When a child under 18 is arrested in South Africa, the Child Justice Act 38 of 2008 takes over: the child must be assessed by a probation officer within 48 hours, a preliminary inquiry must be held before a magistrate, and diversion is considered before prosecution. Children aged 10 and 11 can only be prosecuted for serious offences with special authorisation, and children under 12 have no criminal capacity at all since the minimum age was raised.
The Act exists to keep children out of the criminal justice system where possible, using restorative justice instead of punishment, while still prosecuting serious offending by older children. Parents who understand the sequence can protect their child’s record; parents who miss the 48-hour steps often lose diversion options permanently.
This guide sets out what happens step by step from arrest, the age rules, diversion, and what it all means for your child’s future.
Who the Act Covers and the Age Rules
The Child Justice Act governs every child under 18 alleged to have committed an offence. The Child Justice Amendment Act 28 of 2019 raised the minimum age of criminal capacity from 10 to 12, so a child younger than 12 cannot be arrested or prosecuted. Such a child may be removed to a place of safety and referred to a probation officer, but not charged.
Children aged 12 and 13 have criminal capacity, but the National Director of Public Prosecutions must authorise any prosecution of a child under 14. Children of 14 and older are prosecuted in the ordinary way, though still through the Act’s procedures and sentencing framework.
What Happens After Arrest, Step by Step
- Arrest, summons or written notice. For minor offences the police may give a written notice or summons instead of arresting. On arrest, a parent or guardian must be contacted as soon as possible.
- Placement decision. The child must be released into a parent’s care or to a place of safety wherever possible. Police cells are a last resort, for the shortest possible time, never shared with adults, and never overnight for children under 10 years.
- Assessment by a probation officer within 48 hours. The probation officer interviews the child, establishes the circumstances, and recommends diversion or prosecution.
- Preliminary inquiry within 48 hours after assessment. A magistrate, the prosecutor, the probation officer, the child and the parents meet to decide release, placement, diversion or trial. This is the single most important stage in the process.
- Diversion or prosecution. If diversion is agreed, the child completes a programme such as counselling, community service or a restorative justice conference, and the matter ends without a conviction. Otherwise the child is prosecuted in a Child Justice Court.
- Sentencing if convicted. Sentences are individualised: compulsory school attendance, orders, community-based sentences, restorative outcomes, or, as an absolute last resort for children of 14 and older convicted of the most serious offences, imprisonment.
- Record and expungement. Diversion records and certain convictions can be expunged later, and records are confidential and closed.
Diversion: Avoiding a Criminal Record
Diversion is the Act’s centrepiece. Instead of prosecuting, the child accepts responsibility and completes a structured programme, from a simple apology and counselling to community service and intensive programmes for more serious matters. On completion, the criminal case falls away and the child keeps a clean record.
Diversion depends on the offence schedule and the child’s history, and the decision is effectively shaped at the preliminary inquiry. A parent who arrives at the inquiry without understanding this, or with the child unrepresented, can lose a diversion opportunity that was available on the day.
Rights Every Arrested Child Has
- Parental notification as soon as possible after arrest, and a parent present during key stages.
- No detention with adults, and detention itself only as a last resort, in child-appropriate facilities.
- Legal representation, at state expense where the family cannot afford an attorney, and the right to be heard in proceedings.
- Privacy: proceedings are closed, and publishing the child’s identity is a criminal offence.
- Protection from adult procedures, including the right to be treated in a manner appropriate to the child’s age.
Serious Offences and Imprisonment
Children of 14 and older convicted of the most serious offences, such as murder or rape, can be sentenced to imprisonment, but only as a last resort and for the shortest appropriate period, and the Act prefers compulsory residence in a child and youth care centre. Sentences are reviewed as the child matures, and parole conditions differ from the adult system.
Even in these matters the Act’s protections apply: assessment, preliminary inquiry, and consideration of restorative justice remain part of the process, and the court must hear evidence about the child’s home environment before sentencing.
Common Mistakes Parents Make
- Treating the preliminary inquiry as a formality. Diversion and release are decided here, and missing it or arriving unprepared changes the whole case.
- Letting the child explain to the police. Children have the right to silence too, and statements made without a parent or lawyer present are used in court.
- Assuming a child cannot get a record. Convictions before the Child Justice Court are real convictions; diversion is what prevents the record.
- Ignoring diversion conditions. Failure to complete a diversion programme sends the matter back to prosecution.
- Delaying legal help until trial. The decisive stages, assessment and inquiry, happen within days of arrest.
- Signing documents unread. Acknowledgements and admissions have consequences, whatever the child’s age.
Frequently Asked Questions
At what age can a child be criminally charged in South Africa?
The minimum age of criminal capacity is 12, after the Child Justice Amendment Act 28 of 2019 raised it from 10. A child under 12 cannot be arrested or prosecuted, though the child may be referred to a probation officer or children’s court. Children aged 12 to 13 can only be prosecuted with the authorisation of the National Director of Public Prosecutions.
What happens within 48 hours of a child’s arrest?
Two things. A probation officer must assess the child within 48 hours, and a preliminary inquiry before a magistrate must follow within 48 hours of the assessment. At the inquiry the magistrate, prosecutor, probation officer and parents decide on release, placement, diversion or prosecution. These stages decide whether the child can avoid a criminal record.
Will a child get a criminal record under the Child Justice Act?
Not if the matter is diverted. Diversion means the child accepts responsibility and completes a programme, after which the case ends without a conviction or criminal record. A conviction in a Child Justice Court is a real record, though it is confidential and certain diversion and conviction records can be expunged later.
Can a child be locked in a police cell in South Africa?
Only as a last resort, for the shortest necessary time, never in a cell with adults, and not overnight for children under 10. The Child Justice Act requires children to be released into a parent’s care or a place of safety wherever possible, with secure care reserved for children who must be detained for serious matters.
Your child has been arrested. Otrebski Attorneys’ Sandton team acts urgently in child justice matters, protecting diversion and your child’s record. Call 060 500 3098, after hours 072 779 0866, or book an appointment.
Disclaimer. This article is general legal information, not legal advice. Child justice outcomes depend on the child’s age, the offence and the probation assessment, so confirm your matter with an admitted attorney or the probation officer handling the case.