Dissel, A. (1999). Children Serving Gaol Sentences: A profile on children sentenced to prison. Research report for the Centre for the Study of Violence and Reconciliation, August.
Research report written for the Centre for the Study of Violence and Reconciliation, August 1999.
Amanda Dissel is Manager of the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
I am indebted to the Department of Correctional Services for permission to conduct this study of children in prison. I would also like to give special thanks to Ms Joyce Mashego, Mrs Marx and Mariazane Rousseau for assistance with information and statistics. Thanks should also go to the heads of the prisons we visited and the various individuals at each prison who assisted with the study.
Thanks also to Kindiza Ngubeni, Jabu Dlamini and Kim Porteus for assistance with the interviews.
Lastly, but most importantly, I would like to thank all those young people who participated in the study and who willingly shared their stories with us.
This research was made possible with the generous support of our funders, particularly the Embassy of Ireland and the Royal Netherlands Embassy.
In recent years there has been a substantial body of interest and research into children in conflict with the law (for the purposes of this paper, a child is defined as a person younger than eighteen years of age). Much of this has originated from a concern that the criminal justice system fails to adequately address the needs and concerns of children without further brutalising them in their interaction with the system. The government has recognised the urgency of attending to the problem of young people in trouble with the law, and President Mandela has stated that
… the Government will, as a matter of urgency, attend to the tragic and complex question of children and juveniles in detention and prison. The basic principle from which we will proceed from now onwards is that we must rescue the children of the nation and ensure that the system of criminal justice must be the last resort in the case of juvenile offenders.1
Much of the research and work in this area has centred on the place of the child within the criminal justice system, focussing largely on the unsentenced child. There is great concern over the numbers of children who are apprehended, detained, and perhaps, charged with crime, and the treatment which they receive. Specific legislative attention has been directed at the child held in detention awaiting trial and various amendments have been made since 1995 to the criminal Procedure Act and the Correctional Services Act to facilitate their detention under certain circumstances. Research has also focussed on the trial process, and the rights accorded to the child in the court and on the situation of children in pre-trial detention. The new Draft Child Justice Bill (1998) proposed by the South African Law Commission seeks to establish a criminal justice system for children and to ensure "an appropriate and individual response towards each child accused of committing an offence while still holding him or her accountable to his or her actions". However, relatively little attention has been focussed on the child who has been sentenced to imprisonment in South Africa.
However, despite this ostensible commitment to using the criminal justice system as the last resort for young offenders, increasing numbers of children are being detained and sentenced to imprisonment in South Africa. Two questions arise in relation to the children who are sentenced to imprisonment. The first is whether sentences of imprisonment are being used only in the last resort, and then only in cases where no other suitable remedy exists. The second is whether the penal system for children in South Africa can serve any useful purpose by preventing these children from becoming involved in crime once they are restored to the society, or whether it serves merely to further brutalise them. In relation to the latter question, a situational analysis report was compiled for UNICEF in 1998 looking at the conditions of sentenced and unsentenced children in prison, which details the poor conditions in prison, the lack of stimulation, inadequate education and concludes that the prisons accommodating children in South Africa "… are dehumanising, humiliating and must in the scheme of things, produce hardened, bitter children without faith in the goodness of society."2
This paper aims to address the first question, and it tries to do so by looking at who are the children who are sentenced to imprisonment. This paper is based on a study conducted by the Centre for the Study of Violence and Reconciliation(CSVR) looking at the trends in imprisonment of sentenced children over the past few years and conducting interviews with 61 young prisoners in five prisons in Gauteng. The study begins to highlight a profile of the offenders sentenced to terms of imprisonment, and of the crimes for which they were convicted.
In the CSVR study, five prisons were visited during 1997 which accommodate children in Gauteng – Pretoria Central, Boksburg, Leeuwkop, Krugersdorp and Johannesburg. The study primarily draws on interviews with the children, but also refers to statistics provided by the Department of Correctional Services head office, as well as those provided by the prisons themselves. Some of the individual files of the children were also examined, but apart from limited biographical details about the inmates, these contained little substantive information. The official information from the prisons proved to be unreliable. In a number of circumstances, children interviewed admitted that they were older than appeared on the official records, or were no longer children. In other instances, the Department had records of children which did not correlate at all with the names or details of the children interviewed. Most of the warrants of detention referred only to the conviction and sentence. Few warrants contained any further comments from the magistrate about the sentence.
Most of the qualitative information in the study originates from the interviews with the children themselves. Inmates were interviewed who were on record as being under the age of eighteen years on the date of the interview. However, on interviewing them, several admitted to being 18 years or older. None-the-less, their information is incorporated into this document as they continue to be treated as children by the Department of Correctional Services (DCS) until a formal change has been entered into their records, and it was felt that valuable information may have been excluded. Sixty one juveniles were interviewed at the five prisons. Eleven of these juveniles were older than 17 years, but their responses have been included here since most of them were sentenced while they were still children.3
Efforts were made to select interviewees by choosing the fourth person in the list of names, however this was not always possible. At times, selected children were at work, court or school, and could not be interviewed. At other times, their ages were misrepresented and they were older than appeared on the records. In these instances another child had to be selected. Attempts were therefore made to select interviewees who would be representative of the inmate population by selecting them on a spread of crimes and ages.
The interviewees were asked questions designed to ascertain the severity of the offence for which they were convicted. Although the Department keeps statistics on the crime for which the child has been convicted, there is no indication of the seriousness of the offences. Without analysis of the information presented at the trial it is difficult to make a true assessment of the nature or severity of the crime. Questions ranged from personal information relating to age, educative level and family background. Information was requested concerning previous convictions and sentences received, as well as information relating to the current conviction and sentenc.
Although this study was meant to be representative of both genders, circumstances at the time determined that most of the interviewees were male. Only one of the prisons in the sample did accommodate female prisoners, and only one sentenced child was in the prison during the period of the study. This young girl was interviewed and the results have been incorporated into this paper.
To create a framework for this study it is necessary to look at how children are defined in the criminal justice system. According to common law, children under the age of 7 years are deemed to be doli incapax and are regarded as not legally responsible for their crimes. Children between the ages of 7 and 14 are presumed to be doli incapax, although this is a presumption which may be rebutted by the State. According to S v Dyk4 the test is the state of mind and general appreciation of the child at the time of committing the offence. However, a study of juvenile courts by Hutchinson called into question whether courts were in fact fulfilling their duty of discharging this presumption before convicting children between the ages of 7 and 14 years of age, and he found little evidence on examination of the court records which indicated that the State had done so.5 Children above the age of 14 years are deemed to have the same criminal responsibility as adults.
The Criminal Procedure Act, No. 51 of 1977, draws a distinction between children under the age of 18 years, and juveniles between the ages of 18 and 21 years, to the extent that it provides for special procedures in the dealing with a child after arrest, and during court proceedings.6 However, on the whole, rather than a specific system pertaining to the treatment of juvenile offenders, the criminal justice system has treated children like adults.
The Correctional Services Act,7 on the other hand, defines a juvenile as any person under the age of 21 years of age, and does not have any special definition of a child prisoner. Section 20(1)(b) states that the Minister may establish prisons for the detention training and treatment of juveniles and such prisoners who may by reason of their immaturity in the opinion of the Commissioner "more appropriately be classified as juveniles". Regulation 137 to the Act states that pending removal to such a prison, a juvenile sentenced to imprisonment shall "as far as possible" be segregated from older and more hardened prisoners.8
The present Correctional Services Act only differentiates the treatment for prisoners younger than 18 years in relation to unsentenced prisoners (Section 29). However, nothing in the Act refers to the specific type of regime under which a sentenced juvenile, or particularly a person under the age of 18 years should be treated. So the same regime applies to juveniles as it does to adults. Nor is the age at which such a person should be separated from older inmates specified. The Act also does not specify the youngest age of a person who can be admitted into prison. Prisons can therefore accommodate children from the age of 7 years when they may be deemed to be criminally liable for an offence.
The Constitution of the Republic of South Africa of 1996 now defines a child as any person under the age of 18 years.9 The Constitution outlines the rights of a child, and in relation to detention, states that detention should not be used "except as a measure of last resort". It states also that the child should only be detained for the "shortest appropriate period of time", and that such child has the right to be:
- Kept separately from detained persons over the age of 18 years, and
- treated in a manner, and kept in conditions, that take account of the child's age.10
It is therefore currently only in terms of the Constitution that child prisoners are specifically protected, and that it is required that they receive specific treatment. The Department has also produced a comprehensive draft document looking at various aspects of child incarceration.11 This document envisages a new approach to young offenders, and recommends that children are held in youth correctional centres. While one youth correctional centre has been established in Newcastle (Ekuseni Youth Development Centre) this is not yet the norm, and an analysis of these proposals falls outside the scope of this paper.
A new Correctional Services Act, No 111 of 1998, recently passed by Parliament and in terms of which only selected sections have thus far been promulgated,12 defines a child as a person under the age of 18 years of age. In terms of Section 19 of the Act, child prisoners are to be subject to compulsory education and to have access to educational programmes. The Commissioner also has the obligation to provide every child prisoner with "social work services, religious care, recreational programmes and psychological services" (S 19(2)). Where practicable, the Commissioner should ensure that such prisoners retain contact with their families through additional visits and other means. Although the Act recognises the basic needs of young prisoners and mandates the Department to provide certain basic services, it does not go very far towards establishing a comprehensive policy regarding the incarceration of young people.
The International Framework
The existing law in South Africa provides very little detail on the treatment and conditions for incarcerated offenders. It is therefore important to look at international conventions which may provide some greater understanding on how children deprived of their liberty should be treated. We must also examine the extent to which any of these conventions are applicable in the South African context.
Article 10(1)(b) of the International Covenant on Civil and Political Rights lays the foundation for the distinction between juvenile and adult prisoners by stating that juvenile prisoners shall be separated from adult prisoners and should be accorded treatment appropriate to their age and legal status. The specific treatment of juveniles in detention was addressed by the United Nations in 1985 in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules).13 Together with the United Nations Rules for the Protection of Juveniles Deprived of their Liberty14 (which defined juveniles as persons under the age of 18 years), these rules seek to establish minimum standards of treatment for juveniles deprived of their liberty.
Perhaps the most significant of the international instruments for South Africa is the United Nations Convention on the Rights of The Child (CRC) adopted by the UN General Assembly on 20 November 1989, and ratified by the South African Parliament on 16 June 1995. This instrument is a treaty binding upon its signatories in international law.15 The CRC deals with the rights of children to health, education, and in respect of children who have infringed the penal law it established that they should be treated in such a way that promotes their sense of dignity and self worth and that aims at reintegrating them into society. The rights of children deprived of their liberty is spelt out in Article 37.
South Africa has rejoined the United Nations and is a member of the Organisation for African Unity (OAU), the South African Development Community and the British Commonwealth. All these bodies subscribe to the protection of the rights of children, and consequently should encourage the South African government to incorporate the principles into domestic law and abide by them in practice.
Section B: Imprisonment of Children in South Africa
During 1993/1994, Statistics SA figures state that 32 863 children were convicted and sentenced for crimes- a decrease from the 1991 figure of 36 168. By 1995/1996, this figure had reduced to 17 526 children convicted of crime.16 This may partially be attributed to the large numbers of children convicted for politically related offences during the late 1980s and early 1990s, and to the growth in diversion from prosecution of child offenders. However, it probably also reflects the general downward trend in the number of convictions in South Africa.17
Sentences for convicted children vary, although the majority are sentenced to non-custodial sentences. According to a study of convicted children conducted by Sloth-Neilson and Said in 1994, more than 55% of the sanctions handed down to their sample involved deferred, postponed or suspended sentences.18 Until 1995 when the Constitutional Court declared it unconstitutional,19 whipping was a common form of punishment for all ages of offenders. During 1991, 38 324 people were given sentences of whipping, the majority of whom were children.20 In Sloth- Neilson and Said's study, when the use of corporal punishment was already on the decline, less than a quarter of the children received sentences of whipping. Only 5.4% received imprisonment sentences. Since the abolition of corporal punishment, it is not clear what sentences are being meted out to those children who would otherwise have received this non-custodial sentence. Although over recent years, attempts have been made to increase the non-custodial options available to courts, there is still limited use of these options, and it is apparent that courts often rely on the standard punishment of imprisonment.
Despite the decrease in the numbers of child convictions, the numbers of child prisoners is increasing, indicating a greater reliance on the use of imprisonment as a sentence. On 31 August 1994, there were 716 sentenced children in custody in South African prisons. By 30 June 1998 this figure had increased to 132121 sentenced children in custody. The numbers of children in custody was not always so high however, as in August 1998 (the month selected for all our comparisons) the figure stood at 1082. This represents an alarming growth in the numbers of children in prison from 1994 to 1998.
The monthly averages for the years 1995, 1996 and 1997 also reflect a significant increase in the number of sentenced child prisoners.
Monthly averages of sentenced child prisoners:
A look at these figures reflects an annual increase of 22% from 1995 to 1996, and a larger increase of 35% from 1996 to 1997. Of particular concern is the indication that not only are the numbers of child prisoners growing, but that this is occurring at an ever increasing rate. This should be seen in contrast to the general prison population which has only increased by 18% from 1995 to 1997.22
Gauteng had the greatest number of children in custody in 1994 and 1996, followed by Kwa- Zulu/Natal. Both areas are characterised by high levels of crime and violence. In terms of the national crime statistics, Gauteng is recorded as the province with the highest rates of crime in respect of most of the serious crimes, followed by Northern Cape and Western Cape. However, Kwa Zulu/Natal recorded the highest rate for murder in the 1997 year.23 With the exception of Gauteng, the numbers of children do not necessarily correlate with the rate at which serious crimes occur in the different provinces.
There was also a slight decrease in figures for Kwa- Zulu/Natal and Gauteng. However, significant increases in the numbers of children can be seen in all the other provinces, notably North West, Eastern Cape and Free State.
Table A: Number of sentenced children in each age group on 31 August 1994, 1996 and 1998 in South Africa
|Age of inmate||31/08/94||31/08/96||31/08/98||Percentage increase|
|7 to 13 years||2||5||9||450%|
The overall increase is 151% over the relevant period. However, the percentage increase in the younger age categories is much greater than in the older categories, although this is largely a reflection of the small numbers of children in these age group. In the 17 year old age group, there is only an increase of 130%. However, it does reflect the court's increasing willingness to sentence younger children to imprisonment.
Crimes for which children are sentenced to imprisonment
The Department of Correctional Services collects statistics according to five general categories: economic, aggressive, sexual; narcotic, and other. Aggressive offences would include violent offences such as robbery,24 assault, murder, culpable homicide, and other.25
Table B: Children in Prisons According to Category of Offence on 31 August 1994, 1996 and 1998. The figure in the right hand column represents the percentage which the crime represents of the total number of offenders for each year.
In each year, the greatest number of children are found in the economic category. A study conducted by NICRO indicates that the highest proportion of child convictions occurs in the property category, and that this proportion has increased from 66.73% in 1987/8 to above 75% in 1993/4.26 Although in 1994, 75% of the convictions were in this category, only 47.4% of the offenders serving imprisonment sentences were held in respect of economic offences.27 This may be related to the fact that other crime categories are viewed more seriously and carry more punitive sentences, such as imprisonment. It may also be related to the fact that other crime categories carry longer sentence terms. This is reflected by the figures for Statistics SA category of those convicted for crime against the 'life and body of a person' which constituted 13.20% of all children convicted of crimes,28 as against the DCS figures for 1994 which indicates that 39.6% of children were serving sentences for 'aggressive' offences, or 9.7% serving sentences for 'sexual' offences. Although relatively few children are convicted of aggressive crimes, they constitute a greater percentage of those serving sentences of imprisonment.
A more detailed breakdown of convictions is provided by a study conducted on child offenders by Rona Cochrane. The percentage of prisoners in the sexual category showed the most significant increase from 9.7% in 1994 to 14,6% in 1996, and 32% in 1998. In 1993/4, 894 (or 2,7% of the total number children of convicted children) were convicted of sexual offences, which was a decrease from the 1991 figure of 922.29 According to the DCS figures, a much higher proportion of child prisoners (9.7% in 1994) are serving sentences for sexual offences. This indicates that there is a greater use of imprisonment for sexual offences than for some of the other offence categories. The increase in the number of children serving imprisonment sentences can also be reflective of a more punitive attitude towards sexual offenders. However, it may also reflect the increasing number of rapes which are reported to the police over the last couple of years.30
In contrast the figures indicate that imprisonment is seldom used for children convicted of drug offences. Whereas 1 576 children were convicted of drugs and dependence producing substances in 1993/4,31 only 6 child prisoners were found in this category on 31 August 1994 and 21 in 1998.
The percentage of child offenders serving sentences for aggressive crimes has reduced from 39.4% to 32.4% over the relevant period, although there is an increase in absolute terms. During 1993/4 5454 children(16%) were convicted of violent crimes and robbery.32 This indicates that children convicted of aggressive or violent offences are more likely to receive imprisonment sentences than those convicted of non-violent property offences.
It is often difficult to compare statistics compiled by one agency such as Statistics SA, with another, such as the Department of Correctional Services, as different categories are used, and each category is composed of a variety of different crimes. A further difficulty relates to the fact that a child may be convicted of more than one offence, so that the numbers reflected in any one particular crime category may be greater than the real number of children in prison.
Section C: Children Imprisoned in Gauteng
The study conducted by CSVR was based on child prisoners in Gauteng where the provincial statistics show that Gauteng has the highest number of sentenced child prisoners.33 The findings are based on figures provided by the Department of Correctional Services for 1996.
Eleven prisons in Gauteng can accommodate child prisoners (These are Zonderwater, Pretoria, Boksburg, Nigel, Modderbee, Heidelburg, Leeuwkop, Krugersdorp, Johannesburg, Vereeniging and Bavianspoort). However, not all the prisons were accommodating children at the time of the study. Some of these prisons have special units which are separate from the main body of the prison and constructed or converted into juvenile prisons, while in other prisons, juveniles are merely accommodated in a separate section of the main prison.
Contrary to the trends noticeable for the whole of South Africa, the numbers of sentenced children in Gauteng prisons has decreased slightly over this period from 259 prisoners in 1994 to 257 in 1996. However, it should be borne in mind that this study represents a comparison of figures on a particular day of the year, two years apart, and cannot provide a holistic picture of the situation.
The numbers of children increased in all age groups except in the oldest category, where they decreased. The numbers of children at the younger age groups increased in a greater proportion to the number of sentenced children in the higher age groups. One particular concern was that there were three children serving sentences in the 7 – 13 age group in 1996, as opposed to one in 1994.
Table C: Children in Gauteng Prisons According to Crime Category on 31 August 1994 and 1996. The Figure in Brackets is the Percentage Which the Crime Category Represents of the Total Number of Prisoners.
|Economic||131 (50.5%)||126 (49%)|
|Aggressive||98 (37.8%)||92 (35%)|
|Sexual||20 (7.72%)||30 (11.6%)|
|Narcotic||2 (0.7%)||1 (0.4%)|
|Other||8 (3.08%)||8. (3.1%)|
Again most inmates had been convicted in the economic category. The percentage of children sentenced in terms of this category was higher in Gauteng than in the other provinces.
Length of Sentence
Table D: Represents the Length of Sentence Given to Children in Gauteng
|Length of Sentence||1994||% of offenders||1996||% of offenders|
|0 – 6 months||8||3%||27||10.5%|
|6 – 12 months||93||35.9%||69||26.8%|
|12 – 24 months||13||5%||9||3.5%|
|2 – 3 years||49||18.9%||35||13.6%|
|3 – 5 years||57||22%||72||28%|
|5 – 7 years||19||7%||18||7%|
|7 – 10 years||12||4.6%||16||6%|
|10 – 15 years||3||1.15%||4||1.5%|
|15 – 20 years||3||1.15%||2||0.7%|
In 1996, thirty seven percent of children were serving short sentences of up to 12 months – most of these serving sentences of between 6 and 12 months (26.8% of prisoners). However there is also a large percentage of children (28%) serving sentences between three and five years. For a child, this can be seen as long sentence.
One child was serving a sentence of life imprisonment in both 1994 and 1996. The international law appears not to support life imprisonment for children. Article 37 of the Convention on the Rights of the Child (CRC) states that neither capital punishment nor life imprisonment without the possibility of release shall be imposed on a child under the age of 18 years of age. While it may be argued that under the current legislation, a person sentenced to life imprisonment does always have the possibility of release on parole, this is not guaranteed. It also seems to conflict with the CRC principle that imprisonment should be used only as a "measure of last resort and for the shortest appropriate period of time" (37(b)). Given that a child would be very young at the time of commission of the crime, and is likely to mature and develop significantly in the twenty years after conviction, one questions whether prison would be the appropriate place for that growth to occur, particularly in South Africa where there are limited facilities which engage offenders in developmental programmes.
These statistics present a particular picture of the crimes for which children have been sentenced. However, such figures always present a one dimensional profile of the children in prison. The in-depth interviews conducted with children during the CSVR study at the selected prisons were aimed at obtaining a greater understanding on the nature of the offences for which children had been sent to prison, and also to understand what kind of children these were.
Section D: Children at Johannesburg, Boksburg, Pretoria, Krugersdorp, and Leeuwkop Prisons
These prisons were visited over a period of four months. On the day of each visit, the official statistics of the children currently in custody was obtained from the prison, and several of the children were interviewed. Sixty one inmates were interviewed at the prisons, of whom 50 were children.34
Crimes for which children were convicted
On the day of each visit to the prison we had access to records reflecting the details of prisoners. From the prison records it can be ascertained that a number of children had been convicted of more than one crime. Of the records of the 168 children that were accessed, they had been convicted of a total number of 305 crimes. Although it averaged out at 1.8 crimes per child, in reality 38, or 22.6%, of the children were serving sentences for more than one offence, indicating that almost a quarter of the inmates had committed multiple offences. Of the 61 children interviewed, they had been convicted of a total of 84 separate crimes.
Two prisoners in Johannesburg prison showed a marked propensity for multiple offending. One boy, Veli,35 had been convicted of 10 offences, and another had been convicted of 12 offences. In total, eight of the children at Johannesburg were serving sentences for more than one offence, and this ranged in number from 2 to 12 offences. All of these offences fell within the "aggressive" category, such as assault, robbery, illegal possession of a firearm, murder, car- hijacking and robbery. Eleven of the children in Boksburg had also been convicted on a number of crimes, with one child having been convicted of 10 offences. In most cases the offences for which these children were convicted were subsidiary or related to the main offence. For example, where a child had been convicted of robbery, he was sometimes also convicted of illegal possession of a firearm and ammunition, or of assault or murder.
The offences for which the interviewees were convicted have been classified for our reference purposes into three broad categories, following the Department of Correctional Services categories: economic offences36 (28 interviewees); aggressive offences37 (42 interviewees); and sexual offences38 (14). In some instances the children had committed more than one offence cutting across two or more of these categories. For example two interviewees were convicted of rape and robbery- sexual and aggressive offences.
Since not all the warrants of detention were available to the researchers, or where they were, these did not provide the detailed information required, the interviewees were asked for details of the offences for which they were serving their sentences.
Of the six people who had been convicted of car theft, the sentences handed down varied from three to six years, although since a portion of some of the sentences were suspended, no person would be serving an actual sentence of more than four years. Another child who had been previously convicted of housebreaking for which he had received a four year suspended sentence, received a five year sentence for the car theft, and his suspended sentence was also put into operation.
Surprising was the magnitude of the sentences handed down to the people who had been convicted of theft out of a car. None of these four children has previous convictions, and no extra violence was indicated. Relatively minor items had been stolen from the cars – a cell phone or a radio tape. Of these cases, sentences ranged between 12 months and three years.
The six children convicted of housebreaking and theft received sentences ranging from 12 months to four years. The child (Tsepiso) who received the most stringent sentence of four years, without any period having been suspended, was a child who was 12 years old at the time of his conviction and admission to prison. He had previously been convicted in 1993 of stealing a bicycle – receiving a suspended sentence, and in 1995 of breaking into a shop – receiving 4 lashes. In relation to the current conviction, he had broken into a shop and stolen 8 cartons of cigarettes. No violence was indicated. Tsepiso said that he came from a broken and disturbed family.
In most of the housebreaking cases, the items stolen were a television and video, clothing or a portable radio.
The four boys convicted of theft had stolen a car radio/cassette player, cell phones, and in one case, a video-recorder and money. The latter received a straight four year sentence. Two boys convicted of theft of a cell-phone received high sentences of three and four years, almost as much as was handed down in the car theft cases, which is a far more serious offence.
A sixteen year old child received a six month sentence for shoplifting R700 worth of goods from a shop. In another case, a boy who was found in possession of a crowbar believed to be for the purposes of committing an offence, was sentenced to one year's imprisonment, none of which was suspended.
It is perhaps unreliable to draw comparisons between the sentences handed down in one case and another without full analysis of the court record. However, it is apparent that the sentences vary quite widely even where the nature of the offence appears to be quite similar. It would also appear that the value of the goods stolen does not necessarily affect the length of the sentence.
The nature and extent of offences in this category were more serious. There were two cases involving children convicted of ten and twelve serious charges; possession of firearms, ammunition, murder and robbery. In one of these cases, the child was also convicted of hi- jacking, receiving a 26 year imprisonment sentence. In the other case a child of seventeen years was convicted of assault – in addition to car hi-jacking, murder, aggravated robbery, and possession of a firearm and ammunition – and was sentenced to life plus 23 years and six months.
There were two cases of armed robbery/robbery and possession of unlicensed firearm where the children received sentences of 8 and 7 years. A child convicted of murder received a sentence of 5 years, while one convicted of culpable homicide received three years.
The value of goods stolen in the robbery cases varied extensively. Two children were convicted of robbery of one pair of shoes – they each received six month sentences. Two boys convicted of robbery of cell-phones received four years each. A child who robbed a vehicle with a knife received 10 years, and a boy who robbed a necklace received 5 years. A boy convicted of two counts of robbery (of R9000 and a video-recorder) received a fifteen year sentence. Armed robbery using firearms of a bottle store which resulted in a six year sentence. The three cases involving rape and robbery were viewed seriously by the court, and the children received sentences of six years (2 children) and ten years.
An analysis of the sentences becomes almost impossible without access to the full details for the case. However, it does appear that the length of sentences varies dramatically, allowing very little in the way of predictability. Aggressive cases not involving the theft of property received a markedly lessor sentence than where robbery was involved.
Nine boys had been convicted of rape. In three of the cases the victims had been much younger than the offenders themselves, at four, six and nine years old. In these cases the boys said that they had not realised that the victims were so young, or they did not realise what harm they were doing through their actions.
Sentences handed down for rape varied between three and nine years. None of these boys had previously been convicted of any offence. The boy who had raped a six year old, received the highest sentence of nine years, of which four were suspended. A child convicted of attempted rape had received a three year sentence, and one convicted of car theft and rape received a ten year sentence. The latter boy advised us that he was stealing the car with a much older man who told him to keep watch while the man raped the woman. He then instructed the boy to rape the woman when he was finished.
It is interesting to look at the actual sentences handed down with reference to the international principles. The Beijing Rules elucidate four guiding principles in the handing down of sentences for children, which are:
- The reaction shall be proportionate to the gravity of the offence, the needs of the child, and the needs of society;
- Restrictions on the personal liberty of the child shall be imposed only after careful consideration and shall be limited to the possible minimum;
- Deprivation of liberty shall not be imposed unless there is a serious act of violence against another person or a persistence in committing serious offences;
- The well being of the child shall be the guiding factor. (Article 17.1)
The Commentary to the Beijing Rules states that this section implies that strictly punitive approaches are not appropriate to children. "Whereas in adult cases and possibly in cases of severe offences by juveniles, just desert and retributive sanctions could be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and the future of the child."39
In South Africa however, the sentences handed down for these offenders appear to be arbitrary and markedly different sentences are handed down for the same or similar offences. This study confirms the wide disparity in sentences handed down for seemingly the same type of offence. In a study of criminal cases involving children in five geographical areas, Sloth-Nielsen also found that:
… in the areas that we surveyed, there were vast differences in relation to the offences for which children were arrested and brought to court, and thereafter vast differences in the sentences that were handed down. Some courts utilised a much wider range of options. There were no clear indications in the results that offences generally regarded as more serious qualified for more serious sanctions. The conclusion of the researchers was that the fate of the juveniles charged in different regions is, overall a somewhat arbitrary affair. If this is indeed the case, it is not penologically justifiable, and the goal of 'equal justice' is not being met.
It is not apparent what principles the magistrate in the CSVR study took into account when sentencing the children. It is not clear whether appropriate forms of alternative sentences were even considered. Only 50% of children interviewed had been interviewed by a social worker for a pre-sentence report, which in most instances, according to the interviewees, had recommended a community-based sanction. For instance, a community-based sanction had been recommended for all seven of the children seen by a probation officer in Boksburg prison. In all of these cases, the magistrate had chosen instead to sentence the child to a term of imprisonment.40
But if the numbers of children who underwent a pre-sentence evaluation were few, there were even fewer children who were legally represented in court, thus indicating that there would have been little argument on their behalf for a non-imprisonment sentence.
Many of the offences for which these children had been convicted, particularly in the property category, could be considered relatively minor, where the risk to the society is minimal, and a non-custodial sentence could have been more appropriate, and combined with a requirement to participate in a rehabilitative or developmental programme, could be quite effective.
Prior Involvement with the Criminal Justice System
The interviewees were asked whether they had ever been arrested, charged or convicted with an offence before. Their own version of events was relied upon and has not been verified. But in many instances, they were prepared to divulge information which would not be on record, suggesting that these result are fairly reliable.
Most of the children (92,7%) were first offenders, and had no prior criminal convictions. This may partially be attributed to the young age of the children. But it also indicates that the courts are willing to utilise sentences of imprisonment as a sentence for a first offence, rather than attempting to sentence first offenders to non-custodial sentence.
Twelve of the offenders (7,3% of interviewees) had received prior convictions. Eight of the offenders in the "aggressive" groups had prior convictions, in most cases relating to less serious property offences. One boy had been convicted of assault. The two most serious offenders had both received prior convictions; for possession of unlicensed firearms and ammunition; and one for hi-jacking. Four offenders in the "economic" category had prior convictions; all of them relating to property offences.
Only one of the offenders in the 'sexual' category had a previous conviction, and this was also for rape. His current conviction was for rape and robbery. The lack of prior convictions in this category may partially be attributed to the age of the interviewees. In a study of 71 convicted rapists in the Eastern Cape, conducted by Rhodes University, it appeared that in most cases, the first time an offender was convicted of rape would be in late adolescence. It was found that the average age of gang rapists on first conviction was 15,7 years, while that of serial rapists was 20,2, and 23,5 for single rapists. Most criminal rapists (those who committed rape during the course of some other criminal activity) were first convicted at 17.1 years.41
Only two of the interviewees had previously received an un-suspended imprisonment sentence. The boy convicted of hijacking had received a five year suspended sentence, but had spent two months in prison, while the boy convicted of rape had received a two year sentence, also spending only three months in prison.
Two children had received a sentence of whipping on their previous convictions. One child had received a warning, while the rest had received suspended periods of imprisonment.
Only one child, ironically the youngest of the group, had two previous convictions. The current conviction related to housebreaking of theft, while one of his previous convictions also related to housebreaking and theft, and one to theft. Veli, who had currently been convicted of ten serious offences, had two prior convictions. He had committed the second offence while out on bail for the first offence. His second offence was tried concurrently with the last ten offences.
Five of the interviewees admitted to having been previously arrested and charged with an offence, four of whom fell within the "economic" group. Prior charges related to theft of a bicycle, pick-pocketing, housebreaking and assault. All of the charges against the offenders had been dropped. A boy in the "aggressive" group had previously been acquitted of car theft.
During the course of the interviews, it became apparent that several of the boys had committed crimes for which they were not caught.
Motivations for committing crimes
The interviewees were not directly asked what motivated them to commit crimes, but some spontaneously gave this information, or it was apparent from discussions around their family backgrounds.
The motivations for committing an offence, in the perspective of the boys, could be classified into 3 categories: those who committed the offences for their own material gain; those who committed a crime in order to earn a subsistence; and those through other motivations.
For Personal Gain
Samuel, convicted of motor car theft stated that his friends also steal cars and that many of them have been sent to prison. He himself was recruited into stealing cars by his friends who at 20 years were older than him. He said that he had stolen cars several times before he was caught, and with the profit he had purchased nice clothes. He had not given any of this money to his parents for living expenses. He said that the cars were stolen on order from a scrap dealer.
Sipho's story indicates the extent that the materialist culture plays in acquisitive crimes. He said that he lived with his father and mother who is a nurse, but his father had been arrested and imprisoned for robbery. Since his father was imprisoned, Sipho felt it was his duty to support his mother. However, rather than using the fruits of crime for food and maintaining the household, he used the profits to buy attractive goods. He said that he knew several friends who were successful in housebreaking and theft and who had "decorated their homes with music systems and video machines. I thought that I can do the same because my mother wasn't earning enough to furnish our home and support us."
Although Sipho has not been convicted of any previous crimes, he admitted to having committed several before his arrest.
Lucas related the story of how he became involved in crime after he moved to Tembisa to look for his mother. For a while in Gauteng he was staying alone and had no means of income or support. He said that he met up with a 21 year old young man who had a nice car and who asked him whether he wanted a job. "Because I had no money I agreed." His friend took him to a wealthy area where he pointed out a target car which he was to steal. He was informed that there was already a buyer for that BMW car and that they would be paid R10 000 for it. Lucas was given a pistol and ammunition and told to steal the car. He waited for the owner of the car to come out of the restaurant, and then pointing the gun at her head, told her to give him the keys. She gave him the keys, but he and his friend were stopped and apprehended at the exit of the parking lot.
Vusi, convicted of armed robbery of a bottle store said that he had committed the crime because his parents were suffering and they didn't have enough money. Before this crime he had been smuggling drugs ("shining tops") where he had earned enough money to buy firearms from people in a hostel near where he lives. He and several of his friends had robbed the store.
Vusi stated that he had committed the robbery because he wanted to get money to go to school. He said that there were so many people at home and no-one was working. His brother was in prison for rape.
We came across few offenders (other than the sexual offenders) who had committed crimes against people they knew. One child, Kehla, convicted of a host of violent offences, said that one of his murder victims was an acquaintance of his and they had become involved in an argument. "He had stolen some of my things." His friend had pulled out an gun, which prompted Kehla to do the same and fatally to shoot him. He also assaulted another of his friends during the same incident.
Mandla, aged fourteen said that he had been fighting with a boy. They both took out their knives and he stabbed him until he died.
These two stories reflect the willingness of these two boys to resort to violence in an attempt to solve their disputes, and perhaps the accessibility of weapons facilitated this action, causing fatal results.
This was the most difficult group of offender to categorise, and only a few gave information relating to their crimes. Pakiso, convicted of raping a young child of nine said that at the time he had been unable to control his adolescent sexual urges. Mduduzi, who raped a six year old girl said, that he had not realised the unlawfulness of his act as he had thought that the child was older. He said "it was only when I was tried and saw the bitterness of the family that I realised the consequences of my action."
The children had a curious view of rape, leading the writer to believe that many did not view this offence as a crime, or at least as a serious one. Vusi was asked whether any of his family members had committed any crimes, to which he replied "my brother is in prison, but that is not for a crime … . He is in prison for rape". Joseph, convicted of rape said that he was "working" with a 46 year old man. This man was monitoring the children who were supposed to be robbing people on the street. This older man apparently became attracted to a woman and asked Joseph to continue monitoring the other children. When the man was finished raping the woman, he called Joseph to come and rape her too. At that time the alarm went off and they were apprehended by the police.
Conclusions on the Nature of the Crime
From our interviews it was apparent that most of the crimes, particularly those in the economic category, were pre-planned. Also notable is that most of the crimes had occurred together with one or more accomplices. Only fourteen (or 22%) of the interviewees said that they had been alone when committing the crime. In fifty three percent of these cases, the other perpetrators had been older than the interviewee.
In some of these cases, the accomplices had become co-accused in the same cases, and some had been convicted. Often the children complained that these people had been given different sentences. In other cases, the accomplices had run away before arrest, or had absconded during the trial process. In one case, the co-accused had been killed by the police during the arrest.
Backgrounds of the Children
In order to gain an understanding of the children who were in prison, they were asked questions to determine their backgrounds, and education. However, the questions posed were of a preliminary nature, and a second or more detailed type of study would be necessary to elicit greater information on this subject.
Most of the children interviewed came from deprived families, where one or less members of the household was employed, often in the informal sector. In most cases, the interviewees lived with more than four people in the house. Often, the boys were living with other relatives. This suggests that the children are living in difficult economic circumstances where it is often a battle to survive. Where children were living with their grandparents, it would often be the pension of that person which was sustaining an entire household.
For example, one child was living with his grandmother and twenty others in Atteridgeville. The response of Calvin was typical "I live with my granny and my relatives. We are twelve at home. Only my aunt is working and she does not earn enough money to support us all."
One boy had been living in Kwa Zulu/Natal. He moved up to Johannesburg to look for work. Since he did not know where his family were living, he stayed in a shelter in Soweto until he located his family. At the time of the offence, he had been living with his mother.
Several of the children had left home because of disputes with their families, or they has lost contact with their parents. In a study conducted by Dr Gwyneth Boswell on the prevalence of abuse and loss in the lives of young offenders42 in the United Kingdom, it was found that 57% of respondents has experienced "significant loss via bereavement or cessation of contact" or both. "It constitutes a major source of childhood trauma, which depending on how it is handled, may later contribute to disordered behaviour, including aggression or violence".43 The loss or absence of a strong family member may influence the child's engagement in crime.
One interviewee said "Before I was arrested I was staying in a flat in town with a friend. I left home because I did not get on with my stepmother. I lived in town for eight years. I lived with three other boys in town". Joseph, a sixteen year old, said that the only family member he knew was his grandmother. For three years he had been living on the streets, and he had also spent some time in a shelter for street children in Hillbrow. Joseph used to earn his living washing cars, begging for money at robots, and stealing food at supermarkets.
Tsepiso, the youngest child interviewed, was living in a shack with his mother, stepfather and 2 younger siblings. He said that his mother was doing piece jobs, but his step father was a alcoholic.
Several of the children indicated that at least one or several members of the family were involved in crime, and that sometimes this was a form of subsistence for the family. One child living with his mother, brothers and sisters, said that no-one in the home works, and they are only able to live though shoplifting food. "We used to make crime. My mother used to go to town to make shoplifting".
While the study would indicate that it is primarily poor children who are sentenced to imprisonment, it cannot be concluded that it is only these children who engage in crime. These children probably do not have adequate resources to pay for expert legal representation to argue on their behalf at court, nor do they have eloquent parents who can intervene with the police and try and negotiate an alterative method of dealing with the crime situation. Poverty may precipitate these children to become involved in crime, but it is merely one of many factors to be taken into account. One of the interviewees came from a particularly privileged background, although in his case much of the family wealth had been accrued through crime.
Friends and acquaintances
In order to gain an understanding of the children's peer culture, they were asked questions about their friends. Most of them alleged that their friends were "good people", or "school going people".
Loss of connectedness to parents or other role models can also lay the foundation for the development of negative relationships with peer groups through which exposure to criminal activity may be a possibility.44 The research suggests that many of these children identified with or wished to identify themselves with a 'deviant' sub-culture, where involvement in criminal activities, or taking drugs was the norm rather than the exception. Many said that their friends used to use drugs (chiefly marijuana) or alcohol, and they sometimes admitted to doing the same. "I used to smoke drugs and be involved in crime." One child said that he used to take drugs before committing crime in order to build up his courage.
Many children said that they often used to steal. "I used to steal cars and I would sell them to anyone who wanted them. We used to sell them for up to R6 000.00. My friends also used to steal cars. Many of my friends are in prison." Another child said that "my friends are also thieves." One child said of his friends, "some stab people, some of my friends are nice people, and some are involved in crime."
Criminal activities seems to be acceptable in many of these children's lives. Sometimes family members were also involved in crime, as well as their peers. If their peers did not actively encourage them to become involved in crime, they seemed to inspire them to criminal acts through acting as role models of people who had become successful through criminal activities. However, one child said that following his experience of prison "I realise now that crime is a bad thing, and I advise my friends not to become involved in crime."
This study has highlighted the growing tendency to imprison child offenders. We are presented in the media with horrifying statistics of the numbers of aggressive offenders. Although it cannot be denied that there are a disturbing number of children who have committed very serious crimes, this does not detract from the large number of children who have committed fairly minor crimes.
Many of the children come from extremely deprived backgrounds and commit crimes in order to survive. A short spell in prison is unlikely to 'cure' these children of their 'criminal tendencies'. Once released from prison they will be re-entering the same community with largely unchanged circumstances. No matter how good their intentions whilst in prison, or immediately afterwards, for most it will be hard to make an honest living back in society, and it will be hard to resist the temptation to make quick cash through criminal means. In the words of one child. "I know that I will steal cars again when I get out of prison. Where else can I earn so much money in such a short time? What else is there for me to do?"
Whilst this study is only of a preliminary nature, it does point to the many factors why a child may be motivated or driven towards committing crime. Further research needs to be carried out in order to have greater insight into their reasons behind why they commit crime, as well as to look at what could be done to prevent them from committing crime in the future.
It is clear that on the present basis, the prison system is woefully inadequate in assisting a young offender to change his ways. Research could assist in determining what would be the most effective means of encouraging children to keep away from crime once they are released. This may have to cover such aspects as developing intellectual and technical skills so that these young people can work to support themselves and their families. Such issues as low self esteem, and the need for positive role modelling also needs to be explored. But also important is the need to examine the norms and values prevalent in our society which are some of the precipitating factors driving young people into unlawful activity.
It is not feasible to expect the correctional institutions alone to be responsible for dealing with the problems. These have to be tackled in conjunction with welfare agencies, and with the other institutions of public safety and security. It also has to be tackled in a broader context of societal problems.
12 Sections 1, 83 to 136, and 138 were made effective as from 19 February 1999 in terms of Proclamation N0 R.20, 1999, Reg Gazette No. 6439. These section refer primarily to the establishment of the National Council for Correctional Services, the Judicial Inspectorate and Prison Visitors for Joint Venture Prisons, list of offences and enforcement provisions. The sections relating to the incarceration of sentenced and awaiting trial prisoners has not yet been made applicable.
18 In a study on convicted children in five magisterial districts in the country, conducted by Sloth-Neilson and Said (1995), it was found that of a sample of 276 children, the majority received deferred or suspended sentences, 22% received whipping as a sentence, and only 5.4% received imprisonment sentences. "Statistical Research on Juvenile Justice: Examining Court records of Juvenile Offenders", unpublished paper, page 35.
23 SAPS Crime Information Analysis Centre, The Incidence of Serious Crime: January to June 1997. Quarterly Report 3/97. And SAPS CIAC the Incidence of Serious Crime: January to June 1998. Quarterly Report 3/98.
27 These comparisons should be viewed with caution as Muntingh based his study on Statistics SA Figures, which categorises offences into six categories: State security, communal life, life or body of a person, property, economic affairs, and social affairs. This is somewhat different to the DCS categories.(Muntingh. 1995a)
30 The incidence of reported rape rose from 105.3 per 100 000 of the population in 1994 to 120.6 in 1997. This was the only serious crime which showed a significant increase over this period. Crime Information Analysis Centre, The Incidence of serious Crime: January to December 1997, CIAC, Pretoria, page 8.
33 Although Gauteng has the highest number of sentenced prisoners, it had relatively few unsentenced prisoners: 25 in 1996 as opposed to 146 in 1994. The Eastern Cape however had 242 unsentenced child prisoners compared with 97 convicted prisoners, and similarly the Western Cape had 229 unsentenced to 145 sentenced children on 31 August 1996. Statistics of Department of Correctional Services.
34 Krugersdorp prison was visited on 11 December 1996. At that time, according to the records, there were 205 juveniles of which 13 were under the age of 18 years. Seven inmates were interviewed. Johannesburg Male section was visited on 7 and 14 January 1997. The juvenile section of Johannesburg accommodates 350 juveniles, of which 22 were children at the time of my visits. Twelve inmates were interviewed. Nine of the juveniles interviewed were younger than 18 years of age. The female section of the prison was visited on 17 March where the only convicted female child was interviewed. We visited Leeuwkop prison on 14 February 1997. At the time of the visit, the prison accommodated 785 sentenced male juveniles, and the records reflected that 106 were under the age of 18 years. Sixteen child inmates were interviewed. Pretoria Central Medium B prison was visited on 17 February 1997. The records of the prison indicated that there were twenty seven sentenced male children, of whom we interviewed sixteen. On interviewing these juveniles, only nine turned out to be under the age of 18 years. Finally, Boksburg Prison was visited on 20 March 1997. This prison accommodated 433 juveniles, of whom 35 were children. We interviewed 8 children and one juvenile. A total number of 61 people were interviewed.
36 For the purposes of this paper, the 'economic' category includes the following crimes; theft, theft and housebreaking, car theft, theft from a car, housebreaking with intent, shoplifting, being found in possession of an article with the suspicion that it is for the purposes of committing a crime.
37 The aggressive category includes all crimes with some degree of violence, such as robbery, attempted robbery, armed robbery, murder, culpable homicide, assault, car-jacking, but for the purposes of this paper, it also includes offences related to the possession of firearms and ammunition.
44 Duncan, N and Rock, B. "Going beyond the statistics" in Spirals of Suffering: Public Violence and Children, Human Sciences Research Council, Pretoria. 1997 at page 90.
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