The Criminal Capacity Of Children

Do you have a naughty child? Can your child be held responsible for their actions?

In this article I discuss the law relating to the criminal capacity of a child.

One of the requirements of a crime or a delict (a civil wrong) is fault, and a prerequisite for fault is accountability. Children can lack the ability to display good judgement and therefore can lack accountability.

In South African criminal and delictual law there are different ages at which a child is believed to have capacity to be accountable.

Section 7(1) and (2) of the Child Justice Act 75 of 2008 refers to the minimum age of criminal capacity.

S 7(1) states: “A child who commits an offence while under the age of 10 years does not have criminal capacity and cannot be prosecuted for that offence but must be dealt with in terms of section 9.”
S 7 (2) states: “A child who is 10 years or older but under the age of 14 years and who commits an offence is presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity in accordance with section 11.”

A child who has not yet reached their tenth birthday is “irrebuttably presumed” to lack criminal capacity. Therefore child can never be convicted of a crime before they have reached their tenth birthday.

Once a child reaches 10 and until they reach the age of 14 it is rebuttably presumed that they lack criminal capacity. This means it is presumed that a child does not have the capacity but a court will allow evidence to be lead that the child had capacity at the time of the alleged crime.

The test which the courts use to determine whether a child has criminal capacity is a two-step test. It must be proven beyond a reasonable doubt that at the time of the alleged crime the child had the capacity, to firstly appreciate the difference between right and wrong and secondly, to act in accordance with that appreciation.

A prosecutor must take into account certain factors when deciding whether a child between the age of 10 and 14 should be prosecuted; namely; the child’s educational level, cognitive ability, domestic and environmental circumstances, real age and maturity; the nature and seriousness of the alleged offence; the impact of the alleged offence on any victim; the interests of the community.

The normal principles apply to children between the ages of 14 and 18, and it is presumed that they have criminal capacity, but this presumption is rebuttable.

Naturally the closer a child approaches the age of ten, the stronger the presumption that he lacked capacity, and the nearer he approaches fourteen years, the weaker is the presumption.