A critical analysis of the concept of the best interest of the child in the South African Criminal Justice System

Abstract

South Africa continues to witness high crime rates, and children are increasingly involved in crime-related issues as witnesses, victims, or offenders. Therefore, more children are exposed to the criminal justice system processes. In light of South Africa’s Constitutional supremacy, the Constitution serves as the basic norm for all laws of general application and ensures a coherent and value-based legal system. This study explored how, children and their best interests are catered for in the criminal justice processes, despite their vulnerability. The pursuit to study the best interests of children emanated from discourses that classify children’s best interests under family law, and little attention is directed towards criminal justice processes that affect children, and the meagre extent to which the best interest principle and narratives are recognised, considered, and adapted to cater for children involved in criminal justice processes. Consequently, South Africa also adopted the Child Justice Act of 2008, which is heralded as a key step towards integrating and addressing all fundamental criminal justice processes related to children and significantly considering their best interests. Therefore, the study sought to examine whether children’s best interests are fully captured at the legislative level in the criminal justice system. Furthermore, the study explored how the criminal justice system interprets the best interests of children developed by the judiciary in line with global trends and practices, considering that South Africa is part of the global community, and its Constitution is regarded as a framework that champions key values, rights and principles required in a functional society. The study also analysed the processes and developments implemented by the South African government to protect and promote the best interests of children in criminal justice processes.