The New Age Of A Child’s Criminal Capacity

With all of the daily changes to the Disaster Management Act, and with everyone trying to understand the updated directives and regulations, it seems that a very important piece of legislation was amended and has not been given the attention I think it deserves.

On 4 June 2020 the Child Justice Act 75 of 2008 was amended and it increased the minimum age of criminal capacity of a child, who has committed an offence, from 10 to 12 years old.

This means that a child up to 12 years old is presumed to lack criminal capacity and cannot be arrested for committing an offence. The understanding for this increase in age is that South Africa is now aligned with international standards.

A concern which comes to mind is, if it is presumed that a child lacks criminal capacity until the age of 12. Will this presumption flow over into all fields of law?

The test which the courts use to determine whether a child has criminal capacity is a two-step test. Firstly, does a child appreciate the difference between right and wrong and secondly, does a child have the ability to act in accordance with that appreciation.

If international standards and now South African law state that a child only has this capacity at age 12, will it then be presumed that a child does not have the emotional capacity until the age of 12? Will courts and / or psychologists only take the opinions or views of a child 12 years and older into account when deciding family issues?

I can only assume that the emotional intelligence of the individual child will have to be taken into account, but time will only tell if a presumption is going to be drawn that a child does not have the required emotional capacity for their views to be taken into account.