Ever since apartheid, south africas crime rate has been more to the escalation side than the decreasing side and this also includes cases of juvenile deliquency although to a lesser extent. Juvenile deliquency refers to antisocial or illegal behavior by children or adolescents. is the broad-based term given to juveniles who commit crimes. Juveniles are defined as those people who haven’t reached adulthood or the age of majority. What defines adulthood or the age of majority in a court system may be predetermined by law, especially for minor crimes.
Major crimes may force the courts to decide to try a juvenile as an adult, a very important distinction, since sentencing can then mean not just spending adolescence, but a lifetime in prison. Delinquency can be defined as the committing of those things considered crimes by the state, although delinquent can also mean abandoned. Thus juvenile delinquency can cover anything from small crime to deviation from set norms and values. In a violent society such as South Africa children learn that violence is an acceptable solution for problems.
Together with an adverse economic situation, including unemployment, poverty and the availability of guns, this resulted in SA criminal law being increasingly confronted with youthful criminals. South Africa today is devastated by an unprecedented crime wave. Reports of shocking crime statistics daily appear in the media. The idealised image of the ‘happy family’ is also a social myth. Research shows that domestic violence is on the increase and that annually nearly three million children experience domestic violence.
By a process of socialising with violence the child identifies with his or her violent parent and the child learns that violence provides an acceptable solution to problems. This fact, together with unfavourable socioeconomic conditions such as unemployment and poverty, caused the South African criminal law to be confronted with the phenomenon of juvenile delinquency. The South African criminal law follows an elementological concept of crime. This means that every crime consists of a chronology of three elements, namely the act, unlawfulness and culpability (Snyman 1999: 5).
Before the question of the accused person’s culpability becomes relevant, it should firstly be determined whether he or she is accountable. Accountability can be defined as a person’s mental capacity to realise the unlawfulness of his or her action and also to act according to this realisation of unlawfulness (Snyman 1999: 156). Culpability, the third element of crime, can take one of two forms in criminal law, namely intent or negligence. A person is negligent when the fictional reasonable person in his or her (the accused person’s) position would have foreseen and prevented the prohibited deed or consequence (Snyman 1999: 208).
The influence of a youthful age on accountability and negligence will now be shown. Causes Accountability There are at present certain arbitrary age limits for determining the accountability of children. The first age limit is that of seven years (Snyman 1999: 174 et seq). Children who have not yet turned seven are called infantes in criminal law and are irrebuttably presumed to be not accountable. In this instance youth is an absolute defence.
This means that they can never acquire criminal liability, irrespective of whether the facts may indicate that the child’s intellectual development is indeed such that he or she can realise the unlawfulness of his or her action and can act accordingly. On a charge of a crime of intent it is said that an infans is doli incapax, and on a charge of a crime of negligence an infans is culpae incapax. In the case of George (1992) 2 EDC 392, the court of the first instance found a certain Dunge, a five-year-old child, guilty of the theft of a sheep and sentenced him to six strokes with a cane.
However, on appeal the conviction was reversed because of the irrebuttable presumption of unaccountability of infantes in our law. The possibility that an infans could be used as an innocent tool by an older person should, however, be noted. Where an adult man (X), for example, uses a small child (Y) to climb through a small window to steal goods inside a building, only X will acquire criminal liability for housebreaking with the intent to steal. Y is then merely X’s tool and acquires no criminal liability.
The second age limit is that of fourteen years. Children who have already turned seven years old, but who are not yet fourteen years old, are rebuttably presumed to be not accountable. The onus of proof rests on the state to rebut this presumption beyond reasonable doubt. The state has to prove beyond reasonable doubt that, at the time of the crime, the child possessed the mental capacity to realise the wrongfulness of his or her action and to act according to this realisation. If the state succeeds, the child will therefore acquire criminal liability.
Factors which the court will take into account in determining whether the state discharged the onus of proof are the nature of the crime, the child’s age, the child’s mental development and his or her personal experience. In the case of Mbanda 1986 2 PH H 108, Mbanda was a street child without food and shelter. After seeing cake and chocolate in a window shop, he broke into the shop and stole it. During the trial on a charge of breaking in with the intent to steal and theft, the magistrate merely asked Mbanda whether he knew it was wrong to break in and to steal.
After Mbanda answered in the affirmative, he was found guilty on the charges. On appeal the conviction was reversed, as the state had not proved beyond reasonable doubt that at the time of the breaking in Mbanda was accountable. It is therefore not the child’s knowledge at the time of the trial that is important, but his or her mental capacity during the act in the specific circumstances that existed during the act. There is furthermore a rebuttable presumption in our criminal that where a child commits a crime in the company or presence of a (more) adult person, the latter influenced or forced the child to commit such a crime.
Here again the state has to rebut this presumption beyond reasonable doubt. The third and last age limit is that of 21 years. After turning fourteen, a child is deemed to be completely accountable and therefore in the same position as an adult. In this instance the proof rests with the accused to prove on a balance of probability that he or she was not accountable at the time of the act. A juvenile is legally deemed to be a person who has not yet turned 21 and, as will be shown later, a youthful age has an influence on the form of punishment and the punishment itself.
Negligence As explained earlier, negligence as a form of culpability involves a deviation from the standard of the fictional reasonable person by the accused. The test for negligence is therefore objective: the accused person’s act is looked at objectively and the question is asked whether it is in accordance with that of a reasonable person in the same circumstances. However, when a child’s negligence is determined, subjectifies of the reasonable-person test takes place to a certain extent.
The court judges the action of the child not against that of a reasonable adult, but against that of a reasonable child of the same age and in the same circumstances as the accused. In the case of T 1986 (2) SA 112 (O), T was a sixteen-year-old schoolboy with a small physical build and a sensitive nature. The deceased, a boy in the same school, bullied, humiliated and degraded T on a regular basis. One Friday afternoon a fight broke out between T and the deceased in T’s family home during which T shot and killed the deceased.
The court of first instance found T guilty of culpable homicide and sentenced him to five months imprisonment, suspended for three years. On appeal the conviction was reversed, as the court of first instance had erred by applying the test of the ‘reasonable adult’. A sixteen-year-old schoolboy does not have the same insight, self-control and life experience as an adult. As T did not act differently from any reasonable sixteen-year-old schoolboy in his position, T was not negligent and therefore not criminally liable. Punishment
Youth in itself is mitigation. In the case of Lehnberg 1975 (4) SA 553 (A), Lehnberg was a nineteen-year-old girl who was in love with a certain Mr Van der Linde, twenty years her senior. Lehnberg took Choegoe, a coloured man in his thirties, to Mrs Van der Linde with the instruction to Choegoe to murder Mrs Van der Linde. Choegoe stabbed the deceased seven times with a pair of scissors, four of the stabs penetrating her heart. The court of first instance found Lehnberg guilty of murder and imposed the death penalty.
The appeal court reversed this conviction and changed it to twenty years imprisonment. Although Lehnberg was nineteen years old and therefore doli capax, she was still emotionally immature and she escaped the gallows on account of her youth. Section 290(1)(d) of the Criminal Procedure Act 51 of 1977 provides that, as far as the form of punishment of juveniles are concerned, the court in which a juvenile is found guilty can recommend that the youth be referred to a reformatory as defined in section one of the Child Care Act 74 of 1983.
