Pretoria - While the 14-year-old Mbilwi Secondary School learner arrested for assaulting Lufuno Mavhunga is set to face the consequences of her alleged actions, the Child Justice Act tries as far as possible to divert minors away from the criminal justice system.
This is according to Zita Hansungule of the Centre for Child Law, an expert on the child justice system.
The teenager was on Thursday granted R1 500 bail at the Thohoyandou Children’s Court and released into the care of her mother.
She was arrested after a video of her assaulting the 15-year-old, who later took her life, went viral.
Hansungule explained that a child charged with committing an offence was dealt with in terms of the Child Justice Act of 2008. If a case related to bullying had been referred to the police and prosecutors, the child would usually be charged with either common assault or, depending on the circumstances and severity of the assault, with intent to do grievous bodily harm.
The Child Justice Act provides for processes from when a child is arrested (or if they should be arrested or released into the care of parents/guardians), to determining whether they should go through a trial or be diverted away from the criminal justice system. It also addresses what sentences should be handed down, and is appropriate in the circumstances, if a child is found guilty by a Child Justice Court for committing a crime.
According to Hansungule, the main features of the act include that children should be provided with the necessary support for rehabilitation and reintegration into the community.
“The act makes provision for children who have been charged with crimes to be referred to the care and protection system if it is believed that the child is in need of social work and/or related intervention.
“When children are diverted from the criminal justice system (by prosecutors or courts) they could be referred to rehabilitative and/or therapeutic programmes, counselling or therapy, community services and more.”
Hansungule said the provisions of the Child Justice Act recognise that an offence has been committed, that there is a victim who has suffered as a result of the offence and that the community requires crimes to be punished.
However, the act aims to adopt a balanced approach and affirms the fact that children in conflict with the law need to be held accountable but also that children have a high chance of being rehabilitated and prevented from re-offending.
Hansungule said it should, be noted that bullying and its impact was not just a criminal justice issue.
“Preventative and early intervention efforts should be made to address bullying at a societal and community level, so as to avoid the criminalisation of children.”
She suggested that interventions by schools, family and the community be used to determine what was going on in children’s lives that would cause them to bully others or to act in other ways.
Such interventions should be able to provide the necessary support at different levels to avoid incidents that lead to crimes.
Hansungule said schools had a particularly important role to play.
They, with their governing bodies, are tasked, by the Schools Act 1996, with the responsibility to adopt codes of conduct that establish disciplined and purposeful school environments.
“The codes of conduct must, among other things, inform learners about the manner that they should conduct themselves, promote dignity, non-violence and freedom and security of the person. The heads of schools and student governing bodies must ensure that the codes of conduct are complied with and facilitate disciplinary processes when the code of conduct is infringed.”
Hansungule said codes of conduct (or particular policies/protocols developed to support the code of conduct) could be framed in a manner that ensures discipline in schools, respect for constitutional rights and provision of support to learners.