The South African Child Justice Bill : an investigation into diversion processes for children

The South African Child Justice Bill creates a new stage in legal proceedings, known as the preliminary inquiry, to determine whether children who offend should be diverted or prosecuted. This process provides greater discretion than under previous legislation to criminal justice professionals. The Child Justice Bill has been drafted but not yet enacted. This research investigates the way in which the Bill's proposals appear likely to affect the process of diversion from prosecution for children. This question is answered in two ways: through a review of literature, and through fieldwork to investigate how discretion is being exercised by criminal justice professionals with regard to the disposal and treatment of child offenders. The research will provide insight into the decision-making that affects the process of diversion in child justice in South Africa. The Bill, when enacted, will provide for a new child justice regime that will meet South Africa's international obligations and will address some of the criticisms that have been made about how child offenders are treated. This thesis makes a contribution to the developing knowledge about the South African child justice regime at a crucial time in the development of new legislation. It is original in its methods, particularly in gathering information from both child justice practitioners and the reformers who have driven the Bill. It is also original in its conclusions. The thesis argues that, although the Bill will significantly improve the treatment of many children in the child justice system in South Africa, there may be large numbers of children excluded from the new regime. These children will be those who are persistent offenders, who are likely to be excluded by practice, and children who have committed serious offences, who are likely to be excluded by statute. It is argued that a greater understanding of the risk principle would allow a justification to be made to work with high-risk and serious offenders in the community.