QUESTION 1: PRELIMINARY INQUIRY AND DETENTION
1.1 Introduction
The Child Justice Act 75 of 2008 represents a significant shift in South African law
regarding the treatment of children in conflict with the law. Prior to its enactment,
children were often processed through the same criminal justice system as adults,
despite growing international recognition that children require special protection and
treatment due to their developmental immaturity (Bezuidenhout 2018:219; Skelton
2011:417). The Act establishes a separate criminal justice system for children,
incorporating principles of restorative justice and emphasising rehabilitation and
reintegration over punishment (South Africa 2008). This question examines the
preliminary inquiry process and the critical decision regarding the release or detention of
a child awaiting trial, using the case of Nkosi, a 16-year-old street child charged with
assault with intent to cause grievous bodily harm.
1
,1.2 Definition of Key Concept(s)
Preliminary inquiry is defined as an informal, inquisitorial pre-trial procedure created by
the Child Justice Act 75 of 2008 that provides a forum to decide on the best way to deal
with a child in conflict with the law (Gallinetti 2009:38). It is held before the child's first
appearance in court to evaluate the child's circumstances, family environment and the
factors that may have led the child to commit the offence (Study Guide CMY2604,
Learning Unit 5:53). The preliminary inquiry aims to determine whether the matter can
be diverted away from the formal criminal justice system and, if not, how the child
should be managed pending trial (Skelton & Tshehla 2008:45).
Detention in the context of child justice refers to the confinement of a child in a police
cell, lock-up, child and youth care centre or prison while awaiting trial or sentence.
Section 28(1)(g) of the Constitution provides that children may only be detained as a
measure of last resort and for the shortest appropriate period (Republic of South Africa
1996).
1.3 The Nature and Purpose of the Preliminary Inquiry
The preliminary inquiry is inquisitorial in nature, meaning that the inquiry magistrate
plays an active role in questioning and eliciting information rather than simply acting as
a neutral arbiter between opposing parties (Section 43(1) of the Child Justice Act). It
may be held in a court or any other suitable place, reflecting its informal character
(Section 43(1)(b)). The preliminary inquiry is regarded as the child's first appearance
before a lower court in terms of section 50 of the Criminal Procedure Act.
The purpose of the preliminary inquiry is multifaceted. According to section 43(2) of the
Child Justice Act, the objectives are to:
2
, Consider the probation officer's assessment report, including the age estimation of the
child if uncertain, and whether a further and more detailed assessment is needed
Establish whether the matter can be diverted before plea
Identify a suitable diversion option, where applicable
Establish whether the matter should be referred to a children's court
Ensure that all available information relevant to the child, his or her circumstances
and the offence are considered
Ensure that the views of all persons present are considered before a decision is
taken
Encourage the participation of the child and his or her parent, appropriate person or
guardian in decisions concerning the child
Determine the release or placement of the child pending the conclusion of the
preliminary inquiry, appearance in a child justice court, or referral to a children's
court
In Nkosi's case, the preliminary inquiry serves a critical function. Given that he is 16
years old, homeless and has been hostile towards the probation officer, the inquiry
magistrate must carefully consider the assessment report, determine whether Nkosi has
criminal capacity (which for a 16-year-old is presumed unless proven otherwise),
establish whether diversion is appropriate, and make a decision regarding his release or
detention pending trial (Study Guide CMY2604, Learning Unit 5:54-55).
3
1.1 Introduction
The Child Justice Act 75 of 2008 represents a significant shift in South African law
regarding the treatment of children in conflict with the law. Prior to its enactment,
children were often processed through the same criminal justice system as adults,
despite growing international recognition that children require special protection and
treatment due to their developmental immaturity (Bezuidenhout 2018:219; Skelton
2011:417). The Act establishes a separate criminal justice system for children,
incorporating principles of restorative justice and emphasising rehabilitation and
reintegration over punishment (South Africa 2008). This question examines the
preliminary inquiry process and the critical decision regarding the release or detention of
a child awaiting trial, using the case of Nkosi, a 16-year-old street child charged with
assault with intent to cause grievous bodily harm.
1
,1.2 Definition of Key Concept(s)
Preliminary inquiry is defined as an informal, inquisitorial pre-trial procedure created by
the Child Justice Act 75 of 2008 that provides a forum to decide on the best way to deal
with a child in conflict with the law (Gallinetti 2009:38). It is held before the child's first
appearance in court to evaluate the child's circumstances, family environment and the
factors that may have led the child to commit the offence (Study Guide CMY2604,
Learning Unit 5:53). The preliminary inquiry aims to determine whether the matter can
be diverted away from the formal criminal justice system and, if not, how the child
should be managed pending trial (Skelton & Tshehla 2008:45).
Detention in the context of child justice refers to the confinement of a child in a police
cell, lock-up, child and youth care centre or prison while awaiting trial or sentence.
Section 28(1)(g) of the Constitution provides that children may only be detained as a
measure of last resort and for the shortest appropriate period (Republic of South Africa
1996).
1.3 The Nature and Purpose of the Preliminary Inquiry
The preliminary inquiry is inquisitorial in nature, meaning that the inquiry magistrate
plays an active role in questioning and eliciting information rather than simply acting as
a neutral arbiter between opposing parties (Section 43(1) of the Child Justice Act). It
may be held in a court or any other suitable place, reflecting its informal character
(Section 43(1)(b)). The preliminary inquiry is regarded as the child's first appearance
before a lower court in terms of section 50 of the Criminal Procedure Act.
The purpose of the preliminary inquiry is multifaceted. According to section 43(2) of the
Child Justice Act, the objectives are to:
2
, Consider the probation officer's assessment report, including the age estimation of the
child if uncertain, and whether a further and more detailed assessment is needed
Establish whether the matter can be diverted before plea
Identify a suitable diversion option, where applicable
Establish whether the matter should be referred to a children's court
Ensure that all available information relevant to the child, his or her circumstances
and the offence are considered
Ensure that the views of all persons present are considered before a decision is
taken
Encourage the participation of the child and his or her parent, appropriate person or
guardian in decisions concerning the child
Determine the release or placement of the child pending the conclusion of the
preliminary inquiry, appearance in a child justice court, or referral to a children's
court
In Nkosi's case, the preliminary inquiry serves a critical function. Given that he is 16
years old, homeless and has been hostile towards the probation officer, the inquiry
magistrate must carefully consider the assessment report, determine whether Nkosi has
criminal capacity (which for a 16-year-old is presumed unless proven otherwise),
establish whether diversion is appropriate, and make a decision regarding his release or
detention pending trial (Study Guide CMY2604, Learning Unit 5:54-55).
3
