The diversion process

The aim of the diversion mechanism in CJA of South Africa is to fulfil the provision of section 28(2) of the Constitution of the Republic South Africa, which provides that the best interest of the child must be paramount important in all matters affecting the child.

The CJA provides for various stages of diversion which include diversion by the prosecutor before the preliminary inquiry or magistrate during the preliminary inquiry.

Normally, the Prosecutor effect diversion in term of offences listed in schedule 1 of the CJA, while the magistrate exercises the diversion in term of offences listed in schedule 2 and 3 of the CJA.

Unlike South Africa, diversion in South Sudan is exercised by a social worker, police officer, prosecutor or the judge in accordance with specific provisions stipulated in the SSCA and/or other legislation permitting such diversion.

In both South Africa and South Sudan diversion shall be resorted to after satisfying the followings requirements:

 That child accepts the responsibility;

 that a prima facie case has been established against the child; and

 that the child, if available, parent, guardian or appropriate adult consents to the diversion.

The CJA provides that the prosecutor or the Director of Public Prosecution shall indicate that the matter has been diverted.

The CJA also provides for diversion options and categorizes diversion to level one, which may be conducted before preliminary inquiry in respect of the offences listed in schedule 1 of CJA whereas level two of diversion shall be conducted during the preliminary inquiry in respect of the offences listed in schedules 2 and 3 of the Child Justice Act respectively.

In addition, the South African diversion mechanism has been structured to strike a balance between the circumstances of the child, nature of the offences and the interest of the society.

In South Africa, the CJA provides for diversion programmes and diversion service providers, which are accredited in accordance with the provisions of the Act. Normally, the diversion service providers are issued with the certificate of accreditation.

The CJA provides for a system of monitoring the compliance with the diversion order which requires the magistrate to appoint a probation officer or any suitable person to monitor the compliance of the child with diversion order which is required to be made order of the court.

Comparatively, SSCA does not provide for any procedures with respect to accreditation and certification of diversion service providers.

In terms of CJA compliance of the child with the diversion order shall have the following consequences:

 The prosecution with the same facts may not be re-instituted.

 It shall not constitute previous convictions in term of the Criminal Procedure.

 No private prosecution shall be allowed.

In accordance with provisions of the CJA it is a mandatory requirement that the diversion order must be registered in the Registry kept with the Commissioner of Police.

Similarity the SSCA grants all children access to the diversion option. The SSCA further states that corporal punishment and public humiliation shall be considered as part of diversion. Under SSCA, a child of thirteen years of age shall not be diverted to carry out community service activities.

5.3 RESTORATIVE JUSTICE

The concept of restorative justice both in South Africa and South Sudan is aimed at the following:

 Bringing the child offenders, victims of crime, families and the community together for the purpose of redressing the harm caused by the offences;

 accepting responsibility by offenders;

 making monetary or restitution in kind;

 taking appropriate measures in preventing the occurrence of the crimes; and

 encouraging reconciliation between the offenders and the victims and this process includes communities affected by the crime as third parties.

It is important to note that the mechanisms for restorative justice are similar in the two countries. Notably, these are mostly conducted through family group conference and the victim-offender mediation.

In terms of the CJA the family group conference is facilitated by the probation officer or diversion service provider. Here, the child and the victim must consent to the proceedings. Throughout the proceedings, the mediator of victim-offender mediation is the probation officer or diversion service provider appointed by the magistrate.

However, this is different in SSCA where both family group conference and victim- offender mediation is facilitated by the Child Justice Committee which it function, inter

alia is to facilitate and monitor restorative justice mechanisms.

Moreover, the Chairperson of the Child Justice Committee is mandated to refer a child who fails to abide by the decision of the family group conference or victim- offender mediation to the family or children’s court.

Whereas the family group conference is commonly conducted in the rural areas where community and the family are present, the victim-offender mediation is conducted in urban centres. Usually, the referral to the Child Justice Committee are recommended by the child, his or her parents, chief, police officer, public prosecution attorney, court or social worker.

This kind of referral makes the restorative justice ineffective and creates serious procedural overlap of responsibilities among all the stakeholders - child, parents, social worker prosecutor or the court.

It is thus advanced that the provisions of SSCA allowing for the referral of the child to the Family or Children Court by the Chairperson of the Justice Committee instead of considering referral by the Prosecutor could be regarded as procedurally wrong. More so, it is submitted that it is not logically right for a child who had allegedly committed a crime to refer him or herself, or for his or her parent to refer the child to the Child Justice Committee.