SKWEYIYA ADCJ
[38]
A second important principle is that the law ought to make allowance for an
individuated approach41 to child offenders.
The best-interests standard should be
flexible because individual circumstances will determine which factors secure the best
interests of a particular child.42 In M, this Court held:
―A truly principled child-centred approach requires a close and individualised
examination of the precise real-life situation of the particular child involved. To
apply a predetermined formula for the sake of certainty, irrespective of the
circumstances, would in fact be contrary to the best interests of the child
concerned.‖43
[39]
Individualised justice is foreseen in the Child Justice Act.
It requires that
certain guiding principles are taken into account in the implementation of criminal
justice concerning children. These include that all ―consequences arising from the
choices generally more constricted, than those of adults. They are less able to protect
themselves, more needful of protection, and less resourceful in self-maintenance than adults.
These considerations take acute effect when society imposes criminal responsibility and
passes sentence on child offenders. Not only are children less physically and psychologically
mature than adults: they are more vulnerable to influence and pressure from others. And,
most vitally, they are generally more capable of rehabilitation than adults.
These are the premises on which the Constitution requires the courts and Parliament to
differentiate child offenders from adults. We distinguish them because we recognise that
children‘s crimes may stem from immature judgment, from as yet unformed character, from
youthful vulnerability to error, to impulse, and to influence. We recognise that exacting full
moral accountability for a misdeed might be too harsh because they are not yet adults. Hence
we afford children some leeway of hope and possibility.
This is not to say that children do not commit heinous crimes.‖
40
See [27] above.
41
Centre for Child Law above n 39 at para 32.
42
Fitzpatrick above n 36 at para 18.
43
M above n 37 at para 24. See also AD and Another v DW and Others (Centre for Child Law as Amicus
Curiae; Department for Social Development as Intervening Party) [2007] ZACC 27; 2008 (3) SA 183 (CC);
2008 (4) BCLR 359 (CC) at para 55 in which this Court held:
―Child law is an area that abhors maximalist legal propositions that preclude or diminish the
possibilities of looking at and evaluating the specific circumstances of the case. . . . This
means that each child must be looked at as an individual, not as an abstraction.‖
21
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