monitored – a huge task for only eighteen professionals. It was also found that the diversion caseload of the probation staff varied from month to month.

On average the diversion caseload for 2008 was 144,4 cases per month, with an average increase to 322 cases per month in 2009. In addition, it should be taken into account that children are not assigned to a single programme but will attend more than one programme if the need arises.

Other general challenges faced with regard to diversion programmes include the quality, efficiency and effectiveness of programmes, the availability of financial resources, further training and the need for an attitude change on the part of criminal justice professionals.93

89 See Steyn op cit (n78) 243-280 on the importance of reintegration and available pro-grammes; L Muntingh op cit (n67) 76-79.

90 Dikoko v Mokhatla 2006 (6) SA 235 (CC) at paras [68], [69], [86], [114] & [115]; Du Toit v Minister for Safety and Security 2009 (6) SA 128 (CC) at para [21]; S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) at paras [59], [61] & [72]; S v Maluleke 2008 (1) SACR 49 (T); S v Saayman 2008 (1) SACR 393 (E); S v Shilubane 2008 (1) SACR 295 (T) at 297; S v Tabethe [2009] JOL 23082 (T) at paras [38]-[41]; Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W) at 526; Camps Bay Residents and Ratepayers Association v Augoustides 2009 (6) SA 190 (WCC) at 196. See also A Skelton & M Batley ‘Restorative justice: A contemporary South African review’ (2008) 21(3) Acta Criminologica 37; M Batley ‘Ngwana phosa dira ga a bolawe. The value of restorative justice to the reintegration of offenders’ (2008) 26 SA Crime Quarterly 27; B Tshehla ‘The restorative justice bug bites the South African criminal justice system (2004) 17 SACJ 1.

91 Statistics provided by the Mangaung One Stop Child Justice Centre (2008). Reyneke & Reyneke op cit (n77) 375-376.

92 Statistics provided by the Mangaung One Stop Child Justice Centre (2009).93 Mbambo op cit (n86) 83-87.


SACJ-2011-2-Text.indd 157 11/9/11 2:32:51 PM


Despite the fact that the centre is experiencing certain challenges, it is important to recognise the valuable work that has been done. Al-though official statistics are not available, it seems that a high number of youths who complete the diversion programmes at the centre are not re-offending.94 They thus do not end up with a criminal record, something that would have negatively impacted on their future in the past. A country-wide tracking system (social development informa-tion management system) was launched recently to determine more accurately whether children who go through the diversion process re-offend.

The probation officer assigned to the case will evaluate the child’s performance throughout the programme and during individual and group sessions. If needed, the child will be referred to more than one programme. Although not prescribed by law, after successful comple-tion of the diversion programme the youth/child will be monitored for another six months in order to lessen the chances of recidivism.

Although there are currently seventeen different programmes avail-able to children in the Mangaung District, the centre is continuously working on the development of new programmes. Currently, it is working in collaboration with the Department of Social Work at the University of the Free State on the development of a programme spe-cifically focusing on anger management. It is also one of its priorities to develop programmes that will focus on skills development as many of the children coming through the system do not have the skills needed to successfully apply for a job.

3. General best practices at the centre

In the preceding discussion, the focus was on best practices that form part of the one-stop process. In addition, several other best practices were identified at the centre. The first general best practice is that the best interests of the child are the primary focus of every member of staff at the centre. This is inter alia evident from the fact that, on average, 50% of children assessed by the centre were referred for diversion in 2006. In contrast, Stepping Stones, a similar centre in Port Elizabeth, diverted, on average, only 18 percent of children assessed.95

The focus on children’s best interests also includes the policy of allowing re-offenders (youths who attended a diversion programme in


95 Muntingh op cit (n67) 23-24.

158 SACJ . (2011) 2

SACJ-2011-2-Text.indd 158 11/9/11 2:32:51 PM

the past) to be on a diversion programme more than once, thus giving them a fair chance to resolve all the problems that might lead to them re-offending.96

Secondly, a truly child-friendly approach is followed at the centre and it is clear that the children concerned feel comfortable in the particular environment.97 The children and their rights are respected at all times. Children are provided with clean clothes and their own clothes are washed at the centre before they appear in court if the need arises for them to make a dignified appearance in court. The holding facilities are clean and have under-floor heating. The walls throughout the building are painted in a soothing light green. Child-appropriate language is used by all staff. The court proceedings are also child-friendly with little of the formalities of normal courts. No one wears robes, everyone stays seated when addressing the court and all speak freely during the preliminary inquiry.

In addition, despite all the possible risks involved when personnel from different departments work together, the personnel at the centre maintain good working relationships with one another. Effective com-munication plays an important part and weekly meetings are held, inter alia, to discuss cases and return dates for reports are confirmed by the chief probation officer. As a result of the positive work envi-ronment at the centre, the turnover of personnel is very low.98 The experience of senior staff is very important for it provides continuity and helps to set the tone for the centre.

Furthermore, although the atmosphere at the centre is very relaxed and informal, very high standards of service delivery are still main-tained. Staff are not only held accountable by the different systems as mentioned above but they also keep one another accountable. In fact, the standards set by centre management are often higher than those provided for in legislation.

Service providers, who are responsible for providing diversion programmes, are selected very carefully and must comply with the minimum norms and standards for diversion before they can be con-sidered for the delivery of services to the centre.99 Continued service delivery is dependent on proper performance by the service provider.

96 S v Z 1999 (1) SACR 427 (E) at 438. In this case, the court provided some guidelines for allowing juvenile offenders with a previous conviction on a diversion programme.

97 Section 2(b)(i) of the Child Justice Act 75 of 2008.98 Some of the staff have been involved since the first discussions on establishing the

centre in 1996. See also Sloth Nielsen op cit (n70) 44 on the importance of staff in effective service delivery.

99 Department of Social Development’s Minimum Norms and Standards for Diversion (2007), available at http://www.childjustice.org/za/downloads/Diversion_Accreditation.pdf, accessed on 28 May 2011.


SACJ-2011-2-Text.indd 159 11/9/11 2:32:51 PM

Unnecessary delays are prevented as far as possible through strin-gent control measures. For instance, if it is clear that a child is not cooperating and is unwilling to complete the diversion programme, this will be reported to the court immediately. The Act does not pre-scribe a time limit for this report, but failure to submit such report can result in the probation officer being held accountable. However, owing to weekly meetings and the stringent tracking of progress, the chances of failure to report are limited.100

Every probation officer works with a specific assistant probation officer. Every team is on court duty only every fourth week. Cases are thus remanded as far as possible to coincide with the week that the responsible probation officer will be in court again. However, since everything is under one roof, it is also possible to call a specific proba-tion officer to attend and testify in a specific case if it is such proba-tion officer’s out-of-court turn. Probation officers thus have enough continuous time available to deliver high-quality therapy and other professional services.101

Furthermore the centre is involved in several crime-prevention pro-grammes, programmes for uncontrollable children and programmes for children who have offended but are under the age of criminal capacity. The centre focuses its attention in particular on the geographical areas identified as hot spots owing to the number of children in conflict with the law from these areas.

Lastly, in costing the bill, Afrec, found that the clustering of services in urban areas would be most cost effective.102 They are of the opinion that the clustering of services in one-stop centres will maximise the impact of the Act since cases can be dealt with rapidly, taking the best interests of the child into consideration. They proposed that 19 centres across the country should be established in urban areas. These centres will service between 60 and 70 percent of children entering the criminal justice system. Thus the majority of children in conflict with the law will benefit from the services provided at one stop centres. Unfortunately the establishment of one stop centres in rural areas are not regarded as a cost effective measure of implementing the Act at this point in time. The Mangaung centre is indeed in an urban area and servicing a large population. However the centre has expanded its services by providing services in rural areas through satellite offices, proving their commitment to serve as many children as possible.

100 Section 57 of the Child Justice Act 75 of 2008.101 These responsibilities include assessing children, working out a programme for the

child, holding individual and group sessions with children, being part of prevention programmes, and writing reports.

102 Baberton & Stuart op cit (n71) 58-59.

160 SACJ . (2011) 2

SACJ-2011-2-Text.indd 160 11/9/11 2:32:51 PM

4. Recommendations

Apart from the recommendations made throughout the course of the present article, the following recommendations in particular are also put forward:

4.1 Outdoor facilities

Apart from the problems posed by the small courtroom, there is also not a secure courtyard for the children. Thus, they are not able to leave the holding facilities except to appear in court. It would be preferable if a secure area were available for the children to spend some time outside the holding facilities.

4.2 Training and accountability of police officials

Although police officials at the centre receive internal training, in-fringements of children’s rights still occur at other police stations in Bloemfontein. It is therefore imperative that all police officials in the force receive proper training concerning children’s rights in general and the new Child Justice Act in particular.

4.3 Training of probation staff

It would be beneficial for probation staff to attend further training in restorative processes. According to the International Institute for Restorative Practices,103 this term refers to ‘the emerging field of study that enables people to restore and build the community in an increas-ingly disconnected world’. This field connects theory, research and practice from fields such as education, counselling, criminal justice and social work. Probation officers work in these fields on a daily basis. Improved knowledge and skills in these areas will help them with the implementation of the restorative justice philosophy. The yearly continuous professional development (CPD) courses that are necessary for further professional registration could be used for further training in this regard.104

103 International Institute for Restorative Practices. ‘What is restorative practices?’ (2009), available at , accessed on 28 May 2011.

104 South African Council for Social Service Professions ‘Policy on continuing profes-sional development (CPD) of persons registered with the South African Council for Social Service Professions (SACSSP) (2010), available at http://www.sacsso.co.za/UserFiles /File/CPD%20Policy-%20Final(1).pdf, accessed on 28 May 2011.


SACJ-2011-2-Text.indd 161 11/9/11 2:32:51 PM

4.4 Focus on the victim’s needs

It is clear from the present research that there is considerable room for improvement as far as attending to the needs of victims is concerned. It is submitted that, taking into account the availability of resources, alternative methods should be introduced to give more attention to the needs of victims.105 These include sensitising investigating officers, who appear at the preliminary inquiry, to victims’ rights.

On conclusion of the case, feedback to victims is also important and might go some way towards recognising the victim’s right to informa-tion. In addition, empowered victims may contribute positively to the marketing of the activities of the centre. It is therefore recommended that a short report be sent to the victim stating, for instance, that the offender successfully completed a diversion programme or was eventually prosecuted and what the outcome of the latter was.

4.5 Adults as co-accused with children

Practice has shown that, if a child is a co-accused with an adult, it is not very fruitful to separate the trials.106 The child would often be diverted and, if tried, the adult would simply place all blame for the offence on the child.

The practice followed at the centre is to make sure that there is enough evidence to prosecute the adult separately. However, if this is not possible, the practice is to rather keep the adult and child as co-accused and divert both of them where possible. This unfortunately seems to create the impression that adults will not be held account-able for their offences. Furthermore, it seems as though there has been an escalation of offences committed by adults and children as co-accused.

In response to this upsurge, the court has regarded the fact that a child was involved in the crime as an aggravating circumstance with regard to the sentencing of the adult because the adult should have prevented the child from committing the crime. The adult has deliberately or negligently put the child at risk by allowing the child

105 For instance, a letter of apology to victims and victim-offender mediation should be considered more frequently. See also H Hargovan ‘Restorative approaches to justice: “Compulsory compassion” or victim empowerment?’ (2008) 20(3) Acta Criminologica 113. The author rightly emphasises the acknowledgement of victims’ needs and warns against using restorative justice merely as another approach to reform offenders and reintegrate them into society, to alleviate overcrowding in correctional facilities, and to justify the diversion of offenders away from the criminal justice system.


162 SACJ . (2011) 2

SACJ-2011-2-Text.indd 162 11/9/11 2:32:52 PM

to commit the crime, something which is obviously not in the child’s best interests.107 It is submitted that this practice should not be left to become a precedent over time but should be enforced as soon as possible through a legislative provision. If the adult is diverted with the child, special attention should however be given to the misuse of children in the diversion programme followed by the adult.108

5. Conclusion

Although the Child Justice Act came into operation only in April 2010, the centre operated in line with the provisions of the new legislation before the actual enactment of the Act. The aim of this article has therefore been to conduct an analysis of the services rendered by the Mangaung One-Stop Child Justice Centre in order to determine the best practices of the centre. In doing so, attention was devoted to describing the one-stop process and to the challenges, advantages and best practices identified during the evaluation. A discussion followed on some more general best practices that were identified. Some of these best practices set higher standards than the legislation. These included the best interests of the child, a child-friendly approach, high standards of service delivery and the schedules of probation offic-ers. Lastly, some recommendations were made as to how to further improve the services of the centre.

In conclusion, it can be said that the Mangaung One-Stop Child Justice Centre serves as a very good example of a fully fledged one-stop centre when it comes to the management of services for children in conflict with the law. It is submitted that, if the example set by this centre is followed, child justice will be practised in the best interests of children.

107 Section 28(2) of the Constitution of the Republic of South Africa, 1996.108 Distinguish this recommendation from the provisions relating to the use of children

by adults to commit crime; see section 92 of the Child Justice Act 75 of 2008.


SACJ-2011-2-Text.indd 163 11/9/11 2:32:52 PM

Process and best practices at the Mangaung One-Stop Child Justice Centre

Documents

Transcript of Process and best practices at the Mangaung One-Stop Child Justice Centre