, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
Question 1: Preliminary Inquiry and Detention
1.1 Define the concept of a "preliminary inquiry" and critically discuss its nature and purpose
in the context of Nkosi's case. In your answer, refer to who must be present at the preliminary
inquiry and what orders the inquiry magistrate can make.
Definition and Nature:
A "preliminary inquiry" is a new, informal pre-trial procedure created by the Child Justice Act 75 of
2008, which provides a forum to decide on the best way to deal with a child in conflict with the law
(CMY2604, Study Guide, p. 53; ). It is inquisitorial in nature, meaning the inquiry magistrate plays
an active role in questioning and gathering information, rather than being a passive arbiter
(CMY2604, Study Guide, p. 53; ). It may be held in a court or any other suitable place, such as a
child-friendly environment, and is designed to be less formal than a traditional court trial .
Purpose in Nkosi's Case:
The primary purpose of the preliminary inquiry is to determine the best way to handle a child's case
at the earliest possible stage, ideally within 48 hours of arrest. In Nkosi's case, this process is crucial
for several reasons:
Considering the Assessment Report: The magistrate must consider the probation officer's
assessment report. While Nkosi refused to cooperate, the report's observations about his
hostility and lack of remorse will still be relevant .
Establishing Criminal Capacity: As Nkosi is 16, he is presumed to have criminal capacity
unless he can prove otherwise (CMY2604, Study Guide, p. 48). The inquiry must establish this
to proceed.
Investigating Diversion: The inquiry must establish whether the matter can be diverted away
from the formal criminal justice system . An NGO's offer of shelter and counselling is a key
factor here.
Determining Placement: The inquiry will decide on Nkosi's release or detention pending
further proceedings .
Participation: The child and his parents, guardian, or an appropriate adult are encouraged to
participate in the proceedings . Since Nkosi's parents are absent, an appropriate adult would
need to be identified to represent his interests.
Question 1: Preliminary Inquiry and Detention
1.1 Define the concept of a "preliminary inquiry" and critically discuss its nature and purpose
in the context of Nkosi's case. In your answer, refer to who must be present at the preliminary
inquiry and what orders the inquiry magistrate can make.
Definition and Nature:
A "preliminary inquiry" is a new, informal pre-trial procedure created by the Child Justice Act 75 of
2008, which provides a forum to decide on the best way to deal with a child in conflict with the law
(CMY2604, Study Guide, p. 53; ). It is inquisitorial in nature, meaning the inquiry magistrate plays
an active role in questioning and gathering information, rather than being a passive arbiter
(CMY2604, Study Guide, p. 53; ). It may be held in a court or any other suitable place, such as a
child-friendly environment, and is designed to be less formal than a traditional court trial .
Purpose in Nkosi's Case:
The primary purpose of the preliminary inquiry is to determine the best way to handle a child's case
at the earliest possible stage, ideally within 48 hours of arrest. In Nkosi's case, this process is crucial
for several reasons:
Considering the Assessment Report: The magistrate must consider the probation officer's
assessment report. While Nkosi refused to cooperate, the report's observations about his
hostility and lack of remorse will still be relevant .
Establishing Criminal Capacity: As Nkosi is 16, he is presumed to have criminal capacity
unless he can prove otherwise (CMY2604, Study Guide, p. 48). The inquiry must establish this
to proceed.
Investigating Diversion: The inquiry must establish whether the matter can be diverted away
from the formal criminal justice system . An NGO's offer of shelter and counselling is a key
factor here.
Determining Placement: The inquiry will decide on Nkosi's release or detention pending
further proceedings .
Participation: The child and his parents, guardian, or an appropriate adult are encouraged to
participate in the proceedings . Since Nkosi's parents are absent, an appropriate adult would
need to be identified to represent his interests.
