Ten years into the Child Justice Act 75 of 2008: Locating the position of imprisonment within the restorative justice framework.

Abstract

Prior to the Child Justice Act 75 of 2008, South Africa’s child justice system was regulated by the Constitution, the common law and various legislations. Child offenders were processed in the same criminal justice system as adult offenders. The adoption of the Child Justice Act created the procedural framework that is influenced by restorative justice principles and Ubuntu, for dealing with child offenders. In the midst of this rights-based approach child justice system, Chapter 10 of the Child Justice Act regulates the process of sentencing child offenders and provides a list of sentencing options, which includes imprisonment. The essential question to this study is whether the child justice courts are effectively applying the provisions pertaining to the imprisonment of child offenders in terms of the Child Justice Act. Court judgments where the sentencing of child offenders were an issue are examined. The existence of these cases illustrates that the effective application of the imprisonment provisions (these being section 69(1) and (4) of the Child Justice Act) remains a challenge even though the child justice courts have had ten years since the promulgation of the Child Justice Act to ensure these provisions are effectively and consistently applied.