Calls for a children’s tribunal
Lebogang Mosikare | Monday June 20, 2022 06:00
Moroka said on Tuesday in a case in which Ontiretse Batumi had made an application for permanent stay of criminal proceedings against him that were ongoing at the Nata Magistrate's Court.
Batumi, now 19, was arrested and subsequently tried for allegedly attempting to rape another minor when he had just turned 14 years. He, however, made an application before the High Court to have proceedings against him stayed. When delivering ruling on the matter, Moroka said that Batumi was supposed to be tried in accordance with the provisions of Children’s Act and section 18 (1) of the Act which says that every child has the right to free basic education.
The involvement of social welfare officers, Moroka noted, is critical when trying children accused of having committed criminal offences. “The rationale behind the promulgation of the Children’s Act (2009) is to protect the best interests of children. Among the legal safeguards provided in the Act, is that children should be tried in a Children’s Court and not courts where adults are also tried at. In this matter before me, the provisions of the Children’s Act were violated from the onset. A 14-year-old boy was arrested and investigated as an adult.
Most importantly, his case was delayed for five years until he reached the age of majority,” said Moroka. The result therefore, Moroka continued, is that the applicant was denied the safeguards that are provided for in the provisions of the Children’s Act that are found in section 2 and 85 of the Act.
Section 85 of the Act (manner of dealing with child charged with offence) reads: “Where a child charged with an offence is tried by a children’s court and the court is satisfied of his or her guilt the court shall after taking into consideration the general conduct, home environment, school records and medical history (if any) of such child dispose of the case by
(a) placing the child on probation for a period not less than six months or more than three years
(b) sending the offender to a school of industries for a period not exceeding three years until he or she attains the 21 years
(c) sentencing the child to community service for such a period as the court considers
(d) sentencing the child to corporal punishment or (e) sentencing the child to imprisonment". “The investigation and subsequent prosecution of the child is not only aimed at protecting children from themselves but society at large. To arrest and mix children with adults exposes them to greater harm in future. Therefore, the delay in prosecuting the applicant until he is an adult will turn him into a hardened criminal in future.
The promulgation of the Children’s Act protects the best interests of the child and all parties concerned in this matter. It will be of no use if the Children’s Act is not followed to its letter and spirit... Justice will not be served by permitting this case to go ahead. In the circumstances, the proper thing is to grant the applicant an order of staying his prosecution.
His charge of attempted rape is permanently stayed,” said Moroka. Moroka added: “Even from reading the summary of evidence, this matter was between children who were playing hide and seek commonly known as Black Mmampatile in children’s slang. The mother of the other child reported the matter to the police after seeing her child soiled at the back and she formed an opinion that her child was raped when the children were playing hide and seek... It is clear in this case that the delayed trying of the applicant also adversely affected his school work as espoused by the Children’s Act.” Going forward, it is recommended to all stakeholders that they should deal with issues affecting children in the following manner: “There is an urgent need for the creation of a children’s tribunal manned by experts to deal with cases similar to this one.
The creation of such courts is urgent as is the creation of Gender Based Violence (GBV) and stock theft courts. In the premises, the applicant’s application is successful and his case at the Nata Magistrate Court is stayed.”