CMP2601/201/2/2015
Tutorial Letter 201/2/2015
Criminal Procedure (Pre-Trial)
CMP2601
Semester 2
Department of Criminal and Procedural Law
IMPORTANT INFORMATION:
This tutorial letter contains important
information about your module.
,1. Assignment 01 – S2
All questions were considered, totalling 50 marks and expressed in a percentage (50x2=100%).
Most students did very well but a great number ignored our instructions and lost marks. You were
required to have discussed the relevant law applicable to the specific issues involved and to
support your discussions with case law and other relevant sources; to have used footnotes and to
have completed all questions. You were also required to include a bibliography. It was not enough
for this assignment to simply copy the textbook without some independent research reflected in
your text, footnotes and bibliography.
The questions and marks (in italics) and feedback:
QUESTION 1
Discuss the following concepts relating to child offenders and explain when and how they are
applicable in the child justice process.
(i) Diversion
(ii) Restorative justice
(iii) Acknowledging of responsibility
(15 marks)
(i) Diversion
[See also page 78 of Handbook (HB). Note that all sections refer to the CJA unless
otherwise stated.]
1 Introduction
Diversion is described in sec 1 of the CJA as the diversion of a matter involving a child away from
the formal court procedures. Basically diversion means that the child does not undergo a trial but
admits responsibility (which is not the same as admitting guilt) and thereafter completes a
diversion option.
The CJA considers children below the age of 10 years to be irrefutably doli incapax and therefore
lacking criminal capacity. Such child [under the age of 10] is doli incapax and is dealt with in terms
of section 9 of the CJA. 1 A child between 10 and 14 is presumed to lack criminal capacity unless
the prosecution can prove otherwise. 2
Diversion is an option if the child is between the ages of 10 and 14 years where criminal capacity is
likely to be proved. The probation officer must prepare an assessment report after the assessment
proceedings. 3 Such report must be submitted to the prosecutor before the start of the preliminary
inquiry. 4 If the prosecutor determines that criminal capacity is likely to be proven, he may refer the
matter for diversion or refer the matter for a preliminary enquiry. If the prosecutor doubts the
viability of proving criminal capacity, he may refer the matter to a probation officer in terms of
section 9.
1
Section 7
2
Section 11
3
Section 40
4
Section 40(5)
2
, CMP2601/201
The CJA distinguishes three stages when diversion may take place, to wit:
• before the preliminary inquiry
• at the preliminary inquiry, and
• during trial at the child justice court.
Diversion during trial is appropriate but it must take place before conclusion of state’s case
followed by a postponement of the proceedings pending compliance of the diversion order and a
warning given to the child that failing to complete the diversion order, will result in the
acknowledgement of responsibility being recorded as an admission if the trial were to proceed.
Section 65 of the CJA determines that a child must be assisted by a parent, guardian or
appropriate person and legal representation could be appointed by Legal Aid to assist in the
preliminary hearing.
2 Who may recommend diversion in respect of schedule 1, 2 and 3 offences of the CJA and
at what stage?
SCHEDULE 1 OFFENCE SCHEDULE 2 OFFENCE SCHEDULE 3 OFFENCE
(prosecutorial diversion) (preliminary inquiry and trial) (preliminary inquiry and
trial)
The prosecutor may in terms The prosecutor may for a The DPP only may within his
of s 41 relating to schedule schedule 2 offence area of jurisdiction in respect
1offences divert a matter - recommend or oppose of the serious offences
• before the preliminary diversion at mentioned in schedule 3 must
enquiry, • a preliminary enquiry or give reasons in writing to the
• at the preliminary • at the child justice court presiding to divert -
enquiry or The presiding officer makes • a preliminary enquiry or
• before the close of the the final order. • at the child justice court
state’s case in the child
justice court. The prosecutor hands the
The prosecutor’s decision to DPP’s decision to the court
divert must be made an order who then decides to make or
of court by a magistrate decline the order.
(confirmed by the court as an The presiding officer makes
order of the court even though the final order
the decision is made by the
prosecutor).
3
, 3 What are the minimum requirements in respect of schedule 1, 2 and 3 offences to be
met before diverting?
SCHEDULE 1 OFFENCE SCHEDULE 2 OFFENCE SCHEDULE 3 OFFENCE
• Child acknowledges • Child acknowledges • Only in exceptional
responsibility for the responsibility for the circumstances which are
offence. offence. given in writing by the DPP
• There is a prima facia • There is a prima facia and the prosecutor submits
case against the child. case against the child. the decision by the DPP that
• The child has not been • The child has not been the matter may be diverted.
unduly influenced. unduly influenced. • Must conform to the NPP’s
• The child and parent, • The child and parent, directives on diversion
guardian, appropriate adult guardian, appropriate • The victim has expressed
have given consent. adult have given his or her views on diversion.
• If the child is between consent. • The investigating police
10 and 14 years the • The prosecutor officer has been consulted.
prosecutor must be indicates that the matter • Child acknowledges
satisfied that the child is may be diverted. responsibility for the offence.
criminally capable. • The victim has been • There is a prima facia case
consulted on diversion. against the child.
• The investigating police • The child has not been
officer has been unduly influenced.
consulted • The child and parent,
• The magistrate must be guardian, appropriate adult
satisfied that the child is have given consent.
criminally capable • The court must be satisfied
that the child is criminally
capable
4 What diversion options must be applied when diverting?
SCHEDULE 1 OFFENCE SCHEDULE 2 OFFENCE SCHEDULE 3 OFFENCE
Level one diversion- options Level two options apply to Level 2 diversion options –
apply to schedule 1 offences schedule 2 offences and may applies to schedule 3
and may not, if a time period not, if a time period is offences and may not, if a
is applicable, exceed 12 applicable, exceed 24 time period is applicable,
months in the case of a child months in the case of a child exceed 24 months in the
under 14 or 24 months for a under 14 or 48 months for case of a child under 14 or 48
child over 14 year of age. children older than 14. Level months for children older
This level presents in terms two diversion options are than 14. Level two diversion
of s 53(3) diversion options seen as more serious in options are seen as more
ranging from the mild (such nature. The options for level serious in nature by virtue of
as writing a letter of apology 1 offence are still available s 53(4) (such as placement in
to the victim) to the formal but may then be combined a vocational programme,
(such as attendance of a with more serious intensive therapy and
programme, restitution, consequences mentioned restriction of movement
compensation service to the and 53(4) (such as under the supervision of a
victim). placement in a vocational probation officer). The
programme, intensive options for level 1 offence
therapy and restriction of may be combined with more
movement under the serious consequences.
supervision of a probation
officer).
4
Tutorial Letter 201/2/2015
Criminal Procedure (Pre-Trial)
CMP2601
Semester 2
Department of Criminal and Procedural Law
IMPORTANT INFORMATION:
This tutorial letter contains important
information about your module.
,1. Assignment 01 – S2
All questions were considered, totalling 50 marks and expressed in a percentage (50x2=100%).
Most students did very well but a great number ignored our instructions and lost marks. You were
required to have discussed the relevant law applicable to the specific issues involved and to
support your discussions with case law and other relevant sources; to have used footnotes and to
have completed all questions. You were also required to include a bibliography. It was not enough
for this assignment to simply copy the textbook without some independent research reflected in
your text, footnotes and bibliography.
The questions and marks (in italics) and feedback:
QUESTION 1
Discuss the following concepts relating to child offenders and explain when and how they are
applicable in the child justice process.
(i) Diversion
(ii) Restorative justice
(iii) Acknowledging of responsibility
(15 marks)
(i) Diversion
[See also page 78 of Handbook (HB). Note that all sections refer to the CJA unless
otherwise stated.]
1 Introduction
Diversion is described in sec 1 of the CJA as the diversion of a matter involving a child away from
the formal court procedures. Basically diversion means that the child does not undergo a trial but
admits responsibility (which is not the same as admitting guilt) and thereafter completes a
diversion option.
The CJA considers children below the age of 10 years to be irrefutably doli incapax and therefore
lacking criminal capacity. Such child [under the age of 10] is doli incapax and is dealt with in terms
of section 9 of the CJA. 1 A child between 10 and 14 is presumed to lack criminal capacity unless
the prosecution can prove otherwise. 2
Diversion is an option if the child is between the ages of 10 and 14 years where criminal capacity is
likely to be proved. The probation officer must prepare an assessment report after the assessment
proceedings. 3 Such report must be submitted to the prosecutor before the start of the preliminary
inquiry. 4 If the prosecutor determines that criminal capacity is likely to be proven, he may refer the
matter for diversion or refer the matter for a preliminary enquiry. If the prosecutor doubts the
viability of proving criminal capacity, he may refer the matter to a probation officer in terms of
section 9.
1
Section 7
2
Section 11
3
Section 40
4
Section 40(5)
2
, CMP2601/201
The CJA distinguishes three stages when diversion may take place, to wit:
• before the preliminary inquiry
• at the preliminary inquiry, and
• during trial at the child justice court.
Diversion during trial is appropriate but it must take place before conclusion of state’s case
followed by a postponement of the proceedings pending compliance of the diversion order and a
warning given to the child that failing to complete the diversion order, will result in the
acknowledgement of responsibility being recorded as an admission if the trial were to proceed.
Section 65 of the CJA determines that a child must be assisted by a parent, guardian or
appropriate person and legal representation could be appointed by Legal Aid to assist in the
preliminary hearing.
2 Who may recommend diversion in respect of schedule 1, 2 and 3 offences of the CJA and
at what stage?
SCHEDULE 1 OFFENCE SCHEDULE 2 OFFENCE SCHEDULE 3 OFFENCE
(prosecutorial diversion) (preliminary inquiry and trial) (preliminary inquiry and
trial)
The prosecutor may in terms The prosecutor may for a The DPP only may within his
of s 41 relating to schedule schedule 2 offence area of jurisdiction in respect
1offences divert a matter - recommend or oppose of the serious offences
• before the preliminary diversion at mentioned in schedule 3 must
enquiry, • a preliminary enquiry or give reasons in writing to the
• at the preliminary • at the child justice court presiding to divert -
enquiry or The presiding officer makes • a preliminary enquiry or
• before the close of the the final order. • at the child justice court
state’s case in the child
justice court. The prosecutor hands the
The prosecutor’s decision to DPP’s decision to the court
divert must be made an order who then decides to make or
of court by a magistrate decline the order.
(confirmed by the court as an The presiding officer makes
order of the court even though the final order
the decision is made by the
prosecutor).
3
, 3 What are the minimum requirements in respect of schedule 1, 2 and 3 offences to be
met before diverting?
SCHEDULE 1 OFFENCE SCHEDULE 2 OFFENCE SCHEDULE 3 OFFENCE
• Child acknowledges • Child acknowledges • Only in exceptional
responsibility for the responsibility for the circumstances which are
offence. offence. given in writing by the DPP
• There is a prima facia • There is a prima facia and the prosecutor submits
case against the child. case against the child. the decision by the DPP that
• The child has not been • The child has not been the matter may be diverted.
unduly influenced. unduly influenced. • Must conform to the NPP’s
• The child and parent, • The child and parent, directives on diversion
guardian, appropriate adult guardian, appropriate • The victim has expressed
have given consent. adult have given his or her views on diversion.
• If the child is between consent. • The investigating police
10 and 14 years the • The prosecutor officer has been consulted.
prosecutor must be indicates that the matter • Child acknowledges
satisfied that the child is may be diverted. responsibility for the offence.
criminally capable. • The victim has been • There is a prima facia case
consulted on diversion. against the child.
• The investigating police • The child has not been
officer has been unduly influenced.
consulted • The child and parent,
• The magistrate must be guardian, appropriate adult
satisfied that the child is have given consent.
criminally capable • The court must be satisfied
that the child is criminally
capable
4 What diversion options must be applied when diverting?
SCHEDULE 1 OFFENCE SCHEDULE 2 OFFENCE SCHEDULE 3 OFFENCE
Level one diversion- options Level two options apply to Level 2 diversion options –
apply to schedule 1 offences schedule 2 offences and may applies to schedule 3
and may not, if a time period not, if a time period is offences and may not, if a
is applicable, exceed 12 applicable, exceed 24 time period is applicable,
months in the case of a child months in the case of a child exceed 24 months in the
under 14 or 24 months for a under 14 or 48 months for case of a child under 14 or 48
child over 14 year of age. children older than 14. Level months for children older
This level presents in terms two diversion options are than 14. Level two diversion
of s 53(3) diversion options seen as more serious in options are seen as more
ranging from the mild (such nature. The options for level serious in nature by virtue of
as writing a letter of apology 1 offence are still available s 53(4) (such as placement in
to the victim) to the formal but may then be combined a vocational programme,
(such as attendance of a with more serious intensive therapy and
programme, restitution, consequences mentioned restriction of movement
compensation service to the and 53(4) (such as under the supervision of a
victim). placement in a vocational probation officer). The
programme, intensive options for level 1 offence
therapy and restriction of may be combined with more
movement under the serious consequences.
supervision of a probation
officer).
4
