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Child and youth misbehaviour
in South Africa
A HOLISTIC APPROACH
Fourth edition
CHRISTIAAN BEZUIDENHOUT
EDITOR
Van Schaik
PUBLISHERS
Published by Van Schaik Publishers
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First edition 2003

Second edition 2008
Third edition 2013
Fourth edition 2018
Second impression 2019
ISBN 978 0 627 03605 7
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Dedication
My precious children Chestine, Caylin and
Christopher — my love for you is infinite!
Van Schaik
© publishers
About the editor
Prof. Christiaan Bezuidenhout holds the following degrees: BA (Criminology), BA

Honours (Criminology), MA (Criminology), DPhil (Criminology), and an MSc in
Criminology and Criminal Justice from the University of Oxford. He is currently
attached to the Department of Social Work and Criminology, University of Pretoria,
where he teaches psychocriminology, criminal justice and contemporary criminology
at undergraduate and postgraduate level. He is also the coordinator of the Criminology
Honours degree programme at the University of Pretoria, and has supervised several
postgraduate studies (MA and DPhil students). Psychocriminology, policing and youth
misbehaviour are some of his research foci. He has completed a cross-cultural study
with an American colleague, the focus of which was on the legal and policing dilemmas
of trafficking in humans, and he holds a research rating from the National Research
Foundation in South Africa. During his academic career, Christiaan has published
numerous scientific articles in peer-reviewed journals and has authored chapters
in several books. He has also acted as editor-in-chief for various scholarly works. He
has participated in national and international conferences, has been actively involved
in various community projects focusing on crime prevention, and has assisted the
South African government in the development of different crime prevention initiatives.
Christiaan also does court work as an expert witness. He is currently the president of
the Criminological and Victimological Society of Southern Africa (CRIMSA).
About the authors

Dr Alice Maree is a criminologist presently employed as senior manager at the South
African Banking Risk Information Centre (SABRIC) where her responsibilities include
the analysis and prevention of bank-related crimes. She has also been associated with
the Department of Criminology at various institutions, namely Unisa, Southern Business
School and Lyceum. She holds a DLitt et Phil degree in Criminology on the modus
operandi of the bank robber, and has authored and co-authored numerous articles
and chapters in web-based and other publications relating to this and other topics.
Her academic fields of interest are crime risk factors, the criminal career path, repeat
offending, business as a victim of crime, fraud, violent crimes and crime prevention.
Dr Karen Booyens is a lecturer in the Department of Social Work and Criminology

at the University of Pretoria, and she holds the degrees of BA (Criminology), BA
Honours (Criminology), MPhil (Criminology) and DPhil (Criminology). She teaches
Fundamental Criminology, Penology and Economic Offences at under- and postgraduate
level, and supervises postgraduate students. She has published numerous articles in
peer-reviewed journals as well as chapters in books, and participates in national and
international conferences. She presents various life skills programmes to sentenced
male offenders, and has developed a programme specifically to address sexual assault
and rape in male correctional centres. Her current research interest is the elderly
offender in South African correctional facilities.
Harriét Florence Klopper has been a lecturer in the Department of Social Work and
Criminology at the University of Pretoria for the past 23 years. She holds a BA (Hons)
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and an MA in Criminology, all cum laude. Her academic fields of interest include female
crime, forensic criminalistics and research ethics.
Dr Laetitia Coetzee is a lecturer in the Department of Social Work and Criminology at

the University of Pretoria. She holds a BA in Law, an Honours and a Master's degree
in Criminology (both cum laude) as well as a DPhil in Criminology. The focus of her
doctoral thesis was on victim empathy in youth sex offenders. Her academic fields of
interest are youth misbehaviour, victimology and penology.
Lufuno Sadiki is a lecturer in Violent Crime and Political Offences in the Department
of Social Work and Criminology at the University of Pretoria. Her academic career
commenced in the School of Law at the University of Venda, where she taught
Criminology Theory and Victimology. Her academic field of expertise includes
victimisation of vulnerable groups. She holds the following degrees: BA, BA (Hons) in
Criminology, and MA in Criminology.
Prof. Ann Skelton has worked as a children’s rights lawyer in South Africa for 25
years. She played a leading role in child law reform through her involvement with the
committees of the South African Law Reform Commission, which drafted the Child
Justice Act and the Children’s Act. Ann is currently the director of the Centre for Child
Law and a law professor at the University of Pretoria, and is the incumbent in the
UNESCO Chair: Education Law in Africa. She is an advocate who often appears in the
superior courts arguing children’s rights issues in public interest law matters. She is an
internationally recognised researcher and has published widely. In 2012 she received
the World’s Children’s Honorary Award presented by the Queen of Sweden, and in 2016
the “Juvenile Justice without Borders” award, presented by the International Juvenile
Justice Agency. Ann is currently a member of the UN Committee on the Rights of the
Child, with her term of office running from March 2017 to February 2021.
Prof. Francois Steyn lectures in Criminology Theory and Research Methodology in the
Department of Social Work and Criminology at the University of Pretoria. His academic
career commenced as a researcher at the Centre for Health Systems Research and
Development at the University of the Free State, where he compiled and co-authored
numerous research and technical reports for government and development agencies.
He was also the acting director of the Centre for two years before taking up a lecturing
position at the University of Pretoria. His research focuses on risk and vulnerability
among child offenders, young adults and female offenders. He has supervised numerous
postgraduate degrees in Criminology and Developmental Studies, and currently serves
as an editor of the Acta Criminologica. He holds the following degrees: BSocSc, BSocSe
(Hons), MSocSc (cum laude) and PhD, all in Criminology.
Prof. Jolandi le Roux-Bouwer holds the degrees of BJurisLLB (NMMU) and LLD (UP).
She completed her doctorate in Criminal Law in 1994 with a thesis focusing on domestic
violence and crimes against women and children. From 1996 until her resignation in
2011, she was with the Faculty of Law at the University of Pretoria where she lectured
in Criminal Law and Statutory Crimes to under- as well as postgraduate students. In
1998 she co-founded the Centre for Child Law at the University of Pretoria, where she
served as deputy director for five years. Her research has been published nationally
and internationally in various accredited law journals and peer-reviewed textbooks.
Currently, she lectures at Varsity College, Pretoria as an independent contractor.
Prof. Michelle Ovens holds a BA degree, an Honours degree and a doctorate in

Criminology and Penology, and an Honours degree in Psychology. In 2014 she
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completed an online course (Certificate in Technology in Distance Education and
e-Learning) from the University of Maryland University College. She has been affiliated
with Unisa since 1998. Besides her formal education, she has undergone training on
debriefing victims of crime. In 1997 she ran a drug-counselling group at Central Prison in
Pretoria. She has completed parole reports, conversion of sentence and pre-sentencing
reports, and victim-impact statements for the purposes of sentencing, specialising in
drug-related cases and paedophile offences. She was responsible for the development
of the Forensic Criminology Honours course at Unisa, and trains criminologists and
other professionals such as forensic psychologists in the completion of pre-sentence
reports and victim impact statements.
Prof. Ann-Mari (Anni) Hesselink is a researcher and a professor in the Department of

Criminology and Security Science at Unisa. She specialises in criminological offender
assessments and profiling practices for the criminal justice sector (Department of
Correctional Services and the South African Police Service). She has published widely
on issues pertaining to the analysis of criminal behaviour in the field of Criminology.
She has contributed numerous chapters to national and international books on crime,
criminological assessment and the analysis of criminal behaviour.
R. Morgan Courtenay is an advocate of the High Court of South Africa and a member
of the Johannesburg Bar. He holds an LLB and an LLM (with distinction) in Criminal
Law from the University of Pretoria. Prior to joining the Johannesburg Bar in 2014,
he practised as an attorney at the Centre for Child Law, working on a variety of child
rights issues, including those relating to child justice, mental health and disability law,
constitutional law and administrative law.
Resh Mehta acquired a BCom and an LLB degree from the University of Bombay in
India. She has an avid interest in humanitarian initiatives, which she is realising through
her career with the International Organisation for Migration (IOM). The past 10 years
have seen her researching, assisting and investigating human trafficking cases across
the African continent. She is an experienced trainer in the area of human trafficking
and irregular migration, and is qualified in identifying and assisting victims of this
crime. She has also contributed to producing training manuals for national government
organisations.
Prof. Lillian Artz is an Associate Professor and Director of the Gender, Health and
Justice Research Unit (GHJRU). She has published widely on domestic violence, sexual
offences, incarcerated women and women’s rights to freedom and security in Africa.
Her current work includes research on female and other key populations in prisons and
psychiatric settings, the epidemiology and prevalence of child sexual abuse, exposure
to coercive sexual experiences amongst HIV testing populations, torture prevention in
places of detention, including the establishment of National Protective Mechanisms to
prevent and monitor torture (vis-a-vis OPCAT) in East Africa, as well as the medico-legal
management of sexual and other forms of gender-based violence in conflict-affected,
post-conflict and transitional African states. Artz has worked as a technical consultant
to a wide range of national human rights institutions, international development
agencies and justice systems in Southern, Central and East Africa.
Lillian took up the role as the first female Chief Editor of Acta Criminologica: African
Journal of Criminology (est. 1988) in 2017. She is an elected member and fellow of the
International Penal and Penitentiary Foundation - which holds consultative status
at the UN Commission on Crime Prevention and Criminal Justice, the United Nations
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Vill © Publishers
Economic and Social Council, and the Council of Europe — and is a member of a number
of international policing and security networks, such as the Global Law Enforcement
and Public Health (LEPH) Research Network and the African Security Sector Network.
Van Schaik .
Foreword
It is critical to the advancement of human civilisation that the positive and healthy
development of children, adolescents and young adults be properly addressed by
family, government and society at large. When humanity neglects to do so, then we have
failed the future of mankind. In Child and youth misbehaviour in South Africa: a holistic
approach, Christiaan Bezuidenhout and his colleagues have diligently taken on the task
of comprehensively examining the phenomena related to the progression of child and
youth delinquency and misbehaviour within South Africa and across the globe. The
mere fact that the fourth edition of this book has been published is clear evidence that
many are paying warranted attention to these factors. It is the hope that parents, policy
makers and government administrators will learn from the insight provided within this
book and modify civilisation’s mechanisms for addressing these dire circumstances
from a reactive strategy that relies on punishment and reform to one that proactively
seeks to enhance the development and progress of our youth and to deter deviance,
delinquency and criminality from ultimately taking place. After all, the children of today
will become the leaders of tomorrow.
Christiaan Bezuidenhout has formatted this text to provide all readers, whether
they are researchers, policy administrators, government leaders, criminal justice
professionals, academics, students or concerned human beings, with a thorough
outline of the many complicated facets involving juvenile misbehaviour. While the
text emphasises the situation and status within South Africa, the content and related
analysis can be applied to all societies across the globe, whether they be developed
or developing. The text has scrutinised this disturbing phenomenon from a plethora of
angles in order to provide the reader with the most detailed set of facts and to entice
discussion and appropriate societal response.
The first division of the book, Section A, examines the basic and intrinsic factors
associated with the development of juvenile misbehaviour. Chapter 1 introduces the
specific terminology broadly associated with this troubling topic. As Prof Bezuidenhout:
has noted, there are clear “dilemmas” related to defining and understanding associated
key terms, but strong attempts have been made within this text for more distinct
clarification. Chapter 2 provides a methodical outline of the history of society's
response to juvenile deviance. Chapter 3 continues with a comprehensive overview
of juvenile and youth misbehaviour across South Africa. Chapter 4 examines the
risk factors within South Africa that could draw youth into deviant behaviour and
into the grasp of the criminal realm, while Chapter 5 outlines associated socio-moral
considerations. Chapters 6 and 7 then articulate the traditional and contemporary
theoretical explanations for youth misbehaviour respectively. Chapter 8 specifically
analyses the perspectives of female juvenile misconduct. The new Chapter 9 in the
fourth edition adds further detail to the analysis of female offending within South Africa,
a disturbing phenomenon that has shown growth over the last few decades across
many continents.
The second division of the text, Section B, outlines the roles that the criminal justice
system has played in addressing youth misbehaviour. Preventing the development of
delinquency in youth should be a critical priority in any society. Chapter 10 notes the
numerous steps being taken within South Africa, while Chapter 11 outlines potential
options for diversion. Chapter 12 specifically examines the legal guidelines available
for addressing youth misbehaviour and criminality, while Chapter 13 analyses the
spectrum of factors related to South Africa’s Child Justice Act.
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© publishers
The final division of the book, Section C, takes a thorough look at the contemporary
challenges pertaining to youth at risk within South Africa, with Chapter 14 examining
child trafficking and Chapter 15 addressing juvenile prostitution. These issues are
also global ones and need to be addressed in all earnest. Finally a revised Chapter 16
concludes with a thought-provoking summary and discussion of the key points raised
within this impressive and insightful text.
Just looking at how thoroughly and detailed the fourth edition of the book that
Christiaan Bezuidenhout and his esteemed colleagues have authored and edited has
evolved, it is clear that this text will continue to provide every reader with the most
comprehensive overview of the many factors that have influenced youth misbehaviour,
particularly within South Africa, and the many options for addressing these phenomena
in modern times. If society as a whole fails to take the necessary steps to guide and
drive our youth in a positive direction, then we have failed in our mandate to steer the
future of humanity away from the ethical predicament that we have already created.
Today’s younger generation must be properly cultivated to ensure that civilisation will
continue to progress while using sincerity and morality as the “keels” to guide policy
and practice, whether in the home or in the real world.
James F. Albrecht
Professor of Criminal Justice and Homeland Security
Pace University (New York City, USA)
January 2018
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©pubiishers xi
Preface
The fourth edition of this book is again divided into three sections. Section A
concentrates on youth misbehaviour in general, its nature and extent, as well as on
other related risk factors. The first chapter focuses on certain concepts that are used
throughout the book. These are often the source of controversy and confusion, so they
are clearly defined to try to prevent any misunderstanding. The historical context of
youth in South Africa is highlighted, different theoretical explanations are put forward,
and socio-moral issues are debated in this section of the book.
In Section B of the book, a closer look is taken at youths who make contact with the
justice system. The focus is on the newest policies, practices, prevention and control
strategies, as well as on the diversion of youths from the formal criminal justice system.
The female youth offender receives special attention in this new edition.
In Section C, contemporary challenges pertaining to youth at risk, such as child
trafficking and prostitution, are discussed. This section ends with a philosophical look
at future concerns and possible contemporary issues for a next edition.
The contents have been structured as follows:
Section A: Youth misbehaviour: its nature, extent, related risk factors and
explanations
Chapter 1:
Introduction and terminology overview
Chapter 2:
A historical perspective of the youth offender
Chapter 3:
The nature and extent of child and youth misbehaviour in South Africa
Chapter 4:
Risk factors pertaining to youth offenders
Chapter 5:
The socio-moral redirection of troubled youth
Chapter 6:
Traditional theoretical explanations for youth misbehaviour
Chapter 7:
Contemporary theoretical explanations for youth misbehaviour
Chapter 8:
A historical overview of approaches to understanding female youth’
misbehaviour
Chapter 9: Contemporary South African perspectives on young female offending:
dismantling risk, rethinking vulnerability
Section B: Youth in contact with criminal justice

Chapter 10: The prevention and control of youth misbehaviour in South Africa
Chapter 11: Diversion
Chapter 12: Juvenile offenders in South African criminal law
Chapter 13: The Child Justice Act: practice and procedure
Section C: Contemporary challenges pertaining to youth at risk

Chapter 14: Child trafficking in South Africa
Chapter 15: Child prostitution
Chapter 16: Concluding thoughts
Christiaan Bezuidenhout
2018
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xii © publishers
Contents
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SECTION A Youth misbehaviour: its nature, extent, related risk factors and
explanations
Chapter 1 Introduction and terminology overview
EL = EERO ACTON asec. nicer esise,:exepwenm acre Gee decei eawiecGerounvaun ia vesttenesauauniavesoranne aca rela meena 3
1.2. The Eurocentric influence on South African children and youth............... 6
1d: . Terminology: overview 66ccavnsea gy Bewaie OS SHOVES SOLES RES ORS 11
E34 Childand youths se wvesixcar eee rcwavaey Pee awi aera ese Se ENS ORNS 12
ESi2 MISHCHAVIGUE os :2cewsrm wad oiscvaveoneaseseieer aN ian Se Rl NS 12
GA (CONCMSIOR ics eracecmarennanamcenie ances aeveres ann arw wiaerstNclna eee NOAA Cer wa eaewta 15
REIGLCN CES ccs :isrscoimascereeorainacnaanemre
Gscatersra ewe acuma Se oe aad ete EA eae raze 16
Chapter 2 A historical perspective of the youth offender

24 NtroductiOn acesscess eae PERE EES ee ee we eee orate 19
2.2 Methodological approaches to juvenile crime ....................000000005 20
2:3' - Approaches to! PuniShMenit oisceceassgacaroe eae ete oe eo ee oe ee 21
24 Classification. of youthful offenders: :.225.24.055 02 oe ee eas 21
2.5 Interpreting statistics and explaining juvenile criminality in a South African
GOMEORE oo. c6 cs. sasandoncdice sere: toesesanncecaracontcsney Suanyr Sete ute ay Sites eee eet eT oan ee rae 22
2.6 Pre-colonial practices and African customary law..... 0.66.06. :s cece eee eee 23
2.7 Juvenile crime in South Africa during the years 1910 to the 1980s ............ 23
2:7.F Incidence: Of CHIMES wuscossscccwsas sas sees ee Rae eS eae Oe ae 23
2:1:2 CAUSES OF CHIME ss :ccsccssinamamessinaares e Mie Rae GREET ORtrom oR Wanrdewe ns aes 25
2.120 MISbehaviouy amONs: BINS: 6: ees cacers cose: aypraresa coaster cnessrrasnsiaesnemors ermine 26
2.04 Developmentofpangs::. batencert te, sy) oced) Favs Ce a8 sete tisielals 26
2.7.5 Developments in youth care organisations ...............sseeeee eens 27
2.8 Legislation and measures regulating the behaviour, handling and punishment
of juvenile offenders:from 1910-1960 scscsca226 ayhenusieememewaeen wats 28
2.8.2 Juventle.courts) « ccssnccsnmanasaena ream easter SI 28
2:8:2) Puniive MEASUPeS ers encwaramewanrew masa arnt aaa 29
2:83: Corporal PUnISHMENE 50:s:esscsceapsccanmcam. mabe Remedi eiesiaeemmyorren oreo 29
2:3:4 REIOMMALOTICS 5 isos sce sce eromocsansre eect brea austere meatier vasimurelieee 30
ZeO: IGUStHIAL SONOS) ors cr :ncecy serene Rkeunseentarenmeieere coin ole aia son ns i Rie lw NUTR eR 31
2.9 Youth misbehaviour in South Africa from 1990-1999 ..............020e ee eee 32
2.9.1 Post-apartheid legacy on juveniles in South Africa..................005 32
2.16 Interventions and;current insights ‘iss s:s:sca seg oases tan mesenger 33
ZA CONCHISION w acisciizccesianinomiannermnannal saTE RAEN SAN OEE Ae 34
REIGKEN COS 5 ssi o: sec corpttenaiernteretcayn vate qamerssare armas re canarias, pox Ge ubna Ne are NEAR OSE ORES eon ERI 35
Chapter 3 The nature and extent of child and youth misbehaviour in South Africa
Ol ‘Introduction swcoxssresaceapaneeee tA Se eae R RN oy Rae O ING 38
3.2. The nature of child and youth misbehaviour in South Africa................. 38
3:23] Stats Of ENCES: 6s: seicrceearemesmmisearecexsa
aia ASIEN ewe 38
Oknier xii
3.2.2 Characteristics of child and youth offences ...............00 cee eeeee 40
B23 SCKUA! CHOICES 5 co:cuecacanaiszararscarernraranw
wiare wise REN TWia RN AESED ETA WEN Owe 45
DiLsd VAIGIEDE OLENCES i: io:e cca cececase ceusarecoceswrareiaseinre
aR MRT a HUNTER OE OPTS 50
22) DIUPAUSE RMON T VOUS ie 0.0 eco sxaceuen stave qr ene eenceuetilererw winvanereorecneum ares eermnete 58
3.2.6 Other categories of youth offences...........c cece e cece cc eeeeeeeeres 64
32:7 The:chronic: juvenile offender so. 6:6jsois dares. 5-4. tienen ne ae tee wees 70
3.3 The extent of child and youth misbehaviour in South Africa................. 70
8:3;1-Olficlal:crime information sources: <sawicinraa ances canes eosacw ere tianes 71
3:3:2.. Unofficial crime information Sources is isseasaiceeevisy eecseses ares 72
B4& ‘CONCIUSION aissscoversrasramrecccnacsraresnmtavsnaranmnye
VMN a @NTNe BNE OREN Neen aars 72
RELERENGES id Sih BEN iee bee ERs EAN bw oma 73
Chapter 4 Risk factors pertaining to youth offenders

BNics MntrOGUCUON ats ASS SO ces sew Dea See eee lnwd 81
4:2) CAUSES OF TISKHACtOrs wey E Wie TUS ie cla Wa NR EMER ORME ae So res 82
4:3. ~Definition of key Concepts ssicex sce s aes ae sig a yiel Rs RUS wa ROE SRM uNS 82
ABT. RISK LACORS sens aeesarwnsverreasnrnee ere wena exam w le TR RRO ee ED SR ns 82
B32 ‘State FISK LACEOLS css seictavscatarasn stu srera eit ee Re NSGaIN Ria B WUE SITS POS IE 83
4:3:3) PYGteGthye TACIONS | :cses:ace se aixceswinacoraracaverernnave
nie Sie wT WR WIa ERIE SIR ROIS 83
4:4. Riskfactors ona social level... enccasesremnemmamamman aan ae SW 83
4.4.1 Community or neighbourhood variables. .........0... 0c eee eens 84
4:42 ‘Family variables), oa lidieed Meothloticisurnethl eboonennnalavenynraterode ltaraarentab dha raeeeta 88
4:43 SCHOO VarlaDlesysssis n50G ci7ss seas ida etn eaan Omes Seea meanest 92
4.4.4 Extrafamilial relationship variables .............. 0. ccc eeeeeceeeceees 96
45 Riskfactors:on-anindividuallevel sasissspases cieaarniserqaisserss sie wisioioaig eines 98
ASL Blographicalwanables sccrccswsncuncegagiaaaeieene ieee Ole CRO OIORS 98
45.2 BiosOClalfaCtOT « sciwasssnccsiarcceeucnaniontyx ann ewe Re MeO wee Mawnan 100
A535 Psychosocial faCtors ie cics ccenssraciaaie aa eeGreUReVak DEW RORSAS ERC. 102
4.6 History of conduct disorder among young offenders. ................000005 103
47 Identified: combinations Obrisk factors... csincsicmecandswatewwawsemewarani ews 104
8, | COMCIIS OM ii 5 er ne nue. tay srw ae ie vetoes tase erdinien aS were aeranes Slee rs Os 105
IROLCTEN COS ais Cotes nr Raith ae. 8 gut gorsicaunca dy avaialieapieutis aedaw ee mie me OA ana ees 107
Chapter 5 The socio-moral redirection of troubled youth

Bel IMOCUCHOR cs sicsiccmicnu wrens aaa ts Sanne ee ae sae 109
5.2 Causal consideration 1: limited socio-moral development .................. 110
5.2.1, Low-levelsocio-moral Teas Onin 0 sis:6.0.0: sec cn vate eV Re RAS Caen 110
§.2:2 High-level socio-mioral reasoning 60:5 0:csaveweemens Gmearineananwamwnes 112
5.3 Causal consideration 2: emotional poverty............0cccc cee eee eeeeeees 114
5.4 Causal:consideration:3: thinking Crrors ss o.oc:60cs.0.¢e.c0: end tenes asee wee melts 116
5.5 Developing effective interventions: community youth development ......... 117
BiG: » CONCHISION a ssaaeisssis seasnsraeerewiseea SiG 6S FOTIA wea a a a wre SNORE 118
ROlGTeNnGeS sis ceesernanw rewaien say cee ule Rs Ga WN es ee SA BLL ROHS 119
Chapter 6 Traditional theoretical explanations for youth misbehaviour

Gel, TERE ON ia siya ces enncaverorere cexvieseraconx Searacminynrn ays tiiw areraior eres Ce CREE 121
6.2 Classical school of criminology: 18th century beliefs about the causes of
STNN 505 5 aS aa Sow Nc rms wes ere 122
6.3. The growth of science: positivist school of criminology................0005 125
6:3:1 individual positivism iisy 6-255 56s REE OR RVSaw SaaS 125
63:2 Sociological Positivism ;iscicsascrscawawanweeeaw va CeO Cun Ge Cie Rae 130
6.4 Ashift from the positivist school: labelling and radical theories............. 137
XIV Onniten
6.5 Evaluation of traditional perspectives ..........
0. cece eee cece eter eees 139
66 -Concluslonissaccice sacra LORRI 141
REGEN COS scpsisws HENTAI TAG RTA DIRK OVER OVS UNS 142
Chapter 7 Contemporary theoretical explanations for youth misbehaviour

7.1 Introduction: paradigm shift in theories of youth misbehaviour............. 145
72 Reformulations of traditional theories’: :.....:...:.:¢ 0.0004 seein signee sien ce mneionels 146
7.2.1 Neoclassicism: a revival of the classical school ............00seeeeeee 146
Teeie NEOPOSIIVISM cet oot sees ia teins ws aisles, J clan Healy Nl ieee ioe 148
te Integrative theorles.ccgosasteeatisig Fes sisi A ESOS OSTA OS 150
t.3.1 Integrated classical theories isisiicsicxceegewiee tad Case seewarwan ser 151
Gow Integrated biological theories 22. :aijscs:scanigess verse iaguce 153
73:3: Integrated psychological: theoriesi:7 ceca sexansacnawamacrnes 154
1.34 Integrated sociological theories s:0:5:< s.cce-avcisinvesiancamearataniewy eeiewireier 155
7.4 Ageneral theory of crime and criminality ........ 00... cece ence eee eens 157
7.4.1 The general aggression model (GAM) ............. cee e cece eee ee eee 158
7.5 Evaluation of contemporary developments. .............00 cee ee ee eee eens 159
7.6 Explaining youth misbehaviour in South Africa ... 6.0.2... 6... e eee eee es 161
CG. InfrOGUCHONS, 0.5.5 oerossraninnesri sie einen cece eee Or oe ec mias 161
7.6.2 Social risk factors as point of departure ..............0. 0c eee eee eee 161
7.6.3 Strain owing to:social:risk factors...... 00.0050 SeRUNS Le oee oo blab o's 163
7.6.4 Personal factors: addressing serious crime. ......... 000. c eee eee ee eee 164
76:5 Moral:development sics:ssawssicacaingivie's oR GRIER IO Ce oe 165
ts COnclisiOnsicscisaceaieayaseie Aas ae Oy ae ee eae 165
FRELSL ONC OB nsicesa se wcassacsasariae ws aa wR aes aN TCR RNS RST TUNIS TRIN. REG BASSO 167
Chapter 8 A historical overview of approaches to understanding female youth

misbehaviour
Bali Introd ucthOns css c.ss65.6. 08sec es oresits orosiace-a atin SEA ORES RAT SNORE 169
8.2 Early biological and psychological explanations ..............00e cece sees 170
8.2.1 Cesare Lombroso and William Ferrero. ..............escceeceeeneees 170
8:2:2 Wile THOMAS wseiyenraseserw<eowseeee esas 171
8:2:3 Sheldon:and Eleanor Glueck sevicac asics seswauwasieseawiwecusuwsews 172
824 OUGPOllAK ccccamensnesrsas cusses SAW R eae NESSIE WR ORS 172
8:25 GISGIA RONG DKA ccuscrosacimommraanciemen acne some IORI NTREEIMaTERS 173
8.2.6 John and Valerie Cowie, and Eliot Slater ............. 02sec eee ee eens 173
Si2sk: Clode Vedder and Dora Somer Ville 50:05: ccconrs ae snersvarae ven egomiererne era 174
8:3 Genderroles and delinquency 10 GINls noo: scensis een pceseerecececesermensarel aseceunvaceca vse 174
So) (POE BE GROSSO fey ics eraser aserxicedin ers aS Som wai enein a Db eRe aR wegen arene) 175
BiSi2 WACO PALSONS. 5:5, A5 care nmasaraomsivionarterarnaaie nie tisiamaen aad ONS OLIN a NON 175
83:5 Roth MOmis’ ic5 5, sie as0asewes 5 die eerncahed ARIE Sae Ra HOGS Re ROO OS 175
8.3.4 Dale Hoffman-Bustamante 6535368 ias 5 Sachs Male we Sw uie STS DISS 176
8:35. Masculinity hypothesis:i.sscedsseawwn eens o Cees eee wR ST 177
o4 ‘Liberation and: crime@iiscss scssssses ca Sees oan Peas ons SUR a ae SE 178
8.4.1 Freda Adler’s masculinisation theory. ..............0. cee eee eee eee 178
8.4.2 Rita Simon’s opportunity theory. ............... 2c cece eee eee ee ewes 179
8:5: -Postliberation explanations: cciscecsrecaccemunseinee re asacends alee wesaisiaunes 180
$:5.1 Soctalist/Marsxist Gxplandtlonssso5ccc003 sacs mersauaed aero wa vata 180
8:0:2 (LOWS? COMTOLINCONY.«.os.0casa dic cannsciew eee een Ca naeeens 180
8.5.3 Feminist: theory Of GeliniqueniCys x, «.o:<cocoy0;0:0. cae a ce ea did Clereiel dete wie ocer nase 181
Oe CONCHISION 4 5: cis irs: arate scetuaes wieibroresdcoareainst @ a eaten Res eee oar 182
IRELOT
ON COS 5 c5psse 7s isi5 bias Sea NEN RIS RG (Sn eins GE OC IO ONS OO 183
Chapter 9 Contemporary South African perspectives on young female offending:
dismantling risk, rethinking vulnerability
OI MntrOduCHON i cisiccacccnwes ene sam ewreTE STAM ORT ROW aw ee 185
9.2 History, “herstory” and other theoretical (mis)-conceptions about female
OMENGAITISESS Aaa Se Ne aaa OES AE oe aladiaes 186
O:3: “Crime in Contexts woke tales awash aes 187
9.3.1 Crime rates, crime reporting and imprisonment ....................- 187
9:3;2: The:socio-demographic context vsii4). tia Va eae ete tow oasis 189
9.3.3 Violence exposure as an antecedent to offending?.................... 190
9.4 Rethinking young female offenders and offending behaviour................ 191
9.5 Final reflections on youth, gender and risk. ......... 0... e eens 193
REIGL ENCES | s:s:iaosseseurrsrscorpromrersnmaiaarn
inate Rierera mua age AR ONES pre Raa SER BAO a eee 194
SECTION B Youth in contact with criminal justice

Chapter 10 The prevention and control of youth misbehaviour in South Africa
NOEL aE OCUICEIOM 55 i ga 15 Snes 6:onarasosovend is carne te eiasteoenorninteede teresa see SG INVES 199
MO ABRISKACLOVS 00 oo. sch ara, gucmny ee eee ataredond oi Moron am RON Se wie munniawartates 200
10.3 International backdrop.........-. cece cece e eee eeee meauuabe darnctiovs 200
10.4 Primary, secondary and tertiary prevention............... cece eee ee eens 201
TOATEP Titany DECVEREON oo oe c+ oe SR he ieee ata Oh See ee awe 201
LOO USCCONGArY-PreventlOlnen ty © P20 Bhs Biol coi cere ede abies Mer cathy hoene 206
TOAS Pertiary Prevention 5 5:6 aicn eves erecocernnaird wesw ronuzasaves oer aaa nie OU eM ee 207
10:5: General recOmMendatliOns’«. «oie ve0.0:s.0;0:¢ce:919) aresesececasecawwiavesiaceaupy
ean RAIS wowleave NN 211
LOG) -CONEUISION Fixes cn «mates tan saie lees eiea arora EIN aE OUR Re 211
BRELEPEN COB We raie wenasersvonneays caren ayenmaves anoartanenva ie Torerh wienap ASA TOURES WI SSR HSIN ENRON 212
Chapter 11 Diversion
Ved IntKOdUuCHONsasie sass aise ER SNES ORE SRS eS are we 215
11.2 Development of child justice and diversion in South Africa................. 216
11.2:1 Definition and aims of diversion 3.2). veces ac dvs She inwiedow esp eeer 218
11.2.2 Principles guiding the decision to divert................ cece eee ees 219
11:2:3::Age; criminal capacity-and: diversion <.../ai5, 50.55) S.ois,0)0 dcaieWrains ois oer aid 219
11.2:4: Criteria for Giversloms sais sisis sie Gaisov Wie kip araieinne waa gaeidnin cies te wD 220
TL25: DIVERSIOMODUONS: sess sc 55s 8s SSS saan hrs ads geewierGmreemedcaeens 220
11.2.6 Compliance with and legal consequences of diversion............... 223
11.2.7 Numbers and trends of diversion referrals ...............0000 cee eee 224
TLS: “Types of diversion: programme sis eo i006 4i6isie 4 outs sieves: eng areraioieitiy eiecaieraig wwe NO 225
LIRSD LEMCSSKIIS EP AERA 6085055 s i wie, ain 6 SK Sia ilene asrarw pietenre wo iaiein wiergaay wiorere ieee 225
VUS22: Merton nig sscsca essere eu Fs 8S aS sik WRG wis aed Re Hiss was. aape eis nie STOTT 227
11:3.3) Family group conferenchings sso: ais:sis isi sia:e 5 iaiare;5:0:0%0 wi nj0's din od oe ayweis etnias 230
1133.4; Outdoor programmes te «0592034544 PE WaG commenced nee as secimeawes 233
11.4 Evidence about the impact of diversion. ............. 0c cece cece eee e eens 235
11.5 Challenges in meeting the aims of diversion...............ceeeeeee eee eees 237
PG PARC PANES veWere to aos ina aisiecepesiaansh eel ew eve wy aaa it eel toscana tate nies 237
DIRSPo AV ED CS ihe irae cau prohera age sem Oa eae a GARNI RES Keto RNR 237
MSE OES) VACEUINS: 5:25 is alin av cs pvonnretrsulars ny anedenesare4an thea mimtareaite end heer aw innte eR 237
TSA ENE COMMMUNIEYS ::0:«) scaneraresesecierenrsrne wie mmelnwad er oe Mar sitie Sen corene 238
1155) DIVERSION SIV ATEBIOS 55:0. escacescrarns REA ema hen be aera oeaies 238
TCHS: AOOHICIUS ION st846 0 otery, gigas. ngreie sup san awenn ae WEGNER eis prea chet woe a GENE: 238
IROIERENCES) 226% Rais bik eos earaxenrm ay aie recuse tat aR nN louie ERE Oe rece eTOTE 239
xvi Ohubishers
Chapter 12 Juvenile offenders in South African criminal law
L231) Antroduction sso» caaeanariissantees c3@ sek Baws SRE Ces wae 245
12.2 The influence of youthfulness on the criminal liability of juvenile offenders... 247
12.2.1 General remarks on criminal liability................ 0000000 e eens 247
12:2;32: COMMON LAW. ciaecctarane eee pearance wrasse caved Sagar otto taverasela ra wealesuitae eieteete 249
12.2.3 Statutory law: the Child Justice Act 75 of 2008 ..............02.00005 259
A233 CON CISION ovivav-s arsine ccarneecatereaberararaveriata
tiple ki9s) Saree sha ol Seti rer alatera thedmat ete lans 262
FREEREDI CES 5 sos ncacroresniin ores snc aas oe ee eI od wns 08 Loree Silt je aes a Sina ence 263
Chapter 13 The Child Justice Act: practice and procedure

13.1 The development of a rights-based approach for children in conflict with the
law 1992=2010 sissies arawicigen oe ee ei ioe sa sees Oa Obs werner enelamnttaws 268
19:2) The Child JusticG:Act..22c.2on eee ee eee eee eee eee tea eas slemewinwes 269
13.2.1 Scope and application of the Child Justice Act (CJA)...............4. 270
13.2.2 Criminal. capacity..22 .-. aan aterm eee See 8 coe 5 Soe os ee eonrsieve 270
13.2.3 Methods of securing a child’s attendance at a preliminary inquiry..... 271
13.2:4. Pre-trial: detention)..<.5.¢.case co ee eee eee wwe cn ce ccece ne 272
13:25) Pre-trial procedures’; . :;.;.122: ainsi sos Sane ene MEM CIN a) Fsic Shes cro ce ss 274
13.2.6: Diversions sss isaiwy 2 ines ices tees ae eae wos cl 277
13;2.7 Child justice court. ss: 5.5..c ieee cs 277
13.2.8) Sentencing: ws eisisiarscs.wacaiss0 Gere oie 60th wate Oe ea a mete Sheed S 278
13:2.9. Other provisions: «« .:ss::0%:6: s vis e:oinicees eos se 282
13.3: Interaction with the Sexual Offences Act... .. .....2 2 eee 283
RSA: CONGHISION 4. 0.5;6:0eceierearezeye ncewceraiesice t aqele aioe ene ee I Ee I 284
References: ..4. occ: eee eceseie ser nnce aye aieieqceleie e000 eaceceie 6 © oe nr 284
SECTION C Contemporary challenges pertaining to youth at risk

Chapter 14 Child trafficking in South Africa
V4.1 [mtrOductton 0.6.6 scesecerecesecs evan cevesece ooo elles) ele een oe 291
14:2 Understanding human trafficking’... ......... 2. seeeeene eee ie = snes, 5 os 292
14.2.1 The modus operandi of trafficking ..........--.-.......-...---- ss 294
14.2.2 Understanding child trafficking: the definition of child trafficking...... 294
14.2.3 Some facts-about human trafficking... ca seetememeeins cs viiesis so. ss 294
14:2:4Causes of human ‘trafficking: «2.2.5 emma ses cere cect ah wales 295
14.2.5 How traffickers control their victims .................. 0. eee seen 296
14.3 United Nations Convention on Transnational Organised Crime.............. 298
V4.4 GeNGrAal AKON os. 6 i0:5:5:ece coo ine asain eo. .6 6a eo ee ewe wo oo a eee 298
14.4.1 Scale of child trafficking. ........ «::,.:clecseaeeen nS Ale eso y ne otc one 298
14:4.2. Forms of trafficking........,0:+. «.«;«:0.0:«/s.0 eS icici bie sie.e were 300
14.4.3 Particular vulnerability of children, and profiles of child victims of
trafficking siiscs $6 ONS SS SON eRe Sees iew cess 300
14.4.4 Child-specific recruitment and border crossing.................0005 301
14:45. Reporting on child trafficking . 2..s7:teecneemeeee sso eos vie sie oes 302
14.5 Consequences of trafficking for child victims......................000005. 302
VASA TY AUN A a icesesyecareverecesavace oreseva lo wie a 5:50 ee eee tora e eae ts /s 302
14.5.2 Other possible consequences of trafficking on children.............. 303
14.5.3 International and national legal instruments addressing child
trafficking and human:‘rights.............. sce See eee ie) taro: 4) sco 9 0incece 304
14.5.4 South Africa’s position as per the United States Trafficking in
Persons Report: (ITIP) ais aciicia:aisic.c 5's wc arae eee Ee store aN ase 308
14.6. Conclusion ise estes: canes. tscece essen worse ae eae eee eet coe te 8 888 310
REGEKEN COS c2esciis si csccereceneia aw eve sans wieswiwiae santas Gewthicl's NIN o Oe eRe Ba ORCI 310
Chainer
Chapter 15 Child prostitution
TSA INROGUCHON 50050 Soewvewainewis ceeamemmewat anna ae eee tas 313
VS DORON issih See Me ei te ai eae caylee Ck oar MN tr 314
15:24) CHUNG prostitrblonswasysasa. Mo ike singe CICA Le Sees creeds 314
15:2:2: Child pornography: sceswea aaeewirisa we Raine cdacanea ate Rae as awe 314
15.3. Incidence and prevalence of child prostitution in South Africa.............. 314
15:4 Reeruitment Into child prostitution siwinnsacescomvecncmas aawvid ww Sewiaiwss 315
15:5: Human ‘trafficking'and child’ prostitution sis. c:s::cucscosawrerasnieneaeaeavies’ 317
15:6. Child-pornosraphy and child prostltutlOn ss snccncaniencmawasacewemeewes 318
15:/ ‘Gauises oF childiprostitutions » cry cis loe jeer tic erates wali Arle Alerentis 318
LD: TK Pe TOS OF Reta G cia a swsetienuiusus Gees veumunas tare es 318
1537.2 EXDOSUTE TO ADUSE sa 6isiss 57 SSA NASR IT AS SS eS SAR EARS 319
15,1.0) Poverty and: tinem ployment esses 26 Hee RIS EATERS SE wR 319
FEB WHO sare tHe DeLDOUr atOrS? eresisisyemadacacwraies a eieretie GW RC ROS ROLE NSN YS 319
15.9 Consequences and risks associated with child sex work ...............2005 320
15.10 The prevention of child prostitution and the rescuing of children ........... 323
SUT CON CINSIIT Sais iar snenays tovesens,cyaiene scverieearesereiwteann Ree man rere eateaen HaRnuER Eee 324
RelSr Ones): rast rats cae Weg sas SRE es cca ws who does dunia einen habe mone Meares ERD 325
Chapter 16 Concluding thoughts

BREET COS 5s: caec ss accncay sapivor bcm tare tayo Kame cow FRSRISEAANTRaT SENSU CSR RSET SOU ESTE 336
GOBBI ca 5 se ssrecenessque Ganseronessres-esainata sere lpM tm: aNeRU Re OR ROR ER LRTR AISNE DRIGIS TOT IE 338
Ve 5 sR ESE F EERSTE CRT SS ERROR OS 343
Van Schaik
xviii © publishers
SECTION A
Youth misbehaviour:
its nature, extent, related
risk factors and explanations
This chapter gives a brief overview of the position of the child
within European and South African society. This is followed by a
discussion of the challenges those in the helping professions face
when defining certain key concepts pertaining to child and youth
misbehaviour.
oe
OBJECTIVES
You should be able to
* critically highlight the position of children within South African society
* explain that certain concepts that are central to the theme of child and youth
misbehaviour are difficult to define
* define the concepts “child”, “youth”, “misbehaviour” and “status offences”.
RE ee AC eS
1.1 INTRODUCTION case of boys) or chambermaids or wives from a

certain age (in the case of girls). Until the 14th
Throughout the world people believe that chil- century, paintings depicted children as having
dren should be cherished, nurtured and pro- adult body proportions and facial characteris-
tected until they can fend for themselves. This, tics, distinguishable from adults only by their
however, was not always the case. For centu- size. Socially they were treated like adults,
ries it was believed that children came into the although the privileges enjoyed by adults
world as miniature adults and as the property were denied them. Popular views of childhood
of the father. As little adults, children could during the 16th and 17th centuries differed
therefore be assigned functions or roles, such radically from those held today (Bezuidenhout
as workers in coalmines or factories (in the & Little 2012: 369-405; Clarke-Stewart, Fried-
even Schaik 3
SECTION A YOUTH MISBEHAVIOUR: ITS NATURE, EXTENT, RELATED RISK FACTORS AND EXPLANATIONS
man & Koch 1985: 4; Crain 1980: 4). The lack do not fully appreciate the importance of this
of attention to and recognition of children as dramatic phase in a human’s life.
unique beings contributed to the high rate of Knowledge about human development was
childhood mortality during previous centuries. sorely lacking in the past. Historical docu-
Crain (1980: 5) states that “knowing that their ments show that for centuries children were
children might very well die, parents were abused, and that infanticide was a common
hesitant to attend to and cherish their unique practice in ancient Egypt, Rome, China, India
qualities”. Santrock (1983: 10-11), who con- and Europe during the Middle Ages as well as
curs with this point of view, emphasises that during the 16th and 17th centuries. In some
only two stages of human development were instances children were killed as part of social-
thought to exist in the past, namely infancy ly sanctioned religious sacrifices.
(birth to about six years) and adulthood. In modern times there are many parents
Between the ages of five and seven, children who kill their children intentionally. Although
were introduced to the adult world by being “infanticide” literally means “the killing of
assigned certain adult tasks (Thom 1988: 27). an infant”, it is currently used to refer to the
There is no scientific evidence of adolescence killing of children by their parents. The term
being regarded a separate developmental peri- “neonaticide” is generally used to refer to the
od before 1900. In 1904, Stanley G. Hall, known killing of a baby within the first 24 hours of its
as the father of the psychology of adolescence, life. In the case of a child older than 24 hours
published his two-volume book entitled Ado- who is killed by one or both parents, the term
lescence, and in so doing laid the foundation “filicide” is used (Bartol & Bartol 2005: 319;
for the scientific study of adolescence and its 2011: 273; 2017: 298).
recognition as a specific developmental period Before the recognition of childhood and
(Thom 1988: 30). Since the identification and adolescence as distinct developmental phases,
recognition of this unique stage in a human’s child-rearing practices in England and America
life, much has been said about its impact and were, to a large extent, characterised by cru-
importance in personal development. elty and inhumane treatment. The absence of
Siegel (2002: 3) rightly claims that “adoles- legislation to protect children, and the belief
cence is a time of trial and uncertainty, a time that they were the property of their parents,
when youths experience anxiety, humiliation, gave parents the right to abuse and treat their
and mood swings”. Their major task in adoles- children in any way they saw fit. Rules accord-
cence is to turn out to be their “own person” ing to which children had to behave were rigid
one day. Their personalities are still being and not adapted to their special needs and lim-
established and their bodies are also changing itations. Behaviour contrary to that laid down
dramatically during this period. In late ado- by adult society was considered misbehaviour,
lescence, youths experience problems with and infractions were punished with beatings
role identity. During the process of role iden- and other harsher punishments, such as flog-
tity formation, they develop a strong sense of ging by the city elders or even stoning. Chil-
who they are and what they stand for. Role dren had to stand whenever adults entered a
diffusion occurs when adolescents experience room, and remain standing and be silent until
uncertainty and place themselves at the mercy they were given permission to sit down or
of authoritative figures who promise them speak. Children who continually disobeyed
a sense of identity they cannot establish for their parents could be given the death penalty.
themselves. To add to this confusion, youths In European countries, infants were tightly
between 16 and 18 yearn for independence swaddled and hung like bundles on the walls
from their parents. All these problems obvi- while parents went about their daily tasks.
ously impact drastically on any youth's life. Noisy infants and children were sometimes
Fortunately in this age we are well informed given alcohol or opiates to quieten them.
about adolescence. This is a difficult life stage Behaviour today considered as “cute” and
that humans have to go through, and it takes essential to normal child development was
almost 10 years for youths to become adults then scorned or discouraged. Crawling, for
who can confribute positively to society. example, was likened to animal-like behaviour
Unfortunately some Third World societies still and considered unacceptable by many adults.
:
CHAPTER 1 INTRODUCTION AND TERMINOLOGY OVERVIEW
From the moment children could stand, they (Clarke-Stewart et al. 1985: 5; Crain 1980: 6). It
were compelled to wear special clothes, rein- was less important to raise a healthy or happy
forced with iron and bone. This was to ensure child than to save the child’s soul. In many
that they would have “adult” postures. For instances, playfulness and cheerfulness were
many centuries most scientists believed that a seen as indicative of the devil's control of
tiny, fully formed human, or homunculus, was the child.
implanted in the sperm or the egg at concep- Knowledge of child health and child-rear-
tion. It was claimed that a miniature person, ing practices was seriously lacking, thus many
who merely grew in size and bulk until birth, children died because of poor health, an inad-
was created at conception (Crain 1980: 5). equate diet, unhygienic circumstances, inef-
Contrary to the previously held belief that fective care and abandonment. The lack of
all children were innately bad, the English phi- effective birth control methods and ignorance
losopher John Locke proposed in 1690 that about procreation resulted in many unwanted
children were neither innately good nor bad children, and scant knowledge about the care
at birth. He saw the child’s mind as a tabula of mothers during and after pregnancy led to a
rasa or blank slate, and claimed that whatever high mortality rate of both mothers and infants
the child became was almost completely as a during and after childbirth. Unwanted, illegiti-
result of learning and experience. Although mate and orphaned children were sometimes
Locke conceded that individual temperaments abandoned or killed.
might be innate, he emphasised that the devel- From the outset, children were expected
opment of the mind was influenced by environ- to fit into the adult world and to display
mental factors. His focus on the importance adult behaviour without receiving adequate
of learning during infancy resulted in a grad- guidance and support. This lack of guidance
ual change in perceptions concerning child and the meting out of harsh discipline for
behaviour (Clarke-Stewart et al. 1985: 5). the slightest deviation from the prescribed
During the era in which Locke lived, many behavioural code meant that many children
children were sent away from home to work were perceived to be exhibiting misbehaviour.
as servants as soon as they reached the age Little or no understanding of the normal devel-
of six or seven. (Although this is the age at opment of children and the reasons for their
which South African children currently enter misbehaviour contributed to an increase in
the first grade at school, in the past under the their abuse. Hyperactive behaviour was, for
apartheid regime many young children were example, seen as naughtiness or demon pos-
employed to sell newspapers, work in gardens, session that could be controlled by physical
help with harvesting on farms or do domes- abuse. Fortunately today most cases of con-
tic chores.) During the 17th century, children duct disorders (CDs), hyperactive behaviour
who started to work fulltime were treated even and attention deficit disorders are described
more harshly at work than at home. It was in diagnostic terms that are used to refer to
believed that if a child’s will was not broken by habitual misbehaviour or problem behaviour.
harsh treatment, society would soon fall into This enables us to help children who manifest
disarray. these characteristics. Therapy, support and, in
The Dutch, and later the British, who ruled some cases, medication can ensure that chil-
South Africa adhered to the same socialisa- dren with problem behaviour can be helped
tion practices that were the order of the day before they come into contact with the legal
in their own and other European countries. system (Bartol & Bartol 2017: 76), yet some
Since it was believed that the main danger fac- parents continue to abuse their children con-
ing the youth was committing sin, the goal of stantly whether they display any behavioural
child rearing was salvation (Thom 1988: 28). problems or not. Cultural beliefs and customs
To achieve this, religious instruction, the that have been transferred from culture to cul-
stamping out of sin by means of hard work ture still impact on disciplinary methods and
and the regular meting out of severe punish- abuse today.
ment played an important role. In this way the Although child abuse has been rife for cen-
innate tendency to sin and to behave accord- turies, a turning point was reached during the
ing to the will of Satan could be controlled 1960s when researchers and_ professionals
Van Schaik
© publishers 5
SECTION A YOUTH MISBEHAVIOUR:
ITS NATURE, EXTENT, RELATED RISK FACTORS AND EXPLANATIONS
from the caring professions started to focus practised by some others was to offer a baby to
on the seriousness of this problem. The social the ancestors or to a totem, or to use specific
problem of violence towards children was organs of a baby in the preparation of muti
highlighted in an article entitled “The bat- (medicine) by a witchdoctor (Bezuidenhout &
tered-child syndrome”, which appeared in the Klopper 2011: 198; Bartol 2002: 241; Brown et
prestigious Journal of the American Medical al. 1998: 450; Van Zyl, Malan, Marais, Olivier &
Association in 1962 (Brown, Esbensen & Geis Riordan 1994: 12).
2007: 469; Clarke-Stewart et al. 1985:5). This The “New World” that was exported from
article heralded the development of a collec- Europe to Africa via the settlers and the
tive consciousness regarding the plight of chil- colonial administrators resulted in a pro-
dren, and resulted in legislation and global ini- cess of acculturation. This acculturation, in
tiatives to care for and protect them. Although which black people found themselves caught
most countries in the world developed some between their traditional and Western culture,
form of juvenile justice over time, most juve- resulted in blacks adopting some Western
nile justice systems can be attributed to a few views regarding childrearing and punishment
major role players, which are the British, the for misbehaviour. In addition, formal employ-
North Americans, the Germans and the French ment (e.g. gardening or selling newspapers),
(Kratcoski 2012: 1). the migration of labourers (from rural to urban
settings), cheap labour practices (e.g. using
children to sell newspapers on the street or to
1.2 THE EUROCENTRIC INFLUENCE work on farms during harvesting time) and the
ON SOUTH AFRICAN CHILDREN brutal approach of their own families and soci-
AND YOUTH eties to any unacceptable behaviour or genetic
abnormalities had a severe impact on the
In South Africa, as well as in other countries black youth of South Africa. In addition, cul-
previously under colonial control, Eurocentric tural practices currently make adolescence in
influence played a fundamental role in shaping South Africa a challenging stage for many black
the way in which white children were raised boys. Media sources often report on many con-
(Kasese-Hara 2002: 371). Although the social- flicting issues between indigenous practices
isation and disciplining of black children dif- and Western advances. For example, initiation
fered among ethnic groups, these groups were schools are held annually in the bush for ado-
not untouched by Eurocentric influences (e.g. lescent boys from different ethnic groups (e.g.
the colonisation of South Africa by the Dutch Xhosa) to prepare them for adulthood and to
and the British) since the education system, undergo circumcision. However, many boys
religious teachings and the criminal justice fall ill as a result of the circumcision proce-
system with which they came into contact dure, with some losing sections of their geni-
were largely based on the Eurocentric model. talia or even passing away. The conflict lies in
Even before being influenced by Eurocentric the decision to be circumcised in a hospital
child-rearing practices, many black cultures under clinical conditions or to go to traditional
also imposed severe punishment for misbe- healers in the field and be circumcised as part
haviour, while abandoning children was also of the traditional circumcision and initiation
accepted traditionally among some _ black into manhood.
groups in South Africa. Although historic Another factor that significantly influenced
events and practices regarding the raising and the lives of black families and the way in which
disciplining of children are poorly document- children were raised was the introduction of
ed in most black ethnic groups, tribes’ word the apartheid system in 1948. Malpractices
of mouth and meagre records from colonists such as the imposition of the pass laws, forced
say that sometimes ethnic groups on the move removals to so-called homelands, the disrup-
forced weary mothers to leave their infants tion of the family unit, inferior schooling, the
behind in the bush to ensure that their fatigue lack of compulsory education and the use of
would not jeopardise the progress of the children as labourers left most black youths
group. In some groups it was customary to kill and those of colour marginalised. Young peo-
deformed or handicapped newborns. A ritual ple who grew up during the apartheid era
Van Schaik
6 ©pubiishers
are generally referred to as the “lost youth” smartphones and computers) and changing
of South Africa. Many of these young people paradigms (e.g. freedom of speech, equality
experienced alienation and became embit- and a human rights culture) have reshaped the
tered. Furthermore, as they were unable to international community, which in turn makes
obtain an education and prepare for a career, demands on South Africa for which communi-
they frequently experienced frustration and ties and individuals have not necessarily been
aggression, which predisposed them to becom- equipped (Hawes 2013: 87). Although South
ing involved in acts of violence and crime. Africa has shown relative economic growth
Being socially and economically margin- because of investment by foreign countries,
alised, many turned to political activism the necessary skills are sorely missing. In addi-
and exhibited radical behaviour that landed tion, South Africa is experiencing a skills and
them in trouble with the criminal justice sys- brain drain because of the soaring crime situ-
tem (Kasese-Hara 2002:371; Van Zyl et al. ation and the fear of crime among a significant
1994: 9-18). The absence of proper child jus- number of the people.
tice legislation resulted in high numbers of The juvenile justice landscape in South
children being subjected to oppressive prac- Africa has experienced many changes and
tices and inhumane treatment, both in pris- influences up until now with regard to the
ons and in other criminal justice organisations treatment and processing of youths in the jus-
(Stout & Wood 2004: 115). The struggle that tice system. In addition to the legal changes,
ensued to rid the country of the oppression children are also confronted with other socie-
of apartheid used the power of the youth. tal changes on a daily basis (Bezuidenhout &
Although the outcome was positive in that Little 2012: 369). For example, South Africa is
South Africa eventually became a democracy, on “junk status” because the government is
the negative side was that the youth grew up in finding it difficult to honour its debt payments
a culture of violence: violence perpetrated by and therefore finds it problematic to secure
the authorities to suppress the masses as well international loans. The impact of this is that
as by those who were trying to achieve free- many young people will struggle even more as
dom and equality resulted in a disregard for the economy slows down and the cost of basic
human life and property. Although the strug- commodities rises. In addition, job opportuni-
gle is over and liberty has been attained, these ties are decreasing and many people run the
conflicting energies still guide the thinking and risk of losing their jobs.
actions of many South Africans. Change always introduces new challenges
This, in conjunction with poor or no to children and the youth (Hawes 2013: 86). In
education, the breaking of ties with tradi- South Africa, the challenges facing young peo-
tions that previously aided the youth in ple are in many respects greater than those
their transition from childhood to adult- that their counterparts in developed and other
hood, parental loss of control over chil- developing countries have to deal with. The
dren, a lack of supervision, child-headed democracy that followed the apartheid regime
households and a slow transition process has brought about drastic changes, such as
following democratisation, has resulted requiring individuals to function on a skills
in many youths turning to various forms of level for which the past did not prepare them.
misbehaviour to compensate for their disap- Youths in South Africa now have to be part of
pointment in what the change has to offer to a process where the diverse groups that make
them, along with their unfulfilled expectations up the population have to be integrated into
of democracy. one nation, the so-called rainbow nation. Edu-
Despite the dawning of a new era in South cationally they have to prepare themselves on
Africa, many previously disadvantaged fam- a Eurocentric-modelled schooling system to
ilies still have to endure the pressures and enter a labour market that requires interna-
difficulties associated with factors such as tional competitiveness. The political activism
poverty and competition in a labour market of the 1970s and 1980s now has to make way
where skills and training are prerequisites and for political participation, while traditional
unemployment is prevalent. In addition, major views have to be attuned to the requirements
technological advances (e.g. the internet, of globalism.
Van Schaik
© publishers L
In addition, youths are influenced by the struggle with simple matters like receiving
political climate in South Africa. Democracy prescribed material on time for the start of the
also brought with it the freedom to strike. school year, and incidents have been reported
Teachers are sometimes absent from school in the past where textbooks were found
because of national strikes for better wages dumped instead of being delivered to schools
or for other political and social reasons, and in areas in dire need of them. This hinders
thus neglect their responsibility as educa- many children from being properly educated
tors. Such situations sometimes cause schol- in a safe environment - a guarantee that is stip-
ars to react out of frustration by vandalising ulated in the South African Constitution.
their school. Although they may think this is The most widely documented problems
the correct way to react, it directly impacts South African youths faced before democ-
on their schooling in the future. If a school is ratisation were the following (Van Zyl et al.
vandalised and infrastructure is, for example, 1994: 9-18):
reduced to ashes in a fire, schooling will still
be affected by this after the strike has ended e A dysfunctional schooling system
and normal schooling should have recom- ¢ Poorly qualified teachers
menced. Other signs of frustration with the ¢ Poorly equipped schools
current situation have materialised in the e A lack of career guidance facilities
form of vandalisation of symbolic landmarks, e Alack of bridging programmes
such as statues from the former colonial South e High failure rates at schools
Africa. In 2016 during the “FeesMustFall” cam- e Lack of employment for school leavers
paign, young people used violence and intimi- (both dropouts and those who completed
dation in their demands for free tertiary educa- school)
tion for all, causing damage costing millions of
e A lack of or blocked opportunities
rand to many tertiary institutions.
e School absenteeism
The saying “The future belongs to the
youth” has taken on a new meaning in South e The breakdown of established patterns of
Africa, since the youth have to face and pre- authority between young people and their
pare for challenges completely foreign to their parents, teachers, state authorities and
parents, The Constitution that was drawn up other authority figures such as religious
following democratisation in 1994 is hailed leaders
as one of the most liberal in the world, as it e Sexual ignorance
addresses human rights as no constitution has e High rates of teenage pregnancy
before. This is also paradoxical if one consid- e Ignorance regarding HIV infection and AIDS
ers that the youth who grew up in a culture e Substance abuse
of violence, where little respect and consider- e Factors that forced children to run away
ation were shown for human life, now have to from home
internalise the human rights values as set out ¢ Hostility towards the older generation and
by the Constitution. Unlike youths in other the wider community (characteristically
democratic countries who are born into a cul- caused by the acculturation process)
ture of human rights, South African youths
e Non-existence of a youth policy
have had to acquire this culture gradually,
e Inequality
which will most probably become a part of
South African society in time. When this hap- ¢ Corporal punishment used by teachers and
pens, it is possible that the extent of youth
the criminal justice system
misbehaviour will decline. Currently, however, e Disunited family systems (e.g. due to influx
the increasing crime rate among youth, their control laws)
incorrigible rejection of authority and inten- e Sanctions against South Africa
sified misbehaviour, as well as the general
level of crime in South Africa, paint a dismal Many of these challenges are still being faced
picture indeed. In addition, many children are by South African youths. In addition, from the
being hindered in their endeavour to be prop- above it appears that, in the past, environmen-
erly educated in South Africa. Many schools tal (nurture) factors probably played a more
ev" Schaik
8 Publishers
significant role in the causes of misbehaviour South Africa live with very few safe spaces and
in children and youths than inborn (nature) they live within a context of multiple and con-
factors. Currently it is accepted that both tinuous exposure to traumatic situations. This
nature and nurture are major forces in human still poses different social and psychological
development, as well as in the behaviour that challenges to the youth of South Africa. It
is displayed (Clarke-Stewart et al. 1985: 5). can result in various bio-psychosocial conse-
Nurture is, however, at the forefront when the quences for the child, among which could be
right of children to be brought up in a healthy behavioural, emotional and somatic problems
environment is emphasised. The current (Van Wyk 2011: 411).
approach in South Africa is to acknowledge A large proportion of South African youths
the rights of children and to put legislation in have undoubtedly been negatively affected
place that will ensure that past atrocities are by the decades during which the majority of
not repeated and that children enjoy adequate South Africans were in a disadvantaged posi-
protection. Legislation specifically aimed at tion. The disempowerment caused by the
protecting children has been incorporated previous political regime contributed to the
into Chapter 2 of the Constitution, as well as derailment of many children and youths in
into the new Child Justice Act 75 of 2008. In the past, and this till exists today. Van Zyl et
addition, the South African legal machinery al. (1994: 20) point out that the aftermath of
is trying to use restorative justice (RJ) and apartheid is “seen in the form of crime, sub-
diversion to ensure that past atrocities are not stance abuse, disease, violence, homelessness
repeated. The challenge lies in the restoration and other forms of social pathology. It is these
of harmony if a child derails and in avoiding people who are sometimes described as alien-
the brutalisation and rejection of the person. ated, marginalised or ‘lost’”. In addition, mar-
The marginalisation of the youth in the past ginalised youths in the new South Africa still
was not accepted unconditionally. History experience negative external circumstances
shows that the South African youth rebelled which include unemployment, poverty, family
against their treatment in various ways. The disorganisation, poor discipline, inadequate or
Sharpeville incident in the 1960s and the no housing, overcrowding, inferior status and
Soweto uprising in 1976 show that young peo- position, limited or no educational opportuni-
ple played a fundamental role in the struggle ties, inadequate facilities for recreational and
against apartheid and the shaping of society. leisure pursuits, as well as a low standard of
This eventually culminated in the democratisa- living. The lack of adequate health, social and
tion of South Africa. With democratisation and municipal services often exacerbates this.
the emphasis on human rights, the majority of Also, many youths in South Africa experience
the youth from all racial groups have partici- the brunt of physical and sexual abuse. The
pated actively in the process of transformation South African Police Service (SAPS) states in
and in building a better South Africa (Van Zyl this regard that these types of crime against
et al. 1994: 19). Although this ideal still exists, children are often sexual offences. Most of the
it appears that society has encountered prob- victims of contact crimes committed against
lems in coping with the changes. This is evi- children are between 15 and 17 years old.
dent from the high crime rate (which includes Their analyses indicated that almost a third of
misbehaviour of children and youths) and the the sexual offences against children involved
continuous reports of the abuse of children those aged 0-10 years (SAPS 2010/2011). Vic-
and youths in various ways (e.g. the rape of timised children often derail because of inter-
babies, children and adolescents). Children nal and external pressures as well as inner
are also increasingly becoming the victims of conflict. They experience uncertainty and lack
sex predators, child trafficking and murder- confidence. Children are more often than not
ers in South Africa. These social ills definitely abused by their own parents, siblings or guard-
violate the post-apartheid vision for children ians. This compounds the inner conflict and
in the new South Africa. According to Hawker lack of self-belief that they experience. In many
and Smook (2007), children are raped, maimed instances vulnerable children are also abused
and/or killed daily in South Africa (Geldenhuys, by people in positions of power (e.g. a teacher
2015:28). Formerly and at present, children of or sports coach).
Van Schaik
©publishers 9
SECTION A YOUTH MISBEHAVIOUR:
It is incorrect to view sex offenders as a as divorced from individual-human factors, as

homogeneous group. In addition many mis- a complex interaction exists between people
conceptions about sexual intercourse with a and the environment they live in. This is why
child exist. An example is the misconception children are also abused in higher and more
by certain males that sexual intercourse with a affluent social areas. The disorganised, infor-
young virgin girl will cure sexually transmitted mal poor areas are, however, more conducive
diseases or AIDS. The truth is that many fac- to wrongs against children (Pistorius, Bezuid-
tors play a role in the sex-offending behaviour enhout, Mbokazi, Kotzé & Pretorius 2012: 25).
of humans. It needs to be noted that no sin- A new phenomenon that encompasses
gle profile encompasses the majority of sex the challenge - the feeling of “belonging” — is
offenders, and they are as diverse as those when especially young girls fall prey to the
who are not sex offenders. This makes children so-called “blessers”. This practice in South
even more vulnerable, and the prevention of Africa entails the phenomenon where older
sexual offences almost impossible (Hesselink men (sugar daddies) “bless” young girls and in
& Bezuidenhout 2012: 241). turn expect sexual favours. A “blessing” could
This is one of the most difficult issues to be a financial contribution, a shopping spree
address in a youth who becomes incorrigible or gifts. There are different levels of “bless-
because of sexual abuse by another human. ing”, and some “blessers” even provide their
Their naivety, spontaneity and zest for life will “blessee” with an apartment and a vehicle. In
be damaged and corrupted, which impacts on some instances parents condone this practice
many different levels of their existence. It usu- as it often is the only source of income for the
ally leaves the innocent child victim confused, household (Lamble 2016). Although it mostly
insecure and abstracted from reality. They occurs between older men and young girls,
cannot share the ordeal with a family member some adult women also “bless” young boys,
because in many instances the family member who fall prey to such practices.
is the offending party. Children need to expe- Besides environmental factors that may
rience a sense of belonging, which is a basic influence human behaviour, individual-human
human need. This may drive them to seek factors also play a role in determining human
alternatives such as joining a group with sim- behaviour. Individual-human factors that could
ilar feelings or a gang that provides a superfi- be involved in choosing to become a member
cial sense of belonging. of a gang or to commit a crime include person-
Feelings of hopelessness and uncertainty ality defects such as setting egocentric objec-
could therefore contribute to the involvement tives, poor impulse control, aggressiveness, the
of youths in misbehaviour and the formation desire for the immediate gratification of needs,
of gangs. The level of organisation within a limited social skills and a tendency towards
community determines the extent to which the socially destructive actions. In addition, a poor
environment exerts a preventative or stimulat- self-image, limited communication skills, loneli-
ing influence on the commission of crime. Res- ness, alienation from the family, an inability to
idential areas characterised by social disorder take responsibility and fulfil social roles, being
imply the existence of conditions that serve emotionally labile, and being subject to emo-
as a breeding ground for gang formation, the tional disorders or psychiatric conditions (e.g.
committing of crime and recidivism. Gang for- schizophrenia or paranoia) could contribute to
mation can be regarded as a phenomenon that a person seeing the gang as a pseudo-family or
arises mainly because of the particular needs alternative supportive structure.
of underprivileged youths in transitional areas In the past it was the responsibility of the
of big cities. These areas are characterised extended family to provide both children and
by family disorganisation, inadequate educa- adults with the space, opportunities and means
tional and religious institutions, the exhibit- to spend their leisure time in a positive way.
ing of superficial moral values, poor incomes However, the development of the nuclear fam-
and limited possibilities for participating in ily, technology and urbanisation has played a
healthy recreational activities, as well as abu- major role in shifting this responsibility to the
siveness towards children. The external envi- community. As a result of overpopulation, lim-
ronment should, however, not be considered ited or poor recreation facilities and poverty,
10 Oyvnisners
a large number of youths are compelled to labour market at a rapid rate, and children are
explore alternative recreational activities that sometimes left to their own devices, with child-
may involve negative behaviour. Examples care facilities and schools often being blamed
of this are train surfing, substance abuse and for their misbehaviour. However, it has been
high-risk promiscuous sexual activities. shown that the instilling of a morality and con-
Although a minority of South African chil- science takes place in the first five years of a
dren and youths display serious misbehaviour, child’s life. According to Sigmund Freud, all
this cannot be condoned on account of the of the essential ingredients of a child's adult
heritage of apartheid alone. In most countries, personality are determined by the age of five
a number of children and youths misbehave (Bartollas 1997: 197), thus children who do
despite the socioeconomic and political cir- not receive the necessary healthy guidance,
cumstances that prevail. Any country that love, discipline and example from their par-
cares about its children and youth is responsi- ents or guardians are set up for derailment.
ble firstly to identify and address the historical Although the healthy guidance of either parent
factors contributing to the misbehaviour. Sec- or a guardian is key in the rearing of any child,
ondly, the same should be done with factors one cannot emphasise the role of a healthy
within the current dispensation. Thirdly, care male role model enough. Probably the biggest
should be taken not to focus exclusively on need a young child has in childhood is that of
the minority who misbehave, thereby alienat- a father’s protection, it does not necessarily
ing those who are positive in their outlook and have to be the child’s father. Many young peo-
geared towards making a success of their lives. ple grow up without any guidance from a ben-
Focusing only on those who misbehave creates eficial male role model or are victims of abuse
the impression that all children and youths and manifest with misbehaviour and therefore
show unacceptable behaviour. The attitudes derail at a young age.
of society can be influenced by the mass media In this book we will try to explain most of
also reporting on positive behaviour, while the reasons why children end up in conflict
researchers need to establish why some chil- with the law. We will also try to highlight the
dren and youths do not misbehave. Knowledge most contemporary misbehaviours children
gained in this way could be used to empower commit, and underline the position of children
those who transgress and encourage them to in the legal machinery of South Africa. Before
change their behaviour for the benefit of soci- we embark on this journey, specific concepts
ety and themselves. that are controversial in youth misbehaviour
South Africa is following a growing inter- research and texts globally will be clarified.
national trend towards materialism, and this, The use of certain concepts when referring
combined with individuality, gluttony and to children and youths who misbehave has
indulgence, is becoming a cultural identity in become a very sensitive issue in South Africa.
South Africa, which is gradually impacting on Concepts such as “lost”, “marginalised” and
the moral values and thinking of the youth. “alienated youth” have fallen into disrepute
Three factors seem to play a fundamental role since 1994. On the other hand, those such as
“youth at risk” have gained popularity. This has
in determining success:
given rise to a terminology dilemma because
¢ What one earns (income or financial status) all children and youths are at risk of becoming
e Where one lives (type of house and victims in the ongoing so-called crime conflict
address) and crime wave in South Africa. To clarify this
¢ What one drives and the brand of clothes dilemma it is necessary to define the central
one wears concepts as they will be used in this book, such
as “infant”, “child”, “adolescence”, “youth”,
These factors, as well as those such as the “misbehaviour” and “status offence”.
absence of a proper guardian in concurrence
with other social pressures, impact on the
youth in South Africa in a very challenging
1.3 TERMINOLOGY OVERVIEW
way. Youths also face a scarcity of job oppor- In the following section, central concepts used
tunities. In addition, women are entering the in this textbook will be explained.
Van Schaik
11
1.3.1 Child and youth that young offenders will most probably be
rehabilitated and become meaningful contrib-
Although all humans go through several devel-
utors to the economy.
opmental phases during their life, with each
one bringing new challenges, it is not the pur-
pose of this book to elaborate on this topic. 1.3.2 Misbehaviour
Hook (2002: 350-351) rightly warns research-
Eurocentric textbooks refer to child and
ers that concepts and categories generated
youth misbehaviour as juvenile delinquency
within developmental psychology have an
(Bartollas 1997: 7). Delinquency implies crim-
impact on how individuals live their lives, are
inal activities and guilt, thus many children
raised and treated, and how they think of them-
who are involved in minor misbehaviours are
selves. These different viewpoints on develop-
labelled juvenile delinquents (Siegel 2002: 6).
ment translate into laws and legal identities. In
This label in turn causes a great deal of nega-
this regard, Hook (2002:343) postulates that “of
tive reaction from the community, which can
course these developmental norms are import-
influence such children to become involved in
ed to other countries, often with problematic
serious misbehaviour and crime. The concept
results”. Another problem is that these norms
“misbehaviour” will therefore be used in this
are not free from cultural influence. Our under-
text to refer to any type of wrongdoing, and
standing of the concepts “child” and “youth” is “juvenile delinquency” will be avoided where
replete with social, political and cultural mean-
possible.
ing. These meanings reflect our current times In this text we will try to address child and
and beliefs rather than being timeless and uni- youth misbehaviour holistically. This implies
versal values. that we are sensitive to the different degrees of
Instead of trying to explain what each misbehaviour, but to make deliberation easier,
concept means — namely neonate (the few the concept of misbehaviour will encapsulate
days after birth) and infant (birth to 18 or 24 the concepts “criminal offences” and “status
months), toddler and early childhood (2-6 offences”. These two concepts are clarified in
years), middle and late childhood (7-12 years) the next section.
or adolescent (11-13 years up to 18-21 years)
- it may be more appropriate to use the defi-
nition of a child from the 1996 Constitution 1.3.2.1 Criminal offences, crime or
of South Africa. In section 28(3), a child is unlawfulness
referred to as anyone under the age of 18. In
this book, the words “child” and “youth” will Definition
be used interchangeably and, where neces- Different people define crime in different ways.
sary, specific problems or issues with regard In contrast to individuals who have had legal
to specific developmental phases will be high- training and see crime as an illegal action,
lighted and explained. those in the human sciences see it as behaviour
Please note that the Child Justice Act 75 of harmful to the individual and to society. Some
2008 defines a child as “any person under the theologians define crime as sin, while those
age of 18 and, in certain circumstances, means who place a high premium on truth are of the
a person who is 18 years or older but under opinion that crime occurs when the moral
the age of 21 years whose matter is dealt with code is broken and that it is a sign of dishon-
in terms of section 4(2)”. Gallinetti (2009: 13) esty. Despite the different views on what the
interprets this section as meaning that “the term “crime” entails, most definitions can be
Child Justice Act can apply to persons 18 or divided into either of two categories, namely
older but under 21 years if they had committed juridical and non-juridical (Van Zyl] 1996: 5).
an offence when they were under the age of The word “crime” is derived from the Latin
18”. The White Paper on Correctional Services word crimen, which means “judgement, accu-
(2005) classifies a juvenile or youthful offend- sation and defence”. This root has resulted
er as a person between the ages of 18 and 25 in the view that crime relates to actions that
years. This underlines the leniency the gov- are legally prohibited. The juridical definition,
ernment has with youthful offenders, believing therefore, stresses crime as an illegal action
Van Schalk
12 © Publishers
committed by an individual who can be blamed important factor in a court of law as it can, in
for it and can be punished by the authorities fact, justify a criminal offence (see Chapter 11).
(Bartollas 1997: 3). This definition is supported
by Van Zyl (1996: 7), who defines crime as “the Age and criminal responsibility
illegal, wilful, human action that constitutes
a transgression of the law; to which is linked Previously in South Africa it was legally stated
sentencing by a court of law after a hearing that a child had limited legal capacity from
and conviction” [own translation]. birth until the age of seven. Such a child had
Crime consists of actions that are legally no capacity to act or to litigate personally,
prohibited, such as robbery, rape and mur- thus he or she had an irrefutable lack of crim-
der, and those that people perform or fail to inal responsibility. An infant consequently
perform. Failure to act is punishable when, for could not be held accountable or criminally
instance, people do not pay their taxes, fail responsible or legally guilty.
to care for children in their custody or fail to Refutable lack of criminal responsibility was
stop when party to a hit-and-run accident. Law applicable to children from the age of seven but
must prohibit an action before it is considered under the age of 14. The general rule was that
acrime. such children were not responsible for their
Moral disapproval of behaviour does not actions, but this presumption could be dis-
make it a crime unless the action is legally pro- puted by the state. The state had to, however,
hibited. To witness someone drowning and prove that the child was criminally responsible
do nothing about it is not a crime. In order for at the time the offence was committed. This
individuals to know what behaviour is consid- meant that the child had to have been able
ered a crime it is necessary for criminal law to comprehend the nature, extent and conse-
to explain, in language that is clearly under- quences of the act before the state could con-
standable, what type of action is prohibited or fer capacity to act on the child. In this respect
required (Conklin 1998: 420). a distinction had to be made between intellec-
Contrary to the juridical definition, Van tual ability and the ability to judge.
der Walt, Cronjé and Smit (1985: 5) define the Children of 14 years and older were con-
non-juridical approach as “an antisocial action sidered responsible except when the oppo-
that involves a threat, violation or infringe- site could be proven. Youthfulness, however,
ment of the stability and security of society could always be considered a mitigating fac-
and its members” [own translation]. According tor when imposing punishment. This is also
to this definition, the study of certain actions known as refutable criminal responsibility. The
falls within the field of study of criminology, law grants full capacity to act only to those
even though they do not violate or contravene who are in possession of both intellectual abili-
national laws and are therefore not legally pun- ty and the ability to judge.
ishable (Bartol & Barto! 2017: 24). Because of these different levels of respon-
A criminal offence or an unlawful act there- sibility, the law has typically distinguished
fore literally means “in contrast with or against between three groups: infant (from birth to
the law”. Criminal law addresses the question seven years of age), minor (7-21 years of age)
of whether or not the type of behaviour for and major (21 years of age and older) (Davel &
which the child is charged is recognised by Jordaan 1998: 43-44).
the law as a crime (e.g. murder, rape, robbery, A few changes have since been promulgated.
theft, assault, etc.). This implies that a child The Child Justice Act 75 of 2008 came into
can be charged with crime(s) and can be pun- effect on 1 April 2010, in which the minimum
ished to the full extent of the law. If the child age of criminal capacity was raised to 10 years.
commits a certain crime, such as murder, he In terms of section 7(1) of the Act, a child who
or she can be treated as an adult. One factor (at the time of the alleged commission of the
that ensures that a child is not treated with the offence) is below the age of 10 years cannot
same severity as an adult is his or her age or be prosecuted. Nowadays there is a rebutta-
youthful status. The influence of age is very ble presumption that a child between the ages
important in criminal law because it has a con- of 10 and 14 years lacks criminal capacity. In
tinued effect on a person’s status. Age is an both common and civil law, a rebuttable pre-
Van Schaik
© publishers 1 3
sumption is an assumption made by a court, the child to do so. Here again, the state has
and is taken to be true unless someone comes to rebut this presumption beyond reasonable
forward to contest it and proves otherwise. doubt. Consider the court case for the murder
For example, a defendant in a criminal case of the Afrikaner Weerstandsbeweging (AWB)
is presumed innocent until proven guilty. A leader Eugene Terre’Blanche. A 29-year-old
rebuttable presumption is often associated black farmworker, Chris Mahlangu, was con-
with prima facie (face value) evidence. A child victed of the crime while his alleged accom-
of 14 years lacks criminal capacity until proven plice, 18-year-old Patrick Ndlovu, was acquit-
otherwise. Essentially, this means that the pre- ted of the murder but found guilty of house
sumptions of doli capax (i.e. that the child has breaking. Either his age or the fact that Mr
criminal capacity) and doli incapax (i.e. that Ndlovu was deemed an indirect perpetrator, or
the child does not have criminal capacity) are both, contributed to his lenient sentence.
retained, while it is just the minimum age that After turning 14 years, a child is usually
has changed. deemed to be fully accountable and there-
Further protections for children aged 10 fore in the same position as an adult. In this
years or older but under the age of 14 are instance, the proof rests with the accused and
contained in section 10 of the Act. In terms of legal presentation to prove on a balance of
this section, a prosecutor can only prosecute probability that he or she was not accountable
a child if he or she considers various factors, at the time of the act.
which are the following: In the South African legal system, first-time
offenders under the age of 21 years are usually
e The educational level, cognitive ability, treated as youths or minors, and are not pun-
domestic and environmental circumstances, ished as harshly as adults. In this connection
and the age and maturity of the child “minority” and “majority” refer to the devel-
e The nature and seriousness of the alleged opmental phase individuals find themselves
’ offence in (emotionally, physically and intellectually).
e The probation officer’s assessment report In Western society, “minority” implies that a
person is dependent on others (e.g. parents),
e The impact of the alleged offence on any
while “majority” means that the person has the
victim
ability to manage his or her own affairs. In the
e The interests of the community past, the coming of age level was deemed to be
e The prospects of establishing criminal 21 years. This meant that society and the legal
capacity system considered a person to be an adult
when he or she turned 21 years. This changed
e The appropriateness of diversion
on 1 July 2007 when the then president, Thabo
e Any other relevant factor Mbeki, signed a proclamation that instituted
the commencement of certain sections of
This prevents prosecutors from prosecuting the Children’s Act 38 of 2005. One section
a child as an impulsive process, hoping that regarding the legal age of adulthood or age of
he or she will prove criminal capacity further majority is now in power. “Adulthood” is now
during the course of the matter. This section reached as soon as a person turns 18 years
requires the prosecutor to consider the like- of age. This implies that 18-year-olds in South
lihood of success based on the above fac- Africa can marry and sign contracts without
tors before deciding to prosecute (Gallinetti the consent of their parents or guardians, as
2009: 19). Diversion rather than prosecution well as own a firearm and acquire a driver’s
is the preferred method of dealing with the licence (Government Gazette 2007: 3).
youth in South Africa as since democratisation The age of majority must not be seen as
the state has adopted a human rights welfarist synonymous with maturity as an adult. Adults
dogma. are considered mature enough to manage their
There is furthermore a rebuttable presump- own affairs. In other words, the adult person is
tion in our law that where a child commits a someone who has, in a legal sense, obtained the
crime in the company or presence of a (more) full ability and capacity to act independently.
adult person, the latter influenced or forced A large percentage of individuals will be in
4
CHAPTER 1
Grade 12 (if they are still at school) when liability in South Africa. In conclusion, it may
they reach the age of majority in South Africa. be said that South African legislature is very
Some may have reached a degree of maturity lenient and sensitive with regard to youth mat-
by the age of 18 years, but this will not be ters. However, a youth’s minority status also
true of everyone. “Majority status” does not implies that certain actions, which are not
imply that the full ability and capacity to act against the law for adults, can bring him or her
independently has been reached. The crim- into contact with the criminal justice system.
inal justice system, especially the courts, will
probably still take youthfulness into consid-
eration when a person is sentenced. It is also 1.3.2.2 Status offences
the author’s opinion that the Department of Age is one of the most important factors influ-
Correctional Services will still be attentive to encing a child’s status. Young people under
the issue of youthfulness when a person is sen- the age of 18 years may come into contact with
tenced to prison, and will still consider sepa- the law because of behaviour that is generally
rating 21-year-olds and those younger from the not seen as unlawful, such as rebelliousness,
adult prison population. It is the author’s opin- truancy, running away from home, sexual pro-
ion that the status of youthfulness will there- miscuity, consuming alcohol, viewing pornog-
fore still be used as a mitigating factor in our raphy and smoking. Bartollas (1997: 4) also
common law.
refers to these children as pre-delinquent,
In the South African context, not all youths
incorrigible, beyond control, ungovernable
grow up in households that provide security,
or wayward. In the case of adults committing
stability and average incomes. Before 1994,
these acts (status offences), nothing can or
more than 40% of the black households in
will be done to them because they are seen as
South Africa were headed by a female (Van
majors. The criminal justice system therefore
Zyl et al. 1994: 44). This, together with many
sees the conduct as illegal only because the
other social forces, led to various social dis-
child is underage (Siegel 2002: 15). This means
tortions such as the effect the past system
that even though these acts do not violate or
had on human development and the natural
contravene national laws and are not legally
maturation process. Many youths, especially
punishable, many youths make contact with
black youths, did not experience the normal
the justice system because general society
stages of development. It can therefore be
argued that some young people in South Afri- perceives such acts as unbecoming for peo-
ca in their 20s or even 30s are still “youths” ple under the age of 18 years (Bartol & Bartol
in their psychological and emotional develop- 2017: 45; Bezuidenhout & Little 2012: 13).
ment. Although these “youths” have reached
adulthood, the current societal and political
1.4 CONCLUSION
structure is hindering many of them in access-
ing opportunities to enhance their chances of This introductory chapter briefly reviews
becoming educated. This impacts on the abil- some of the more important concepts relevant
ity of many young people in South Africa to to child and youth misbehaviour. It also out-
develop into responsible independent adults. lines the child’s historical position in society.
The law, however, provides enough leniencies The position of South African children is also
for defendants to prove to the court that they alluded to. The approach adopted is largely
are still infantile or not fully responsible for objective and philosophical in the hope of
their actions. In view of this, it is not deemed stimulating further reading of the text and criti-
necessary to elaborate further on the dilemma cal thinking by the students or practitioners of
regarding age and development, and criminal these matters.
CRITICAL QUESTIONS
1. List five of the most widely documented problems South African youths faced before democratisation.
2. Summarise the concept “status offence’.
Crores} 45
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Bartol, C.R. & Bartol, A.M. (2005). Criminal behavior; erations with regard to the child abuser: Avenues
A psychosocial approach (7th ed.). Upper Saddle of addressing the perpetrator and the legal pro-
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Bartol, C.R. & Bartol, A.M. (2011). Criminal behavior: L. Jacklin (Eds), Child abuse: Guidelines and appli-
A psychosocial approach (9th ed.). Upper Saddle cations for primary healthcare practitioners. Cape
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Bartol, C.R. & Bartol, A.M. (2017). Criminal behavior: Hook, D. (2002). Critical issues in developmental psy-
A psychosocial approach (11th ed.). Upper Saddle chology. In D. Hook, J. Watts & K. Cockcroft (Eds),
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Bartollas, C. (1997). Juvenile delinquency (4th ed.). of Cape Town, 343-366.
Englewood Cliffs, NJ: Prentice Hall. Kasese-Hara, M. (2002). Race, culture, and psycho-
Bezuidenhout, C. & Klopper, H. (2011). Crimes of a logical theory. In D. Hook, J. Watts & K. Cockcroft
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Town: Pearson (Heinemann), 182-283. Kratcoski, P.C. (2012). The juvenile justice system. In
Bezuidenhout, C. & Little, K. (2012). Juvenile justice in P.C. Kratcoski (Ed.), Juvenile justice administration.
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Kent, USA: CRC Press-Taylor and Francis Group, Lamble, K. (2016). Fighting the curse of the blessers.
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Brown, S.E., Esbensen, F-A. & Geis, G. (2007). Criminol- M. & Pretorius, D. (2012). Child abuse risk factors.
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Santrock, J.W. (1983). Life-span development. Dubuque,
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Geldenhuys, K. (2015). Honeydew Cluster Family vergelyking van die blanke en swart adolessent ten
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30030(3). Proclamation by the President of the ships, identity development and the forming of an
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Hawes, J. (2013). Changing childhoods: Nature deficits. Kriminologie: 'n Inleiding. [Criminology: An introduc-
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forms of child abuse. London, UK: Jessica Kingsley reekstekeninge van 'n seksueel mishandelde kind.
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Van Schaik
16 © Publishers
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8(3): December: 411-433. jeugdiges: ’n Kousaliteitsondersoek. [Violent crime
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Research Council. White Paper on Correctional Services in South Afri-
ca. (2005). Retrieved from http://www.dcs.gov.za/
AboutUs/COE/whitepaper.aspx
eve" Schaik
Publishers :
OBJECTIVES KEYWORDS
You should be able to African customary law
* explain the methodological problems associated with the study of youth corporal punishment
misbehaviour gang formation
* illustrate the prevailing perceptions on the causes of crime industrial schools
* discuss the approaches to punishment with regard to youths interpreting statistics
* explore the development of gangs juvenile courts
* understand legislation and measures regulating the behaviour, legislation
handling and punishment of juvenile offenders pre-colonial practices
* map developments in corporal punishment reformatories
* give a historical overview of reformatories and industrial schools in
South Africa.
2.1 INTRODUCTION plinary studies have been conducted on juve-

nile criminality in many social and cultural
Juvenile misbehaviour, as a field of study settings (Albertyn 1935; Grobler 1941; Kieser
within criminology, has been researched and 1952). As early as 1935, Albertyn conducted a
written about extensively both nationally and psycho-criminological study on juvenile delin-
internationally (Clifford 1965; Cronjé, Van der quency in the Cape, South Africa.
Walt, Retief & Naudé 1980: 1; Waller 2006). If Research on juvenile criminology has a rich
one delves into the historical development of but somewhat chequered background. Prevail-
juvenile justice in South Africa, various disci- ing social attitudes and perceptions influenced
Onibisres) 19
SECTION A YOUTH MISBEHAVIOUR: ITS NATURE, EXTENT, RELATED RISK FACTORS AND EXPLANATIONS-
the findings of these studies, and they should phenomena that were unique to South Afri-
be placed in the sociocultural context in which can society at the time (Venter 1954; Ven-
they were conducted to understand the inter- ter & Retief 1960). Anthropological views of
pretations made by the authors at the time. humankind at that time, namely that some
These attitudes and perceptions specific to cultures were superior to others, also influ-
the sociocultural context of the time make an enced criminological discourse. According to
objective and empathetic evaluation of another Schiele (1996), the application on historically
person's “otherness” impossible. Instead of oppressed groups supports the social work
placing the youth within a framework that pro- mission of equality and justice for all. This par-
vided and created a setting for the character- adigm has incorporated the values of tradition-
istics of complexity, interconnectedness and al African culture. It therefore better explains
mutual relationship, in most cases these scien- the human behaviour and social problems of
tists viewed all behaviour from a Eurocentric people of African descent, and can be used to
point of view (Prinsloo & Ovens 2011). The clarify and deal with the social problems of a
dominant social and political climate within more multi-ethnic and multicultural society.
any society can influence a researcher’s par- An Afrocentric approach to juvenile crim-
adigm towards the study. The researcher’s inality models is applied containing a set of
model contains a set of legitimised assump- legitimised assumptions and a design for col-
tions and a design for collecting and inter- lecting and interpreting data (De Vos et al.
preting data, and all scientific research is 2011). Historical studies on juvenile misbe-
conducted within a specific paradigm or way haviour and views on juvenile crime in South
of viewing one’s research material (De Vos, Africa merely reflect the relativity of crime and
Strydom, Fouché & Delport 2011: 41). These punishment, and the manner in which society
philosophies or paradigms of thinking eventu- produces offenders and develops measures
ally define the researcher’s nature of inquiry to deal with deviant behaviour. A pervasive
along three dimensions, namely ontology, epis- theme emerges and forms the foundation for
temology and methodology. In other words, many perceptions and beliefs of earlier social
the approach taken in the study defines the scientists within the studies covered in this
ontology, epistemology or methodology to be chapter.
adopted. This influenced the manner in which This chapter is based on a study of past
data was construed regarding studies of juve- research conducted on the youthful offender,
nile crime as it happened in the African con- which is used to map the path of juvenile jus-
text, and specifically in South Africa. tice in South Africa and to examine briefly the
The studies included in this chapter are nature of the crimes committed by juveniles
based on a Eurocentric paradigm, as a dearth since 1931.
exists regarding an Afrocentric approach to
youth misbehaviour. In addition, the various
cultures and ethnic groups in South Africa 2.2 METHODOLOGICAL
all have different approaches in explaining APPROACHES TO JUVENILE
and dealing with it. According to Prinsloo
CRIME
and Ovens (2011), Western and African per-
spectives have different epistemological and Historically, research regarding juvenile misbe-
ontological points of departure. Contempo- haviour has taken place on a multidisciplinary
rary Afrocentric theory has developed into its level. The South African sources consulted
current form through the advent of Western approach juvenile misbehaviour from various
thought and should therefore be understood disciplines, ranging from an education perspec-
within a framework and awareness of the con- tive (Grobler 1941; Kieser 1952), a sociological
flicting nature of the two ideas of Western and perspective (Albertyn 1935), a criminological
African knowledge systems. perspective (Venter 1954) to a socio-criminolog-
Many authors in the past generalised about ical perspective (Retief 1958). Later research-
youth misbehaviour in South Africa without ers, such as Van Zyl Smit (2006), approached
proper scientific foundations, or used Euro- the topic from a legalistic perspective.
centric theories and suppositions to explain It is essential to study the context in which
20 —_ (Onubishers
CHAPTER 2 AHISTORICAL PERSPECTIVE OF THE YOUTH OFFENDER
early research on juvenile misbehaviour was a means of reformation and the substitution of
based, bearing in mind that these studies influ- the suspended sentence on condition of good
enced criminological thinking for many years. behaviour, or the postponement of sentence...
Under the system of apartheid, laws were on similar condition”.
passed that criminalised certain behaviour Regarding the rehabilitation and treatment
because the perpetrator was non-white. This of juveniles, he stated that it had become an
created situations where many actions of non- accepted principle worldwide that juvenile
white groups were criminalised by, for example, offenders receive remedial attention rather
the pass laws and the Group Areas Act, thus than punishment. However, the failure to
increasing the level of blameworthy law-break- implement such remedial measures, he
ing behaviour among these populations. believed, was the result of society’s view that
Most early studies conducted in South Africa youthful offenders were not as “formidable
typically included non-white families with or dangerous to the community as the adult
dysfunctional children without using control offender” (Grobler 1941: 6). Society’s inability
groups of functional non-white families who to comprehend the value of early intervention
also had children with behavioural issues, as and the rehabilitation of young offenders per-
was the case with many families from other petuated the practice of punishment over pre-
race groups in South Africa. This resulted in ventive or therapeutic interventions.
the labelling of non-white families as more dys-
functional than those of other cultural groups,
and the behaviour displayed by dysfunctional 2.4 CLASSIFICATION OF YOUTHFUL
non-white families in the studies was gen- OFFENDERS
eralised and associated with all families of
colour. The fact that no distinction was made between
These generalisations had no proper scien- juvenile and adult offenders is an indication
tific foundation. Retief (1958: 2) identified the that the unique nature of juvenile misbe-
need for an objective study of crime among the haviour was misunderstood and the value of
black population, and called for a strictly sci- rehabilitation overlooked historically. The
entific investigation on the topic. However, it literature makes no distinction between juve-
would take many years and extensive changes nile and adult offenders before 1831. Grobler
in the socio-political climate before an objec- (1941) consulted the records of the Cape Col-
tive study was undertaken. The evolution of ony from December 1827 to April 1831 and
meta-modernistic approaches and the accep- could find no evidence of a division between
tance of Afrocentrism within research para- young offenders and adult perpetrators.
digms have slowly filtered down to influence Prior to 1945, offences committed by juve-
the way in which society approaches juveniles were not categorised to distinguish
nile misbehaviour, the manner in which such between the crimes for which the perpetrators
youths are dealt with by society and the crim- were being sentenced. After 1945, two catego-
inal justice system, as well as punitive mea- ries of crime — serious and non-serious — were
sures imposed to deal with their behaviour. recognised.
In 1954, Venter (1954: 82) notes that a dis-
tinction was made between juveniles aged 7-16
2.3 APPROACHES TO PUNISHMENT years and young adults aged 17-20 years. Until
As early as 1941, Grobler (1941: 4) wrote of the 1963, young offenders were classified as juve-
many reforms that were taking place in the nile offenders (7-16 years) or young adults
South African criminal justice system. These (17-20 years). After 1963, young offenders
changes were driven by influential leaders were grouped according to the ages 7-16 years
such as Brigadier-General Beyers, the Direc- (youth) and 17-20 years (youthful offenders).
tor of Prisons in 1941, and Justice Krause, the This new grouping and classification showed
Judge President of the Orange Free State and a shift towards a better understanding of the
the Supreme Court of South Africa. One such needs of children and youths and the necessity
change envisioned by Grobler (1941:5) was for separate detention of these vulnerable indi-
the “gradual abandonment of imprisonment as viduals.
Van Schaik
Now that the concepts of juvenile, youth Those nations with more successful criminal
and youthful offender have been placed in per- justice systems would, by implication, have a
spective, it is possible to examine the statistics higher arrest and conviction rate than those
on juvenile misbehaviour in South Africa’s his- with a lower rate of success in dealing with
tory for the period from 1911 to the 1990s. crime. A comparative historical study of young
offenders from different countries therefore
would have to include the contexts of each sta-
2.5 INTERPRETING STATISTICS tistic as recommended by Albertyn (1935).
AND EXPLAINING JUVENILE A further problem encountered in compar-
CRIMINALITY IN A SOUTH ative studies is the influence of the scientists’
AFRICAN CONTEXT belief system on the interpretation of the
research findings. Albertyn’s (1935) study on
One encounters many difficulties when com- juvenile misbehaviour in the Cape Peninsula
paring the rates of juvenile misbehaviour from (Skiereiland) reflects the views of scientists
one country to another. Variations in the clas- and researchers of the time, yet it is less prej-
sification of juvenile offenders, as discussed udicial and subjective than most others of that
in section 2.4, and also by the fact that crimes period. He adopts a sociological approach to
may be classified differently both over time as juvenile crime in which he states that the prob-
well as geographically, make comparative stud- lem must not be studied from a social-ethical
ies difficult. A further problem arises in using perspective, but should rather be holistically
statistics to try to understand a phenomenon, understood and explained (Albertyn 1935: 2).
as crime figures may not reflect the actual Albertyn views juvenile misbehaviour as the
situation. Crime statistics are not always a true perpetration of crimes
reflection of the level of crime in a society as
many crimes are either undetected or unre- .. that are seldom of a sensational nature
ported. Albertyn (1935) illustrates the prob- .. [In society juvenile criminality compris-
lem of interpreting statistics in his work. Using es mainly of petty theft, lying to parents,
European statistics, Albertyn (1935: 12) quotes disobedience against parents, theft of food
figures from the Blue Book on crime in England or small change, and the most common
and Wales published in 1926. In Baltimore in crimes of truancy and loitering on the
1923, 11 261 serious crimes were recorded. In street [own translation](Albertyn 1935: 2).
1929 only 7950 cases were documented, yet
the rate of imprisonment rose from 5097 in These crimes are seen to emanate from the
1923 to 5 153 in 1929. Albertyn (1935: 12) con- “normal nature of a child” and even in instances
cludes that statistics should not be used to of sexual crimes, these acts are usually not
determine the level of criminality in society. He the result of a deeper abnormality (Albertyn
argues that giving figures outside of their con- 1935: 11). He believes that more serious crimes
text is futile. Nevertheless, it is still valuable such as murder may be committed by juve-
to examine statistics that have been recorded niles, but very seldom are (Albertyn 1935: 12).
over time as they reflect the variances in juve- Venter and Retief's (1960: 1, 254) writings
nile criminology regarding the types of crime are a further example of the influence of scien-
committed at different periods. When these tists’ views on the subject of a study and the
are placed into context, environmental and Eurocentric approach that influenced their
societal cases and contributory factors can be work. These researchers studied misbehaviour
studied in relation to time and geographical among black juveniles in 1954. In the preface
demarcation. of their manuscript, Venter and Retief (1960)
Venter (1954: 82) attributes the problems of state that they do not wish to compare white
comparing the incidence of crime rates among and black juveniles, yet go on to do exactly
countries to the differences in the codifica- that in their discussion. Their interpretation
tion of crimes, legislation and application of of statistics is influenced by their views on the
law. A further denominator that complicates different racial groups. They are of the opinion
comparison is each country’s ability to trace that it is not possible to compare black and
and apprehend offenders (successful arrests). white juvenile offenders because of the differ-
oven Schaik
22 Publishers
CHAPTER 2) AHISTORICAL PERSPECTIVE OF THE YOUTH OFFENDER
ences in their levels of “civility and develop- tim and the offender. During the pre-colonial
ment”. Their subjectivity is further reflected era, according to Skelton and Tshehla (2008),
in statements they make, for example: “Unem- childhood was not defined by age under Afri-
ployment among Blacks does not cause feel- can customary law but by other characteris-
ings of inadequacy and inferiority ... as their tics such as circumcision or the setting up of a
social and moral values have not sufficiently separate household (Maithufi 2000: 140). This
developed to cause concern in this respect” classification is based on very different crite-
(Venter & Retief 1960: 254). Elsewhere in their ria to that of Eurocentric principles of age and
report they claim the following: the level of intellectual and emotional develop-
ment linked to it.
When comparing a Native’s degree of civil-
Offences were dealt with by traditional
isation and development with that of a
leaders’ courts. Punishment did not take the
European, sundry factors are responsible
form of imprisonment or institutionalisation
for the fact that he appears in an unfa-
of any kind. Offences committed by children
vourable light. On the one hand, he has
and youths were treated as wrongs between
not had the opportunity to develop to the
individuals and families, to be solved in ways
degree to which he is perhaps capable. On
that promoted harmony and wellbeing in soci-
the other hand, his backwardness, and the
ety. What happened to children or the way in
accompanying immaturity of mind do not
which their behaviour was dealt with was relat-
spur him on towards improving his stan-
ed to the communal welfare of the extended
dard of living; nor are they conducive to
family, tribe or group. Children’s interests
higher aims in moral and ethical values.
often took second place to the broader inter-
The lasting and stimulating effects on his
ests of the community (Maithufi 2000). This
criminality are apparent (Venter & Retief
ideal is concomitant with the present ideal of
1960: 266).
restorative justice and the ubuntu principles
(humanity towards others).
The above quotation reflects the general per- The colonisation of South Africa led to the
ceptions held by many social scientists of the replacement of the customary legal system by
time. Such conclusions illustrate the limita- Roman Dutch and English laws. This resulted
tions in research methodologies and the use
in the replacement of the African customary
of generalisations devoid of proper scientific
approach to child justice and the implementa-
verification.
tion of a more punitive form (Skelton & Tshe-
Crime statistics do not explain the phenom-
hla 2008). Methods for dealing with young
enon of crime but rather give a picture of the offenders included corporal punishment,
occurrence of crime for purposes of interpre-
deportation and imprisonment. Later, deporta-
tation (HSRC 1975: 1). Against this background tion to Robben Island became a common prac-
the statistics for the period 1911 to the 1990s tice (Saffy 2003: 16).
will be discussed.
2.7 JUVENILE CRIME IN SOUTH

2.6 PRE-COLONIAL PRACTICES
AFRICA DURING THE YEARS
AND AFRICAN CUSTOMARY
1910 TO THE 1980s
LAW
2.7.1 Incidence of crime
In pre-colonial times, the basic principle of
African customary law was that of collective In 1911, the six reformatories in the Union of
responsibility. The law involved the entire South Africa housed 271 juveniles. By 1918,
community and in matters dealing with chil- this number had risen to 849. In 1919, a slight
dren the damage caused was seen to be decrease took place, with 813 juveniles being
against all members. Restorative justice prin- detained in the six facilities. In 1921, the fig-
ciples were applied by the elders and commu- ures peaked at 1055 and again in 1936 when
nity leaders against young offenders to restore they reached a total of 1046 detained youths
the peaceful coexistence and harmony within in reformatories. Between 1911 and 1935, the
the community, as well as between the vic- number of detainees remained below 900
Van Schaik
Opibiishers 23
(Grobler 1941: 60), which may be attributed to would lead to a society of thugs (boewe). This
World War | as research has shown that prison view contrasts with that of Venter (1954: 2).
populations decrease during times of war. According to Venter (1954: 3), there was
In 1920, the 13672 juveniles in prison a decrease in juvenile crime (7-16 year olds)
accounted for 11,9% of the prison population. during World War Il, followed by a steady
This number remained the same until 1923, increase after the war. Among young adults
when it rose to 15 241. The figure peaked in (17-20 years of age) criminal incidents
1933 with 21526 detainees, with 10,3% of the increased from 421,1 cases per 10 000 in 1938
prison population consisting of juvenile offend- to 465,9 per 10000 in 1954. In his opinion,
ers. However, the numbers decreased in 1934 the lower rates during World War Il can be
owing to policy changes and the reclassifica- attributed to two factors: firstly, the author-
tion of certain crimes related to vehicle and ities were paying more attention to the war
stock theft. effort and, secondly, the police force had been
From the crime statistics for 1931 one can reduced as many of its members had gone to
determine that the percentage of juveniles war (Venter 1954: 7).
under the age of 15 years who committed After 1949, crime figures among young white
crimes comprised 0,1% of the prison popula- adults increased sharply, mainly on account
tion and totalled 611 youths. Of these cases, 24 of a change in legislation. In 1949, Offence
involved serious crimes. The age group 15-19 087, which dealt with driver’s licence legisla-
years made up 3,1% of the prison population tion, was declared a serious offence (Venter
and accounted for 5838 offences, of which 1954: 51). In 1954, young white adult males
318 or 0,17% were serious (Albertyn 1935: 13). were responsible for 40% of all the offences
Because these statistics were not significant,
related to vehicle ordinances and traffic reg-
they were disregarded by Albertyn. To him it
ulations, and young Indian adults for 26,6% of
was the effect of the crime on society rather
them. Coloured (mixed race) youths were the
than the incidence of crime that was important.
main perpetrators of economic crimes, and
There are also statistics that reflect the
were responsible for 23,2% of these, whereas
recidivism rates. Cases documented at the
black youths were responsible for the most
juvenile courts in Cape Town in 1931 show
crimes against the person (12,1%). Offences
that of the 200 juveniles between the ages of
related to the misuse of drugs and alcohol
seven and 16 years who were sentenced during
occurred among all race groups and fell within
this period, 97 (almost 50%) had previously
appeared in court (Albertyn 1935: 14).
the top three crime categories.
The records also document the forms of A study conducted by the Human Sciences
punishment imposed on these children. In Research Council (HSRC) (1975) regarding the
1935 an Interdepartmental Committee on Des- conviction rates of juvenile offenders aged
titute, Neglected, Maladjusted and Delinquent from 7-20 years for the period 1969-1970
Children surveyed 33 centres in the Union of shows the following rates per 10000 of the
South Africa. Sentencing in 6 000 cases reflects group’s population: whites 69; Indians 83;
the following proportions of types of punish- blacks 125; coloureds 390. All these juveniles
ment: 23% warnings; 24% canings; 17% fines; were convicted mainly for economic offences
10% suspended sentences and 4% imprison- in the following proportions to all offences
ments (Grobler 1941: 71). per group: blacks 52,6%, coloureds 47,6%,
In 1937, the juvenile crime figures for the Indians fractionally less at 46,2% and whites
Johannesburg court showed that 43 out of 41,2%. The differences in rates of conviction
883 convictions were for liquor- or alcohol- are ascribed to social, economic and other cir-
related offences. In 1938, successful convic- cumstances rather than inherent factors. Rip
tions increased, and 94 juveniles were convict- (HSRC 1975: 18) ascribes the high rate of juve-
ed in the 1 230 cases heard. nile crime among coloured youths largely to
Kieser (1952: 86) attributes the increase in disorganised urbanisation within the coloured
juvenile crime worldwide to World War II. In communities, meaning that the areas in which
his opinion, an increase in crime is a potential coloured people lived did not have the same
threat to society, and a continued steady rise infrastructure and facilities found in white
4 CEES
CHAPTER 2. AHISTORICAL PERSPECTIVE OF THE YOUTH OFFENDER
communities, which can be deemed as aggra- to abnormal and psychopathic behaviour. The
vating the crime risk factors. report of the Interdepartmental Committee on
In 1974, Midgely, a sociologist, conduct- Mental Deficiency further found that juvenile
ed research on the 898 cases recorded at offenders were actually not always mentally
the Cape Town juvenile court from 1968. disabled, but that unfavourable home condi-
He found the following breakdown of cases tions increased the risk of deviant behaviour
per age group: 18-2l-year-olds accounted (Grobler 1941: 30).
for 2% of the cases; 16-17-year-olds for 51%; Changed perceptions were further prompted
13-15-year-olds for 37%; and 7-12-year-olds by a paper read at a conference on child wel-
for 9%. National crime statistics showed fare in Cape Town in September 1937 by Advo-
that 17-year-olds appeared most frequent- cate Bain. The authorities were thus forced
ly before the juvenile court, but in Midge- to turn their attention to economic and social
ly’s (1974: 91) study, the 16-year-olds fea- causes of crime (Grobler 1941: 32).
tured most. The study showed that relatively Many of the interested parties expressed
few very young children appeared before the the idea that to understand juvenile deviant
court. Of the 898 cases, only 28 dealt with behaviour, it is necessary to analyse the work-
children under 10 years of age: six were aged ing of the juvenile’s mind at the time of the
nine and two were aged seven and eight years offence. In response to this thinking, Grobler
respectively. The gender ratio was one girl to (1941: 56) states: “This introduces a totally
every 10 boys. new principle into the search for methods of
The vast majority of the cases before the reformation, again emphasising that rehabili-
Cape Town juvenile court involved coloured tation and re-education of the young offender
children or young coloured people. Only seven mean individualised treatment”.
involved Asian children - less than 1% of all In his work, Kieser (1952: 88) insists that the
appearances — while 3,5% and 4,5% involved use of dagga (marijuana) contributes to abnor-
African and white children respectively. The mal sexual desires. However, at this stage little
remaining 91% involved coloured children. research had been conducted on the effect of
Although the disproportionately large number psychoactive (mood- and behaviour-altering)
of coloured children before the court was in substances on behaviour, nor does he indicate
part due to the demographic composition of how he came to this conclusion.
the Cape Town magisterial district, the propor- According to Albertyn (1935: 24), personality
tion was larger than that of coloured children rather than race should be seen as a contrib-
in the population of the area of the court's uting factor to juvenile misbehaviour. Further-
jurisdiction and in the population of the city as more, he states that crime is not necessarily
a whole (Midgely 1974: 91). a result of personality characteristics causing
antisocial behaviour or bad habits, but rather
over- or underdeveloped natural character-
2.7.2 Causes of crime istics that are sometimes channelled in the
The 1926-1927 report of the Commissioner for wrong direction. In contrast, Kieser (1952: 1)
Mental Hygiene concluded that “accordingly viewed juvenile crime as the result of a patho-
lack of intelligence can be assumed to be a logical condition within the perpetrator. Other
causative factor in the case of misbehaviour” researchers viewed child misbehaviour as a
(Grobler 1941: 22). result of a disregard for the legal system (Ven-
According to Grobler (1941: 18), the ter & Retief 1960: 266-267).
1928 Interdepartmental Committee on In his investigations, Albertyn (1935: 42)
Mental Deficiency was asked to inves- acknowledges the effect of the community
tigate the position of “mentally retard- and living conditions on the levels of crimi-
ed, mentally deficient and psychopath- nality among juvenile offenders. However, the
ic children” in the Union of South Africa. subjectivity in the interpretation of the data
The committee came to the conclusion that at that time led to many skewed conclusions.
mental deficiencies and disabilities were not For example, Albertyn (1935: 48-51) attributes
the sole cause of deviant behaviour, but that the higher crime rate among coloured juve-
the environment of offenders also contributed niles to “geen kultuur” (no culture) and a desire
Opubishes} 25
Schaik
by coloured people to be like white people, It is generally accepted that the problem
including in upbringing, moral standards, liv- of girl offenders is a very difficult one
ing conditions and leisure activities. In com- and that in their re-education and reha-
parison, he states that the causes of crime bilitation the most systematic and scien-
among white juveniles could be attributed to tific psychological principles should be
social factors, which he categorises into those adhered to.
outside the family and those within the family.
Factors outside the family include friends, This statement could lead one to believe that
gangs, limited space for play, schooling and the researcher would approach the subject of
urbanisation. female juvenile misbehaviour objectively and
Early studies even sought to identify physi- scientifically, and that the rehabilitation of
ological differences among children with many the girl offenders would be based on scientific
personality problems and those with fewer principles. However, this expectation is shat-
(Prinsloo 1985: 12). However, these attempts tered by Moseley’s next observation:
remained inconclusive. From the research
The boys’ problem is bad enough, but the
initiatives undertaken in South Africa since
girls — well, there are men who frankly give
1926, it is evident that social scientists have
it up (in Grobler 1941: 281).
grappled with the quest to identify the causes
of crime among youthful offenders. These
It seems that the social scientists of that time
researchers have made the same error that
found female misbehaviour very difficult to
scientists throughout the ages have made
manage; in fact, it appears to have exasperated
by interpreting their findings from their own
them. Luckily, this view of the female has
frame of reference without understanding the
changed, and the topic of female criminality
cultural background of the subjects. When it currently receives adequate scientific investi-
comes to studies of deviant girls, these flawed gation and discourse.
research methodologies are again reflected.
2.7.4 Development of gangs

2.7.3 Misbehaviour among girls
An important component of the history of
Historically, less attention has been given to juvenile misbehaviour in South Africa is the
criminality among girls in South Africa. This role that gangs have played in society. Grobler
dearth in research also exists globally. While (1941: 300) refers to the concept amalayitas
many studies have been conducted on the among the black youth gangs of the time. How-
misbehaviour of boys, those on girls are limit- ever, he gives no timeline, so the exact date of
ed and, as will be illustrated, skewed and sub- the start of gang development is not known,
jective. The earliest figures for girls in deten- but is assumed to be around 1938, the date
tion can be traced to 1929. Records show that of the earliest source this author found that
50 white girls, 1 332 black and coloured girls, refers to the development of juvenile gangs
and five Indian girls were in institutions at in South Africa. Grobler states that originally
that time. It must be noted that in those days young black boys herded livestock in the
individuals with mental disabilities and prob- veld, and channelled their superfluous energy
lems were incarcerated with criminal youths, into the formation of bands or gangs. They
so it is difficult to determine whether all the had leaders or inggwele (masterful boys) who
girls were convicted offenders. The figures would lead them as they played war games, for
remained quite constant with 52 white girls, example attacking other groups they met out
1 221 black and coloured girls, and two Indian in the veld. The word amalayitas is thought to
girls in penal institutions and reformatories in have come from the English word “light”, and
1932. indicates activities that occur when the lights
Social scientists’ (and society's) views on come on at night, thus the nocturnal activities
girls at that time are reflected by their com- of the young men.
ments. Sydney A. Moseley stated the following Grobler (1941:300) believes that these
in The truth about Borstal (in Grobler 1941: 281): activities formed the basis for conflict with the
26 — (Onbisners
CHAPTER 2. A HISTORICAL PERSPECTIVE OF THE YOUTH OFFENDER
law when these young men were urbanised. tions led to the disenfranchised youth assert-
The more daring the actions of the gangs, the ing themselves and forming organisations.
more social esteem was granted to the perpe- Protests erupted because of the inadequate
trators. educational system and poor living conditions
A powerful and apolitical gang culture dom- available to the black youth. Between 1960 and
inated black township life between the 1930s 1967, gangs became more political.
and early 1970s (Glaser 2000: 2). In the 1940s Prior to this, the objectives of the street
and 1950s, the youth gang (fso¢si) culture was gangs had only on some occasions coincided
prolific in the townships (Glaser 2000: 2), the with those of political groups (Glaser 2000: 12).
Sophiatown gangs that originated in the 1940s However, clashes with the police and other
being one example. symbols of state authority, as well as the pass
The 1940s and World War II contributed to laws restricting the movement of gangs on the
the increase in the number of gangs in Sophia- street, created common problems and thus a
town. According to SAhistory.org (2017), this common purpose, which brought gangs and
was due to the fact that at the time about political groupings closer together. During the
20000 black teenagers were neither at school 1960s, the gap also closed between students,
nor gainfully employed. These township who were seen as the elite, and the gangs.
youths were mostly illiterate, did not have any Where students held a broader vision and
work experience and were considered undisci- were idealistic, gangs were more subversive
plined and weak. and violent (Glaser 2000: 185-186); however,
The period between 1968 and 1976 saw the this merging of interests led to a combined
rise of youth gangs in Soweto, which increased force and greater resistance to the reigning
from 10 to over 50 identifiable groups, and authority.
included the Kwaitos, the Dirty Dozen and the Prison gangs are thought to have originated
Hazels. Gangs also developed in Diepsloot and from the Ninevites who were active in the late
Meadowlands. In Diepsloot, the Biafras of Zone 19th and early 20th century. The leader of
Six, the Jaws of Zone One, the Damarras and the Ninevites was known as Nongoloza. The
the Mongols ruled the area. In Meadowlands,
Ninevites were made up of young men who
the Hong Kongs and the Black Power gangs had left their homes in the rural areas to move
dominated. According to Glaser (2000: 4), closer to the towns. They lived in the caves
these gangs were expressions of young urban scattered across the south-western perimeter
masculinity and, besides the women who were
of Johannesburg, and resorted to crime rather
either girlfriends or lookouts, males dominated
than working for white bosses. They infiltrated
within this subculture. the labour compounds of the goldmines and
Gangs also developed as a result of efforts
later penetrated the Transvaal (Gauteng)
to gain protection from existing gangs. The
prisons, introducing gangster ways and gang
Japanese of Klipspruit and the ZX5 in Phiri
philosophy. By 1910, the Ninevites had been
originated as school-based defence networks
defeated by other gangs, yet they left a legacy
to fight harassment from gangs. Later both
that is still visible in current gang codes and
became embroiled in gang violence (Glaser
lore. By 1930, every prison in South Africa had
2000: 132). Gang wars were fuelled by competi-
been infiltrated by gangs that had originated
tion over women and recreational spaces, such
from the Ninevites (Steinberg 2004: xv-xvi).
as parks and leisure halls, and involved hun-
Today they are known as the number gangs
dreds of youths at the time (Glaser 2000: 136-
and they still play a predominant role in correc-
137).
tional centres in South Africa, making prison
At the beginning of the 20th century, South
management and control difficult.
African youths often found themselves victims
of political and sociocultural crises. “Subjected
to poverty, serving as pawns in the political 2.7.5 Developments in youth care
arena and falling victim to racial and other seg-
organisations
regations reflected a situation that was ignored
by the leaders” (Van Zyl Slabbert, Malan, Mara- After 1920, many developments took place
is, Olivier & Riordan 1994: 1-10). These condi- in South African society to assist youths who
Van Schaik
© publishers OT
displayed problem behaviour. The South Afri- 2.8 LEGISLATION AND MEASURES
can Council for Child Welfare was instituted in REGULATING THE BEHAVIOUR,
1924, which led to the development of the most
HANDLING AND PUNISHMENT
important body in the prevention of juvenile
misbehaviour (Grobler 1941: 45). The South
OF JUVENILE OFFENDERS
African Council for Child Welfare became FROM 1910-1960
responsible for coordinating the activities of From 1910-1960 (Union of South Africa) youth
all existing organisations working with juve- misbehaviour was regulated by the Child Pro-
niles and all other activities within the field tection Act of 1913 and the Child Act of 1937
of child welfare (Grobler 1941: 46). On 4 May (Albertyn 1935: 97). Section 31 of the Child Act
1937, the Jan Kriel Special School was estab- of 1937 allowed the Commissioner of Child
lished for epileptics. At the time it was thought Welfare to place a child in the care of parents
that children who had epilepsy had a “lowered (natural and foster) or under the control of
power of inhibition” and that they needed a an approved society, and to impose a fine or
special facility to treat their behaviour. corporal punishment, or imprisonment (if
Four years later, in 1941, the University of the youth was above 19 years of age) (Kieser
Cape Town opened a Child Guidance Clinic, 1952: 89).
which was one of a kind, providing assis- Legislation to regulate the actions of black
tance to “problem children of various kinds” South Africans led to an increase in reported
(Grobler 1941: 46). Grobler does not elaborate crime for this population group. The criminali-
on the exact meaning of the latter statement, sation of acts that were not considered crimes
but it shows that the methodology of the time among the white population gave a skewed
was to put children with mental health prob- perspective of the levels of criminality among
lems in institutions along with those with black youths in society. These offences were
incorporated in the section that dealt with
behavioural problems.
“native” behaviour, regulations, supervision
The church also stepped in to assist with
and control. Sections 160-172 of the Act con-
caring for the youth. The Dutch Reformed
tained 13 such offences, including the contra-
Church established 14 homes for orphans and
vening of pass laws and curfews, and the use
destitute children: six in the Cape Province,
of whites-only facilities and alcohol. These dis-
five in the Orange Free State and three in the
criminatory regulations accounted for 33,4% of
Transvaal (Gauteng) (Grobler 1941: 47).
all the crimes committed by black youths, but
Grobler (1941: 107) suggested that a system
if they had been committed by white youths,
similar to that at Portland Borstal in England they would not have been seen as crimes.
be instituted in South Africa, which allowed Examples of such discrimination include
for the separation of first-time and repeat 54% of all the crimes committed by black juve-
offenders. Boys with previous convictions nile girls, being the contravention of curfews
would be separated from first-time offenders (Aandklokregulasies), and 37,6% of the crimes
as it was found that these more experienced of black juvenile males being the contraven-
boys negatively influenced the others (Grobler tion of the registration and provision of doc-
1941: 107). uments for natives (Registrasie en Voorlegging
Specialised courts were created by the van Dokumente deur Naturelle). Among young
criminal justice system to deal with problem black adult males, 34% of their convictions
behaviour among the youth. The Domestic were related to this law, while the contraven-
Relations Court was established where magis- tion of section 164 of the Act accounted for
trates and probation officers could assist fam- almost 12% of all crimes committed by young
ilies to deal with issues threatening the family black adult offenders.
(Grobler 1941: 48). Furthermore, specific legis-
lation was introduced to deal with youth mis-
behaviour, such as the Child Protection Act 2.8.1 Juvenile courts
of 1913 as amended in 1921 and 1931, and the By 1931 the government of South Africa had
Child Act of 1937. not yet established special courts for chil-
28 Van Schaik
CHAPTER 2 A HISTORICAL PERSPECTIVE OF THE YOUTH OFFENDER
dren and young persons, but did provide for separate jurisdictions: the Cape Colony (or
the separate treatment of juveniles. The Child Cape of Good Hope), Natal, the Orange Free
Protection Act of 1913, later amended in 1921 State and the South African Republic (later
and again in 1931, regulated reformatories for the Transvaal). The punishments imposed
two groups of young people: children under differed from jurisdiction to jurisdiction. For
16 years of age were detained separately example, according to Ordinance 7 of 1902
from young persons aged from 16-21. Cases (O) section 63, read with Ordinance 7 of 1903
were heard in ordinary courts, but the magis- (O) of the Orange Free State, a sentence of 12
trate presiding over them specialised in chil- strokes with a cane or rod could be imposed
dren and welfare matters (League of Nations on a youth under the age of 16 years. In Natal,
1931: 117). under Act 21 of 1869 (C) and Act 22 of 1896 (N)
section 22, the Magistrates’ Court Proclama-
tion 21 of 1902 (T) section 36, and Ordinance
2.8.2 Punitive measures 7 of 1902 (QO) section 65, a male aged 14 years
Punitive measures for juveniles ranged from and under could be given 10 “cuts” (strokes).
the imposition of the death penalty to impris- Later, a male aged between 10 and 18 years
onment or placement in reformatories. Chil- who was convicted of a breach of a bylaw or
dren awaiting sentencing were placed in “certi- a non-capital crime could be sentenced by a
fied hostels”. Magistrates could also send juve- magistrate to 20 such strokes (Act 23 of 1909
niles there if they were found guilty of com- (N)) (Venter 1959: 5).
mitting any offence except murder. Detained From 1917, under the uniform laws fol-
juveniles received schooling or, in the case of lowing the unification of South Africa in 1910,
older detainees, were taught a trade. Others males under the age of 16 years could be given
were allowed to work in the community and “cuts” in lieu of any other punishment for a
returned to the hostels only for meals and to criminal offence (Act 31 of 1917 section 353).
sleep (League of Nations 1931: 117). The maximum number of strokes was 15.
Industrial schools were established to help In 1935, the General Law Amendment Act
prevent further crime rather than to punish 46 of 1935 section 64 provided that any male
juveniles. The court was held in camera, and under the age of 21 could be given “cuts” in
children under 16 could be sent to an industrial lieu of any other punishment for a criminal
school if they were in need of care (League of offence.
Nations 1931: 117). While the number of youths eligible for judi-
cial caning grew over the years, the maximum
number of strokes gradually decreased. In 1944
2.8.3 Corporal punishment under Act 32 of 1944, the maximum number of
strokes was 10 (Van Zyl Smit 2006). Whereas
According to Venter (1954: 3), in the early days
adult whippings (and all other serious sen-
of the 17th century in the Cape Colony, which
tences) by magistrates’ courts were subject to
was under the decree of the Dutch East India
automatic review by a higher authority, juve-
Company at the time, corporal punishment
nile whippings were specifically excluded from
was administered to individuals convicted
this. The reason was put as follows by Cent-
of petty misdemeanours. Often whippings of
livres JA in Ex parte Minister of Justice: In re R v
more than 100 lashes were ordered, frequently
Mayer [1943] AD 389 at 293:
causing serious injury or sometimes even
death. ... to enable such sentences to be prompt-
After 150 years of Dutch rule under Roman- ly carried out and thus to render unneces-
Dutch law, Britain took over power in the Cape sary detentions in gaol of juvenile offend-
in 1806, and as a result the legal and judicial ers ... even for the short period which
system changed to an English one. In 1869, the would normally have to elapse if their
courts of the Cape Colony could impose sen- cases had to be submitted for review.
tences of no more than 15 strokes on children
under the age of 15 years. The 1955 Criminal Procedure Act 56 of 1955
In the 19th century, South Africa had four provided in section 345 as follows:
CED 20
If a male person of not exceeding the were 2 251 whippings (609 juvenile and 1 642
age of twenty-one years is convicted of adult), of which 331 were related to prison dis-
any offence, the court before which he is cipline and 442 were court sentences of whip-
convicted may, in lieu of any other pun- ping without imprisonment. The remaining
ishment and as well in the case of a first 1 478 canings were court sentences of corporal
conviction as of any subsequent convic- punishment combined with a prison term. The
tion, sentence such person to receive in lower courts could order corporal punishment
private a moderate correction of whipping for male juveniles for any offence, but they had
not exceeding ten cuts, which correction more restricted powers with regard to adult
shall be administered by such person and offenders (Van Zyl Smit 2006).
in such place and with such instrument According to figures of the Department of
as the court may appoint. The parent or Justice, the whipping of juvenile males in 1982
guardian of such first mentioned person took place in approximately 39 000 cases. Ten
shall have the right to be present (Van Zyl years later, the figure was still high, namely
Smit 2006). 36 000 cases per annum (Van Zyl Smit 2006).
Besides corporal punishment, other mea-
In 1961, after leaving the Commonwealth and sures such as the use of reformatories and
becoming a republic, South Africa introduced industrial schools were also implemented to
a much more repressive and authoritarian deal with youth misbehaviour.
regime in which corporal punishment played
a significant role. This was governed by Prison 2.8.4 Reformatories
Regulation No. 100, and the Prisons Act 8 of
1959, which read that In 1873, the Honourable Porter, the attor-
ney-general of the Cape, left £20000 in his
(1) subject to [other provisions] corpo- will to establish the first reformatory in the
ral punishment shall not be inflicted [... Cape (Grobler 1941: 83). Eventually, in 1882,
before the period for an appeal ...] unless the reformatory envisaged by Porter was
the convicted person has indicated in established at Valkenberg in Cape Town after
writing that he has no intention of noting numerous complications and disagreements
an appeal, and he agrees that corporal regarding the use of the legacy had been
punishment may be inflicted before the sorted out.
expiry of the said appeal. Originally, around 1889, reformatories were
established as facilities in which juveniles
According to the Act, corporal punishment could be placed as punishment, and were thus
could be inflicted with a cane across the but- seen as penal institutions (Grobler 1941: 88).
tocks on a juvenile prisoner. The cane was In the 1897 Annual Report of Prisons, the need
approximately one metre in length and nine was expressed for reformatories or correctiehu-
millimetres in diameter (Van Zyl Smit 2006). ise to be built to house juveniles who received
The difference between parental and judi- prison sentences. The influence of hardened
cial canings was noted by the court in S v Man- older offenders on juvenile offenders was of
uel and Andre [1975] 3 SA 790: concern to the authorities; however, once the
Anglo-Boer War broke out on 11 November
The imposition of strokes must be handled 1899, the matter received no further attention
judicially in the case of juveniles. The inflic- until the first “whites only” reformatory was
tion of strokes by an official in the police built in Heidelberg in the Transvaal (Grobler
cells is in no way to be compared with the 1941: 91).
administration of strokes by a father in After the unification of the four jurisdictions
the exercise of his parental duty. The first in South Africa on 31 May 1910, reformatories
method can in many cases have an injuri- and industrial schools became the responsi-
ous psychological effect on the child. bility of the Minister of Justice. At the time the
country still had four separate penal systems,
In the 1970s, corporal punishment imposed in as each of the previously separate provinces
prison was reduced considerably. In 1976 there had its own one, thus it was necessary to
20 OE
CHAPTER 2 AHISTORICAL PERSPECTIVE OF THE YOUTH OFFENDER
establish a uniform prison system. This merger South Africa’s annual expenditure on refor-
was instituted by the passing of the Prisons matories was $42584 in 1935 and $51 421
and Reformatories Act 13 of 1911 by parlia- in 1936, with a cost of $51.55 per juvenile in
ment. 1935 and $51.13 in 1936. This was less than
On the passing of this legislation, all juve- the cost of sending a child to school (Grobler
niles in prison were sent to reformatories. 1941: 332). In 1948, six reformatories housed
Thirteen white boys and 122 coloured boys black juvenile offenders. They were located in
were sent to the Porter reformatory, and 49 Constantia, Diepsloot, Durbanville, Eshowe,
white boys were transferred to Emmasdale. Porter and Gemiddeld. For the government,
The Breakwater Prison in Cape Town became the financial implications of running these
a reformatory for white male juvenile adults reformatories were substantial. It cost the
(Grobler 1941: 93). South African treasury £182.99, $67.28, $316.69,
At the same time, a section of Diepsloot $68.71, £108.57 and $102.42 respectively to
Prison was converted into a reformatory for manage the latter institutions per juvenile per
black male juveniles and young adults. Also in year.
November 1911, the women’s prison in Preto- It has not been possible to find national fig-
ria was used to house both white and coloured ures for other juvenile boys in other reforma-
juveniles and young adults. In 1914, these girls tories and industrial schools. From the avail-
from Pretoria were moved to the reformatory able information, however, one learns that
at Fort Dunford in Estcourt, which became an between 1917 and 1936, 1068 juveniles were
sent to the white section of the Tokai reforma-
institution for white and coloured juvenile and
tory, of which 125 received sentences of five
young adult girls at the request of the prime
years. In 1935 and 1936, 564 and 639 juveniles
minister at the time, General Louis Botha
respectively were released from reformatories
(Grobler 1941: 95). The prevailing conditions
(Grobler 1941: 228), and in 1937, 626 juveniles
were not ideal, and in May 1927 the reforma-
were released from reformatories under Act 31
tory was closed and moved to Eshowe in Natal
of 1937 (Grobler 1941: 229).
(now KwaZulu-Natal). The new reformatory in
From this brief historical review of reforma-
Eshowe was established for female juvenile
tories in South Africa, it is apparent that these
offenders (Kieser 1952: 96). institutions played a major role in the deten-
In 1917, a reformatory was established at tion of young offenders. However, the empha-
Fort Glamorgan in East London for black juve- sis was generally on housing these youths and
niles and young adults. This was done to obvi- teaching them basic job skills, and little effort
ate contact between black boys and coloured was made to rehabilitate and treat them.
youths at the Porter reformatory due to the
perception that the “Cape Coloured bullied
and terrorised the natives, using them as 2.8.5 Industrial schools
tools” (Grobler 1941: 100). In April 1936, the The idea of industrial schools originated from
Luckenhoff Institute for psychopathic girls in Scotland in 1850 where they were established
Durbanville was converted into a reformatory. to house destitute and delinquent children.
In 1934, the existing reformatories were These schools were intended for young and
removed from the management of the Depart- less-hardened juvenile offenders. After the
ment of Justice and became the responsibility unification of South Africa, children over 12
of the Union education department, which and under 14 years of age without previous
later became known as the Department of Edu- convictions were accommodated in industrial
cation, Art and Sciences (Kieser 1952: 98). schools (Grobler 1941: 110).
It should be noted that in 1919 the author- Legislation had existed in the four separate
ities in South Africa subjected the juveniles jurisdictions for the training and support of
in reformatories to mental examinations for this category of child. In Natal this legislation
the first time. The tests were, however, soon was incorporated into Act 38 of 1901, and in
phased out as, for unstipulated reasons, reg- the Orange Free State into Chapter 35 of the
ular examinations could not be done (Grobler State Law Book for coloured children and Law
1941: 24). 3 of 1899 for white children. Act 38 of 1909
Van Schaik
©pubiishers} 31
made provision for children to be housed in of violence, a “normalisation of crime and vio-
industrial schools in the Transvaal, but did not lence over the past 30 years”. He maintains
stipulate a minimum age, and children under that the youth revolt that took place in 1976
10 could be included. and the rebellion in the 1980s had a profound
However, Act 13 of 1911 stated that “... a impact on the attitude of youth towards the
minimum age should be set for boys ... expen- formal and informal authority of both their
sive staff and equipment is wasted on babies families and schools. Pelser believes that the
and very young children” (Grobler 1941: 112). youth is still a lost generation that has been
The promulgation of Act 25 of 1913, the Chil- let down by “a strategic misconception of the
dren’s Protection Act, adopted a different nature of crime in the country and, related to
approach and stipulated the ages. this, poor strategy options post 1994” (Pelser
In 1909, the first industrial school was built 2008: 13).
in Standerton. This was followed in 1912 by Pelser (2008) quotes Bundy, who blames
schools in Emmasdale and George, in 1915 in the confusion that existed at the time about
Paarl, in 1918 in Dewetsdorp, in 1921 in Tempe whether youths’ actions were of a political or
and in 1925 in King Williamstown and Die Vlakte a criminal nature. In 1986, Qoboza (in Pelser
(Grobler 1941, Appendix 1). These schools 2008: 13) wrote about “the dark, terrible beau-
were controlled by a board of management as ty” of the courage of the young township fight-
stipulated in Act 38 of 1909 and Act 7 of 1910. ers, and acknowledged “a great shame ... that
In 1921, a hostel for “feeble-minded” girls this is our heritage to our children: the know-
was built in Standerton (Grobler 1941: 24). ledge of how to die, and how to kill”.
Four years later, in 1925, the Luckhoff Insti- Authors (Simpson, in Pelser 2008) identify
tute for “psychotic girls” was established in the internalisation of violence and the emer-
Durbanville. Juveniles from reformatories, gence of a “culture of violence” in which crim-
industrial schools, and certified hostels and inal narratives are justified in terms of main-
institutions who were found certifiable under stream “business”, “status”, “lifestyle” and
the Mental Disorders Act of 1916 were sent to “materialism”.
institutions for the feeble-minded at Maitland Dolby (2001) writes that these youths’ past,
(Alexandria) and Potchefstroom (Witrand). present and future “are neither completely
This initiative later proved to be detrimental defined by apartheid, nor completely free of
as these “defective delinquents” with “incorri-
it”. She states that South Africa is a society
gibly vicious propensities” had a negative influ- still divided and defined by race and that it is
in constant conversation and conflict. Against
ence on other juveniles (Grobler 1941: 26).
this background we can look at the crimes
These types of institution deviated from the
committed by youths in the 1990s.
original Scottish ideal of industrial schools,
According to the Central Statistical Service
which were intended to be an alternative to
(now Statistics South Africa or StatsSA), the
a prisonlike environment. However, without
total number of crimes committed by youths
properly trained staff and officials this aim was
under the age of 21 years between 1 July 1990
difficult to achieve. Furthermore, prevailing
and 30 June 1991 was 95398. Among these
views on the treatment of deviance or mental
youths, 11 of every 1000 individuals aged
instability did not help achieve the aims of the
from 7-20 years were found guilty of a serious
industrial school.
offence (Moore 1994: 68). Amid the political
turmoil of these years, the related violence
2.9 YOUTH MISBEHAVIOUR IN also affected negatively on the youth, with
about 11 000 individuals falling victim to such
SOUTH AFRICA FROM
violence between 1990 and 1993. This in turn
1990-1999 resulted in 50000 children being displaced,
2.9.1 Post-apartheid legacy on 2000 being physically traumatised and a fur-
ther 7 000 being abandoned.
juveniles in South Africa
By September 1999, 2026 awaiting-trial
According to Pelser (2008: 13), youth crime in prisoners were youths, with a further 1 375
South Africa is the consequence of a culture serving prison sentences. This situation was
Van Schaik
32 © Publishers
CHAPTER 2. AHISTORICAL PERSPECTIVE OF THE YOUTH OFFENDER
addressed in the South African Law Commis- South Africa, as a country, had not given
sion’s review of the Child Care Act in terms of many of its children, particularly black
customary law, where it was found that there children, the opportunity to live and act
was a need to identify comprehensively the like children, and also that some children,
exact end of childhood and the commence- as a result of circumstances in which they
ment of adulthood. find themselves, have come into conflict
Since this transition is marked by occur- with the law.
rences such as initiation, marriage, and phys-
ical and emotional maturity, all of these could The Act aims to “entrench the principles of
contribute to the variations in defining a child. restorative justice in the criminal justice sys-
This lack of uniformity is not always reflected tem for children who are in conflict with the
in the South African legal framework, and chil- law”.
dren aged from 14-17 are viewed as having This legislation goes on to define restor-
criminal capability, and anyone 18 years or ative justice within the child justice system
older is viewed as an adult. as an approach to justice that aims to involve
In May 2004 there were 3 594 children under the child offender, the victim, the families
the age of 18 years serving time in prison. Of concerned and community members to iden-
these, 52% were awaiting trial, and the other tify and address harms, needs and obligations
48% had already been convicted. Of concern is collectively through accepting responsibility,
that 12% were sex offenders. making restitution, taking measures to prevent
Figures from the Inspecting Judges Report a recurrence of the incident and promoting rec-
(Annual Report 2006) show that for the year onciliation. The aim is to divert youth offenders
ended 1 May 2005 there were 9 494 sentenced out of the correctional sphere into facilities and
juveniles (18-21 years) incarcerated in South processes where rehabilitation and change can
African prisons. In the same period, there were occur. Annually tens of thousands of youths
9079 juveniles awaiting trial. The report also are diverted from the mainstream legal machin-
indicates that 1 137 children (under the age ery. Although the legal processes have been
of 18 years) were sentenced, while 1 217 were aligned to be more child friendly, children in
unsentenced or awaiting trial. South Africa face other challenges that place
many of them at the coalface of an out-of-sorts
socio-political system.
2.10 INTERVENTIONS AND After more than 20 years of democracy,
CURRENT INSIGHTS young people in South Africa are still living in
poverty and are plagued by crime, violence,
Many steps have been taken in the last decade unemployment and lack of education. During
to improve the child justice system. The Con- 2016, the research company Afrobarometer
vention on the Rights of the Child, signed on published startling findings into how young
29 January 1993, served as a point of depar- South Africans feel about socioeconomic
ture for the planning of policies and services issues and South Africa’s future. The survey
to address youth misbehaviour. The United said 64% of South Africans felt that the gov-
Nations Standard Minimum Rules for Non-cus- ernment was doing a poor job of managing
todial Measures and the United Nations the economy. More than half of South Africans
Guidelines for the Prevention of Juvenile Mis- rate the country’s economic situation as “fairly
behaviour further documented efforts in the bad” or “very bad”, while 36% are unhappy
fight against youth delinquency (Tshiwula with their living conditions. Another survey
1998: 1-2). by StatsSA during 2016 where they profiled
However, with the establishment of the the social status of young people between
Child Justice Act we see a renewed effort to the ages of 15 and 34 years revealed statistics
improve the child justice system. The Child that echo the bleak picture of young people in
Justice Act of 2008 was instituted to address South Africa. The survey showed that millions
the poor treatment of children and youth of young people were living below the bread-
before 1994. The preamble to the Act states line. About 70% of South Africa’s 20 million
that historically young people were more likely to be victims
Onis} 33
and perpetrators of assault, robbery and prop- the “gradual abandonment of imprisonment as
erty theft than adults (35 years and above). a means of reformation and the substitution of
StatsSA’s Vulnerable Groups Survey found that the suspended sentence on condition of good
59% of South Africans aged between 16 and 34 behaviour, or the postponement of sentence ...
years were victims of theft during the 2013- on similar condition” (Grobler 1941: 14).
2014 financial year, while 53,4% were victims If we consider the use of mandatory sen-
of assault. This makes young South Africans tencing and the number of young offenders
more susceptible than any other age group to receiving these sentences from 2005 rather
violence and crime. than moving towards Grobler’s envisioned
Unemployment also continued to rise “prisonless” society, it appears that we have
among the youth in South Africa (Seeth & started imposing harsher, more draconian sen-
Maphumulo 2016). This paints a bleak picture tences for serious criminal acts by the youth.
with regard to job prospects for South Africa's
However, the Child Justice Act brings in a
graduates and matriculants. Failure by govern-
new vision and hope for South Africa to huma-
ment and business to provide proper jobs for
nise the juvenile justice system and to restore
the youth of South Africa is a great cause for
these often vulnerable victims of their own
concern and can only escalate into an unman-
actions to their rightful place back in society.
ageable situation in the lines of the Arab Spring
It is interesting to note a cycle which has
(Arab revolutions). This revolutionary wave of
both violent and non-violent demonstrations, taken place within our punitive paradigm.
protests, riots, coups and civil wars, fostered With the adoption of this new legislation, we
by the youth who experienced similar hard- have returned to a situation similar to that
ships as their counterparts in South Africa, during the pre-colonial period of customary
affected many Arab countries, and the effects law. Society is reverting to dealing with youths
are still evident. within their communities, and restorative jus-
tice efforts strive to restore the relationship
between young offenders and their families
2.11 CONCLUSION and communities in the spirit of ubuntu rather
If we look back at the history of juvenile jus- than punishing and rejecting derailed young
tice in South Africa since 1911, we may ask persons. In some way, this stands in contrast
whether we are any closer to an ideal sys- to the social-political position of many youths
tem. The move towards harsher punishments in South Africa who live below the breadline
for youth offenders as illustrated by Pinnock and endure the harshest conditions bestowed
(2006) contradicts the ideology supported by on them by a highly volatile, unjust democratic
Grobler more than 60 years ago, who believed society.
that many reforms were taking place in the In the following chapters we will further
South African criminal justice system (Grobler explore the impact of the Child Justice Act and
1941: 4). One of the changes envisioned was current initiatives in our juvenile justice system.
CRITICAL QUESTIONS
1. Explain how the social and political climate in South Africa influenced the manner in which data was
construed.
2. Illustrate how the anthropological views of humankind at a specific period in time can influence crimi-
nological discourse.
3. Discuss the influence of Eurocentric paradigms on the explanation of youth misbehaviour in an African
context.
Discuss the many difficulties that exist when comparing rates of juvenile misbehaviour.
Discuss early perceptions of the causes of youth misbehaviour.
34 Van Schaik
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CHAPTER 2 A HISTORICAL PERSPECTIVE OF THE YOUTH OFFENDER
. Explore the origin of gangs in South Africa.

Dn
. Provide a brief overview of corporal punishment in South Africa.

on
. Critically map the development of reformatories in South Africa.

. Illustrate how the idea of industrial schools that were established to house destitute and delinquent chil-
wo
dren failed in South Africa.

10. Explain the historical views of the experts on misbehaviour among girls and their prognosis for treat-
ment and rehabilitation.
11. Give a brief overview of the current position of youths in the South Africa legal system and also in the
social-political domain.
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Van Schaik
36 ©pubiishers
OBJECTIVES
explain the concept “status offender”
discuss the background and characteristics of a person who displays high-risk behaviour
define the concept “youth sex offender”
discuss the difference between youth sex offenders who sexually offend against adults or their peers and
those who sexually offend against children
describe the characteristics of both male and female youth sex offenders
discuss the similarities and differences between male and female youth sex offenders
explain the concept “parent abuse”
discuss the characteristics of youth who assault their parents
discuss sibling abuse KEYWORDS
define the concept “bullying” chronic juvenile offender
set out the characteristics of the school bully family violence
describe cyber bullying as a “new” form of bullying school violence
discuss drug use among youths substance abuse
discuss gangsterism youth sex offender
define the concept “hate crime”
discuss youth homicide
discuss train surfing and izikhothane as emerging trends in youth misbehaviour
understand the correlation between child and youth misbehaviour and age, race, class and gender
describe the chronic juvenile offender
distinguish between official and unofficial crime information sources. Van schaik
©pibiishers) 37
3.1 INTRODUCTION This chapter discusses the juvenile sex

offender as well as violent and dangerous
This chapter gives a descriptive explanation
offences such as school shootings and stab-
of child and youth misbehaviour, therefore
bings, sibling abuse, bullying, cyber bullying,
the information available in South Africa is
train surfing and izikhothane (dance battles
depicted descriptively rather than analytically,
in impoverished areas where expensive goods
and examples are used to illustrate the nature
and items are destroyed). Youths are vulner-
of youth misbehaviour.
able to the use and abuse of drugs, and can
Media reports often reflect the gruesome
also be guilty of hate crimes and youth homi-
details of serious crimes committed by youth
cide. Furthermore, this chapter outlines how
that include acts such as murder and rape. In
youth misbehaviour differs according to gen-
2014, Mpho Rakgwale, who started his criminal
career at the age of 17 years in 2007, was sender, social class and age. The chronic juvenile
tenced to six life sentences and an additional offender is discussed, and this type of misbe-
232 years’ imprisonment. He was found guilty haviour is illustrated in a relevant South African
of 61 charges, namely 21 for rape, 17 for kid- case study. In order to estimate the extent of
napping, six for the unlawful possession of fire- child and youth misbehaviour in South Africa,
arms, five for aggravated robbery, six for the a distinction is drawn between official and
unlawful possession of ammunition and six for unofficial statistics, and a brief overview of the
robbery (Motumi 2014). In 2009 at the Nic Die- number of sentenced and unsentenced child
derichs Technical High School in Krugersdorp, and youth offenders in South African institu-
a suburb west of Johannesburg, 18-year-old tions is given.
Morne Harmse murdered a fellow learner by
striking him with a samurai sword, and he also
injured three other people. He was sentenced
3.2 THE NATURE OF CHILD AND
to 20 years’ imprisonment (Langer 2009). YOUTH MISBEHAVIOUR IN
Another case that drew media coverage was of SOUTH AFRICA
a Satanist teenage girl who was sentenced to
3.2.1 Status offences
eight years’ imprisonment after confessing to
murdering another teenager by stabbing her in Certain activities or behaviours are consid-
the chest, neck and stomach (News24, 2013). ered misbehaviour only when committed by
The alleged rape of a 17-year-old, possibly men- children and youths, and would not be consid-
tally handicapped, girl in Soweto by seven boys ered illegal if perpetrated by an adult (Siegel
and men lead to national and international & Welsh 2011: 32). This is due to the youths’
outrage. In another incident, children filmed a status in society. These misbehaviours are
rape in progress at Jules High School in Johan- referred to as status offences and are not
nesburg, and distributed the images via social illegal in South Africa. In other words, the
networks (Masango 2012) (see discussion later behaviour does not violate the criminal code.
in the chapter). Reporting of these cases in It is not dealt with by the criminal justice
the media gives the impression that child and system, but is left to the discretion of par-
youth misbehaviour is out of control, and that ents and schools, and is prohibited only for
children are more violent than ever before. youths because of their age (Bartol & Bartol
Statistics on youth offences also echo 2017: 45; Bezuidenhout & Little 2012: 377). In
this perception. According to Jules-Macquet this regard, Bezuidenhout and Little (2011: 13)
(2014: 10) children tend to be involved in state that “young people below the age of 18
aggressive crimes (45% or 378 children) fol- years may come into conflict with the judicial
lowed by economic crimes (27% or 229 chil- system for behaviour such as truancy, alcohol
dren) and then sexual offences (23% or 198 consumption and sexual promiscuity”. These
children). However, this is not the total pic-
“offences” are not deemed illegal for adults.
ture, since many youths are also arrested for
Status offences can be grouped into three
non-violent acts such as property offences
types:
(e.g. shoplifting and theft), but since these are
not as sensational as the above cases, they do e Behaviour that is prescribed because the
not make media headlines. person committing it is considered under
Van Schaik
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CHAPTER 3 THE NATURE AND EXTENT OF CHILD AND YOUTH MISBEHAVIOUR IN SOUTH AFRICA
the age of discretion and in need of protec- and distilled spirits are produced with the
tion intoxicating ingredient ethyl alcohol, also
e Behaviour that is regarded as harmful to known as ethanol. This is a powerful, mood-
society or self-destructive. Children per- altering substance, and its use by teenagers
petrating such behaviour are regarded as poses serious health risks, clouding judgement
status offenders and directed to a juvenile and interfering with the development of social
court when it is found that their parents skills and with school achievement (Kemp-
cannot take care of or control them. en 2015: 10; Prinsloo & Ladikos 2005: 30). The
adolescent brain, which is still growing, is
e Pervasive behaviour that indicates mal- especially vulnerable to alcohol’s toxic effects,
adjustment to society’s norms and values with the risk of cognitive deficits, poor execu-
(Binder, Geis & Bruce 2001: 24; Siegel & tive functioning and poor long-term memory
Senna 2000: 22-23) (Seggie 2012: 587).
In a study conducted in Atteridgeville, a
Examples of such behaviour comprise absen- township near Pretoria, alcohol was found to
teeism from school (also known as truancy), have the lowest mean age of initiation com-
alcohol consumption, running away from home, pared to other substances at 14 years (Mood-
incorrigibility, disobedience and immoral ley, Matjila & Moosa 2012: 8). In another South
conduct (Department of Justice, Office of Jus- African study it was found that more than 60%
tice Programs, Office of Juvenile Justice and of youth aged 18 years drink alcohol regularly.
Delinquency Prevention, 2015; Siegel & Welsh Of these 30% drink alcohol when they should
2011: 33). These factors can interact with each be in school (Thomson 2013). Research shows
other and collectively predispose the youth that underage drinking increases one’s involve-
towards involvement in misbehaviour and/ ment in criminal behaviour, such as vandal-'
or criminal behaviour. During 2007, a national ism, assault, sexual offending and road traffic
study was conducted on learner absenteeism accidents. An association also exists between
in South African schools, and a prevalence heavy episodic adolescent alcohol use and sui-
rate of between 5 and 15% was found. Absen- cide, becoming a victim of crime, and high-risk
teeism is defined as a situation where a learner sexual behaviour (Moodley et al. 2012: 609;
is not at school for an entire day and one can Townsley 2011: 107). The legal age [de jure] of
distinguish between authorised and unautho- drinking in South Africa is currently 18 years
rised absenteeism. The school and/or parents or older. However, the government is consid-
permit authorised absenteeism, whereas unau- ering increasing this to 21 years, a proposal
thorised absenteeism refers to absence from which the activist group South Africans against
school for reasons that are not known to the Drunk Driving (SADD) has welcomed. The
school or parents. Learners who are frequently World Health Organization has also shown that
absent from school may become socially iso- raising the legal drinking age to 21 years is one
lated, are more likely to become involved in way of bringing down preventable deaths and
illegal activities, struggle to understand basic health problems related to the use of alcohol.
concepts relating to the school curriculum, Many underage drinkers are guilty of binge
are more likely to become school dropouts drinking, which often causes health problems
and tend to be over-represented in the juvenile or even death. Binge drinking means consum-
justice system. The five most commonly cited ing five units of alcohol in quick succession.
reasons for learner absenteeism were pover- This causes damage to the brain that can lead
ty, lack of transport, illness, lack of parental to alcohol dependence. Also, if heavy drink-
involvement and food insecurity (Community ing starts under the age of 18 years, there is
Agency for Social Enquiry & Joint Education a 20% chance of becoming dependent, which
Trust, 2007: 8, 13). increases to 40% if this begins under the age of
Under-age drinking is another common 15 years. If it begins over the age of 21 years,
status offence. Alcohol is the most commonly it would appear that the percentage decreases
used mood-altering substance among young to 9%. These findings are important consider-
people, surpassing tobacco and illicit drugs. ing that South Africans are deemed the biggest
Most alcoholic beverages such as beer, wine drinkers in Africa, and the fourth worldwide
Ckbines)39
when it comes to hard drinking and the risky visit the learners’ homes and see their parents,
consumption of alcohol (John 2015). sometimes even calling on them at work. The
Surveys have shown a tendency to more aim of this project is to reduce youth misbe-
harmful binge drinking among South African haviour and increase school attendance (Oost-
youth. Reasons for use and misuse of alcohol erwyk 2002). During the period August 2002 to
include peer pressure and a desire to fit in, June 2003, 80% of the 2001 truant learners that
parents condoning underage drinking, a poor were identified and subjected to the programme
home environment and boredom, ignorance were placed back in school. The programme
of alcohol’s harms, the relative cheapness of is regarded by the Western Cape government
alcoholic products and the ease of access to as a success (Provincial Government of the
alcohol (Seggie 2012: 587; Townsley 2011: 108). Western Cape 2005:12). Although updated
Based on these risks, the Department of statistics are not available, during 2016 the
Trade and Industry put forward the National Western Cape government assured their com-
Liquor Amendment Bill in 2015, which pro- mitment to the reduction of truancy as such
posed raising the legal limit of buying and interventions remain an important component
consuming alcohol from 18 to 21 years of age. of the school safety initiative (Western Cape
The proposed law also prohibits the manufac- Government 2016).
turing, distribution or retail sale of liquor in
a rural or urban community from any outlet
which is within 500 metres of, among other 3.2.2 Characteristics of child and
things, schools; restricting the advertising of youth offences
alcoholic beverages; prohibiting sponsorship Various background factors and _ personal
and promotion associated with alcoholic bev- characteristics as well as high-risk behaviours
erages; and making manufacturers and distrib- increase the likelihood of a child becoming
utors of alcohol responsible and liable for dam- involved in criminal behaviour. These are dis-
age and harm caused if a person is involved in cussed below.
a car accident or a crime while under the influ-
ence of alcohol (Gerber 2016; BusinessTech
2015; 2016). 3.2.2.1 Age
Siegel and Senna (2000: 26-27) discuss pos-
A change in the age distribution of the popu-
sible intervention strategies aimed at reducing
lation significantly influences crime and mis-
status offences such as alcohol consumption.
behaviour rates. Juvenile males commit more
Introducing curfew laws has been suggested
crimes than any other population segment so,
to restrict opportunities for children to get
as a general rule, the crime rate follows the
into trouble. Punishing parents for their chil-
proportion of young males in the population
dren’s misbehaviour was another suggested
(Tlhoaele 2003: 53). The younger the child is
approach. An extreme form of this is actually
when he or she enters the juvenile justice sys-
to hold the parents criminally liable for the ille-
tem, the higher the risk is that the child will
gal acts of their children; however, it is doubt-
become involved in criminal behaviour (Siegel
ful whether punishing the parents will deter
& Senna 2000: 8-9; Van der Merwe, Dawes &
youthful offenders.
Ward, 2012: 58). A study by Livingston, Stew-
In the Western Cape, the Department of
ard, Allard and Ogilvie (2008) of a cohort of
Community Safety has implemented its Truancy
juveniles born in Queensland, Australia in 1983
Reduction Project to address the problems of
or 1984 and with one or more finalised juve-
truancy and drug abuse. This project runs in
nile court appearance identified three primary
the six areas most affected by crime, namely
juvenile offending trajectories:
Mitchell’s Plain, Khayelitsha, Elsies River, Bon-
teheuwel, Hanover Park and Manenberg, and ¢ Early-peaking moderate offenders, who
targets four schools in each area. Each has a showed an early onset of offending, with a
designated learners’ support officer who is at peak around the age of 14 years followed by
the school every day to deal with learners who a decline, comprised 21% of the cohort and
stay away from school regularly and to work was responsible for 23% of offences com-
with the teachers to identify them. The officers mitted by the cohort.
Van Schaik
40 © Publishers
_ CHAPTER3 THE NATURE AND EXTENT OF CHILD AND YOUTH MISBEHAVIOUR IN SOUTH AFRICA
¢ Late-onset moderate offenders, who dis- which in turn can cause bullying, victimisa-
played little or no offending behaviour in tion and psychologically related incorrigible
their early teen years but had a gradual behaviour (Bartol & Bartol 2017: 147).
increase until the age of 16 years, com-
prised 68% of the cohort, but was responsi-
ble for only 44% of the cohort’s offending.
3.2.2.3 School performance
¢ Chronic offenders, who demonstrated Academic failure, low bonding to school, tru-
an early onset of offending with a sharp ancy and dropping out of school as well as fre-
increase throughout the timeframe of the quent school transitions have been identified
study, comprised just 11% of the cohort, as predictors of future violent and/or deviant
but were responsible for 33% of the cohort’s behaviour (Van der Merwe et al. 2012: 72). The
offending behaviour (Livingston et al. 2008). dropout rate in secondary education in South
Africa is very high — of the one million students
who enrolled for Grade 10 in 2014, only 610 178
Research indicates that the peak years for
wrote Grade 12 in 2016. Thus 44,6% of learn-
both offending behaviour and for being vic-
ers dropped out of the system or are currently
timised are between the ages of 12 and 21. If
repeating Grade 10 or Grade 11 (BusinessTech
we consider that the 12-21 age group is at
2017). Some of the major reasons for leaving
risk of committing crime, then it is clear that
school before the end of Grade 12 include pov-
a large portion of South Africa’s population
erty, frustration associated with the inexperi-
falls within this “high risk” cohort (Burton,
ence of teachers, a lack of relevance of the cur-
Leoschut & Bonora 2009: xiii). Adolescence is riculum and teaching materials, the absence of
a time of complex physiological, psychological parents at home, and the need to care for sib-
and social change (Haigh 2009). Progression lings or sick family members (Human Sciences
through puberty has been shown to be asso- Research Council 2007). In addition, many chil-
ciated with statistically significant changes dren grow up in an HIV/AIDS-affected house-
in behaviour in both males and females, and hold and must often take over the care and
may be linked to an increase in aggression and nurturing responsibilities for their younger sib-
delinquency (Najman et al. 2009). lings if their parents pass away. Additionally,
many children living in HIV-orphaned house-
3.2.2.2 Psychological variables holds are remarkably vulnerable to engaging in
crime as an act of desperation because poverty
Deficits in respect of the social competencies results in a shortage of basic needs such as
of a child or adolescent (i.e. tolerance, auton- food, clothing and shelter (Louw 2008: 222).
omy and emotional confidence) increase the Attention deficit disorder, dyslexia and
risk of social and personal maladjustment in lack of motivation all contribute to scholastic
their future (Contreras, Molina & Del Carmen underachievement and, among other things, to
Cano 2011:79). The more a child displays learners experiencing problems in areas such
rebellious and non-conforming behaviour and as memory, reading, writing, spelling and arith-
has poor self-esteem, the higher the risk of metic. This in turn may result in underachieve-
engaging in misbehaviour (Bartollas 1997: 71; ment, low self-esteem, motivational problems
Siegel & Senna 2000: 8-9). This is compounded and behavioural misconduct (Van Niekerk &
if the child has learnt distorted cognitive Prins 2001: 276).
scripts by observing significant others who
show aggression and rebelliousness in their
daily lives. A script determines what events are 3.2.2.4 Family integration
to happen in the environment, how the child Many risk factors for youth violence are located
should behave in response to these events and in the family and include family conflict and
what the likely outcome of those behaviours violence, parental criminality and antisocial
would be. In addition, a child can develop hos- siblings, large family size, low maternal educa-
tile attribution bias. A child with this bias is tion and age, poor family management practic-
more likely to interpret ambiguous innocent es, harsh or inconsistent disciplinary practic-
actions by peers as hostile and threatening, es, and poor parental supervision and bonding
Onbites! 44
(Van der Merwe et al., 2012: 69-70). Lack of may encourage them to experiment with sub-
family affection and cohesion, a high degree of stances too. Poverty in these households com-
family conflict and a permissive parenting style pounds the challenges a child faces. Lower
are connected with children’s problematic family income has been associated with poorer
behaviour (Contreras et al. 2011: 77). Tlhoaele cognitive and social-economic functioning
(2003: 56) cautions that it is not only the par- (Bartol & Bartol 2017: 54),
enting style or ability that is important in
moulding the life of a child, but also the nature
of the family structure. In the context of fam-
3.2.2.5 Drug and alcohol use
ily structure, McLean (2003: 7) uses the term The earlier the age of use, the more frequent
“latchkey kids” to refer to children who are left the use and the more potent the drug, the
to their own devices, usually outside school higher the risk of engaging in misbehaviour.
hours. This is a generation that arrives home Alcohol and drugs have also been found to act
to an empty house, where either both parents in a more potent way on juveniles than adults
are working or an adult guardian is absent. (Prichard & Payne 2005). Leggett (2002: 1-2)
The researcher reports that unsupervised ado- identifies three ways in which drugs may have
lescents are more prone to low self-esteem, an effect on crime. The first involves the effect
depression, risk taking and substance abuse. that they have on individuals. Drugs may cause
Increases in the number of single-parent fam- individuals to practise behaviour that they
ilies may also influence crime rates. Children would ordinarily avoid by distorting percep-
living in single-parent homes are twice as like- tions and increasing the sense of bravado that
ly to be impoverished as those in two-parent could facilitate criminal behaviour. Secondly,
homes. Such children are especially at risk drugs finance criminal enterprise. The sale of
with regard to juvenile misbehaviour, a pre- drugs is lucrative, and the proceeds are often
dictor of an increasing crime rate (Tlhoaele used to sponsor other criminal endeavours.
2003: 54). According to Van der Merwe et al. Finally, those individuals caught in the grip of
(2012: 71), children from large families are addiction with limited financial resources may
more prone to misbehaviour because the size resort to crime to feed their need for drugs.
of the family makes it more difficult to mon- Drug use has been linked to fluctuations in
itor them. Hawkins et al. (2000) identified the the crime and misbehaviour rates. As the level
following as risk factors in the family domain of drug use increases, so too does the crime
that could possibly predict future violent rate. Drug abuse may also have a more direct
behaviour: influence on teen crime patterns, for example
when alcohol-abusing children engage in acts
e Parental criminality of senseless violence (Tlhoaele 2003: 53-54).
¢ Child maltreatment Research indicates that substance use is a
¢ Poor family management practices strong predictor of recidivism (Cottle, Lee &
e Low levels of parental involvement Heilbrun 2001).
e Poor family bonding
¢ Family conflict 3.2.2.6 Neighbourhood
e Parental attitudes favourable to substance The relationships young people develop with
misuse and violence others occur within a particular geographic
e Parent-child separation location that has specific characteristics
(Treptow 2008: 46). A neighbourhood charac-
There are also some forms of parental terised by poverty and unemployment is more
behaviour that influence children’s antisocial likely to produce a child who is at high risk of
behaviours, such as excessive drug abuse engaging in misbehaviour (Van der Merwe et
and alcohol consumption (Kofler-Westergren, al. 2012: 77). According to Leggett (2004: 23),
Klopf & Mitterauer 2010). In many home envi- population density also correlates with juve-
ronments, children whose parents or guard- nile misbehaviour. Hawkins et al. (2000) iden-
jans abuse substances are influenced nega- tified community disorganisation, the avail-
tively, and frequent contact with such adults ability of drugs and firearms, the involvement
Van Schaik
42 publishers
of adults in crime and exposure to violence decade of life is a period of rapid change, par-
as well as racial prejudice as risk factors that ticularly in the areas of the brain associated
could predict future violent behaviour. In with response inhibition, the calibration of
South Africa, racial prejudice of the past has risks and rewards, and the regulation of emo-
now been addressed as government enforced tions (Steinberg 2005). Two key findings have
policies ensure that previously disadvantaged emerged from research that highlight differ-
individuals are now preferred and recruited. ences between juvenile and adult offenders.
For example, the police currently recruit and First, these rapid brain changes often occur
appoint mostly black candidates and the exist- before juveniles develop competence in deci-
ing police organisation are representative of sion making, and secondly, in contrast with the
the general population profile. widely held belief that adolescents feel “invin-
cible”, recent research indicates that young
people do understand,:and indeed sometimes
3.2.2.7 Exposure to violence and
overestimate, personal risks (Reyna & Rivers
victimisation 2008).
Whether or not victimisation predicts offend- Changes in arousal and motivation, brought
ing has been addressed in several studies in on by pubertal maturation, precede the devel-
the last two decades. Some of this research opment of regulatory competence in a manner
indicates that young people who have been that creates disjointedness between the ado-
victimised report greater involvement in lescent’s emotional experience and his or her
violence. In South Africa, the 2009 study by ability to regulate arousal and motivation. This
Burton et al. indicated that youth who have disjuncture is described as similar to “starting
been victims of violence were six times more an engine without yet having a skilled driver
likely to commit crime than those who had behind the wheel” (Steinberg 2005: 70).
not experienced victimisation. According to Adolescents engage in riskier behaviour
Statistics SA (StatsSA), in 2014 about 70% of than adults do (such as drug and alcohol
South Africa’s youth were likely to be vic- use, unsafe sexual activity, dangerous driving
tims and perpetrators of assault, robbery and/or delinquent behaviour) despite under-
and property theft than adults (35 years and standing the risks involved (Boyer 2006; Stein-
older). Globally, young men constitute both berg 2005). It appears that adolescents not
the majority of perpetrators and victims of only consider risks cognitively (by weighing
violence and crime (Harrell 2007; Saferspaces up the potential risks and rewards of a par-
2017; Seeth & Maphumulo 2016). Other stud- ticular act), but socially and/or emotionally
ies report a relationship in the other direc- (Steinberg 2005). The influence of peers can,
tion — delinquent activity directly increases for example, heavily impact on young peo-
the risk of personal victimisation (Estevez & ple’s risk-taking behaviour (Gatti, Tremblay &
Emler 2011: 271). International studies show Vitaro 2009). Importantly, these factors also
that exposure to violence and crime at a young interact with one another, as sensation seek-
age, including acts of personal victimisation, ing not only encourages attraction to exciting
will significantly increase the likelihood of experiences, but also leads adolescents to
engaging in antisocial or criminal behaviour at seek friends with similar interests who fur-
a later stage in life. According to Daly (2008), ther encourage risk-taking behaviour (Romer
the boundary between juvenile offenders and & Hennessy 2007: 98-99). Furthermore, during
juvenile victims can easily become blurred. adolescence there is an increase in suscepti-
Cohorts of juvenile victims and juvenile offend- bility to peer influence and a decline in sus-
ers are unlikely to be entirely discrete, and ceptibility to parental influence (Bartol & Bar-
research consistently shows that these phe- tol 2017: 55).
nomena are interlinked. According to Bartollas (2003: 286), most
criminal behaviour occurs in groups, and mis-
behaviour is related to that of one’s peers.
3.2.2.8 Risk taking and peer influence Research indicates that where juveniles are
Research on the development of the ado- strongly attached to their peers and spend
lescent brain demonstrates that the second long periods of time with them, and there are
Van Schaik
©pubishes) 43
extensive patterns of misbehaviour, their asso- According to Pelser (2008: 6-8), the constant
ciation with their peers who engage in serious exposure of youth to crime and violence in the
misbehaviour has a strong, negative effect on key institutions of their socialisation - their
their own misbehaviour (Bartollas 2003: 286- homes, schools and immediate social environ-
287). The more a child’s peer group is involved ments - has contributed to a significant pro-
in misbehaviour such as truancy, drug abuse portion of South Africa's youth-offending pop-
and gang-related activity, the higher the risk ulation. They learn to internalise this kind of
of the child engaging in misbehaviour, while behaviour and so it is replicated continuously.
affiliation with peers who disapprove of mis- There is research that indicates that crime,
behaviour lowers its likelihood (Siegel & Senna and often violent crime, is a primary means
2000: 8-9; Van der Merwe et al. 2012: 73). for many young South Africans to connect and
In view of the above factors, the South Afri- bond with society, to acquire “respect”, “sta-
can Police Service (SAPS) estimates that 43% tus” and sexual partners, and to demonstrate
of South Africa’s youth are at risk of becom- “achievement” among their peers and in their
ing offenders (Dunlap n.d.), thus nearly half of communities.
South Africa’s youth may at one time or another Before 2000, most juveniles were sentenced
make contact with the criminal justice system. to imprisonment for property crimes, the four
In the US, various factors have been associ- main categories being burglary, shoplifting,
ated with child and youth criminal behaviour other theft, and theft from motor vehicles. Of
(Tshiwula 1998: 18), including the following: the total number of juveniles arrested and con-
victed during 1999, 50,5% were convicted for
¢ Being male rather than female (males are at
property crimes, 30,8% for aggressive offences,
higher risk than females)
14,5% for sexual offences, 0,7% for drug-related
e Living in a below-average or slum neigh- offences and 3,4% for other offences. However,
bourhood during 2014, this trend changed as aggressive
° Negative self-image offences increased and property-related offenc-
es decreased as 51% of youth between the ages
e Being under the influence of criminal peer
of 18-25 years were sentenced for an aggres-
groups
sive crime compared to 29% incarcerated for
* Growing up in a household where one or an economic offence (Sloth-Nielsen & Munt-
both parents have a criminal record ingh 2000: 11; Jules-Macquet 2014: 10). Like the
e Experiencing school failure and becoming a profile of sentenced juveniles, the awaiting-
dropout trial offence profile also showed a decrease
* Growing up in a broken home (e.g. divorced in the number of juveniles awaiting trial on
parents) economic-related charges and an increase
in the number of those held on charges for
Tshiwula (1998: 18) maintains that although aggressive offences (Jules-Macquet 2014: 10).
this is the situation in the US, some of the fac- Muntingh and Ballard (2012:17) caution
tors can apply to South Africa. In addition to against the interpretation of this trend as
those mentioned, the following apply specifi- meaning that children are committing more
cally in this country: aggressive and sexual crimes. They are of the
opinion that this rather means that fewer chil-
¢ Having few or no literacy skills dren are detained in prisons awaiting trial in
¢ Growing up in an area where education is general and that courts appear to be less will-
not deemed important for improving one’s ing to remand children who have been charged
social status with economic crimes.
Owing to the decrease in property offences
¢ Having to interact with peers and being lim- and limited research in South Africa pertaining
ited to the ones that the environment offers
to youth property offenders, this offence will
(e.g. youth gangs in the Western Cape) not be discussed.
¢ Growing up in areas where the role models Examples of the nature of offences for
are criminals which juveniles are convicted are given below.
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44 © publishers
CHAPTER 3. THE NATURE AND EXTENT OF CHILD AND YOUTH MISBEHAVIOUR IN SOUTH AFRICA
3.2.3 Sexual offences the following reasons:

e Aggressive sexual attacks among young
3.2.3.1 The child and youth sex offender
people are often rationalised as sexual
A sexual offence carried out by a child or experimentation.
youth is defined as any sexual act perpetrated ¢ Many of the cases are not reported.
by a person under the age of 18 with a person
e Cases that are reported are not recorded
of any age against the victim’s will, without
due to the age of the offender.
consent or in an aggressive, exploitative or
threatening manner. Although those who com-
mit sexual offences against minors are often It is estimated that in 2006 on a daily basis
described as “paedophiles” or “predators” and more than 80 children were charged with sex-
thought of as adults, it is important to note ual offending against other children (Coetzee
that there are significant differences between 2015: 19).
the adult and the youth sex offender. A study Examples of crimes of a sexual nature com-
by Bourgon, Morton-Bourgon and Madrig- mitted against female victims by child and
ano (2005:16) attributes these differences youth sex offenders include the following
mainly to the developmental stage of adoles- (Meyer & Frean 2003):
cents, which is characterised by maturational e Ina particularly horrific case, a 14-year-old
changes that effect their overall functioning. boy was charged with the rape and blud-
Societal norms and values are being incorpo- geoning to death with a stone of a 17-month-
rated into their behaviour during a time that old girl.
changes occur in both their psychosocial and e A five-year-old girl from Ulundi in KwaZulu-
psychosexual development. The _ research- Natal was allegedly raped by a 10-year-old
ers furthermore identified that the majority boy.
of adolescents do not express a clear pattern
e Five boys between the ages of eight and 13
of sexual deviancy or deviant sexual thought.
were charged with raping an eight-year-old
The youth in their study reported significant-
girl on her way home from school.
ly more non-deviant sexual fantasies than
deviant ones, and these mainly invoked age- ¢ Two boys aged 12 and 13 years respectively
appropriate partners. It further emerged from appeared in court for the rape of a nine-
their study that family patterns play a critical year-old girl.
role in the development of sexually deviant
youth. According to Harris (2009: xi), youth sex offend-
Sexual offences include both contact and ers differ in terms of race, social class, victim
non-contact sexual acts (Da Costa, Spies & preference, modus operandi to gain compli-
Coetzee, 2016: 36; Omar & Patel, 2012). ance, the level of aggression and physical vio-
lence, and motivation for committing a sexual
e Non-contact acts refer to exhibitionism, offence. Youth sex offenders fall predomi-
voyeurism, inappropriate observation of nantly into two categories: those that sexually
a child and exposing children to pornogra- offend against adults or their peers, and those
phy or involving them in the manufacturing that sexually offend against children (Hunter
thereof. 2000: 1). However, Rich (2006: 195) included a
e Contact abuse entails masturbation, fon- third category, namely those who target adults
dling, oral sex, penetration (with the penis, or peers and children. For the purpose of this
finger or objects). chapter, the focus will only be on the two cate-
gories as indicated by Hunter (2000). There are
According to Jules-Macquet (2014: 10) a total both similarities and differences in the char-
of 137 (25%) of South African children were acteristics of these two categories in respect
in prison for crimes of a sexual nature. This of their choice of victim, offence pattern, and
does not necessarily provide an accurate pic- social and criminal history.
ture of the problem. Harris and Bezuidenhout Youths who sexually offend against their
(2010: 28-29) postulate that the extent of youth peers or adults predominantly assault females
sexual offending is difficult to establish due to and strangers, or casual acquaintances.
(Cxsite) 45
Sexual assaults are more likely to occur in This appears to be particularly true when the
association with other types of criminal activ- victim and offender are related. The offender
ity. These offenders have a history of non-sex- may trick, bribe or threaten the child with
ual criminal offences and appear more gener- loss of the relationship in an attempt to obtain
ally delinquent and conduct disordered. Their compliance. Youths that display high levels
offences are more likely to be committed in of aggression and violence also display more
public areas and they display higher levels severe levels of personality and/or psycho-
of aggression and violence. They are also sexual disturbances. These youths have often
more likely to use weapons and cause inju- been characterised as suffering from deficits in
ries to their victims (Coetzee & Bezuidenhout self-esteem and social competency. They also
2016: 18; Hunter 2000: 2). struggle with resolving interpersonal conflicts
According to Finkelhor, Ormrod and Chaf- and forming and maintaining healthy peer rela-
fin (2009: 1), more than one third of youth sex tionships. Those with a history of victimisation
offenders abuse children. Youths who sexually show evidence of depression.
offend against children have a higher number Youths who sexually assault children and
of male victims and victims to whom they are those who target peers of adults, share com-
related, although female victimisation is slightly mon characteristics:
higher than that of males. As many as 40% of ¢ Between 30 and 60% have learning disabili-
their victims are either siblings or other rel- ties and academic dysfunction.
atives. The offences reflect a greater reliance e Up to 80% have some diagnosable psychiat-
on opportunity and guile than injurious force. ric disorder.
Table 3.1 Categories of youth sex offenders
Youth vs adults/peer Youth vs children Common features of both

victim groups
Victims Mostly female - strangers or | A slightly higher rate of male | Mostly female
acquaintances victims, yet most victims are
still female in this category
Up to 40% are siblings or
relatives
Offence Often, sexual offence com- | Opportunistic None indicated by
pattern mitted in conjunction with Guile, bribery, trickery and researcher
other offences, and in public | threats used to gain com-
areas pliance
High levels of aggression Assaults committed in pri-
and violence vate areas of residence
Weapons used
Injuries caused
Social and Generally antisocial Self-esteem and social com- | Leaming disabilities and
behavioural petency deficits academic dysfunction
patterns Can include personality and/ | Difficulties in impulse control
or psychosexual distur- and judgement
bances
Difficulty in maintaining inter-
personal relationships
History of past victimisation
Criminal History of other non-sexual | Generally no criminal history | Substance abuse, conduct
history offences disordered
More generally delinquent
Conduct disordered
Source: Adapted from Harris (2009: 29)
Van Schaik
46 © publishers
¢ There are difficulties with impulse control ¢ Sexually aggressive. This type of offender
and judgement (Harris 2009: 3). has a disruptive family life and poor impulse
control, and as a result displays a need for
An additional distinction between the types power and domination.
of youth sex offender has been proposed by e Sexually compulsive. Such offenders come
Campbell (2005: 19) and Finkelhor et al. (2009). from dysfunctional families and live in small
These researchers studied the phenomena of spaces with many other people. Enacting
pre-teen sexual offending as a separate cate- the sexual behaviour they see as a way of
gory due to indications that perpetrators of alleviating fear and anxiety, and as a result
sexual offences are from younger age groups. the behaviour becomes repetitive.
In a report on rape from the Eastern Cape, 10%
of child rape involved children raping children e Disturbed impulsive. These offenders often
(Kimberley 2012: 3). Campbell (2005: 18) main- have learning difficulties, and personality
tains that an understanding of, specifically, the and psychological disturbances. They often
pre-teen sex offender could make a significant display conduct disorders such as lying,
contribution to ending the deviant cycle as vandalism and aggressive behaviour.
he or she might still be more accessible and
responsive to intervention. Owing to the fact Although there may be common charac-
that this particular group of offender does not teristics among youth sex offenders, local
contribute significantly to the extent of youth researchers (Harris 2009; Harris & Bezuiden-
sex offenders, research is limited in spite of hout 2010) as well as international researchers
a noted increase of offending in this specific (Lekay 1994; Finkelhor et al. 2009) agree that
developmental group. youth sex offenders are not a homogeneous
During the 1980s, O’Brien and Bera (cited population nor are there any specific mea-
in Harris 2009; Omar 2010; Coetzee 2015) set sures which can distinguish them from youth
out seven types of youth sex offenders. This non-sex offenders. According to Van Niekerk
classification remains relevant and is cited in (2006: 104), this highlights the fact that the risk
various contemporary South African studies factors associated with youth sex offending are
on youth sex offenders. The classification is as multiple for each offender and the makeup of
follows: such risk factors is unique to each individual.
A South African study (Harris 2009) identified
¢ Group influences. These offenders often the following as main themes in respect of risk
come from lower socioeconomic areas and factors that emerged from a qualitative study
experience a vast amount of peer pressure. of first-time sex offenders:
They have to prove themselves to belong.
¢ Incomplete family structure
e Naive experimenter. The abuse usually
e Substance abuse
occurs as sexual curiosity. There is no brib-
e¢ The “culture of violence”
ery, coercion or trickery involved. Offend-
ers are either victims of sexual abuse who ¢ Pornography
become victimisers or there are external e Rape myths
influences such as pornography. This par- e Previous sexual conduct
ticular type has a good prognosis for reha- ¢ Previous sexual victimisation
bilitation if detected early. e Peer influence
e¢ Pseudo-socialised. These perpetrators use
coercion and bribery to lure young chil- In another South African study conducted by
dren. They appear to be confident, and Wood, Welman and Netto (2000: 45), the fol-
boast about the things they do. lowing characteristics were found among a
group of male youth sex offenders between the
¢ Under-socialised. These children are isolated
ages of seven and 15 years:
and lack social and interpersonal skills, and
turn to maladaptive means of dealing with e High exposure to deviant peers
this. They feel as if they lack power, and e Prior sexual or non-sexual offences
abusing is a way of gaining that power. e Prior consensual sexual interactions
Onpistes! 7
e Poor academic achievement and behaviour years. A significant number of men (approx-
problems imately 75%) who rape do it for the first
e Physical and sexual victimisation time before the age of 20 years (Dunkle et al.
¢ Poor social skills and social isolation 2004: 1415). Research conducted by Childline
e Deviant sexual interests shows that 54% of all child sex abusers and
51% of all abusers of children are themselves
According to Da Costa et al. (2016: 39-40), younger than 20 years of age (Booyens, Beuk-
female youth sex offenders share the following man & Bezuidenhout 2008: 32). In her study
characteristics: with 96 male youth sex offenders, Coetzee
(2015) found that the majority of the offend-
e There is instability and dysfunction within ers committed the offence when they were
the family. younger than 18 years old. Most youthful sex
e They are themselves victims of early sexual offenders are between 14 and 15 years old,
and physical abuse. but abusers as young as five have also been
e They tend to abuse young children within identified. It is estimated that 42% of all sexual
the immediate family, extended family or assaults that take place against children in
with whom they are familiar. South Africa are committed by children younger
e They target mainly female victims, although than 13 (Meyer & Frean 2003). In 2010, Omar
sometimes male victims. conducted research focusing on male children
e They tend to be the victims of abuse at the younger than 12 years who committed sexual
same time that they are the offenders. offences against other children and were
diverted from the criminal justice system.
Although male and female sex offenders have According to this research, the high-risk cat-
some common characteristics, there are some egory ranged between 10 and 12 years, with
differences (Da Costa et al. 2016: 39-40): the highest incidence of sexual abuse perpe-
trated by the 12-year-old group. The offences
¢ There are fewer differences in relation to
committed included fondling, attempted rape,
criminal and psychosocial histories as well
rape and being an accomplice in or observer
as antisocial behaviour.
of a coerced sexual act. The majority of these
e The two groups are similar regarding spe- young children committed these offences on
cific sexual offence behaviour, and tend to one occasion only (Omar & Patel 2012: 279).
target victims of either gender. The younger the sex offender is, the greater
¢ Both groups have a high prevalence of sexual the likelihood of sexual recidivism, with the
victimisation. offences tending to become increasingly seri-
e Male and female youth sex offenders experi- ous (Van der Merwe, Meys & Waterhouse
ence unstable and dysfunctional family and 2012: 294).
home life.
e The female sex offender has experienced Family environment
more severe abuse compared to her male
counterpart. Youth sex offenders often grow up in fami-
lies where violence and poverty are rife. They
The characteristics of youth sex offenders are often witness or experience violence, which
described by referring to age, family environ- can contribute to a lack of empathy and insuf-
ment, intellectual and educational features, ficient sexual boundaries. Male sex offenders
social development, victim-offender relation- often do not have a positive male role model to
ship, prior victimisation and gender. look up to and may not know what acceptable
behaviour towards females is. Research also
indicates that youthful sex offenders come
Age
from single-parent families, specifically from
Early adolescence is the peak age for offences female-headed households (Coetzee & Bezuid-
against younger children (Finkelhor et al. enhout, 2016: 14; Margari et al. 2015: 86; Omar
2009: 2). Rape mostly starts in the teenage & Patel, 2012: 282).
Van Schaik
48 © Publishers
Intellectual and educational features age of 18. The high incidence of sexual abuse
involving acquaintances possibly reflects the
As with other categories of youth offenders, ready access many perpetrators have to chil-
sex offenders are less likely to be intellectually dren outside the family in the context of trust-
advanced or verbally articulate. As can be ing neighbourhood and family relationships.
expected, they are not good school achievers In Omar's (2010) study with child sex offend-
and may experience significant learning diffi- ers under the age of 12 years, the victims were
culties (Booyens et al. 2008: 32; Margari et al. peers and younger than the offender.
2015: 86).
Prior victimisation
Social development
It is important to note that not all child sex
The youth sex offender has a wide variety of offenders have been previously sexually
social skill deficits, including difficulties with abused; however, a history of all kinds of abuse
regard to being reserved, assertive, sensitive and neglect has characterised the childhood of
and empathetic. These characteristics are a significant number of both male and female
also highlighted in the research of Delport
youth sex offenders (Burton, D.L. 2008: 104).
and Vermeulen (2004: 45). They reported that It is argued that youth sex offenders who com-
the majority of respondents in their study did mit sexual offences in response to their own
not feel any remorse regarding the offences victimisation may not be aware of the harmful
they had committed. A third of the respon- effects of their behaviour on the victim. Fur-
dents reported that they felt some degree of thermore, they may not recognise their actions
“sorrow” regarding their actions, while 45,8% as deviant (Coetzee & Bezuidenhout, 2016: 14).
denied any specific feelings towards the vic- White, Kadlec and Sechrist (2006: 135)
tim. These results indicate that there is not affirm that abusive sexual experiences have
only a lack of empathy, but also a denial of the major psychological consequences, including
behaviour of offenders towards their victim. frustration tolerance and specifically lowered
Coetzee (2015: 207) also found empathy self-esteem, which is another factor that pre-
deficits in her study, such as a lack of insight dicts sex-offending behaviour.
pertaining to the impact of the sexual offend-
ing on the victims. Even when the victim resist-
ed, cried, screamed or asked the perpetrator Gender
to stop, this did not deter the offender from Although the majority of youth perpetrators of
continuing. sexual offences are male, a South African inves-
Many sex offenders report being bullied at tigation showed that female youths also engage
school and having few friends or social con- in sexual offences. A pilot study on sexual vio-
tacts, which may cause them to withdraw from lence conducted among 9 300 learners in urban
society and to lead isolated lives. Low self-es- and rural schools by the Community Informa-
teem is also a predictor of sexual offences as tion Empowerment and Transparency Project
young offenders may commit such crimes as found that many learners admitted to raping
a way of gaining a sense of control and power other children: 12-20% of boys and 5-13% of
to counter feelings of worthlessness (Van der girls in both urban and rural areas admitted to
Merwe et al. 2012: 296). having forced sex on children. The girls in this
study made some shocking revelations, such as
The victim—offender relationship that it is not uncommon for a girl to have forced
sex with another girl, or for a group of girls to
The research of Delport and Vermeulen force themselves on a boy (Magojo & Collins
(2004: 45) as well as Omar and Patel (2012: 280) 2003). In a recent South African study (Da Costa
supports the findings of Quinsey and Lalumi- et al., 2016: 36), researchers explored the per-
ere (2001: 4-5), namely that victims of sexual ceptions of female youth sex offenders regard-
crimes are more often acquaintances rather ing the reasons for their offending. Firstly,
than strangers. This is also significant in cases family and environmental factors: according
where the offender and victim are under the to this study the families of female youth sex
Chbisnens) AQ
SECTION A YOUTH MISBEHAVIOUR: ITS NATURE, EXTENT, RELATED RISK FACTORS AND EXPLANATIONS _
offenders tend to be unstable and from lower The South African Law Commission (SALC
socioeconomic backgrounds, and parents are 2002: 80) motivates the sentencing of youth
unlikely to protect them. The second contribut- sex offenders as follows:
ing factor is development need and social status,
* To encourage the child to be accountable
which refers to self-esteem and identity, asser-
for the harm caused during the act
tion skills and social presentation as well as a
history of personal and family substance abuse. ¢ To promote the reintegration of the child
Another contributing factor is school structure into the family and community
and community resources. Female sex offenders e¢ To ensure that the child receives the nec-
have poor school performance and lack of par- essary supervision, guidance, treatment or
ticipation in extramural activities. The absence services in the process of reintegration
of positive role models also contributes to
offending behaviour. Lastly, abuse and knowl- In order to ensure that these purposes are ful-
edge about sex are further contributing fac- filled, it is suggested that youth offenders be
tors — the study found that female sex offend- diverted from the criminal justice system after
ers were themselves sexually, emotionally careful consideration of the future of each
and physically abused. child.
According to Delport and Vermeulen
The fact that the number of children detained (2004: 46), sexual misbehaviour is a multi-
in prison for sexual offences is decreasing, dimensional phenomenon, and there is a
albeit slowly, is probably due to some extent to clear need for professionals in the field to
the courts’ increasing general unwillingness to adopt comprehensive treatment approaches,
sentence children to prison as a form of punish- informed by an_ interdisciplinary and
ment and rehabilitation. This decrease would multi-model approach, and involving relevant
not be of concern were it clear that children experts from a number of fields. More atten-
accused of sexual offences were rather being tion needs to be given to the development of
dealt with through diversion programmes. intervention efforts designed to assist offend-
It has been suggested that, in many cases, ers to understand and to take responsibility
children are not charged for a sexual offence for the impact that their crimes have on vic-
because both professionals and the broader tims, on communities and on families. Based
society regard some of their actions as “sex on the high incidence of sex crimes against
play” that they will outgrow. Such children
and by children in South Africa, it is strongly
are referred to as sexually reactive or pre- recommended that all sex offenders be sub-
sexualised children. In such cases, the children
jected to a compulsory treatment programme
may mimic behaviour they have seen from a
before release into the community.
role model (e.g. an older brother, sister or the
media). They usually do not intend to have
sex or to achieve any sexual gratification from 3.2.4 Violent offences
the act, but are merely copying behaviour that
they have observed from the role model. It is Violence perpetrated by children and youths
sometimes difficult to distinguish between the is discussed in the context of two main set-
true sex offender and the sexually reactive tings, namely the family and the school. Under
child. The difference in intent, the goal of the family violence, the emphasis is on children
behaviour (sexual gratification) and knowledge abusing and murdering their parents or sib-
of the act as well as human anatomy should lings, whereas violence perpetrated within the
help to determine the difference between the school context specifically focuses on school
two categories (Bezuidenhout 2007). shootings and bullying.
However, it is the authors’ opinion that if
society closes its eyes to youth who sexually
assault and rape, or to pre-sexualised children
3.2.4.1 Family violence
who do not have the psychological and emo- It has been claimed that a person is most likely
tional ability to contextualise their behaviour, to be subjected to interpersonal violence with-
we are guilty of encouraging future adult sex in the family, thus murder, physical assault
offenders (e.g. serial rapists). and rape often take place in the context of the
Van Schaik
50 © publishers
family. Types of intrafamilial violence commit- it as dehumanising is another form of parent

ted by children and youths are parent abuse abuse (Kennair & Mellor, 2007: 204). Recently,
and murder, as well as sibling abuse. researchers have tended to focus on differ-
ent groups of parent abusers. Some children
commit parental abuse by causing physi-
Parent abuse and murder
cal, psychological or financial harm to their
Parent abuse is defined as any act by a child parents. Some abuse their parents on all these
under the age of 18 years that is intended to levels while others only abuse on one level
cause physical, psychological or financial dam- (e.g. physically). In addition, one should dis-
age in order to gain power and control over tinguish between the normal parent-child con-
parents or step-parents (Coogan 2011: 348; flicts many adolescents have with their par-
Cottrell 2001: 3; Cottrell & Monk, 2004: 1080). ents and full-out abuse by adolescents who try
These acts include assault with or without a to control and coerce their parents (Bartol &
weapon, emotional manipulation, verbal abuse Bartol 2017: 303).
and theft. The acts perpetrated by the child Youth who physically abuse their parents
or youth causes the parent to feel threatened, often display the following characteristics
intimidated and controlled (Kennair & Mellor, (Cottrell & Monk 2004: 1073-1074, 1082-1083,
2007: 204). Coogan (2011:349) proposes the 1087; Hong, Kral, Espelage & Allen-Meares
use of the term “child-to-parent violence” as 2012: 434; Kennair & Mellor 2007: 205-207):
this clearly identifies the parent as the victim of
¢ They are likely to have friends who also dis-
the abusive behaviour, and the child as the one
play violence towards their parents.
who uses violence to disempower the parent.
Parent abuse and murder are topics that e They approve of misbehaviour, including
have been neglected by researchers. This violence.
may be because family violence is considered e They show weak attachments to their par-
a private, domestic and even a “normal” phe- ents. They do not have close relationships
nomenon by the victims and _ perpetrators, or rewarding interactions with their par-
and interference by outsiders is not tolerated. ents, and are less likely to talk to them
Parent abuse is often overlooked because it about their personal problems.
is not seen to be an extensive or problematic
aspect of family interaction and few interven- e They are more likely to be male. Female
tions are available. Parents are also not likely youth tend to be more emotionally and ver-
to report such abuse because they may blame bally abusive, while male victimisers are
themselves for the victimisation, they may feel more likely to be physically abusive.
that others will blame them for their children’s ¢ They abuse alcohol and/or drugs. Youth
behaviour or they fear retaliation by their acknowledged that they abused their par-
children if it becomes known that they have ents when they were “high” or “coming
reported the abuse (Coogan, 2011: 349; Cottrell down” from the drugs, but in most cases
& Monk, 2004: 1089). violence was directed towards parents
Parent abuse involves physical attack, ver- because of an argument with them over
bal and non-verbal threats, and emotional issues related to substance abuse.
battering of one or both parents by a child.
More specifically, parent abuse involves the ¢ They were physically or sexually abused as
children. Some female youth who report-
throwing or use of objects as a weapon, push-
ed child sexual abuse attributed their vio-
ing, grabbing, shoving, slapping, kicking, bit-
lence towards a parent as the need to pro-
ing and threatening to use, or using, a knife
tect younger siblings from sexual abuse. In
or gun in an impulsive or situational episode
less frequent incidences, the violence was
against a parent. There are also subtler forms
directed against the non-offending parent as
of abuse, such as personal and property theft,
a way of expressing anger toward the par-
and leaving a disabled parent alone without
ent for not protecting the child.
food, water and help when the youth is away
at school. Cursing and shouting at the par- e They are more likely to have been exposed
ent to the extent that the parent experiences to incidents of domestic violence. Findings
ons 51
SECTION A YOUTH MISBEHAVIOUR; ITS NATURE, EXTENT, RELATED RISK FACTORS AND EXPLANATIONS
show that an abusive male youth will begin ly controlling. Tension in the family surfaces
abusing his mother shortly after the vio- as soon as the youth displays an intense
lent father/male partner leaves the family need for autonomy and parents try to react
home. This could be a combination of male by maintaining the same level of control. As
role modelling, idealisation of the abuser or this power struggle continues, the youth
anger towards the mother for not protect- uses violence in order to get his way. Howev-
ing the family. er, in other research studies it is suggested
e They suffer some form of mental health that a permissive parenting style may also
problem (bipolar disorder, attention defi- contribute to youth violence towards par-
cit/hyperactivity disorder, personality dis- ents. Lastly, conflicting childrearing styles,
order, learning disorder or schizophrenia). where parents contradict each other, have
Youth suffering from mental health prob- also been noted as contributing to parent
lems often have difficulty with impulse con- abuse.
trol and interpersonal skills.
Some parents use all kinds of strategies or
In a literature review (Cottrell & Monk practices to achieve certain goals with their
2004: 1073, 1084; Hong et al. 2012: 434; Ken- children (e.g. reading a book with the child
nair & Mellor 2007: 205-207; Walsh & Krienert every night to encourage reading). More
2009: 1454) of child-to-parent violence, the fol- intense, however, are parenting styles, which
lowing emerged: can be divided into four broad categories,
namely the authoritarian style (trying to shape
e The age, size and strength of the adolescent and control the child’s life according to abso-
was related to assault. Higher rates of vio- lute standards); the permissive style (no con-
lence towards parents correlates positively
trol and very limited restrictions over the
with an increase in these three factors.
child); the authoritative style (expecting chil-
¢ Mothers are most often the object of the dren to perform age appropriately and better,
abuse. A possible reason for this is that and applying firm and consistent enforcement
mothers are more often the primary care- of family rules and standards); and the neglect-
givers, especially in single-parent families, ing style (being detached and unengaged in the
and this could place them at increased risk child’s life). Parents often fluctuate between
of experiencing child-to-parent violence. styles and in some cases enmesh parenting
It could also be that it seems that way styles. The context and the age of the child
because mothers are more likely to disclose often determine the style employed. Research
abuse at the hands of their children than is not convincing regarding how a parenting
fathers are willing to do. style contributes directly or indirectly to mis-
¢ Girls hit their mothers more than they hit behaviour in general. However, excessively
their fathers. abusive strict and rigid parents are sometimes
on the receiving end of parental abuse once
¢ Boys hit their fathers more as they get the child grows into adolescence (Bartol &
older. Bartol 2017: 62).
e While child-to-parent abuse does occur in An extreme form of parent abuse is parri-
two-parent families, it is more common in cide (i.e. the murder of one’s parents). A dis-
single-parent families. tinction can be made between matricide (kill-
e Parental assault is not influenced or deter- ing of the mother) and patricide (killing of the
mined by the same factors as child and father) (Newhill 1991: 379, 381). According to
spousal abuse. Heide (1992: 6), parricide can be committed by
any one of three types of perpetrator:
e A common family pattern in child-to-parent
violence is parenting styles. Currently there e A severely abused child who is pushed
exists no definite conclusion in this regard. beyond his or her limits
Some studies found that youth violence is e Aseverely mentally ill child
directed toward parents who are excessive- e A dangerously antisocial child
52 (Onbisner
_GHAPTER 3_ THE NATURE AND EXTENT OF CHILD AND YOUTH MISBEHAVIOUR
IN SOUTH AFRICA
Content analysis after an extensive search of The characteristics of sibling abusers are
international online databases pertaining to as follows (Hardy, Beers, Burgess & Taylor
parricide cases conducted by Boots and Heide 2010: 65; Kiselica & Morrill-Richards 2007: 152):
(2006: 426) revealed that boys were usually the
¢ Prior victimisation by parents, older sib-
primary offenders (78%). Firearms were used
lings or other non-family members
in 39% of the incidents, followed by knives or
cutting instruments (20%). Blunt objects and e Alcohol and drug abuse
multiple weapons were used in 12% of the e Low self-esteem, which may increase the
cases respectively. In the remaining 17% of risk of suicide
the incidents, parricide offenders used other e The likelihood of engaging in aggressive
weapons (6%), strangulation (3%), weapon behaviour during adulthood
not specified (3%), asphyxiation (3%), person-
e Being labelled as a bully by others outside
al weapons (2%), and fire (0,4%) to kill their
the family context
parents. In respect of motives, the study found
five circumstances were suggested with some e At risk of developing conduct disorders and
frequency in media reports: fighting and/or antisocial behaviour
anger (51%); abuse (33%); money and/or insur- e¢ Use of coercion and force to control the vic-
ance (24%); mental illness (17%); and alcohol tim
and/or drugs (mentioned in 11%). Killings as a
result of a business dispute or mercy killings Sibling abuse can be physical, psychological or
were each suggested in 1% of incidents, and sexual in nature. Each of these types of abuse
other motives were suggested in 3%. Accord- is discussed below.
ing to Walsh and Krienert (2009: 1471), fathers,
and particularly stepfathers, are more likely to
Physical abuse
be murdered.
Parricide is not uncommon in South Africa. The most common form of physical violence
In March 2012, Nicolette and Hardus Lotter between siblings is pushing and shoving, fol-
were convicted for the murder of their par- lowed by hitting, kicking and slapping. Sibling
ents, together with co-accused Mathew Naidoo violence that includes the use of objects and
(Waterworth & Sanpath 2011). In 2014, Don weapons to inflict pain are less common (But-
Steenkamp was sentenced to an effective 20 ton & Gealt 2010: 132).
years in prison for the murder of his mother, The family structure of the physical abuser
father and sister, the rape of his sister and appears to be important in sibling assault,
defeating the ends of justice. These crimes especially the age of the abuser and the pres-
occurred in 2012 when Steenkamp was 15 ence of violence in the family. Researchers
years of age (News24 2014). found that younger siblings are more likely to
engage in violence than older ones. It is pos-
Sibling abuse tulated that the most common age for sibling
violence (hitting, kicking and punching) is the
Although it is difficult to find statistics per- six- to nine-year-old age category. Those in the
taining to sibling abuse, researchers believe 14-17 year age group are more likely to make
that it occurs more frequently than parent- use of objects and weapons to perpetrate vio-
child or husband-wife abuse (Button & Gealt
lence. One aspect that researchers agree upon
2010: 131). It is not uncommon for conflict to
is that sibling violence tends to decline with
occur between siblings, but the following crite-
age. It is also more likely to occur in families
ria distinguish conflict from abuse:
where other forms of family violence, such
¢ The interaction becomes violent. as intimate-partner violence and child abuse,
e A sibling feels that he or she is powerless to exist. The reasoning is that children are likely
stop the interaction. to imitate the violent behaviour they witness
¢ The conflict persists over a period of time. in their own relationships with their sibling(s)
¢ The interaction is directed towards only (Button & Gealt 2010: 132-133; Krienert &
one sibling. Walsh 2011: 334).
(Cmbinen) 53
Psychological abuse dalism (South African Council for Educators

2011: 6). It is reported that hazing and initia-
Psychological sibling abuse includes the fol- tion tend to occur more frequently in private
lowing (Button & Gealt 2010: 132; Kiselica & schools, whereas explicit forms of violence
Morrill-Richards 2007: 149): such as robbery and stabbings tend to occur
¢ Verbal abuse aimed at ridiculing, insulting, in township schools (South African Council
threatening, terrorising or belittling a sib- for Educators 2011: 6). In 2012, a case of haz-
ling ing made headlines when a 16-year-old school-
e Acts aimed at rejecting, degrading and boy was assaulted during a rugby camp. The
exploiting a sibling assault included having his eyebrows and head
shaved, and a penis sketched on his bald head
e Destroying the property of a sibling
while he was in an intoxicated state. It was
¢ Torturing and killing of pets
also alleged that he was sexually assaulted
with a broomstick and a banana. All of this was
Sexual abuse recorded on the mobile phones of the abusers
Sexual abuse or sibling incest includes sexual (Williams 2012). School-based violence may be
behaviour between siblings that is long lasting perpetrated by fellow learners or school staff
and not motivated by age-appropriate curiosi- (teachers, principal), and at times perpetrators
ty, and for which the victim is not developmen- from the community or other schools enter the
tally prepared (Caffaro & Conn-Caffaro in Kisel- school premises with the aim of committing
ica & Morrill-Richards 2007: 150). Sexual abuse violent acts (Gevers & Flisher, 2012: 177).
between siblings not only includes vaginal and Regarding teacher-on-learner violence, it
anal penetration, but also unwanted sexual is postulated that educators verbally abuse
advances, fondling, oral sex and forcing a sib- learners, use corporal punishment to disci-
ling to watch pornography (Carlson, Maciol & pline them (even though this violates South
Schneider 2006: 22; Kiselica & Morrill-Richards African legislation) and are involved in “love
2007: 150). relationships” with them. Between January
In the majority of cases, the perpetrator of and October 2008, 27 complaints of sexual mis-
sibling incest is an older brother molesting conduct against teachers were received by the
a younger sister. However, sibling incest can South African Council for Educators (SACE).
also include sexual assault between siblings In some instances, the teacher-learner sexual
of the same as well as the opposite gender. relationship took place with the consent of
It appears as if there are two subtypes of sib- the child’s parents based on a financial agree-
ling incest. The first is a powerful older sibling ment (Gevers & Flisher, 2012: 180-181; Mncube
coercing an unwilling younger victim, and the & Harber, 2013: 13). With learner-on-learner
second, siblings who engage in consensual violence, girls are more likely to be victims of
sexual behaviour from a young age and con- sexual assault and rape perpetrated by fellow
tinue with the relationship over time. The dis- learners as well as by male teachers, and boys
closure rate of this crime is very low as such the victims of assault and bullying (South Afri-
victims fear punishment, blame, ridicule or not can Council for Educators 2011: 7). When male
being believed by the parents (Carlson et al. learners are the perpetrators of sexual crimes
2006: 22-23). against female learners, they often act in
groups, making it difficult for them to escape,
and also making them vulnerable to gang rape
School violence (Gevers & Flisher, 2012: 182).
Gevers and Flisher (2012: 177) opine that chil- Although recent newspaper headlines have
dren are exposed to high levels of violence once again highlighted the frequency of sexual
in schools as well as in their homes and com- relationships between teachers and learners,
munities. School-related violence encom- this problem will not be further discussed in
passes a variety of acts perpetrated on the this chapter. As a last word, the authors are of
school grounds, such as hazing or initiation, the opinion that teachers are in a dominant and
assault, robbery, sexual assault and rape, powerful position in which parents trust them
gangsterism, drug-related offences and van- to have the best interests of their children in
54 (Cait)
mind. In addition, adult teachers should never allegedly threw a brick at another pupil at a
allow relationships of this ilk to flare up. The Cape Town high school.
focus will now turn to school shootings and e At Kasselsvlei High School in Bellville in
stabbings, bullying and cyber bullying. the Western Cape, a 20-year-old youth died
after being stabbed in the back three times
School shootings and stabbings by a 17-year-old fellow learner.
Schools are fast becoming sites for gun vio-
lence and stabbings in which youths are the Learner-on-teacher violence
victims or the offenders, or both. The National e A teacher was assaulted inside a classroom
Schools Violence Study (NSVS) undertaken by by three learners at the Emshukantambo
the Centre for Justice and Crime Prevention High School in Soweto.
indicates that three in 10 secondary learners e A Glenvista High School male learner was
know of a fellow learner who has brought a suspended for attacking a male teacher with
weapon to school. Furthermore, according a broom and a chair.
to primary- and secondary-school learners, it
e A 14-year-old learner stabbed his teach-
is easy to get a knife and/or firearm at school
er at PJ Simelane High School in Soweto,
(Burton P. 2008:9). The easy availability of
Gauteng.
knives is illustrated in the statement that
during the first six months of 2012, 29 learners
were stabbed in Western Cape schools alone Teacher-on-learner violence
(News24 2012a). In 2010, handheld metal detec- Despite the ban on corporal punishment in
tors were installed at 110 high-risk schools in schools, teachers still regularly punish or
the Western Cape to ensure that no weapons assault school learners.
(firearms or knives) were brought onto school
¢ The headmaster of Sanddrift Primary
premises. Random searches of learners’ per-
School in Brits, North West, paid a fine for
sonal possessions and items can be conducted
assaulting one of his learners.
if it is suspected that they are carrying danger-
ous objects to school. Furthermore, if they are e Afemale teacher was suspended for allegedly
wearing a coat or jacket they may be requested hitting a pupil at the Glenbrack High School
to remove it. Random searches may only be in Alberton, Gauteng.
conducted by the principal or an appointed
delegate who must be of the same gender as One of the initiatives by the South African
the learner being searched (South African Gov- government to reduce gun-related violence in
ernment News Agency 2010). schools is the establishment of Firearm-free
Since no in-depth study has been conduct- Zones (FFZs). In April 2001, the Firearms Con-
ed in South Africa on the nature of school trol Act 60 of 2000 was signed into law. This
shootings and stabbings, the incidents below Act makes provision for FFZs - that is, any
describe some examples of accidental and place that has been declared by the Minister of
intentional shootings and stabbings of learners Safety and Security to be a firearm-free zone,
and teachers by youths (IOL News 2011, 2012; such as a school, a hospital, the workplace or
Mail&Guardian 2017; News24 2011, 2012b, any other area. Once the minister has declared
2017a, 2017b; SowetanLive 2011; The Citizen a place to be an FFZ, the following become
2016). criminal offences (Gun Free South Africa n.d.):
e Allowing any firearm or ammunition into
Learner-on-learner violence the FFZ
e Carrying any firearm or ammunition in the
¢ In 2017 in a viral video it can be seen how
a male learner assault a female learner at
e Storing any firearm or ammunition in the
Siyathuthuka Secondary School, Inanda,
FFZ
north of Durban.
e The Western Cape Department of Education The penalties for contravening the stipulations
is investigating an incident in which a pupil of this law are very harsh:
Onpinens} 55
SECTIONA YOUTH MISBEHAVIOUR:
e If a person in charge of an FFZ allows any e Intensity and duration, in that bullying con-
gun or ammunition into the zone, he or she tinues over a longer period of time
can be sent to prison for up to five years. e Exercising of power over the victim because
e Ifa person brings a gun or ammunition into of the bully’s age, size, strength or gender
an FFZ, he or she can be sent to prison for
e Selection of victims who appear vulnerable
up to 10 years.
due to their apparent inability to defend
e Ifa person stores guns or ammunition in an themselves
FFZ, he or she can be sent to prison for up
¢ Lack of support experienced by the victim,
to 25 years.
causing underreporting of incidents of bul-
lying
Another initiative to make South African
schools safer is the declaration in 2003 by the e Long-lasting consequences, such as the vic-
Department of Education that schools are also tim withdrawing from school activities
“dangerous-object-free zones”. A dangerous
object includes the following: Bullying can be physical, emotional and/or sex-
ual in nature.
e Any explosive material or device
e Any firearm or gas weapon
e Any article, object or instrument which can Physical bullying
cause bodily harm Physical bullying includes physical acts such
as punching, poking, strangling, suffocating,
The South African Schools Act 84 of 1996 fur- burning, poisoning, hair pulling, biting, stab-
ther stipulates that no person may allow, carry bing and/or shoving. However, physical bully-
or store any dangerous objects on public ing also includes forcing someone to hand over
school premises. pocket money or possessions, or demanding to
copy someone’s homework (De Wet 2005: 83;
Bullying in schools Neser et al. 2003: 128; Snakenborg, Van Acker
& Gable 2011: 89).
Bullying started receiving academic atten-
tion and societal interest only during the
early 1970s and was first defined by Olweus Emotional bullying
(1994: 1172) as “the negative actions of one This type of bullying includes a range of activ-
or more persons repeatedly and over time”. ities such as terrorising, defaming, humiliat-
It encompasses direct actions (hitting, kicking
ing, blackmailing and ostracising someone. It
and punching) or indirect actions (spreading
also includes deliberately excluding someone
rumours, ignoring someone and social exclu-
from group activities, spreading rumours and
sion) (Liang, Flisher & Lombard 2007: 162;
name-calling (De Wet 2005: 83; Neser et al.
Mncube & Harber, 2013: 8). Popp, Peguero,
2003: 128).
Day and Kahle (2015: 2) refer to bullying as a
systematic and recurring type of aggression
by more powerful peers toward weaker indi- Sexual bullying
viduals. Girls are more prone to experiencing Sexual bullying can be verbal (making com-
indirect bullying, while boys usually fall victim ments about someone's body, telling inap-
to direct bullying. However, recently several propriate sexual jokes or spreading sexual
cases of direct physical bullying between girls rumours), physical (grabbing a female learn-
have been reported in the media.
er’s breasts, flashing of genital organs or
The act of bullying is characterised by
mooning, pinching in a sexual way) or visual
six defining factors (De Wet 2005: 82; Neser,
(displaying nude pictures, making obscene
Ovens, Van der Merwe, Morodi & Ladikos
gestures) (Equal Rights Advocates 2012).
2003: 129):
The characteristics of the school bully are
¢ Intent to harm, with the bully finding plea- generally as follows (De Wet 2005: 82; Liang et
sure in taunting others al. 2007: 162):
Van Schaik
56 © publishers
e They tend to evolve into antisocial adults. Cyber bullying

¢ They are bigger and physically stronger
With the onset of the electronic era, a new
than their victims.
type of bullying emerged, namely cyber bul-
¢ Some may enter the school armed with lying, which is now a worldwide phenomenon
weapons. between youths (Bartol & Bartol 2017: 474).
¢ Perpetration and victimisation is more com- This is defined as “the use of electronic forms
mon among boys. of communication by an individual or group
e They have a positive attitude towards vio- to engage repeatedly in sending or posting
lence. content about an individual or group that a
reasonable person would deem cruel, vulgar,
¢ They are more likely to smoke as well as
threatening, embarrassing, harassing, fright-
abuse alcohol and drugs.
ening or harmful” (Snakenborg et al. 2011: 89).
e They display aggressive and impulsive Cyber bullying is also defined as “sending or
behaviour. posting harmful or cruel text or images using
e They are involved in violent acts inde- the Internet or other digital communication
pendently of the bullying behaviour, devices” (Willard in Li 2006: 158).
Cyber bullying can be carried out by means
Neser et al. (2003: 129) identify three common of email, mobile phones, instant text messag-
categories of bully: ing (SMS), picture and video clips (“sexting”),
chat rooms and message boards, video-hosting
¢ Proactive bullies. They are more aggressive
sites (YouTube) and social networks (MXit,
in nature and need no provocation to hurt
Twitter and Facebook) (Burton & Mutongwizo
or humiliate another person.
2009: 2; Li 2006: 159; Snakenborg et al. 2011: 91;
¢ Reactive bullies. They were previously vic- Wade & Beran 2011: 45). In South Africa, the
tims themselves and retaliate by bullying primary means for cyber bullying is via mobile
other smaller and weaker people. phone as more youths have access to these
than to computers. Furthermore, most cyber
e Proactive victims. They provoke fights with
bullies use MXit as a means to commit their
other children. If challenged, they are quick
acts as it is cheap and easily accessible (Rond-
to cry or display exaggerated responses.
ganger 2012).
In the cyber world, the bully can act in a
This brings us to ask what can be done to pre-
sexual or aggressive manner. Sexually, the
vent or reduce bullying at schools. Following bully can make use of sexting. This is a com-
are a number of anti-bullying strategies: bination of the words “sex” and “texting”, and
e Teachers, administrators and learners must involves the sending of nude or semi-nude
understand what constitutes bullying. photos or videos and/or sexually suggestive
messages via mobile phone without the con-
e Teachers and school staff must identify
sent of the person in the image. The photos or
potential bullies and victims.
videos can be taken in the following scenarios
¢ Different forms of bullying must be identi- (Badenhorst 2011: 2):
fied and described.
e Between two romantic partners, with the
¢ The extent of bullying must be determined images staying between the partners
by means of observations and question-
¢ Between two partners, but are then shared
naires. This may enable the school to devel-
with others outside the relationship without
op an anti-bullying policy.
the consent of one of the partners, usually
e¢ An anti-bullying committee consisting of to avenge a failed relationship
staff, parents and learners must be estab- e Exchange where one of the users would like
lished, and it should plan awareness and to start a romantic relationship
prevention activities.
e Anti-bullying activities should become part Sexting is a common practice among children
of the school curriculum. and youth, and there are reports of children
Onbismen) 57
SECTION A YOUTH MISBEHAVIOUR: ITS NATURE, EXTENT, RELATED RISK FACTORS AND EXPLANATIONS_
as young as nine years old sexting pictures of naked gay bodybuilders, and the school’s
themselves in the nude. It is also stated that emblem was placed over their private parts.
sexting is a daily occurrence, which is preva- This picture was distributed among learn-
lent among children between the ages of 10 ers.
and 14 years in all population groups, with
° Cyber stalking includes threats of harm
girls twice as likely than boys to send a naked
through repeated online harassment.
photo to someone (Geldenhuys 2015: 32; Daily
Mail 2014). ¢ Happy slapping is a new type of bullying
An extreme example of sexting is a case where learners walk up to someone and
in 2010 where a 15-year-old schoolgirl was slap them while another captures this on a
reportedly gang raped by two boys, aged 14 mobile phone video. This will then be dis-
and 16 years at the Jules High School in Jeppe- tributed among other learners and often
stown, Gauteng. The boys filmed this incident holds entertainment value for them.
on their mobile phones. The victim later said
that the sexual acts were consensual, and the The following are offered as possible reasons
boys were referred to a diversion programme for cyber bullying (Burton & Mutongwizo
(Mukhuthu 2011). Children are not always 2009: 3; De Wet 2005: 83; Li 2006: 158; Rond-
aware that sending a photo of genital organs, ganger 2012; Snakenborg et al. 2011: 90):
the anus or female breasts to another child is a
criminal offence and that they can be charged ¢ It may be done for revenge, for entertain-
and convicted of contravening section 22 of ment, out of boredom or to get a reaction
the Criminal Law (Sexual Offences and Relat- from peers and victims.
ed Matters) Amendment Act 32 of 2007. Fur- e It is carried out anonymously and the bully
thermore, a child spreading nude photos of may think that he or she is getting away
children under the age of 18 years can also be with the crime.
charged with the distribution of child pornog- e Learners that are too afraid to engage in
raphy according to the Films and Publications “traditional” bullying may resort to cyber
Act 65 of 1996. bullying because of the anonymity it offers.
Aggressive acts in the cyber world include e A number of targets can be bullied in front
the following: flaming, threats, manipulation, of a large audience without significant risk.
denigration, stalking, defamation, trickery,
and happy slapping (Burton & Mutongwizo Vandebosch and Van Cleemput (2008: 1355)
2009: 2). Some of these concepts will briefly offer the following characteristics of the cyber
be explained (Burton & Mutongwizo 2009: 2-3; bully:
Rondganger 2012; Venter 2008):
¢ Moral approval of bullying
¢ Flaming refers to online fights in which ¢ Feeling disconnected from school
angry and vulgar text messages are e Lack of perceived support from peers and
exchanged between users. adults
e Denigration is the sending or posting of gos- ¢ Below-average school grades
sip or rumours about someone in order to ¢ Consumption of cigarettes as well as alco-
damage his or her reputation. For example, hol and drugs
a 16-year-old tried to commit suicide after
her name was put on a “slut list” that went
viral on BlackBerry Messenger and Face-
3.2.5 Drug use among youths
book. Denigration also includes digitally Young children are experimenting with drugs
altering photographs to portray victims in a now more than ever before in the history of
sexualised way or in a way that harms their South Africa, and this appears to be wide-
image. In 2008, three youths manipulated a spread throughout the racial, cultural and eco-
photo of the vice-principal and principal of nomic sections of our society (Daniels 2007). In
Hoérskool Waterkloof in a sexually compro- South Africa, a significant number of children
mising position. The heads of the two men as young as 10 years of age are addicted to
were digitally imposed on the bodies of two drugs such as dagga (cannabis), heroin (dia-
58
cetylmorphine) and tik (crystal methamphet- ¢ Opiates. These provide pain relief, euphoria
amine). No statistics regarding drug use are and sedation, and in increasing doses may
available as most schools and parents usually induce coma. Heroin, morphine, opium and
deal with their drug-taking children outside the methadone are examples of opiates.
legal system. A community pastor declared to
the media that “drugs have become a cancer
that erodes the moral value of our children” 3.2.5.1 Tolerance
after Mandrax, ecstasy and cocaine were found Tolerance can be defined as the need to ingest
in a raid on an East London syndicate (Jika, larger doses of a specific substance to achieve
Makapela & Mgxitama 2007: 1). Drug abuse in the same effect that was previously achieved
South Africa is more prevalent among males with smaller doses. When one ingests any toxic
than females. Besides the use of dagga, over- substance, the body develops a resistance to
the-counter and prescription medication, it. If, for example, the nicotine present in 20
such as antiretroviral drugs (ARVs), painkill- cigarettes is taken in a single dose, the person
ers and cough medicine, are the most abused would die of nicotine poisoning. If, however,
substances among both males and females. 20 cigarettes are smoked over a period of 12
According to the South African Youth Risk hours, the smoker’s body will develop a resis-
Behaviour Survey, 15% of learners admit to get- tance to or tolerance of the toxic effect to such
ting high on over-the-counter drugs (Williams an extent that it will not kill the smoker imme-
2016). Some of the indicators that often lead diately. Owing to the tolerance that develops,
to substance abuse in youth are the following more and more of a substance can be ingested.
(Soul City Institute for Social Justice n.d.: 17): Within a short period of time, the body no lon-
ger seems to be able to function normally if
e Low religious involvement
there is not enough of the substance present.
¢ Short-term goals in life
The precise mechanism that causes tolerance
¢ Depressive symptoms
is not known. Furthermore, it is striking that
¢ Poor sense of wellbeing whereas tolerance develops rapidly, it does
¢ Low self-esteem not disappear when the person stops using the
¢ Boredom drug. If the substance is not ingested, the phys-
¢ Peer pressure from youths who are already ical and psychological need for it becomes
using substances more pressing and will eventually result in
withdrawal symptoms (Bezuidenhout 2002: 2).
Drugs fall into one of four categories (Bezuid-
enhout 2004: 119; Kempen 2015: 10):
3.2.5.2 Popular drugs
¢ Depressants (downers). Popular depressants
Popular drugs that are abused by the youth in
among youths are alcohol, dagga, heroin,
South Africa are discussed in the following sec-
morphine, painkillers (e.g. Wellconal®) and
tions.
sleeping pills (e.g. Rohypnol®). Domestic
depressants used by street children are
glue, petrol and nail varnish remover, the Mandrax
fumes of which are inhaled. e Mandrax was developed and manufactured
¢ Stimulants (uppers). Stimulants favoured by in the sixties to treat sleeping disorders,
youths are amphetamines (Benzedrine®), anxiety and hypertension. It was banned
methamphetamine (ecstasy, ice and crack), and termed illegal in South Africa during the
caffeine, ephedrine (known as_ speed), seventies due to its addictive properties.
cocaine and nicotine. ¢ The common street names for Mandrax are
e Hallucinogens. The most common hallucino- buttons, MX, doodies, lizards, press outs,
gens used by South African youth are lyser- flowers, white pipe (witpyp) or whites.
gic acid diethylamide (LSD), dagga and ket- e¢ South Africa has the most abusers of Man-
amine (a dissociative anaesthetic intended drax in the world. It is usually presented
for animals but used as a date-rape drug). in tablet or powder form. Mandrax tablets
Van Schaik
© publishers 59
vary in colour ranging from white to blue, Cocaine

green and dark brown.
¢ The common street names are coke, pow-
¢ Mandrax is a synthetic drug that is made by der, nose candy, blow, speedball (when
mixing chemicals to produce a tablet. The mixed with heroin), hooter, white horse,
active ingredient in Mandrax is methaqua- soft snow and snow.
lone.
The drug can be sniffed, smoked or injected.
e Mandrax is highly addictive. People become
physically dependent on it and have severe When smoked, cocaine is sometimes com-
withdrawal symptoms if they do not obtain bined with other drugs, such as cannabis or
their next dose timeously. heroin.
e Mandrax can be swallowed or injected, but Cocaine is an alkaloid found in the leaves
is most often smoked. The tablets are usu- of the South American shrub erythroxy-
ally crushed and mixed with dagga and then lon coca. It is a powerfully reinforcing psy-
smoked using a pipe or the neck of a bottle. cho stimulant. The drug induces a sense of
This is called witpyp (white pipe). exhilaration in the user primarily by block-
e¢ Mandrax is used to relieve tension, mental ing the reuptake of the neurotransmitter
stress and anxiety. After a few minutes the dopamine in the midbrain. Dopamine is
user feels relaxed, calm and peaceful. Some a chemical messenger vital to the regular
people become aggressive as the effect functioning of the central nervous sys-
wears off. tem. Under normal circumstances, it flows
into and out of neurons. However, cocaine
blocks dopamine transporters from taking
LSD up dopamine, leaving it outside the cells,
e The common street names for LSD are acid, which excites the nervous system to the
LSD acid, trips, blotters, microdots, tabs, point where the cocaine user feels a high.
doses, hits and sugar cubes. The effects of cocaine are felt immediately
and the effects last from one to two hours.
¢ Common forms of LSD are microdots on
paper, mini tablets or capsules, and gelatine Cocaine in its purest form is a white to off-
sheets. It is colourless, tasteless and odour- white product. In powder form, it is a salt or
less, and is soluble in water and alcohol. hydrochloride. On the market, this type of
cocaine is frequently “cut” (mixed) with var-
¢ It is commonly used as a “club” drug and is
often used in addition to ecstasy. ious powdery fillers to increase its weight.
The substances most commonly used in
¢ The effect of LSD can be felt within 30-40 this process are baking soda and sugars.
minutes after it has been ingested and Cocaine may also be “cut” with other stim-
the effect can last up to 12 hours. Effects ulants such as methamphetamine. The most
depend very much on the user’s mood, common forms are fine off-white powder or
where the user is, whom he or she is with, crystals called rocks or crack, full moon,
as well as the dose taken. They often half moon and quarter moon.
include intensified colours and distortions
of vision and hearing. Although true halluci- Most users become physically dependent
nations — believing something is there when (Cocaine.org n.d.; Kempen, 2015: 12).
it is not - are rare, they may become more
common on higher doses. Emotional reac- Dagga
tions may include heightened self-aware-
¢ The botanical name for dagga is cannabis
ness and mystical or ecstatic experiences.
sativa or cannabis.
Users often report a feeling of being outside
their body. Unpleasant reactions or a “bad The common street names are grass, joint,
trip” may include depression, dizziness, zol, skyf, peperskyf, ganja, Swazi gold, Mala-
disorientation, fear, paranoia and panic wi gold, mabange, insangu, imya, lebake,
(Puberty101 n.d.; Kempen, 2015: 14). splif, Transkei colly, Durban poison, pap-
Van Schaik
60 © publishers
pegaai-slaai (parrot salad), rondkyktwak ¢ Its use is spreading rapidly among the
(tobacco for observing), marijuana or boom. school-going population. It is used as a rec-
reational drug for the intense euphoria it
Most people start experimenting with drugs
produces; however, this often disappears
by using dagga. It is seen as the so-called
with increased tolerance.
gateway drug because most drug users indi-
cate that they started with dagga. This is the Heroin can be injected, sniffed or smoked.
primary substance of abuse among those Some users mix it with cocaine in a so-called
younger than the age of 20 years (Depart- speedball or snowball, which is usually
ment of Basic Education, 2013: 5). Recently, injected intravenously, although it can be
a landmark Western Cape High Court ruling smoked or dissolved in water and snorted.
stated that the issue of legalising the private This causes a more intense rush than hero-
use of dagga by adults in their home should in alone, but is more dangerous because the
be revisited. However, as it stands dagga is combination of the short-acting stimulant
still an illegal drug and one cannot legally with the longer-acting depressant increases
deal in or use it in the public domain. the risk of overdosing on one or both drugs.
Dagga is a plant that resembles tobacco. It Heroin is highly addictive. Addiction devel-
has leaves shaped like a five-pointed star, ops within two to three weeks, and is proba-
which are smoked. The psychoactive sub- bly the most difficult to quit of all the addic-
stance in dagga is delta-9-tetrahydrocan- tions to illegal drugs. The effects include
nabinol (THC). The dagga (cannabis or mar- initial feelings of intense pleasure and a
ijuana) leaves are mixed with the flowering dulling of pain, flushing of the skin, a dry
tops of the plant to increase its potency. mouth, nausea, vomiting and severe itching
Cannabis or hashish oil is an extract pre- (Kempen, 2015: 13).
pared from the tops of the plant as well as
the resin, and is very potent. The death rate among heroin addicts is 20
times higher than that among other drug
Cigarette smoking usually precedes the addicts who do not use heroin.
smoking of dagga. Most dagga users have
experimented with other drugs or use
dagga in conjunction with one. Mandrax is Ecstasy or MDMA (methylenedioxymetham-
especially popular as a combination drug, a phetamine)
practice followed mainly in South Africa and ¢ Street names for MDMA include ecstasy
known as the white pipe phenomenon (wit-
Adam (the rearrangement of the letters
pypverskynsel). Otherwise, dagga is smoked
MDMA), XTC, hug, beans, E, liquid X, disco
in its pure form or mixed with tobacco. It
biscuits, love drug, clarity, hug drug, blue
can also be mixed with batter and eaten as
kisses, lover’s speed, Mercedes and white
a biscuit or cake, or it can be used like tea
dove.
leaves (infused) and then drunk.
Dagga is dangerous because it contains The sought-after effect, which is usually felt
more tar and carcinogenic (cancer-causing) within 30-60 minutes after ingestion and
agents than cigarettes. In the long run, the lasts up to 24 hours, is a feeling of emotional
smoking of dagga causes bronchitis and closeness to others as well as increased
other disorders that affect the respiratory physical and emotional energy, loss of inhi-
system. It also increases the user’s chances bition, increased vital signs including heart
of getting lung cancer. When a person stops rate, body temperature and blood pressure,
using dagga, the body needs 30 days to decreased appetite and sexual feelings.
clear itself of the THC stored in the body MDMA is frequently used at so-called rave
cells (Bezuidenhout 2002: 11). parties. It is a synthetic, psychoactive drug.
chemically similar to the stimulant metham-
Heroin phetamine and the hallucinogen mescaline.
e The street names of this drug include horse, Side effects of ecstasy use cam Be depres-
H, herries and smack. sion in the short term. and brain and liver
Omes) 61
damage in the long term. It is regarded as holism and Drug Dependence (SANCA) has a
one of the most impure drugs on the mar- record of one user smoking the contents of
ket because the composition of an ecstasy up to 14 plastic money bags per day. Nyaope
tablet can vary from pure MDMA to MDMA users tend to be impulsive, and will get into
mixed with LSD, caffeine, ephedrine, anti- habitual thieving behaviour to support their
histamine, paracetamol, cold powders, addiction. It also causes unusual shortness of
morphine, heroin, strychnine, ketamine breath, compulsive eating, persistent coughing
and methadone (a synthetic replacement and aggression, and blisters are usually visi-
for heroin). Ecstasy is not the “safe” social ble around the mouth (Van den Berg 2012: 1).
drug as is generally thought. On the con- New amendments to the Drugs and Drug Traf-
trary, it is a powerful stimulant that can ficking Act 140 of 1992 make provision for the
cause chronic dehydration, over-hydration, prosecution of the use and possession of nya-
serious exhaustion and “gloomy Tuesdays” ope. Both heroin and dagga, as the main com-
the week after. Furthermore, it can cause ponents of nyaope, are listed as “undesirable
the user’s main blood supply to significant dependence-producing substances” in the new
organs and systems to malfunction, result- amended Act (Department of Justice and Con-
ing in an abnormal heart rate (“flutters”). stitutional Development, n.d.). A recent trend
In addition, it is highly addictive, and toler- among nyaope users is the so-called “blue-
ance is very quickly established (Bezuiden- tooth” (named after the technology that con-
hout 2002: 9; Kempen, 2015: 13). nects different electronic devices) where users
exchange blood through a syringe to share
the high (and ultimately the cost of buying the
3.2.5.3 New drugs on the market drug). This trend increases the risk of contract-
New drugs on the market include tik, nyaope, ing and transferring HIV, hepatitis C and other
whoonga and krokodil. Methamphetamine, blood diseases (Tshipe, 2017a; Tshipe, 2017b).
otherwise known as tik, is part of the amphet- A variation of nyaope is whoonga, which
amine group of drugs — potent as well as easy has been available in the townships of Kwa-
to make, and first identified in Cape Town in Zulu-Natal since 2010. The word “whoonga” is
2002. It also impacts on dopamine levels (see derived from the Zulu word “wukeka” describ-
Cocaine) by overexciting the central nervous ing the severe stomach cramps addicts expe-
system. As it is relatively cheap, (between R30 rience when they withdraw from this drug.
and R40 per straw), it is one of the most popu- Whoonga is also a mixture of dagga and
lar drugs used by the youth on the Cape Flats heroin, but also contains antiretroviral (ARV)
(Health24 2010). medication, which causes the severe stomach
Nyaope is unique to South Africa. It orig- cramps. This drug costs R20 for a twist of the
inated in 2006 in the Pretoria townships of powder, and the effect lasts a day. The users
Soshanguve, Atteridgeville and Mamelodi, will crush the ARV tablets and mix them with
and has spread to other provinces. In Durban dagga, heroin and rat poison, which is then
it is known as “sugars”, in the Western Cape smoked. It has been reported that whoonga
as “ungah”, in Mpumalanga as “pinch” and addicts will wait for patients at clinics and rob
in Johannesburg as “kataza”. As with tik, this them of their ARV medication, steal it from
drug is also cheap, and sells between R35 and clinics and even attempt to contract the HIV
R40 per straw. It is also sold in plastic bank virus so that they can get it free (Cullinan 2011;
money bags for anything between R20-R25 McCloy 2011).
per bag, and users can roll two “zols” from Krokodil first appeared in Russia in 2002
one money bag of drugs. Nyaope is a mix and is now widely used in South Africa. The
of dagga and heroin, but is also sometimes medical name for the drug is desomorphine
mixed with bicarbonate of soda, pool cleaner, (opiate) and the substances in this drug
Vim (a household cleaner) and even rat poi- include crushed codeine tablets mixed with
son (Health24 2014; McCloy 2011). The drug paint thinner, iodine, petrol, red phosphorous
is usually rolled in a Rizla cigarette paper and and hydrochloric acid. The liquid is injected
smoked like a “zol”. The Mamelodi branch of into a vein, and users of this drug say that it
the South African National Council on Alco- has the same effects as heroin but at a much
62 (oxainer)
cheaper price — about a tenth of that of heroin. e Around 25% indicated that they had inhaled
If the addict misses a vein and the drug is glue, petrol or thinners fumes; 27% had
injected into flesh, abscesses may develop swallowed, eaten or taken Mandrax, ecsta-
and eventually gangrene may set in. Other sy, LSD and other hard-core drugs; while
side effects are ruptured blood vessels, burn- 22% had smoked crack, cocaine or Man-
ing or swelling of the veins, rotten teeth falling drax.
out, brain damage as well as liver and kidney
damage. This drug is named after the crocodile A study by Matthews (2004: iii) conducted
because of the green, scaly and bumpy appear- among post-sentenced juveniles under the age
ance an addict’s skin takes on after repeat of 21 found that dagga and Mandrax consump-
injections (Health24 2015; Krokodil n.d.; Kro- tion was most popular among youths aged
kodil (Desomorphine) turns people into “zom- between 15 and 16. The use of softer drugs
bies”, 2015). usually creates a gateway to the use of hard
An emerging trend among young school- drugs. According to Bartollas (2003: 326), this
children involved in sport is the use of perfor- process may be considered a continuum that
mance-enhancing substances (PES). In a study begins with experimental use, proceeds to
involving 100 young male athletes between the culturally endorsed use, and goes on to recre-
ages of 15 and 18 years in lst and 2nd team ational use, eventually becoming compulsive
high-school sport in Gauteng, 30 indicated that use when the user becomes dysfunctional and
they use PES regularly, 4% use steroids, 5% his or her life revolves around obtaining, main-
use growth hormone, 4% use ephedrine and taining and using a supply of drugs.
2% use insulin to enhance performance. It is This raises the following question: what can
suggested that schools implement educational be done to reduce drug use among youths?
and behaviour change programmes to reduce A South African initiative known as the “Ke
the use of these substances in school sport Moja — No thanks, I’m fine” drug awareness
(Department of Basic Education 2013: 5, 7). In campaign was launched on 26 June 2002 in
addition, the pressure from parents, teachers Gauteng. The aim of this campaign was two-
and coaches on young children to perform fold:
should also be considered as a factor in the
use of performance-enhancing substances. ¢ Reduction of drug abuse and trafficking
Drugs can be obtained anywhere in South ¢ Curbing the spread of HIV/AIDS through
Africa. They are portable and easily concealed, needle sharing (Koch 2002: 53)
and can be delivered to a person's home, thus
drug-using children do not even have to go out As a result of the success of the Ke Moja
to obtain them. Schools are commonly used as campaign, the Ke Moja Hip Hop Anti-Drug
supply points (Daniels 2007). campaign was launched in 2008. This is an
The first comprehensive survey of youth extension of the original campaign but also
drug use in South Africa was conducted by the incorporates gymnastics, dance and fitness in
staff of the University of South Africa’s Depart- addressing substance abuse. This campaign
ment of Criminology during August 2000. The also provides ex-users with the opportunity to
project included 2 281 learners from grades 7, tell their stories of addiction and subsequent
10 and 11 in the Pretoria school district. More criminal behaviour and to ask forgiveness from
than a third of the research participants (34%) the community (Swanson-Jacobs 2008).
were 15-16 years old. The following are some There are several other NGOs and police
of the findings (Neser et al. 2001: 131-133): anti-drug-use campaigns such as the Anti-Sub-
stance Abuse Social Movement, the National
¢ More than 33% of the respondents indicated
Youth Development Agency (NYDA) anti-drug
that they could buy dagga within an hour.
awareness campaign and SANCA (SA Nation-
e About 25% said they could obtain LSD, al Council on Alcoholism and Drug Depen-
ecstasy, cocaine or heroin within one day. dence). Students from universities or other
e About 33% admitted to having smoked tertiary institutions may consider undertaking
dagga (24% of them were under the age of community projects that focus on the pre-
12). vention of drug abuse, a social ill which is of
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Publishers 63
grave concern in South Africa with intensified norms, and becomes a subculture. Stable and
efforts needed to address it. More and more settled populations feed this phenomenon,
drug and alcohol recovery centres have been and Leggett found that among the coloured
established in South Africa because of the high community on the Cape Flats, long-term res-
rate of dependency among young people and idence may lead local youth to identify with
adults. Examples of such centres are View- “turf” (the local area). Gangs usually want to
point Recovery Centre, Crossroads Recovery dominate their turf and because they are con-
Centre, Tranquility House and Stabilis Treat- fined to the area, members may pick on local
ment Center. victims. However, the face-to-face familiarity of
stable neighbourhoods can deter gangs from
selecting immediate locals as victims, with the
3.2.6 Other categories of youth result that the broader community becomes
offences fragmented into factions, groups or gangs.
These include gangsterism, hate crimes, youth Each group is usually protective of its turf or
domain and aggressive towards anyone who
homicide and train surfing.
wants to enter it.
There are various risk factors that increase
3.2.6.1 Gangsterism youths’ likelihood of joining a gang (Cooper &
Ward 2012: 244):
The forming of groups by juveniles is a natu-
ral phenomenon that generally has a positive e The use or selling of drugs
effect on their socialisation. Although it is pos- e Aggressive behaviour
sible that juveniles who associate within a nor- e Attention and learning problems
mal group context could easily be influenced to e Antisocial belief system
become involved in misbehaviour as a result of e The struggle to resist peer pressure toward
their being together and the influence exerted antisocial and criminal behaviour
by the group, this misbehaviour is usually of e Violent parents or criminal siblings
a less serious nature, and frequently regarded ¢ Poor attachment to parents and the school
as mischief or naughtiness. However, group
e A need for independence and a sense of
formation (also known as play groups) may in
belonging
some instances be the forerunner of antisocial
group formation that eventually leads to the
Although most gang members are male, female
formation of a criminal juvenile gang (Bezuid-
gangs are under-researched both in South
enhout 2002:1). Schools are often chosen
Africa and internationally. However, limited
as sites for gang activity, particularly in the
South African research indicates that girls and
Western Cape, and males starting high school
young women are involved with gangs and male
are often primary targets for gang recruiting.
gang members, and may also be gang members
Gangs are disruptive in schools for three rea-
themselves. Women in gangs fall into three tra-
sons: gang members conduct their business
ditional roles (Cooper & Ward 2012: 247):
on school property; members demand pay-
ment from non-gang members in exchange for e Victims of coercion by male gang members
safety from gang violence; and they may force e Girlfriends who enjoy the status provided
schools to close with threats or acts of vandal- by their gang-member boyfriend
ism and violence against staff and/or learners ¢ Men’s property
(Gevers & Flisher 2012: 179-180).
According to Leggett (2004: 24), when They are aged anywhere from 12-20 years
youths in urban areas spend a lot of time on old and form groups such as the Vura Babes
the street, the group becomes a kind of surro- or the Vato Babes. They are directly linked to
gate family, but with a different set of norms. the male gangs, and play the role of girlfriend
When the norms of the street become more snitches or hiding contraband and weapons
important than those of the home, the setting for the gangs. As soon as these girls belong
for gang formation arises. The street group to a certain gang, they become part of its ter-
is seen as an alternative group with specific ritory. Rival gangs may attack them to take
c+ ORES)
revenge. In most cases, the girls are vulnerable the group they want to victimise congregate.
if the male gang members are not around to It has been suggested that in many thrill-
protect them (Sefali 2014). seeking groups the leader is the only one who
really harbours hatred towards the victim.
Many youths who participate in this type of
3.2.6.2 Hate crimes hate crime would not engage in such acts on
In South Africa, hate or bias crimes are their own, but are manipulated and encour-
described in the Prevention and Combating of aged or goaded by the leader. Since the
Hate Crimes and Hate Speech Bill (2016: 6) as responsibility for criminal acts is shared by
an offence by a person that is motivated on the the group, an individual may take risks that
basis of that person’s prejudice, bias or intoler- he or she would otherwise find unacceptable.
ance towards a victim because of one or more The randomness of thrill-seeking hate crimes
of the following characteristics or perceived makes it difficult for the police to appre-
characteristics of the victim: race, gender, hend the perpetrators, and therefore many
sex (including intersex), ethnic or social ori- go unpunished (Hall 2005: 84; Gerstenfeld
gin, colour, sexual orientation, religion, belief, 2011: 88; Levin & McDevitt 1993: 66).
culture, language, birth, disability, HIV status, According to Levin and McDevitt (1993: 70),
nationality, gender identity, albinism as well the leading researchers on hate crimes, homo-
as occupation or trade. Hate crimes can be sexuals are the most frequent targets for
divided into two major types, namely crimes thrill-seeking young men. There are several rea-
against property (e.g. robbery, burglary, arson, sons for this. Firstly, homosexuals meet in spe-
vandalism, etc.) and crimes against the person cific areas of major cities, making them easy to
(e.g. murder, assault, rape, intimidation, etc.) find. Secondly, homosexuals may threaten the
(Bartol & Bartol 2011: 17). male youths’ developing sexual identity, hence
Corrective rape, a phenomenon that has these youths may attack them to prove their
received attention in South Africa since 2000, manhood and sexuality. Finally, homosexuals
can be considered a hate crime. This is defined may be reluctant to report hate crimes to the
as the “act of non-consensual sex, directed police because they fear that their sexual ori-
towards lesbian women and gay men by per- entation will be disclosed or that they will be
sons of the opposite sex with the aim of either discriminated against by members of the crim-
punishing them or ‘correcting’ their sexual ori- inal justice system. Young “gay bashers” often
entation” (Kinama 2011). In South Africa, black have no criminal record and come from differ-
lesbian women are most at risk of becoming ent lifestyles, backgrounds and social classes.
victims of this crime. If the above Bill is pro-
mulgated then corrective rape will be classi- Reactive (defensive) hate crimes
fied as a hate crime, which currently is not a
distinct crime category. The second type of hate crime was previ-
Levin and McDevitt (1993) originally identi- ously known as reactive crime, but has been
fied three categories of hate crime: thrill-seek- renamed defensive crime. Whereas _ thrill-
ing, reactive and mission hate crimes. In 2002 seeking youths leave their areas to seek out
this was updated to include a fourth catego- victims, the perpetrators of reactive hate
ry, namely retaliatory hate crimes (Phillips crimes do not have to leave their neighbour-
2009: 886). hood, school or workplace as the victimisation
takes place in a local area, thus the offenders
feel that their neighbourhood is being invaded
Thrill-seeking hate crimes
by intruders or outsiders. The perpetrators
Thrill-seeking hate crimes are typically per- are not necessarily associated with any organ-
petrated by groups of youths or young adults ised hate group and they may not have any
who, in return, gain the approval of their prior criminal record. The main aim of reac-
friends and are labelled as “cool”. Such crimes tive hate crimes is to send a message to the
are also committed to alleviate boredom and intended victims and if there is no reaction to
to seek excitement. The perpetrators delib- this warning, violence will be used to achieve a
erately seek out areas where the members of goal, for example to keep people of colour out
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SECTION A YOUTH MISBEHAVIOUR: ITS NATURE, EXTENT, RELATEO RISK FACTORS AND EXPLANATIONS
of a certain neighbourhood or prevent their involvement of youths in homicide and,

getting a promotion. The offenders of defen- according to Fox and Levin (2001: 75), the
sive hate crimes do not have a criminal history crack cocaine drug market is one. Since the
and there is no record of their being involved demand for crack cocaine is so overwhelming,
in previous hate-related crimes (Hall 2005: 84; distributors have to recruit youth street mer-
Gerstenfeld 2011: 89-90; Levin & McDevitt chants, who are generally willing to take the
1993: 75-77). risks involved in dealing for some easy money
and free drugs. There is also the perception
Mission hate crimes that if caught and arrested by the police, the
court officials may treat them more leniently.
This is the rarest of hate crimes and consists Because of the violence associated with the
of an act carried out by an individual on a mis- drug market, young dealers often carry fire-
sion, namely to “rid the world of evil” by dis- arms, which offer protection from buyers as
posing of the members of the target group. The well as from other dealers.
perpetrator is often psychotic, meaning that he
Another explanation for youth homicide is
or she suffers from a severe mental illness that
the role of group dynamics. It has been stated
may cause hallucinations and an impaired abil-
that youths are more likely to commit homi-
ity to reason. In this delusional state, the per-
cide with the help of accomplices or gang
petrator may think that the world is conspiring
members, probably due to peer pressure and
against him or her and that he or she must
encouragement from group members. Without
seek revenge. The mission is often suicidal
this support and help they would avoid such
in that after the perpetrator has eliminated the
behaviour (Fox & Levin 2001: 77-78).
source of frustration he or she commits sui-
cide (Hall 2005; Gerstenfeld 2011: 90). Probably the main explanation for youth
homicide is the availability of firearms. This,
together with poverty, substance abuse, family
Retaliatory hate crimes pathology and the impulsiveness of youths,
This type of hate crime is sparked by “a desire contributes to firearms being used for crime,
to avenge a perceived degradation or assault for settling arguments, for protecting oneself
on their group” (Phillips 2009: 887). There is a against bullies and in gang warfare. Accord-
tendency that the offender will act alone and ingly, firearm violence occurs most frequently
will travel to the victim’s territory in order between the ages of 15 and 24, but decreases
to retaliate against a perceived crime that between the ages of 21 and 24 (Gun Free South
he believe the victim or the victim's social Africa 2007).
group has committed (Chakraborti & Garland In general, South African youths have
2015: 104; Phillips 2009: 887-888). The offend- become desensitised and are increasingly
er(s) will therefore act in response to a hate becoming involved in brutal fights and homi-
crime against themselves or an individual in cides. A very high percentage of youths are
the group to which the offender belongs. Retal- desperate to find work and an income after
iatory hate crimes are committed after infor- leaving school. The lack of opportunities for
mation or rumours, whether they are accu- schooled and non-schooled youths acts as a
rate or not, are circulated about a hate crime catalyst for them to embark on a journey of
against the offender’s group. brutality that usually ends in homicide or the
severe assault of a victim. The following fac-
tors are deemed key in causing the high homi-
3.2.6.3 Youth homicide
cide rates among youths:
In South Africa, homicide is the leading cause
e The great availability of guns
of death among male youths between the ages
of 15 and 21. However, youths are not only the e The illegal drug market
main victims of homicide, and are frequently e Increasing racial discrimination
also the perpetrators (Gun Free South Africa ¢ Great exposure to violence
2007). e Increasing economic inequality (Brown,
There are several explanations for the Esbensen & Geis 2007: 457-458)
66 (Onbitnens
The above factors are interrelated and have by clinging to the hand rails and doors; the
a cumulative impact in a country with a high matrix, which is performed on the roof of the
homicide rate like South Africa. moving train and involves bending backwards
Some of the emerging trends in youth to avoid deadly overhead electric cables; the
crimes in South Africa are train surfing and the gravel, which entails holding onto a handrail
so-called izikhothane practice, which are dis- and jumping out of the train with their feet
cussed below. touching the gravel next to the track, which
bounces them back into the train or allows
them to slide alongside it; and the tsho dlozi,
3.2.6.4 Train surfing which is swinging outside a moving train with
Train surfing, “staff riding” or “spiderman” is the doors closed and holding on to the train’s
a popular adrenaline-boosting practice among roof edge. Their main aim is to show off to
teenagers worldwide. Train surfing was made their peers or to a supporting audience of girls.
popular in the 1980s in Germany where it is The best surfers are seen as heroes and are
known as S-Bahn surfing. It is also practised usually encouraged by screaming girls who
in other countries such as the UK, Denmark, act as cheerleaders. In some cases, alcohol is
Brazil, Russia and Australia. It is known as tube consumed as part of the preparation for train
surfing in the UK as the youths usually surf surfing. Although the youths see it as a chal-
trains in the underground rail tunnels (Car- lenging sport, the danger cannot be empha-
rington 2014; Damane 2015). sised enough. Many youths have been killed or
Train surfing is an illegal activity that maimed during a surfing event (Bezuidenhout
involves getting on to the roof of a moving 2007; Carrington 2014; Damane 2015).
train and riding on it like a surfer would ride According to Mbongwa (2006: 5), “teenagers
a surfboard in the sea, avoiding contact with have been doing it for years, but despite the
3 000-volt overhead cables. Train surfers in obvious dangers, train-surfing remains a popu-
South Africa are usually young black township lar dare”. Although children are being electro-
males between the ages of 15 and 25 years, cuted and killed, maimed and deformed by the
they are unemployed and come from traumat- injuries they sustain (e.g. their legs or arms are
ic family situations where many have lost one ripped off), the “sport” is gaining popularity
or both parents to AIDS or drugs. The town- (Damane 2015).
ship slang used to describe some of the train The following case study highlights the
surfers’ moves are bhegos, which is a back- problem of train surfing in South Africa and
wards-running move; isipharaphara, where gives one a look into the world of a typical
the surfers hop in and out of a moving train train surfer.
Train surfing thrills bored youngsters

Tshepiso Ntohla,.aka Mzembe, is 18 years old — and he loves surfing the Soweto trains. He knows
it's dangerous but the thrill keeps drawing him back to perform perilous stunts on moving trains to
the cheers of his peers. Sporting a fancy cap and occasionally sipping a beer, Ntohla says he began
surfing trains, or ukudlala istaff, when he was very young. He started with the most common surfing
stunt, which involves jumping offa moving train and jumping back on board again. “No-one taught
me to surf. | just observed what some of the bigger boys were doing and copied. But | started serious
surfing in 2000 when | began doing daring stunts,” he says, throwing a pompous glance at his fellow
practitioners, 24-year-old Nkosinami Mazibuko and Zanele Masinda.
There are different ways of surfing the train besides jumping on and off, says Ntohla. The most
dangerous is hanging precariously from the bottom of a moving train with the steel wheels and the
rails only a few centimetres away. Another suicidal stunt involves climbing on to the roofs of coaches
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and dodging high-voltage cables, pylons and bridges. “I love doing the viva la raza, standing on
top and shaking my shoulders like Eddie Guerrero, the wrestler, and watching cables and pylons zip
past my face at a break-neck speed,” he boasts. But it’s a dangerous past-time and several young-
sters have died while train surfing. Ntohla replies: “Yes, it is dangerous, and sometimes | have felt a
choking fear grip me, especially when | am surfing under the train. But there is no space for fear in
this game and one has to shrug the feeling off.”
A scar runs from Ntohla’s right eye to the centre of his forehead, telling the tale of an accident
some months back when he was surfing a train from Naledi to Johannesburg. He displays it with
pride, saying the incident did not dent his passion. “I do it for my pride, for the girls and for fun.
Sometimes girls cheer us on and tell us they will come and eat salads at our funerals. But | am not
scared of death ... A few months back during the security guards’ strike, a boy living three houses
away died surfing a train. He was young and inexperienced. His name was Lwazi but his death has
not deterred us even a little bit.” At Lwazi's funeral, his fellow surfers performed stunts on top of the
buses carrying mourners to Avalon Cemetery in Soweto as a farewell gesture.
The surfers’ favourite train is Number 9323. “Itis convenient to surf this train because it is always
moving fast with very few delays and it is always packed,” says Ntohla, who adds that the past-
time originated in Mzimhlophe, a township in Soweto. And the “stars” have given themselves fancy
nicknames, like Bitch Nigga, Bin Laden, Mrider and Sisqo. There are also two kinds of surfers, the
“cheeseboys” and the “mvonqas”. “The cheeseboys surf for fun while the mvonqas surf to get away
from the guards after stealing bags or cellphones from commuters. | am a cheeseboy,” Ntohla says
smugly. Sometimes surfers are caught by the security guards, who beat them up. “Sometimes they
make us do gym exercises.” During the recent security guards’ strike, three young men died and
many more were injured. Trains were left unguarded and surfers grabbed the opportunity to up
their game. Dimi Raphoto from Cinga Productions also saw an opportunity and produced a docu-
mentary about the lives of these daredevils.
Using a small camera, she captured some outstanding images of these teenagers dicing with
death for the SABC3 television actuality programme, Special Assignment. [They] called [that episode]
Soweto Surfing. “This is a new phenomenon that is growing by the day in Johannesburg,” Raphoto
says. “It’s dangerous, senseless and is killing many kids.” It took her two months to do the research
necessary for her documentary, and a further two months to film the youngsters performing their
stunts. “We interviewed the boys, their parents, principals, girlfriends and relatives. But what struck
me was their background. They don’t have swimming pools in their homes, they don’t have any
places of entertainment and this is their way of entertaining themselves.” Lwazi died during the film-
ing of the documentary and Raphoto says this should have been the turning point for the teenage
surfers. “But Lwazi's death seemed to spur them on.” Ntohla stars in the documentary and says
one day he is going to stop his dangerous hobby. “But not in the near future,” he adds, fingering the
scar on his face.
Source: Dlamini (2006)
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_CHAPTER3 THE NATURE AND EXTENT OF CHILD AND YOUTH MISBEHAVIOUR IN SOUTH AFRICA
3.2.6.5 Izikhothane (the lickers) can Reserve Bank Act 90 of 1989 (Bambalele,
2012). One can also argue that in order to
The izikhothane is a youth subculture in con-
maintain this lifestyle, some of the youth may
temporary South Africa, the practice of which
commit crime to obtain money to buy brand-
is to burn money, destroy expensive clothing
ed clothing and expensive liquor. It is not
and shoes, and pour bottles of expensive alco-
uncommon for some to shoplift in an effort
hol on the ground. This subculture gained
to obtain expensive clothes and items for the
notoriety in 2012, and emerged in the town-
next izikhothane assembly. According to Mnisi
ships of Soweto and Diepsloot in Johannes-
(2015: 344-345), the izikhothane have aspi-
burg and spread to other townships in Gauteng
rations of a better life - they want to escape
and the Eastern Cape. The term izikhothane is
poverty and conditions of deprivation, and
derived from an IsiZulu word and translates
ultimately want to be successful. These aspi-
to “those who lick”, “licking the snake” or “to
rations are apparent in the branded clothing
lick each other”. It refers either to the licking
and shoes, vehicles and food they consider
of the fingers to peel through money or being
to have high social status. For example, in a
drenched in Ultra Mel, a brand of custard
survey those that took part in the study voted
considered a luxurious dessert in black town-
ships. The izikhothane are black middle-class luxury vehicles such as BMW, Mercedes Benz
youth between the ages of 12 and 25 years and Audi as the best vehicles to own. Regard-
who are known for wearing wildly coloured ing clothing and shoes, the izikhothane prefer
branded clothes and engaging in “pantsula” brand names such a Nike, Adidas, Versace,
(dance) battles. During these battles the youth Guess, Louis Vuitton and Carvela. Accord-
go through extreme measures to show who ing to the youth, Carvela shoes are the most
is the wealthiest and it is not uncommon for highly prized in any battle and the first to be
them to break their mobile phones in public. destroyed, usually by burning them or drink-
The more expensive the phone, the more they ing alcohol out of them. For them the best
are respected by their peers. Others destroy fast-food places are McDonald’s, KFC and Deb-
their clothes by burning or tearing them, and onair’s, and they voted Ultra Mel as the best
waste food by throwing it at each other or on dairy product. The izikhothane claim that the
the ground. These battles between different wearing of expensive clothes and eating or
crews (groups) usually take place on a Friday destroying expensive food makes them feel
or Saturday in public spaces. To become part rich and gives them the appearance of being
of a crew the youth must purchase, wear and wealthy. According to them, this reflects a
destroy expensive clothes. The member of the person who is worthy of attention and respect
crew that destroys the most expensive item (Howell & Vincent 2014: 67; Mnisi 2015: 349).
of clothing is declared the winner, and the If we have to explain this phenomenon
individual as well as the crew earns respect. in criminology terms, it would be fitting to
Achieving respect is important for these young describe it in terms of reaction formation. This
men, who may lack access to tertiary educa- is a type of defence mechanism in which a per-
tion, social services and living in communities son acts in exactly the opposite manner to his
that experience violence on a daily basis. For or her own troubling or socially unacceptable
them “respect becomes power and wealth in thoughts, emotions and often social strug-
the face of powerlessness and poverty”. There gles. The mechanism time and again develops
are a number of other reasons for the battles unconsciously and appears extravagant, per-
to occur, such as to impress girls, to claim a haps in an effort to overcompensate for poor
certain territory or simply to have fun (How- living standards, search for recognition and
ell & Vincent 2014: 60, 65, 72; France24 2013; repress the repulsion they have about their
Mchunu, 2016: 5-6; Mnisi, 2015: 341). own thoughts. They therefore do exactly the
Although the izikhothane claim to be non- opposite of what they crave. By using reaction
violent and deny that they are participating formation, their self-identity, true motives and
in any illegal activity, the burning of money desires remains safe and sound namely to be
in public or private is a criminal offence affluent, successful and recognised, and to live
according to section 34(F) of the South Afri- in a sought-after neighbourhood.
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SECTION A YOUTH MISBEHAVIOUR: ITS NATURE, EXTENT, RELATED
RISK FACTORS AND EXPLANATIONS
3.2.7 The chronic juvenile offender escaped. Then he raped another woman and
mugged a man.
Since the 1970s, researchers have been con-
At the age of 15, he raped an 18-year-old
cerned with what they term the chronic juve-
woman and tried to sodomise a man he had
nile offender. This refers to a small number
robbed at an automatic teller machine. He was
of youth offenders who commit a significant
arrested and sent to await trial in Pollsmoor
percentage of all serious crimes, with many
Prison. On 8 May 1995, all awaiting-trial pris-
growing up to become chronic adult criminals.
oners under 18 years of age were transferred
It has been postulated that chronic offenders
to so-called places of safety and again Shaheed
begin their career at an early age (i.e. under 10
escaped and raped a 17-year-old virgin. In June
years old, referred to as “early onset”), have
1995, the then 16-year-old Shaheed was arrest-
serious and frequent clashes with the law, and
ed again and appeared in the Wynberg Region-
are excessively violent and destructive (Bar-
al Court. On 7 May 1996 the magistrate found
tollas & Schmalleger 2011: 48; Siegel & Welsh
him guilty of rape, robbery and attempted sod-
2011: 46).
One of the most surprising aspects is the omy, and he was sentenced to 30 years in pris-
on (Farrell 1997: 11).
indication that chronic juvenile misbehaviour
can be predicted. According to Blumstein From this case study it is clear that Shaheed
(cited in Bartollas & Schmalleger 2011: 49), may be considered a chronic juvenile offender
seven factors distinguish chronic offenders since he started his criminal career at an early
from other offenders: age (13 years), he had regular run-ins with the
law (he was arrested for three known crimes),
¢ They will be convicted of a crime before the and his offences can be classed as violent and
age of 13 years. destructive (they include rape, sodomy, culpa-
¢ They come from a family with a low income. ble homicide and robbery). Please note that
e They are rated as troublesome by teachers only a small percentage of juveniles become
from the age of 8-10 years. serious repetitive chronic offenders. In addi-
e¢ They show poor public school performance tion, they tend to be involved in a wide variety
by the age of 10 years. of offences and do not specialise in one type of
¢ They have a low non-verbal IQ. crime. Incorrigible behaviour often commences
at a young age and the more serious the
¢ They have a convicted sibling.
behaviour, the earlier in the chronic offend-
¢ They show psychomotor clumsiness (i.e. er’s life this pattern appears. Bartol and Bartol
below-average problem-solving skills). (2017: 170) warn in this regard that long-term
incarceration of serious chronic young offend-
It has been suggested that there is an 80% ers is not always the answer to rehabilitating
chance of chronic juvenile offenders growing them. Some scholars even believe that adoles-
up to become chronic adult criminals, and a cents who have committed serious offences
50% chance of such offenders being arrest- are not necessarily on a pathway to become
ed four or more times as adults. Juveniles serious chronic adult offenders. Young chronic
who begin their criminal career with serious offenders can benefit from intensive interven-
offences, or who quickly increase the severi-
tion in society rather than long prison sentenc-
ty of their offences, are most likely to become es. The suggestion is to use short-term incar-
adult criminals. Severity rather than the fre-
ceration with intensive sustainable interven-
quency of offending has the greatest impact on
tion during and after incarceration -— in cases
the likelihood of later adult criminality (Siegel that warrant incarceration.
& Welsh 2011: 47).
A South African example of a chronic juve-
nile offender is that of Shaheed (not his real 3.3 THE EXTENT OF CHILD AND
name). At the age of 13 he raped a 16-year-old YOUTH MISBEHAVIOUR IN
girl near his home on the Cape Flats. Within
a few weeks, he killed a person and was con-
SOUTH AFRICA
victed of culpable homicide. For this crime he To determine the extent of criminal behaviour
was sent to a reform school, from which he in South Africa, two sources can be used: official
70 OS
and unofficial crime information sources. treated as an adult (Child Justice Act 2008). (in
The official statistics are those compiled by addition, see chapters 11 and 12.).
the SAPS, the Department of Justice and the The Child Justice Act 75 of 2008 clearly stip-
Department of Correctional Services. Informa- ulates that no child under the age of 14 may be
tion from the different categories of official sta- detained as an awaiting-trial inmate in a correc-
tistics is then collected and recorded by Stats- tional centre. Children between 10 and 14 years
SA, which is a government department. Unoffi- of age should be detained at a child or youth
cial sources refer to victim surveys and self-re- care centre. Only children who have commit-
ported studies (Balgobind Singh 2011: 95-96). ted Schedule 3 offences (such as rape, murder,
armed robbery, theft of a motor vehicle, sex-
ual assault and dealing in drugs) can be con-
3.3.1 Official crime information sidered for detention in a prison. Schedule 1
sources and 2 child offenders can therefore not be
The SAPS is the first of the four official crime incarcerated unless the presiding officer finds
information sources. Statistics from this “substantial and compelling reasons, including
source indicate how many crimes are reported, serious previous convictions against the child”
how many persons are arrested and how many (Ballard 2011: 1). The total number of children
are charged with a crime. A separate official (younger than the age of 18 years) sentenced
tally is not kept of juvenile offences. to imprisonment during the period 2015-2016
The Department of Justice and Constitu- was 187 (183 male; three female) (Department
tional Development provides information on of Correctional Services, 2015/2016: 32).
how many persons are prosecuted in court, The statistics from the Department of Cor-
how many are found guilty or not guilty, as rectional Services (DCS) consist of the number
well as the number sentenced to imprison- of persons sentenced to imprisonment (Balgo-
ment. All cases involving child offenders will bind Singh 2011: 109). It is important to note
be dealt with in the child justice court, which that the DCS classifies young persons accord-
is at lower-court (district) level. The Child ing to three age categories, namely children
Justice Act 75 of 2008 proposes that the court- (<18 years), juveniles (18-21 years) and youth
room should, where possible, be located and
(22-24 years). The DCS incarcerated 4 126
designed in a way that is conducive to the dig- juveniles (4023 male; 103 female) between
nity and wellbeing of children, the informality 2015 and 2016 (Department of Correctional
of the proceedings, and the participation of all Services 2016: 32). According to the annual
persons involved in the proceedings.
report of the Judicial Inspectorate for Correc-
Before a child can be found guilty by a child tional Services (JICS) (2014/2015: 48), 24 656
juvenile court, the age of criminal responsi- youth were incarcerated during 2014-2015, of
bility has to be determined. According to the which 819 (3%) were serving a life sentence.
law, a child under the age of 10 is presumed The DCS has established separate facilities for
to lack criminal capacity and therefore can- youths incarcerated in order to enhance their
not be prosecuted, thus in South Africa no education, rehabilitate them and help them
child under the age of 10 can serve a term of develop into law-abiding citizens. Some of the
youth correctional centres per region are as
imprisonment, but this is not to say that chil-
dren of this age do not commit illegal acts. In follows (Department of Correctional Services
this regard, one needs to consider criminal n.d.):
capacity and should distinguish it from crim- e Western Cape: Drakenstein
inal responsibility. Children older than 10 but e KwaZulu Natal: Durban
below the age of 14 years are also presumed to
e¢ Free State and the Northern Cape: Groen-
lack criminal capacity. This, however, can be
punt
rebutted if it can be established that the child
can distinguish between right and wrong. Chil- e Mpumalanga, Limpopo and North West:
dren above 14 but under the age of 18 years Rustenburg
are presumed to have criminal capacity. After e¢ Gauteng: Emthonjeni, Boksburg, Leeuwkop
a person turns 18 years of age, he or she is and Johannesburg
Opnpistes! 74
StatsSA is a government department that col- cies. Although victim surveys cannot replace
lects and records all the different categories police statistics, the results can be used to
of official statistics in South Africa. From these develop policies and crime prevention strat-
it is clear that South Africa is experiencing egies (StatsSA 2011). For a full review of the
unprecedented levels of arrest and conviction report, see the following website: http://www.
among children and youths. Even more disturb- statssa.gov.za
ing is the large number of children and youths In contrast, self-reported studies on, say,
who are locked up in police and prison cells youth misbehaviour draw a sample from a spe-
awaiting trial. Here they are exposed to over- cific community, for example all persons under
crowding, robbery, indecent assault, prison the age of 18. The respondents have to com-
gang violence and corruption. The conditions plete an anonymous questionnaire to indicate
in the prisons for convicted offenders are no whether they have ever committed a crime
better and, where possible, children and juve- and what type of crime it was. Both victim sur-
niles should be diverted from the criminal jus- veys and self-reported studies are important,
tice system. since they cast light on the so-called dark fig-
ures of crime (Balgobind Singh 2011: 91).
The number of crimes reported to the
3.3.2 Unofficial crime information police does not always reflect the true extent
sources of the crime problem. Generally, the dark fig-
In describing, analysing and explaining crime, ure - in other words, the number of crimes
criminologists sometimes have to depend on unknown to the police - is considered to
the unofficial sources of crime statistics, hence be high. A substantial percentage of people
they consult self-reported studies, victim sur- accused of perpetrating crime escape possible
veys, biographies and observation studies. conviction at each phase of the criminal justice
Two of these unofficial sources, namely vic- system. It is also true that a considerable num-
tim surveys and self-reported studies, will be ber of alleged offenders are never detected -
discussed briefly. The information obtained the so-called secret deviants. The inability to
from unreported crimes is also important detect offenders contributes to the high dark
since official sources do not always reflect the figure of the true crime rates. It is becoming
full extent of crimes committed. Victim sur- more and more evident that a large number
veys are designed to include members of soci- of crimes go unreported and the perpetrators
ety who have indicated that they have been are thus never tried. This phenomenon is also
victims of crime. An example is the Victims of known as the criminal justice funnel, the attri-
Crime Survey (VOCS) 2015/2016, which was a tion rate of crime or the sieve effect (Bezuiden-
countrywide household survey conducted by hout 2006: 62-63).
StatsSA with three objectives:
¢ To gain household and victims’ perspective 3.4 CONCLUSION
of the nature and extent of crime in South
In conclusion, it must be stated that statistics
Africa
are not necessarily an accurate reflection of
¢ To provide additional data on the level of the true crime situation in South Africa. Fur-
crime in South Africa thermore, the involvement of youth offenders
¢ To ascertain perceptions of the effective- in crime is not always computed clearly and
ness of the SAPS, prosecutors, courts and separately from adult offenders, and therefore
correctional services in the prevention of a correct estimate of their involvement cannot
crime and victimisation be made. However, in this chapter we have
attempted to highlight the nature and extent
Some of the key findings from the VOCS of youth crime in South Africa. It is clear from
focused on issues pertaining to public per- this chapter that youths commit the same
ceptions about crime and safety, views about crimes as adults, but that they are also in the
criminals, crime levels in South Africa as well difficult position of having certain of their
as perceptions about crime prevention and actions deemed criminal which, if perpetrated
response to crime by law-enforcement agen- by an adult, would not be so, namely status
7 2 oven Schaik
offences. Furthermore, youths are always look- time and thus involve themselves in illegal
ing for exciting new ways to spend their leisure behaviour such as train surfing and drug use.
CRITICAL QUESTIONS
1. Discuss critically whether you think status offences should be regarded as illegal behaviour in South
Africa.
. Discuss the youth sex offender.
NH
. Explain the nature of sibling abuse.

Ww
. Critically discuss bullying in schools.

&
. Define cyber bullying, and distinguish between the sexual and aggressive acts perpetrated via electronic
ow
devices.
6 . Provide a brief overview of the types of drugs youths are likely to use.
4
. Distinguish between the types of hate crime.
8. Discuss youth homicide in South Africa.
9 . Critically discuss the train-surfing and izikhothane phenomena in South Africa.
0 . Discuss the chronic juvenile offender.
11. Distinguish between official and unofficial crime information sources.
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©publishers 79
OBJECTIVES KEYWORDS
* define the concept “risk factor” biosocial factors
+ differentiate between “causes of crime” and “risk factors” community (macro-level) variables
* distinguish between the different types of risk crime risk factors
* give an overview of the risk factors in the community, drug use and abuse
family, school and personality of the youth that promote economic deprivation
criminal behaviour family variables
* describe gang membership asa risk factor for youth gang membership
offenders genetic factors
* give an overview of risk factors applicable to the South Afri- psychological factors
can situation. risk factors
school variables
4.1 INTRODUCTION nities, but the opposite is equally true. People

who succeed against all odds and capitalise
Social life can be reflected in two dimensions. on whatever life offers them are usually those
On a personal (idiographic) level, the quality who make as much of their lives as possible.
of human life involves life chances and life On a collective (nomothetic) level, the quality
results - in other words, opportunities and of societal life refers to the happiness of its
outcomes. Paradoxically, people often make citizens, which includes how well society func-
much of their lives in spite of poor opportu- tions and maintains itself.
Cntins)81
In this chapter, the circumstances that environment that are associated with criminal
place young people at risk of becoming offend- activity. The link between the factor and the
ers, or which exclude them from mainstream activity may be causal or merely statistical, but
society, are discussed. The social risk factors the presence of the factor is associated with a
with the variables of community/neighbour- heightened risk of misbehaviour (Andrews et
hood; parental, school and extrafamilial rela- al. 1990:59). Svensson (2002: 395-411) uses
tionships; and individual risk factors related to the term “risk factors” when discussing fac-
personality/behaviour are discussed. An out- tors that indicate an increased risk of criminal
line of combinations of risk factors identified in behaviour, and he does not refer to “causes of
the literature and, finally, the risk factors appli- crime”. Risk factors are not necessarily causes.
cable to South African youth are given. Shaw and Tshiwula (2002:1) refer to
youths at risk as those children or young
people whose circumstances, lifestyle and/or
4.2 CAUSES OR RISK FACTORS behaviour put them at risk of offending in the
Causes of crime, from a criminological point future. “At risk” designates a situation that is
of view, does not mean that when X is present, not necessarily current, but that can be antic-
Y will occur in a complete prescribed way. It ipated in the absence of intervention. The
actually means that if X is present, the proba- youths have thus not been involved in crimi-
bility exists that Y will occur, but only if X is nal activities yet, but if nothing is done to try
present along with certain factors. Causation to redirect their lives and behaviour, there is a
refers to factors or phenomena that have to good possibility of this occurring in the future.
be present (i.e. necessary conditions) to pre-
cipitate crime. One can distinguish between
a necessary and a significant cause (Walsh 4.3 DEFINITION OF KEY CONCEPTS
2014: 13). A necessary cause refers to a factor 4.3.1 Risk factors
that must be present for criminal behaviour
to occur, and in the absence of which crimi- A risk factor is a variable that predicts a high
nal behaviour has never occurred. A signifi- probability of offending (Walsh 2014: 150). Risk
cant cause, on the other hand, is a factor that factors can therefore be regarded as those
is able to produce criminal behaviour without conditions that increase the likelihood that
being amplified by some other factor. a child or young person will develop one or
For example, no force can be directly more behavioural problems in adolescence.
observed coming from poverty, economic Different levels or categories of risk can be
inequality or deviant friends that drives a per- identified (McWhirter, McWhirter, McWhirter
son to commit a crime. Conversely, no force & McWhirter 2013: 8-11):
can be observed coming from a well-developed e¢ Minimal risk. Youth generally at minimal risk
superego, a stake in conformity, or a strong for future trouble are those who attended
belief in the rules in society that restrains a
good schools, who have loving and caring
person from committing a crime.
relationships, and whose families are of
Binder, Geis and Bruce (2001: 69-70) agree higher socioeconomic status. The term “no
that the precise meaning of “cause” remains risk” cannot be used due to the complex
complicated. “Cause” can be defined as some- ecology of stressors that young people face.
thing that brings about an effect or a result. All young people, no matter their circum-
For example, a person with criminal intent or
stances, have to cope with death, family
a situation (such as a dysfunctional family) can tension, failure or unpredictable family fac-
bring about an action (criminal behaviour). tors such as bankruptcy, divorce or loss of
One of the themes in research and theory
home.
related to adolescent development involves
the identification of risk and protective factors e¢ Remote risk. Remote risk seems increasingly
associated with normal and maladjusted devel- possible when markers of future problems
opment (Andrews, Bonta & Hoge 1990:57). appear. For example, demographic vari-
Crime-inducing or criminogenic risk factors are ables of low socioeconomic status, limited
the variables within the individual or his or her economic opportunity, lack of access to
Van Schaik
82 © Publishers
CHAPTER 4 RISK FACTORS PERTAINING
TO YOUTH OFFENDERS
good education and gang membership are 4.3.3 Protective factors

associated with greater dropout rates.
Protective and promotive factors represent
¢ High risk, Although dysfunctional families, characteristics of the individual or his or her
poor schools, negative social interactions circumstances that mediate or buffer the
and numerous’ psychosocial stressors effects of the risk factors. These factors are
nudge a young person toward higher levels associated with the concepts of resilience
of risk, the final push is supplied by the per- and desistance. They are helpful in explaining
son’s own negative attitudes, emotions and why some children who are exposed to mul-
behaviours. Characteristics that suggest tiple risk factors do not engage in antisocial
a child is at “high risk” include, inter alia, behaviour and why some who appear to be on
aggression and conduct problems, impul- a path towards serious criminal activity cease
sivity, anxiety, affective problems such as their antisocial actions. Protective factors are
depression or bipolar disorder, and hope- important from the point of view of develop-
lessness, as well as deficits in social skills ing prevention and treatment programmes.
and coping behaviours. These character- Protective factors applicable to the youth
istics both emerge from and enhance the include, among other things, being female, an
negativity of the environment around the appositive social orientation, a warm support-
child. In other words, the causal pathway is ive relationship with parents and other adults,
dynamic. parents’ positive evaluation of their child’s
¢ Imminent risk. Individual high-risk charac- peers, commitment to school, friends who
teristics often find expression in participa- engage in conventional behaviour, and a stable
tion in gateway behaviours. For example, organised neighbourhood (Walsh 2014: 151).
a child’s aggression toward other children Blanchette and Brown (2006: 145) noted that
and adults is a gateway to youth offending; a protective factor must be more than simply
the smoking of cigarettes is a gateway to the absence of a risk factor, for example no
alcohol and marijuana use, which can be a substance-abuse problem.
gateway to using harder drugs.
The discussion that follows addresses several
e At risk. The young person has passed
risk factors without categorising them accord-
beyond risk because he or she is already
ing to the above description. The factors dis-
engaged in the problems or criminal activ-
cussed are environmental or external factors
ities discussed in the previous categories.
as opposed to individual or internal ones.
For example, the young person who uses
drugs can begin to abuse them and become
addicted. This person can continue with 4.4 RISK FACTORS ON A SOCIAL
violent crime during adult years. LEVEL
Risk factors on a social level can occur in the
4.3.2 Static risk factors community, family, school and peer groups.
These represent variables or factors that are These factors from the different variables
not amenable to change, or change only in one do not function independently but affect one
direction, for example age, a history of con- another. No single risk factor is powerful
duct disorders, large family size and ethnici- enough to predict with certainty which youth
ty (Andrews et al. 1990: 50). The most robust will become violent or criminally involved. For
static predictors of criminal recidivism are example, one can argue that weakened com-
youthfulness, being male, the number of pre- munities with struggling households (families)
vious offences, age at first arrest, criminal ver- produce schools that have a tenuous place
satility, poor parental supervision and early- in those communities and a limited capacity
onset behavioural problems such as lying, to prepare learners for participation in main-
cheating or stealing (Blanchette & Brown stream society or for establishing healthy
2006: 44; Andrews & Bonta 2010). These fac- extrafamilial relationships and_ personality
tors, although potentially potent predictors, types, thus contributing to an increased risk of
are not open to treatment. youth coming into conflict with the law.
Van Schaik
Opublishers 83
4.4.1 Community or neighbourhood individual's moral threshold, therefore a rise

variables in inequality will have a significant impact on
(at least some) individuals’ propensity to com-
The community/neighbourhood variables in- mit a crime.
clude risk factors on a macro (large) level: In Dar es Salaam, the youths ina survey stated
economic inequality and relative deprivation; that people steal because of unemployment
unemployment; community disorganisation; and poverty, and because life is difficult and it
the availability of substances (such as drugs is hard to make ends meet, especially when rel-
and alcohol); and a climate of violence. These atives are not able to support them (Outwater,
factors are illustrated by referring to research Mgaya, Msemo, Helgesson & Abraham 2015: 3).
findings from South Africa and other countries, Unemployment and frustration, together with
and the implications of the risks thus created being disadvantaged, were the justifications
for the youth are explained. given for committing most crimes. This find-
ing is supported by the research findings of
Wikstrém and Loeber (Walsh & Ellis 2007: 88)
4.4.1.1 Economic inequality and relative
after they had studied the characteristics of
deprivation 90 neighbourhoods in Pittsburgh, Pennsylva-
Economic strain and relative deprivation are nia. They concluded that boys at low risk for
universally accepted as factors contributing to antisocial behaviour were mostly concentrated
crime. It is not poverty per se that does so, but in the advantaged environments in compari-
how people experience their financial situation son with those at high risk, who were mostly
within their social environment. The majority concentrated in the disadvantaged neighbour-
of poor people do not commit crime, but those hoods.
who feel deprived will often resort to it. Coun- Research results by Hoogeveen and Ozler
tries characterised by huge income disparities (2006: 87) showed that about 60% of all South
— as are most developing countries and those Africans and about 66% of the African popula-
in transition, especially if these occur across tion were poor. An assessment of the poverty
racial or other social barriers — often have a profile of South Africans on the income of the
high crime rate, for example the US, Australia employed during the third quarter of 2016 indi-
and Africa, therefore high levels of crime are cates the monthly earning levels for the low-
more prevalent in countries where there are est 5% of all employees as R6 742 per month
large proportions of people who feel econom- and the top 5% income as R18 104 per month
ically deprived. For example, while Australia (StatsSA 2017: 5).
may have a generally low level of poverty, it
has a high degree of economic inequality (Daly
& Lincoln 2006: 246). India’s poverty levels
4.4.1.2 Unemployment
remain higher than those in South Africa, but There are unemployment problems in offender
its inequality levels are much lower than those populations. Rapid urbanisation and economic
of Brazil and South Africa (Bhorat 2015). (Also recessions have resulted in a lack of employ-
see the challenges of youths in South Africa as ment opportunities and have caused many
highlighted in Chapter 2.) South Africans to fall into poverty. The youth
The effect of income inequality in soci- unemployment rate in South Africa during the
ety will depend on the individual's relative second quarter of 2017 was 55,90% (updated
income position. It is unlikely that an increase in June 2017 by Trading Economics 2017). In
in inequality will induce the rich to commit Spain and Greece, this has risen above 50%,
crime. However, for the poor, an increase in and in the UK and US one in five youths is
inequality may be crime inducing, because unemployed, one in four in Sweden, and one in
such an increase implies a larger gap between three in Italy. In some Arab Gulf states, the rate
the wages of the poor and those of the rich, runs over 90%.
thus reflecting a larger difference between Residential segregation may also have con-
income from criminal activities and that from sequences that fuel social problems, and in
legal activities. A rise in inequality may also turn contribute to lowered employment. When
have a crime-inducing effect by reducing the adults in a neighbourhood are themselves
84 (Ontishers
Van Schaik
___ CHAPTER 4_ RISK FACTORS PERTAINING TO YOUTH OFFENDERS
unemployed, they cannot provide the role afield as Nigeria, Morocco, Europe and China
models of social and professional success with have flocked to South African cities, where a
which youngsters can identify. Residential seg- large number of undocumented migrants now
regation also has a negative impact on social live (South African cities 2016; Pota 2017). The
and work-related networks. Many jobs are number of Zimbabweans and Mozambicans in
found through personal contacts, but because particular who enter South Africa illegally has
semi- and unskilled workers, young adults and increased since 2006 because they are in need
ethnic minorities mostly reside in disadvan- of socioeconomic support.
taged neighbourhoods, they do not benefit However, their situation is made worse
from a high-quality network of job information. because of unemployment, poverty, a lack
Many of the residents are unemployed and do of education, the lack of proper housing, the
not have professional contacts. need for food and disorganisation in the urban
A further influence of residential segrega- areas. Such influxes have led to large informal
tion on the labour market is the reluctance of settlements being established around major
employers to employ workers from disadvan- cities in developing countries like South Africa,
taged communities. and these are particularly problematic in terms
Unemployment in South Africa affects not of effective policing and crime control. This is
only adults, but also indirectly the youth,
the direct result of the disorganised move to
the vast majority of whom have never been the cities. In these new communities it is dif-
employed before. The implications of this per-
ficult to uphold traditional norms and values,
tain to the individual and the country’s econ-
and the informal control and discipline of the
omy. While these individuals are unemployed,
family circle deteriorate. Parents tend to lose
there is an erosion of skills, and the opportu-
control over their children, who may become
nity for older workers to pass on skills and
easy victims of crime. Although the majority of
expertise to younger workers is lost. The lack
young people are also unemployed in rural sit-
of previous employment results in people not
uations, which may also be overcrowded, nev-
being eligible for unemployment benefits, and
ertheless there they can rely on the extended
leaves them more at risk than the average
family (social network) and the subsistence
unemployed person of becoming involved in
crime to survive.
economy to meet their relatively basic needs
Young employed people are less likely to
for food, clothing and shelter.
engage in criminal activity than are those who Apart from the criminological significance
are unemployed and have little hope of finding of densely populated urban areas, uncon-
any worthwhile employment. trolled urbanisation places an unmanageable
strain on available resources, and creates con-
ditions even more conducive to crime. This
4.4.1.3 Community disorganisation frequently culminates in a breakdown of tradi-
Urbanisation in South Africa has escalated tre- tional norms, values and family bonds. A high
mendously. It is internationally accepted that rate of urbanisation, coupled with the inability
the urbanisation of the youth and its accom- of the state to provide the necessary infra-
panying social processes are extremely con- structure such as housing, schools, hospitals,
ducive to crime. Factors such as the continu- nursery schools, afterschool care facilities and
ous redistribution of neighbourhood popula- leisure facilities, leads to increased crime at
tions and the loss of social control, cohesion all levels. Experts agree on the need in South
and trust in the collective ability to direct the Africa for an inclusive social welfare system
affairs of the neighbourhood in positive direc- or “safety net” to help families and individu-
tions are referred to as social disorganisation. als in need. Problems are currently dealt with
When urbanisation occurs suddenly and individually and on an ad hoc basis, therefore
on a large scale, and coincides with a massive it is necessary to develop a national plan of
influx of young work seekers (economic refu- action to assist families and destitute children.
gees in particular, usually from neighbouring This, however, will take a long time, and in the
countries), ideal conditions for crime are cre- meantime people in need and jobless youths
ated. For instance, young people from as far may turn to crime.
Van Schaik
i
© publishers
4.4.1.4 Availability of alcohol and drugs users with a criminal record have committed
crime before using drugs. Drug use by itself
It is not only the high level of substance abuse
does not cause users to commit crime, but it
that contributes to crime. The existence of does intensify criminal tendencies or increase
profitable criminal activities also means that the frequency of criminal activities. People
the expected loot from crime is more attractive under the influence of alcohol or drugs or who
in certain countries such as South Africa and abuse drugs often behave in an irresponsible
those in Latin America. The clearest example and reckless manner, which may spill over
of profitable criminal activity is the illicit drug into serious crime. It is not the taking of drugs
trade, especially in countries where the raw that initiates criminal careers, but this tends to
materials are easily obtained, such as South intensify and perpetuate them. A positive asso-
Africa in the case of dagga (cannabis), and ciation is thus to be expected between alcohol/
Colombia, Bolivia and Peru for cocaine. Coun- drug abuse and repetitive committing of crime
tries that are located close to high drug con- (recidivism).
sumption centres (such as Mexico in relation Laboratory studies of adults have found
to the US) offer frequent and highly profitable that acute intoxication with alcohol is related
opportunities for criminal activities. These to aggression when an individual is provoked
include not only drug production and trade (White, Tice, Loeber & Stouthamer-Loeber
themselves, but also involve the elements of 2002: 132). This heightened aggression is
violence and official corruption required for best explained by the fact that alcohol causes
them to occur. Young people in need of an changes within a person that increase the risk
income easily become involved in drug dealing. of aggression. These changes may include
Research (Cox, Allen, Hanser & Conrad reduced intellectual functioning, reduced self-
2014: 245-246) clearly shows a strong link awareness, selective disinhibition and the
between drug use and crime. People who use inaccurate assessment of risks. In contrast,
illegal drugs generally commit more crimes laboratory studies indicate that marijuana
than those who do not. According to Harrison has the opposite effect, as moderate doses
(cited in Thio 2007: 281), the drug enslavement temporarily inhibit aggression and violence.
theory states that drug and/or alcohol depen- Findings such as these, together with epide-
dency and other social vices are expensive miological research on adults, underscore the
and may drive people to crime if they have fact that alcohol use is more strongly related
no other means of supporting their habit. One to aggressive crime, whereas drug use may be
can refer to “deficit users” who are subjected more related to property crime. The behaviour
to the factors of living in poverty, having an of a person influenced by substance abuse
inadequate education, lacking job skills, racial depends not only on that person’s level of
discrimination and other social disadvantages aggression, but also on the dynamics of the sit-
because they are relatively poor, uneducated uation and the strength of general, cultural and
and economically unskilled. Property crimes social control mechanisms.
are widely associated with addiction to illegal Alcoholism and multiple drug abuse have
substances. been associated with the alarming rate of
Substance abuse and even excessive alco- crime and violence in South Africa, and there
hol use may contribute directly to violent has been an increase in access to drugs
crime, especially if this occurs in a group con- among adolescents. The widespread avail-
text where there is strong social pressure to ability of drugs and drug use in most of South
conform to the group’s rules, and where there Africa has heightened young individuals’ par-
are rituals. It is well known that gangs may ticipation and exposure to violence (Russell
have certain initiation rituals involving seri- 2010). A questionnaire-based investigation by
ous crimes of a violent nature such as rape Morojele and Brook (2005 in Russell 2010)
and murder, thereby precipitating not only examined the association between drug use,
opportunities for violent crime but also the and peer, parental and environmental fac-
coincidental use of drugs. A high correlation tors in predicting multiple violence attacks
between drug use and crime does not mean among adolescents in South Africa. Adoles-
that drug use causes crime, because most drug cents of both sexes aged between 12 and 17
Van Schaik
86 © publishers
CHAPTER 4 RISK FACTORS PERTAINING TO YOUTH OFFENDERS
were included in the study. Variables assessed become internalised and part of everyday liv-
were self, peer and parental drug use; self and ing — almost normal and acceptable. When
peer delinquent behaviours; parent-child rela- one looks at the prevailing value system in
tionships; neighbourhood drug availability; some communities, one finds that more often
and exposure to violence through television. than not there is no strong moral foundation
The study showed a significant relationship and that the moral fibre of the community is
between the frequency of tobacco smoking, questionable.
marijuana and alcohol consumption, and mul- Community-based violent victimisation
tiple victimisation among adolescents. A high- has been found to be significantly associated
er rate of victimisation was found in individu- with young adult criminal behaviour. Sev-
als who frequently smoked tobacco and mar- eral researchers (cited in Siegel 2012: 336)
jjuana and consumed alcohol more often as
have identified the following consequences
compared to their non-alcoholic, non-smoking
of exposure to community violence: height-
counterparts. Parental cigarette smoking,
ened psychological distress; low self-esteem;
alcohol use, parental rules and parent-child
a heightened risk of displaying trauma-related
rapport were significant predictors of multiple
symptoms; lower social competence; and poor
victimisations, with the association between
parental marijuana use and assault approach- school performance. The fact that they exploit
ing statistical significance. The study’s find- others and in turn are exploited by those who
ings advance the current state of awareness are older and stronger contributes to their
regarding substance abuse among adolescents sense of hopelessness.
in South Africa. The use of drugs by individ- Kaser-Boyd (cited in Cox et al. 2014: 298)
uals in an adolescent’s environment as well provided five indicators that serve as possible
as the heightened availability of drugs also warning signs of potential gun violence among
seems to be associated with an increased like- the youth: exposure to violence either in the
lihood of the adolescent's experiences of victi- home or community, including a preference for
misation. Outcomes of the study have implica- violence on television and portraying violent
tions for prevention programmes addressing images such as artwork drawings in homework
violence and victimisation among adolescents books or rough work; a lack of success with
in South Africa. Potentially effective interven- the normal tasks of adolescence, for exam-
tions for adolescent victimisation should be ple failing at school or having no extramural
designed to address personal, family, peer involvement; social rejection and poor social
and environmental risk factors. Healthcare support; a build-up of intense anger from pre-
policies and strategies should focus on mini- vious social deprivation events; and the inabil-
mising substance use in general. Strategies ity to express or resolve intense feelings of
such as reinforcing government regulations anger in an acceptable way.
on the minimum legal age of access to alcohol,
Exposure to regular violence will favourably
improving policies regarding unlicensed liquor
assist the modelling of violent behaviour in the
distributors, increasing taxation on alcohol
youth. In addition, this will develop into cogni-
products and cigarettes, and restricting alco-
tive scripts pertaining to aggressive behaviour.
hol commercials should be considered.
Cognitive scripts are learnt and memorised
through daily experiences. As events would
4.4.1.5 Climate of violence happen in the environment, the youth will
Violence remains the most obvious character- observe the response of others, and the likely
istic of the crime problem in South Africa. As outcome. Although each script is different and
a result of political instability and unrest in unique to each person, once established they
South Africa, the crime rate has soared since become resistant to change and may persist.
1990. The rate of violent crime is still high, Scripts are established through rehearsing
especially in informal settlements. Children until they become encoded and maintained
grow up in an extremely violent environment in the memory, from where they are easily
and in a culture of survival. For some chil- retrieved and used when an individual faces a
dren, vandalism, stealing and violence have problem (Barto! & Bartol 2017: 147).
Van Schalk
Opubiishers 87
SECTION A YOUTH MISBEHAVIOUR: ITS NATURE, EXTENT, RELATED RISK FACTORS AND EXPLANATIONS |
4.4.2 Family variables Overcrowded living arrangements are indic-

ative of low socioeconomic status and class.
The family or parents are usually the first insti-
Overcrowding leads to a lack of privacy and irri-
tution with which an individual interacts. The
tation with one another, and children may tend
importance of the family in socialising young
to wander around and even desert the home.
people, teaching them the rules of behaviour
They may land in bad company, be tempt-
in society and taking the appropriate steps to
ed and begin to use alcohol or substances.
keep them within those rules cannot be over-
Crime is usually the inevitable outcome. These
emphasised. The absence of these vital func-
factors do not only put youngsters at risk of
tions exposes the child to a risk of coming into
becoming involved in crime, but also of becom-
conflict with the law. The following variables
ing victims.
can expose young people to such risk: low
socioeconomic status, family structure, lack
There is no guarantee that high socioeco-
of parental supervision, parent and _ sibling nomic status will obviate the risk of children
criminality or antisocial behaviour, family vio- becoming involved in crime. Increasing mate-
lence and abuse, and life on the street. Each is rialism and rising costs force parents to work
discussed with reference to research findings longer hours to meet the family’s needs and to
from various countries. provide for a better lifestyle. Materialism has
become a major concern, and families judge
their status by their income, the area in which
4.4.2.1 Socioeconomic status of the family they stay and their type of transport. The
Despite decades of debate, consensus has not media, the materialistic world and rich role
yet been reached about the true relationship models set criteria for success, but this comes
between social class and youth misbehaviour. It at a price. The striving for enough money has
is commonly accepted that a child is unlikely to a negative impact on steady parent-child rela-
avoid misbehaviour if he or she comes from a tionships, the sharing of feelings, combined
neighbourhood where crime prevails, or from a leisure activities and caring for one another,
poverty-stricken family in which the parents are which normally would act as mitigating fac-
unable to provide for basic needs, or from an tors. Economic deprivation therefore increases
environment where friends are involved in and the level of stress experienced by the parent,
arrested for breaking the law. Consistent with and this in turn may negatively affect the par-
this reasoning, the arrest rate of young offend- ent’s affective relationship with the child and
ers is higher in economically deprived and the quality of parenting.
socially disorganised communities. McWhirter
et al. (2013: 8-11) classify such youths as high
risk because of their circumstances.
4.4.2.2 Family structure
Based on a longitudinal study of almost There is little doubt that family structure is
400 families in the UK, Farrington and Painter related to youth offending in a variety of ways.
(cited in Blanchette & Brown 2006: 102) found Family structure refers to large and extended
that the following variables predicted misbe- families, incomplete families and mixed fami-
haviour more strongly for girls than for boys, lies. Various factors such as the economic sit-
namely socioeconomic risk factors such as uation, urbanisation and unemployment have
low social class, low family income, poor hous- contributed to the changing family structure
ing and large family size. Research in Canada over the past years in South Africa. Homes and
by Bélanger, Lanct6t and Le Blanc (cited in shacks become overcrowded because more
Blanchette & Brown 2006: 102) came to a simi- people as well as extended family members
lar conclusion: parental economic dependence stay together in one house or informal settle-
or poverty has a significantly greater impact ment. Family members flock to the cities with
on the incidence of female misbehaviour in the intention of looking for work or completing
mid-adolescence relative to that of males. As a their school education. The inadequate trans-
result of a family’s low socioeconomic status, portation network in South Africa and neigh-
children may develop a negative self-concept bouring countries, and the ongoing unrest and
and feelings of inferiority, shame and guilt. conflict due to a lack of service delivery further
oe: Schaik
88 Publishers
entribute to the influx of people. Children are tive effect on the socialising process, especially
then obliged to share space with adults and/or with regard to boys.
me another. The negative implications include In some households in South Africa, moth-
witnessing adult sexual encounters, sexual ers are absent as a result of work responsibil-
e=ploitation, physical and emotional abuse, ities. Some are employed far from home and
the need to escape from these circumstances, therefore spend many hours travelling. They
2s well as the neglecting of schoolwork. leave home early in the morning and return
An incomplete family refers to the absence late in the afternoon or evening. Others stay
of the father or mother. Homes without both in town during the week, near their workplace
arents, together with poverty, were the two and away from their spouse and family, and
main issues that youths involved in research often spend only one weekend per month at
projects mentioned as factors that influenced home.
‘heir decision to commit crime. Research in In some of these households, guardians
Der es Salaam (Outwater et al. 2015: 7) indi- such as the grandparents or older brothers
‘etes that youths from a single-parent house- and sisters have to look after the younger
eld, with ruptured family ties and without children. These children may lack paren-
= father figure, are more at risk of engaging tal love and care, and tend to show signs of
®@ antisocial behaviour. Results of the study behavioural problems from an early age. Some-
show a close correlation between youths from times the presence of a stepmother results in
broken homes and tense family situations, and relationship problems with adolescents. The
their involvement with crime. children may consider her an outsider and
Research findings (Wedge, Boswell & Dissel resist her authority. Owing to some unhap-
290: 32) emphasise the implications of incom- piness, children may run away from home to
plete families for the youth. A study involving live on the streets, or become involved in gang
25 young serious offenders reported that all activities, misbehaviour and crime.
bad a background considerably different from Another concern that contributes to incom-
ying with a father and mother in a stable envi- plete families in South Africa is the death of
ronment. Many had no father figure at all or parents due to HIV/AIDS, which leaves many
were raised by aunts, uncles, step-parents or young children orphaned. Often these children
grandparents. An absent father means there is stay on in their parents’ home, mostly an infor-
mo co-parenting, and this affects not only the mal dwelling. Older siblings, some as young
mother but more importantly the children in as 14, seek employment or turn to crime in
terms of their social, emotional, physical and order to support younger brothers and sisters
cognitive development (Hodgins 2011: 95). in these child-headed households. Although
Osgood and Chamber (in Walsh 2014: 132) various non-governmental organisations are
report a correlation between an increase in involved in the upliftment and financial sup-
female-headed households and _ associated port of these families, many still do not receive
arrests. any assistance at all.
The large, mostly male, prison population More prominent in South Africa, as in other
in South Africa, means that a great number of countries such as the US (Cox et al. 2014: 47),
children in South Africa have an imprisoned are mixed families. A mixed extended family
father, leaving the family incomplete. This is when each parent brings children of his or
contributes to the risk of youths becoming her own into the family setting. With the high
involved in criminal activities. For many years divorce rate in South Africa, the number of
the migrant labour system was an import- mixed extended families is on the increase. In
ant part of the South African workforce and such situations, children may have conflicts
economy. Migrant labour implies that people, with one another or with the non-biological
mostly men, leave their homes to seek work parent. They may start feeling unwanted, lose
elsewhere, such as the mines in South Africa. their self-confidence and neglect their school
Although the money these fathers earn sup- responsibilities. They may even withdraw from
ports their households and families in the rural social contact, start using drugs or join a gang
areas, the absence of a father figure has a nega- to fill the need to belong.
(omnse) gg
4.4.2.3 Lack of parental supervision after themselves in the afternoons after school
when parents are still at work. The economic
A lack of parental supervision correlates with
pressure on parents to provide for their fam-
criminal activity and misbehaviour. Poor ilies requires them to work longer hours, and
parental supervision and family support will they often come home after their children are
affect adolescents’ behaviour, as youths then
asleep. Many children are also on their own
choose to associate with peers who may dis- when preparing for exams, as well as during
play diverse problematic behaviour (Klein & holidays. It is sometimes expected from older
Maxson cited in Peterson 2012: 76). A meta- children, who are still young, to look after
analytical study by Dowden and Andrews younger siblings. Owing to the lack of proper
(cited in Blanchette & Brown 2006: 91) demon- supervision, some children as young as six
strates that family process variables such years old may loiter in shopping malls and
as attachment, affection and supervision are games arcades, or spend time on the Inter-
robust predictors of recidivism. net, online chat rooms or pornography sites.
The way in which these affect antisocial Although some children do not experience any
behaviour is not fully understood. For example, problems, others become involved in illegal
there is no clear answer regarding whether the activities without their parents’ knowledge or
lack of supervision simply represents a condi- even become victims of crime. Such an exam-
tion of freedom for the youths of which they ple is cyber bullying (also see Chapter 3).
will take advantage, or whether lax supervision Cyber bullying is a form of bullying that relies
normally associated with a cold or rejecting on technological programs such as emails,
attitude on the part of the parent interferes instant messaging, websites and chat or bash
with establishing the positive bond. This bond boards to intimidate, shame and inflict unwar-
is important for internalising positive norms. It ranted hurt and embarrassment on its unsus-
is therefore not clear whether lax supervision pecting victims (Beale & Hall cited in Cox et
is the parent’s reaction to a personality disor- al. 2014: 247), Cyber bullying therefore relates
der in the youth which is, in turn, the cause of to personal harassment via a digital platform,
the criminal activity. In South Africa, it is not including SMS, email and social media net-
only a case of a lack of parental supervision, works. There is a growing percentage of chil-
but also of parenting skills, as many parents are dren between the ages of 10 and 17 years that
young or they fear their own children. have become victims of cyber bullying in both
A study by Chaiken (2000: 7) found that the the UK and the US, From this one can deduce
lack of adult supervision is probably the cause that South Africa will have similar problems. A
of violence during the hours immediately survey by the Centre for Justice and Crime Pre-
before and after school. The vast majority of vention in 2012 found high levels of aggression
boys in the study (75%) spent the afterschool among youth in South Africa and it was report-
hours unsupervised by an adult on one or ed that cyber bullying was on the increase
more days each week, and almost half (48%) (Alfreds 2013).
never received adult supervision during those
hours. The 23% of the boys who reported
being supervised by an adult every day after
4.4.2.4 Inter-generational continuity in
school tended to misbehave less than those offending
who received little or no such supervision. Andersson and Stavrou (2001: 70) found a cor-
Cox et al. (2014: 47) refer to school-age chil- relation between the probability of youths
dren of working parents who return home from being involved in criminal activities and the
school to an empty house as “latchkey” chil- involvement of other family members in crime.
dren. Alston (cited in Cox et al. 2014: 48) esti- Studies in the US, Sweden and Denmark also
mated that between 5 and 11 million children show that children of criminal parents are at
in the US are left unsupervised after school. greater risk of becoming involved in criminal
A similar tendency is noticed in South Africa. behaviour than those from non-criminal homes.
Since parents need to leave the house early It has also been found that if siblings are close
in the mornings for work, children need to and interact with one another, they may easily
get themselves ready for school and also look influence or encourage or discourage deviance
Van Schaik
90 © publishers
in one another. Shared environmental expe- fathers usually gives rise to a strong sense of
riences in a family might also account for shame, guilt, anxiety, depression and isolation
behavioural resemblance among siblings. in young victims. When they become adults,
According to Smith and Farrington (cited these victims are more likely than non-victims
in Pulkkinen 2012: 103), the maintenance of to be dissatisfied with sexual relationships and
an antisocial lifestyle, including peer and part- to encounter marital problems. In the main,
ner relationships, is an important mechanism however, child abuse is the physical, mental or
of intergenerational continuity of antisocial sexual harm or ill-treatment deliberately inflict-
behaviour. They concluded that continuity in ed upon children by their parents or caregiv-
antisocial behaviour across three generations ers (Lutya 2015: 260).
was not evident, but it did exist across two When compared with their non-abused
generations. Antisocial adults were more likely peers, children who have been abused experi-
to have children with conduct problems, but ence some of the following social and psycho-
this alone did not predict conduct problems in logical problems: emotional and social difficul-
the children of a subsequent generation. There ties; learning disabilities; poor academic per-
was a tendency among antisocial individuals to formance; and running away from home, which
group with others of the same or similar kind. may result in criminal behaviour. As adults
The risk of children developing conduct prob- they also are at risk of abusing drugs and alco-
lems increased if they had two antisocial par- hol, engaging in criminal activities, suffering
ents and witnessed conflict. from psychiatric disturbances, and becoming
child abusers themselves (Thio 2007: 122).
In close to three-quarters of the cases of
4.4.2.5 Family violence and abuse sexual assault, the crime is committed by a per-
Gelles and Straus (in Thio 2007: 114) describe son who knows the victim, and the majority of
the family as the “most violent institution, offences occur in private dwellings. The high-
with the two exceptions of the police and the est rate of the offence is against girls between
military’. Two types of child abuse can be the ages of 10 and 14. Offences against males,
distinguished, namely sexual and other phys- although lower than for females, are highest in
ical abuse. The following factors increase the the under-10 age group. Some of these young-
risk for child abuse by parents: problematic sters “escape” to the streets to avoid the trau-
interaction between parent and child; lack of ma at home. There is a correlation between
parenting skills and knowledge about normal being young and higher rates of both victi-
childhood behaviour; and punitive parenting. misation and crime. According to Smith and
The problems presented by children O’Connor (in Wimshurst & Hayes 2006: 120),
include antisocial behaviour, aggression, or between 14 and 29% of young offenders were
mental and physical disabilities. Families may maltreated as children. Dennison and Water-
also experience an intergenerational trans- son (in Wimshurst & Hayes 2006: 120) found
mission of violence. This occurs when par- that childhood physical abuse and neglect are
ents think that violence is the only way to especially linked to youth misbehaviour, more
solve child-rearing problems because they so than sexual abuse. These child victims are
themselves experienced abuse as children or at risk of perpetuating violence against others
observed how their parents and other signif- or themselves as adolescents. Indermaur (in
icant adults used violence to express anger, Wimshurst & Hayes 2006: 120) states that chil-
react to stress or deal with marital problems. dren exposed to family violence are more likely
Social factors contributing to child abuse to interpret violence as normal in intimate rela-
include poverty, unemployment, family prob- tionships. This means that the child victim and
lems and lack of education (Thio 2007: 123). the offending child are often the same person
Family violence occurs among lower- and at different stages of his or her life.
higher-income people, but the incidence is
greater among poor people. However, sexual
abuse rates show no significant difference
4.4.2.6 Homelessness
related to social class and racial or ethnic Homelessness and living on the streets are
groups. Sexual abuse of mainly daughters by linked to crime and criminalisation in many
Onpishers| 4
ways (Adler cited in Stubbs 2006: 177). Home- Africa, street children often live in slums and
less people may be vulnerable to victimisa- other deserted or dilapidated areas of cities;
tion on the streets, and are at risk of commit- they have their own territory, and their gangs
ting criminal offences to support themselves may specialise in crime such as pickpocketing,
through stealing, prostitution and the drug prostitution and begging. They are themselves
trade. They often use alcohol and substances especially vulnerable to victimisation.
such as glue to assist them to escape the harsh
realities of life on the street. Children living on
the street are one of the fastest growing prob- 4.4.3 School variables
lems in Africa. Street children can be included The school variables consist of various risk
under the family domain, as they usually come factors. For the purpose of this discussion,
from disrupted families or have no family ties the factors mentioned in the related research
and are forced to fend for themselves on the studies are grouped and discussed under the
streets in urban areas. Some communities see following headings: disorganised conditions in
them as a nuisance and generally shun them and around schools; the role of the learners;
and discriminate against them. These children and the role of the educators/teachers.
include those sent out by parents daily to earn In a study based on reports by teachers
money by whatever means (usually returning employed at the relevant schools, Quarles
home at night), children “of the street” with (1993: 3-4) identified various characteris-
loose family contacts (occasionally returning tics pertaining to schools in the US with the
home to their families), children without any
highest levels of student victimisation. These
family contact (living in temporary shelters or
schools are situated in poverty-stricken, high-
with other street children in gangs), and chil-
crime urban areas with a high unemployment
dren or adolescents permanently living on the
rate. The majority of the students scored low
streets,
in terms of their intellectual ability and had a
Andersson and Stavrou (2001: 70) found
high daily average absentee record, and many
that many of the street children and youths in
of the families received welfare hand-outs.
Dar es Salaam chose to live on the street, justi-
Maree (2000: 4), supported by the research
fying their action as being the only alternative
findings of Van der Merwe (2015), states that
to the realities of extreme poverty, disintegrat-
the following are the main causes of crime
ing families and high levels of abuse. All the
in South African schools: involvement in
street children in their study were involved
gang activities; lack of transformation in
in some form of activity that generated a sub-
schools; negative perceptions among black,
sistence level of income necessary for sur-
coloured and white learners; the presence of
vival. Generally, however, the majority of the
street children came from rural areas, and a guns and other weapons at school; the use of
notable number saw their current situation as dagga and other substances; a lack of counsel-
ling services; intolerance towards learners of
temporary, justifying it as a relief from abuse
and an opportunity to gain an education or other races, religion and gender; parental apa-
earn some money, and planned to return home thy; and hero worship of criminals and gang
at some stage. For many, surviving on the leaders.
streets means becoming involved in criminal
activities. 4.4.3.1 Disorganised conditions in and
In Australia, Stubbs (2006: 177) identified
around the school
the causes of homelessness as poverty, the
lack of affordable housing in the private mar- A school system needs to be fully functional to
ket, unemployment and inadequate social be effective in education and training. Aspects
welfare policies. Children who have been in such as suitable facilities, proper discipline,
and out of home care, such as institutions or qualified teachers and successful racial inte-
foster homes, are overrepresented as victims gration are powerful symbols of a functional
of abuse, offenders, inmates of youth deten- school system. The absence thereof contrib-
tion centres and prisons, and clients of drug, utes to dysfunctionality and disorganised
alcohol and mental health services. In South conditions.
Van Schalk
92 © prdichers
Conditions in the school refer mainly to the learners’ self-esteem, leaving them with a feel-
physical environment and the emotional safe- ing of worthlessness. They may therefore be
ty of learners and teachers. The physical envi- at risk of becoming involved in crime or mis-
ronment, besides being an occupational health behaviour because of their lack of regard for
and safety matter, needs to communicate that other people’s lives or possessions.
people in a certain place will be safe. It is pref- Emotional safety depends on various fac-
erable that children do not become stressed by tors such as the size of the school and the
the demands of the classroom. School should classes. According to Quarles (1993: 4), school
rather be a safe place in a pleasant area. When crime increases with factors such as school
learners perceive their school as impersonal or size, the number of learners taught by each
unsafe, many will become disaffected. Maree teacher and the extent to which teachers have
(2000: 4) expressed concern about the state access to the materials needed for teaching.
of schools in previously disadvantaged areas. Class sizes of fewer than 20 learners have been
which, in particular, have not improved to any found to be especially beneficial for young and
significant degree since the abolishment of disadvantaged children, as class size mainly
apartheid in South Africa. Little improvement affects the social relationships and interaction
of the situation is noticeable as Naiker, Grant among learners and with the teacher. Children
and Pillay (2016:1) also refer to the first-class in smaller classes tend to be more engaged
schools on the one end of the continuum and and willing to cooperate, and less disruptive
extremely dysfunctional schools on the other. (Finn et al. cited in Porter 2007: 241).
At the one end of the scale, some schools have If one takes the availability of schools and
inadequate or no fencing at all. Many public the resultant class sizes into consideration,
schools in informal settlements do not even then learners in large city schools are more
have the most basic facilities such as running prone to victimisation. followed by small city
water, toilets, tables and chairs for learners and then suburban schools (Quarles 1993: 4).
in the class environment, and writing boards Crimes such as vandalism, housebreaking,
for teachers. Paton-Ash (2012: 135) stated that and damage to and theft of property negatively
more than 92% of schools in South Africa are influence the learning environment and result
not equipped with a fully functional library, in huge financial losses. Both the Department
18% do not have electricity, and 20% are with- of Education and the parents suffer financially
out running water. In 2015, a study (Paton-Ash as schools tend to use their minor unsched-
& Wilmot 2015) was conducted to determine uled funds to repair minor damage caused by
the issues and challenges facing school librar- acts of vandalism. Some schools have to deal
ies in selected primary schools in Gauteng with such damage on a daily basis, but week-
province. They came to the conclusion that ends are regarded as the worst time. Vandals
school libraries are not playing an effective have been known to damage windows, furni-
role in supporting and enabling quality educa- ture and electric appliances. It has been said
tion for all South African children and govern- that vandalism may also be a symptom of an
ment needs to address this matter urgently. By underlying problem such as poverty, where
comparison, at the other end of the scale most children steal classroom doors or aluminium
independent schools have electric fencing, are from writing boards to sell in order to buy food
guarded by private security companies and are (Lund 2000: 5). If one examines the crime and
equipped with alarm systems and closed-cir- security situation at South African schools,
cuit television cameras. Most of these inde- one realises that the system is still complete-
pendent schools have well-equipped science ly unprepared to respond to crime-related
laboratories, computer centres, music centres, problems.
dancing studios and sports facilities. South Africa’s schools face various layers of
This remarkable contrast might create a violence: gang-related violence, bullying, fight-
sense of relative deprivation among learners at ing, and abuse by teachers (Van der Merwe
public schools, leading them to commit antiso- 2015). Both learners and teachers are potential
cial and criminal activities aimed at their own victims of offenders. Cases of teachers being
facilities because they regard them as useless robbed or shot and killed on school premis-
and degrading. It may also negatively affect es are reported regularly. Bullying is another
@v"n Schaik }
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manifestation of crime directed at learners. A 4.4.3.2 The learner

further factor that makes our schools dysfunc-
Failure at school is caused by poor academic
tional is the presence of weapons. Learners
performance, poor attendance or, more likely,
take weapons to school because they think
expulsion from or dropping out of school.
they need them to protect themselves, they
Expulsion is an important factor in predicting
believe their friends will think they are “cool”,
future criminal behaviour as there is a strong
or they intend to commit crime. Guns are not
association between a child being expelled and
the only weapons: knives, box cutters, razors,
his or her engaging in misbehaviour (Chaiken
screwdrivers, forks and blades also feature. In
2000: 9). In the six-month period prior to Chaik-
Australia in cases of student-on-student assault
en’s study, the number of incidents of misbe-
at school, the perpetrators often claimed that
haviour by boys who had been suspended
they were defending themselves against bully-
averaged more than triple that of those who
ing and harassment. Such aggressive students
had never been suspended.
tend to come from families where punitive dis-
When learners are expelled or suspended
cipline is the norm, and they attend schools
from school, they are released into the com-
where discipline and rules are not applied con-
munity without supervision, as many parents
sistently (Wimshurst & Hayes 2006: 119). work outside of the home. Without struc-
The launch and continuation of the safer tured activities and care, many of these learn-
schools programme in South Africa, which ers are free to commit illegal acts. If parents,
involves keeping violence off the school prem- school administrators, government agencies
ises, is indicative of the problem of violence and youth organisations do not find ways of
some schools experience (Frank 2006: 39; Safer offering safer and more meaningful activities
Schools 2017). The situation is aggravated by to expelled and suspended learners during
the fact that perpetrators are often part of the school hours, they will be increasing the risk
school body itself, thus the teachers struggle of these youths becoming involved in crim-
to educate children and to teach them respect inal activities. Rather than allowing them to
for life and property. There is also a lack of wander the streets unsupervised, the author-
support from school governing bodies or good ities should consult additional measures such
parenting examples. Furthermore, commu- as alternative classes with fewer learners and
nities allow children to grow up in an atmo- with teachers specifically trained to address
sphere where violence is considered the only behavioural problems.
solution (Lund 2000: 5). Dropping out of school reduces the chances
Schools in South Africa are not as functional of youths developing the social skills gained
as it was hoped they would be. Problems that there, such as meeting deadlines, following
render them dysfunctional include staff incom- instructions and being able to deal construc-
petence, lack of discipline, political and union tively with their peers. School is one of the
interference, and a shortage of teachers. Con- most important socialising agents in soci-
tinuous strikes arranged by unions, especially ety. Adolescents who do not have consistent
those before the final exams for Grade 12s, access to school run the risk of becoming
have a negative influence on learners’ prepa- involved in antisocial behaviour. However,
ration for their examinations and on the pass having access to a school does not necessarily
rate. imply a positive influence, as the relatively
Lack of discipline is a common problem that poor performance of the respondents from the
has not improved since the arrival of the new Dar es Salaam project indicates. Furthermore,
democracy in South Africa. In fact, violence only a little primary school education does not
appears to be escalating in schools, thereby guarantee a functional level of literacy. Unless
aggravating the existing lack of discipline and a primary school level of education improves
impacting negatively on learners. the youths’ chances of obtaining work, it
All these factors contribute to a disorgan- is unlikely to be a protective factor against
ised and dysfunctional school system, and can deviant behaviour. Low levels of literacy,
be regarded as criminogenic risk factors. poor social skills and the failure to find work
Van Schaik
94 © publishers
can often result in negative peer associations Teachers in South Africa share in the world-
(Andersson & Stavrou 2001: 40-41). wide problem of controlling learners’ misbe-
Low education levels are associated with haviour during school hours, therefore there
high crime levels, particularly crimes of vio- are several reasons for the situation in South
lence, because low education levels result in Africa. Teachers complain about the banning of
lower income and unemployment —- conditions corporal punishment, but their complaints are
that are particularly prevalent in developing not necessarily based so much on their sup-
countries. On the one hand, however, higher lev- port for the practice as on the lack of an effec-
els of education may be associated with higher tive alternative (Maree 2000: 2). The challenge
expected legal earnings and through their civic is to equip teachers to manage conflict in non-
component — education - may also increase violent ways. All these factors may affect the
the individual’s moral stance. On the other teachers’ self-confidence negatively and create
hand, education may increase the value (loot) uncertainty, therefore the above factors can be
involved in the crime because it may open regarded as risk factors.
opportunities for an individual to enter more A comparison of the situation of pres-
lucrative areas of crime, hence the net effect of ent-day teachers with that of those from the
education on the individual’s decision to com- previous generation shows that the role of
mit a crime is, at best, ambiguous. One may teachers no longer commands the automatic
surmise, however, that if legal economic activi- respect of learners and their parents. Many
ties are more skills or education intensive than youths do not consider their teachers to
illegal activities, then it is more likely that edu- be role models. Parents are less involved in
cation will encourage individuals not to commit school decision making and management com-
crimes. In addition, if one bears in mind the high
mittees. Teachers cannot confidently rely on
the support of parents to promote a climate
crime rate among the youth, it is possible that
of discipline in school. This latter fact is par-
simply being enrolled in a school (independent
ticularly problematic for the less-experienced
of their level of educational attainment) reduces
teacher. It is also true that some teachers
the time youths have to participate in crime.
downplay their disciplinary role. For exam-
ple, they may object to having to do supervi-
4.4.3.3 The educator or teacher sory duty, especially during examination time
when learners are not writing a paper but are
In South Africa, there are significant problems supposed to study. There are teachers who
with teacher misconduct, ranging from absen- refuse to supervise these children, stating
teeism to sexual abuse, alcohol abuse, negli- that they are not policemen or that they are
gence of duties and bullying. Teachers in disor- afraid of confronting them if they misbehave.
derly schools are discouraged by the circum- These teachers fear for their own safety, as
stances in which they work. Their reactions to learners might become aggressive and assault
their situation may put the learners at risk and or murder them. If one considers the condi-
contribute to youth misbehaviour and crime. tions in South African schools, these fears are
Some teachers may stop making the consid- not unrealistic as some have been stabbed,
erable effort required to educate the young. assaulted and robbed during school hours.
Others may quit teaching for other jobs or take However, the abdication of control by the
teaching positions in independent schools. teacher in a classroom situation affects teach-
Some take early retirement, while others carry ing negatively. Children often will not do their
on grimly, but take as many days off as they homework, but spend the time roaming the
are entitled to and also waste teaching hours streets or becoming involved in gang activi-
attending union meetings, protests, strikes or ties. Teachers’ reluctance to reprimand mis-
other activities. Absenteeism among teachers behaving learners may be part of the cause of
is both a symptom of disorder in the school the high levels of disorder in some schools.
and a cause of further disorder, as it has a The lack of interest in schoolwork and their
negative effect on the education of learners disrespect for teachers contribute to the
and promotes an irresponsible attitude. Any drop in teacher morale, which in turn reduces
absence from class by a teacher is exploited the teachers’ motivation to try to control the
by the learners. learners’ misbehaviour.
Van Schaik
©pubiishers 95
How learners are handled at school may best friends had been arrested or had broken
also become a risk factor. Some teachers or the law. It was found that the rate of commit-
school staff may label a child or dramatise a ting offences was lowest for youths with non-
situation of non-compliance with school rules misbehaving peers, higher for youths with mis-
without trying to understand the child and behaving peers, and the highest for gang mem-
be compassionate. Generalisation is the seed bers (Battin-Pearson et al. 1998: 2), thus asso-
of prejudice, and prejudice can harm a child ciation with antisocial peers becomes highly
for life. The results of the Cambridge-Somer- significant.
ville Project in the US illustrate this. As part
of this project, experts identified teenagers at
4.4.4.1 Antisocial peer associations
risk of becoming involved in crime and gave
them intensive support. The result was that The dynamic factor of antisocial associates
they had a higher rate of suicide, experienced is routinely hailed as among the most potent
less educational success and even seemed to predictors of recidivism. Teenagers and ado-
have fewer social skills. They also acquired lescents have a powerful urge to be around
more extensive criminal records than other their friends at a time in their life when the
teenagers not included in the project. It is pos- need to associate with their peers and to mini-
sible that the selected group started seeing mise the importance of relationships with their
themselves as “potential delinquents” as they parents is great. “Hanging out” with friends
started talking about their difficult life cireum- does not, however, necessarily mean joining
stances. The lesson learnt from this project is a gang. Although there is general agreement
that prevention must be delivered in non-stig- that youth misbehaviour occurs most fre-
matising ways and caution must be exercised quently within a group context, there is much
with regard to programmes that cater only less understanding of the nature and quality
for “potential delinquents” (Cherney & Sutton of young offenders’ relationships with their
2006: 382). friends or about the relationship between
peers and young offenders. The quality of the
relationships of those who persistently misbe-
4.4.4 Extrafamilial relationship have with their friends is also uncertain.
variables The idea that misbehaving youths have
comparatively warm, intimate social relations
Youths are also involved in extrafamilial rela- with their peers seems to be a myth, as Chaiken
tionships that can contribute towards their (2000: 6) reports that youth offenders feel dif-
feeling positive about themselves and acting ferent or isolated from their peers (“I usually
positively towards others. Despite the fact keep to myself because I am not like other
that peers can make unique and powerful con- people my age”). Researchers generally agree
tributions to a child’s development in many that most misbehaviour, especially the more
domains, peer influence is often regarded with violent forms, is committed in groups, but they
suspicion. There is a reasonable assumption disagree on the quality of the relationships
of a strong (negative) correlation between within these groups and on the influence of
peer delinquency and peer collective efficacy. groups on law-breaking behaviour (Bartollas
Researchers have identified peer misbehaviour 2013: 87).
as one of the strongest predictors of law break- There seems to be some agreement that
ing, although the effect of belonging to a gang the causal path of law-breaking youths is from
has not been separated from the effect of sim- peers to criminal behaviour. The association
ply associating with misbehaving peers (Bat- with deviant peers increases the likelihood
tin-Pearson, Thornberry, Hawkins & Krohn that a young person will engage in antisocial
1998: 1). The Seattle Social Development Proj- behaviour. Males and females differ in expo-
ect and the Rochester Youth Development sure to misbehaving peers, with males being
Study are research studies in this regard. more likely than females to have antisocial
Youths with misbehaving peers were not nec- friends and appearing to be more strongly
essarily members of a gang in the survey year, affected by their peers (Andersson & Stavrou
but claimed that at least two of their three 2001: 71). Another factor to take into consider-
Van Schaik
96 © Publishers
ation is that adolescent females are more likely problem behaviours (i.e. reactivity, aggression
than adolescent males to date older partners, and impulsivity); antisocial beliefs; delinquent
who may provide them with drugs and alco- peers; and commitment to deviant peers.
hol. Such relationships may also create more Although Cox et al. (2014: 314) are in support
opportunities to socialise away from adult of the identified risk factors, they also include
supervision, giving such girls access to cars prior gang membership of a family member as
and increasing their exposure to antisocial and a risk factor. Based on the discussion below,
offending activities such as truancy. Young and prior gang membership of a family member is
D’Arcy (cited in Anderson 2012: 47) postulate an indicator for both male and female involve-
that girls with older partners may have a histo- ment. Evident is the gang families on the Cape
ry of psychological vulnerabilities that makes Flats in South Africa.
them more susceptible to the advances of Peterson (2012: 77-78) finds that many risk
older men. As a result, they become involved factors appear to be shared by girls and boys
in the activities of their dating partners with (for fun, for protection, because a friend was in
little or no regard for the consequences of the gang, and to gain respect), although there
their behaviour. are factors unique to each gender, for example
This conforms to the trend that most school factors. which are more influential for
youths who commit offences and are arrested girls than for boys. Sharp et al. (cited in Mal-
with peers are under the influence of alcohol licoat 2012: 397) postulate that risk factors for
or drugs at the time of the misbehaviour. If one gang involvement among boys are being drunk
takes account of these research findings, one in the past year and an attitude to certain crim-
can debate whether a group of peers may get inal acts. Risk factors for girls include disorder
“high” together by using alcohol and/or drugs problems in their local area, little or nothing to
and then encourage one another to commit do in their local area, and a poor perception of
illegal acts. This is known as the group psycho- school. The common risk factors for both gen-
pharmacological effect, and peers may actually ders include having friends who are in conflict
group together with this intention. with the police, having run away from home,
and having been suspended from school.
Females tend to become involved in gangs as a
4.4.4.2 Gang membership result of being sexually abused at home, expo-
Definitions of the concept “gang” varies in sure to domestic violence, having drug users
the literature. The most common crimino- and criminals in their family, and their desire
logical definition of “gang” according to Hall for friendship, solidarity, self-affirmation and a
(2014: 207) is “a durable and structured group, sense of new possibilities (Peterson 2012: 77;
often territorial and hostile to others, which Cox et al. 2014: 318).
regards crime and violence as integral to its Not all gangs are a danger to the commu-
identity”. For the purpose of this discussion, nity, although they may put their members
a gang can be seen as a group of young peo- at risk of breaking the law. Gang membership
ple who form an allegiance for a common and gang-related crime are primarily a youth
purpose. Compared to boys, girls are less problem. Gang membership, especially at an
likely to be members of gangs. According to early age, is strongly associated with future
Sharp, Aldridge and Medina (cited in Mallicoat criminal activity, and many gangs exist only for
2012: 397), involvement in so-called delinquent crime. Often, crime is committed to control the
youth groups peaked at ages 14-15 (12%), local drug market, as well as to extort money
decreasing by 9% at ages 16-17 and another for the freedom to walk unmolested to and
2% at ages 18-19. from school; to use gang turf; to obtain pro-
Klein and Maxson (cited in Peterson tection from extortion or from being attacked
2012: 76) evaluated 20 studies and _ identi- or abused; or to use certain school hallways,
fied the following six risk factors that most- gymnasiums or cafeterias.
ly supported gang membership, namely lack Criminal action is not the only outcome
of parental supervision; negative life events of being a gang member. The following man-
(such as serious illness, school suspension ifestations are also part of gang membership:
and intimate relationship disruption); early distinctive clothing (the colour, style or man-
HE) or
ner of dress); body markings such as tattoos; healthy pro-social relationships as actual
extreme haircuts like punk or skinheads; victimisation. Gang violence has a nega-
signs and symbols such as graffiti, hand signs tive effect on the delivery of quality of edu-
and jewellery; peer associations; attitude and cation.
behaviour such as rebellion, anti-authoritari-
anism or being disruptive; drug use or abuse; Male youth gangs are linked to serious crime
and low self-esteem (Quarles 1993: 42). Chan- problems in elementary and secondary schools
dler and colleagues (cited in Howell & Lynch in the US (Howell & Lynch 2000: 1). A strong
2000: 2) identify the most frequent criteria correlation is found between the presence of
students recognise as indicating the presence gangs and both guns and drugs in schools, and
of gangs at schools in the US, namely allocat- the presence of gangs more than doubles the
ing names for different gangs, associating with likelihood of violent victimisation at school.
other members of a gang, wearing clothes or Cox et al. (2014: 317) pointed out that younger
other items to identify gang membership, tag- gang members maintain the turf-oriented activ-
ging or marking turf, and engaging in violent ities and street crime while adults move into
gang activities. more organised criminal activities.
The following main indicators of gang mem- Youth surveys consistently show that the
bership in South Africa are outlined by Shaw misbehaviour rate for female gang members
and Tshiwula (2002: 14): rumours or more reli- is lower than that for male gang members, but
able information that a youngster has not been higher than that for non-gang females and even
home for several nights; evidence of increased non-gang males (Kerig & Becker 2012: 133-
substance abuse; abrupt changes in behaviour 136). Female gang members commit fewer vio-
and personality; newly acquired and unex- lent crimes than their male counterparts, and
plained wealth, often showered on or shared are more inclined to commit property crimes
with peers; requests to borrow money; hang- and status offences. Female gang members
ing around others but not having meaningful admitted to being involved in gang fights, car-
discussions with them; evidence of mental or rying a weapon for protection and attacking
physical abuse; a dress style adopted by only another with a weapon. Drug-related offences
a few (e.g. a specific colour, style or item of are among the most common offences commit-
clothing); and a particular hairstyle. ted by female gang members. According to a
These indicators of gang membership are report by the Chicago Crime Commission (Reid
significant because they shed valuable light 2012: 459), female teen gangs selling their own
on the motives or reasons for youths initially drugs are willing to participate in violent crimi-
becoming gang members. For example, uni- nal activities at the same rate and level as their
form clothing reflects group cohesion, and male counterparts.
a violent act expresses frustration or rage. In
this context, gang membership and expressing 4.5 RISK FACTORS ON AN
interest in gang membership can be regarded
INDIVIDUAL LEVEL
as risk factors.
The Cape Flats in the Western Cape prov- Variables discussed in this section are age and
ince of South Africa is known for its gangs gender as biographical factors, and biochemi-
and associated violent activities. There are cal, neurophysiological and genetic factors as
some 100000 gang members and roughly one biosocial variables.
gang-related murder a day in gang-dominated
areas. Mncube and Steinmann (2014: 203),
4.5.1 Biographical variables
noted that
. the fear of gang-related violence at 4.5.1.1 Age
school can be as harmful as primary vic- As a general rule, the crime rate follows the
timisation and personal experiences of proportion of teens in the population. A high
violence, causing learners to drop out or crime rate may be attributed to the high per-
avoid school, or to lose concentration in centage of crimes committed by young peo-
the classroom and in learners developing ple, as criminal careers of the youth usually
start during adolescence and early adulthood experience these to a lesser extent, but boys
(17-20 years) and peak during adulthood (at are more exposed to risk factors than girls.
30 years of age), declining rapidly thereafter Boys generally live in a wider geographic
(Siegel 2012: 52). About 70% of South Africa’s area than females, spend more time outside
20 million young people are more likely to be the home, have greater freedom of physical
victims and perpetrators of assault, robbery movement and engage less in adult role activ-
and property theft than adults older than 34 ity compared with young females. They are
years (Seeth & Maphumulo 2016). more influenced by their criminal peer asso-
Based on the results of his study, Chaiken ciations, carrying weapons, alcohol abuse
(2000: 6) reports that the boys who misbe- and aggressive feelings. Based on these risk
haved least were the youngest (with a median factors, males become engaged in antisocial
age of 14,65) and the ones who misbehaved activities.
most were the oldest (with a median age of Girls are more home and family bound.
15,83 years). Newburn (2002: 540) states that Their criminal behaviour, according to Zahn
self-reported studies confirm that committing and colleagues (cited in Cox et al. 2014: 70),
an offence in the teenage years is relatively significantly correlates with family risk factors
common. The peak age for offending juveniles such as negative and critical mothers, harsh
is higher for males (18) than it is for females discipline, inconsistent discipline, family con-
(15). The age-crime curve varies between 14 flict, frequent family moves, multiple caregiv-
and 18 years (Bliesener 2012: 57). ers, longer periods of time with a single parent
Age on its own cannot be regarded as a and growing up in socioeconomically disad-
risk factor. It is not a personal characteristic, vantaged families. Females seem to be more
but an index of the likely stage that someone influenced by their place of residence, child-
has reached in a partly predictable sequence hood, stress, depression, fearfulness. roman-
of development, and is an indicator of social tic relationships and suicidal thoughts (Benda
standing. Smith (2002: 702) argues that the cited in Siegel 2012: 314).
explanation for the effects of age lie in the Although cognitive differences between
detailed process of development and in asso- girls and boys have been determined, this
ciated meanings and social roles. Various stud- mostly affects behavioural variations. For
ies have found a link between aggressiveness example, girls are more empathetic than boys
in childhood and later criminality because and therefore tend to have a better under-
of a combination of characteristics including standing of others’ feelings. When confronted
both aggressiveness and hyperactivity (Smith with conflict, females are more inclined to nego-
2002: 714-715). Similarly, a longitudinal study tiate. These behavioural patterns would deter
conducted in Sweden showed that hyperactiv- them from committing antisocial acts. Boys, on
ity at the age of 13 predicted police-recorded the other hand, are more inclined to compete
violence up to the age of 26 (Farrington for material success. Young males also tend
2002: 667). Another such study done in New to act more aggressively than young females,
Zealand on the link between childhood tem- with the result that some become involved
perament and later misbehaviour found that in violent types of crime such as assault,
where a dimension of temperament (rest- rape and malicious damage to property.
lessness, impulsiveness and poor attention When confronted with conflict, males will
span), which predicted aggression, was under- respond physically, which may result in harm
controlled, self-reported acts of misbehaviour or death.
and convictions in the age group of 18-21 Distinct gender differences exist in the
occurred (Farrington 2002: 666). crime rate. Male criminals far outnumber
female ones. Official statistics of arrests, victi-
misation data and self-reported studies show
4.5.1.2 Gender that adolescent females are involved in less
When one considers gender as a risk factor, frequent and less serious misbehaviour than
one should focus on characteristics associated adolescent males (Newburn 2002: 547-548; Sie-
with the young, such as impulsivity, rebellious- gel 2012: 53). However, the patterns of female
ness and deceitfulness. Girls do not necessarily youth misbehaviour are changing globally.
(crite) gg
The altering role of females in society and the aggressive behaviour. Ross (2016: 1) provided
differential handling of female offenders by the some for the idea that supplements, in con-
criminal justice system play a part in account- junction with cognitive behavioural therapy
ing for the increase in female youth crime may reduce aggressive behaviour in children.
(Blanchette & Brown 2006: 2-3). According to Siegel (2012: 146), there is
an association between episodes of violent
behaviour and abnormal levels of male sex hor-
4.5.2 Biosocial factors mones known as androgens. Other androgen-
Biosocial factors include information about related male traits that are also linked to anti-
both environmental and biological risk factors. social behaviour are sensation seeking, impul-
Any trait, characteristic or behaviour of any sive behaviour, dominance and limited verbal
living creature is always the result of biological skills. Owing to the changes occurring in their
factors interacting with environmental ones. growing bodies and the relationship between
hormonal changes and mood, adolescents will
experience more intense mood swings and
4.5.2.1 Biochemical factors increased anxiety and restlessness than older
The debate around the role of biochemical people. Boys with high levels of the male sex
factors as a risk factor in developing abnormal hormone testosterone (the most abundant
behaviours such as violence and aggression is androgen, which controls secondary sex char-
ongoing. Some researchers support the view acteristics such as facial hair and voice tim-
that the chemical composition of the body is bre) show less tolerance of frustration and are
controlled by diet, blood chemistry and aller- more likely to display antisocial behaviour.
gies, which have an effect on personality traits Sample surveys of inmates indicate that tes-
such as aggressive tendencies and depression tosterone levels were higher in men who com-
(Siegel 2012: 144). mitted violent crimes than in other prisoners
Various researchers reported that a diet (Siegel 2012: 146). The outcome of a study in
with a high intake of artificial colouring in food, 2002 by Rowe (cited in Walsh 2014: 140) on the
milk and sweets, and high levels of sugar and effect of testosterone among 4 462 males are
caffeine causes hyperactivity and aggression supported by the abovementioned findings.
in children (Walsh 2012: 140). Other studies Antisocial behaviour more than doubled (from
(Siegel 2012: 146) have linked the excessive 14,7 % to 30,1%) among those males from a low
consumption of refined sugar to hyperactivity, socioeconomic status (SES) with a high testos-
aggressiveness and violence. Hypoglycae- terone level, in comparison with males with a
mia is a condition that arises when glucose low SES and normal testosterone levels. High
levels in the blood drop below an acceptable SES and high testosterone levels do not have
level, which impairs the function of the brain, an effect on antisocial behaviour. It is clear
and results in headaches, anxiety, confusion, that the effect of testosterone depends quite
exhaustion and aggressive behaviour. High lev- a lot on social context, and therefore it would
els of reactive hypoglycaemia have been found not be wise to separate biological and envi-
in groups that have habitually violent and ronmental variables when striving towards a
impulsive behaviour (Siegel 2012: 146). better understanding of complex behaviour.
Although the relationship between the Maughan (cited in Walsh 2014: 140) deter-
intake of sugar and deviant behaviour remains mined in 2005 that testosterone levels were
unclear because of conflicting research find- unrelated to conduct problems for boys with
ings, it has been found that the diets of young “non-deviant” or “possibly deviant” friends,
people in detention differed from those of while problems elevated among boys with high
non-offending young people. The role of food testosterone who associated with “definitely
and diet in producing criminal behaviour, how- deviant” peers.
ever, has not been well established. Deficien- Although the relationship between the
cies in certain essential nutrients such as vita- female menstrual cycle and criminal behaviour
min C, niacin, thiamine, pantothenic acid, vita- has been found to be too vague and indirect,
min B6 and minerals such as magnesium, cal- a drop in serotonin levels in the female brain
cium, copper, iron and zinc may also improve just prior to menstruation might explain the
100
agitation and irritability sometimes associ- able neurological defects such as impairment
ated with the premenstrual syndrome. Sero- in the prefrontal lobes, thalamus, medial tem-
tonin is also referred to as the behaviour- poral lobe, superior parietal and left angular
regulating chemical, since animal studies have gyrus areas of the brain (Siegel 2012: 149). The
demonstrated a link between low levels of resultant behaviour includes poor impulse
the neurotransmitter present in the brain and control, inadequate social skills, hostility,
aggressive behaviour. Low serotonin levels in temper tantrums, destructive behaviour and
humans have been linked to offending and low hyperactivity. Scientific investigations have
self-control (Walsh 2014: 142). Fishbein (cited associated slow brain activity with young
in Siegel 2012: 1473) indicates that a significant offenders.
number of incarcerated females committed There is also a neurological pattern called
their crimes during the premenstrual phase minimal brain dysfunction (MBD). This is an
and that at least a small percentage of women abnormality of the brain structure that results
appear vulnerable to cyclical hormonal chang- in behaviour that is detrimental to a person's
es, which makes them more prone to anxiety lifestyle and social adjustment. Learning
and hostility. However, the overwhelming disability is one specific type of MBD. MBD
majority of women who do suffer anxiety reac- includes perceptual impairment, brain dam-
tions prior to and during menstruation do not age, dyslexia and developmental aphasia, to
actually engage in violent criminal behaviour. name a few. Research findings differ with
regard to learning disabilities as a risk factor
for youths becoming involved in criminal activ-
4.5.2.2 Neurophysiological factors ities (Siegel 2012: 149).
Neurophysiology focuses on the study of Organic brain disorders caused by traumatic
brain activity. Some researchers believe brain injuries, brain tumours and psychomotor
that neurological and physical abnormalities epilepsy lead to disrupted neural functioning,
occur during the perinatal stage or through which in turn causes disorders in thinking,
birth-delivery trauma, and that these control often resulting in feelings such as fear, anxiety,
behaviour throughout the person's life (Siegel anger and depression, and unexpected out-
2012: 149). Research findings show a significant bursts. Depending on the location of the brain
relationship between aggressive behaviour tumour, certain personality changes such as
and impairment in executive brain functions irritability, fear, slovenliness and outbursts of
such as abstract reasoning, problem-solving anger can contribute to the risk of becoming
skills and motor behaviour skills. This relation- involved in aggressive behaviour.
ship can be detected at a young age. Children
who suffer from measurable neurological defi-
4.5.2.3 Genetic factors
cits at birth are more likely to become crimi-
nals later in life (Siegel 2012: 149). The electric In the context of this work, genetic factors
impulses given off by the brain are measured refer to an inherited aggressive predisposi-
with an electroencephalogram (EEG). Accord- tion and inherited conditions associated with
ing to Siegel (2012: 149), violent criminals have crime, such as an impulsive personality. Chap-
far higher levels of abnormal EEG readings ter 6 discusses individual positivism regarding
than non-violent or one-time offenders. About the belief that criminality runs in families. The
50-60% of adolescents with known behavioural focus of the discussion in this current chap-
disorders have abnormal readings. ter covers how genes and environments work
The neuroendocrine system that controls together to develop the holistic traits of the
brain chemistry provides a key to explaining person, such as height, weight, IQ, impulsive-
aggressive behaviour. Antisocial behaviour ness, blood sugar levels, blood pressure, and
and drug abuse are associated with a chemical so on. According to behaviour geneticists,
imbalance in the chemical or hormonal activi- genes do not cause the way individuals behave
ties of the central nervous system. or feel, but facilitate tendencies or disposi-
Neurological functions associated with tions to respond to their environment. Genes
aggression and violence are complex. Children contribute to the choices people make and
with behavioural disorders may have identifi- therefore to the ease or difficulty in living with
oven Schaik
Publishers oT O1
_
a person. Personality refers to the relative, risk to show antisocial behaviour is lower in
enduring, distinctive, integrated and functional the structured healthy family with both biolog-
set of psychological characteristics that result ical parents present.
from people’s temperaments interacting with
their culture and developmental experiences
(Walsh 2014: 272). 4.5.3 Psychosocial factors
Behaviour is the result of biological factors Psychosocial factors refer to a combination of
such as genes interacting with environmen- social conditions conducive to crime and the
tal factors. There are no specific genes “for” individual's psychological willingness to com-
criminal behaviour, but there are genes that mit crime.
lead to particular traits such as low IQ and
low self-control that increase the probability
of criminal behaviour when combined with 4.5.3.1 Intelligence as factor
certain environments, such as community dis- Intelligence is the mental, motivational and
organised environments, high unemployment behavioural capabilities to understand and
or communities with gang activities. The role adapt effectively to varied situations and envi-
played by the environment and an individu- ronments (Livermore 2011:25). Walsh and
al’s genes are therefore related. Yochelson Ellis (2007: 170-173) debate the relationship
and Samenow (cited in Schmalleger 1996: 284- between intelligence quotient (IQ) and misbe-
285) identified 52 “errors of criminal thinking” haviour. They found the link between a learn-
that form the criminal’s personality. These er’s average marks at school and antisocial
include a lack of interest in schooling; perva- behaviour to be a better predictor than IQ.
sive intense anger, sometimes expressed or Academic achievement is a measure not only
often just under the surface; manipulativeness; of intelligence, but also of other personal and
an inflexible, high self-image; chronic lying; situational characteristics such as hard work,
super-optimism; and a view that other people’s good study habits and supportive parents.
property is one’s own (entitlement). Other fac- According to the National Longitudinal Study
tors included here are high levels of energy; of Youth (Walsh & Ellis 2007: 173), a low IQ
fear of injury, rejection or death; present orien- does, however, affect many areas of life and
tation and no contemplation of long-term con- increases the probability of misbehaviour. Low
sequences; and the deriving of enjoyment from intelligence as measured by IQ tests is difficult
reckless and law-violating behaviour, such as to be linked to crime because people with a
vandalism. low IQ are said to lack the ability to calculate
Some of these abnormal thinking patterns correctly the costs and benefits of committing
seem contradictory, for example fearfulness crimes, and temperament is linked to crime
and super-optimism. This, however, is a sign largely in terms of impulsiveness. In addition,
of the fleeting quality of the criminal’s emo- IQ scores (psychometric intelligence) and
tions. The criminal’s thinking is dominated by intelligence per se should not be confused. A
self-centredness and selfishness. Such a per- person’s IQ merely refers to a standardised
son demands to be treated with respect and score from an IQ test. However, intelligence is
consideration, while displaying no respect for seen as an all-encompassing ability that defies
the rights, feelings or property of other people. the score on an IQ test, as it is more relevant
Various studies (cited in Walsh 2014: 132) to how people in different strata in life per-
postulate that a correlation exists between ceive intelligence. Often, intelligence is related
genetic factors and the different family struc- to competence, wisdom, intuition, judgement,
tures in which an individual finds him- or her- sense of humour and skills in different areas
self, such as broken families or intact homes. (e.g. musical talent vs mathematical genius)
The type of family structure is a variable often and it is a good marker for adaptive success in
linked to antisocial behaviour. The family modern society (Bartol & Bartol 2017: 72).
type that is more at risk to produce antisocial Other forms of intelligence can be identi-
behaviour is the broken family with a divorced fied, although their roles as risk factors for
or single mother with children fathered by dif- youth misbehaviour have not necessarily been
ferent men or raised by the mother only. The researched. Emotional intelligence (EQ) is the
Van Schaik
102 © Publishers
ability to detect and regulate one’s own emo- ity to delay gratification. This section focuses
tions and those of others. Social intelligence on traits such as impulsiveness, sensation
SQ) is the ability to understand and manage seeking, conscientiousness, empathy, altru-
people, and to act appropriately in social inter- ism and moral reasoning, and their relation to
actions. Practical intelligence (PQ) is the abil- crime. Criminal behaviour is almost always the
ity to solve practical problems as opposed to result of a group of risk factors rather than of
academic or theoretical ones. All three of these any single one.
intelligences - emotional, social and practi- According to Agnew (cited in Walsh & Ellis
cal - predict the likelihood of being effective 2007: 176), impulsiveness is a potent risk fac-
in various situations. Another type of intelli- tor for criminality and it becomes more so
gence, namely cultural intelligence (CQ), is the if negative emotionality is added. Sensation
capability to function effectively in a variety of seeking refers to a desire for novel, varied and
cultural contexts such as ethnic, generational extreme sensations and experiences, and it
end organisational cultures. CQ can be used to may result in the taking of physical and social
become better able to relate to peer groups, risks to obtain such a sensation. There is a
classmates and neighbours who come from statistically significant relationship between
other parts of the world, which is even more sensation seeking and various kinds of antiso-
important today as technology connects peo- cial behaviour (Walsh & Ellis 2007: 178). Con-
ple from different cultures around the globe. scientiousness, a trait preferred by employers
in their employees, includes aspects such as
being well organised, disciplined, responsi-
4.5.3.2 Personality traits ble and paying attention to detail. In contrast,
Personality traits refer to the type of behaviour there are also traits like being disorganised,
people continuously choose to display. This careless, unreliable, irresponsible and unscru-
behaviour reflects their approach to all their pulous.
experiences and is generally pervasive, not a Conscientious individuals are more likely
once-off or isolated event. All people have dif- to be successful, whereas the less conscien-
ferent personality traits but in varying degrees tious are less likely to compete effectively
of intensity. A person’s traits will influence his in complex industrial societies. On the more
or her behaviour in a particular way in a par- social front, empathy - another trait - enables
ticular situation. People often say: “We are all a person to understand another’s feelings and
the same, but different” which implies we all pain, a trait that not all people have. Research
have similar needs and are similar regarding by Baron and Byrne (Walsh & Ellis 2007: 179)
mind, thoughts and feelings, yet every individ- shows that offenders are significantly less
ual is unique in his or her own way. This differ- empathetic than non-offenders, and are there-
ence and uniqueness often relates to person- fore also less eager to contribute to the well-
ality type, namely the so-called introvert and being of others. Altruism is another trait more
extrovert. When a person is reserved and does common to non-criminals, as is moral reason-
not open up easily, recharges by being alone, ing. Moral reasoning is supported by person-
struggles with change and listens more and ality traits such as empathy and altruism, and
says less, he or she is referred to as an intro- is related to an individual's IQ (Walsh & Ellis
vert. On the contrary, when a person is socia- 2007: 179). Although not all immoral behaviour
ble and talkative, is distracted easily, likes is criminal, there are certain commonalities
attention and makes friends quickly, then his such as violating social expectations and ignor-
or her personality type is extrovert (Costa & ing obligations towards others.
McCrae 1980: 668)
Many theories which refer to the poor abil- 4.6 HISTORY OF CONDUCT
ity of a person to control his or her behaviour DISORDER AMONG YOUNG
recognise the presence of traits such as impul-
OFFENDERS
siveness, hyperactivity, restlessness, clum-
siness, heedlessness, a poor ability to plan Research findings show that the type of crime
ahead, short time horizons, low self-control, a youth commits as a first offender is signifi-
sensation seeking, risk taking, and a poor abil- cant (strategic offence), since the offence itself
even Schaik
Publishers) 103
is indicative of a certain lifestyle, which in 4.7 IDENTIFIED COMBINATIONS

turn involves the risk of a continued criminal OF RISK FACTORS
career, It is a well-known fact that a small per-
centage of offenders are responsible for a large The more risk factors present, the greater the
proportion of crime. Chaiken (2000: 5) reports chances of behavioural problems. Exposure to
that property offenders (31,9% of the sample one risk factor alone does not condemn a child
he cites) who commit offences such as bur- to problems in later life; however, exposure to
a number of risk factors increases the chances
glary and vehicle theft are responsible for the
of this occurring.
greatest number of violent crimes. One may
Some may Say it is too difficult to identify
conclude that boys involved in a spectrum of
risk factors for young people while they are
crimes, including robbery and property crimes
still in the at-risk category. It is true that risk
such as burglary and vehicle theft, are more at
factors involve complex, systemic processes,
risk of being in more serious conflict with the but some researchers believe that such factors
law later in life than those who assault oth- can be identified and even go as far as listing
ers, or deal in drugs and occasionally get into the most common ones. Tremblay (2012: 3-16)
fights. assesses and summarises various research
Svensson (2002: 408) identifies vehicle theft findings pertaining to environmental, genetic
as the most common strategic offence. Rob- and epigenetic influences (risk factors) on anti-
bery and other theft are also designated as social behaviour as follows:
strategic offences. If one examines the prin-
cipal offences of an individual's first and sec- ¢ Developmental trajectories of disruptive
ond convictions, risk combinations emerge. A behaviour from early childhood to adult-
person whose first and second convictions are hood are the consequence of genetic and
environmental endowment.
both for vehicle theft runs a 60% risk of becom-
ing a chronic offender. Vehicle theft in combi- ¢ The early environment is created by the
nation with another strategic offence, namely parents’ own developmental history and
other theft, produces a 54% risk of the indi- has a major impact on disruptive behaviour
vidual becoming a chronic offender (no mat- through its impact on gene expression and
ter which of the two types of offence comes brain development.
first). The combination of a drug offence and e¢ Mothers appear to have the greatest impact
a theft is also a high-risk one. The combination on early gene expression.
that produces the lowest risk (2%) involves a e As children grow older, the larger envi-
first conviction for vandalism and a second for ronment, such as peers, has an impact on
assault. The combination of shoplifting as a disruptive behaviour partly through gene
first and second offence is also a low risk, with expression.
only 7% of such individuals becoming chronic e The genetic and environmental effects on
offenders. disruptive behaviour development also
Cox et al. (2014: 337-345) list the primary have numerous other negative effects such
offences committed by young offenders in as mood disorders, obesity, allergies, asth-
South Africa as theft, robbery, smuggling, pros- ma, substance use, school non-achievement
titution, the abuse of narcotics and drug traf- and unemployment.
ficking. In Asian countries, the crimes commit-
ted by the youth include drug trafficking and Cox et al. (2014: 337-345) posit a global pic-
other drug-related offences, as well as violent ture related to risk factors. These are similar,
crimes. although different nuances were shaped by
When comparing the crime rate of South internal and external factors unique to a par-
Africa and Asia (Cox et al 2014: 340), South ticular region or country. The key risk factors
Africa reported more crimes that are violent. in Africa include poverty, malnutrition, unem-
The question can be asked if the appearance of ployment related to rapid population growth,
violent crimes among South African youth as a living in informal settlements with unhealthy
first offence could be the reason for the high housing, a rise in the number of street children
crime rate. due to incomplete families and the effect of
1
HIV/AIDS. In Asian countries, youth unemploy- Table 4.1 Risk factors

ment and drug addiction are prominent. Risk
factors associated with Latin America include Broad area | Specific risk factors
economic problems, unemployment, home-
lessness, government corruption and military Family or An economically stressed family;
skirmishes. In some countries in the Middle home incidence of physical and sexual
East the risk factors are urbanisation, econom- factors abuse; poor parental monitoring
and support; loveless parents; a
ical factors and the increasing heterogeneity
lack of supervision; parents using
of the population, as well as conflict between
alcohol and/or drugs; a negative
Arab-Islamic values and modern views import-
relationship with parents; harsh
ed from other areas of the world. In Eastern
and erratic parenting; broken
Europe, unemployment and low family income families; child-headed house-
are the main contributors to youth offending. holds
Family factors further add to the risk factors,
namely dysfunctional families with parents Community Poverty; neighbourhoods with a
often being alcoholics and/or drug addicts, factors high crime rate; unemployment;
with mental health issues or criminal back- socioeconomic conditions with
grounds. reference to a lack of shared
Based on the international research find- decision-making power between
ings discussed in this chapter, the main risk sexes and races; illiteracy; vio-
factors can be grouped into five broad areas: lence (including political); a lack
those present in the child or young person; in of community involvement; the
the family; in the school environment; in extra- disparity between rich and poor;
familial relationships; and in the environment a conflict of norms; HIV/AIDS;
awareness of freedoms and
or wider community. Most researchers identify
factors present in the family as the main risk rights, but not responsibility; child
prostitution; substance abuse;
factors, followed by individual risk factors,
the lack of spirituality
those in the school and in the community, and
those based on extrafamilial relationships. School Lack of education; poor aca-
The grouping of risk factors in South Africa factors demic performance; failing; tru-
corresponds with international research find- ancy; problems at school; poor
ings, but there are differences in ratings. In schooling; inconsistent discipline;
South Africa family factors are the most influ- inadequate or no school facilities;
ential in contributing to misbehaviour. These lack of role models; poor learner—
are followed by risk factors in the community, educator relationship; lack of
in the school, in extrafamilial relationships and parental involvement; peer pres-
in the individual. sure
Examples of the risk factors listed in
Extrafamilial Associations with deviant peers;
research findings are summarised in Table 4.1.
relationship peer pressure; gang membership
factors
4.8 CONCLUSION Individual Age (early onset of aggressive
The risk factors in South Africa correspond factors behaviour); gender; feeling that
with those identified elsewhere in the world, life is oppressive; lacking hope
but the emphasis differs. Throughout the for the future; feeling alienated;
world it is felt that most of the listed risk fac- difficult personality; personality
tors originate in the family or home. While type; cognitive scripts; brain
international researchers list individual factors disease; mental disorder; poor
refusal skills (internal buffers); |Q;
as the highest, and environmental factors in
temperament; level of attach-
the penultimate position, many South African
ment and bonding; genetic pre-
researchers identify family and home factors
dispositions; neurophysiological
first, followed by factors in the community,
factors; self esteem
with individual factors in the last place. Some
Van Schaik
©publishers 105
researchers do not even refer to the role of maturation process. Young offenders who
individual factors, whereas others deem them commit crimes might believe that they are not
important. No consensus exists with regard responsible because of their circumstances,
to the role of individual factors, community and thus instead of addressing the problem,
factors and family influences in the causation society increases its own vulnerability to these
of crime. It is safe to assume that a complex youthful offenders.
interplay between all the factors as illustrated Overall, research findings support the
in Table 4.1 in a person’s life contributes to the conclusion that no single cause or risk factor
behaviour he or she displays. accounts for juvenile misbehaviour and that
Although certain risk factors can be iden- no single path leads to a life of crime. To date,
tified, this must not be seen as an excuse for however, research has not clearly identified
engaging in crime as such an approach will all the causal paths that lead to youth misbe-
make people less accountable to society, and haviour or the factors that cause different indi-
will slow down rather than encourage their viduals to pursue different paths in life.
CRITICAL QUESTIONS
1. Critically explain your viewpoint regarding the definition of the concept “risk factor” and distinguish
between the different types of risk.
2. Consider the different types of risk factors as offered in this chapter. Indicate those that you would sug-
gest as being present in most research findings.
3. Describe the community variables applicable to the South African situation that have a negative effect
on the child and increase the risk of criminal behaviour.
4. A variety of risk factors in the family creates a situation where the child is likely to develop criminal ten-
dencies. Critically debate this statement.
5. Discuss the incidence of crime and violence in schools.
6. Identify and debate seven main risk factors mostly supporting gang membership.
7. Indicators of gang membership are significant because they shed valuable light on the motives or rea-
sons for youths initially becoming gang members. Debate this statement.
8. Analyse the main indicators of gang membership in South Africa.
9. Various studies have found a link between aggressiveness in childhood and later criminality because of
a combination of characteristics including both aggressiveness and hyperactivity. Debate this statement
by referring to the following risk factors: age, genetic factors and personality traits.
10. Debate how the risk factors of poverty, unemployment, socioeconomic status of the family and bio-
chemical factors may influence a boy's engagement in antisocial and criminal activities.
11. Evaluate the following statement: “Children who suffer from measurable neurological deficits at birth
are more likely to become criminals later in life.”
12. Debate the relationship between intelligence (IQ) and misbehaviour.
13. Identify offences whose appearance early on in a criminal career indicates a risk of the continuation of
such a career,
106
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Finis nd Cheistiaatt Bez
B. ee
OBJECTIVES KEYWORDS
You should be able to community youth
* understand the causal factors of youth criminality development
* understand the relationship between socio-moral development emotional poverty
and decision making high-level socio-moral
+ — discuss the potential implications of emotional poverty reasoning
* identify common thinking errors among young people engaged low-level socio-moral
reasoning
in criminality
neuroplasticity
* explain community youth development.
thinking errors
5.1 INTRODUCTION held a job in the past, but it required too much
structure and paid much less in comparison to
During discussions between the first author of what he could make selling drugs on the street.
this chapter and juveniles at Pollsmoor Prison The second author regularly visits youth
in Cape Town in July 2001, one young prisoner correctional facilities and interacts with the
rationalised his incarceration as being due to youths. During one project at such a facility
the fact that he could not get a job. He firmly during 2016, the youths were asked why they
believed his criminal activity was justified committed crime. Most of the violent offenders
because of a lack of opportunity in his commu- stated altruistic expressive reasons. However,
nity rather than the result of his own decision the majority of the other young offenders stat-
making, yet deeper probing found that he had ed that blocked opportunities and job scarcity
(Omaiter) 409
prevented them from becoming employed. behaviour, especially before they become
However, many deemed crimes such as bur- institutionalised within the criminal justice
glary, hijacking or a robbery to be much more system?
profitable, and also preferable to having a Understanding socio-moral development
mundane, low-paying job. from a culturally and gender-sensitive per-
What motivates young people to choose spective is necessary in order to understand
criminality over social responsibility? More young people's decision making. South Africa’s
importantly, what can be done to redirect rich cultural diversity and African way of ubun-
young people from the avalanche of misfor- tu (i.e. the development and upliftment of the
tune that often comes from a life of crime? community through the goodwill of community
Globally, the causal factors of youth mis- members) offer a unique perspective on the
behaviour are often hotly debated, and South current and largely Western debate concerning
Africa is not excluded from this discussion. methods of ensuring the healthy socio-moral
Economic poverty, a lack of positive role mod- development of young people.
els, the level of violence in the community and The following framework is a result of 13
violence portrayed in the media are frequently years of research with young offenders in both
cited as contributors to the moral demise of the US and South Africa, merging African val-
young people. This chapter is designed to chal- ues and traditional Western theory, especially
lenge some of the more established causal fac- with regard to welfare and justice (Munsey
tors thought to influence young people’s nega- 1980; Piaget 1997; Cole 1997). Working with
tive behaviour, and to provide alternatives for youths in community, school and prison set-
consideration.
tings has demonstrated specific motivational
factors in young people’s socio-moral reason-
5.2 CAUSAL CONSIDERATION 1: ing, frequently with behavioural implications.
LIMITED SOCIO-MORAL Although nothing is absolute, these motivation-
DEVELOPMENT al factors suggest two levels of thinking: first-
ly, a low-level reasoning pattern focusing on
With frequent incidences of criminality occur- personal interests; and secondly, a high-level
ring in many South African communities, it reasoning pattern focusing on social responsi-
is not uncommon for community members, bility.
youth workers and practitioners to gener-
alise that children today lack morals, values
Table 5.1 Socio-moral development framework
and respect for authority, and sometimes for
human life. However, we may need to consider Low-level reasoning
that young people who misbehave may not
be lacking in morals or values but are instead Motivational factor 1: limited consequential think-
stuck in low-level socio-moral reasoning, often ing; motivational factor 2: individualism; motiva-
tional factor 3: interpersonal relationships
due to a lack of opportunity for healthy growth
and development. Many young offenders may High-level reasoning
consider their actions, irrespective of whether Motivational factor 1: social order; motivational
or not they break laws and rules, as moral, just factor 2: individual rights and responsibilities; moti-
and right. vational factor 3: ubuntu
For example, those whose gang becomes a
replacement for their nuclear family, perhaps
providing them with the emotional euphoria 5.2.1 Low-level socio-moral
that comes from feeling accepted and valued, reasoning
and giving them a sense of belonging, may
believe that acting to protect the gang’s best 5.2.1.1 Motivational factor 1: limited
interests - regardless of society's laws and consequential thinking
rules — is morally justified.
What is the reason for this justification Motivational characteristics are the following:
and how can youth practitioners and com- ¢ It demonstrates high concern for fear of
munity members redirect children’s negative punishment.
110
CHAPTER 5 THE SOCIO-MORAL REDIRECTION OF TROUBLED YOUTH
e It demonstrates little concern for “right” their mental processes start regulating their
versus “wrong”. life, cognitive scripts and interaction with soci-
ety. Their interactions with society and other
Attitude: “It’s only a mistake if you get caught!” humans are key in determining their mind pro-
cesses and awareness. Siegel (2012: 1-7) states
The fear of consequences as opposed to con- in this regard that the mind is not an activity
cern for “right” or “wrong” is one of the key of the brain “but instead can be seen as an
motivational thinking patterns associated with emergent, self-organizing process that arises
low-level socio-moral reasoning. Fear of conse- from bodily processes as a whole as well as
quences should not be equated with socially from our relationships”. If juveniles interact
responsible thinking, as the motivation for with like-minded youths and peers (stimulating
good behaviour in this case is not sympathetic their contextual awareness), they will receive
or empathetic consideration for others, but the necessary confirmation and justification to
the desire to avoid punishment. Kohlberg (in continue with their deviant lifestyle.
Bartol & Bartol 2017: 369) refer to this early
conventional stage as the “good boy” or “good
girl” orientation. 5.2.1.3 Motivational factor 3: interpersonal
relationships
Motivational characteristics are the following:
5.2.1.2 Motivational factor 2: individual-
ism ¢ “Right” versus “wrong” is defined in terms
of protecting the needs and interests of
Motivational characteristics are the following:
the people one cares about most (friends,
e “Right” versus “wrong” is defined in terms family).
of personal needs and interests. ¢ A gang mentality or subcultural value logic
e Obeying society's laws and rules is second- prevails.
ary to self-protection and self-preservation.
Attitude: “Regardless of laws and rules, my
Attitude: “My actions are moral and right if I actions are moral and right if | am protecting
am protecting myself or my interests.” the people I care about.”
The thinking pattern of individualism is moti- The focus on interpersonal relationships is

vated by self-interest. If young people believe potentially positive in that the young person
their actions are motivated by self-protection has moved from a “me” orientation to one of
or self-preservation, regardless of society's consideration for others. The challenge, how-
laws or rules, they will often consider the ever, is that the young person’s reasoning
actions to be justified. For instance, those who tends to be limited to the people he or she is
cannot afford a meal might steal food from in direct relationship with versus strangers
a local shop. Although they understand that or “others” who are not considered to be part
they are breaking the law, hunger has a stron- of the immediate social circle. This is often
ger influence on their decision making than the motivational factor in gang participation,
respect for other people’s property. where the young person may rationalise his
However, it is important to remember that or her decisions and actions as protecting the
a one-time incident of stealing food does not gang’s interests and wellbeing and therefore
translate into socio-moral decline. It is only
they are moral, just and right. As far back as
when juveniles adopt stealing as a lifestyle, 1993 Bartollas (1993: 55-56) mentioned specific
convinced that it is the only method of sur-
attitudes that most serious youth offenders
vival, and justify their behaviour through self-
displayed:
absorbed thinking that it becomes a limitation
in their development. In line with this is their ¢ If they do not look out for themselves,
awareness of their situation. This is a crucial nobody else will. Usually street-smart, hard-
aspect of how they use their mind to alter the ened youth offenders believe they have to
course of their life. In addition to an awareness, fend for themselves.
Van Schaik
publishers 1141
e Respect has to be earned through aggres- Attitude: “We need laws and rules that every-
sion. Violence must be used to show others one follows, otherwise there would be chaos.”
their prowess and to instil fear in them.
¢ Tomorrow does not matter. Only the pres- At this level of thinking, young people realise
ent matters as they have nothing to lose. that if everyone in a community were con-
cerned only about their personal interests,
¢ The weak will be exploited in every possible
there would be a higher likelihood of conflict
way. They must retaliate. If they do not do
and unrest, thus they begin to recognise a need
so, others will bully them, take their proper-
for an overarching social order comprised
ty, and hurt them because they are weak. of laws and rules that everyone should be
¢ The group is needed for protection and required to respect and obey. Developmentally,
emotional support. The gang replaces the young people begin to move from a perspec-
family, and they will do anything for the tive of “what's in it for me?” to recognising
gang or subcultural group to which they how humanity is linked interdependent-
belong. ly as defined in the ubuntu philosophy of “I
e The system treats them unfairly and dis- am because we are” or “a person is a person
criminates against them. It sets them up for because of other people”. This is obvious-
failure. ly a complex process and usually a difficult
one. It is much easier to fall back into familiar
e Material things are what life is all about. behaviour and to blame the system. Those
They want what the gang leaders or corrupt juveniles who have been raised in a disor-
individuals have in their neighbourhoods - ganised social order that condones violence
nice vehicles, money to splash around and and crime, and have experienced violence
a street reputation. They want this because on a daily basis will find it easy to engage in
it gives them recognition. reprehensible behaviour because they can
justify the morality of their actions against
Individually or combined, practitioners may the backdrop of the adverse social order.
find young people’s behaviour motivated by They will rather have values and norms that
any of these low-level reasoning factors or atti- are distinct from those held by the majority.
tudes. They seem either unable or unwilling to This is typical in different subcultures, such
consider the larger community when rational- as the conflict subcultures, the satanic sub-
ising their misbehaviour. Although it is part of cultures and the deviant subcultures. The
human development to experience these think- youth conflict subculture will adhere to
ing patterns, sometimes young people become norms that oppose that of the majority cul-
stuck in low-level thinking, and it is the respon- ture. Members of a youth satanic culture
sibility of the people, systems and institutions will embrace sexual promiscuity, drugs and
involved in their lives to help them to develop deviance as these go against the principles
higher-level socio-moral thinking and deci- of most religious denominations and the
sion-making skills. majority of society. The deviant subculture
will do things that are out of the ordinary
to show their rebelliousness and opposi-
5.2.2 High-level socio-moral tion to the existing social order. Activities
reasoning such as train surfing, binge drinking, truancy
and crime are most likely to be displayed in
5.2.2.1 Motivational factor 1: social order this subculture.
Motivational characteristics are the following: The challenge of social order as a moti-
vational factor for young people embracing
e “Right” versus “wrong” is defined by social high-level socio-moral reasoning is that “not
norms that protect the best interests of the every bad guy is caught”. In most communi-
overall population. ties, there tend to be more crimes than police
¢ It supports the need for society to set up can solve, resulting in some perpetrators not
laws and rules to maintain social order, as being brought to justice, therefore the injustice
well as consequences for non-compliance. of wrongs remaining unresolved may cause
Van Schaik
412 (Onibiisners
regressive thinking patterns, once again moti- focus to protect children; and many leniencies
vated by self-interest. In addition, youths can regarding children were introduced. However,
convince themselves that their behaviour is it seems that high-level moral reasoning is
trivial and not so bad when compared to that absent in this context as individual respon-
of others - even those in authority like politi- sibilities are not accepted in many cases and
cians. Justifications such as “the government the apartheid system is still being blamed for
is corrupt so why should I respect the law?” the current challenging position of youths
will facilitate repressive thinking patterns. in South Africa. The ever-increasing criminal
activities by youths support this enigma. Other
activities that support this notion are the polit-
5.2.2.2 Motivational factor 2: individual ical conflict groups that pressure government
rights and responsibilities to agree, for example, to free education at all
Motivational characteristics are the following: levels. Instead of high-level socio-moral rea-
soning and negotiations, these groups damage
¢ It supports the need for society to set up schools and universities, and attack innocent
laws and rules to maintain social order. The individuals as a way of “negotiating” with the
social order must maintain laws that sup- government.
port equal rights and responsibilities for all
members of society.
e If the laws appear unjust, the focus is on 5.2.2.3 Motivational factor 3: ubuntu
changing them (e.g. the civil rights move- Motivational characteristics are the following:
ment, the ending of apartheid, the women’s
e It supports fair and just laws and rules, and
movement).
respects similarities and differences among
people.
Attitude: “The system is supposed to be just
and fair, otherwise it should be changed e It recognises the benefits of diversity and
through responsible social activism.” freedom of cultural expression.
The motivational influence of valuing the Attitudes: “I am because you are.”; “A person
importance of individual rights and responsi- is a person because of other people.”; “Within
bilities results in young people developing an our similarities and differences, we are interde-
even deeper understanding of the interdepen- pendent and interconnected.”
dent nature of humanity and the social respon-
sibility it requires. In high-level socio-moral Behaviour motivated by the principles of
reasoning, young people are not only intellec- ubuntu is arguably one of the highest levels
tually aware of their personal rights, but also of social development a person can attain.
take cognisance of their responsibility towards Living according to these principles implies
others to maintain a fair and just society. socio-moral decision making motivated by the
However, if laws and rules are unjust, recognition of the interdependence of human-
high-level socio-moral reasoning is likely to ity, the need for social order and the value of
motivate action for social change. The strug- individual rights and responsibilities.
gle against apartheid is a prime example of Often, the high-level socio-moral motiva-
this. During the struggle, people fought for a tional factors illustrated in this framework
new social order (high-level thinking) versus operate independently as well as together as a
individualism (low-level thinking motivated young person develops. In addition, the degree
by personal interest). As a result, South Africa to which a young person’s behaviour is moti-
now has one of the most liberal human rights- vated by the recognition of the need for social
oriented constitutions and social policies in order, individual rights and responsibilities
the world. Whether all youths understand and the extent to which it is grounded in the
the responsibility that goes with these newly principles and philosophy of ubuntu may be a
achieved liberal rights is debatable because determining factor in his or her ability to main-
the social order changed; liberal laws were tain social responsibility, even when faced
implemented, many of which have a specific with adversity.
Onpisnes} 113
Furthermore, it is possible for young peo- both a cause and an effect (Duffy & Wong
ple to engage in either low- or high-level 1996).
socio-moral reasoning on a situational basis. For instance, in A framework for understand-
It is when young people, especially young ing poverty, Payne (1998) defines poverty as
offenders, exercise chronic low-level think- the extent to which an individual does without
ing patterns that this can be perceived as a resources. Resources necessary for survival
problem. Should young people get stuck in and success include financial, emotional, men-
this low-level mode of thinking, they tend not tal, spiritual and physical support systems,
to even think about the consequences of their relationships and role models, and know-
behaviour and will find it difficult to develop ledge of hidden rules. Of particular interest is
the ability to decide between right and wrong. Payne’s assertion that young people need emo-
The focus becomes their own needs - a self- tional resources in order to have the stamina
ish orientation that could become a perma- to withstand difficult and uncomfortable emo-
nent way of thinking even as they grow into tional situations and feelings.
adulthood. This chapter hypothesises that Abraham Maslow demonstrated back in
young offenders are often stuck in low-level 1954 how poverty is more than economic lim-
socio-moral development and never get an itation. Beyond the basic needs of food, shelter
opportunity to develop high-level socio-moral and water, Maslow’s hierarchy of needs includ-
reasoning attributes. These are some of the ed emotional needs such as safety, belonging,
other contributing factors limiting healthy love and being held in esteem by others as
growth and development. important components to healthy develop-
ment. Similarly, Garbarino (1999) stresses the
importance of a child feeling loved by a person
5.3 CAUSAL CONSIDERATION 2: with whom he or she feels a strong personal
EMOTIONAL POVERTY attachment as being a critical component influ-
A series of workshops in four provinces facil- encing his or her capacity for resilience. If not,
itated for the Council for Scientific and Indus- insecurity develops and the child acquires an
trial Research (CSIR) Crime Prevention Cen- ambivalent or resistant attachment. From this,
tre was held in 2002. Workshop participants an avoidance relationship will most probably
included members of the South African Police develop as the child learns that the caregiver
Service (SAPS), the departments of Social is not a consistent and regular part of his or her
Development, Correctional Services and Edu- life. The child uses the avoidance tactic as a
cation, as well as magistrates, prosecutors survival strategy but knows deep down that he
and local non-governmental organisations. or she needs positive relationships with other
It followed from these discussions that humans (Siegel 2012: 21-22). Feeling loved and
although economic poverty is considered a sig- valued and having a sense of belonging are not
nificant causal factor for youth misbehaviour only strong emotional needs of children, but
in South Africa, in the country’s poorest town- also resources aiding healthy development.
ships the majority of residents do not engage Thus emotional poverty - defined as the depri-
in criminal activity. vation of emotional resources that normally
What causes some young people who live come from healthy nurturing and supportive
in economically impoverished environments human interaction — is a potential causal factor
to engage in low-level socio-moral thinking, in low-level socio-moral reasoning and negative
often resulting in criminality, and others, living behaviour that needs to be considered.
in the same circumstances, to operate from a For instance, young people who grow up
higher level of decision making? feeling emotionally impoverished, perhaps
First, it is important to broaden the scope due to family violence, bullying from peers or
and definition of poverty. Expanding the defi- oppression, may find themselves in a chronic
nition from simply a lack of money needed to pattern of deep emotional pain that directly
purchase essentials for survival to including influences their actions and behaviour.
other things such as hopelessness, prejudice In addition to chronic pain, emotional pov-
and discrimination creates a multidimensional erty perpetuated through experiences of rejec-
perspective illustrating how poverty can be tion, abandonment or abuse is likely to elicit
114
additional feelings including shame, fear and instigate aggressive reactions from oth-
anger. These are further motivational factors ers, confirming his or her beliefs about the
for low-level socio-moral reasoning resulting in aggressiveness of human nature in a circu-
aggression and violence. Many youths in South lar, perpetuating fashion.
Africa experience rejection and poor rearing
because of absent parents or guardians. This Furthermore, where victimisers and_ bullies
feeling of rejection and poor socialisation com- are described as lacking sympathy or empathy
pound the incorrect styles of moral reason- for their victims, research has demonstrated
ing and respect. Their social and aggressive a lack of emotional competence necessary for
behaviour is largely controlled by cognitive developing pro-social behaviour (Salovey &
scripts learnt and memorised through daily Sluyter 1997). Most alarming is that many of
experiences (Bartol & Bartol 2017: 147). Their these children show little understanding of
ability to develop higher cognitive methods of and a lack of empathy for the damage and pain
reasoning will not be stimulated appropriately they inflict on others through their behaviour.
if they are victims of rejection, abuse and Empathy exists in two domains, namely affec-
neglect on a regular basis. Their awareness tive and cognitive. Affective empathy encom-
and cognitive script determine how they must passes an emotional response that manifests
behave in response to environmental stimuli in feelings of concern for another individual
and what the outcome of the behaviour will be. and the longing to assist that person to relieve
their distress. Cognitive empathy is one’s abil-
Awareness is a fundamental aspect of human
ity to understand another person’s frame of
beings’ mental experiences with which they
reference and not being blinded by one’s own
have the subjective sense of knowing or being
point of view. When one shows affective empa-
(Siegel 2012: 5-1). It can be a subjective felt
thy, one experiences another person’s pain,
sense (perhaps regarding unfair treatment), a
discomfort or distress. Understanding anoth-
knowing of something (perhaps knowing that er’s emotions shows that one has achieved a
a certain action is against societal rules) and level of cognitive empathy.
a known (perhaps mindfulness that criminals These two modes of empathy are not exclu-
usually end up in a prison). Parents or caregiv- sive and are intertwined; however, one can be
ers play a fundamental part in the development more deficient than the other. Moreover, most
of cognitive scripts and awareness. A cogni- children who show a lack of empathy, remorse
tive script of self-absorbed thinking eventually and guilt have deficiencies in both dimensions
becomes very resistant to change once it has of empathy. A lack of these emotions has been
been “programmed” into the memory. The eval- associated with psychopathic traits in youth
uation of the “appropriateness” of the cognitive offenders. Children with psychopathic tenden-
script plays an important role in determining cies might understand the emotions shown
which scripts are stored in the memory for by a peer (cognitive), but they have no inkling
later retrieval and used when necessary, and of what their peer is experiencing and there-
which are used regularly, for example a violent fore do not have the ability to experience the
script (rebelliousness) with regard to resisting shown emotion (affective) (Bartol & Bartol
authority and discipline. The environmental 2011: 42, 188; 2017: 216).
factors and their awareness of who they are It may thus prove useful when working with
and where they fit in are cues or stimuli in a young offenders to consider emotional pov-
person’s life and determine which script is fit- erty as a potential causal factor for negative
ting for the occasion (Bezuidenhout & Klopper behaviour and decision making. A founda-
2011: 187; Siegel 2012: 1-7; 5-1). In this regard, tion of feeling loved and valued, and a sense
Bartol and Barto! (2017: 147) insist that of belonging have a greater likelihood of pro-
moting pro-social behaviour and the capacity
{a]Jn individual with poorly integrated for sympathetic and empathetic involvement
internal standards against aggression, or in other people's experiences. All of these are
who is convinced that aggressive behav- necessary components for healthy develop-
ior is a way of life, is more likely to incor- ment and high-level socio-moral reasoning.
porate aggressive scripts for behaviour. This will imply that the youth reason, imagine
Importantly, the aggressive child is apt to and behave from a perspective of the larger
Onbishes} 4415
good. For a youth to change from Circle of pain

low-level socio-moral reasoning
and self-absorbed thinking to sym- Stage 1
pathetic and empathetic high-level Chronic emotional poverty
socio-moral reasoning will need a ye “| don’t matter.”
process of what Siegel (2012: 8-11)
refers to as “neuroplasticity”. Neu-
roplasticity entails the ability of
the brain to change its structure in Justification for violating Negative internalisation
response to experiences. With ther- the rights of others “Nothing | do is any good.”
apy and early intervention, the firing “Nothing | do is unjustified.”
pathways of the neurons and synaps-
es in the brain could be changed in
certain youths. The focus of atten- Pag Stage 3
tion and ongoing stimulation of the Self as victim
neural firing pathways of synaps- “Nothing | do will make it change.”
es and neurons could change self-
absorbed thought processes. or Figure 5.1 Circle of pain: chronic patterns of deep
even the cognitive scripts over time emotional pain
regarding a perception about something, or
even allow for the development of empathy saying “I don’t know” when asked for informa-
and remorse. The downside is that constant tion, or taking on the role of the perpetual vic-
negative experiences can also alter the brain tim who is always abused and never the abuser.
structure in long-lasting ways that could make Thinking errors are often formed through
life very difficult for that youth. faulty interpretation of facts. For instance:
5.4 CAUSAL CONSIDERATION 3: Fact: Physical abuse exists in the
THINKING ERRORS home.
Interpretation: Parents are supposed to hit
The concept of thinking errors was initially
their children.
formulated by Yochelson and Samenow (1976)
and is an example of low-level socio-moral rea- Thinking error: “One day | will hit my child.”
soning. It involves young people attempting to
alter reality to avoid taking responsibility for High-level socio-moral reasoning would facil-
their actions. itate the following interpretation of the same
Common thinking errors young offenders fact:
may use include the following: Fact: Physical abuse exists in the
e Assuming. A young person may assume he or home.
she knows what another person is thinking Interpretation: Parents are not supposed to hit
or feeling, and will often take action before their children.
verifying the facts. (“He looked at me like he
Socially responsible thinking: “I will not hit my
wanted to fight so I had to hit him first!”) child one day.”
e Blaming. A young person justifies his or her
negative behaviour as being due to some- Everyone engages in thinking errors at some
one else initiating the incident. (“It’s not my point and this does not automatically translate
fault — he started it!”) into a life of criminality; however, many young
¢ Minimising. The young person will attempt people who engage in criminal behaviour will
to make what he or she did seem less bad. use thinking errors to justify their actions. Util-
(‘T barely touched him! That didn’t hurt!”) ising a cognitive restructuring model in diver-
sion and rehabilitation programmes, focusing
Other common thinking errors include telling on the redefinition of interpretations of life
lies, justifying or coming up with excuses for experiences, is a key component in develop-
behaviour, being intentionally vague such as ing high-level socio-moral thinking. Should no
Van Schaik
116 (Chubiisners
CHAPTER 5 THE SOCIO-MORAL REDIRECTION
OF TROUBLED YOUTH
intervention take place, young people could ¢ Commitment to positive youth development
develop hostile attribution bias - that is, the goals of competence, character, confidence
likelihood of interpreting ambiguous actions and connection
as hostile and threatening (Bartol & Bartol ¢ Providing them with opportunities to con-
2011: 125; 2017: 147) - in addition to using tribute to the welfare of the community
thinking errors to justify their behaviour. Com- ¢ Participatory decision making
pared to their non-hostile counterparts, chil-
e Redirecting them morally
dren with hostile attribution bias are twice as
likely to see or interpret innocent behaviour Strategies may include the following:
from a peer as a hostile action. Children with
this warped idea consequently adopt hostile ¢ Youth/adult partnerships. Often, tradition-
goals, define their social problems in a hostile al models of youth/adult relationships risk
context, and do not work out amicable solu- adults objectifying young people (Lofquist
tions for their problems but tend to prioritise 1989) and even engaging in professional
a hostile and aggressive solution to an issue thinking errors such as “children are bro-
(e.g. bullying instead of negotiation and accom- ken and need to be fixed”. A CYD approach
modative communication). believes young people have the ability to
partner with adults and share in the pro-
cess of their own development.
5.5 DEVELOPING EFFECTIVE ¢ Providing viable life skills. The concept of
INTERVENTIONS: COMMUNITY life skills is often loosely defined, compris-
YOUTH DEVELOPMENT ing everything from HIV/AIDS education to
In the preceding sections, three interlinked conflict resolution. Given the motivational
causal considerations were outlined as poten- factors of low-level socio-moral reason-
tial risk factors for child and youth misbe- ing, emotional poverty and thinking errors
haviour. This final section will briefly discuss influencing youth misbehaviour, it is essen-
strategies for positive youth development. tial that young people receive foundational
Although it is well known that young peo- life skills to aid them in developing social,
ple do not grow up in programmes but in com- emotional, ethical, physical and cognitive
competence. In addition, methodologies
munities, many youth interventions are still
that consider different learning styles and
programme focused. Community youth devel-
cultural ideologies should be used in pro-
opment (CYD) was initiated in the early 1990s
gramme development.
to put into practice a new philosophical, socio-
logical and educational movement designed ¢ Facilitating and modelling healthy relation-
to encourage communities to engage in and ships. During early development, children
embrace their role in the development of chil- imitate what they see and experience (Piag-
dren (Hughes & Curnan 2000: 7). et 1997) and even as they get older, they are
As a methodology, CYD advocates the merg- more likely to act in accordance to what has
ing of community development practices with been modelled versus what they are told.
youth development to provide a “wraparound” For instance, during a community workshop
approach for addressing young people’s psy- hosted by the Participative Development
chosocial needs and their need to develop Initiative in KwaZulu-Natal in 2001, a young
competency in life skills, and engaging them to person from KwaMashu said that even
work in partnership with adults to create safe, though his parents had always told him not
just and healthy communities. A CYD approach to drink alcohol or use drugs, he learnt how
to diversion or rehabilitation for young offend- to smoke dagga by watching his father.
ers incorporates the following values:
It is critical, therefore, that adults model
e Actively engaging them in the process of healthy relationships with young people. In
their own development addition, resiliency research has repeatedly
e Making them aware of their needs and demonstrated the need for caring adults to
involving them in the decisions that affect redirect negative behaviour in children (Gar-
their lives barino 1999). It is clear that troubled youth
Opisnes} 147
often lack proper beneficial socialisation. 7. Making time for oneself as inward reflec-
They bear the brunt of adults who have also tion and engaging with one’s own thoughts
been wrongly socialised. Many of these youth and feelings encourage integrative neural
learn by copying the behaviour of their role pathways in the brain.
models. Both socialisation or social learning 8. Regular humour in a person’s life promotes
(nurture) and genetic factors (nature) play the healthy development of the brain.
an important role in the manifestation of an
absent level of empathy in youths. In general, From the above we can deduce that a child
children model their behaviour on three main needs proper nurturing, attachment and a
role models, namely their family members (e.g. healthy lifestyle to hopefully eventually develop
mother, father, older siblings, grandfather, into a higher-order social-moral reasoning
grandmother, uncles and aunts); members of a human being. One aspect in the nature aspect
subculture (e.g. a gang) or the peer group (e.g. of human life is the predestined genes a person
friends at school); and the media (e.g. specific is born with. Some humans are born with a com-
programmes that encourage and support the mon or underlying factor (Bartollas 1997: 70)
use of violence or electronic games where in their genetics that makes them significantly
aggression is the basis of the contest) (Bezuid- more vulnerable to derailment and staying on a
enhout & Klopper 2011: 187). lower level of socio-moral reasoning. Such peo-
This partly addresses the nurture part ple stay stuck in low-level moral development
and the possible influence of the society and no matter what the environment, nurturing,
role models. The question then is: how do we attachment or lifestyle may be. These youths
address the nature part of cognitive socio- show problem behaviour from a young age no
moral thinking? Considering the brain’s ability matter their social class, level of nurturing or
to change and the influence that interaction attachment - “they are just (in)different”. We
with society and other humans has in deter- cannot predict or pinpoint this genetic underly-
mining the youth's mind processes, certain key ing factor in humans, but fortunately it affects
elements have to be in place in a youth's life only a small percentage of society.
to make moral changes possible and perhaps
redirect a troubled youth. Siegel (2012: 8) high-
lights eight factors that could assist in healthy 5.6 CONCLUSION
cognitive development and change:
This chapter outlined three interconnected
1. Healthy activities and aerobic activities can causal factors of child and youth misbe-
support brain growth and neuroplasticity. haviour. Socio-moral decision making is often
motivated by issues of welfare and justice
2. Adequate sleep assists us in consolidating
(Munsey 1980) and can be divided into two lev-
our learning from the past day.
els of reasoning. Although it is part of human
3. Healthy substantial nutrition is deemed development to engage in both levels of
the soil of the brain. The brain needs good socio-moral reasoning, the influences of emo-
healthy food, water and omega 3 vitamins tional poverty and thinking errors put young
for attention and proper functioning. offenders at risk of becoming stuck in low-level
4. Attachment and healthy relationships with development. This in turn could impact on the
others support healthy and vibrant brain development of hostile attribution bias or even
activity. psychopathic traits.
It is the responsibility of the people, sys-
5. New activities and stimulation are needed
tems and organisations impacting on young
from time to time to get out of a rut and
people’s lives to support healthy growth and
keep the brain growing. development. Key to achieving positive youth
6. Focusing on one task at a time with proper development goals and redirecting youth mis-
attention stimulates the release of chem- behaviour is engaging young people as part-
icals that support neuroplasticity. Multi- ners in their own development, combined with
tasking and distractions actually prevent viable life skills and healthy relationships. All
this process. children are capable of success and it is the
Van Schaik
118 ©publishers
job of caring adults, youth practitioners and child is given an opportunity to develop to his
community members to ensure that every or her full potential.
CRITICAL QUESTIONS
1. Distinguish between low- and high-level socio-moral reasoning.

Differentiate between affective and cognitive empathy.
Explain the concept of hostile attribution bias.
ee
Define the concept “neuroplasticity”.
REFERENCES
Bartol, C.R. & Bartol, A.M. (2011). Criminal behavior: Hughes, D. & Curnan, S.P. (2000). Community youth
A psychosocial approach (9th ed.). Upper Saddle development: A framework for action. CYD Journal:
River, NJ: Pearson. Community Youth Development 1: 7-13.
Bartol, C.R. & Bartol, A.M. (2017). Criminal behavior: Lofquist, B. (1989). The technology of prevention work-
A psychosocial approach (11th ed.). Upper Saddle book: A leadership development program. Tucson,
River, NJ: Pearson. AZ: Associates for Youth Development, Inc.
Bartollas, C. (1993). Juvenile delinquency (3rd ed.). Munsey, B. (1980). Moral development, moral educa-
New York: Macmillan. tion, and Kohlberg. Birmingham, AL: Religious Edu-
Bartollas, C. (1997). Juvenile delinquency (4th ed.). cation Press.
Needham Heights, MA: Allyn and Bacon. Payne, R.K. (1998). A framework for understanding pov-
Bezuidenhout, C. & Klopper, H. (2011). Crimes of a erty. Baytown, TX: RFT Publishing Co.
violent nature. In C. Bezuidenhout, A southern Afri- Piaget, J. (1997). The moral judgment of the child. New
York: Free Press.
can perspective on fundamental criminology. Cape
Salovey, P. & Sluyter, D.J, (1997). Emotional develop-
Town: Pearson (Heinemann), 182-238.
ment and emotional intelligence: Educational impli-
Cole, R. (1997). The moral intelligence of children. New
cations. New York: Basic Books.
York: Random House.
Siegel, D.G. (2012). Pocket guide to interpersonal neuro-
Duffy, K.G. & Wong, F.Y. (1996). Community psychology.
biology: An integrative handbook of the mind. New
Boston, MA: Allyn & Bacon. York: W.W. Norton & Company.
Garbarino, J. (1999). Lost boys: Why our sons turn vio-
Yochelson, S. & Samenow, S.E. (1976). The criminal
lent and how we can save them. New York: Anchor personality. Volume I: A profile for change. North-
Books. vale, NJ: Jason Aronson Inc.
Onbines) 119
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OBJECTIVES KEYWORDS
You should be able to classical school
* clearly understand traditional explanations of youth misbe- control
haviour learning
* recognise the influence of traditional explanatory theories in the moral development
development of contemporary theories. positivism
strain
6.1 INTRODUCTION the issue of why the incidence of crime among

young people is higher in some settings or
A primary aim of the field of criminology is among some collections of people. The latter
to explain the committing of crime and crimi- are called macrotheories.
nal behaviour. Such explanations attempt to Although definitions of what a theory actu-
address the question of why crime occurs and, ally entails may differ, Shoemaker (2000: 7-8)
based on these explanations, to predict the emphasises that the social scientist (such as
onset of criminal behaviour. In an endeavour the criminologist) sees a theory as an attempt
to explain youth misbehaviour, various explan- to make sense out of observations. Tibbetts
atory theories have been developed over cen- (2012: 2) defines theory “as a set of concepts
turies. Some of these theories, called microthe- linked together by a series of statements to
ories, involve the actions of individuals, and explain why an event or phenomenon occurs”,
attempt to explain why young people break the thus a view on youth misbehaviour will be rec-
law. Others focus on the larger social and cul- ognised as a theory if it attempts to explain or
tural context in which people act, and address understand youth crime, regardless of the level
1. Acknowledgement is hereby given to Sandra Joubert for the initial contribution to this chapter.
Oniisres) 121
of its causal assumptions and irrespective of Certain theories might sound very logical but
the sophistication of its concepts and proposi- cannot be substantiated or empirically cor-
tions. This view of theory is rather broad, but rect because they cannot be tested. Empirical
Maguire and Radosh (1999: 157-159) highlight validity entails that theory has been verified
four pertinent criteria for determining the ideal by research. Increasingly integrated models of
characteristics of a good theory: crime causation are being verified by scientif-
¢ Plausibility. A theory needs to be a plausible ic research. An important feature of a theory
explanation of the relationship between two is whether it will have policy implications.
or more facts (i.e. it has to make sense). With an empirically validated theory one can
endeavour to influence politicians and the leg-
¢ Real-life evidence. The degree of real-life
islator to change, adapt or promulgate legisla-
support the theory enjoys (based on empir- tion and policy.
ical research findings), gives credence to its
In this chapter, various traditional theo-
validity.
retical perspectives on youth misbehaviour
¢ Falsifiability. Scientists such as criminol- are addressed. Two main schools of thought,
ogists seek to produce explanations that namely the classical school and the positivist
are precise enough to allow for testing, and school, represent the foundation of traditional
the essence of scientific testing is the effort explanations. The influence of both schools,
to disprove - that is, to falsify. Thus the however, can be discerned in contemporary
arguments of a theoretical explanation can explanations of youth misbehaviour, which
never be absolutely proven, only refuted. are addressed in the next chapter (Chapter 7).
¢ Predictability. Scientists seek valid expla- Please note that it is impossible to elaborate
nations of the physical world, the natural on each traditional contribution in the frame-
world and the social world. A criminolo- work of one chapter. However, a comparative
gist, for example, is chiefly interested in the number of these contributions to stimulate fur-
social behaviour of humans. All scientists, ther examination of this subject matter will be
however, value most highly those explana- highlighted.
tions that have predictive power. The best
criminological theories will provide not
only a compelling account of past and pres- 6.2 CLASSICAL SCHOOL OF
ent behaviour, but also sound predictions CRIMINOLOGY: 18TH
for future behaviour. By anticipating future CENTURY BELIEFS ABOUT
behaviour, a good theory of crime will sug- THE CAUSES OF CRIME
gest fairly specific policy implications that
can be used to develop helpful programmes From a historical perspective it can be said
and sanctions. that certain standards of behaviour were
prescribed for members of groups through
In addition Tibbetts (2012:2) insists that a the ages. To ensure that these were upheld,
good theory should be measured by parsi- those who transgressed had certain penalties
mony, scope, logical consistency, testability, imposed on them. People in biblical times,
empirical validity and policy implications. for example, were stoned or crucified, or had
Parsimony can be achieved if the relevant holes drilled into their cranium to release or
phenomenon is explained in the simplest pos- drive out the evil spirits in the skull that were
sible way. Scope entails the characteristic thought to have caused the unacceptable
that addresses how much of the phenomenon behaviour in the first place. Before the 18th
one would like to explain. Logical consistency century, the causes of crime were attributed to
focuses on the ease of understanding. Are supernatural powers such as devils, demons,
the concepts and propositions in a theory evil spirits and witches. It was believed that
clear and do they make sense? Many theories human beings were cursed with the burden
over-generalise and are sometimes vague or of original sin. This insinuates the original sin,
not plausible because they lack logical consis- also called ancestral sin, is the Christian doc-
tency. Testability refers to the extent to which trine of humanity's state of sin resulting from
a theory can be tested and empirically verified. the fall of man, stemming from Adam and Eve's
Van Schaik
122 © publishers
CHAPTER 6 TRADITIONAL THEORETICAL EXPLANATIONS FOR YOUTH MISBEHAVIOUR
rebellion in Eden, namely the sin of disobedi- istic explanation for the occurrence of crime,
ence in consuming from the tree of knowledge replaced the age-old explanation that crime
of good and evil. Other ways in which the con- is a supernatural phenomenon. This period is
demned were executed up to the 18th century important to take note of because it gave rise
included drowning, being buried alive, decap- to the basic ideas for the operation of the jus-
itation, stoning and the breaking of the body tice system and the processing of criminals as
on a wheel. These gruesome practices, which it stands today. Current concepts such as civil
were in full swing before the advent of the rights, testimony, due process, sentencing and
classical period, gave rise to a powerful refor- deterrence were incubated in this period (Wil-
mation movement that had as its purpose to liams & McShane 2010: 15).
understand crime and to promote the applica- According to Cesare Beccaria and Jeremy
tion of justice (Austin 2012: 9; Brown, Esbensen Bentham, two of the mainstream classicists,
& Geis 2001: 178; Chamberlain 2015: 21; Merz- human nature is characterised by three central
bacher 1993: 174). features (Empey, Stafford & Hay 1999: 113):
From 1500 to 1750, philosophers who were
¢ People are not bound by original sin but
studying the crime problem emphasised that
have the freedom to choose; people choose
people have the freedom to choose between
all their behaviour, including criminal
right and wrong. This emphasis on “free
behaviour.
will” accentuates the notion that people are
responsible for the consequences of their own ¢ People are rational and are capable of using
behaviour. Along with this point of view, the their reason to govern their lives.
assumption was made that fear of the conse ¢ People are motivated to pursue their own
quences of their actions, and particularly fear self-interests at the expense of others.
of pain that may be part of these consequences,
could control people. The state therefore had A key premise of the classical theory is that
to be the primary institution to impose punish- humans are rational creatures, endowed with
ment and by so doing should create fear that a free will. This argument implies, according
would be so strong that it would prevent people to Hoge (2001: 52), that all criminal acts are
from being involved in criminal actions. These wilful - that is, people commit crimes because
ideas laid the foundation for the development they choose to do so. Rational beings are capa-
of modern criminology, which had its onset ble of taking decisions in a logically reasoned
during the 18th century (the age of enlight- way by taking the costs and benefits of alter-
enment) and of which the classical school of natives into account. Free will means that peo-
criminology forms part (Barkan 2012: 14; Bar- ple may act as they choose. Deterrence not to
kan 1997: 118; Conklin 1998: 40; Glick 1995: 71). commit a crime is based on the premise that
At that stage in history, classical criminology the threat of punishment will influence deci-
emerged because of rapid socioeconomic and sions and behaviour. People are hedonistic
political change. In this time natural explana- and their behaviour should be deemed purpo-
tions for misbehaviour replaced the religious sive. As rational actors, humans operate on the
ones (Chamberlain 2015: 21). pleasure-pain principle. Punishment serves
The origins of the classical school are as the “... pain function. Specific punishment
traced back to the writings of 18th century for specific offences should be written into
philosophers, particularly Cesare Beccaria’s law and should not be based on interpreta-
book Of crimes and punishments, published in tion or discretion by the presiding officer in
1764, and Jeremy Bentham’s /ntroduction to the the court”. The law must apply equally to all
principles of morals and legislation, published citizens and no one should get advantageous
in 1789 (Hoge 2001:51; Jones 2001: 95-98). treatment. It implies that every human who
Classical theorists criticised Western criminal is found guilty of a specific crime should suf-
justice systems for their cruel and oppressive fer the same prescribed punishment (Burke
practices. The goals of the classical theorists 2005: 25).
were to reduce the severity of existing pun- Young offenders therefore are seen to
ishments and to achieve equal justice for all. be rational decision makers who choose to
The classical school, giving the first natural- commit crime, and their choices can be con-
123
trolled by fear of punishment. This view may extent to which rules are broken diminishes.
provide an explanation of why affluent youths If, on the other hand, the enforcement of
from “good” families choose to break the law. punishment is slow, the probability is high
Their behaviour can be controlled only by pun- that laws will be broken.
ishment severe enough to convince them to
¢ Severity principle. The severity of punish-
choose conventional (law abiding) behaviour
ment has deterrence value if it does not
over criminal behaviour. Siegel and Senna
exceed a certain level. If the punishment
(2000: 81) argue that gang leaders are surely
for one crime is 40 years and for another
rational decision makers who consider mat-
50 years, a person will not be deterred from
ters such as how to make more money in the
committing the crime for which a longer
context of a business deal, what the chances
sentence may be imposed in view of both
are of getting caught and where to find a good
sentences being unreasonably long.
lawyer. In South Africa, joining a gang may bea
rational decision in that such membership can,
for example, protect someone in prison from Beccaria was of the opinion that the first two
being violated by other inmates, or is a means principles are the most important (Barkan
of survival in a community where gang activi- 2012: 116; Barkan 1997: 119; Bartollas 2003: 99;
ties are prevalent, such as on the Cape Flats. Brown et al. 2001: 182; Conklin 1998: 40; Glick
Classical theory further implied that young 1995: 71; Martin, Mutchnick & Austin 1990: 3).
people would be deterred from committing Beccaria and Bentham believed that the sever-
crimes if they were threatened with punish- ity of the punishment was the least important
ment that was certain, unavoidable and swift. element of deterrence. They saw certainty of
Subsequently, should the pain of punishment arrest as the most important element (Cham-
(such as a probable prison sentence) outweigh berlain 2015: 22). In addition, Bentham claimed
the benefit of illegal gain (such as possessing that it was not necessary to mete out punish-
stolen articles), then crime could be deterred ment in the following instances:
or prevented. Following this reasoning, punish-
¢ When the punishment was groundless (the
ment should be graded according to the seri-
act to be punished was not really seen as
ousness of the crime. “Let the punishment fit
misbehaviour or deviant)
the crime” is the slogan of the classicists.
According to classical thinking, punishment ¢ When the punishment was deemed ineffica-
could deter only if it were proportional to cious (the punishment was ineffective as a
the crime. Proportionality means (a) that the deterrent)
severity of the punishment corresponds with ¢ The punishment was too expensive (the
the severity of the harm done by the crime so type of punishment generated too many
that more serious crimes receive more seri- costs and the inconvenience it caused
ous punishment; and (b) that the type of pun- exceeded the benefits)
ishment resembles the crime so that others
¢ The punishment was needless (punishment
in society can best associate the punishment
was not necessary if the crime could be
with the crime (Carrabine, Igansky, Lee, Plum-
prevented or suspended in another way)
mer & South 2004: 33).
(Chamberlain 2015: 22).
Cesare Beccaria, writing in 1764, formulat-
ed three principles of punishment that later
became characteristic of the deterrence prin- Despite criticism against the classical school, it
ciple. According to these, crime is dependent still enjoys the support of some criminologists
on the certainty, swiftness and severity of pun- due to the fact that it brought about human-
ishment: itarian reform. It also serves as a cornerstone
for most criminal codes published in the West-
¢ Certainty principle. If the observed certainty ern world. During the second half of the 20th
of punishment increases, the probability century, a revival of the classical school once
that laws will be broken decreases. again started taking place (Conklin 1998: 40).
¢ Celerity (swiftness) principle. When the rate In this context one should understand that the
of punishment reaction accelerates, the humane punishment of offenders is still often
124
debated as it seems as if punishment is still it does not just happen - thus positivists
an unfortunate necessity to prevent and con- reject the view that the young person exer-
trol crime. In line with this, Lanier and Henry cises freedom, possesses reason and is
(2010: 61) state that the original ideas and capable of choice.
concepts that were presented by utilitarian
¢ The young offender is seen as fundamentally
thinkers such as Beccaria are now well-known
different from the non-offender. The task
practices in current criminal justice processes.
then is to identify those factors that have
These include principles such as innocent until
made this young offender a different kind
proven guilty, equality before the law, fair treat-
of person. Positivists have concluded that
ment and trials, as well as objectively regulated
offending youths are driven into crime by
discretionary powers by the legal fraternity.
something in their physical makeup, by psy-
chological impulses or by the harshness of
6.3 THE GROWTH OF SCIENCE: their social environment.
POSITIVIST SCHOOL OF
In broad terms, the theoretical input of the
CRIMINOLOGY
positivist school can be divided into two major
With the growth of science during the 1800s, a groupings:
thirst for knowledge emerged, which Empey et
¢ Theories of a biological and psychodynamic
al. (1999: 114) describe as an intellectual revo-
nature, also referred to as individual posi-
lution. The assumptions of the classical school
tivism
on the rationality and free will of human nature
were questioned, and a new school of crim- ¢ Theories of a social nature, also referred to
inology - the positive (or positivist) school as sociological positivism
— began to take shape. On questions such as:
“What sort of creature is the human animal?” Most research within the positivist school
and “How is society organised and main- attempts to isolate key differences between
tained?”, an increasing number of positivist offenders and non-offenders, based on the
thinkers turned to the methods of science for belief that criminality has a particular set of
answers, specifically to the use of scientific characteristics. Some theorists focus on bio-
research techniques such as_ observation, logical and psychological factors, thus locat-
experimentation and comparison. Technologi- ing the sources of crime primarily within the
cal progress in biology, chemistry, physics and individual and bringing to the fore questions
medicine resulted in scientific research meth- of individual pathology and abnormality. This
ods being accepted in criminology with time. approach, as indicated by Muncie (1999: 86),
Positivism can be defined as an attempt to use is central to individual positivism. In contrast,
the scientific methods of sampling, control and sociological positivism argues that the key
analysis to study social phenomena. Contrary causative factors lie in the social context exter-
to the classical theories that were not based nal to the individual. Here crime is more a mat-
on empirical facts, the positivists established ter of social pathology. From this one can con-
the tradition of empirical research and verifica- strue that positivist criminology focused on
tion in criminology. the criminal not the crime per se, as classical
Positivism is based on three basic assump- criminology did (Chamberlain 2015: 36).
tions, as set out in Bartollas (2003: 71):
¢ The character and personal backgrounds 6.3.1 Individual positivism
of individuals explain youth misbehaviour.
This approach first emerged in the late 19th
Positivists look for the cause of misbe-
century and represented a radical departure
haviour within the young person.
from the dominant conceptions of crime,
¢ The existence of scientific determinism is a law and justice at the time, when criminal
critical assumption of positivism. Youth misbehaviour was regarded as a matter of free
behaviour, like any other phenomenon, is will and individual choice. Two interrelated
seen as being determined by prior causes — developments took place: one strand of scien-
ev" Schaik
Publishers) 125
tific research attempted to provide biological Initially, Lombroso believed that all offend-
explanations for criminal behaviour, while the ers were born criminals. Later he changed his
other focused on psychological factors associ- point of view and by the time of his death he
ated with criminality. argued that the crimes of only one-third of
the criminal population could be attributed to
“born criminality”, the other two-thirds con-
6.3.1.1 Biological theories (the born sisting of criminaloid types or subordinate
offender) criminals. Lombroso (quoted in Martin et al.
Biological positivism was first popularised 1990: 31) described this type as follows: “Crim-
through the work of the Italian physician inaloids are epileptoids who suffer from a mild-
Cesare Lombroso entitled The criminal man, er form of the disease so that without some
which he introduced in 1876. Lombroso is adequate cause criminality is not manifested”.
often called the father of modern criminology Members of this group therefore did not dif-
(Muncie 1999: 85; White & Haines 2001: 43). By fer markedly from the general population, but
studying the body shapes of executed crimi- became caught up in crime as a result of men-
nals, Lombroso attempted to prove scientifi- tal disorders or because the opportunity to
cally that those who had broken the law were commit crime presented itself. In opposition to
physically different from those who had not. He this he believed that born criminals were dan-
pointed out that criminals had multiple phys- gerous and chronic offenders.
ical abnormalities. Lombroso also reported Biological explanations of this kind, how-
that criminals manifested traits of sensory ever, did not present any positive solutions to
impairment and displayed a lack of moral prevent or deal with crime. Despite the criti-
sense, particularly the absence of remorse, cism that can be levelled against Lombroso’s
they used slang language and had tattoos (Wil- work, it formed the basis for research that
liams & McShane 2004: 37; Williams & McShane was undertaken at a later stage concerning the
2010: 31). For Lombroso the offender was connection between crime and biological fac-
born, not made. tors, such as chromosome aberrations, neuro-
He also referred to atavism (derived from hormonal imbalances (transmitters in the
the Latin word atavus, meaning “ancestor” or brain), the premenstrual syndrome and abnor-
“father of great-grandfather”) in his book. This mally high testosterone levels (Brown et al.
rests on the principle that the behaviour of 2001: 244; Martin et al. 1990: 40).
criminals represents a return to a more prim- Other biological theories have focused on a
itive and earlier period of evolution (Glick variety of potential mechanisms, such as genet-
1995: 78; Martin et al. 1990: 29). Put differently, ic factors underlying antisocial behaviour. The
atavism is the phenomenon that one finds family histories of criminals have been exam-
when someone displays the physical and psy- ined and criminal heredity traced to certain
chological characteristics of his primitive ancestors. Other hereditary factors have been
forebears. These people therefore display considered through the examination of twins.
behaviour that has already disappeared in In this form of research, the behaviour of iden-
evolutionary terms in their peer group, and tical twins has been compared. The argument
can thus be regarded as “born out of time” is that if one twin is criminal, then the other
or “throwbacks” (Barkan 2012: 135; Barkan should be the same. Johannes Lange’s study
1997: 124; Brown et al. 2001:241; Conklin of prisoner twins and twins who were not insti-
1998: 42). Consequently, atavists can be clas- tutionalised found a high degree of concor-
sified as “born criminals”. In this regard, Wil- dance — often both twins had engaged in crim-
liams and McShane (2010: 30-31) state that inal behaviour, but the effect of environmental
Lombroso “pointed out that criminals have influences was ignored (Williams & McShane
multiple physical abnormalities of an atavis- 2004: 39).
tic (subhuman or primitive) or degenerative Another example is the XYY hypothesis,
nature”. He regarded such physical character- which postulates that males who inherit an
istics as stigmata. He believed stigmata did not extra Y chromosome have a propensity to
cause crime, but that atavism caused criminal heightened aggression and a heightened risk
behaviour (Chamberlain 2015: 39). of criminal activity (Hoge 2001:53). “Normal”
126 (okie)
males have an XY sex chromosome configu- Psychoanalytic explanations

ration. The chromosomal aberration is found
where males have an additional Y chromo- According to this view, the incidence of crime
results from internal disturbances that occur
some, which usually makes them tall, aggres-
in early childhood because of interaction prob-
sive and mentally retarded. Research findings
lems between parents and children. This argu-
showing that some males with an XYY chro-
ment stems from the work of Sigmund Freud
mosome combination are inclined to commit
(1856-1939), the founder of psychoanalysis,
violent crimes led to the view that all males
who believed that we all carry with us residues
showing this chromosomal aberration would
of the most significant emotional attachments
display criminal behaviour. Although the pos-
of our childhood, which then guide future
sible link between criminal behaviour and the
interpersonal relationships (Barkan 2012: 148;
XYY chromosomal aberration has stimulated
Barkan 1997: 139; Siegel 2003: 154).
the interest of researchers, there is no proof
According to psychodynamic theory, the
beyond reasonable doubt that all males with
human personality contains three major com-
this aberration commit violent crimes. ponents, which operate simultaneously:
Support for these and other biological the-
ories has been quite limited, largely because ¢ The id is the unrestrained, primitive, plea-
they lack empirical support and are logically sure-seeking component with which each
inadequate (Hoge 2001:54; Empey et al. child is born. The id is not seen as evil but
1999: 134). Many of these theories did not is deemed amoral (Chamberlain 2015: 56).
adhere to the “good theory” qualities Tibbetts ¢ The ego develops through the reality of
(2012: 2) proposed, namely parsimony, scope, living in the world, and helps manage and
logical consistency, testability, empirical restrain the id’s need for immediate gratifi-
validity and policy implications. Even if most cation.
offenders share some biological traits, this ¢ The superego develops through interactions
might be the product of some environmental with parents and other significant people,
condition such as poor nutrition and not nec- and represents the development of con-
essarily a genetic factor. science and the moral rules shared by most
adults.
6.3.1.2 Psychological theories (the made
The argument put forth by the psychodynamic
offender)
theory is that an imbalance in personality
In terms of psychological positivism, crime is traits caused by a traumatic early childhood
seen as the result of externally caused biolog- can result in long-term psychological diffi-
ical factors (e.g. brain injury) or internal psy- culties. Siegel, Welsh and Senna (2003: 84)
chological factors (e.g. mental illness) that are illustrate this argument as follows: if neglect-
treatable. The offender (as opposed to Lom- ful parents fail to develop a child’s superego
broso’s argument) is made, not born, and the adequately, the child’s id may become the
task of the criminal justice system is to under- predominant personality force; the absence
stand the underlying causes of criminality and of a strong superego results in an inability to
to find the appropriate treatment strategy distinguish clearly between right and wrong.
(White & Haines 2001: 45). Later the youth may demand immediate grat-
A diverse body of theories developed under ification, lack compassion and sensitivity for
the umbrella of psychological theories. Barkan the needs of others, and act aggressively and
(1997: 139-146) subdivides these theories as impulsively. A defective superego can contrib-
follows: ute to antisocial and aggressive behaviour. In
addition, the inability to show emotion, feel-
¢ Psychoanalytic or psychodynamic explana-
ings and remorse, and a lack of empathy and
tions guilt are linked to the defective superego (Van
¢ Moral development and crime der Westhuizen 2011: 132). These characteris-
¢ Intelligence and crime tics are linked to psychopathy and antisocial
¢ Personality and crime personality disorder. In this regard, Bartol and
evn Schaik
Publishers) 127
Bartol (2017: 216) insist that researchers are e Stage 2; Right is taking responsibility for
increasingly focusing on juvenile psychopathy. oneself, meeting one’s own needs, and leav-
Psychoanalytic explanations have been valuing to others the responsibility for them-
able in emphasising the importance of early selves.
childhood experiences for later behaviour, e Stage 3: Right is being good in the sense of
but their value in understanding crime is having good motives, having concern for
limited for several reasons, as_ indicated others, and “putting oneself in the other
by Barkan (1997: 141): person’s shoes”.
_® Antisocial behaviour is regarded as mentally e Stage 4: Right is maintaining the rules of a
disordered behaviour. (This is not true for society and serving the welfare of the group
most individuals.) or society.
¢ Stage 5: Right is based on recognised individ-
e Social factors are neglected, and childhood
ual rights with a society with agreed-upon
experiences are overemphasised. (Later life
rules — a social contract.
cycle influences such as peer influences,
performance at school and career possibil- e Stage 6: Right is an assumed obligation to
ities are also important.) principles applying to all humankind - prin-
ciples of justice, equality and respect for
¢ Research relies on case histories of indi- human personality.
viduals under treatment or on samples of
offenders in institutions such as prisons Each individual must develop the features,
and mental hospitals. (These subjects do skills and judgement of a lower moral stage
not necessarily represent the vast majority
before attaining a higher level (Bartol & Bar-
of offenders who are not under treatment tol 2017: 366). In terms of explaining criminal
or institutionalised.) (See also Chapter 10 in behaviour, Kohlberg (cited in Ellis & Walsh
this regard.) 2000: 316-320) asserts that offenders develop
more slowly through the stages of moral devel-
Moral development and crime opment than do persons in general. Subse-
quent research with delinquent youths has
Since the time of Jean Piaget (1896-1980),
shown that a significant number are in the first
psychologists have been interested in chil-
two moral development categories, while high-
dren's mental and moral development. Piaget er stages of moral reasoning are associated
was particularly interested in the intellectual with such behaviours as honesty, generosity
changes that occur in the child’s patterns of and non-violence.
thought. He argued (as cited in Siegel et al. Moral development theory makes pertinent
2003: 88-89) that a child’s reasoning processes predictions such as the following:
develop in an orderly fashion beginning at
birth and continuing until age 12 and older. ¢ Academic performance will be negatively
Following in Piaget’s footsteps, Lawrence related to frequent involvement in youth
Kohlberg first applied the concept of moral misconduct. Doing well in school will
development to issues in criminology. Kohl- increase the chances that learners will stay
berg argued that everyone begins life within school and have a favourable attitude
out a notion of what is right and wrong, but towards education.
through recognisable stages of development ¢ Supportive family relationships will be asso-
they acquire a moral sense as they age. “Moral ciated with low involvement in crime. This
sense” refers to the development of the ability is consistent with evidence of a positive
to distinguish right from wrong, and to deter- relationship between misconduct and poor
mine the ethically correct course of action in parent-child relationships, and abusive
complex circumstances. family discipline practices.
Kohlberg’s (cited in Siegel et al. 2003: 89)
e Parents whose approach to discipline is
stages of development are as follows:
based on reason will be less likely to have
e Stage 1: Right is obedience to power and children who break the law. Children who
avoidance of punishment. are frequently subjected to harsh physi-
128
cal punishment are more likely to become to heredity and may be influenced by environ-
involved in crime. Parents should encour- mental factors (Jones 2001: 347).
age their children to consider the moral Despite these explanations, assumptions
consequences of their behaviour from an on the connection between intelligence and
early age. crime are regarded as highly questionable and
need to be treated with caution. The debate on
e With regard to empathy, altruism and
the link between IQ and crime continues. The
role-taking ability (i.e. placing oneself in
real argument seems to focus on what IQ tests
another person's shoes), taking other peo-
actually measure.
ple into consideration will be negatively
associated with involvement in crime.
Personality and crime
¢ Involvement in deception and dishonesty
will be associated with criminal behaviour. Personality can be defined as the reason-
ably stable patterns of behaviour, including
Intelligence and crime thoughts and emotions, that distinguish one
person from another (Siegel 2001: 172).
Offenders were believed to have inherently Most of the research on the issue of person-
substandard intelligence and thus seemed ality and crime focuses on childhood tempera-
more naturally inclined to commit crime. It ment. Temperament is “a natural mood dispo-
was thought that if the authorities could deter- sition determined largely by genetics and bio-
mine which individuals had a low IQ, they logical influences”. (Bartol & Bartol 2017: 89).
might identify potential criminals before they Temperament is seen as an innate readiness
committed socially harmful acts. to respond to events and objects as they are
Most research on the relationship between encountered over a variety of situations and
IQ and misbehaviour focuses on adolescents, interactions (Bartol & Bartol 2017: 89). Many
and it appears there are several reasons to studies, some of them longitudinal, link tem-
explain the apparent causal link between low perament problems during infancy and child-
IQ and youth misbehaviour. Barkan (1997: 142) hood with behavioural problems during this
explains this causal link as follows: first, youths time and also during adolescence (Barkan
with low intelligence do poorly at school, and 1997: 145). Temperament problems include
poor school performance in turn leads to low- matters such as attention deficit, impulsive-
ered attachment to school and greater alien- ness, hyperactivity, irritability, coldness and
ation from it, which results in a higher rate of suspiciousness. Children with temperament
misbehaviour. Second, low intelligence leads problems are more likely to display problem-
to a lower ability to engage in moral reasoning atic behaviour in unstable families marked
and to delay gratification, increasing the likeli- by inadequate parenting than in stable ones
hood of misbehaviour. Third, adolescents with where parents are loving and supportive. Par-
low intelligence are thought to be less able to ents and caregivers are therefore co-creators
appreciate the consequences of their actions of the ill-tempered temperament of the child.
and to be more susceptible to the influence of Parental responsiveness, nurturance and
peers who break the law (Barkan 2012: 151). warmth are important in the child—-parent rela-
Criminologists Travis Hirschi and Michael tionship (Bartol & Bartol 2017: 89). The child
Hindelang maintain that IQ is more import- that shows constant ignorance and ill-tem-
ant than race and social class for predicting pered behaviour can easily become a frus-
youth misbehaviour. They propose that low IQ tration to the parents and caregivers such as
increases the likelihood of criminal behaviour teachers. They become overwhelmed and feel
through its effect on school performance. helpless, and their attitude and behaviour feed
Youths with a low IQ do poorly in school, and into the behaviour of the child, causing recip-
school failure and academic incompetence rocal negative behaviour that deeply disrupts
are highly related to youth misbehaviour the parent-child relationship. This can cause
and later to adult criminality (Bartol & Bartol abusive behaviour towards the child that in
2017: 71; Siegel 2001: 176). Hirschi and Hin- turn stimulates the ill-tempered behaviour of
delang accepted that IQ is not entirely related the child.
ov" Schaik { 2 9
Sheldon and Eleanor Glueck (cited in are problem areas that limit the application
Siegel 2001: 173) identify a number of personal- of personality theories. Several studies on the
ity traits that they believe characterise antiso- link between personality and misbehaviour
cial youth: find no differences between offenders and
non-offenders. Also, because most personality
e Self-assertiveness
research on youths examines offenders in
e Resentment
institutions, their personality problems may
¢ Hostility
be the result and not the cause of their institu-
¢ Mental instability tionalisation. Aspects such as socioeconomic
¢ Poor personal skills status and education are not considered, and
e Defiance the research has methodological problems.
¢ Sadism
e Distrust of authority
e Lack of concern for others
6.3.2 Sociological positivism
¢ Suspiciousness Sociological approaches stress the importance
¢ Impulsiveness of social factors as causes of crime. Their
e Feeling unappreciated broad aim, as indicated by Muncie (1999: 99),
is to account for the distribution of varying
e Destructiveness
rates of crime in given populations. Philos-
ophers such as Auguste Comte and Claude
Since the Gluecks’ findings were published,
Saint-Simon first developed a sociological form
other research efforts have attempted to iden-
of positivism in the mid-19th century (Mun-
tify personality traits that would increase the
cie 1999: 100). Comte’s argument that society
chances for misbehaviour. A common theme
shapes the individual psychologically provided
is that young offenders are hyperactive and
the foundation for sociological positivism.
impulsive individuals with a short attention
According to Hoge (2001: 56), the many the-
span, which makes them prone to problems
ories included in this category are united by
such as sexual promiscuity and violence.
two related features:
Psychologist Hans Eysenck (cited in Siegel
et al. 2003: 91) identified two important per- e All employ social class-based constructs
sonality traits that he associated with mis- in one way or another to explain criminal
behaviour: extroversion and_ neuroticism. behaviour.
Eysenck defines extroverts as impulsive indi- e All reject individual characteristics as rele-
viduals who lack the ability to examine their vant to the analysis of antisocial actions.
own motives and behaviours. Neuroticism,
according to Eysenck, produces anxiety, ten- Brown et al. (2001: 283) identify two main
sion and emotional instability. Youths who branches of these theories: social structure
lack self-insight and are impulsive and emo- theories and social process theories.
tionally unstable are likely to interpret events
differently than those who are able to give
reasoned judgements to life events. While the 6.3.2.1 Social structure theories
former may act destructively, for example by The primary premise of social structure theo-
using drugs, the latter will be able to reason ries is that the lower classes (or the underprivi-
that such behaviour is ultimately self-defeating leged) engage in criminal behaviour to a higher
and life threatening. degree than the middle class. In short, the dis-
Research on personality and crime has advantaged economic class position is a pri-
important implications for reducing crime, mary cause of crime. Brown et al. (2001: 284)
according to Barkan (1997: 145). Early child- point out that structural theories are not
hood temperament problems need to be intended to imply that only poor people com-
addressed by means such as preschool and mit crimes, nor do they mean that people
early family intervention programmes, as these located at the lower levels of the social struc-
may reduce youth misbehaviour. ture have no choices or are devoid of respon-
As in the case of biological theories, there sibility for misbehaviour. These theories do,
130
however, assume that crime is primarily a characterised by a decreasing population, a

lower-class problem, and point to flaws within high percentage of foreign-born heads of fam-
the social structure that increase the odds of a ilies and a low rate of home ownership (Tib-
person within that social stratum resorting to betts 2012: 132; Van der Westhuizen 2011: 135).
illegal behaviour. The theory therefore highlights the relation-
Social structure theories focus less on the ship between social disorganisation and devi-
individual offender because the causes of crim- ance. Crime and delinquent behaviour become
inal activity are viewed as being determined by the alternative mode of socialisation as soon
structural variables. Structural features that as a breakdown occurs in informal social con-
contribute to poverty, unemployment, poor trols and youths become attracted to these
education and racism are viewed as indirect deviant lifestyles (Tibbetts 2012: 132; Van der
or root causes of the high crime rate among Westhuizen 2011: 135).
members of socially deprived groups (Bar- In such socially disorganised areas, there
kan 2012: 161; Brown et al. 2001: 284; Tibbetts are high rates of truancy, infant mortality,
2012: 131; Van Der Westhuizen 2011: 135). tuberculosis, mental disorders and adult crim-
Of interest is that the majority of the theo- inality (Tibbetts 2012: 132). Shaw and McKay
ries are based on studies of young people and (cited in Hunter & Dantzker 2002: 88) reasoned
direct attention to social inequality in society. that deteriorated neighbourhoods lead to a
Several theories have been identified as social loss of control over youth and encourage gang
structure theories and have been subdivided activities. Social disorganisation is the oppo-
into three broad categories for classification site of social control, and refers to a state of
purposes: social disorganisation, strain and disarray in these lower-class neighbourhoods.
cultural deviance. Disorganisation is highlighted by the absence
of support networks, the lack of proper super-
Social disorganisation theories vision for the youth, population density, single-
parent or child-headed households, poverty,
These theories focus on the social environ- marginalisation and dilapidated (informal)
ment and specifically on urban conditions housing. This sets in during times of rapid
that affect crime rates. Social disorganisation social change, and leaves individuals adrift and
centres on three variables: poverty, residen- frustrated (Barkan 2012: 161; Van der Westhui-
tial mobility and racial heterogeneity. These zen 2011: 135).
factors generate social disorganisation, which Shaw and McKay (cited in Jones 2001: 117)
in turn contributes to crime. A disorganised found that in the misbehaviour of youth, social
area is one in which institutions of social con- problems declined with increasing distance
trol, such as the family and school, have bro- from the city centre, and that this picture
ken down and can no longer function properly. remained true over a considerable period of
Indicators of social disorganisation include time. The inner city was characterised by gen-
high unemployment and school dropout rates, eral instability arising from a constantly chang-
deteriorated housing, low income levels and ing population and its heterogeneity, and the
large numbers of single-parent households competing forces of different cultures and legit-
(Siegel 2001: 192-193). Informal settlements in imate and illegitimate activities. Urban crime
South Africa display such indicators of social therefore was portrayed as resulting from the
disorganisation. Housing structures are dilap- failure of the inner-city environment to encour-
idated, many residents are unemployed, and age proper integration and a sense of com-
single- or no-parent households occur partly munity for its different cultures. Because the
owing to the AIDS pandemic. According to basis of their theory was that neighbourhood
social disorganisation theorists, residents in disintegration and slum conditions are the
these areas experience conflict and despair, primary causes of criminal behaviour, Shaw
and as a result antisocial behaviour flourishes. and McKay paved the way for many commu-
Social disorganisation theory or social ecol- nity action and treatment programmes (Siegel
ogy was popularised by theorists Shaw and 2001: 195). Recently, more focus has been put
McKay, who studied the city of Chicago and on the injustices in society to explain crime, so
found that areas with a high crime rate were instead of blaming the person, researchers are
Onbismes) 131
focusing on the high-risk neighbourhoods and service delivery protests against the inefficien-
informal settlements with high levels of social cy and incompetence of the majority of local
disorganisation that create forces of strain, governments, and more specifically municipal-
frustration and disorganisation that inherently ities within the various national government
create crime. The emphasis is on the injustices departments, all point to systemic problems
against the human, and the specific individual and ineffective governance. Poor service deliv-
factors are somewhat avoided. ery compounds the strain many impoverished
and forsaken citizens in South Africa experi-
Strain theories ence (Ngantweni 2011: 306).
An anomic society is not able to control
Criminologists who view crime as a direct human aspirations and demands, which means
result of lower-class frustration and anger are that anomie undermines a society's control
referred to as strain theorists. They argue that function. Under these circumstances it can
people are more likely to engage in crime when become a strain to obey the law, and criminal
they cannot get what they want through legit- actions can result (Siegel 2001: 200-201).
imate channels. Most people desire wealth, Durkheim's ideas were applied to criminol-
material possessions, power, prestige and ogy by Robert Merton (1910-2003) in his theo-
other life comforts. Members of the lower ry of anomie, which was the first major strain
class are generally unable to acquire these theory of crime. In his work Social structure
symbols of success through conventional and anomie (1938), Merton argues that people
means. They may become frustrated or angry, are encouraged to pursue the goal of mone
and as a result they may try to get what they tary success, but that lower-class (underpriv-
want through illegitimate or criminal channels, ileged) individuals are often prevented from
strike out at others in their anger, or make achieving this through legitimate channels,
themselves feel better through illicit drug use such as obtaining a good education and then
(Agnew 2006: 421). Consequently, they feel a good job. The inability to achieve economic
anger, frustration and resentment, which are success creates much frustration, and individ-
referred to as strain. Lower-class (or deprived) uals sometimes respond to this by engaging
citizens can either accept their situation and in crime such as theft and substance abuse
live as socially responsible, but unrewarded, (Agnew 2006: 421).
citizens, or they may opt for an illegal means of Merton argues that each person has his or
achieving material success, such as theft, vio- her own concept of society’s goals and the
lence or drug trafficking. means to attain them, thus various adaptations
Strain theory was developed from the work to strain caused by restricted access to the
of Emile Durkheim's notion of anomie (from socially approved goals and means can occur.
the Greek a nomos, meaning “without norms”) Merton identifies five modes of adaptation:
and Robert Merton, who looked at the cultural
¢ Conformity. This is the most common social
imbalance that exists between the goals and
adaptation. Individuals embrace the con-
the norms of the citizenry, especially in poor
ventional goals of society (e.g. studying
areas. Anomie was later expanded to include
hard to achieve success) and also have
“a total absence of a moral sense, disregard
the means at their disposal to attain them.
for divine law and lack of conformity” (Fattah
Such persons are law abiding. Merton main-
1997: 236), According to Durkheim, an anomic
tains that if most people did not follow this
society is one in which the rules of behaviour
adaptation, the very existence of society
(norms) have broken down during periods of
would be threatened (Williams & McShane
rapid change or social crisis, such as war or
2004: 101).
famine. In South Africa, the new political dis-
pensation brought expectations of a better life, ¢ Innovation. This is the adaptation mech-
particularly for the previously disadvantaged, anism most closely associated with crim-
and promised proper housing, job opportuni- inal behaviour. Innovation occurs when
ties and quality education. These expectations an individual accepts the goals of soci-
have not been met, which has resulted in feel- ety, but rejects or is incapable of attain-
ings of frustration and discontent. The ongoing ing them through legitimate means. Many
ov" Schaik
132 Publishers
(young) people desire material goods and bined, and the distinct differences between
luxuries, but lack the financial ability to social classes are emphasised. According to
acquire them. The resulting conflict may this view, a unique lower-class culture devel-
entice them to adopt illegal solutions for ops in disorganised neighbourhoods due to
their dilemma, for example stealing or drug strain and social isolation. These indepen-
dealing (Siegel 2001: 201). In South Africa, dent subcultures maintain unique values and
a large number of crimes, especially theft, beliefs that are in conflict with conventional
are committed by young offenders (Crime (aw-abiding) norms, thus criminal behaviour
report of the SAPS, 2010/2011; Terblanche is an expression of conformity to lower-class
1999: 33). subcultural values such as excitement, tough-
¢ Ritualism. Ritualists gain pleasure from ness, taking risks, fearlessness and immediate
practising traditional ceremonies with gratification, as opposed to middle-class val-
set manners and customs, irrespective of ues, which emphasise hard work, delayed grat-
whether they have a real purpose or goal. ification, formal education and being cautious
Ritualists should have the lowest level of (Siegel 2001: 209). The lower-class subculture
misbehaviour because they apparently have is an attractive alternative because the urban
abandoned the success goal, which is at the poor find it impossible to meet the behavioural
root of criminal activity (Siegel 2003: 193). demands of middle-class society. The poor
and marginalised in South Africa cannot aspire
¢ Retreatism. Retreatists reject both the goals
to the so-called middle-class measuring rod.
and the means of society, and do not buy
Bezuidenhout (2007: i-vii) contextualises it as
into the idea of conventional hard work
follows:
(Tibbetts 2012: 113). This category includes
psychotics, chronic drunkards, drug Children are guided by a materialistic
addicts and street people (Carrabine et al. carefree society that craves gluttony but
2004: 58). detests the very poor and marginalised.
¢ Rebellion. This mode of adaptation to strain Beggars and street children are usually
involves substituting conventional goals treated as the outcasts of society. The
and means with an alternative set. An exam- typical aspects that determine a person's
ple would be revolutionaries who wish to success are: “What you drive”; “What you
bring about radical change to a social struc- earn” and “Where you live”. These materi-
ture, or rebel in reaction to a corrupt and alistic yardsticks also apply to our youth.
hated government (Williams & McShane Branded clothing, cell phones and finan-
2004: 102). Tibbetts (2012:113) believes cial independence put a huge burden on
that “most true rebels are criminals by defi- youths who are not in a position to com-
nition, largely because they are trying to pete on this level ... Poor youths and other
overthrow the current societal structure”. marginalised youths resort to violence,
In addition, one person can apply different drug abuse and other dangerous activities
modes of adaptation simultaneously. such as train surfing or engage in crimi-
nal activities because of amongst others a
Some questions are left unanswered by this lack of parental involvement and construc-
theory based on anomie: tive leisure time activities in their area.
¢ Why do people choose to commit certain
types of crimes? For example, why do some The concept that the lower (or underprivi-
young people shoplift and others rape? leged) class develops a unique culture as a
response to strain can be traced to Thorsten
e Why do most young offenders desist from
Sellin’s classic work, Culture, conflict and crime,
crime as adults? Does this mean that per-
published in 1938. Sellin’s main premise is
ceptions of anomie dwindle with age?
that criminal law expresses the rules of the
dominant culture. The content of the law may
Cultural deviance theories
therefore create a clash between conventional,
In these theories, elements of both the strain middle-class rules and splinter groups, such as
and social disorganisation theories are com- ethnic and racial minorities. The latter groups
Van Schaik
Crubishers} 133
maintain their own set of conduct norms - Social process theories share one basic
rules governing the day-to-day living condi- idea: all people, regardless of their race, class
tions within these subcultures. Sellin argues or gender, have the potential to become law-
that criminal behaviour is an expression of breakers. Although members of the lower class
conformity to lower-class cultural values and may have to deal with the added burdens of
traditions that are fundamentally different poverty, racism, poor schools and disrupted
from, and create conflict with, laws designed family lives, these social forces can be counter-
by the middle and upper class (Hunter & Dan- acted by positive peer relations, a supportive
tzker 2002: 95). family and educational success. In contrast,
In socially disorganised neighbourhoods even the most privileged members of society
such as Khayelitsha, Manenberg and Guguletu may turn to antisocial behaviour if their life
in the Western Cape, conventional values experiences are intolerable and destructive.
such as honesty, obedience and hard work Process theories thus account for the occur-
make little sense to youths whose role mod- rence of misbehaviour in all classes of society.
els may include the affluent neighbourhood Traditionally, social process theories
drug dealer or pimp. Siegel et al. (2003: 118) include social learning theories and social con-
maintain that those adolescents who share trol theories.
lower-class values and admire criminals, drug
dealers and pimps find it difficult to impress
Social learning theories
authority figures such as teachers or employ-
ers. They experience a form of culture conflict Social learning theorists believe that crime
and are rendered incapable of achieving suc- is a result of learning the norms, values and
cess in a legitimate fashion. As a result, they behaviours associated with criminal activity.
join gangs and engage in crime. Gangs and Social learning can involve the actual tech-
subcultures are smaller and more localised, niques of crime (e.g. how to handle a firearm
and exhibit a distinctive shape or structure or roll a joint), as well as the psychological
to make them look different from the domi- aspects of criminality (e.g. how to deal with
nant culture (Clarke, Hall, Jefferson & Roberts the guilt and shame associated with crime)
2011: 51). (Siegel 2001: 228). Social learning theories
see law-breaking socialisation as occurring
through a process by which young offenders
6.3.2.2 Social process theories are taught that criminal behaviour is accept-
The consistent theme of social process theo- able and perhaps even more desirable than
ries is that deviant socialisation and intimacy legitimate (law-abiding) behaviour.
with criminal peers breed criminality (Hunter One of the most prominent social learning
& Dantzker 2002: 104). These theories assume theories is Sutherland's differential association
that deviant behaviour is learnt through social theory, first mooted in 1939 and finalised in
interaction with others (Tibbetts 2012: 141). 1947. Sutherland describes criminal behaviour
This can be compared to teaching someone as normal learnt behaviour (in the same man-
to ride a bicycle. They draw attention to the ner as learning to read or write) (Carrabine
interactions people have with various organ- et al. 2004: 56; Tibbetts 2012: 143). It involves
isations, institutions and processes of soci- the learning of deviant ideas and beliefs in
ety. Family relationships, peer group associa- the process of associating with other people.
tions, education experiences and interactions Criminal behaviour is a product of such ideas
with authority figures influence most people, and beliefs (Vold, Bernard & Snipes 1998: 199).
including teachers, employers and agents of People actively learn criminal ways as they
the criminal justice system. If these relation- interact with other individuals who serve as
ships are positive and supportive, people can teachers and guides to crime, thus criminality
succeed within the rules of society and remain cannot occur without the aid of others. Learn-
law abiding. If they are dysfunctional, conven- ing criminal behaviour therefore occurs within
tional success may be impossible and criminal intimate personal groups of significant others.
actions may become a feasible alternative (Sie- Intimate social companions such as family,
gel 2001: 224). friends and peers have the greatest influence
evn Schaik
134 Publishers
on a person’s conduct and attitude develop- els in a young person’s life that have a signif-
ment. For example, children who grow up in icant impact on the behaviour they model,
homes where parents abuse alcohol are more namely the family members (e.g. an abusive
likely to view drinking as socially acceptable rowdy father), the subculture (e.g. peers who
(Siegel 2001: 229; Tibbetts 2012: 144). are gang members), and symbolic models that
Learning criminal behaviour includes learn- are provided by the media (e.g. a heroic char-
ing the techniques of committing crime (e.g. acter such as the one in the Grand Theft Auto
young offenders learn from their associates video action adventure game) (Bartol & Bartol
how to train surf, shoplift or obtain drugs). 2011: 121; Bartol & Bartol 2017: 145).
They also learn the accepted terminology for
their acts, and their violations of the law are Social control theories
approved. For example, learning how to flick a
knife and getting high on drugs are behavioural The central theme in all versions of control
patterns usually acquired from more experi- theory is that human behaviour is largely the
enced companions. Young offenders must also result of how children are socialised (Ellis &
learn how to react properly to their illegal acts, Walsh 2000: 321). This socialisation determines
and when to defend them, rationalise them or the extent to which children come to trust and
show remorse. rely on others, and in turn become emotionally
Sutherland’s theory has had a massive and intellectually committed to them. Con-
impact on criminology. At the time, physicians trol theorists believe that this emotional and
and psychiatrists who were searching for the intellectual (cognitive) commitment gradually
causes of criminal behaviour in biological and emerges from a long process of being nurtured
psychological abnormalities dominated crimi- and socialised by parents and guardians.
nology. Vold et al. (1998: 198) are of the opinion Control theorists assume that human
that Sutherland’s theory, more than any other, nature is the motivator for criminal behaviour,
has been responsible for the decline of the pre- and that if some type of outside controls did
vailing opinion and the rise of the view that not exist, individuals would more readily com-
crime is the result of environmental influenc- mit crimes (Hunter & Dantzker 2002: 107-108),
es acting on biologically and psychologically meaning that people would naturally commit
normal individuals. crimes if left to their own devices. People are
In addition to Edwin Sutherland’s theory, therefore free to break the law in any number
one should also take heed of the social learn- of ways but certain controls prevent them
ing theory of Albert Bandura, who insists that from doing so (Chamberlain 2015: 157). The
the learning process begins in early childhood. key question then is why do most people not
Children develop many behaviours merely by commit crimes? Individuals are said to commit
watching their parents, significant others and crimes because of the weakness of controlling
different role models in their environment, a forces restraining them from doing so, not
process known as modelling or observational because of the strength of forces driving them
learning. A child’s behaviour pattern therefore to do so (Vold et al. 1998: 201).
is often acquired through the modelling or imi- The most popular version of social control
tation of other people, real and imagined, in theory is the one presented by Travis Hirschi
the child’s direct environment. This implies in his book Causes of delinquency published in
that the conditions most conducive to the 1969, which identifies the social bond between
learning of aggression are those in which the people as a strong controlling force (Chamber-
child (a) has many opportunities to observe lain 2015: 157; Siegel et al. 2003: 122). People
aggression; (b) is reinforced by others for with low social bonds and self-contro! will be
his or her own aggression; or (c) is often the more inclined to commit crime compared to
object of aggression (e.g. abuse by the father). those who have a solid bond with their signif-
Bandura claims that the highest incidence of icant others and strong self-control (Barkan
aggression is found in communities and groups 2012: 201).
in which aggressive models are plentiful and There are four elements in the socialisation
fighting prowess is regarded as a valued attri- process by which lasting bonds between a
bute. He identified three major types of mod- child and society are formed:
@ven Schaik
Publishers} 135
e Attachment. This is the first and most ing conformity. Commitment plays a role
important element of Hirschi's social bond in the fear of law-breaking behaviour by a
theory, and refers to the trust, respect and person. In this context a committed person
intimacy that develop between children and implies someone who will first consider the
their parents or guardians. It also refers to value of his or her commitments before per-
the individual's capacity to form effective petrating a deviant or criminal act. Commit-
relationships with other people and insti- ted youths will think of their parents, their
tutions. The young person should attach grandparents, their teacher, their religious
to parents, family, peers and the school leader, their close family and their friends,
(Burke 2005: 208). Attachment comes from and they will think through the risks of los-
the dedicated supervision and guidance ing the investment they have made in these
that parents give to their children whenever relationships and previous conventional
opportunities or temptations for criminal behaviours such as attending school and
behaviour arise. Through this initial aspect church before they act criminally. The ratio-
of bonding, the beginnings of a sense of nal actor will consider the cost-benefit ratio
moral commitment to others start to form and it is assumed that the youth that invest-
(Ellis & Walsh 2000: 322). When children ed a lot of commitment to family and school
develop a general sensitivity to the opinions have a greater stake in conformity and a lot
of others (parents, peers and teachers), it to lose if they break any rule or law (Burke
is an indication of attachment. The primary 2005: 209).
attachment and interaction are thus with
Belief. This refers to the inner feeling that
the parents, and should be closely followed
children acquire with regard to the legiti-
by attachment to peers, teachers, religious
macy and reasonableness of the boundaries
leaders, sports coaches and other healthy
being placed on their behaviour by those in
mentors of a community.
authority (Ellis & Walsh 2000: 322). Respect
Involvement. Involvement in conventional for the authorities, and understanding the
activities is the second element of Hirschi’s importance and having respect for the law
bonding process. By devoting time to con- are indicative of positive beliefs. Belief
ventional work, actions and pastimes such therefore refers to the existence of a com-
as sport and church activities, the young mon value system within a society which
person cannot find the time and does is adhered to. Hirschi states that people
not feel the need to engage in criminal are more likely to conform to social norms
behaviour. Schoolwork, recreation and hob- when they believe in them. It is therefore
bies are time-consuming activities, leaving a set of impressions and convictions that
no room for boredom. Hirschi (1969: 187) needs to be constantly reinforced (Burke
stated in this regard that “the child play- 2005: 209).
ing ping-pong, swimming in the community
pool, or doing his homework is not commit- Empey et al. (1999: 224) illustrate Hirschi’s
ting delinquent acts”, therefore the opportu- argument on the social bond as follows:
nity for deviance would rarely arise because
If socialisation is effective, and if children
the child is too busy with and involved in
are attached to others and believe in the
acceptable activities (Burke 2005: 209).
morality of law, the social bond will devel-
Commitment. This refers to how invested op. In turn, a strong stake in conformity
the individual is in conforming to the will be created, and conformity to the
rules of society. Hirschi (cited in Moyer law will result. However, if socialisation is
2001: 149) explains that “most people, sim- ineffective, natural human impulses will
ply by the process of living in an organised remain unrestrained. Children will be free
society, acquire goods, reputations and to violate the law, and misconduct will
prospects that they do not want to risk los- be a consequence. What children must
ing”. The prospect of what one hopes to be taught, therefore, is not how to break
obtain is also vital, thus ambition and/or the law, but how to restrain their natural
aspiration play an important role in produc- impulses and how to be law abiding.
136
The four elements (attachment, involvement, not inherent in any action, but is created when
commitment and belief) all affect the bond rules and sanctions are applied to behaviour
between an individual and society. Since all considered to be offensive (Muncie 2006: 229).
individuals exhibit some bonding to society, One result of such stigmatisation is that some
the question for criminologists is how much (young) offenders who have been negatively
these bonds need to be weakened before mis- labelled not only engage in further criminal
behaviour results. Crime and delinquency will behaviour, but also seek out or find comfort in
most likely occur when an individual’s ties to the company of others who have likewise been
conventional order or normative standards cast as outsiders. White and Haines (2001: 84)
are weak or absent (Bartol & Bartol 2017: 27). present this process of labelling as follows:
What is less clear in Hirschi’s theory is the
1. Negative labelling
extent to which a weakening or absence of any
one component of the bond affects the other 2. Stigmatisation
elements. Williams and McShane (2004: 201) 3. New identity formation in response to neg-
pose the following question: does the strong ative labelling
presence of three elements, and the absence of 4. Commitment to the new identity based on
a fourth, mean misconduct will result? In addi- available roles and relationships
tion, Bartol and Bartol (2017: 27) contend that
Hirschi’s theory postulates that self-control
Labelling theorists assume that human nature
is a stable trait that is fully in place in child-
is relatively flexible and subject to change.
hood by about eight years of age and that it
Most young offenders are viewed as relatively
will not really alter after that. However, recent
normal youths who will eventually desist
research has highlighted that self-control can
from law violations on their own. However, if
develop at a later stage or age.
they persist in committing crime, especially
serious crime, this is not due to any evil ten-
6.4 A SHIFT FROM THE POSITIV- dencies on their part, but to the negative
effects of the police, judges and correctional
IST SCHOOL: LABELLING AND
officials on them. Thus the key to understand-
RADICAL THEORIES ing law-violating behaviour lies in the ways in
From the 1960s to the 1980s, a new group of which social institutions - including the fam-
theorists became preoccupied with society’s ily, schools and the criminal justice system -
reaction to lawbreakers. respond to conduct viewed as exceeding the
According to the social reaction or label- limits of acceptability. Labelling and reacting
ling theory, inadequate families, poverty, lack to offenders as “deviant” have unanticipated
of opportunity or peer group associations do negative consequences, deepening criminal
not cause crime. Instead, society's reactions to behaviour and making the crime problem
youthful lawbreakers produce serious miscon- worse. Barkan (2012: 15) states in this regard
duct - what labelling theorists call secondary that official labelling leads to “deviance ampli-
deviance (Empey et al. 1999: 116). Identifying, fication, or the commission of continued devi-
labelling and stigmatising children in the juve- ance and the adoption of a deviant lifestyle”.
nile justice system worsen their behaviour. Labelling theorists also assume that the social
Tibbetts (2012: 173) maintains that personal order is characterised by value conflict, which
identities are highly influenced by the way that is usually resolved in favour of people in posi-
society or authority categorises humans into tions of power and influence. Social rules and
offender groupings. their imposition will reflect their interests and
The labelling approach thus argues that not those of less powerful groups. Empey et al.
criminological analysis should begin with how (1999: 116) maintain that a distrust of legal and
people come to be defined as deviant, and other social institutions is implied in labelling
examines the implications that such defini- theory.
tions hold for future offensive behaviour. This However, recent research suggests that a
approach is widely associated with the work weak relationship exists between official label-
of Howard Becker. He claims that deviance is ling and its effect. In fact, some researchers
@ven Schaik
Publishers) 137
believe no relationship exists between official try to link class to specific types of crime.
sanctioning and labelling effects. It appears They make a broad distinction between the
that informal forms of labelling such as label- crimes of the powerful and those of the less
ling by parents, friends, employers and the powerful (the “have nots” or the proletariat):
community show a stronger link to the label-
¢ Marxist theorists link crimes of the powerful
ling effect and change in behaviour com-
to a personal desire to accumulate wealth
pared to official labelling initiatives (Tibbetts
and to compete successfully in a capitalist
2012: 175). Those with whom one interacts
economic system. Economic crimes such as
daily will therefore have more impact in terms
fraud and corruption are examples in this
of how one feels about oneself than official
category.
labelling by the authorities. The latest research
shows that official labels by the authorities are e Crimes of the less powerful stem from a
temporary and situational. This has paved the combination of economic and social motiva-
way for theories like John Braithwaite’s re-in- tion. The person commits crime to supple-
tegrative shaming theory, which proposes ment his or her basic income and this deci-
that crime rates of individuals and groups sion is due to varying types of sociocultural
are directly influenced by the shaming pro- alienation. Examples are shoplifting, vandal-
cess. Re-integrative shaming does not allow ism and assault.
the action to be labelled and to become the
master status trait. Re-integrative shaming Thus the cause of crime is found in the struc-
disapproves of the action but still keeps the ture of unequal class relations in a society
relationship intact. Certain processes and cer- (White & Haines 2001: 99). Several versions of
emonies are held to certify and decertify the conflict theory exist, and the basic premise in
deviant deed. After the deed has been certified them is that different groups will always com-
as a wrongdoing, and the naming and shaming pete for control over political and economic
process has occurred, the transgressor’s place processes. Usually an imbalance exists in
as a member of society is reinstated. power relationships, which contributes to con-
Within the broad classification of radical flict. Some conflict theorists believe that con-
criminology there is a diverse range of theories flict between groups is healthy as it reminds
that contest the behavioural questions posed the populace to consider whether the current
by positivist criminologies. It is suggested status quo in a society is acceptable or whether
that the root cause of misbehaviour is to be change is needed. If a society is in a state of
found less in individual characteristics and oppression or if inequality is rife, conflict
environmental conditions, and more in rela- between groups can be expected (Chamberlain
tionships of power and selective processes of 2015: 108; Tibbetts 2012: 177).
criminalisation. In labelling, this is expressed More recently the so-called school of new
in terms of a society that creates rules, and in criminology has markedly broadened this
Marxism it is expressed in terms of a capitalist theoretical area of debate. They see the influ-
state that has the power to criminalise those ence of income, poverty, social class and level
behaviours that are deemed threatening (Mun- of education as being very important. Materi-
cie 1999: 134; Tibbetts 2012: 175). alism, greed and the middle-class measuring
Marxist criminology directs attention rod or yardstick for success, and the division
towards the social harms perpetrated by of labour that exists within the economic and
the powerful within society (the “haves” or political systems are deemed to be the key
the bourgeoisie). The law becomes a tool ingredients in the construction of crime. The
by which the bourgeoisie controls the pro- power structures in society (the politicians
letariat and keeps them in a disadvantaged and the “haves”) manipulate processes and
position (Tibbetts 2012:176). Econom- influence the criminalisation (e.g. smoking in
ic power can be transformed into legal or public buildings and restaurants) and decrim-
political power, and accounts for the gen- inalisation of behaviour (e.g. prostitution, the
eral disempowerment of the masses. Based private use of dagga in the home) within soci-
on this power, the class situation in a society. This school of thought finds it necessary
ety becomes crucial and Marxist theorists to replace the existing social order with a
Van Schaik
138 © publishers
non-capitalist system (Brown et al. 2007: 15). ons to be more humane places for punishing
The new criminologists suggest that there will offenders (e.g. the Emthonjeni Youth Centre
be less crime in a fair, equal and just society at Baviaanspoort Correctional Centre outside
(Bezuidenhout & Little 2011: 16). Pretoria) illustrate the influence of the classi-
cal approach in the South African legal system.
A further outcome of the classical influence
6.5 EVALUATION OF TRADITIONAL
has been the development of rational theories.
PERSPECTIVES These are addressed as contemporary expla-
This chapter has dealt with two major schools nations in the next chapter.
of thought - the classical school and the posi- With regard to the positivist tradition, a
tivist school - from which various theoretical significant number of explanatory theories for
explanations have emanated. crime have also been developed, of which only
Classical criminology has little concern a few have been addressed in this chapter (see
for the person - the focus is exclusively on Figure 6.1).
the criminal act and judicial responses to it. Despite criticism, individual positivism
However, it has had a tremendous impact on formed the bedrock of criminological studies
the criminal justice system. Actions such as for the first half of the 20th century (Cham-
an independent judiciary, the reduction of berlain 2105:35; Muncie 1999:98; Tibbetts
brutal punishments and the abolition of the 2012:65). In general, individual positivism
death penalty, as well as now designing pris- assumes that all human behaviour is deter-
Individual Sociological (social)

positivism positivism
Biological explanations Psychological explanations i :

(the born offender) (the made offender) Social structure Social process
Social Cultural Learning Control

disorganisation deviance
Exponents: Exponents: Exponents: Exponents:

Lombroso Freud Shaw and McKay Sutherland
Lange Kohiberg Durkheim Hirschi
Hirschi and Hindelang Merton
Glueck and Glueck Sellin
Focus areas: Focus areas: Focus areas: Focus areas:

© Physical abnormalities |’ | © Early childhood © Social disorganisation e Learning behaviour
© Genetic factors experiences (urban decay) (significant others)
© Chromosomes © Moral development e Anomic society © Social control
© Intelligence © Blocked opportunities (social bond)
© Personality in society's structure
© Lower-class cultural
f values and traditions =|
Figure 6.1 Traditional positivistic explanations
even Schaik { 3 9
mined by biological, psychological or envi- e Failure to consider barriers to achievement

ronmental factors, or a combination of these. other than social class
What is noteworthy, comments Muncie ¢ Inability to account for the fact that only
(1999: 8), is that these theories focus on indi- some people who experience strain turn to
vidual motivations and provide very specific criminal activity
representations of the young offender as either
“born bad” (e.g. through genetic inheritance) Siegel (2001: 213) elaborates on the criticism
or “made bad” (e.g. through the inability to of social strain theory. Even if the higher crime
develop a conscience). Notions of adolescent rates recorded in lower-class areas are valid,
disorder and parental neglect could now be it is still true that most members of the lower
entertained as defences for misconduct. class are not offenders. A vast number of urban
Recent biological theories reflect a growing poor remain honest and law abiding. It is also
body of knowledge about the complex relation- questionable whether a distinct lower-class
ships among many biological and environmen- culture actually exists. Several researchers
tal factors. Human beings are unique as peo- have found that gang members and other mis-
ple with similar genetic inheritance who are behaving youths seem to value middle-class
exposed to similar environmental stimuli can concepts, such as sharing, earning money and
and often do behave differently when placed respecting the law, as highly as middle-class
in the same situations (Chamberlain 2015: 48). youths do. Criminologists contend that lower-
In psychological theories it has become clearly class youths also value education as highly as
evident that criminologists cannot ignore psy- middle-class students do.
chological motivation. What has been lacking,
say Empey et al. (1999: 134), are theories that
Despite their shortcomings, traditional theo-
link motivation to social and cultural factors,
ries within the sphere of classicism and pos-
as well as to family-related factors. Recent
itivism have made their mark, and their influ-
developments are psychological criminology
ence is evident in contemporary theoretical
theories, which aim to explain the behaviour
explanations. The difference in orientations of
and mental processes of the person who com-
both schools is set out in Table 6.1.
mits crime. Both social and personality influ-
Labelling and radical theory, however, are
ences on criminal behaviour are considered
sharply at odds with both classical and posi-
along with mental processes that mediate the
tivist theories. Because the positivist school
offending behaviour (Bartol & Barto] 2017: 30).
of criminology was pre-eminent in the 1900s,
The social structure approach has signifi-
radical theorists’ main concern has been
cantly influenced both criminological theory
and crime-prevention strategies. The core argu- to discredit it and to identify an alternative
approach for explaining and controlling crime.
ment is that people who are socially isolated
These notions have shifted the crimi-
and live in socially disorganised neighbour-
hoods are more likely to be subjected to crim- nological agenda away from popular ideas
inal influences. In view of the high crime rate, of causation. As a result, radical theorists
misbehaviour and gang activity that occur in have been criticised for addressing “polliti-
the deteriorated slum areas of large cities, the cal interpretations to the detriment of posing
main argument of structural theorists seems to or answering empirical questions” (Muncie
be valid. 1999: 134). Reactive criminology, such as label-
Social strain, a variation of the social struc- ling and radical theories, tends to romanticise
ture approach, dominated American sociolog- young offenders and underplay the damaging
ical theory of crime during the 20th century, consequences of their criminal actions. This
but declined in popularity during the 1970s. idealised view by these theorists is echoed in
Agnew (cited in Brown et al. 2001: 300-301) the increasing efforts to divert youths from the
attributes this decline in popularity to four criminal justice system by incarcerating fewer
major aspects: of them and restoring those who derail.
¢ Focus on lower-class misbehaviour

¢ Neglect of goals other than middle-class sta-
tus and financial gain ‘
140
Table 6.1 Basic concepts of the classical and positivist approaches
Outlook Classical theory Positivist approaches

Definition of crime | Lega/ Natural
e Violation of law ¢ Violation of social norms (extends
beyond a legal definition)
Focus of analysis The criminal act The offender
¢ Specific offence ¢ Characteristics of the offender (biologi-
¢ The criminal law cal, psychological and social traits)
Cause of crime Rationality Pathology

e Individual choice e Individual deficiency
e Pleasure principle
Nature of offender | Voluntaristic Deterministic and/or predisposed to cer-
e Free will, hedonistic, rational (capacity tain types of behaviour
to reason) ¢ Human nature is determined by bio-
¢ Morally responsible for own behaviour logical, psychological and social traits
¢ No moral responsibility
Response to crime Punishment Treatment
¢ Proportional to the crime * Scientific experts determine the social
e Fixed or determinate (prescribed in harm, and sentences are indeter-
advance by the law) minate (of a variable length until the
offender is cured)
Crime prevention Deterrence Diagnosis and classification
¢ Reform of the legal system to make it ¢ Early intervention
more accessible
Source: Adapted from White & Haines (2001: 25, 41)
6.6 CONCLUSION e Given the causes identified, what are the

appropriate policy implications?
One can conclude from these diverse theo-
ries that the search for a full understanding of
Most traditional theories obviously fail in
youth misbehaviour has been characterised
terms of accurate predictions and efficient pol-
by a mixed bag of ideas and assumptions. To
icies. Some exceptions, however, are the moral
reach a general conclusion from this vast array
development theory (Kohlberg), Hirschi’s
of information, Empey et al. (1999: 303) sug-
social control theory and Bandura’s social
gest that the following questions need to be
learning theory, since their predictions are rel-
answered:
atively consistent with numerous studies on
e Have the theories identified any causes that youth misbehaviour.
actually predict youth misbehaviour? Contemporary theoretical developments
¢ Do the theories predict youth misbehaviour acknowledge the contributions of traditional
with considerable accuracy? perspectives, but pertinently address their
shortcomings.
CRITICAL QUESTIONS
1. Discuss the characteristics of a good theory.

2. Compare the arguments of the classical school of thought on crime with those of the positivist school.
Opubisres| 144
3. The four groupings of psychological theories underline the argument of the made offender. Explain this
statement.
4. Discuss Merton's theory of anomie.
5. Hirschi’s theory of social bonding emphasises the socialisation process. Discuss this statement.
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Austin, T. (2012). Psychological assessment and psy- Fattah, E.A. (1997). Criminology: Past, present and
chodiagnostics. In A. Burke, Abnormal psychology: future. A critical overview. London: Macmillan.
A South African perspective. Cape Town: Oxford Glick, L. (1995). Criminology. Boston: Allyn & Bacon.
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sity Press.
@vn ‘Schaik { 4 3
Christiaan | Bezul
OBJECTIVES KEYWORDS
You should be able to integrated theories
* clearly understand contemporary explanations of misbehaviour neoclassical
* recognise the various elements of integrated theories neopositivism
* consider the explanation for youth misbehaviour in South Africa.
7.1 INTRODUCTION: PARADIGM and central suggestions from two or more

SHIFT IN THEORIES OF YOUTH prior existing theories into a new single set of
integrated concepts and proposals. Theorists
MISBEHAVIOUR
therefore take two or more traditional theories
A number of new theoretical formulations and merge them into one cohesive model (Tib-
have emerged to account for youth misbe- betts 2012: 195). Integration can take several
haviour. However, most of these are based on forms. In this regard, Williams and McShane
the arguments of traditional theories of crim- (2010: 217) highlight the so-called end-to-end
inal behaviour, together with recent empir- model where theories are put together in a
ical research findings on the correlates and sequential, straight-line style. In the other inte-
causes of youthful antisocial behaviour, there- grative approach, several key constructs are
fore many of them are in actual fact reformu- borrowed from several theories and are then
lations of existing (traditional) theories that combined in a new blend to form a so-called
have progressed to integrative theories and fully integrated model or theory. To contex-
become contemporary explanations of youth tualise integration one can look at emerging
misbehaviour. Integrative theories should be themes or developments in scholarly work on
seen as theories that combine the concepts youths and youth misbehaviour.
1. Acknowledgement is hereby given to Sandra Joubert for the initial contribution to this chapter.
even ‘Schaik
145
Compas et al. (cited in Hoge 2001: 57) identify tal ingredient of the modern-day classical per-
three emerging themes in research and theory spective on crime and human behaviour:
relating to adolescent development. These are
also relevant to many of the newer theories ¢ Rationality. Human beings have free will,
dealing specifically with antisocial behaviour: and their actions are the result of choice.
¢ Hedonism. Pleasure and pain, or reward and
¢ The identification of risk and protective fac- punishment, are the major determinants of
tors associated with normal and maladjusted choice.
development (such risk factors are dis-
cussed in Chapter 4) ¢ Punishment. Punishment is a deterrent to
unlawful behaviour, and deterrence is the
e The formulation of broad integrative models best justification for punishment.
(see section 7.3)
¢ Human rights. Individuals who cooperate
¢ The discovery of developmental pathways
make society possible, therefore society
linking childhood, adolescent and adult
owes respect to its citizens, as it is their
behaviour (see section 7.2.2 on develop-
right.
mental criminology and, in particular, theo-
ries by Thornberry, and Weis, Hawkins and e Due process. An accused should be pre-
Catalano (Siegel & Senna 2000) in section sumed innocent until proven otherwise, and
7.3.4) an accused should not be subject to pun-
ishment prior to guilt being lawfully estab-
It is evident that theorists currently adopt a lished.
more multifactor approach in their attempts to
explain youth misbehaviour. Contemporary the- Neoclassical theorists have supported a revival
orists identify significant factors as factors of of the principles of the classical school and a
risk, but hesitate to specify causative factors, as return to the practice of responding to crime
such specification implies a direct relationship itself, and not specifically to the behaviour of
between the factors and criminal behaviour. offenders, therefore the neoclassical school
Because traditional theorists often failed represents no major break with the basic the-
to predict youth misbehaviour accurately, ories of the classical school. These theorists
contemporary theorists are more prudent in continue to state that people are rational crea-
their approach, although they build on the argu- tures who have freedom of choice and are
ments of traditional theorists. It is impossible motivated to pursue their own self-interests for
to elaborate on each new theoretical contribu- personal satisfaction. Neoclassicism proposed
tion in the framework of a chapter. However, three modifications to the traditional classical
a comparative number of the mainstream con- school, many of which are still part of most
tributions will be highlighted to stimulate fur- criminal justice systems of the world. Firstly,
ther examination of contemporary theoretical they acknowledge that free will is important
developments. In addition, general discussions but also that in some instances it can be con-
pertaining to the integrative effort will be forth- strained by physical and environmental factors
coming instead of particularisation of specific (e.g. a poor person steals a loaf of bread from a
theories. shop because if he does not eat something his
mental and physical health will further deteri-
orate). Secondly, they proposed that courts
7.2 REFORMULATIONS OF needed to take into consideration offenders’
TRADITIONAL THEORIES past biographical and criminal history when
considering their sentence or punishment.
7.2.1 Neoclassicism: a revival of the
Thirdly, the neoclassicists insisted that certain
classical school individuals are generally less capable of exert-
The classical school influenced criminological ing free will in their choice to commit a crime.
thinking for a long time. The heritage left by These include children, the aged and the men-
this school is still operative today (Chamber- tally ill. They still stressed that most humans
lain 2015), and Schmalleger (1996: 142) points have the free will and choice to commit crime
to five principles, each of which is a fundamen- but that some individuals are in certain situ-
146
CHAPTER 7 CONTEMPORARY THEORETICAL EXPLANATIONS FOR YOUTH MISBEHAVIOUR
ations where they are not in a position to do from the classical school of thought (man is
a cost-benefit calculation before they do so a reasoning actor with a free will who weighs
(Chamberlain 2015: 25). Neoclassical theorists costs and benefits, and makes rational choices)
can be divided into three groups, namely utili- but was later heavily influenced by economic
tarian philosophers, just deserts philosophers models of decision making (Barkan 2012: 119).
and rational choice theorists (Empey, Stafford Economists such as Gary Becker argue that the
& Hay 1999: 234). principles of classical criminology can be used
to construct scientific theories for explaining
7.2.1.1 Utilitarian philosophers criminal behaviour. Choice theorists are of
the opinion that offenders take a decision to
Utilitarian philosophers such as Ernest van break the law after considering both personal
den Haag and James Q. Wilson believe that factors (such as the need for money, revenge,
legal punishment serves two vital functions: thrills) and situational factors (how well a
e It deters persons from committing further target is protected and the efficiency of the
crimes. police force). Thus before choosing to commit
e It protects society from those whose (crimi- a crime, the reasoning criminal evaluates the
nal) acts threaten the social order. risk of apprehension, the seriousness of the
expected punishment, the potential value of
Wilson maintains that persons who are likely the criminal enterprise, and his or her imme-
to commit crime lack inhibition against mis- diate need for criminal gain (Siegel 2001: 115).
behaviour, value the excitement and thrill of To illustrate this process, Maguire and
breaking the law, have a low stake in conformity, Radosh (1999: 174) outline the main argument
and are willing to take greater chances than the of Becker's economic model of crime published
average person. If they could be convinced that in 1968. Independently of any and all social
their actions would bring severe punishment, forces (such as family attachment and sub-
only the very irrational would be willing to cultural norms) that may influence behaviour,
engage in crime (Siegel 2001: 115). human actors ultimately do a cost-benefit anal-
ysis of their actions in society. Individuals will
7.2.1.2 Just deserts philosophers pursue those behaviours that hold the greatest
promise for gratification (e.g. the use of drugs
In direct contrast to the utilitarians, these phi- to gain acceptance within a peer group) and/or
losophers, such as Andrew von Hirsch, ques- the least probability of personal cost. Although
tion the utility of legal punishment as a means Becker portrays the offender as a rational
of deterring crime. They advocate using it only actor, this does not imply that the offend-
because those who commit crimes deserve to er has a perfect knowledge of the total situa-
be punished, and emphasise two basic prin- tion. It does mean, however, that the criminal
ciples in terms of sentencing (White & Haines offender is a knowing agent, not someone so
2001: 31): overwhelmed by internal and external forces
¢ No one other than a person found guilty of a as to lose a personal sense of reason.
crime must be punished for it. Becker acknowledges that although many
e Punishment must be proportional to the people operate under an elevated moral and
gravity of the offence and the culpability of ethical constraint, criminals or individuals who
the offender. decide to commit an unacceptable act ratio-
nally ascertain that the benefits of their crime
This implies that proportionate sentencing outweigh the cost, such as the probability of
requires that sanctions should relate to the apprehension, conviction and punishment, as
harmfulness of the conduct in terms of the well as their current opportunities. Rational
behaviour and the liability of the wrongdoer choice theory insists that crime is calculated
(Quirk 2006: 955-959). and deliberate. All criminals are rational actors
who practise conscious decision making, and
simultaneously work towards gaining the max-
7.2.1.3 Rational choice theorists imum benefits of their present situation. Crime
Rational choice theory originally developed therefore can be influenced by opportunity,
@ven Schaik
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situational context, possibility of detection, ¢ Modern theories are much more inter-
and the ready availability of a suitable target. disciplinary than in the past. Personality
In addition, opportunities are dependent on factors and environmental conditions are
the individual’s current surroundings and the often considered, if not formally included,
probability of ensuing factors. in the propositions of the theories and in
research designed to test them. A blend-
ing of individual and social positivism has
7.2.2 Neopositivism occurred, which is referred to as biosocial
Since the 1980s there has been a renewal of explanations. Biosocial approaches are per-
interest in positivist criminology. haps the most important and most recent
on how someone becomes a criminal as
both genetics and the environment play a
7.2.2.1 The biological approach role in this regard (Tibbetts 2012: 97). Hans
Eysenck’s theory of personality and crime
The approach of individual positivism has
is a good example of this. He argues that
undergone several changes in recent times.
human beings are not totally governed by
Shoemaker (2000: 41) highlights three major
their biology, nor are they totally unaffected
ones:
by their social circumstances. He proposes
¢ Modern biological theorists do not see that criminal behaviour is the result of an
(young) offenders as born criminals, as pos- interaction between certain environmental
tulated by Lombroso. The modern view char- conditions and inherited features of the ner-
acterises biological factors as predisposing vous system.
certain individuals to misbehaviour rather
than determining crime. People are exposed According to Eysenck (cited in Williams &
to biological and psychological processes McShane 2004:46), a person’s conscience
that shape their personalities in childhood. develops through a learning process called
Once the child is introduced to school, his conditioning. Two key variables, which both
or her personality manifests itself in certain focus on conditioning, characterise Eysenck’s
types of behaviour. The social influences theory (White & Haines 2001: 48):
encountered in the school or community ¢ The differential ability to be conditioned. This
environment may then further contribute to refers to the way in which genetic inheri-
antisocial behaviour, depending on the ini- tance can affect one’s ability to be condi-
tial personality formation. tioned. The sensitivity of the autonomic
e Research on the biological contribution to nervous system that is genetically inherited
explaining (youth) misbehaviour is much will determine whether a person is an intro-
more sophisticated than in the past. Control vert or extrovert, and this in turn influences
groups are used more often, longitudinal how well a person is able to be conditioned
designs are beginning to emerge, and defi- in society.
nitions of key variables are being revised ¢ The differential quality of conditioning. This
and refined. Recent research examines the refers to the effectiveness and efficiency of
effect of genetic inheritance on criminal the family in using appropriate condition-
behaviour and the impact of biochemical ing techniques. The content and method
differences such as hormonal activity on of child rearing will have an impact on the
human behavioural patterns. Other factors child’s subsequent behaviour.
that are considered are diet, brain develop-
ment, genes, neurotoxins, and the central The essence of Eysenck’s theory is that indi-
and autonomic nervous systems, as well as viduals with a certain type of nervous sys-
the effects of substances such as alcohol tem (introverts) condition better or learn the
and popular drugs (e.g. dagga, cocaine and mores of society much more readily. Introverts
amphetamines) on criminal behaviour (Bar- will link transgressions with disapproval much
tol & Bartol 2017: 92; Chamberlain 2015: 50; sooner than others do. Some people would
White & Haines 2001: 49). say introverts have a stronger conscience, and
148 (Csi)
experience more fear prior to their transgres- in bio-psychological approaches and _ tech-
sions and more guilt after committing them. niques. Biology has advanced significantly and
In addition, this could also be the reason why many “problem” behaviours in the past can
individual differences correlate differently be addressed with therapy and medication.
to classical conditioning (Bartol & Bartol Many behavioural scientists are voiceless on
2017: 105; Bartol 1995: 56). the topic of a genetic or biological disposition
Shoemaker (2000: 41) feels that in general causing a child to become a serious offender.
the explanatory power of biological factors However many behavioural scientists agree
appears to be diminishing, but that many of that factors such as genes, hormones, toxins,
the biological explanations that are currently brain injury and diet can influence the early
emerging are plausible and worthy of contin- development of a child and can give rise to
ued investigation, particularly those theories problematic behaviour. Perhaps the most
that address the biological influences on cog- important revelation with regard to biological
nitive development and learning capabilities. studies is “that the interaction between biolog-
In summary, he believes that society will see ical factors and environmental deficiencies has
increasing youth misbehaviour figures if chil- the most consistent effect on predicting crimi-
dren interact in a disorderly environment. nality” (Tibbetts 2012: 98).
This is grounded on the premise that the
conditions within the immediate home and
school are not conducive to the development 7.2.2.2 The social approach
of conditioned conscience toward the avoid- Contemporary social positivist theorists use
ing of misbehaviour and delinquency (Bartol new techniques such as self-reported and vic-
& Bartol 2017: 106; Bartol & Bartol 2011: 80). timisation data to examine, for example, crime
This implies that the personality is linked to trends over time in particular communities
criminal behaviour via socialisation processes. (Brown, Esbensen & Geis 2001: 314). A disor-
Youths who commit misbehaviours are devel- ganised community such as that in Hillbrow in
opmentally immature and are regarded as self- Johannesburg lacks the stability and resources
ish and motivated by immediate gratification. to formulate or achieve collective goals as a
During healthy and balanced socialisation, community, and this leads to higher rates of
children are taught to delay gratification by crime, which has implications for the society’s
means of conditioning, which eventually acts social structure.
as a buffer against selfishness and immediate Process theories enjoy continued popular-
gratification, inversely decreasing the chances ity. Learning and control perspectives feature
of offending. prominently in recent developments of general
According to Bartol (1995: 124, 138), few and integrated theories. A third branch of pro-
contemporary psychologists believe that cess theories (next to learning and control)
young offenders are emotionally disturbed has been developed and is known as develop-
or psychologically maladjusted youths in mental criminology. This is defined by Brown
need of conventional psychotherapy. Rather. et al. (2001: 431) as the study of the develop-
mainstream psychology views misbehaviour, ment and dynamics of deviance and misbe-
including the actions of frequent offenders, haviour with age, and focuses on the identifica-
as learnt behaviour, acquired and maintained tion of explanatory or causal factors that pre-
like all other human behaviour. The psycho- date, or co-occur with, the behavioural devel-
logical perspective on youth misbehaviour opment and have an impact on its course.
is becoming increasingly cognitive. Research According to this perspective, as adolescence
and theory now focus on how young offend- begins, children are expected to engage in
ers acquire, internalise and develop personal social processes that will determine their
values and beliefs. In this regard, Bartol and future wellbeing. They begin thinking about
Bartol (2017: 89) suggest that the way in which careers, leaving their parental homes, estab-
youths approach and interact with their social lishing relationships, and eventually marrying
environment is linked to their temperament and beginning their own families. If these tran-
or natural mood disposition. It is also import- sitions are disrupted, the outcome is destruc-
ant to consider the level of advancement tive and promotes criminality. Some young
even Schaik
Publishers) 149
people are already at risk because of socioeco- 4. The reinforcement they perceive from this
nomic problems or family dysfunction, and are involvement and interaction
the most susceptible to disrupted transitions
(Siegel & Senna 2000: 186). If children have more perceived opportuni-
A number of theories have been construct- ties for involvement, this will actually lead to
ed based on developmental views. These the- more involvement, which in turn leads to more
ories are multidimensional, suggesting that direct and indirect rewards and recognition.
criminality has multiple roots, including mal- The skill level of a child pertaining to master-
adaptive personality traits, educational failure ing certain challenges also affects the amount
and poor family relations. Crime cannot be of reward and recognition he or she receives.
attributed to a single causative factor, since When these socialising processes are consis-
people are influenced by different social pro- tent, a social bond of attachment and commit-
cesses as they mature. Because factors vary ment develops between the individual and the
in terms of their influence at different stages of socialising agent. Once established, the social
a person's life, the multidimensional nature of bond inhibits behaviours that are inconsistent
these theories is reflected in integrated theo- with the beliefs held and behaviours prac-
ries such as the social development theories. tised by the socialisation unit through estab-
Developmental theories are dynamic rath- lishment of an individual's stake or invest-
er than static, and are effectively concerned ment in conforming to the norms, values and
with three main issues: the development of behaviours of the socialising agent to which he
offending and antisocial behaviour, risk and or she is bonded. It is hypothesised that the
protective factors at different ages, and the behaviour of the individual will be pro-social
or antisocial, depending on the predominant
effects of life events on the course of develop-
behaviours, norms and values held by those
ment (Casey 2011: 13). Developmental theories
individuals or institutions to which the indi-
emphasise the dynamic process of delinquen-
vidual is bonded (Wortley 2008). Lee (2003: 4)
cy. Developmental changes or the develop-
states in this regard that Thornberry’s inter-
mental trajectory of individuals changes over
actional theory is based on the premise that
their lifetime. This encapsulates an individ-
human behaviour occurs in social interaction
ual’s cognitive, emotional and social growth
and can be explained by models that focus on
as he or she grows into adulthood. Numerous
interactive processes. Delinquent behaviour is
experiences along the way will influence the formed by relationships with other people and
child’s developmental pathway. Some children social institutions over time.
experience negative situations while growing
up, show no effect, and grow into calm and
balanced adults. Others will show conflicting 7.3 INTEGRATIVE THEORIES
behaviour throughout childhood but eventu-
Until today, debate continues as to whether
ally may “grow out of it”. Some children will theories from different fundamental points of
show a deviant hostile pathway and will con- departure can be combined. Some theorists
tinue with this into adulthood (Bartol & Bartol believe it is better to explain behaviour from
2017: 173). The social development model of a specific vantage point. Others disagree and
Weis et al. and Thornberry’s interactional the- believe it is better to combine the best sec-
ory represent good examples of this approach. tions of different theories to explain phenom-
The social development model posits that ena more holistically -— the so-called eclectic
children are socialised through different pro- approach to crime explanation. Brown et al.
cesses that involve four constructs: (1998: 389) posit in this regard that theory inte-
1. Perceived opportunities for involvement in gration has become a familiar feature among
activities and interactions with others academics. Furthermore, statistical analysis
of research data has become very advanced
2. The degree of involvement in activities and when compared to the past, which allows aca-
interactions demics to integrate different theories and to
3. The skills to participate in this involve- measure all correlating relevant variables to
ment and interaction enable integration.
150 |CGpubisners
Van Schai
One of the major developments of recent one-dimensional explanations that dominated

decades involves attempts to integrate two or criminology theory until the 1980s.
more theories to produce better explanations The integration of theories includes the
for (youth) misbehaviour (Tibbetts, 2012: 196), total spectrum of traditional theoretical devel-
the earliest of which were referred to as multi- opments that underlines their value as the
factor theories. These suggest that social, per- foundation for the explanation of criminal
sonal and economic factors all influence crim- behaviour. Hunter and Dantzker (2002: 135-
inal behaviour, and as a consequence, vari- 145) illustrate this full spectrum by means of
ables from different theoretical perspectives various examples.
are combined. According to this multifactor
approach, many youths are at risk of commit-
ting crime, but relatively few face all the haz- 7.3.1 Integrated classical theories
ards that result in a criminal career, such as an Integrated classical theories merge classical
impulsive personality, a dysfunctional family, a and positivist approaches to crime prevention
disorganised neighbourhood, deviant friends based on the individual’s rationality and free-
and school failure (Siegel 2001: 289). dom of choice as expressed in classical theory.
Integrated theories are often very different This ability to choose is merged with positive
from one another, which is probably due to the theory’s use of empiricism to understand how
lack of consensus about how to achieve the- choices are influenced by situational factors.
oretical integration (Empey et al. 1999: 310). For example, Cornish and Clarke’s theory of
Some integrated theories are more complex rational choice emphasises situational aspects
than others, particularly when new theoreti- (Hunter & Dantzker 2002: 135). It argues that
cal concepts are introduced. Different forms of crime prevention can be accomplished by
integration exist (Tibbetts 2012: 198-201). For focusing on those situational aspects that
example, end-to-end integration implies that influence the committing of particular types of
one theory will come before or after another crime. Offenders do not randomly select their
in terms of temporal ordering. It is sequential targets. Instead, they rationally choose both
in nature as theories follow each other (X must the crime that they will commit and the target
occur for Y to follow). In side-by-side integra- of that crime (Chamberlain 2015: 29; Hunter &
tion, also known as horizontal integration, Dantzker 2002: 135).
two different theories can both be accurate in Derek Cornish and Ronald Clarke (cited
explaining behaviour depending on what type in Maguire & Radosh 1999: 176; Chamber-
of individual or misbehaviour is relevant (par- lain 2015:29) developed the concept of
allel explanation of misbehaviour by means of choice-structuring properties. In essence, this
two theories that complement each other). In concept refers to the three Rs: risks, rewards
up-and-down integration, deduction is used. and requisites. What are the perceived risks
This method is seen as the classic way of involved in committing a particular offence?
theory integration. One section of a theory is What are the rewards likely to be realised?
complemented within another part of a theory What skills or resources are required to per-
(the key parts of theory A are absorbed into form the criminal act successfully? Ratio-
the broader framework of theory B to explain nal choice theory emphasises that the risks,
misbehaviour more clearly). There are multi- rewards and requisites will vary from offender
ple ways of developing theory, or of building to offender, from offence to offence, and from
straightforward, one-dimensional models of initial to continued involvement, to possible
crime explanation. There are even more ways desistance. Rational choice theory seeks to
of constructing complex models of criminal account for both risks (the probability of being
behaviour or of integrating criminological caught, imprisonment) and rewards (financial
explanations. Most theorists who integrate gain, prestige, enjoyment) (Maguire & Radosh
crime explanations connect, link, combine, 1999: 176).
and/or synthesise the relations and sections Also, Cornish and Clarke posit that poten-
of different models and theories into formula- tial offenders not only reason about the ben-
tions of crime and crime control that are more efit of their prospective crime but also take
comprehensive than the more traditional and other advantageous factors into consideration
Onpisnes} 151
such as the fun, excitement and prestige they buyer or swop shop, or keep it for own
will experience after the act. In addition, they use).
state that offenders do not always have the
luxury of time to gather sufficient information By breaking down these basic broad scripting
to make an informed accurate decision about processes, authorities can develop prevention
the wrongdoing they are about to commit. strategies regarding different crimes (Cham-
Clarke and Cornish (1983: 8) maintain that berlain 2015: 29).
crime actions are a product of “choices and Bartollas (2000: 91) addresses the question
decisions made within a context of situational of whether youth misbehaviour is rational
constraints and opportunities”. The most behaviour. The antisocial behaviour of young
important contribution of this approach is people often appears purposeful and ratio-
that of explaining the decision-making pro- nal. Some youthful offenders clearly engage in
cess by individuals to do something against crime because such behaviour has a low cost
social norms. Two factors play a role in this, since age is regarded as a mitigating factor,
namely the situational factors (e.g. the imme- therefore in early adolescence the risk poten-
diate environment — target-hardening devices. tial of all but the most serious forms of crimi-
closed-circuit television camera monitoring,
nal behaviour is relatively slight.
police patrols, street lighting) and the avail-
Offenders may also decide that the risks of
ability or non-availability of opportunities
continued criminal behaviour are not justified
for the transgressor to commence with his
by the rewards. Howard J. Parker (cited in Bar-
or her action. Cornish and Clarke (1983) view
tollas 2000: 91) found that many in a group of
the offender and non-offender as very similar
adolescents gave up shoplifting and the oppor-
beings - as “normal” law-abiding citizens who
tunistic theft of car radios when increased
sometimes commit a wrongdoing because the
police activity resulted in some of their num-
demand and attraction presented themselves.
In such cases the usually law-abiding citizen bers being apprehended and placed in custody.
will assess the situation and commence with Most persistent offenders appear to desist
the deed because it presents a never-to-be-re- from crime as they reach their late teens or
peated opportunity (Barkan 2012: 121). early 20s. They claim that continued criminality
In addition, knowledge of the rational is incompatible with the demands of holding a
choice theory can assist in crime prevention full-time job or settling down to marriage and
strategies. Cornish and Clarke highlighted the a family, thus desistance from crime, which is
fact that offenders use decision sequences maturing out of crime, is a process of deciding
known as “crime scripts” in a criminal event. that the benefits of crime are worth less than
There are five scripting stages relevant to most the advantages of discontinuing to commit
intentional pre-planned crimes: crime. Bartol and Bartol (2017:217) concur,
and highlight the fact that many deviant char-
1, Preparation - plan and hone skills (know- acteristics are often either a passing phase
ledge, resources and skills). in the difficult transition to adulthood or the
2. Target selection — find a suitable location adolescent’s “defence” mechanism to appear
where the crime can be committed (break tough and non-caring.
into a weakly secured home in an affluent It is clear that Bartollas (2000: 91) supports
area to steal a TV). the cost-benefit analysis of rational theory,
3. Commission of the act - commit the actual but he places some limitations on rationality
deed (jump over the fence, force the slid- per se. For him there are three important qual-
ing door open, remove the television). ifications in assuming too much rationality in
4. Escape - leave the house in the same way youth offending (Bartollas 2000: 92):
it was entered or because of prior planning ¢ First, rationality is based on the notion that
and surveillance, via another less conspic- criminal behaviour is planned. Planning has
uous point. to do with formulating a scheme or a pro-
5. Aftermath - different results can culminate cedure for doing something before doing
in the aftermath depending on the type it or having an intention of acting. It has to
of crime (sell the TV to a fence, a willing do with assessing the possible alternative
even Schaik
152 Publishers
courses of action available, choosing a par- ment. The violent nature of the South African
ticular course, and constructing a complex milieu could be relevant in the context of why
set of acts to achieve the intended results. some youth act violently or commit serious vio-
However, studies of youth misbehaviour lent crimes. In addition, an intense emotional
have reported that most criminal behaviour reaction to a situation or deep involvement in
is not planned and that impulsive decision a peer group seems to lead them to bypass any
making most frequently characterises juve- rational process.
nile wrongdoing.
¢ Second, the concept of rationality assumes 7.3.2 Integrated biological theories
that individuals have free will and are not
controlled by their emotions. Many young- Integrated biological theories stress the impor-
sters, however, do not appear to have such
tance of physiological factors with regard to
control. Youth who are mentally ill or who an individual’s behaviour. They also seek to
engage in obsessive-compulsive acts such explain how these natural features are influ-
as compulsive arsonists, kleptomaniacs or enced by psychological and/or sociological
sex offenders, seem to be held in bondage factors. Genetic factors in humans play just as
by their emotions. important a role in a person’s life as environ-
mental factors (Chamberlain 2015: 46; Lanier &
e Third, in examining the actual process Henry 2010: 104).
of rationality, it appears that there are An example of an integrated biological the-
degrees of freedom for all young offenders ory is Wilson and Herrnstein’s human nature
and that rationality is contextually oriented theory put forward in 1985. Wilson and Herrn-
with juveniles. The notion of the degrees stein (cited in Schmalleger 1996: 188) contend
of freedom proposes that young offend- that genetic makeup, body type and intelli-
ers are neither wholly free nor completely gence have a considerable impact on human
constrained, but fall somewhere between. behaviour. They argue that mostly males com-
The contextual nature of rationality sug- mit crime and that the tendency to break the
gests that in most situations young offend- law declines throughout life (age). A dispro-
ers do have some control over their acts, portionate number of offenders have a meso-
but in other situations they may have little morphic (athletic and muscular) build (body
or no control. To illustrate this, Bartol and type), and criminality is said to be clearly and
Bartol (2011: 147) state that some youths consistently associated with low intelligence.
almost purposefully engage in stubborn, An individual’s personality is influenced by
defiant and disobedient behaviour at a those physical features that shape how they
young age and become progressively more see themselves as well as how others see
confrontational as they grow older into them.
adulthood. Others show no signs of rebel- According to Wilson and Herrnstein (cited
lious behaviour as children but become in Hunter & Dantzker 2002: 137), human deci-
confrontational during adolescence, while sion making is a product of the interactions
some youths never become hostile and anti- of biological, psychological and sociological
social during their lifetime (Barto! & Bartol influences. Human nature theory thus contains
2017: 173). a strong element of rationality since crime is
regarded as a function of rational choice. Both
These three different patterns leave the reader biological and psychological traits influence
with the question: to what extent does rational the choice to commit crime, with rewards
choice play a part in each of the three scenar- such as material gain, sexual gratification,
ios? revenge and peer approval. The unpleasant
In summary, therefore, although some consequences include pangs of conscience,
youths’ involvement in crime may be largely victim reprisals, social disapproval and the
related to cost-benefit decisions and to a threat of legal punishment (Siegel 2001: 292).
rational process, for other youngsters their To overcome predispositions that may lead
law-breaking behaviour arises without much to crime-oriented choices, Wilson and Herrn-
forethought as they interact with their environ- stein advocate programmes to aid families and
@ven Schaik
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schools in teaching children moral standards. school, the persistent criminal tends to take a
They see these pre-crime interventions as pref- relatively well-paid but low-status job, and is
erable to imposing harsh punishments after likely to have an erratic work history and peri-
criminal behaviour has occurred. ods of unemployment.
The development of a deviant personality,
therefore, is the likely product of poor child
7.3.3 Integrated psychological
rearing, economic deprivation and _ resent-
theories ment of social responses to prior deviance.
These theories explain how social factors can After the deviant personality has emerged, it
influence self-perceptions. They can also be is reinforced by continued criminal activities.
called psychosocial theories or social psycho- Life experiences influence future behavioural
logical theories. An example of an integrated choices. Some individuals will abandon their
psychological theory is David Farrington’s offending behaviour in adulthood. However,
delinquency development theory. His 1988 the deviant personality is often so well estab-
study was a serious attempt to isolate those lished that behavioural change is not possi-
factors that predict lifelong continuity of crim- ble. The cycle of criminality continues as the
inal behaviour. children of these deviant-personality adults
Farrington uses his analysis of longitudinal are subjected to the same bonding and social
studies of offending boys to theorise that anti- learning influences that shaped their parents’
social behavioural patterns emerge early in life, personalities (Hunter & Dantzker 2002: 139).
and that these behaviours become more devel- These hard-core persistent offenders some-
oped as the child matures. He thus maintains times seem calloused and indifferent to others
that there is a continuity in criminal behaviour and the impact of their negative behaviour.
that reaches from early childhood into the Some of them show no remorse and never
adult years. He sees social and economic condi- learn from any disciplinary interventions. In
tions as influencing children and their parents, view of this, more and more researchers in
and the actions of parents and older siblings in the field of integrated psychology believe that
response to these conditions serving as mod- psychopathy begins in childhood and contin-
els for children. Those raised in poverty who ues throughout adulthood. The childhood of
have role models who are criminal are likely to a young psychopath is often spoiled by family
adopt criminogenic tendencies (Barto! & Bartol difficulties, neglect, abuse, antagonism, poor
2017: 170; Hunter & Dantzker 2002: 139). parental supervision and rejection. More often
Farrington (cited in Siegel 2001: 310) found than not, such children also experience hard-
that the traits present in persistent offenders ships at school because they often manifest
could be observed as early as eight years of with hyperactivity, impulsivity and conduct
age. The chronic offender, typically a male, is problems as well as attention difficulties (Bar-
born into a low-income, large family headed tol & Bartol 2011: 201). Research in this regard
by parents who have criminal records, has is difficult as many youths who commit a vari-
deviant older siblings, and begins as a prop- ety of antisocial acts often escape detention,
erty offender. The future criminal receives which compounds the challenge to generalise
poor parental supervision, including being about this group of youth offenders. Bartol and
subjected to harsh or erratic punishment Bartol (2017: 217) observe that “certain prob-
and child-rearing techniques, and his parents lem characteristics in children and adoles-
are likely to divorce or separate. The chronic cents — for example, conduct problems, hyper-
offender tends to associate with friends who activity, impulsivity, and attention difficulties -
are also future criminals. By the age of eight, resemble features of the adult psychopath and
he exhibits antisocial behaviour, including suggests that the term ‘juvenile psychopath’
dishonesty and aggressiveness. At school may have some validity”.
he tends to have low educational achieve- Another area where integrated psychologi-
ment and is restless, troublesome, hyperac- cal criminology (psychocriminology) has been
tive, impulsive and often truant. After leaving expanding is in the field of profiling, where
Van Schaik
154 (Cabishers
criminologists with a psychological background 7.3.4.2 Integrated learning theories

are able to draw on different biological, social
Integrated learning theorists emphasise social
and psychological theories to help explain seri-
learning theory as the foundation for their expla-
al crimes committed from a young age (Cham-
nations of criminal behaviour. One example
berlain 2015: 66).
is Terence Thornberry’s interactional theory
put forward in 1987.
7.3.4 Integrated sociological theories In this theory, Thornberry incorporates
social learning theory, social bonding, cogni-
Integrated sociological theories include inte- tive theory and social structure theories to
grated strain, learning, control and conflict explain criminal behaviour. Thornberry (cited
theories. in Siegel & Senna 2000: 194) suggests that the
onset of crime can be traced to a deterioration
7.3.4.1 Integrated strain theories of the social bond during adolescence, which
may be marked by a weakened attachment to
In 1985, Elliott, Huizinga and Ageton (cited in parents, reduced commitment to school and
Vold, Bernard & Snipes 1998) developed an diminished belief in conventional values. Peer
integrated strain theory that draws heavily groups then become more important.
on social learning and control theories. Strain Youths growing up in socially disorganised
within the family and school results in weak- environments are at the greatest risk of having
ened bonds with conventional society, promot- a weakened social bond and are subsequently
ing stronger bonds with deviant peers, which more likely to commit crime, particularly when
increases the likelihood of youth misbehaviour law-breaking values and attitudes can be learnt
(Vold et al. 1998: 302). This view differs from and reinforced by peers. Adolescents who
traditional social bonding theories, in which come from a stable environment may engage in
socialisation is seen as promoting conventional crime, but their actions are better controlled
behaviour and reducing the risk of criminal by stronger social bonds and associations with
behaviour. Instead, in the integrated strain the- peers who engage in conventional behaviour
ory, socialisation is similar to that in Suther- (Hunter & Dantzker 2002: 141).
land’s differential association theory in that According to Siegel and Senna (2000: 196),
law-breaking behaviour may be learnt and rein- what makes this theory unique is its key
forced with the socialisation and bonding pro- assumption that causal influences on youth
cess (Hunter & Dantzker 2002: 144). crime are reciprocal. Weakened bonds with
This theory explains how the bonds within society lead youths to develop relationships
the family and school are weakened by strain with deviant peers and so become involved
from various social factors. Living in disorgan- in crime. More frequent occurrences of
ised communities, believing that legitimate law-breaking behaviour further weaken these
opportunities for success are unavailable, and bonds, making it difficult to re-establish links
involvement in petty crimes lead to feelings of with conventional peers.
hopelessness. Strain occurs, which then causes Interactional theory has a developmen-
deviant groups and activities to appear as tal emphasis — it holds that adolescents pass
acceptable substitutes. Experimentation with through different stages of reasoning and
drugs and other problem behaviour result in sophistication as they mature. During early
the development of a deviant lifestyle (Hunter adolescence, attachment to the family is the
& Dantzker 2002: 144). Strain has both a direct single most important determinant of whether
effect on misbehaviour and indirect effects on a youth will adjust to conventional society and
the individual by weakening the inhibitions is the best shield from criminal behaviour. By
of the social bond and increasing the youth's mid-adolescence the influence of the family is
involvement with delinquent peers. Strain main- replaced by the world of friends, school and
ly occurs because of three impelling forces: youth culture (Siegel & Senna 2000: 196).
blocked goals, loss of treasured objects, and As young people enter their late teens, the
the influences of negative stimuli (pull factors) influence of peers gives way to perceptions of
(Paternoster & Mazerolle 1994: 253). their own roles in society (i.e. work activities,
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involvement in social institutions and domes- to develop conventional beliefs and values,
tic relationships). As commitment to these become committed to conventional activities,
conventional influences increases, deviant and form attachments to conventional others
activities decrease. Thornberry argues, there- (Siegel & Senna 2000: 192). If the family bonds
fore, that involvement in crime is a dynamic are lacking or the family’s commitment to con-
social process that changes over time (Hunter ventional (law-abiding) behaviour is weak, the
& Dantzker 2002: 141). His theory rests on life child will be more susceptible to developing
course assumptions: events and relationships antisocial behaviour. The socialisation that
that develop during a person’s life cycle influ- usually keeps human nature in check is there-
ence his or her behaviour. In short, humans fore incomplete or faulty.
learn virtually all their behaviour, beliefs and Although Weis and his associates stress
tendencies from the social environment (Bar- the importance of strong family support in the
tol & Bartol 2017: 27). development of children’s socially oriented
bonds, interactions with peers and other
adults outside the family become significant as
7.3.4.3 Integrated control theories the child matures. The quality of these inter-
These theorists use the social control per- actions, the young people’s position within
spective as the foundation for their integrated the social structure, the strength of their fam-
approaches, An example is the social develop- ily interactions and their perceptions of the
ment theory of Joseph Weis, David Hawkins rewards of engaging in criminal behaviour are
and Richard Catalano and their associates. This factors that can determine whether or not
model is based on the social control theory, they will develop antisocial values and partic-
complemented by social learning and structur- ipate in crime (Hunter & Dantzker 2002: 142).
al modelling. The social development model suggests that
According to the social development model, interaction with antisocial peers and adults
a number of personal, psychological and com- promotes criminal behaviour and substance
munity-level risk factors make some children abuse.
susceptible to developing antisocial (criminal) Many of the core assumptions of the social
behaviour during the course of their life. The development model have been tested empiri-
key to preventing such behaviour is found in cally and their validity has been verified. This
the socialisation experience, and the model model has also guided treatment interventions
emphasises the formation of pro-social bonds that promote the development of strong bonds
with society (Siegel & Senna 2000: 191). to family and school, showing youths how to
Weis and his associates maintain that young use these bonds to resist any opportunity or
children are socialised through family interac- motivation to take drugs or to engage in crime.
tions. The opportunities, the degree of involve-
ment, and the skills and reinforcement for par-
ticipating in interactions all affect the family
7.3.4.4 Integrated conflict theories
bonds that develop (Bartol & Bartol 2017: 27; Mark Colvin and John Pauly’s structural Marx-
Hunter & Dantzker 2002: 142). To form socially ist theory of 1983 is an example of an integrated
oriented bonds with society, the family must conflict theory. These theorists explore
provide positive (pro-social) opportunities and domestic relations in which the coercive work-
reinforce them with consistent positive feed- place environment of capitalism contributes to
back. The process begins when a child forms coercive family environments. They maintain
an attachment to his or her parents, which that negative relations in the workplace create
will have a profound influence on the child's strain and alienation in the domestic setting.
behaviour throughout his or her life, determin- Frustrations that the parents bring home from
ing both the nature of the school experience as their jobs are displaced onto family members.
well as personal beliefs and values. In particular, parents are likely to exercise
For those with strong family relationships, excessive controls over their children to com-
school will be a meaningful experience marked pensate for their powerlessness at work in a
by academic success and commitment to capitalistic society. This repressive home envi-
education. These children will be more likely ronment causes strain in the family, and the
156
normal bonds of family are drastically weak- as well (such as drinking by adolescents). They
ened (Hunter & Dantzker 2002: 145). Youths in question the definition of crime because they
this situation are very likely to experience feel- regard the legal definition of crime (i.e. crime
ings that they do not count for anything. When being whatever is not permitted by law) as
they meet others who are in the same position, unnecessarily limiting. They state that crime is
they almost inevitably come into conflict with a form of behaviour, but that it is not separate
the law. or distinct from other behaviour. Gottfredson
Coercive school situations further aggra- and Hirschi (cited in Moyer 2001: 151) define
vate the frustrations that these young people crime as an act of force or fraud undertaken in
feel. In expressing their frustrations and hope- pursuit of self-interest.
lessness, they may act in a violent manner and/ The theory itself hinges on two basic fea-
or engage in criminal behaviour as a means of tures: the lack of individual self-control, which
seeking positive rewards that are otherwise is the main factor, and the opportunity to
unattainable. commit a crime. Given such an opportunity,
Colvin and Pauly claim that under a true a person with low self-control is more likely
Marxist regime, youth crime would disappear to offend than one with high self-control.
because there would be no reason for young For Gottfredson and Hirschi (in Brown et
people to commit acts against others or the al. 1998: 335), lack of self-control is found in
state, because they would not themselves be individuals who prefer quick solutions over
victimised (Binder, Geis & Bruce 2001: 174). protracted consideration, generally lack perse-
This theory is seen as a significant contri- verance, and are prepared to take risks. They
bution to Marxist literature in that it clearly are also insensitive and selfish, traits which
demonstrates how capitalism can promote arise at an early age and never completely
youth crime. There are several types of conflict disappear.
theory that basically all posit that the capital- Gottfredson and Hirschi’s general theory
ist system, social configuration, diversity and of crime (also known as general theory of low
group conflict usually cause crime and discord self-control) merges concepts of control theory
(Tibbetts 2012: 178). It is either the “haves” with rational choice, routine activities, and
that oppress the “have nots” or the in-group biological and psychological explanations.
They see (young) people who engage in crim-
forcing its way of living onto the so-called out-
inal acts as having low self-control. These
group. Empirical tests of conflict theories are
(young) people engage in many conventional
very rare. Perhaps the nature of the framework
behaviours, but due to their low self-control,
and the generalisation concern makes it diffi-
they are predisposed towards committing
cult to do research on conflict theories in gen-
crime if the opportunity arises. Youths with
eral, and specifically on the integrated conflict
low self-control want instant gratification, lack
approaches. On paper, their message seems
patience, are adventuresome and active, and
clear and logical. However, one should also
possess few cognitive skills.
look at countries where the conflict dogma
Gottfredson and Hirschi (cited in Moyer
was introduced, such as Russia and Cuba, and
2001: 153) attribute lack of self-control to
examine their social structure and crime rate.
child-rearing practices. In order to teach a
In both countries, poverty and adversity is rife
child self-control, the following minimum con-
and crime rates are high. In contrast to this, a
ditions must be met:
capitalistic country like Sweden has very low
rates of poverty and crime. ¢ Someone (a caregiver) must monitor the
child’s behaviour.
e That caregiver must recognise unaccept-
7.4 A GENERAL THEORY OF CRIME able (criminal) behaviour when it occurs
AND CRIMINALITY (i.e. recognise right from wrong).
In 1990, Gottfredson and Hirschi proposed ¢ Wrongdoing must be punished.
their general theory of crime as an all-
encompassing theory for explaining not only These conditions are frequently missing in the
all types of crime but other antisocial actions backgrounds of young offenders.
157
In line with the value of proper child-rearing danger and risk taking than toward the possi-
practices, it is logical that these theorists see bility of punishment. The findings suggest that
a significant link between parental criminality certain human beings are “physiologically”
and youth crime, as criminal parents tend not encouraged to commit risky behaviour due
to supervise their children well, do not recog- to physiological mechanisms in the brain that
nise or discourage criminal behaviour in their reward their risky behaviour by releasing plea-
children, and do not punish appropriately. Chil- sure hormones (probably endorphins).
dren from larger families are also more likely The general theory of crime is widely posit-
to break the law, given that the time and ener- ed as one of the most valid theories in explain-
gy of the parents must be divided among all ing crime. This is explained in terms of the fact
the children. Children who come from single- that the theory focuses on one primary factor,
parent families are more likely to commit namely self-control, which is linked to a series
crime, as are children of working mothers. of personality traits and behaviours. These
According to Gottfredson and _ Hirschi include risk taking, impulsiveness, self-cen-
(cited in Hunter & Dantzker 2002: 153), the teredness, short-term orientation and a short
causes of crime are an impulsive personality, temper (Tibbetts 2012: 167).
low self-control, weakened social bonds and It is evident that the basic arguments of the
criminal opportunities. They maintain that an general theory have their roots in the assump-
impulsive personality develops from certain tions of the classical school. Crime is viewed
biological and psychological factors; that low as rational: it is the result of the offender's
self-control is a product of an impulsive per- choice. Also, crime and all other actions are
sonality, combined with social factors such the result of a natural human desire to maxi-
as deviant parents and poor supervision; and mise pleasure and avoid pain.
that weakened social bonds are the product
of low self-control and the subsequent devel-
opment of alternative attachments, involve-
7.4.1 The general aggression model
ments, commitments and beliefs. Tibbetts (GAM)
(2012: 166-167) hypothesises that the theory During 2011 a general model aimed at explain-
assumes that individuals are born predisposed ing aggression also saw the light. Several the-
toward selfish, self-centred activities and that ories of explaining human aggression were
only effective child rearing and socialisation combined in an effort to integrate the common
can create self-control. Without the necessary features of previous efforts. Nathan DeWall and
adequate socialisation, humans will naturally Craig Anderson state that “GAM provides the
follow their tendencies to become selfish pred- only theoretical framework of aggression and
ators. The core assumption of this theory is violence that explicitly incorporates biological
that although the development and formation factors, personality development, social pro-
of controls are linked to healthy socialisation cesses, short-term and long-term processes,
practices, the distinguishing characteristic is and decision processes” (DeWall & Anderson
the individual's ability to control himself. 2011: 255). The theory attempts to include most
If criminal opportunities present them- factors that can cause aggression. It draws
selves, the combination of low self-control and heavily on social-cognitive and social learn-
weakened social bonds will very likely result ing theories. Aggression and violence depend
in crime. Recent research (Tibbetts 2012: 167) on how a person perceives and interprets the
has, however, highlighted that low self-control social environment, expectations about various
may also be influenced by an emotional disposi- outcomes, knowledge and beliefs about how
tion some humans are born with. The research people usually respond in certain situations
shows that individuals with low self-control and the degree to which a person believes he
also have significant low levels of anticipated or she has the ability to respond effectively.
shame. In contrast, they show elevated levels Eventually reactions might be complicated
of perceived pleasure in committing a wrong- but with time, through cultural teachings and
ful deed. In addition, research on physiologi- repetitive experiences, the person's judgement
cal aspects and low self-control purports that and choices in different situations become
chronic offenders show greater arousal toward automatised. Eventually a person judges situ-
158
ations and other people without effort based to choose could be affected by incompetence,
on their appearance, race, religion and other age or insanity. Furthermore, they introduced
characteristics. In addition, GAM posits that the concept of premeditation and mitigating
violence often occurs because of an escalation circumstances (Chamberlain 2015: 25; Moyer
cycle. A trigger event must take place to effect 2001: 27). In terms of specific explanations for
the action between two people, two groups or criminal behaviour, the rationality of young
any type of dyad - even two countries. Once offenders’ actions seems to be a matter of con-
the trigger event occurs, the other person or tention - as pertinently pointed out by Bar-
group will likely retaliate. Reciprocal retaliation tollas (2000). It seems to be more realistic to
can occur because both parties usually deem speak of a limited rationality that emphasises
the reaction or retaliation as unjustified. Per- pleasure seeking without carefully weighing up
sistence of the retaliation often occurs because choices, particularly with regard to youth mis-
the role players get caught up in a tangle as the behaviour.
opposing parties perceive the other party as Neopositivists adopted a multidisciplinary
acting with malice or evil intent and deem their approach and integrated biological, psycho-
own behaviour as acceptable and appropriate logical and sociological (social) variables in
in the relevant situation. their explanations of criminal behaviour. Such
An important aspect of the GAM theory, an approach is constructive, as single-factor
which echoes the level of violent incidents explanations are inadequate for explaining
between groups and individuals in South Africa, youth crime.
is that violence and aggression can ignite in a Integrated theories incorporate various
wide range of situations and because of many models of explanation. These different mod-
triggers. They state in this regard that “if you els are often used to weave together variables
want to create people who are predisposed to from existing theories. Such a combination, it
aggression and violence, begin by depriving is claimed, will provide a more accurate and
them of resources necessary to meet basic comprehensive understanding of criminal
needs - physical, emotional, psychological, behaviour than any of the particular theories
and social” (DeWall & Anderson 2011: 26). In will alone. Table 7.1 summarises the various
South Africa, people are provided with mul- integrated theories discussed in sections 7.3
tiple examples and models of aggression and and 7.4 in terms of type, their exponents and
violence. These are also deemed successful main risk factors.
tools in achieving something. If people are pro- According to Vold et al. (cited in Binder et
vided with cognitive beliefs and values that al. 2001: 188), the abundance of theories does
dehumanise the out-groups and are exposed not enrich but rather impedes scientific prog-
to events of violence against them, desensitisa- ress. Theory is supposed to direct research
tion will eventually occur. If the necessary cog- and to accumulate into a coherent, under-
nitive scripts about the out-group exist, high standable product. Vold et al. maintain that the
levels of violence will follow (Bartol & Bartol disparate theories of youth crime would serve
2017: 152). For example, the perceptions some
our understanding much better if the strengths
South Africans hold with regard to immigrants
of the various approaches were abstracted and
from neighbouring countries have resulted in combined.
violent xenophobic attacks. The violence and
Integrated theory, therefore, presents a
destruction by some youths that occurred
variety of problems in its attempt to offer a
during the #FeesMustFall campaign can also be
coherent explanation of youth crime. Binder et
explained along these lines.
al. (2001: 190) point to the following shortcom-
ings:
7.5 EVALUATION OF CONTEMPO- e Logical incompatibility is a major issue in
RARY DEVELOPMENTS that the different elements of an integrated
The neoclassical school did modify the admin- theory can often form a rather disorganised
istration of law based on the views of the set of postulates.
classical school. They also modified the doc- ¢ The lack of consensus regarding the defini-
trine of free will by stating that the freedom tions of common terms is problematic.
ev" Schaik
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Table 7.1 Integrated theories
Type of integration | Exponent Risk factors emphasised
Classical Cornish and Clarke Rewards rationality and pleasure seeking

(rational choice theory) Choice-structuring properties (risks, rewards,
requisites)
Biological Wilson and Herrnstein Genetic makeup

(human nature theory) Intelligence
Physical features
Body type
Psychological Farrington Deviant personality

(delinquency development theory) | Poor child raising
Economic deprivation
Strain Elliott, Huizinga and Ageton Strain within the family and school
(integrated strain theory) Disorganised communities
Blocked opportunities for success
Learning Thornberry Weakening of social bonds during adolescence

(interactional theory) Influence of the peer group
Socially disorganised environments
Life cycle
Developmental phase-changing influences
Control Weis, Hawkins and Catalano Family interactions, family bonds, supportive
(social development theory) families
Interaction with others — peers/adults
Position in the social structure
Conflict Colvin and Pauly Domestic relations

(structural Marxist theory) Strain in the workplace and parents’ frustration
Excessive control of children
General Gottfredson and Hirschi Low self-control, instant gratification

(general theory of crime) Lack of patience, adventuresome and active,
few cognitive skills
Child-rearing practices (supervision and disci-
pline)
Parental criminality
Large families
Single parents
Aggression and DeWall and Anderson Judgement and choice to use aggression in
violence (general aggression model) certain circumstances becomes automatised
Reciprocal retaliation
Dehumanisation of the out-group
High levels of aggression that desensitise the
in-group, with aggression becoming a suc-
cessful tool to achieve things
160 (Cnbisnes
e Key variables are measured imprecisely. accommodate the shortcomings of other theo-
¢ The same variables are used in different retical developments:
ways in different theories (empirical inde-
e Provide an integrated explanation incorpo-
terminacy).
rating psychological and social variables.
The complexities of some integrated theories e Accommodate specific crime risk factors
applicable to the South African situation to
limit their application in explaining specific
criminal behaviour. Integrated theories must enhance its predictive potential.
emphasise both the physical and social envi- ¢ Take into account the behavioural develop-
ronments, otherwise they offer little more ment of young people and the varying influ-
than single-factor explanations do. However, ences to which they are subjected.
integrated crime explanations cannot simply e Present policy implications as constructive
provide a broad framework for the explanation crime-control measures.
of criminal behaviour. Theoretical integration
can be useful if the selected theories to be inte- In addition, Tibbetts (2012: 2) insists that a
grated complement each other. good theory should be measured by parsi-
We should, however, realise that it is diffi-
mony, scope, logical consistency, testability,
cult to explain human behaviour such as crime empirical validity and policy implications.
from a one-dimensional approach. Some schol-
Meeting these requirements seems a daunt-
ars believe that a more comprehensive under-
ing task, particularly when one considers the
standing of crime might be achieved by inte-
preponderance of disruptive (risk) factors
grating different aspects of different theories
prevalent in South Africa’s society at large.
such as social process, biological and struc-
These negative factors are addressed in Chap-
tural explanations in an integrated manner
ter 4 and because of the gravity of particularly
(Barkan 2012: 207). Moreover, Williams and
environmental issues in the four domains
McShane (2010: 217) posit that “not everyone
of the community, family, school and peer
is in favor of integration, and some theorists
groups, it logically follows that social risk fac-
have claimed that the process of integration is
tors should represent the point of departure of
doomed to failure”.
our explanation.
On the positive side, one must realise that
all of these integrated theories are relatively
new and have not yet been fully tested. Real 7.6.2 Social risk factors as point of
advances have been made in our understand-
departure
ing of criminal behaviour due to recent theo-
retical analyses of criminal and other antisocial 7.6.2.1 Caregivers
behaviour in young people (Hoge 2001: 59).
Hunter and Dantzker (2002:153) are of the There is general consensus among theorists on
opinion that the self-control theory of Gottfred- the crucial importance of family life, whether
son and Hirschi comes nearest to providing an from a psychological orientation (such as Far-
integrated explanation of crime and criminality. rington), a control perspective (such as Weis
et al.), a conflict perspective (such as Colvin
and Pauly) or a general theory orientation
7.6 EXPLAINING YOUTH MISBE- (such as Gottfredson and Hirschi). The disinte-
HAVIOUR IN SOUTH AFRICA gration of family life in South Africa cannot be
ignored. Serious problems such as the death of
7.6.1 Introduction parents due to AIDS, incarcerated parents, sin-
Having considered the trends and arguments gle-parent families, child-headed households,
of traditional theories and contemporary and emotional, physical and/or sexual abuse
developments, and taking cognisance of rele- by parents and family members abound.
vant risk factors as set out in Chapter 4, one Caregivers are needed to provide a haven
can now try to explain youth misbehaviour in of security and affection, to care for the young,
South Africa. However, a suitable explanation to lead by example and to instil basic values
should meet the following requirements to regarding socially acceptable and unacceptable
ever Schaik
Publishers 1 61
behaviour. When peer influences become more They are typically from poor and disorganised
prominent in the young adolescent phase and neighbourhoods, and often have little or no
the major influence of caregivers might dimin- school education (Bezuidenhout 2007: iii; Zinn
ish, loving and consistent discipline should 2011: 170).
remain to reinforce positive values and support
socially acceptable behaviour. Many children
in South Africa grow up without the guidance of 7.6.2.2 Institutional deficiencies
a parent. If they are not completely abandoned, Social structure theories portray crime as the
countless children grow up in a fractured fami- product of deficiencies in the social structure
ly or a single-parent household. Those who do of a society. Various institutions dealing with
not have parents are often raised by their elder health, the economy, justice and education
siblings in so-called child-headed households, form part of society's social structure. Schools
and thousands live on the streets. Many youths are a key institution involving young people.
never attend school because of these dire sit- Next to family life, school has become a major
uations. The following examples illustrate the concern and a vital risk factor in respect of
challenges youths could experience during dif- youth misbehaviour. The integrated theory of
ferent life stages: Elliott, Huizinga and Ageton points to strain
¢ The young child. The lack of basic care of within the school as a risk factor:
infants and young children is an expanding ¢ Young (school-going) children. Learners with-
problem in South Africa. AIDS-orphaned out the benefit of proper care will not expe-
children, for example, require care and rience caregiver involvement that promotes
shelter. There are many cases where young a climate of learning in their school activ-
children have become victims or potential ities. Many public schools, schools in rural
targets of rape and murder because they areas and schools in informal settlements
have been left unattended. These have been do not provide the same facilities that pri-
described in the media as South Africa's vate schools do, such as a variety of sports
greatest shame. and recreational facilities to promote con-
e Early and middle adolescence. There is structive leisure time. Private schools also
a lack of proper supervision and disci- have fewer learners per class so as to ensure
pline due, for example, to parents being individual attention. In contrast, many pub-
away when looking for employment, being lic schools are often characterised by crime
detained in a remand correctional centre, and violence (particularly stabbings and
or serving a prison sentence. Owing to the bullying) and lack of discipline.
absence of caregivers, young people loiter
unprotected on the streets and are subject ¢ Early and middle adolescence. Educators
to negative influences. Street children often are faced with problems such as gang-
find refuge in old rundown houses and face related activities, the carrying of weapons
problems with municipalities because they in school, drug trafficking on the school
illegally occupy them. Most street children grounds and racial incidents. Furthermore,
are either orphans or have run away from some teachers set a poor example for
home because of serious abuse. Without learners by frequently being absent, imple-
care, they will most likely resort to criminal menting erratic discipline and selling exam-
behaviour to survive. ination papers to learners for additional
income. Sexual assaults among learners
¢ Young adults. Poor child rearing provides an take place on school grounds, according to
inadequate frame of reference for socially the news media, as do sexual relationships
acceptable and moral behaviour. Alcohol between teachers and learners.
and substance abuse by caregivers sets a
poor example for young people in their for- ¢ Young adults. The quality of education and
mative years. school facilities varies. Problems in the
schools of provinces such as the Eastern
Many violent criminals in South Africa come Cape and Limpopo result in some young
from disrupted families and “broken homes”. people being inadequately prepared for
Van Schaik
162 ©pabiishers
continuing their education to tertiary level In addition, South Africa has experienced an
and therefore they face the prospect of almost uncontrolled increase in illegal immi-
being unemployed. Furthermore, learners grants from neighbouring countries who also
in public schools are often failed by the struggle to provide for their citizens. Many
system as they are left without textbooks illegal immigrants believe South Africa to be
because the Department of Education some- a land of opportunity. However, uncontrolled
times fails to procure or deliver books on influx places a huge burden on the economy,
time or to address other immediate needs and more specifically on job opportunities, liv-
of learners. School violence and sexual ing quarters and basic service delivery. Also,
pressures are also rife for this group. many illegal immigrants turn to a life of crime
as they find that legal opportunities in South
7.6.2.3, Economic deprivation Africa to earn a living are limited. The lack of
job opportunities and the hardship many South
Bhorat and Kanbur (2006: 1-14) assert that Africans experience cause many frustrations,
post-apartheid South Africa is negatively which often boils over in xenophobic attacks.
affected by increasing inequality, poverty and The outbreak of xenophobic violence can be
unemployment. According to these authors, explained by an unfavourable combination
clear trends emerged in the analysis of welfare of a few factors: an already violent society;
shifts in the post-apartheid period: the acceptance, and even encouragement, of
e An increase in both absolute and relative xenophobia; massive inequality; the increased
income poverty threat of poverty, which is exacerbated by
consistent service delivery failure; and demo-
e An increase in income inequality (social the- graphics. There is competition among poor
ories of crime imply that inequality leads to people not only for basic materials such as
higher levels of both property and violent food and shelter but also for commodities that
crime)
allow them to be more included in society, for
e An increase in unemployment rates as a example TVs, cellphones, better clothes and
result of the rapid expansion of the labour computers. Soaring food and basic commodity
force. The broad unemployment rate is esti- prices worsen poverty and the perceived com-
mated to be between 30 and 40%, and has petition within townships for resources. This
been steadily increasing since 1995, mak- could increase the level of xenophobic violence
ing South Africa’s unemployment rate one as many local South Africans believe that immi-
of the highest in the world (Hoogeveen & grants take their job opportunities from them.
Ozler 2006: 59). Pali Lehohla, the current
statistician-general of Statistics South Afri-
ca, recently released the Quarterly Labour 7.6.3 Strain owing to social risk
Force Survey of 2017 and indicated that factors
South Africa’s unemployment rate is 27,7%
Based on these social risk factors of inade-
- the highest figure since September 2003
quate caregivers, school problems and eco-
(Daily Maverick, 2017). The Bureau for Mar-
nomic issues, the following argument is posed.
ket Research believes this figure is substan-
Strain arising from structural deficiencies,
tially higher
particularly from problems regarding primary
In addition, South Africa does not have a care, educational shortcomings and economic
thriving informal economy where the job- issues, is evident in South Africa. This explains
less can take refuge, which compounds pov- why the preponderance of the country’s risk
erty and lack of opportunities. factors, as set out in Chapter 4, is of a social
¢ Increased migration and immigration nature. Strain inevitably sets reactions in
motion:
e An environment of tepid economic growth
rates. Crime is so prevalent that it leads to ¢ Opportunities for criminal behaviour are
the emigration of South African profession- created, which are enhanced by the crimi-
als of all ethnic groups, which discourages nal actions of significant others such as par-
investment and stifles growth ents and peers.
ov" Schaik
Publishers) 163
¢ Aclimate of learning crime is created by fre- explained by people's pursuit of self-interest.

quent associations with lawbreakers, partic- This argument simplifies the motives for youth
ularly when young people grow up in socially misbehaviour, particularly against the back-
disorganised communities. ground of diverse social problems. Yablonsky
(2000: 389) maintains that the most useful con-
If there are high levels of strain in import- cept for understanding youth crime is related to
ant societal structures, a need for social con- the young person’s self-concept. This factor has
trol is evident. Following Hirschi’s argument, sociological roots and is reflected in the psy-
young people’s behaviour in particular should chological personality of the young offender.
be regulated and controlled within a bond Yablonsky (2000: 394) explains that youth
of attachment (affection and care) and con- misbehaviour has several related phases and
structive involvement. This would help them characteristics:
develop a belief system and a moral compass
that reflects a personal will to display socially 1. The child or youth is sexually, physically
acceptable and law-abiding behaviour. or emotionally abused, neglected or aban-
Such a personal will to conform can only be doned by his or her primary socialising
realised when young people feel committed to
agents — that is, parents and caregivers.
society. Although Hirschi regards attachment 2. As a result of being treated negatively
as the most important element of the social and with limited respect, the child feels
bond, he has underplayed the value of com- humiliated, demeaned and unworthy. As
mitment. Young people have to invest in South a consequence of this pattern of negative
Africa's future, but such an investment is pos- socialisation, the child develops a low self-
sible only when proper care is taken of the concept and feels self-hatred.
young, when sound educational policies exist
3. Together with this low self-esteem, the
and when job opportunities are created. This
child or youth develops a rage against the
matter is further complicated by factors such
people who have abused or neglected him
as malnutrition and poor diet, which impact on
or her, which is often displaced onto peo-
physiological processes and development. In
ple in the general society.
addition, many youths with specific confron-
tational extrovert temperaments struggle to 4. Children with a negative self-concept tend
cope in an adverse society that subscribes to to care little about what happens to them.
a culture of violence. Children thus have weak Not only do they not value themselves, but
bonds and attachments; they support a value this also carries over into their attitude
system of violence and present with a charac- towards other people in their world. Their
ter of defiance, which indirectly sets them up attitude of “I don’t give a damn about any-
for failure. thing” mixed with the rage that stems from
being abused may create a person who
is apt to be violent, and disrespects the
7.6.4 Personal factors: addressing rights of others.
serious crime
Having ascertained that South Africa expe- Yablonsky’s arguments help to explain the
riences serious social problems that create committing of violent crimes by South Afri-
risk factors for youth involvement in criminal can youths in particular. Perpetrating acts of
actions such as shoplifting, vandalism and rape and murder requires a driving force, and
substance abuse, one must now mention that Yablonsky recognises and accommodates this
it is a major concern that young offenders also force in terms of rage.
commit serious types of crime such as rape, Youths growing up in informal settlements
robbery and murder. While considering social and other substandard environments are espe-
risk factors, one has also to consider variables cially at risk. They usually lack supervision,
on a more personal level to address the ele- do not experience love and security, and lack
ment of violence in youth misbehaviour. important essential skills such as respect,
Gottfredson and Hirschi claim in their problem solving and conflict management.
general theory of crime that all crime can be Often they do not develop the necessary moral
Van Schaik
164 (Opabiishers
compass to enable them to develop respect for South Africa is aggravated by social conditions
other property and respect for life. The result that promote criminality. Since moral develop-
is many “lost” youths with a “don’t care” atti- ment is a gradual process, many youths expe-
tude to life and a lack of opportunities to suc- rience too many hardships and contaminated
ceed. If one considers the general model of influences that negate the possibility of their
aggression as this juncture, South Africa is cre- healthy moral development.
ating people who are predisposed to aggres-
sion and violence as many young people are
deprived of the resources necessary to meet 7.7 CONCLUSION
their basic needs - physical, emotional, psy- The first half of this chapter dealt with contem-
chological and social. porary explanations for youth misbehaviour.
Neoclassicists view young offenders as ratio-
nal creatures, who, being free to choose their
7.6.5 Moral development actions, could be held responsible for their
It is expected of humans to conform or at least behaviour. Youth misbehaviour was viewed
show a degree of conformity to conventional as purposeful activity resulting from rational
standards of moral conduct. If everyone decisions in which the pros and cons were
believed in a code of conduct that applied to weighed and the acts that promised the great-
all who could understand it and could gov- est potential gains were performed. Punish-
ern their behaviour, crime and misbehaviour ment was therefore justified because of its
would rarely exist. However, humans do not usefulness or utilitarianism. The aim of pun-
always adhere to these prescribed codes of ishment was the protection of society, and its
conduct because of faulty moral develop- dominant theme was deterrence.
ment. Barto! and Bartol (2011: 343) state that Contemporary biological positivists or bio-
“[mjoral development refers to the gradual social theorists stress the interaction between
development of a person’s concepts of right the biological factors within the individual and
and wrong, conscience, ethical and religious the influence of the particular environment
values, social attitudes, and behaviour”. From (Bartollas 2003: 73). They claim that what pro-
the foregoing discussions, it is clear that many duces misbehaviour, like other behaviours, is
youths in South Africa never have the opportu- a combination of genetic traits and social con-
nity to develop morally according to a univer- ditions. It became evident that the single-factor
sal and conventional standard of moral con- explanations for youth misbehaviour belong in
duct. the past among traditional explanations.
Theories pertaining to moral development Recognition for the inclusion of multiple fac-
highlight that ineffective or absent moral tors in the explanation of youth misbehaviour
development correlates strongly with youth is accommodated in both developmental and
misbehaviour. Should poor moral develop- other integrated theories. Numerous examples
ment be a variable in a child’s life, certain pre- of integrated theories were discussed, as set
dictions can be made, which take the following out in Table 7.1. In the process of integration,
into account: traditional theories are reassessed and incor-
e Social factors, such as family relationships porated, but the multiple roots of criminality
(support and discipline based on reason) are strongly emphasised. The latter might
explain why some integrated theories are criti-
e Educational matters (academic _perfor-
cised for being too complex.
mance)
The direction of theory appears to be set,
¢ Personal variables, such as the ability to maintain Williams and McShane (2004: 313).
show consideration and develop empathy Judging from the number of research studies
for others and commentaries in the criminological litera-
e¢ Negative characteristics, such as deception ture, self-concept and developmental theories
and dishonesty with a focus on factors affecting young chil-
dren appear to enjoy theoretical supremacy.
As Kohlberg’s theory suggests, the moral mat- The explanation of youth misbehaviour in
uration of young offenders is slow, which in South Africa incorporates the social explana-
ev" Schaik { 6 5
tions of strain, learning and control. Pertinent 7.6.1, criminologists have succeeded in iden-
psychological explanations - namely Kohl- tifying risk factors for criminal behaviour and
berg’s theory of moral reasoning and Yablon- of subsequently developing theoretical expla-
sky’s integrated social-psychological view nations for such behaviour. This includes both
— are also included. Figure 7.1 illustrates the psychological and social variables as well as
integration of various theoretical concepts. the behavioural development of young people
At all levels, caregivers and institutions and the varying influences to which they are
such as schools and the government have subjected.
a vital role to play in addressing youth mis- The major challenge in addressing youth
behaviour in South Africa. Firstly, there is a misbehaviour in South Africa is the swift devel-
need for an extended family network to com- opment of youth programmes to be implement-
pensate for the limitations of current caregiv- ed at school level with the aim of underlining
ers. Secondly, the government should address responsible behaviour, instilling discipline,
education as a key issue. It is not sufficient to and promoting a heightened awareness of the
provide funds - a hands-on policy addressing realities and consequences of crime. At the
the needs of both educators and learners is same time, future prospects for the country’s
required. The high level of crime is a serious young population, such as employment oppor-
concern; the high crime rate among young peo- tunities, should be improved significantly.
ple, particularly when of a violent nature, is Parents, guardians and caregivers should work
intolerable. tirelessly to build gradually a sense of morality
Taking cognisance of the requirements of in youths. They cannot leave it entirely to the
a theoretical explanation for youth misbe- government to socialise and educate the chil-
haviour in South Africa as set out in section dren of South Africa.
Level Variables Theoretical orientation
Caregivers Social explanations

Social level Institutional deficiencies © Strain, learning
eee Economic deprivation © Control perspectives
Moral development
Bridging level (social and personal
re components)
Psychological explanations:
Personal level Self-concept Moral maturation (Kohlberg)
Self-concept (Yablonsky)
Figure 7.1 Explaining youth crime in South Africa
CRITICAL QUESTIONS
1. Briefly explain what is meant by the integration of theories.

2. Name the five principles that are the fundamental ingredients of the modern-day perspectives on crime
and human behaviour.
Explain what Cornish and Clarke's theory of rational choice entails.
4. Contextualise the role that moral development plays in the possible prevention of youth misbehaviour.
166
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Onbisnes) 167
OBJECTIVES KEYWORDS
You should be able to chivalry hypothesis
* explain the early biological and psychological explanations of female youth egalitarian family
misbehaviour feminism
* understand the theories that propose that gender roles are taught and patriarchal family
learnt through socialisation women’s liberation
* understand the theoretical attempts to establish a link between the liberation
of women and female youth misbehaviour
* recognise that the post-liberation explanations of female youth misbe-
haviour produced a continuation of research on gender-specific crime, while
minimising the role of the women’s liberation movement.
Note: Although the concept “juvenile delinquency” is not used in this book for the reasons given in Chapter 1, it
will be used in this chapter where relevant to highlight the androcentric and chauvinistic attitudes of theorists
towards females since the first attempts were made at explaining the behaviour of young females at risk. Further-
more, although today the term “sexuality” is considered an emotive and sensitive one, the author will, for the sake of
authenticity, refer to the “sexual nature” of females, as well as their “sexuality”, because these terms have been used
thus by the authors whose works are under scrutiny in this chapter.
8.1 INTRODUCTION
A major shortcoming of criminology has been misbehaviour and deviant behaviour to a place
its relegation of female involvement in crime, of secondary importance. Chesney-Lind and
169
Shelden (1992: 54) point out that delinquency at best be described as gender unresponsive.
theory, and in fact all of criminology, has Without appropriate recognition of young
ignored girls. Muraskin (2012: 13) also com- women's unique experiences, needs and vul-
ments on the “masculinised” nature of crim- nerabilities, girls regretfully remain peripheral
inology, and critiques the way women and and marginalised in a criminal justice system
girls have been negated and misrepresented in that has been designed by men for men (Oster-
criminological inquiry. Similarly, Chesney-Lind man & Masson 2016: 15-16).
(2010: 564) refers to the remarkable exclusion In this regard, authors such as Deschenes
and “trivialisation” of girls in conflict with the et al. (2000: 431) remark that all too often
law in the mainstream works of criminology. researchers borrow concepts that explain
Historically, theories of crime and delin- male juvenile misbehaviour and apply them to
quency have focused on adolescent males females, and consequently our understanding
(Shoemaker 1996: 226). In addition, most of the distribution of crime by gender tends to
research studies testing various theoretical be biased (Brown et al. 2007: 138). This chap-
models have used samples consisting exclu- ter reviews selected early attempts at explain-
sively of males. One of the reasons given for ing female youth crime.
excluding women is that official arrest records
show that the involvement of females in mis-
behaviour is notably lower than that of males 8.2 EARLY BIOLOGICAL AND PSY-
(Deschenes, Rosenbaum & Fagan 2000: 431). In CHOLOGICAL EXPLANATIONS
the South African context, Artz, Hoffman-Wan-
There is a long tradition of tracing gender
derer and Moult (2012: 27) poignantly com-
differences in criminal behaviour to traits
ment on the fact that as a result of the striking
that are uniquely male or female. The notion
gender gap between reported male and female
that biological and psychological differences
youth misbehaviour, they had to constantly
between men and women can explain differ-
justify their interest in female offending as a
ences in crime rates is not a new one.
research team during their Pathways Project.
Additionally, early delinquency research-
ers proposed that the female offender was an 8.2.1 Cesare Lombroso and William
aberration who committed crimes and status
Ferrero
offences that mostly had a sexual connota-
tion such as prostitution, running away (often Cesare Lombroso, who is often referred to as
resulting in sexual misbehaviour), premarital the grandfather of criminology, was one of the
sex and crimes of sexual passion (e.g. killing a first theorists who attempted to offer an expla-
boyfriend in a fit of jealousy) (Siegel 2002: 131). nation for women who commit crime (Pollock
Furthermore, it was assumed that females 1999: 130). With his son-in-law, William Ferrero,
rarely violated the law, or if they did, their ille- Lombroso became a pioneer in the study of
gal acts were status offences. female criminality when La donna delinquente
Because the causes of female misbehaviour (The female offender) was published in 1895.
were relegated to emotional or family-related After measuring and comparing various body
problems, criminologists did not take any parts of criminal and non-criminal women,
serious interest in the subject. As a result, they concluded that criminal women were
the major criminological theories suffer from biologically inferior and that they represented
a lack of generalisability to female criminality evolutionary throwbacks to a primitive state.
(Brown, Esbensen & Geis 2007: 138). Although As enthusiastic proponents of social Darwin-
there has been an increase in research on ism, they maintained that women were lower
female youth misbehaviour in recent years, on the evolutionary scale than men. According
theoretical development has been either lack- to Lombroso and Ferrero, women who commit-
ing or inappropriate (Muraskin 2012: 24). It is ted crimes could be distinguished from “nor-
not surprising that the paucity in theoretical mal” women by means of particular physical
understanding of female youth misbehaviour characteristics such as occipital irregularities,
has led to criminal justice responses towards narrow foreheads, prominent cheekbones,
young females in conflict with the law that can excessive body hair, an abnormal cranium,
Ox; Schail ik
170 lishers
CHAPTER 8 A HISTORICAL OVERVIEW OF APPROACHES TO UNDERSTANDING FEMALE YOUTH MISBEHAVIOUR
wrinkles and a virile facial form (Brown et al. caused by a preoccupation with sexual mat-
2007: 241; Siegel 2002: 137). Furthermore, they ters. Chesney-Lind and Shelden (1992: 56)
argued that delinquent females were closer emphasise that this theme in Lombroso and
in their physical appearance to men than to Ferrero’s work set the tone for much of the
other women. Campbell (1981: 48) refers to later work on female juvenile criminality.
this as the masculinity hypothesis that sug- For many years, theories about female
gests that delinquent girls have excessive mas- crime continued to focus almost exclusively on
culine characteristics. the anatomy of women, as well as their sexu-
Lombroso and Ferrero reported finding ality in particular. For example, in 1925, Cyril
fewer degenerative physical features among Burt suggested a link between female delin-
female offenders than among their male coun- quency and menstruation, and in 1926, William
terparts. However, prostitutes had more of Healy and Augusta Bronner argued that the
these atavistic qualities than other female physical superiority of males enhanced their
offenders. In addition, they argued that the criminality. According to Siegel (2002: 138), the
evil tendencies of female offenders were more research of these authors showed that about
numerous and varied than those of men. They 70% of the delinquent girls they studied were
proposed that the maternal instincts and lady- of abnormal weight and size.
like qualities of female offenders were sup-
pressed and that they were more merciless
when they committed violent crimes than 8.2.2 W.l. Thomas
their male counterparts. They also believed In 1923, W.I. Thomas continued Lombroso’s
that female criminals were overgrown children focus on women’s sexuality in his book Unad-
with: a limited sense of morality (Brown et al. justed girl. He postulated a biological differ-
2007: 241). ence between men and women that affected
Criminologists often find Lombroso and their psychological makeup. According to him,
Ferrero’s suggestion that women are lower women were frustrated because they were
on the evolutionary scale than men puzzling aware that they were being deprived of wishes
because they viewed primitivism as the key or desires during a time of rapid social change.
element in producing criminal behaviour, yet He argued that four basic wishes or desires
the crime rate of women was lower than that influenced behaviour, namely the desire for
of men. Their explanation of this inconsistency new experiences, security, response and rec-
was that most girls were restrained from com- ognition. These desires accounted for most
mitting crime by neutralising or counterbal- delinquency and crime. Thomas stated that a
ancing traits such as maternal feelings, lack of woman’s desire for response was more intense
passion, sexual apathy (coldness), weakness than that of a man (Muraskin 2012: 17).
and underdeveloped intelligence (Brown et al. As evidence of women’s intense desire for
2007: 241; Muraskin 2012: 16; Pollock 1999: 130; response, he referred to their maternal drives,
Shoemaker 1996: 227; Siegel 2002: 138). their propensity to care of the sick and help-
According to Chesney-Lind and Shelden less, and their general altruism. Thomas pro-
(1992: 56), Lombroso and Ferrero accepted posed that even prostitutes displayed a desire
that females were congenitally less inclined for response because, in his opinion, women
towards crime than males because of their engaged in this crime to fulfil their need for
more passive natures and their biological love and tenderness rather than for purely
roles as caretakers of children. In their opin- economic reasons. Similarly, he considered
ion, female criminals were anomalies (rare shoplifting to be an expression of the desire
creatures) and, although women were often for a new experience, as well as recognition
inclined towards childlike, jealous and venge- and response, because girls were likely to
ful behaviour, most of them were controlled steal goods that would beautify them (Pollock
by their maternal feelings, piety, weakness 1999: 131).
and low intelligence. They did warn, though, According to Chesney-Lind and Shelden
that when women did deviate, they became (1992: 56), Thomas introduced another major
the most dangerous criminals of all. They also theme into the early work on female misbe-
speculated that women’s crimes were often haviour, namely the notion that girls could
Cnbisrers) 171
be saved, particularly from their sexuality, this work is a continuation of the reliance on
through early intervention in their lives. Based a biological model of female misbehaviour as
on his evaluation of case records, Thomas a way of explaining women’s deviance and a
determined that nearly all female misbe- return to the distrust of female criminals origi-
haviour was an expression of sexual problems. nally found in Lombroso’s work. Pollak, unlike
For example, he asserted that young women most other theorists, believed that women
in general were not involved in sexual activity were just as criminally minded as men (Pol-
out of curiosity, but rather were encouraged lock 1999: 131). He asserted that the crimes of
to use sex as a means to obtain valued goods women were underreported, were less likely to
such as money, clothes and other luxuries be detected and were treated more leniently
(Shoemaker 1996: 225). Thomas did not con- by the criminal justice system (the chivalry
demn this, but criticised the social class-based hypothesis) (Brown et al. 2007: 140).
system that made it possible for upper-class Pollak noted that official statistics showed
women to sell themselves once only by getting that women committed substantially fewer
married and which forced poor women to set- crimes than men. He did, however, maintain
tle for less. that crimes by women were underreported,
He singled out bad family situations and as already stated. In discussing this masking
demoralisation as the sources of female mis- of the criminality of women, he proposed that
behaviour. As a solution to these problems, he the majority of the types of crime that women
was very enthusiastic about the services that committed (e.g. illegal abortions, prostitution,
were offered by the family court. In his opin- stealing from customers and stealing from
ion, these courts were much wiser than the employers) were such that they were hidden
parents of children and could remedy prob- with ease. In addition, he asserted that women
lems through sensitive and enlightened case- were deceitful, a characteristic he believed
work (Chesney-Lind & Shelden 1992: 57). was not only socially induced, but also related
to the female physiology (Brown et al.
2007: 140; Shoemaker 1996: 229). In this regard,
8.2.3 Sheldon and Eleanor Glueck
he referred to the passive role of women
In their book Five hundred delinquent women during sexual intercourse and the fact that
(1934), Sheldon and Eleanor Glueck, like Thom- women were able to conceal or manufacture
as, are very enthusiastic about extensive inter- sexual arousal, while men were not so privi-
vention in the lives of girls and young women leged and had to achieve an erection. Pollak
(Chesney-Lind & Shelden 1992:58). They believed that women acquired the confidence
documented the life histories of institution- to deceive men through their sexual play-
alised female offenders and concluded that acting and faked sexual response (Chesney-
the majority had been involved in sexual devi- Lind & Shelden 1992: 58).
ance that began in their early teens. Accord- With the assurance gained through their
ing to them, sexual misbehaviour and general power to deceive men, women were able to
maladjustment in girls developed at the same commit crimes that went undetected (Brown
time as their unstable home lives. The Gluecks et al. 2007: 140). Pollak emphasised that the
believed that extensive work with these girls, social roles appropriate for women (e.g. home-
including lengthy sentences in reformatories makers, caregivers of the sick and the young,
and even voluntary sterilisation, could contrib- and domestic workers) put them in a position
ute towards the prevention of female misbe- to commit certain types of crime that could be
haviour (Siegel 2002: 144). easily hidden, for example abusing young chil-
dren and poisoning the sick and the young. He
also claimed that women were the instigators
8.2.4 Otto Pollak rather than the perpetrators of crime — that is,
Otto Pollak links female criminality to the they masterminded crimes behind the scenes,
impact of biological conditions such as men- while men carried them out (Brown et al.
struation, pregnancy and menopause in his 2007: 140; Siegel 2002: 138).
book The criminality of women (1950). Accord- Pollak added that women used their sexual
ing to Chesney-Lind and Shelden (1992: 58), attractiveness to charm men in the criminal
Van Schaik
172 \Orubiishers
justice system and thereby obtained differ- opinion, the delinquency of girls therefore
ential treatment. He specifically believed that stemmed from their need for support. She sug-
male police officials often faced a conflict when gested that official intervention should focus
confronted with female offenders, because of on restoring, instead of tearing down, the girls’
a sense of chivalry as well as the notion that self-esteem, and proposed a more caring and
women should be protected from the criminal enlightened approach to female delinquents
justice system. As a result, officials were less than she had observed in official reactions
likely to suspect and arrest female offend- (Konopka 1966: 40). In other words, she was
ers. This notion, referred to as the chivalry convinced that social intervention adminis-
hypothesis, holds that low female crime and tered by sensitive and informed individuals
delinquency rates can be explained by the fact could help young women with their problems.
that male officials treat female criminals with Chesney-Lind and Shelden (1992: 61) point
leniency in the criminal justice system (Brown out that although Konopka’s work represents
et al. 2007: 143; Muraskin 2012: 19; Sealock & a more sophisticated understanding of the
Simpson 1998: 427). reality of female misbehaviour than previous
works, it still assumes that girls and women
are largely controlled by their biology and sex-
8.2.5 Gisela Konopka uality. Similar to most of the earlier authors,
The classic work of Gisela Konopka, entitled Konopka argued that most female misbe-
The adolescent girl in conflict (1966), represents haviour was either sexual or relational rather
an effort to gain a better understanding of the than criminal in nature.
world of adolescent females. She interviewed
181 of them, most of whom were offenders and 8.2.6 John and Valerie Cowie, and
unmarried pregnant girls. She noted that most
of the behaviour that brought young women
Eliot Slater
into contact with the criminal justice system In Delinquency in girls (1968), John and Valerie
was “accompanied by some disturbance or Cowie, and Eliot Slater offer an analysis of the
unfavourable behaviour in the sexual area” interrelationship between psychological and
(Konopka 1966: 4). Through a multitude of other factors in the development of misbe-
case studies, Konopka, a clinician, observed haviour. These authors try to explain female
that female offenders tended to originate from crime on the basis of discussions with 318
extremely poor home environments. girls who were kept in a juvenile institution in
She emphasised that uncertainty, loneli- Great Britain during 1958. According to them,
ness, poor communication skills and identi- the girls had to be removed from society and
fication with a delinquent mother character- placed in the secure environment of the insti-
ised the lives of delinquent girls. Other key tution much more for their own sake than to
elements in female delinquency, according to protect society. Most were incarcerated for
Konopka (1966: 119), included the “dramatic offences that the authors considered to be sex-
biological onset of puberty”, “the changing ual misconduct (Pollock 1999: 131).
cultural position of women” and the “face- They postulated that social and psycholog-
less adult authority”. She also believed that ical factors such as poverty or broken and/
delinquent girls suffered from a lack of educa- or poor home environments seemed to offer
tion. This ultimately resulted in women being better explanations for female than male delin-
ensnared in low-paying jobs with little hope for quency. In comparing delinquent girls and
improvement. boys, they came to the conclusion that girls
These conditions led girls to relieve their came from economically poorer homes, with
frustrated ambition through destructive more mental abnormality in the family, poorer
behaviour. She described the world of such moral standards, worse discipline, more often
girls as hostile, with adult authorities telling a broken home, more frequent changes of
them what to do and no one listening to their home, more conflict at home and more dis-
needs. She asserted that the families of delin- turbed intrafamilial relations. In addition, they
quent girls were not able to give them the maintained that the academic performance
care and nurturance that they needed. In her of girls was worse and that as a result they
Ontisnes) 173
developed a hostile reaction towards school, as innocuous charges such as running away,
rejected the influence of their family to a larger incorrigibility and ungovernability.
extent, and that their career prospects were They occasionally criticised the gender-
worse than those of boys (Pollock 1999: 131). based double standard that, for example,
Cowie and associates also suggested that resulted in the institutionalisation of pregnant
delinquent girls had defective intelligence girls, but also explained that this was neces-
and deprived childhoods. They described the sary because of the lack of other resources
female personality as being timid and lacking for them. Chesney-Lind and Shelden (1992: 60)
in enterprise, and suggested that this may pro- describe these authors’ attempt to deal with
tect girls from delinquency. They also noted incest as “troubling”. In this regard, they cited
that an alarming number of girls indicated that a theorist who suggested that girls ran away
they ran away from home because a near rela- from home because they feared the incestu-
tive had made sexual advances towards them. ous consequences of their own impulses. Ved-
This important matter was, however, men- der and Somerville (1970: 154) speculated that
tioned only in passing by the girls and, accord- girls ran away from home to escape this dis-
ing to Chesney-Lind and Shelden (1992: 60), turbing situation.
dropped very quickly from the discussion. Although they urged greater reliance on
Although these authors recognised envi- community-based programmes to deal with
ronmental factors, they believed that biologi- the high numbers of incarcerated black girls
cal predisposition also played a role in female in metropolitan areas, Vedder and Somerville
delinquency. In their opinion, biological fac- (1970: viii) were great supporters of court
tors generally insulated women from criminal intervention in the lives of female delinquents
behaviour, and only women under extreme and of traditional family norms. They stated:
pressure were not controlled by these pre- “When you train a man, you train an individual;
dispositions (Pollock 1999: 132). Therefore, it when you train a woman, you train a family.”
can be said that although they recognised that In summary, then, the early biological and
women were subject to greater social control, psychological theories of female crime sug-
they did not accept that this factor accounted gested that biological and psychological differ-
for the gender differential in crime rates. Fol- ences between men and women could explain
lowing from this, they argued, one had to the lower crime rate of women. Female crimi-
search for chromosomal and genetic factors nality was assumed to be primarily sexual or
to explain differences in male and female relational. Those who did commit crime were
delinquency rates (Chesney-Lind & Shelden seen as coming from more dysfunctional back-
1992: 59). grounds. It was therefore postulated that these
backgrounds succeeded in overcoming or tri-
umphing over the “natural” and “biological”
8.2.7 Clyde Vedder and Dora predispositions of women against criminality.
Somerville
In The delinquent girl (1970), Vedder and 8.3 GENDER ROLES AND
Somerville examine the backgrounds of girls
in training schools in the US and propose
DELINQUENCY IN GIRLS
that female delinquency is usually a result While most of the early theorists identified
of problems in adjusting to family pressure. inherent biological and/or psychological differ-
They found that an estimated 75% of institu- ences between men and women, a few focused
tionalised girls also had serious problems in on other differences. The difference between
the male-dominated culture with its some the theories discussed in the previous section
times rigid and unjust social practices (Siegel and those in the next section is that the follow-
2002: 143). ing theories did not propose that gender role
Vedder and Somerville (1970: 147) estab- differences in youth are inherent or innate.
lished that 75-85% of the offences leading to the In the 1950s, another explanation for female
incarceration of delinquent girls were sexual misbehaviour that emphasised the influence
ones. However, they did comment that these of gender roles began to appear. Essentially,
offences were masked in the official records this explanation proposed that women act and
174
think according to the roles they have been something that males did. Furthermore, sto-
taught and are expected to play. According to len goods could serve to fulfil the masculine
Shoemaker (1996: 229), these theorists argued role of provider, such as paying one’s way on
that women are expected to be passive, orderly dates. In contrast, females tended to steal less
and motherly. Conversely, when they are ambi- often than males because this did not directly
tious, the expectation is that they are deceitful, express the qualities of femininity. However,
sly and cunning, because women are unlikely Grosser maintained that some girls stole
to be given occupational responsibilities and because the stolen property could help them
social power freely outside the boundaries of to maintain their feminine appeal (Heidensohn
the home and family. 1995: 137).
The importance of this perspective lies
in its contention that gender roles are taught
and learnt through socialisation and do not 8.3.2 Talcott Parsons
automatically exist because of biological dif- In his work entitled Essays in sociological the-
ferences (Pollock 1999: 136). While it is a fact ory published in 1954, Parsons presents a psy-
that biological differences exist, this approach
chological theory identifying sex role identifi-
maintains that acting as expected as a male or
cation as the reason for the different crime pat-
female is not necessarily inborn or a biological
terns of males and females. He suggested that
predisposition, but is rather the influence of
the low rate of female juvenile delinquency
cultural and social definitions that one learns
was the result of a close and nurturing female
from childhood (Shoemaker 1996: 229). This
figure on which adolescent girls could model
perspective claims that traits such as male-
themselves. Conversely, male children were
ness’ and femaleness are biological, whereas
frustrated by the lack of close role models,
the concepts “masculinity” and “femininity”
and engaged in delinquency in reaction to the
are socially learnt roles.
omnipresent female authority figures in their
lives (Pollock 1999: 135).
8.3.1 George Grosser He emphasised that women were largely
responsible for the socialisation of children.
One of the earliest theorists to apply the con-
In this context, boys often saw the “goodness”
cept of gender roles to the study of female
of their mothers as weak because generally
delinquency was Grosser. His unpublished
society displays little value towards women,
dissertation entitled Juvenile delinquency and
therefore they rebelled against their mothers,
contemporary American sex roles (1952) is a
thus creating the “strong tendency for boyish
study of both boys and girls. He contended
behaviour to run in antisocial ... directions”
that delinquency represented role-expressive
(Parsons, in Pollock 1999: 135). Contrary to
behaviour for both sexes (Heidensohn
this, girls did not experience gender identity
1995: 136). He asserted that the differential
gender role socialisation of males and females conflict and were content to conform to the
pushed women to achieve success through role model of their mothers.
affiliation (e.g. marriage) and encouraged
males to achieve success through accomplish- 8.3.3 Ruth Morris
ment (Chesney-Lind & Shelden 1992: 134).
While he saw male delinquency as linked Ruth Morris accepted the notion that female
to the demands of the masculine gender role delinquency was deeply influenced by male
for economic performance, he ascribed the and female socialisation. In her dissertation
delinquency of girls to a function of their basic entitled Comparison of female and male delin-
sexual nature. He suggested that female sexual quency (1963) and two subsequent papers in
delinquency was the functional equivalent 1964 and 1965, she attempted to develop a
of male theft, vandalism and gang behaviour comprehensive theory of female misbehaviour
(Heidensohn 1995: 136). that would explain both its sexual character
According to Grosser, therefore, delinquent and its lesser frequency (Chesney-Lind & Shel-
boys were predominantly involved in theft den 1992: 71).
because stealing was daring and risky, and To explain the smaller number of female
Cons
blishers) 175
delinquents, Morris highlighted the limited ¢ The existence of different role expecta-
access women have to illegitimate means of tions and socialisation patterns. Girls were
reaching economic goals of success, as well as expected to be nurturing, and carried more
the greater social disapproval of female devi- responsibilities to perform domestic tasks
ant acts compared with those of their male in the home. In addition, they were less
counterparts. In addition, Morris speculated likely to learn skills, such as the handling of
that a stronger sense of guilt or disapproval firearms or fighting, which would be import-
would accompany the deviant behaviour of ant for engagement in delinquent acts.
females, and that such misbehaviour lacked ¢ The differences, based on gender, in the
subcultural and cultural support. More partic- application of social control. Girls were more
ularly, she found that girls experienced greater likely than boys to have earlier curfews.
shame than boys when questioned about their They were expected to be at home rather
involvement in delinquent acts, and that girls than allowed freedom of movement after
tended to deny their involvement in such acts school.
to a greater extent than boys did. Morris also
found that there was less disapproval of boys ¢ The differences in opportunities available for
committing particular offences. Since girls
than girls who committed the same offence
were more likely to be confined to their
(Chesney-Lind & Shelden 1992: 71).
homes, there was less opportunity for them
In an attempt to explain the preponderance
to engage in delinquent acts such as vandal-
of status offences among girls, she pointed
ism, theft, fighting and other forms of mis-
out that because factors that interfere with
behaviour.
achieving culturally defined goals of success
via legitimate means were most likely to lead ¢ Gender differences in terms of access to crim-
to deviancy, and because these goals were dif- inal subcultures and careers. Girls were less
ferent for men and women, the sources as well likely to belong to gangs or to have other
as the nature of delinquent behaviour would criminal associations.
be different. Following from this, she proposed ¢ The classification of offences by the legal
that delinquency in males would most likely be structure in a manner that relates to sex
caused by obstacles to economic power and role differences. Girls were more likely to
status, while obstacles to maintaining positive be caught up in the juvenile justice system
affective relationships would be likely to pro- for status offences than for delinquent acts
duce misbehaviour in girls (Chesney-Lind & because their sexuality was more controlled
Shelden 1992: 71). than that of boys.
To summarise, the sex role theories empha-

8.3.4 Dale Hoffman-Bustamante
sised socialisation differences between men
In her article entitled The nature of female crim- and women. They postulated that differences
inality (1973), Hoffman-Bustamante emphasises between men and women were not inherently
that women are socialised very differently biological or psychological, but rather learnt.
from men. She maintains that besides the fact Sex roles were considered to be one of the
that boys are allowed much greater freedom most fundamental factors in identity (Naffine
than girls while growing up, they are also 1981: 83). During childhood, girls and boys
encouraged to be more aggressive, ambitious recognised and absorbed what was appropri-
and outgoing. Girls are expected to be non- ate and inappropriate behaviour for the sexes.
violent and therefore also do not possess the Pollock (1999: 136) points out that during the
technical skills to commit violent acts (Brown 1960s and 1970s when sex role theory was pop-
et al. 2007: 141). ular in criminology, the sex roles of men and
Hoffman-Bustamante (1973: 117) described women incorporated characteristics that were
sex roles as the controlling factor in explain- more amplified than they are today.
ing the difference between the crime rates of This included that males were breadwin-
males and females. She identified the following ners and women were homemakers; also that
factors as contributing to the differences: males were strong, assertive and analytical,
Van Schaik
176 ©publishers
while women were passive and nurturing. The quent acts than women. Pollock (1999: 160)
models for sex role identification in the case of does warn, though, that one should view these
boys were “cops, crooks and cowboys”, while findings with some suspicion, since the types
the models for girls were almost exclusively of delinquent acts that were considered in the
housewives (Pollock 1999: 137). Women were research were not very serious.
only beginning to venture into non-traditional The study by Norland, Wessel and Shover
areas in the labour force and these women (1981: 421-433) offers less support for the mas-
were invariably viewed as odd and exceptions culinity hypothesis. These authors used a sam-
to the rule. At the time, gender socialisation ple of 1002 high school students and defined
patterns were only beginning to change. masculinity by such measures as leadership,
Chesney-Lind and Shelden (1992: 73) pro- competitiveness, aggressiveness, successful-
pose that the sex role theorists were hampered ness and ambition. Their findings indicated
by stereotypical assumptions about the con- that masculinity was directly related only to
cept of gender as well as the nature of youthful status offences and not to property and violent
female misbehaviour. These theorists widely offences. For females, those exhibiting more
accepted two assumptions. First, most female masculine characteristics were less involved in
misbehaviour was sexual or interpersonal delinquency than those reporting fewer such
in nature, in contrast to male misbehaviour, traits. The authors explained this by stating
which was assumed to be more aggressive and that females showing these traits are more
criminal. Second, disparity in the socialisation likely to be attached to conventional (law-
of male and female children played a signifi- abiding) peers.
cant role in the generation of basic personality Using self-reported data, Loy and Norland
characteristics and, as a consequence, it was (1981: 275-283) used a more sophisticated
less likely that women would consider illegal conceptualisation of masculinity. They devel-
behaviour. Young women who deviated from oped two Likert-type measures of gender-role
stereotypical feminine characteristics would expectations - one for traditional masculin-
become more criminal because criminality was ity and the other for traditional femininity.
assumed to be expressive of masculine charac- Respondents were characterised as androgy-
teristics and values. Various studies attempted nous when they scored above the midpoint
to evaluate what generally became known as on both scales. Traditional males and females
the “masculinity hypothesis” (Chesney-Lind & were those who scored significantly higher on
Shelden 1992: 73-74; Pollock 1999: 134-136). their respective scales.
The authors also developed an “undifferen-
tiated” category for those who scored below
8.3.5 Masculinity hypothesis the midpoints on their scales. Further, they
Tests of the masculinity hypothesis produced divided the self-reported delinquency of both
mixed results. Cullen, Golden and Cullen sexes into property, status and aggressive
(1979: 301-310), using a university student offences. Loy and Norland (1981: 280) found
sample of 182 respondents, found partial sup- that undifferentiated females were far more
port for this thesis. They devised a masculinity delinquent in all areas than their traditional or
scale consisting of six stereotypically mascu- androgynous counterparts. More particularly,
line traits, namely aggression, independence, the average number of aggressive acts for
objectivity, dominance, competitiveness and undifferentiated females was approximately
self-confidence. One of their findings was that six times that of either of the other two groups
females who possessed male traits had a higher of girls. Conversely, a different pattern was
likelihood of involvement in self-reported found for males. Traditional males reported
delinquency. However, they also found that the greatest number of delinquent acts and, in
“while male traits seemingly increased the like- particular, aggressive behaviour.
lihood that members of both sexes will engage Wisdom (1981: 33-48) tested both mascu-
in delinquency, their effects [were] greater for linity and femininity using the Bem Sex Role
males than females” (Cullen et al. 1979: 307). Inventory, but unfortunately used a sample of
In other words, when controlling for masculin- only 73 women in custody and a control group
ity, men still committed higher rates of delin- of 20 women. Her findings provided no clear
evn Schaik
Publishers) 1/7
support for the masculinity thesis. Offenders cating women. He cautioned that removing
were no more masculine than non-offenders, the constraints of domesticity and maternity
but repeat offenders (recidivists) were less would reveal the “semi-criminal” lurking within
feminine. women. Similarly, Shoemaker (1996: 232) dis-
Bunch, Foley and Urbina (1983: 66-79) also cusses the work of Pollak in which consider-
used a prison sample consisting only of violent able attention was given to the criminological
offenders and found that they did not exhibit effect of increased participation of women in
high scores on a masculinity/femininity scale. the labour force. In fact, Pollak asserted that a
Interestingly, they found that female scientists rise in female crime due to the emancipation of
and university athletes had higher androgyny women had been predicted by criminologists
scores than female criminals. They concluded since at least the 1870s. Two books by prom-
that female prison inmates seemed to be more inent female criminologists, Freda Adler and
conventional in their personality character- Rita Simon, were published in the mid-1970s
istics than women who had chosen atypical and explored the links between female libera-
careers. They also found that violent female tion and crime.
criminals in prison expressed less favourable
attitudes in support of the women's liberation
movement than did high school or university 8.4.1 Freda Adler’s masculinisation
students. theory
Pollock (1999: 136) contends that the tests
Adler proposed a slightly different version
of the so-called masculinity hypothesis are
of the masculinity hypothesis discussed ear-
extremely problematic, and suffer from poor
lier. She essentially associated criminality
measurement tools. In addition, these stud-
with masculinity, and then proposed that the
ies make explicit and implicit assumptions of
so-called liberation of women in the 1960s and
masculinity and femininity that are at least
1970s caused women to take on more stereo-
debatable. For example, what does it mean
typically masculine traits such as competitive-
to be masculine or feminine in this particular
ness and aggressiveness.
society? And have these definitions changed?
In her book, Sisters in crime, Adler
It is important to address such questions com-
(1975: 12-13) states:
prehensively before attempting to apply these
concepts to the study of crime. Women are no longer indentured to the
kitchens, baby carriages or bedrooms ....
Allowed their freedom for the first time,
8.4 LIBERATION AND CRIME women ... by the tens of thousands have
One of the most widely held beliefs concerning chosen to desert those kitchens and
female youth misbehaviour and crime is that. plunge exuberantly into the formerly all-
as a result of the women’s liberation move- male quarters of the working world ... In
ment during the 1960s and early 1970s, there the same way that women are demanding
was a dramatic increase in female criminal equal opportunity in the fields of legit-
activity. The argument advanced was that, as imate endeavour, a similar number of
women become freer to develop their individ- determined women are forcing their way
ual potential and to achieve their goals in life, into the world of major crimes.
they simultaneously become exposed to the
crime-inducing frustrations and stresses of life Brown et al. (2007: 141-142) also highlight the
that have characterised the male experience importance of this particular passage in their
for years, as well as to increased opportunities analysis of Adler’s work. Adler asserted that,
to commit crime (Shoemaker 1996: 231). by striving for independence, women began to
Since the 1800s, criminologists have been alter the institutions that had protected males
warning that the emancipation of women in their traditional positions of power. Her
would result in a dramatic change in the char- argument was that female delinquency would
acter and frequency of female criminality. be affected by the changing role of women. As
Chesney-Lind and Shelden (1992: 75) refer to females entered new occupations and partici-
Lombroso, who spoke of the dangers of edu- pated in sports, politics and other traditionally
1 7 8 ev" Schaik
male endeavours, they would also become 8.4.2 Rita Simon’s opportunity
involved in crimes that had before been male theory
dominated. She predicted that delinquency
rates for males and females would then con- Rita Simon, in her book entitled The contem-
verge. porary woman and crime (1975), stated that
She also highlighted the fact that girls were women’s employment opportunities would
becoming increasingly involved in tradition- also create opportunities for crime and that
ally masculine crimes, such as gang activities women would then take advantage of these.
and fighting. The women’s movement would Analysing the statistics of female crime over a
therefore produce rapid increases in the rate number of decades, she examined the possible
effect of the women's movement on the crimi-
of female delinquency because it created an
nality of women (Brown et al. 2007: 142). Simon
environment in which the roles of males and
(1975: 10) used data on the status of women in
females could converge. She predicted that the
the labour force, marriage and fertility rates,
changing female role would produce female
income, education and crime statistics in her
criminals who were similar to their male coun-
analysis. She predicted that some types of
terparts (Adler 1975: 10-11). She also suggest-
crimes (predominantly white-collar offences)
ed that younger females to a large extent emu-
would increase, while other types (violent
lated their mothers and older sisters in their
crimes in particular) would decrease.
quest for increased freedom, thus all of the
She believed that these changes would
different types of crime that might be expected
occur as a result of the changing position of
of adult women might also be expected of girls.
women in society. She reasoned that since
While Adler argued that one of the changes
women’s frustration would decrease with
that the women’s movement had created
greater educational and employment oppor-
for adolescent girls was in the area of sexual
tunities, their involvement in violent crime
behaviour, she reasoned that the effects were
should decrease. On the other hand, women’s
most notable in two areas. First, it produced expanding opportunities would increase their
a general imitation of masculine behaviour, as chances of embezzling and defrauding employ-
evidenced in the greater involvement of girls in ers to such an extent that an increase in
fighting and gang behaviour. Second, it created property and economically motivated crimes
an increased rate of delinquency in general would occur. Simon concluded that as women
because the confusion accompanying libera- became accepted into various legitimate fields
tion added to the turmoil and uncertainty of that had been dominated by men before, the
adolescence. With respect to violent crime and criminal justice system would start to deal with
delinquent behavioural changes, Adler indi- women as it does with men. Consequently,
cated an increase in gang involvement among she argued, women would no longer benefit
girls, both in their traditional roles as auxilia- from chivalrous treatment by police and court
ries and accomplices to male gangs, as well as officials (Brown et al. 2007: 142; Muraskin
members of exclusively female gangs (Brown 2012: 21).
et al. 2007: 142). Simon thus explained how the increase in
Adler (1975: 250) thus connected the rise female criminality was a function of the chang-
in female crime in the 1960s and early 1970s ing role of women. As women were empowered
to the rise in women’s assertiveness brought economically and socially, they would be less
about by the women’s liberation movement. likely to feel dependent and oppressed. They
She contended that there were now fewer would be less likely to attack their traditional
restraints yet greater pressure on women targets, namely their husbands or lovers and
stemming from their enhanced position. As a their own children. Instead, she argued, their
result, women were becoming susceptible to new role as breadwinners might encourage
the same criminogenic forces that men faced, women to engage in what were traditionally
therefore it was likely that with the conver- male crimes such as theft.
gence of role expectations, female crime would Although the works of Adler and Simon
begin to resemble male crime (Brown et al. broke new ground, it should be noted that the
2007: 142; Muraskin 2012: 21). contention that female crime would increas as
Van Schaik
©pubiishes} 4179
a result of the women’s liberation movement, women, both economically and biologically.
did not receive unqualified support. In fact, This double marginalisation explains why
various authors have disputed that changes in females in a capitalist society commit fewer
the female crime rate relate to the liberation of crimes than males do. Women are not only
women (Cernkovich & Giordano 1979: 131-145; isolated in the family and have fewer oppor-
Figueira-McDonough 1984: 325~342; James & tunities to engage in so-called elite deviance
Thornton 1980: 230-244; Steffensmeier & Cobb (e.g. white-collar and economic crimes), but
1981: 37-49; Steffensmeier & Steffensmeier they are also denied access to male-dominated
1978: 566-584; 1980: 62-85). It therefore seems street crimes. Since capitalism renders women
that the extensive analyses of existing data powerless, they are forced to commit less seri-
have so far been unsuccessful in establishing ous crimes, such as the abuse of drugs (Mess-
links between the women’s liberation move- erschmidt 1986: 3).
ment and increased criminality. Authors such Messerschmidt (1986: 4) thus asserted that
as Miller (1983: 59) have even gone so far as gender and class shape one’s opportunities. He
to characterise the whole debate as an “intel- identified definite gender- and class-appropriate
lectual dead end”. Similarly, Chesney-Lind forms of conforming and non-conforming
(1980: 29) has compared the liberation-crime behaviour. He related low female criminality
relationship to past witch-hunts that sought to to the subordinate position of women in patri-
enforce female sex roles. archal capitalist societies. Owing to female
subordination in the family, young women are
more closely supervised than their male coun-
8.5 POST-LIBERATION terparts, and consequently have less opportu-
EXPLANATIONS nity to engage in serious crime. He argued that
Since the empirical links between women’s lib- when women do commit crime, it reflects their
eration and increased female criminality are subordinate position in the gender/class hierar-
at best weak, the 1980s and 1990s have seen chy (Messerschmidt 1986: 43-44).
a continuation of research on gender-specific
crime which minimises the role of the women’s 8.5.2 Power control theory
liberation movement.
Hagan (1989:2) advanced a power control
theory to explain female misbehaviour. He
8.5.1 Socialist/Marxist explanations referred to his approach as “structural crim-
James Messerschmidt, an influential femi- inology” by proposing that the structure of
nist scholar, argues in Capitalism, patriarchy the labour system divides people into those
and crime (1986) that the capitalist society is who control and those who are controlled.
marked by both patriarchy and class conflict. He stated that while mothers are the primary
He defines patriarchy as a “set of social rela- socialising agents of children, especially girls,
tions of power in which the male gender appro- in the family, girls engage less in delinquency
priates the labour power of women and con- because their behaviour is more closely con-
trols their sexuality” (Messerschmidt 1986: x). trolled by the father in the patriarchal family.
He formulated a theoretical model to show He further postulated that what is taught to
how misguided concepts of “masculinity” children is influenced by the economic power
flow from the inequities that are inherently position of the household head in the work-
part of patriarchal capitalism. According to place. According to Hagan (1989: 45), it thus
him, men dominate business in capitalist soci- follows that when one has power over others
eties, and men who cannot function well with- at work, one will also be in control of children
in its parameters are at risk of committing (especially girls) at home.
crime. In such societies, women are inherently This theory assumes that girls and boys are
powerless, and their crimes reflect their lim- controlled differently by their parents, and that
ited access to both legitimate and illegitimate this leads to risk preferences. This means that
opportunities. boys take more risks than girls because they
He also emphasised that capitalists con- are subjected to less parental control. Risk
trol workers, and that men similarly control preferences may then lead to delinquency.
180 Onniter
Hagan (1989: 145) further indicated that gen- that girls experience and the relationship of
der also influences delinquency in terms of such control to their deviancy are needed,
the way behaviour is officially labelled, mean- they state that Hagan should be commended
ing that girls are more likely to be targeted for focusing on the importance of gender and
for sexual misbehaviour. According to Pollock patriarchy in the shaping of both male and
(1999: 154), this theory revives the traditional female criminal behaviour.
view that delinquency is fun, exciting and
dynamic, and that girls are boring and passive
because they do not engage in delinquency to 8.5.3 Feminist theory of delinquency
the same degree as boys. According to Bartollas (1997: 202), the fem-
This is because girls are disproportion- inist theory of delinquency is an expression
ately controlled and not allowed “the fun of of radical feminism. He contends that the
delinquency”. In Hagan’s (1989: 154) view, this relationship between female victimisation
parental control “diminishes the preferences and female crime has been systematically
of daughters to take risks”. Furthermore, he ignored. Muraskin (2012:22) also investi-
argues that as women enter the workforce, gates the notion that personal victimisation
the informal controls of the family decrease ultimately leads women to crime. Cited as
and, conversely, formal controls of the state an indicator that victimisation may become
increase (Muraskin 2012: 18). This presumes a pathway to female offending is the fact
that egalitarian families would have more that a large percentage of female criminals
delinquent daughters (Pollock 1999: 155). Sie- have a life history that includes drug-abusing
gel (2002: 150) describes an egalitarian family parents and violent partners, as well as sexual
as one in which the husband and wife share abuse and rape in childhood.
similar positions at home and in the work-
Chesney-Lind and Shelden (1992: xi), major
place.
proponents of this position, point out that a
Hagan’s theory maintains that in egalitarian
leading reason for the presence of girls in juve-
families, daughters gain a kind of freedom that
nile courts is the insistence of parents on their
reflects reduced parental control. These fami-
daughters’ arrest. What has been established
lies therefore produce daughters whose law-
fairly recently, according to this perspective,
violating behaviour mirrors that of their broth-
is that substantial numbers of these girls are
ers. Hagan (1989: 183) concluded that when
victims of both physical and sexual abuse
both the father and mother occupy equally
(Muraskin 2012: 22).
valued managerial positions, the similarity
When female adolescents run away from
between the extent of the daughter’s and son’s
home and use drugs, they may be reacting to
misbehaviour is greatest.
abuse, and their attempts at survival are con-
To summarise, it can be stated that the
sequently labelled as delinquent. Chesney-Lind
power control theory encourages a new
and Shelden (1992: xi) propose that a feminist
approach to the study of youth misbehaviour
perspective on the causes of female delinquen-
by addressing sex and gender differences,
cy includes the following arguments:
class position and family structure. However,
because of the increase of single-parent homes, ¢ Girls are frequently at the receiving end of
authors such as Siegel (2002: 150) emphasise violence and sexual abuse; however, unlike
that the pattern Hagan has identified may boys, their victimisation and their response
change and that the decline of the patriar- to it are shaped by their status as young
chal family may produce looser family ties females.
for girls, changing gender roles and increased
e The victimisers (usually males) have the
delinquency. This predicted increase in young
power to call upon official agencies of social
females who are in conflict with the law as a
result of disconnected family ties and changing control to keep girls at home and vulnera-
gender roles remains unconfirmed and unex- ble.
plored in criminology. Although Chesney-Lind e As girls run away from abusive homes,
and Shelden (1992:97) mention that further characterised by sexual abuse and neglect,
exploration of the varieties of social control they are pushed into a situation in which
pres) 181
Oeoscee
they are unable to enrol in school or take 8.6 CONCLUSION

a job to support themselves because they
This chapter reviewed early efforts to explain
fear detection. As a result, they are forced
to engage in petty theft and occasional sex female youth misbehaviour. The early theo-
work to survive. rists, beginning with Lombroso, emphasised
the role of biological factors in the causation
¢ Girls who run away from abusive or impov- of female crime. Much of what followed was
erished homes do not become involved in greatly influenced by the notion that girls’
criminal activities that exploit their sexu- anatomy and their sexuality played a role in
ality by chance. Since society has defined causing their misbehaviour. This theme was
physically perfect young women as desir- repeated in the works of Thomas, Pollak, the
able, girls on the streets (who have little Gluecks and many others.
else of value to trade) are encouraged to The chapter also considered research on
use this resource. the connection between gender roles, and gen-
der role socialisation and female delinquency.
Considerable numbers of research findings These studies, although hampered by stereo-
support the above views. Bartollas (1997: 204) typical assumptions regarding the concept of
lists the following results: gender and the nature of female misbehaviour,
began to explore the supervision of young
e Silbert and Pines found that 60% of the
street-based sex workers they interviewed
people, the greater stigma attached to female
had been sexually abused as children. misbehaviour and the role of family conflict in
misbehaviour. Contentions that masculinity
¢ Ina survey of 192 female youths in the Wis- may cause misbehaviour were highlighted, and
consin juvenile justice system, Phelps found the mixed findings of various researchers were
that 79% (most of whom were in the sys- stressed.
tem for petty theft and status offences) had Next, the notion that the women’s liberation
been subjected to physical abuse that had movement of the late 1960s and early 1970s
resulted in some form of injury. and girls’ misbehaviour are linked was scru-
e Chesney-Lind and Rodrigues investigated tinised. Theorists supporting this perspective
the background of adult women in prison argued that as the roles of women change so
and established that virtually all of them will their crime patterns. Although a number
had been victims of physical and/or sex- of studies support this view, some theorists
ual abuse during their childhood. In their question its validity.
sample, more than 60% had been sexually Finally, the chapter includes various recent
assaulted and approximately 50% had been post-liberation explanations of girls’ misbe-
raped. haviour. In general, the material in this chap-
ter suggests that if a theory of female misbe-
Verrecchia (2009:80) also suggests that haviour is to emerge, it must draw on the best
the majority of women who are involved of a heritage that could be described as imper-
in the criminal justice system are typical- fect and at times fallacious. With the accumula-
ly a victim first and an offender second. tion of evidence of various factors contributing
Likewise, Osterman and Masson (2016: 16) to female misbehaviour, it is becoming increas-
highlight that young women who come ingly clear that no simple answers are to be
into conflict with the law commonly deal found for girls’ misbehaviour. It does appear,
with a range of problems, including liv- though, that criminology has come a long way
ing with the consequences of trauma from the simple, often paternalistic, views of
and abuse. In the chapter that follows (Chap- the nature of women and their transgressions
ter 9), Lillian Artz examines more recent crim- that prevailed less than a century ago.
inology theoretical insights into young women
who find themselves in conflict with the law,
and most importantly, within a South African
context.
182 |Opbisners
CRITICAL QUESTIONS
1. Critically map the early biological and psychological explanations of female youth misbehaviour.
2. Discuss the relevance of theories that focused on the influence of gender roles in causing female youth
misbehaviour.
3. Evaluate the theories that attempted to establish a link between the liberation of women and female
youth misbehaviour.
4. Discuss the post-liberation explanations of female youth misbehaviour.
REFERENCES
Adler, F. (1975). Sisters in crime. New York: McGraw- Hoffman-Bustamante, D. (1973). The nature of female
Hill. criminality. /ssues in Criminology, 8: 117-136.
Artz, L., Hoffman-Wanderer, Y. & Moult, K. (2012). Hard James, J. & Thornton, W. (1980). Women’s liberation
time(s): Women’s pathways to crime and incarcera- and the female delinquent. Journal of Research in
tion. Cape Town: The Gender, Health and Justice Crime and Delinquency, 20: 230-244.
Unit, University of Cape Town. Konopka, G. (1966). The adolescent girl in conflict.
Bartollas, C. (1997). Juvenile delinquency (4th ed.). Englewood Cliffs, NJ: Prentice Hall.
London: Allyn & Bacon. Loy, P. & Norland, S. (1981). Gender convergence and
Brown, S.E., Esbensen, F-A. & Geis, G. (2007). Criminol- delinquency. Sociological Quarterly, 22: 275-283.
ogy: Explaining crime and its context (6th ed.). Cin- Messerschmidt, J. (1986). Capitalism, patriarchy and
cinnati, OH: Anderson. crime: Toward a socialist feminist criminology.
Bunch, B.J., Foley, L.A. & Urbina, S.P. (1983). Psychol- Totowa, NJ: Rowman & Littlefield.
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Campbell, A. (1981). Girl delinquents. Oxford, NY: Basic 7: 59-70.
Blackwell. Muraskin, R. (2012). Feminist theories; Are they need-
Cernkovich, S. & Giordano, P. (1979). A comparative ed? In Muraskin, R. (Ed.), Women and justice: It’s a
analysis of male and female delinquency. Sociolog- crime (5th ed.). Upper Saddle River, NJ: Pearson.
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Chesney-Lind, M. (1980). Rediscovering Lilith: Misogy- In S.K. Mukherjee & J.A. Scutt (Eds), Women and
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Chesney-Lind, M. (2010). Patriarchy, crime and justice: ity and delinquency. Criminology, 19: 421-433.
Feminist criminology in an era of backlash. In S.G. Osterman, L. & Masson, I. (2016). Making restorative
Tibbetts & G. Hemmens (Eds), Criminological theory. justice work for women who have offended. London:
Thousand Oaks, CA: SAGE. Restorative Justice Council.
Chesney-Lind, M. & Shelden, R.G. (1992). Girls, delin- Pollock, J.M. (1999). Criminal women. Cincinnati, OH:
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Brooks/Cole. Sealock, M. & Simpson, S. (1998). Unravelling bias in
Cullen, F.T., Golden, K.M. & Cullen, J.B. (1979). Sex arrest decisions: The role of juvenile offender type-
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Deschenes, E.P., Rosenbaum, J. & Fagan, J. (2000). Gen- ed.). New York: Oxford University Press.
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184
Lillian Artz
OBJECTIVES KEYWORDS
You should be able to derivative offending
* understand the origins and influence of historical theories of female criminal female offending
offending on the risk
development of contemporary theories on young female criminal offending subordinate offending
* understand the influence of critical and feminist frameworks on theories of victimisation
female offending vulnerability
* understand the social contexts in which female criminal offences occur
* understand the social contexts of male and female vulnerabilities to, and risks
for, criminal offending
+ differentiate the factors, conditions and antecedents of female criminal offend-
ing from male criminal offending.
9.1 INTRODUCTION scholarship and criminal justice practice. The

reluctance to see female criminal offending as
This chapter focuses on contemporary per-
something other than the product of “mad-
spectives of youth, gender, risk and crime,
with a special focus on young female offenders. ness”, “badness” or as a response to unavoid-
It begins with a brief reflection on the theories able vulnerability perpetuates a particularly
espoused in classical and positivist works on distorted view of female offenders. It will be
female criminality, and argues that while the argued that the recognition of history, social
empirical and theoretical underpinnings of context and geopolitical spaces, as well as the
these perspectives have largely been chal- methods we choose to study female offending,
lenged by contemporary critical theories on might work towards the demystification of the
crime and “deviance”, there are still remnants causes of female offending and improve our
of these perspectives within criminological responses to it.
185
9.2 HISTORY, “HERSTORY” AND the impact of this theoretical evolution on

OTHER THEORETICAL (MIS)- how criminology has come to think about, and
respond to, female offending. Despite progres-
CONCEPTIONS ABOUT FEMALE
sive empirical evidence - which has largely
OFFENDING emanated from the West - on the social, struc-
Through her historical chronology of perspec- tural and personal contexts which contribute
tives on child and youth misbehaviour, Harriét to young female offending, the treatment of
Klopper (Chapter 8) sets out a solid foundation these offenders has yet to escape the per-
for a more in-depth analysis on “youth, gender, petual emphasis on biology and “female psy-
risk and crime” within the South African con- chology”, both of which are based on implicit
text. Klopper draws our attention to the per- assumptions about the “inherent nature” of
sistent fixation on biological and physiological women and overlook the disruptive develop-
factors that featured prominently in theories mental, social and environmental factors that
on the causation of female criminality during contribute to female offending. Gisela Konop-
the classical and positivist periods in crimi- ka’s (1966) The adolescent girl in conflict is an
nology, including those by influential theorists early example of how postmodern feminist
such as Cesare Lombroso and Guglielmo Fer- criminology began to produce both rigorous
rero (1895), W.I. Thomas (1923), and Otto Pol- and compassionate scholarship on juvenile
lak (1950). This was a period in which women female delinquency which, through individ-
were treated analogously with children and ual case histories, simultaneously evidenced
the mentally ill, all of which were considered “individuality” and took into account girls’
lacking in basic moral reasoning, and where structural positions in society. It represented
women’s behaviour was based on explicit an emerging analysis of female criminality in
assumptions about the physiological and psy- terms of social differentiation and differential
chological “nature” of women - assumptions illegitimate opportunity structures, without
which have been largely discredited by con- any engagement with biological and physiolog-
temporary criminological theories on female ical factors (Smart 1976).
offenders and offending. The emergence of Despite this study being published 50 years
postmodernism and post-structuralism persua- ago, and the publication of a few seminal pieces
sively challenged the intrinsically racist, clas- on young women in conflict with the law since
sist and sexist dispositions of these theories - then, responses from our justice system, and
theories which defined “femininity” in terms of even from more recent “crime and violence”
the more “highly developed, white race” (Yer- scholarship, shows a continued preoccupation
bury 1985) and which fashioned the concepts with the biological and physiological aspects.
of “hysterical (female) offenders” and “female These preoccupations are masked as an unease
lunatics” who were susceptible to mood over girls’ physical vulnerability, and in rela-
changes, delusions and destructive behaviour tion to this the reasons for offending and other
(Pollock 1978). These biologically determined high-risk behaviour. In many domains - includ-
and physiologically centred constructs and ing media, societal and judicial ones - women
explanations of female delinquency were coun- who commit crime are more likely to be repre-
tered by theories which turned to functionalist sented as either “really bad” or “very mad”, pri-
explanations (i.e. strain, opportunity and con- marily because of their gender (Artz 2013).
trol theories), interactionist explanations (i.e. Another tenacious theory that emerged in
differential association, labelling and conflict the 1970s was the attribution of female crime
theories), and feminist perspectives (radical, to women’s emancipation. Such theories, in
socialist and liberal theories) of criminality, essence, suggested that as women became
which explored important situational, social freer to develop their individual potentials
and structural antecedents to criminal offend- - namely the liberation of women from tra-
ing (cf. Merton 1938; Sutherland, 1963 Becker ditional roles - they simultaneously became
1963; Quinney 1970; Adler & Adler 1975). exposed to the “crime-inducing frustrations
Without retelling the historical unfolding of and stresses of life that characterised the male
theories of female offending behaviour provid- experience for years, as well as to increased
ed by Klopper, it is important to understand opportunities to commit crime” (Shoemaker
Van Schaik
186 (Crubiishers
CHAPTER 9 CONTEMPORARY SOUTH AFRICAN PERSPECTIVES ON YOUNG FEMALE OFFENDING
1984: 225). There are a number of obvious con- 9.3 CRIME IN CONTEXT
cerns with this perspective. Firstly, even if legit-
Understanding crime in context means look-
imate opportunities have increased for girls
ing beyond specialised categories of offenders
and women, this does not necessarily result in
and requires some reflection on the broader
increased illegitimate opportunities. Secondly,
social and criminogenic factors that contribute
it implies that women have become emanci-
to criminal offending. This includes bringing
pated and see their status equal to that of men,
“official” crime rates, detention rates and gen-
engaging in criminal activities that have his-
eral socio-demographic data into the analysis
torically been attributed to the involvement of
of female youth offending. Many of these key
men. South African women, however, continue factors are addressed throughout this book,
to live in a remarkably inequitable context. including those that focus on “traditional”
The suggestion that women’s liberation results theoretical explanations, risk factors and the
in criminalisation is therefore a simplistic and prevention of criminal offending by youth.
injudicious understanding of “emancipation, its However, it is important to draw attention to
influence upon consciousness and social insti- prevalence rates and other empirical findings
tutions, and its location within and alongside in putting young female offending into context.
other social and historical developments” in
our understanding of female offending (Smart
1976: 76; Mann 1984). However, the notion that 9.3.1 Crime rates, crime reporting
increased opportunities equate to increased and imprisonment
criminal opportunities - and indeed an eager
Using South African crime rates as a starting
readiness to embrace these - has not quite
point, according to the South African Police
been dispelled in the criminal justice sector.
Service (SAPS) Annual Report of 2015/2016
Both classical and modern theories of
there were 18673 cases of murder in that
female juvenile delinquency (referred to
period of time, which equates to 51 murders
here as young female offending, and further
a day, a figure which is five times higher than
defined as female offenders under the age of
the global average. Among other forms of inter-
18 years) have also had a particularly parsi-
personal violence that were included in this
monious engagement with differential social
report were attempted murder (18 127 or 49,7
and cultural contexts and how these produce per day), sexual offences (51 895 or an aver-
different “norms and forms” for female offend- age of 142,2 per day), assault with the intent to
ing behaviour. We are now acutely aware that inflict grievous bodily harm (182 933 or 501 per
social context is critical. For instance, the day), and common assault (164 958 or 452 per
brutal social and economic conditions under day) (AfricaCheck, 2016). The 2016/2017 South
which many young South Africans live is qual- African crime statistics paint an even bleaker
itatively different from the conditions of pov- picture as most violent crimes again showed
erty that one might find in North America, for an upward trend. For example, the murder
example, and therefore our understanding of rate increased to 19 016 or 52 murders per day
the determinants of criminal behaviour are, in (EWN 2017). These data reflect inordinately
part, different to these contexts. Some of these high levels of crime and violence in the coun-
conditions and contexts will be addressed try and could —- to some degree of reliability -
in this chapter, but for now it is important to be used as a proxy for the analysis of rates of
highlight the importance of history, and of geo- female offending. However, the SAPS does not
political and social contexts, when referring to, disaggregate their data in a way that gener-
engaging with and importing theoretical frame- ates data on how many of these offences were
works about young offenders from contexts committed by, or indeed against, women and
that are different from South Africa's (or those female children under the age of 18 years. They
of other contexts in the “global South”). This also do not disaggregate data based on popu-
requires a certain consciousness of the every- lation groups. The most recent and accessible
day realities of South African youth and the data at the time of writing (Muntingh & Ballard
choices they make - or are forced to make - on 2012) found that 75 453 children were charged
the basis of these realities. by the police from April 2010 to March 2011.
even Schaik
Publishers) 187
International and local incarceration rates which women are most likely to be sentenced
can also be used in building part of the pic- comes from their 2013/14 Annual Report (the
ture of young female offending, but these must 2015/16 report does not contain this break-
also be used with some caution. Incarceration down), which states that most crimes com-
rates do not capture the profile of young girls mitted by women were “economically related”
“at risk” of offending or those who have not (45%) - though this term is not defined any-
come into contact with the legal system as a where — with “aggressive crimes” being the sec-
result of offending. They also exclude those ond most prevalent type of offence for which
who have come into contact with the criminal women are incarcerated (38%).
justice system, but have been diverted from Young offenders in South African prisons
it through formal youth justice processes, constitute 0,2% of the prison population of
or those who have been arrested but whose 161 984 (including pretrial detainees). The
charges have been dropped during the inves- 2015/16 Annual Report of DCS reports on child
tigation or prosecution stages of the criminal and youth detention by separating this popu-
justice process. They also say very little about lation into three categories: “children” who
the factors that contribute to offending. It is are under 18 years of age; “juveniles” who are
still, however, worth putting the available between 18 and 20 years of age; and “youth
female youth incarceration rates that we do and adults” who are 21 years of age and older.
have into perspective. According to the lat- According to this report, there were three
est edition of the World Prison Population female and 184 male sentenced child offenders
List (WPPL), an annual review researched in South African prisons. During the same peri-
and compiled by Walmsley (2016), more than od, there were 103 female and 4 023 male sen-
10,35 million people are held in penal institu- tenced juvenile offenders in prison and with
tions throughout the world. The WPPL goes respect to youth and adult offenders, 2946
on to report the world prison population rate, were female and 109692 males. There is no
based on UN estimates of national population data available on how many children and juve-
levels, as 144 per 100000, with the median niles are awaiting trial in correctional services
rate for southern African countries at 188 per facilities at this time.
100 000. It further reports that since the year However, in 2012 Muntingh and Ballard
2000, the world prison population total has reported on the conditions of children in prison
grown by almost 20%. The total female prison in South Africa, where they found that juve-
population —- and it is not clear whether this niles were detained for an average of 120 days
includes young people under 18 years of age — awaiting trial (and 294 days once sentenced).
has increased by a staggering 50% since 2000, They reported a general lack of services avail-
while the equivalent figure for the male prison able to such children, including educational,
population is 18%. The rate of incarceration in social work, therapeutic, developmental and
Africa is reported to have increased by 22,6% recreational activities, and that 85% of prison
during this same period. A separate World officials working in these facilities had no spe-
Female Imprisonment List (Walmsley 2015) cific training in working with children. Of par-
shows that 700 000 women and girls are held in ticular concern is that “children of compulsory
penal institutions throughout the world, either school-going age in awaiting trial facilities are
as pre-trial detainees/remand prisoners or hav- excluded from educational programmes and
ing been convicted and sentenced. that conditions of detention are wanting in
In South Africa, according to the South Afri- many regards in several facilities surveyed
can Department of Correctional Services (DCS) due to limited infrastructure overcrowding
Annual Report of 2015/16, of the 161 984 offend- and ‘staff shortages’ (Muntingh & Ballard
ers in South African prisons, 4 193 are women, 2012: 3). Of child prisoners, 39% had reported
which is a 5% increase from the previous year not receiving visits for three months and there
(n = 3915) and an 18% increase from three were no obvious steps taken by prison officials
years earlier (n = 3 380 in 2012/13). This clearly to ensure that children remain in contact with
indicates that custodial sentencing of women is families.
on the increase. The last available and public- There are also children and youth at risk
ly accessible data from DCS on the offences for within child and youth care centres (CYCTs)
188
across the country. UNICEF (2017) reporting offending: (i) living conditions and poverty;
ed that statistics on children in institution- (ii) morbidity and mortality; and (iii) victimis-
al care were not complete and transparent. ation and perpetration of crime. Starting with
However, they accepted that there are 345 reg- living conditions and poverty, StatsSA reported
istered children's homes in South Africa that that approximately one-fifth of South African
care for approximately 21 000 children. These youth live in traditional or informal dwellings,
facilities are regulated under Children’s Act 38 with one in 10 living with six or more people in
of 2005, which established a system of special- one-bedroom households. Over half of South
ised alternative childcare programmes for chil- African youth are unemployed. In terms of
dren and youth, including those considered youth morbidity and mortality, StatsSA report-
“at risk”. Chapter 9 (Part 1, s 150) of the Act ed that youth made up 16,4% of all recorded
defines children in need of care and protection deaths in 2014, with the two leading causes
as children who are: being “certain infectious and parasitic diseas-
e abandoned or orphaned without visible es” (e.g. TB, intestinal infectious diseases, HIV,
means of support;
viral diseases) and “external causes of mor-
bidity and mortality” (i.e. unnatural death, for
e displaying uncontrollable behaviour;
example car accidents, murder). Male youths
e living or working on the streets and begging mainly died due to the latter, and female youth
for a living: from the former. The South African Demograph-
e addicted to substances and unable to ic and Health Survey (2016) also reports that
access treatment;
over one-quarter of men (28%) exhibit
¢ exploited or potentially exposed to exploita-
risky drinking behaviour ... and one in
tion;
six men (16%) reported signs of problem
e living in or exposed to circumstances that drinking [and for women] risky drinking
may seriously harm the physical, mental or
was most common in the 20-24 year age
social well-being of the child; group (9%) and lowest among women age
¢ mentally or physically neglected; and 15-19 and 65 and older (2% each) (Statis-
¢ being maltreated, abused, deliberately tics South Africa 2016: 39).
neglected or degraded by a parent, care-
giver or other person in control of the child. With regard to victimisation and perpetration,
StatsSA reported that youth aged between
What these data show is that while young 16 and 34 years were more likely than adults
women are a relatively small part of the bigger to be the victims and perpetrators of assault,
“crime picture” in South Africa, they are also robbery and property theft. Younger youth
remarkably overlooked by prison population between the ages of 16 and 24 years were
and penal researchers, as well as by the cor- recorded as being more likely to be victims of
rectional services system. assault and property theft, while those experi-
encing robbery were likely to be older (25-34
years). Over 16% were involved in committing
9.3.2 The socio-demographic context assault. These data were not disaggregated by
Also of considerable relevance in establishing gender.
the context of youth offending are the socio- These conditions are critical to understand-
demographic conditions within which young ing offending. Household and family life, crime
female offenders, and youth in general, live. and violence exposure, early offending, and
Statistics South Africa (StatsSA) (2015) pub- health and mental health issues all play some
lished The Vulnerable Groups Series in which role in a young person’s sense of safety, their
they reported on the social profile of South perceived victimisation risk and the way in
African youth (2009-2014). “Youth” in this which they navigate their spaces to combat
series is defined as those over 16 and under risk. The range of risk factors for young people
35 years of age. There are three key indicators is as long as it is varied, but prevalence and
that inform social context in our analysis of incidence research on South African children’s
conditions that may be relevant to understand- exposure to violence is beginning to provide
Schaik
Ondishes) 189
more local “substance” to what international of 2007. Some key findings from the Optimus
studies — and indeed local population-specific Study (Artz et al. 2016) follow:
qualitative studies - have carefully explored.
The combination of international and local ¢ Ofthe young people interviewed in schools,
evidence on the antecedents, impact and 35,4% of young people (one in every three)
nature of crime and violence by and against had experienced some form of sexual abuse
young South Africans takes us one step further at some point in their lives. This is equiv-
towards prevention. An example of a national alent to filling up Johannesburg’s Soccer
prevalence study on children’s exposure City Stadium eight times over and the Cape
to and experiences of violence is described Town Stadium 14 times over.
below. ¢ The differences between males’ and females’
reported rates of abuse were not as stark as
anticipated. Findings from the school sur-
9.3.3 Violence exposure as an
vey found that boys (36,8%) were slightly
antecedent to offending? more likely than girls (33,9%) to report some
Conditions of poverty, mortality and general form of sexual abuse. Boys and girls report-
victimisation not only provide the social con- ed their first incident of sexual abuse to be,
text in which offending occurs, but may also on average, at the age of 14 (girls) and 15
reinforce (or even challenge) existing theoret- (boys), but the age of first exposure to sexu-
ical perspectives on young offenders. There al abuse in this population was from the age
is also more specific context-setting data on of one year.
youth and violence exposure to consider. In
¢ However, girls were more likely to experi-
light of the staggering rates of sexual offences
ence forced and penetrative sexual abuse,
against children in South Africa, data on those
and other forms that involve contact with
who have experienced sexual offences and
the abuser (contact abuse), and boys were
other forms of violence and maltreatment will
more likely to report forced exposure to
be presented here. A study published by Artz,
sexual acts and material (non-contact)
Ward, Burton, Leoschut & Kassanjee (2016) -
abuse.
known as the Optimus Study on child abuse, vio-
lence and neglect in South Africa - interviewed ¢ The lifetime prevalence data in this study
9717 children between the ages of 15 and 17 found that the sexual abuse experienced by
years. Of these, 5631 were interviewed in a one in five young people was by a known
household survey and 4086 in a school set- adult, and had occurred more than once.
ting. There were a number of key findings that One in 10 had experienced this abuse/sexual
expose both the prevalence and nature of victi- contact four or more times. Half of young
misation of youth in South Africa. This national people who experienced sexual abuse by
prevalence study has challenged existing evi- another child or adolescent reported that
dence on the vulnerability and risks of young this had occurred more than once. One-
people to violence, particularly in terms of vio- fifth of young people who had been sexually
lence exposure differentiated by gender. When abused had experienced some form of sexual
asking youth about exposure to sexual abuse harassment four or more times.
or maltreatment, the researchers asked wheth-
¢ In four out of five cases involving adults, the
er adolescents had been exposed to the fol-
incidents involved sexual penetration. Girls
lowing: (i) coerced (unwanted or by force) and
were more likely to have experienced use of
consensual sexual touching; (ii) exposure to
force (57,7%) than boys (11,5%), and weap-
intimate body parts or pornographic images;
ons were used in 39% of cases involving
(iii) sexual harassment; and (iv) penetrative
girls.
and non-penetrative sexual intercourse (actual
or attempted), all by either an adult or similarly ¢ Other forms of lifetime victimisation report-
aged peers. This definition was based on the ed by youth in this study include child
legal framework on sexual offences as defined neglect (12.2%); physical abuse (34,8%);
in South Africa’s Criminal Law (Sexual Offenc- emotional abuse (16,1%) and exposure to
es and Related Matters) Amendment Act 32 family violence (31,4%).
Van Schalk
190 ©pubiishers
These data are nationally representative. They of their attempts to resist or escape abusive
are also a stark reminder of the conditions in households. Jefthas and Artz (2007: 49) pro-
which children live, and a reminder of the fac- vide further context to the role and impacts of
tors which may precipitate offending and other sexual violence on young women’s lives:
high-risk behaviours. This also highlights the
Sexual violence has become a particu-
hazy margins of victimisation and offending
larly common feature of relationships
- what some refer to as a cycle of violence.
among young people. Studies show that
The Optimus Study (Artz et al. 2016) also rein-
in certain communities the heterosexu-
forced the often unseen impact or ignored
al relationships of young people are fre-
effects of sexual abuse and maltreatment that
quently characterised by the male partner
may lead to physical, social and behavioural
controlling sexual activity and the female
issues, including problems with schoolwork
partner being physically forced or bullied
(20,4% in cases of abuse by an unknown adult);
into sex. This sexual violence is influenced
injuries (29,9% in cases of abuse by a known
by the societal attitudes toward women
adult); high-risk sexual behaviour (37,4%,
and girls. Such attitudes include the belief
compared with 9,9% of children who had not
among young men that women are respon-
been abused); and risky substance use (43,2%,
sible for causing sexual violence, that they
compared with 17,8% of children who had not
ask for it and that they in fact enjoy being
been abused). The findings also found key risk
raped. In one research study, nearly 50%
factors, including sleeping density (10% higher
of male youth interviewed believed that a
risk for sexual abuse); the hospitalisation of
girl meant “yes” when she in fact said “no”
parents (1,5 to 2,0 times higher risk than those
to sex. In other research, nearly a third of
who ‘had not experienced abuse): parents
both young men and young women said
using drugs or alcohol (2,2 to 3,4 times higher
that they did not consider forcing sex on
risk); and young people with disabilities (1,5 to
someone to constitute sexual violence. In
2,1 times higher risk).
many cases, young men consider aggres-
While the prevalence rates of exposure are
sion not only as a normal part of dating
clearly high for both girls and boys, the dis-
but also as a means of showing their love
tinction between the types of abuse they are
for their partner. However, while many
exposed to (contact vs non-contact abuse) is
young women also interpret their part-
important to consider. This is why a “gendered
ner’s aggression as a way of showing their
perspective” is necessary. It acknowledges
love, young women are more likely to feel
that manifestations of violence are inevitably
that violence shows their partner does not
gendered in terms of who commits acts of vio-
love them.
lence and who is victimised, what type of vio-
lence is perpetrated, under what conditions
the violence occurs, and the degree of force 9.4 RETHINKING YOUNG FEMALE
that is used, as well as the underlying reasons
OFFENDERS AND OFFENDING
for the violence (Jefthas & Artz 2007). Yet few
studies have really interrogated how violence
BEHAVIOUR
features in the everyday consciousness of In the 1970s and 1980s, radical, critical and
young women or how it might be mobilised feminist criminologists began to challenge
in their everyday lives (Burman, Batchelor & criminology’s exclusion of women as sub-
Brown 2001). For example, Jefthas and Artz jects of research and theory, and forced a
(2007) maintain that girls exposed to abusive more thorough analysis of crime and victim-
domestic environments are likely to develop isation that saw women as more than “unfor-
“unique tactics of self-preservation”, such as tunate victims” of male crime. However, as
leaving home for other equally disruptive and has been argued previously there is a paucity
dangerous contexts, making them further vul- of research aimed at understanding the rea-
nerable to criminal exploitation. Herrera and sons why women engage in criminal offending
McCloskey (2001) have taken this further, sug- and the historical factors that influence their
gesting that young women’s subsequent delin- offending behaviour. Artz (2013: 154-155) has
quent behaviours could be an actual product previously argued that
Onbisnes) 191
the shortage of any detailed theoreti- to commit violent crime than women (CSVR
cal (or deeply empirical) analyses about 2008); (iv) the nature of men’s and women’s
incarcerated women means that our risk of victimisation is also different, with
understanding of the etiology of female women being more likely to be victims of
crime is largely based on either theoreti- violent offences committed by an intimate/
cal frameworks developed for understand- domestic partner and men being more likely
ing men’s offending or on an assortment to be victims of a violent offence by someone
of discipline-specific, pre-determined they are acquainted with or who is unknown
small scale studies on women’s offending to them (Russell & Van de Ven 1990); (v) while
in varied contexts. Although we can piece the impact of childhood victimisation on adult
together these disparate works to build offending is complex, there is evidence to sug-
theory on women’s offending, criminology gest that men are more likely to respond to
has yet to develop a cogent analysis about childhood victimisation by externalising these
women and crime. And women do offend, experiences (i.e. by hurting others), while
only differently and for different reasons. women are more likely to respond in ways that
internalise these experiences, like self-harm
The literature on both young and adult female or behaviour that puts them at risk of further
offenders is still relatively sparse and small in victimisation (Brewin, Andrews & Rose 2005;
scale. It is also discipline specific. This means Broidy & Agnew 1997); (vi) while men general-
that the empirical, theoretical and policy-level ly suffer more victimisation overall during the
advances in this field often remain within the course of a lifetime, women suffer more sexual
domains of disciplines from which they derive assault victimisation (Finkelhor 2007); and (vii)
(psychology, social work, criminology), sel- men and women have very different experienc-
dom traversing these disciplines to inform es of imprisonment and are subject to different
a broader and more cogent body of work on (highly “gendered”) regimes of imprisonment
the pathways that lead to female offending. (Artz 2017: 151).
Criminology itself - as an interconnected field The literature on women and crime is begin-
of innumerable social science disciplines and ning to recognise that women offend and victi-
practices - has yet to produce a meta-analysis mise differently, that their pathways to crime
on women and crime across similarly situated are often explained by a different set of expe-
contexts. The advancement of “women and riences (of early childhood sexual victimisa-
crime theory” is further hindered by the lack tion, for instance) and that the nature of their
of common research questions and intentions, offences are simply different. Because women
divergent methodological approaches, the use engage in and respond to crime in different
of different study populations and institutional ways, our efforts to reform, rehabilitate and
spaces, as well as an overall absence of a more incarcerate them must be based a different set
universal “project” to build theory and to allow of principles and assumptions than those pro-
comparative analysis. duced to address male offenders. In South Afri-
Artz (2013) has argued that there are very ca, small, largely qualitative studies are begin-
few things that contemporary criminology ning to develop a picture of women in prison,
agrees on in terms of women and crime other their pathways to imprisonment, and their
than: (i) criminology has historically devel- experiences within and after prison (Africa
oped theories about men’s offending (Flavin 2015; Artz, Hoffman-Wanderer & Moult 2012;
& Artz, 2014; Chernoff & Simon, 2000); (ii) Luyt & Du Preez 2010; Haffejee et al. 2005).
both theoretical and empirical criminology Together these studies reveal the complex
struggle to escape the biological framework lives of women in prison. Luyt and Du Preez
that defines gender by continuing to speak of (2010) and Artz et al. (2012) found that the
and define men and women by their biological average South African female offender is in her
traits in binary terms, such as man/woman or mid-to-late thirties; is most likely to be single
boy/girl; (iii) men and women may commit sim- or divorced; has children (78% in Luyt and Du
ilar crimes, but women are much less likely to Preez; 75% in Artz et al.); is very unlikely to
commit sexual offences than men (Shechory, have completed secondary school (30% in Luyt
Perry & Addad 2011) and men are more likely and Du Preez, and 9% in Artz et al. matriculat-
192 (Onsite)
ed); had their first child between the age of 16 their childhood (62%), with several being sex-
and 19 years; and were incarcerated for the ually assaulted by different men over this time
first time at the time these studies were under- (31%). These factors, in one way or another,
taken (57% in Luyt & Du Preez; 74% in Artz et contributed to poor decision-making abilities
al.). South African women prisoners are also and coping strategies, and participating in high-
much less likely than men to be serial offend- risk behaviours and activities.
ers or recidivists, and their age of first convic-
tion is about 10 years older than that of men.
Forty-seven per cent reported having had, or 9.5 FINAL REFLECTIONS ON
as having, a male member of the family in pris- YOUTH, GENDER AND RISK
on, of which male siblings constituted a third The life histories of women in prison, their
of these incarcerations (28%). Just over a quar- pathways to crime and their prison experi-
ter (27%) had a “few friends” with previous ences are in some respects particularly “gen-
incarcerations (Artz in press). dered”, yet we are only starting to get to grips
While women are indeed incarcerated for with what this means in terms of women’s
serious violent offences - over one-third of gender-based offending and victimisation. We
South African women are incarcerated in South know from research on male young offend-
African prisons for offences such as murder - ers, as well as from other general “crime and
these offences are often a result of a long and violence” research, that there is a hazy mar-
brutal history of domestic and sexual violence: gin between victimisation and offending: that
disrupted and violent families: absent or tran- those that offend have often been victims of
sient fathers; the death of a significant care- physical or sexual abuse, or other forms of
giver; and having caregiving responsibilities at maltreatment. We are also aware that our
an early age (Artz et al. 2012). Many had expe- knowledge about the cycle of victimisation/
rienced a major traumatic event such as the criminalisation has yet to be fully interrogat-
death of a family member, the loss of a child, ed. The analysis above, however, also illus-
or sexual assault. Almost half of women in pris- trates that this cycle is often experienced and
on had lived with their parents at some point manifested differently for boys/men than it is
during their childhood, although many had for girls/women. Also, it appears that women
been raised for large periods of time by extend- “offend” differently. For instance, in their
ed family, which causes uncertainty and often pathways study on women in prison, Artz et
leads to poor choices at an early age, including al. (2012) found that, in comparison to men,
substance abuse. Relationships with mothers women are less likely to be “serial” or chronic
were characterised by emotional or physical offenders, that many women in prison are first-
unavailability, abandonment, what incarcer- time offenders, and that the age of first con-
ated women perceived were “selfish choices” viction for women is much higher than that of
by their mothers, or by other difficult circum- men: 33% between 18 and 29 years of age; 31%
stances such as poverty. Artz et al. (2012) fur- between 30 and 39 years of age; 23% between
ther report that almost 30% of the women’s 40 and 49 years of age; and 13% over 50 years
fathers passed away in their childhood, anoth- of age. Many are first-time offenders (or at
er third of women reported having no relation- least first-time detainees). Though there is lit-
ship with their living fathers, and a final 20% tle empirical evidence to draw from, inferring
described fathers and stepfathers that were from prison statistics young men’s average age
in and out of their lives. Artz et al. (2012) also of first conviction appears to be between 16
found it unsurprising — given the national prev- and 18 years of age.
alence data on child abuse - that 28% had expe- There is another distinguishing feature of
rienced some form of sexual abuse over their women's offending that is worth exploring fur-
lifetime, and 38% had experienced childhood ther. While young men tend to be “primary”
physical abuse. The average age of victimisa- offenders (acting alone) or “co-offenders”
tion by sexual assault and/or rape was seven (acting with others), the findings from Artz
years of age, with the earliest age of victimisa- et al. (2012) and Artz (in press) seem to indi-
tion being three years of age. Many were sex- cate that women are less likely to be “primary”
ually assaulted over a period of time during offenders and more likely to co-offend. Howev-
©@vn Schaik
Publishers) 193
er, based on the narratives of women in pris- ¢ Passive offending/acting. This occurs when
on, this co-offending - which typically would someone is complicit in an offence not by
involve engaging wilfully and directly in offend- committing it but by doing nothing to pre-
ing — could be further broken down into other vent it, for instance when a mother sus-
forms of offending better reflected when a pects her child is being sexually abused by
“gendered” analysis is applied. These include her new male partner but does not inquire,
the following: investigate or report it in an attempt to pre-
vent him from leaving her.
Subordinate offending. This is where women
are “compelled” to commit crime by another
The concepts proposed here — particularly the
person, such as an intimate partner or fam-
above “rethinking” of how women offend dif-
ily member, for instance participating in
ferently through subordinate, derivative and
gang activity or in fraudulent financial activ-
passive offending - are still being considered
ities under threat by an intimate partner or
and interrogated in more depth. They are also
family member.
based on evidence from emerging research on
Derivative offending. This occurs when female offending in South Africa. Findings from
those who do not engage directly in offend- research “evidences” new theories, and from
ing, but by association or extension enjoy these we can begin to test the veracity of these
the benefits of the offending behaviour of claims in different contexts. The above example
a primary offender. In other words, they of a new “offending framework” could be tested
do not engage in any offences, but are com- with young women at risk or adult women in
plicit in someone else’s offending activi- prison. It is the emergence of these new models
ties through reward or compensation, for - which take into account all of the dimensions
instance being the partner of someone who and contexts of offending set out here — that
deals in drugs. The female knows this is an gives substance to the development of progres-
offence but she stays silent as she chooses sive, evidence-based, uniquely South African
to enjoy the income that the drug dealing perspectives on young female offending.
generates.
CRITICAL QUESTIONS
What key socio-demographic factors should be considered when theorising about young offenders and
—_
offending?
What, in terms of personal and social contexts, might make female adolescents more vulnerable to
~~
criminal offending?
What differentiates female criminal offending from male criminal offending?
oS
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196 (Oxi
SECTION B
Youth in contact with
criminal justice
OBJECTIVES KEYWORDS
You should be able to primary prevention
+ distinguish between primary, secondary and tertiary prevention secondary prevention
* give an exposition of the role of the family in the prevention of youth "tertiary prevention
misbehaviour
* critically appraise the role that mentors, the media, the police and the
government can play in the prevention of youth misbehaviour
* critically discuss school programmes that are implemented in South Africa
to address and prevent youth misbehaviour, crime and violence
* give an overview of tertiary prevention with youths who have already
committed crime.
10.1 INTRODUCTION as a hostile place (Bezuidenhout 2013: 5). In

some instances, their normal development is
In all societies, the population grouping with hampered by multiple risk factors that often
the greatest investment in the future is the accumulate, reinforce and interact with one
youth. Crime prevention therefore best begins another to produce risk behaviour and miscon-
with children and young people. The youth in duct, especially in the absence of protective
South Africa, however, have grown up in a cul- factors such as positive role models and nur-
ture of violence and they often view the world turing family life (Maree 2013: 69).
1 Acknowledgement is hereby given to Linda Davis for the incorporation of some of the elements from the previous
edition of this text.
Orn scat
Schaik 1 9 9
SECTION B YOUTH IN CONTACT WITH CRIMINAL JUSTICE
When taking the interrelatedness of the De Wet 2003: 3), as does the lack of positive
causes of crime and the implementation of role models to counteract and buffer the
preventative interventions into account, it is negative effects of their milieu. The absence
clear that this chapter would not be complete of positive role models combined with
without a brief exposition of the risk factors community disorganisation that is charac-
giving rise to youth misbehaviour. However, terised by aspects such as inadequate pro-
the main focus of this chapter is the primary, vision of shelter and housing, a high rate
secondary and tertiary prevention of youth of crime and violence, and a lack of social
misbehaviour aimed at alleviating the chances services can give rise to higher levels of vio-
of these youths becoming adult offenders. Var- lence and crime (Maree 2013: 72; McClinton
ious examples are given of primary, secondary
2004: 28)
and tertiary risk-focused misbehaviour preven-
tion projects and programmes that have been e Marginalisation of the youth. Many margin-
implemented in South Africa. These interven- alised youths often find the acceptance they
tions are aimed either at young people who desire within the structure of street gangs
have the potential to come into conflict with (Desai 2004: 21; Maree 2013: 84).
the law, or at youths who have already done so.
¢ Deviant role models and peer group influ-
ence. Even though a peer group can provide
10.2 RISK FACTORS a sense of belonging to young people, a peer
group can also initiate or reinforce existing
As highlighted in previous chapters (see Chap-
criminal or disruptive behaviour (Harris
ter 4), various risk factors are associated
2009: 54)
with youth misbehaviour in South Africa, for
example: ¢ Individual characteristics, such as alcohol
¢ Emotional poverty or being deprived of the and drug abuse (Mulvey, Schubert & Chas-
affection normally associated with being sin 2010: 6)
fed, clothed and cared for. A child deprived ¢ Negative school experiences such as bul-
of having his or her emotional needs met lying (Booyens, Beukman & Bezuidenhout
through rejection, oppression, abandon- 2013: 48; Nairn 2013: 34; Roper 2002: 68)
ment and/or abuse often experiences feel-
ings of shame, fear, anger and hurt that can Against this background, it is clear that South
lead to aggressive and violent behaviour Africa faces formidable challenges in address-
(Liese & Bezuidenhout 2013: 100) ing youth misbehaviour, crime and violence. It
e¢ Incomplete families, family dysfunction, lack is generally accepted that monothematic pre-
of parental supervision, erratic and harsh vention programmes (treating only family or
disciplinary methods, domestic violence, school risk factors, and ignoring the interrelat-
parental involvement in criminal behaviour, ed nature of all the above-mentioned ones) are
and an erosion of traditional values (Haines an insufficient approach to the prevention and
& Case 2005: 69; Maree 2013: 76) control of youth misbehaviour (Zinn 2011: 175).
Thus a comprehensive approach that is
¢ The weakening of community support sys- aimed at building and/or improving the links
tems and the absence of or the decline between the family, the school and the com-
in community interaction through cultur- munity at a primary, secondary and tertiary
al, sport and social activities (Roelofse level is necessary to address the problem of
2011: 361)
youth misbehaviour and violence in the coun-
¢ Socioeconomic factors such as poverty, try.
overcrowded areas and a community where
there is a lack of opportunities to develop
acceptable pro-social behaviour. These all
10.3 INTERNATIONAL BACKDROP
increase the risk of aggressive tendencies in South Africa’s ratification of international dec-
youths (Maree 2013: 76; McClinton 2004: 27; larations and conventions places a responsibil-
200
CHAPTER 10 THE PREVENTION AND CONTROL OF YOUTH MISBEHAVIOUR IN SOUTH AFRICA
ity on the state to fulfil the obligations placed deprivation of liberty should be imposed
on it by those instruments. Although all these only after careful consideration, for a mini-
instruments (such as the United Nations Con- mum period, and only for serious offences.
ventions on the Rights of the Child) cannot It also emphasises the continued special-
be discussed in detail in this chapter, several ised training of both personnel and police
of the fundamental principles of the United officers dealing with juvenile cases. While
Nations Guidelines for the Prevention of Juve- juveniles undergo institutional treatment,
nile Delinquency and the United Nations Stan- appropriate educational services and care
dard Minimum Rules for the Administration should also be made available to assist
of Juvenile Justice have been incorporated in them in their return to society. According
local youth crime prevention programmes. A to the Beijing Rules, release should be con-
brief summary of these guidelines is thus given sidered both on apprehension and at the
for background purposes: earliest possible occasion thereafter. In the
instances where a child must be detained
¢ The Draft United Nations Guidelines for the
due to the seriousness of his or her offence,
Prevention of Juvenile Delinquency (also
the United Nations Rules for the Protection
known as the Riyadh Guidelines) is a set of
of Juveniles Deprived of their Liberty, which
65 universally applicable principles intended
was adopted in 1990, applies (Gallinetti
to prevent youth misbehaviour at the
2009: 9).
pre-conflict stage (i.e. before young people
come into contact with the law). The Riyadh
Guidelines propose a social policy focusing 10.4 PRIMARY, SECONDARY AND
on the identification and modification of TERTIARY PREVENTION
social risk situations and their causes, These
guidelines deal with the three main environ- Primary prevention focuses on altering the
ments in the socialisation process (family, individual and the environment in a way that
school and community), the mass media, reduces the initial risk of offending. Secondary
social policy, legislation and juvenile justice prevention focuses on the early identification
administration. The guidelines emphasise of youths who are at risk of offending, and the
that general measures for curbing youth intervention necessary to prevent this. Ter-
misbehaviour have to consist of comprehen- tiary prevention deals with the treatment of
sive prevention plans at every governmental youths who have already committed crimes,
level. The prevention plans should include and is aimed at the prevention of recidivism
mechanisms of coordination between gov- (Frank 2006: 10).
ernmental and non-governmental agencies,
continuous monitoring and evaluation, com-
10.4.1 Primary prevention
munity involvement through a wide range
of services and programmes, interdisciplin- Primary prevention is proactive and relates to
ary cooperation, and youth participation in the steps that are taken to prevent youth mis-
the plans (United Nations Guidelines for the behaviour and crime before they occur. One
Prevention of Juvenile Delinquency - The of the most important measures for achieving
Riyadh Guidelines 1990). this is to provide opportunities to meet the
basic needs of the young (e.g. housing, educa-
¢ The United Nations Standard Minimum tion and health services).
Rules for the Administration of Juvenile According to the South African Constitution
Justice (also known as the Beijing Rules) of 1996, every child has the right to
is a set of minimum standards for handling
¢ family and parental care, or alternative care
juvenile offenders. It emphasises the rights
if removed from this environment
of juveniles who are in conflict with the
law, with diversion and institutionalisation e basic nutrition and shelter, and _ basic
being the last resort. It highlights the fair healthcare and social services
and humane treatment of juveniles in con- ¢ protection from maltreatment, neglect,
flict with the law, as well as the fact that abuse and/or degradation
Onbisnes) 201
¢ protection from exploitative labour practic- act responsibly. However, when the family
es becomes dysfunctional and discordant, chil-
¢ not work or provide services that are inap- dren often leave the home to spend more and
propriate for the child’s age or that place more time on the streets, which gradually
the child at risk. draws them into criminal associations.
As modern families often struggle to pro-
In terms of primary prevention, it is of the vide the nurture and support needed during
utmost importance that the resourcefulness childhood and adolescence, primary preven-
of young people should be promoted by pro- tion projects aimed at improving the ability of
viding opportunities for them to use and build families to rear and support children should
their own capacity and to extend their support be a priority. Where there are no or only neg-
networks in order for them to act in line with ative support networks, positive ones need to
their own choices and with a sense of respon- be created. In cases where both parents work
sibility. outside the home, adequate alternative super-
vision and care should be ensured, and par-
ents should be encouraged to use infant and
10.4.1.1 The role of the family as primary
child day-care facilities or afterschool care, for
socialising agent example (Maree 2013: 77).
Parents are the most important socialising Empowering parents by instructing them
agents in a child’s life, thus implying that on aspects such as basic care of infants, child
everything that happens in the family system development, the disciplinary needs of chil-
has a considerable influence on the future dren and conflict resolution would therefore
of the child. Primary prevention remains the seem to be one of the most basic preventative
primary responsibility of parents (Maree measures that can be implemented to prevent
2013: 75). . youth misbehaviour. Any form of parent effec-
The family unit is the most important insti- tiveness training as well as family skills training
tution for the education and socialisation of can be beneficial in strengthening the family
the child. The idea of “the family” conjures up structure and bonding process. It is impera-
an image of parents and children, as well as tive that parents are educated on how to take
domestic warmth and happiness. The father charge of their life, to accept the responsibil-
is the head of the household and his duty is ity of parenting and to be competent parents
to provide for and protect the family, while (Roelofse 2011: 361). This could be done by
the mother is the caregiver. This, however, is using brochures, educational sessions (such
not always the case and the context of family as workshops) and the media.
life is rapidly changing in the Western world. Furthermore, Roelofse (2011: 361) states
Fractured families, single-parent families and that parent training should be aimed at
child-headed families are very common in instructing parents on the demands and
South Africa and stand in stark contrast to the responsibilities associated with raising chil-
ideal image of “the family”. dren (i.e. how to set clear expectations for
High divorce and remarriage rates often their behaviour, monitor behaviour, reinforce
result in female-headed single-parent families positive behaviour, provide consequences
and/or step- or blended families. Because of of or sanctions for inappropriate behaviour,
economic and/or social factors, these fami- develop and use effective communication
lies are often unable to function as adequate skills, nurture children, and improve interac-
support systems (Maree 2013:76). Primary tion to promote their bonding within the fam-
socialisation is, therefore, to a large extent ily context). In addition, emphasis should be
shared with other social institutions such as placed on the importance of effective financial
schools. Emotional poverty, or the lack of love planning as well as aspects such as conflict
and affection is often the end result (Liese & resolution and how to treat juveniles who are
Bezuidenhout 2013; 100). in the puberty phase.
Adequate social support networks, which Children must also be taught moral, spir-
often instil a sense of belonging, enable itual and civic values, as a decline in these
children to accept responsibility and to can contribute to misbehaviour. In line with
Van Schaik
202 ©pubiishers
the South African government’s Moral Regen- itive role models. As peer group influences
eration Movement that is aimed at promoting are also strongly related to misbehaviour
human rights, ethical behaviour and the values (Harris 2009:54), mentorship programmes
enshrined in the Constitution of the country, that encourage friendships with more conven-
any opportunity to teach children positive val- tional peers can be viewed as a primary mea-
ues must be used (Moral Regeneration Move- sure for preventing youth misbehaviour and
ment, n.d.). crime. According to Liese and Bezuidenhout
According to Liese and Bezuidenhout (2013: 103), a positive relationship with an
(2013: 103), an effective proactive strategy for adult, either within or outside the immediate
preventing youth crime would be to offer pro- family (e.g. a mentor), is often a major con-
grammes aimed at reinforcing and internalis- tributing factor in preventing the possibility of
ing positive individual traits such as discipline, illegal behaviour of troubled children. Children
trustworthiness, self-respect, responsibility need to acquire resilience factors and this can
and good citizenship, as well as providing life often be achieved by the assistance of a men-
skills training (ie. training in the basic skills tor who assists the child in dire situations,
children need to become socially, ethically, shows them that they are loved and wanted,
emotionally, physically and cognitively compe- and that they are trusted by the adult mentor.
tent, such as the ability to manage anger and These factors as well as an academic motiva-
stress, to maintain good interpersonal relation- tion, an absence of substance use, religiosity
ships and to respect human rights). and a belief that teachers and the school will
Youth-at-risk programmes, such as the life treat them fairly often function as primary
skills camps offered by Conquest for Life, are resilience factors and a buffer against engag-
aimed at reinforcing and internalising posi- ing in undesirable behaviour (Bartol & Bartol
tive individual traits. Conquest for Life is a 2017: 189).
self-sustaining youth organisation that works Peer counselling and tutoring provided by
with more than 40000 youths per month. It the Big Brothers Big Sisters (BBBS) organisa-
was established in 1995 in Westbury, a town- tion serves as a good example of how negative
ship 8 km west of Johannesburg, and has peer group influences can be limited. The Big
since expanded and established branches in Brothers Big Sisters of America programme
Soweto, Ennerdale, Orange Farm, Platfontein was established in 1904. Mentors (big brothers
in the Northern Cape and Mautse/Rosendal and sisters) are selected carefully. An intensive
in the Free State. Some of their programmes interview is usually conducted before these
include afterschool programmes, mentorship mentors undergo a strict training session on
programmes, workshops for parents, a job-cre- aspects such as how to develop a relationship
ation project, computer training, and pro- with a child, communication, listening skills,
grammes aimed at young mothers. They also self-esteem and sexuality. This in turn leads to
host a youth enrichment holiday programme an improvement in the children’s self-esteem,
that focusses on life skills and is presented feelings of self-worth, ability to trust and com-
during school recesses. This programme aims munication skills, as well as academic perfor-
to target youth in the community who are mance. In addition, the children’s participa-
at risk of becoming involved in gangsterism tion in risky activities, as well as the number
and drug abuse. Some of the focuses of these of times they are involved in fights, tend to
camps are diversity, communication, goal set- decrease (Big Brothers Big Sisters 2016).
ting, job preparation and conflict resolution
(Conquest for Life 2017).
10.4.1.3 The role of the school in the
primary prevention of youth
10.4.1.2 The role of mentors in the misbehaviour
prevention of youth misbehaviour School management, teachers and structural
The increase in the number of single-parent factors such as the size of the school play a
and child-headed households, as well as the significant role in the primary prevention of
increased demands of parents’ careers (Maree youth misbehaviour and crime. Owing to their
2013: 76) have led to many youths lacking pos- contact with the youth, teachers can be seen
Van Schaik
©publishers 203
as important socialising agents of young peo- This song also received a SAMA award, and
ple. They are in an ideal position to identify the proceeds from downloads went towards
problems (such as school absence, truancy, the SHOUT Trust crime prevention campaign.
rejection of authority, disobedience, dishon- In 2015, a new track was released entitled
esty, temper tantrums, rebelliousness and “Smile”, also performed by some of South Afri-
uncontrollability) and to make predictions ca’s most prominent musicians and celebri-
with regard to the youth’s future behaviour ties all collaborating for a safer South Africa.
(Lab 2010: 250). The role of education and the The proceeds of this song were channelled
school in the secondary prevention of youth towards the building of libraries in primary
misbehaviour and violence will be elaborated schools throughout South Africa. The founder
on in section 10.4.2.1. members of SHOUT are of the opinion that if
one addresses illiteracy, children will be better
equipped to live a crime-free life. This is a good
10.4.1.4 The role of the media in education example of how the media and artists in South
A variety of studies has examined the impact Africa are campaigning for the fight against
of the media on crime. Most of these studies crime (SHOUT 2015).
show that the mass media have a tendency to Another prominent example of how the
focus on crime-related issues (Jewkes 2015: 6). media can be used to discourage crime is the
The media can, however, also be used to programme Soul City, an innovative and dynamic
address crime, and specifically youth misbe- social change and multimedia health promo-
haviour. They can become involved in crime tion project. Drama and entertainment have
prevention in various ways, for example by been used to reach more than 16 million South
educating the community and children about Africans. Soul City has also been broadcast in
crimes and the prevention thereof, as educa- different countries in Africa, as well as in Latin
tion is one of the best ways to prevent crime America, the Caribbean and Southeast Asia. The
in the community at a primary level (Carli programme is set in the fictional Soul City town-
2008: 10). ship and is directed at individuals, the commu-
Over 100 South African artists are part nity and the socio-political environment. Each
of a movement campaigning against crime. series includes 13 half-hour prime-time televi-
In 2010 the SHOUT Trust - a campaign for a sion episodes, a daily radio drama comprising
safer South Africa - was launched by the art- 45 15-minute episodes, as well as three full-co-
ists Danny K and Kabelo Mabalane. SHOUT is a lour booklets. The television series was broad-
crime fighting non-profit organisation. This ini- cast on SABC1, and the radio episodes featured
tiative was a reaction to the murder of the reg- on all nine SABC regional radio stations (in nine
gae singer Lucky Dube in 2007, as well as to the of South Africa’s 11 official languages).
general crime surge in South Africa. Danny K The radio episodes were also broadcast on
felt that the musicians of South Africa should many community radio stations. The booklets
speak out on behalf of “an almost voiceless were inserted into newspapers throughout
nation”. Their first song was the 1984 Tears South Africa and also distributed at clinics,
for Fears hit, “Shout”. It became the biggest community-based organisations, businesses
full track download in South African music his- and educational facilities. At least three mil-
tory and as a result received a South African lion booklets were distributed per series. The
Music Award (SAMA) as recognition in 2010. first season of this series was broadcast in
Subsequently more than 100 artists as well as 1994, and related only to health issues. Only in
the Drakensberg Boys Choir sang together in 1997 did the producers start to focus on crime
a music video featuring the song “You're the issues and violence. The fourth season, aired
voice” in 2012. Some of the lyrics of this song in 1999, included episodes on the impact of
are as follows: “We have the chance to turn violence against women and how this can be
the pages over”; “How long can we look at prevented. Season five was broadcast in 2001
each other down the barrel of a gun?”. One of and included episodes focusing on rape. Soul
the themes of the video is a spark that turns City's Phuza Wize campaign was launched in
into a flame, which symbolises a fire of positiv- 2010, which focused on preventing alcohol-
ity that should burn throughout South Africa. induced violence. The most recent series was
204 (Omsiter)
season 12, which was broadcast in 2014 and The SAPS coordinates a programme called
included footage of Thuthuzela rape care cen- Adopt-A-Cop. The schools that are included
tres and the services that they provide for sur- in this programme each receive the service of
vivors of sexual violence (Soul City 2016). two police officers (a detective and an officer
The media can also be used to address who is responsible for visible policing). Both of
problems in a specific area through newslet- these police officers liaise with the school and
ters and the local press. Information regarding visit schools with the aim of reviving school
crime hotspots, the types of crime committed safety forums and encouraging children to
in a particular area, the types of victims that report crime. In addition, they provide infor-
are at risk, and preventative measures can be mation sessions focusing on aspects such as
provided. Community education programmes safety precautions, bullying, gangsterism and
(such as awareness-raising and advocacy drug abuse (Van Zyl 2016).
campaigns in the form of lectures in schools,
preschools and community groups) and work-
shops on issues pertaining to young people
10.4.1.6 The role of the government and
and their needs could be advertised. society in social upliftment
Crime-related information like that men- Community-wide social upliftment — pro-
tioned above can reduce people’s fear of grammes focus on structural problems such
crime, enable members of the community and as the lack of adequate housing, education and
children to help themselves, educate them on employment opportunities, which often under-
how they may unconsciously be contributing pin the formation of a deviant youth culture.
to a problem in their area, and raise awareness These programmes are an important strategy
among the youth about the seriousness of a for preventing youth misbehaviour and crime
specific problem such as substance abuse. In at a primary level. The National Crime Pre-
addition, the involvement of the youth in crime vention Strategy (NCPS) drafted during 1996
prevention can be improved, uncertainties recognised some of these complexities, and
with regard to legislation cleared up and sup- targeted the socioeconomic situation in South
port for a specific prevention project elicited Africa as one of the main areas of concern.
(Carli 2008: 5). The media can also be used to Even though certain complexities and social
encourage the youth to report crime through ills were identified in the NCPS (such as inad-
the marketing of information lines or toll-free equate coordination, lack of knowledge on
numbers such as 08600 10111. the role and responsibility of the various role
players, and the inappropriate use of funding)
10.4.1.5 The role of the police in primary and certain programmes for addressing these
problems were envisaged, it has not been as
crime prevention successful as one would have hoped (Pelser &
A good relationship between the police and the Louw 2002).
community is an integral part of primary crime The government’s Growth, Employment and
prevention in general. However, community Redistribution Strategy, better known as GEAR,
policing (i.e. a philosophy and strategy that is aimed at improving the socioeconomic situ-
are based on a partnership between the police ation in South Africa. The goals of GEAR are to
and the community to find creative solutions facilitate a new economic system that ensures
for community problems and crime) and sec- a competitive and fast-growing economy that
tor policing (a decentralised approach where will create enough jobs for those South Afri-
a police station area is divided into smaller, cans who are currently unemployed (creating
more manageable geographical areas known as approximately 400 000 jobs per year). It further
sectors) will never succeed if the youth do not aims at redistributing income and opportuni-
trust the police and buy into the idea of “part- ties in favour of the poor, developing a society
nership policing” (Maroga 2003: 14; Wisler & in which health, education and other needed
Onwudiwe 2009: 38). Special care should thus services are available to all, and creating an
be taken to bring the youth into positive con- environment in which homes are secure and
tact with the police and to improve the rela- places of work are productive (Department of
tionship between them. Finance n.d.).
Van Schaik
© publishers 205
The National Youth Development Agency that more than 10000 South African children
(NYDA), which is owned and funded by the are living on the street), such as Street-Wise
government, is an example of a social uplift- in Pretoria and Durban, and The Homestead
ment initiative. The purpose of this agency Projects for Street Children in Cape Town, are
is to empower the youth of South Africa on designed to address the many problems these
both a social and an economic level, aiming children have to face and to help prevent them
to reduce youth unemployment and promote from becoming adult offenders. At Street-Wise,
social cohesion. The NYDA targets young peo- accommodation is offered for a maximum peri-
ple between the ages of 14 and 35 years. From od of one year, as the aim of the organisation is
April 2012 to April 2013, the NYDA showcased to reconcile children with their families. Where
the Limitless Youth Campaign. The rationale
reconciliation is not possible, such children
behind this campaign was to instil a positive
will be referred to a youth care centre or other
mindset in young people. The campaign aims
suitable accommodation. Some of the street
to emphasise that “I am limitless, no matter my
children facilities at the Homestead include
circumstances”. The message is that “you have
no limits; no one can stop you if you really the Homestead drop-in centres in Khayelit-
want something, this is your time and there are sha, Manenberg, Woodstock and Valhalla Park.
limitless opportunities which you have to grab Services provided at these centres include
with both hands”. The aim of this message is aspects such as substance abuse counselling,
to appeal to the youth on an emotional level school attendance support and family preser-
and to assure them that they can be anything vation programmes. During mornings these
they want to be (National Youth Development centres provide services to children living on
Agency 2015). the street and in the afternoons they provide
after-school facilities for vulnerable communi-
ty children to prevent them from engaging in
10.4.2 Secondary prevention gang activities. The Homestead intake, stabili-
Secondary prevention refers to intervention in sation and therapeutic centre accommodates
the lives of youths or groups identified as being boys between the ages of 6 and 17 years who
in circumstances that predispose them to mis- are traumatised and have suffered neglect,
behaviour (e.g. children who have been aban- abuse and/or exploitation, children who have
doned, neglected and/or abused, runaways and been living, working and/or begging on the
street children who often turn to crime for sur- street, as well as substance abusers. They have
vival). In secondary prevention programmes, an open-door policy and no child is forced to
the focus is on the early identification of stay if he or she does not want to. The tran-
potential offenders and intervention before sitional programme called “The Launch Pad”
they turn to crime (Lab 2010: 29). The focus provides shelter for drug-free youths between
is on children who manifest risk behaviour the ages of 15 and 21 years. Youths have to
such as academic failure, truancy, rejec-
apply to be admitted. Their application must
tion of authority, disobedience, dishonesty,
include a motivation letter written by them-
temper tantrums, rebelliousness and various
selves, a form completed by their school, drug
status offences.
test forms as well as character references. The
A good example of a centre that is involved
focus of the centre is to empower and provide
in addressing vulnerable youth at a secondary
level is “Ons Plek”, a shelter for female street life skills to traumatised youth with aspects
children in Cape Town. The reason for estab- such as anger management issues and inappro-
lishing this centre is to try to prevent runaway priate sexual behaviour, as well as working to
girls from becoming street children. Ons Plek improve their relationships with their families
is able to provide a safe haven from the street or guardians, developing their talent in sport
for new arrivals, while counsellors work on and recreational activities, and focusing on the
long-term solutions for their problems (Ons development of their identity and planning for
Plek Projects for the girl street child 2017). their futures with the help of educational psy-
Other programmes focusing on street chil- chologists (Street-Wise 2005; The Homestead
dren as a vulnerable group (it is estimated Projects for Street Children 2013).
206
10.4.2.1 The role of the school in the school in the secondary prevention of crime,
secondary prevention of youth it should be noted that teachers are in an ideal
position to identify key indicators or risk fac-
misbehaviour
tors, which if not addressed can give rise to vio-
As mentioned earlier, the school fulfils an lence or the occurrence of crime at the school.
important role as a socialising agent and thus Behavioural changes in children should be
also in the development of the child, there- addressed, and aspects such as gang involve-
fore the prevention of violence in schools is ment, alcohol abuse, and witnessing or being
of paramount importance. One of the most subjected to domestic violence are risk factors
important strategies aimed at alleviating vio- that will require remedial attention (Mabasa
lence in schools is the Safe Schools Project, 2013: 111; Roper 2002: 74). Examples of initia-
which is a programme initiated by the gov- tives to address youth at risk include aspects
ernment aimed at addressing safety in public such as holiday programmes and other struc-
schools. This programme entails the provision tured leisure-time activities in areas where chil-
of school environments that are conducive to dren spend a great deal of time on the streets
learning, and ensures safety and the absence or where learners are involved in gangs.
of fear of victimisation. In addition, the proj- If more parents became involved, and
ect recognises the potential that schools have schools were more open to the community
to reach youth through crime prevention ini- and were perceived to be owned by it, the
tiatives, identify and assist those with learn- alienation between parents and teachers could
ing difficulties or behavioural problems, and change to mutual, interactive participation in
support those who come from broken homes the socialisation of children where values are
or who live in poverty. In addition it must shared. Cooperative arrangements between
be noted that the prevention of violence in school administrators and teachers, participa-
schools should be a combined effort between tory decision making, interactive teaching (e.g.
the school, the government and the commu- informal education programmes in conjunc-
nity. Likewise, a programme referred to as the tion with the community), as well as parent
Child-friendly Schools Programme was initi- and community education (e.g. workshops or
ated by the United Nations Children’s Fund information sessions on substance abuse) can
(UNICEF) and was piloted in 52 schools in Kwa- only be to the benefit of every learner and spe-
Zulu-Natal and 75 schools in Limpopo (Mabasa cifically the youth at risk (Mabasa 2013: 112;
2013: 113; Roper 2002: 68). Roper 2002: 79).
The attainment of safety in schools is a
complex phenomenon which includes various
initiatives and procedures that should be in
10.4.3 Tertiary prevention
place to achieve this goal. First of all, imple- Tertiary prevention deals with juveniles who
mentable policies and procedures should be have already committed crime. It is aimed at
developed to address problems at schools. preventing a relapse into crime (recidivism)
In addition, joint efforts between school law and thus focuses on youths already in conflict
enforcement (e.g. rules and discipline) and with the law. Punishment and rehabilitation
state law enforcement (e.g. policing) should fall within the realm of tertiary prevention (Lab
be in place. Learners should be aware of the 2010: 271).
school rules and understand the consequences There are two options when dealing with
if they break them. It is also of the utmost youth offenders, namely diversion from the
importance that the school rules are enforced court system or proceeding to the Child Jus-
fairly and consistently, and that due recogni- tice Court (Gallinetti 2009: 13). A short over-
tion is given for adherence to them. The impor- view focusing on diversion follows.
tance of involving the community, parents and
the youth in crime prevention programmes
10.4.3.1 Diversion
aimed at alleviating school violence cannot
be overemphasised (Mabasa 2013: 113; Roper It is stated in the Child Justice Act 75 of 2008
2002: 73). that diversion should always be the first
With specific reference to the role of the option, as this prevents a child from acquir-
©" Schaik
Publishers 207
ing a criminal record and in the process pre- be done before the preliminary inquiry takes
vents the consequent stigmatisation and label- place.
ling associated with child offenders (Steyn Court proceedings should be conducted
2013: 175). The Act stipulates that children in a manner that respects the dignity and
accused of crimes should be diverted from the rights of the young person in an atmosphere
criminal justice system to community-based, of understanding, and should allow for effec-
non-custodial programmes as far as possible. tive participation by the young person. It
The Act originated to establish a criminal jus- must be noted that the Child Justice Court is
tice process for children accused of commit- not a separate court, but any court that deals
ting offences to protect their rights in accor- with offences committed by children and that
dance with the Constitution and international applies the Child Justice Act 75 of 2008 (Gal-
instruments (such as the Beijing Rules). Fur- linetti 2009: 51). Furthermore, it is important
thermore, the Act emphasises the involvement that sentences adhere to the principle of the
of parents, families, victims and communities least restrictive, most empowering option for
in the child justice process in order to encour- the young person.
age the reintegration of children who are sub- As conditions in police cells and holding
ject to its provisions. cells at the courts are not suitable for chil-
A comprehensive discussion of diversion is dren, provision has been made to prevent
given in Chapter 11. detaining youth offenders as far as possible.
Section 28(1)(g) of the South African Constitu-
tion of 1996 gives every child the right not to
10.4.3.2 Court procedures and
be detained, except as a measure of last resort.
imprisonment Children who cannot be released into the cus-
Although the criminal justice system should tody of a parent or guardian should be accom-
be the very last resort in the case of juvenile modated in a child and youth care centre
offenders, children do commit offences serious (these centres replace and include the former
enough to be dealt with in this way. It must places of safety, secure care facilities, schools
be noted that the Child Justice Act 75 of 2008 of industry and reformatories) and only as a
stipulates that children younger than 10 may last resort may they be detained in prison if
under no circumstances be arrested or prose- they are older than 14 (Gallinetti 2009: 15). In
cuted as they lack criminal liability. The police addition, children must be kept separately
official must hand the child over to a parent, from detained persons over the age of 18, and
guardian or appropriate adult. A child younger ~ be treated in a manner and kept in conditions
than 10 years who has allegedly committed an that take into account their age (Gallinetti
offence must be referred to a probation officer 2009: 27).
who will decide what the appropriate action Accountability, proportionality, an attempt
will be. Children younger than 10 years should to restore the harmony between the young
be assessed within seven days after the proba- person and society, as well as family preserva-
tion officer was notified by a police official that tion should be kept in mind during sentencing
an offence was allegedly committed (Gallinet- (Gallinetti 2009:53). As many young people
ti 2009: 34). These actions will either include caught up in the justice system are simply
referral to a children’s court, counselling, troubled children who lack the fundamental
therapy, referral to a treatment programme or skills and guidance to cope with issues beyond |
the decision that no action will be taken (Gal- their level of maturity (Steyn 2013: 175), every
linetti 2009: 20). If the alleged youth offender is chance to avoid imprisonment should be con-
older than 10 and is arrested by the police, it is sidered (Gallinetti 2009:54). Imprisonment
imperative that a probation officer assess the should be reserved only for young people who
child’s situation and the circumstances of the are involved in serious crimes of violence and
offence (unless the assessment is dispensed who are a threat to society, as such treatment
with in terms of section 41(3) of the Act) with- can have extremely serious consequences
in 48 hours of arrest. This assessment must (Gallinetti 2009: 55).
208
The damage inflicted on children by the punishment process in South Africa is portrayed by a poem
written by Glen Leedenberg, a young Cape Town shelter worker (Pinnock, Skelton & Shapiro 1994).
| have been sent to Sea Point Police Station,
where | was beaten by civil servants,
| have been to Pollsmoor prison,
where | was sodomised and left bleeding on the damp floor.
| have been to Places of Safety and Reformatories
where | was hardened by warders and fellow inmates,
where | learned to hold on to what was mine
and take from those who could not fight.
| am now the perpetrator of violence and not the victim.
On the street | am a law unto myself.
In another example, Neville Snyman, a 13-year-old-boy, was brutally murdered by his cellmates in
a police cell in Robertson in the Western Cape in October 1992. He was assaulted, forced to drink tox-
ins, penetrated anally and held under a hot shower until his skin peeled. He did not live to stand trial
for the crime for which he was arrested. He and his friends had allegedly broken into a shop to steal
sweets, cold drinks and cigarettes (Pinnock et al. 1994).
Although a range of non-custodial sentences is available to the courts for the sentencing of con-
victed children, the seriousness of some offences necessitates detainment as the only option. When
sentencing a child to detainment in a child and youth care centre or a prison, the sentence cannot be
imposed without a pre-sentence report. With regard to the minimum age of imprisonment, it is stated
in the Child Justice Act 78 of 2008 that a sentence of imprisonment may not be imposed unless the
child was older than 14 at the time of being sentenced (Gallinetti 2009: 54).
According to statistics from the Department of 10.4.3.3 Preventing recidivism

Correctional Services, there were 187 children
In terms of the prevention of recidivism, it is
(under the age of 18) serving prison sentenc-
important to manage juveniles in accordance
es in the 2015/2016 financial year (see Table
with current legislation (see Chapter 12) and
10.1). international standards such as the United
Nations Standard Minimum Rules for the
Table 10.1 Children’s incarceration levels Administration of Juvenile Justice (the Beijing
2015/2016 Rules), to adhere to their rights as children,
and to focus programmes on rehabilitation and
Children’s incarceration levels reintegration.
As the recidivism rate after release for vio-
Total number of sentenced children 187 lent economically motivated criminals from a
correctional facility in South Africa is estimat-
Males 184
ed to be as high as 94% in the adult population,
Females 3 rehabilitation, positive change and empathy
building are issues that are of elevated impor-
Source: Department of Correctional Services (2017) tance (Cilliers & Smit 2007: 86; Quan-Baffour
Van Schaik
publishers 209
& Zawada 2012: 73). The Department of Cor- society. For instance, the National Institute
rectional Services aims to provide offenders for Crime Prevention and the Reintegration
with needs-based programmes and interven- of Offenders (NICRO) offers a reintegration
tions to facilitate rehabilitation and enable programme (the Tough Enough Programme),
reintegration into communities. Offender which begins six months prior to an offend-
development is a priority and includes per- er’s release, and continues for 6-12 months
sonal development and rehabilitation pro- afterwards. This programme is based on the
grammes addressing illiteracy; furthering edu- question of whether young prisoners are tough
cation; teaching practical skills such as weld- enough to undertake the challenge of leading
ing, plastering, bricklaying and agricultural a constructive life outside prison. The pro-
skills; as well as the inclusion of recreational gramme focuses on the complex problems and
programmes (sport, arts and culture). In addi- issues that offenders are confronted with upon
tion, correctional programmes target offending re-entering and reintegrating into society, and
behaviour by teaching life skills and focusing addresses conflict handling, lifestyle choices,
on anger management. This department also positive attitudes and advice on how to find
sees to it that social work services (to iden- employment. It must be noted that the Tough
tify and address the young offender’s needs Enough Programme is one of many offered by
and problems, and to strengthen family ties), NICRO, and that their programmes focus on
psychological services (to address emotional primary, secondary and tertiary prevention
problems) and religious care programmes are
(NICRO 2016).
provided. Furthermore, the Department of Cor-
An example of another organisation that
rectional Services facilitates restorative justice
works on all levels of the crime cycle is Khulisa.
meetings in order to promote mediation and
This organisation used to focus only on the
healing among offenders, victims, their fami-
rehabilitation and reintegration of offenders,
lies and the community in an effort to diminish
but now aims to prevent crime, divert youth
the harm of crime (Department of Correctional
from the criminal justice system, provide alter-
Services Annual Report 2009: 53-68; Depart-
natives to imprisonment, foster personal trans-
ment of Correctional Services Annual Report
formation for those who are in prison, and
2015/2016: 59).
assist with the transition back to society.
According to Liese (2002: 24), rehabilitation
With regard to secondary prevention initia-
should, to a great extent, focus on thinking pat-
terns and behavioural transformation in cases
tives, Khulisa has various initiatives such as
of embedded patterns of criminality. Strate- the “Grab your dream/Daring to dream” pro-
gies for altering criminal thinking patterns, like gramme that aims to help individuals escape
confronting thinking errors and fostering cor- from a life of poverty and crime. Furthermore,
rect problem-solving behaviour (e.g. how the the “People Puppet” programme is specif-
offender is going to handle a crisis outside pris- ically aimed at primary school children to
on) should be incorporated into rehabilitation assist them in voicing their emotions, to deal
programmes. Social reintegration programmes with violent pasts and to restore the values in
as implemented by the Department of Correc- their communities by means of the projective
tional Services (Annual Report; 2015/2016: 69) technique of puppet-making and performing.
focus specifically on coping skills for handling In addition, the “Silence the Violence” pro-
challenges that the offender will be confront- gramme focuses on the culture of violence
ed with upon release from the correctional ingrained in communities and belief systems.
centre. Practical ways to minimise violent behaviour
In terms of tertiary prevention (the preven- are taught in this programme. The “Global Give
tion of recidivism), care should be taken not to Back Circle” programme is aimed at vulnerable
release children into exactly the same circum- girls from Grade 9 onwards, and provides sup-
stances that led them to commit the crime in port throughout their secondary school years,
the first place. Children should be provided in the form of aspects such as career guidance,
with the necessary programmes and support mentorship and victim empowerment. Khuli-
to enable their effective transition and reinte- sa’s tertiary prevention initiatives include pro-
gration from the correctional facility back into grammes such as the following:
Van Schaik
2410 |\Crubiishers
¢ The “Facing Your Shadow” diversion pro- 10.5 GENERAL RECOMMENDA-

gramme. This programme is offered for TIONS
offenders between the ages of 14 and 18
years who have committed a sexual offence Adults often act as a barrier to the autonomy,
and who have been referred to Khulisa by independence and empowerment of young
the criminal justice system. Another initia- people and they often make decisions about
tive is the “Restorative Justice in Schools” them based on generalised representations of
programme dealing with aspects such as children and young people, rather than con-
bullying, truancy, student assaults and sulting with them or judging each situation on
teacher/student disputes. its own merits. The youth should therefore be
involved in the development and implementa-
¢ An offender rehabilitation programme called
tion of programmes for preventing youth mis-
“My Path”. This programme is aimed at indi-
viduals in need of personal development behaviour and crime (Liese 2002: 7).
All programmes, irrespective of the level of
and behavioural therapy. The programme
promotes the discovery of oneself as a phys- intervention (primary, secondary or tertiary),
ical, psychological, emotional and social should focus on children’s capabilities rather
being, as well as the exploration of one’s than their limitations. The value of networking
own creative abilities. The programme aims at a community level and utilising all available
to help offenders to embark on a path of sources (government, NGOs and volunteers)
exploring who they are and helping to pre- as a strategy for preventing and dealing with
pare them for re-entry into a positive, pro- juvenile offending should never be underesti-
ductive and meaningful lifestyle. The focus mated.
is on replacing inappropriate beliefs; goal
setting; assertiveness skills; stress manage-
ment; communication skills; problem solv- 10.6 CONCLUSION
ing; values and morality; improving rela- The task of tackling youth misbehaviour is an
tionships; and restorative justice, as well enormous one. A multidimensional (youth-
as preparation to return to the community. directed), multimode (cognitive, affective,
The last phase includes aspects such as rec- behavioural), long-term approach, which
ognising their own competencies, dealing involves various role players and resources, is
with stigmatisation, compiling a curriculum necessary to alter the difficult-to-change com-
vitae, managing finances and developing plex nature of youth misbehaviour. By reduc-
entrepreneurial skills. The programme is
ing risk factors and by providing protective
aimed at incarcerated offenders who have
buffers against known risk factors, some head-
a minimum of two years of their sentence
way may be made in the battle against youth
remaining at the time of registering for the
violence and misbehaviour (Liese 2002: 5;
“My Path” programme. The programme is
Maree 2013: 89).
offered in three-hour sessions once a week
for approximately one year. In conclusion, the prevention of youth mis-
behaviour and crime can be summarised in the
* The “I’m Coming Out” offender reintegration words of Wolmarans and Jacobsz (1994: 21):
programme aims to prepare offenders for
reintegration into their communities by
evaluating their strengths and weaknesses, Keep children out of poverty, off the streets,
and focusing on possible challenges that out of the cells and out of politics.
they might face upon release (Khulisa 2016).
on Schaik
blishers) 21]
CRITICAL QUESTIONS
1. Outline the role of the family, the media, the police and the government in the primary prevention of
youth misbehaviour and crime in South Africa.
Explain how the school as a secondary socialisation agent can have an impact on youth misbehaviour
N
and crime.
Discuss current initiatives aimed at the tertiary prevention of youth offending in the South African con-
Ww
text.
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schools programmes in the Limpopo province. DPhil Roelofse, C. (2011). Crime prevention and control. In
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- in South Africa: A holistic view (3rd ed.). Pretoria: ty. In E. Pelser (Ed.), Crime prevention partnerships:
“Van Schaik. Lessons from practice. Pretoria: Institute for Securi-
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McClinton, N. (2004). The influence of selected percep- Soul City. (2016). Retrieved 29 April 2017 from http://
tual and demographic factors on the involvement of www.soulcity.org.za
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forms of child abuse. London: Jessica Kingsley. nileDelinquency.pdf
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Retrieved 29 April 2017 from http://www.nyda.gov. at schools. Retrieved 15 August 2017 from http://
za randfonteinherald.co.za/207220/
NICRO. (2016). Retrieved 1 May 2017 from http://www. Wisler, D. & Onwudiwe, I.D. (2009). Community polic-
nicro.org.za ing: International perspectives and comparative per-
Ons Plek Projects for the girl street child. (2017). spectives. London, UK: Taylor & Francis.
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org.za/ juvenile offending: Problems and solutions. In L.
Pelser, E. & Louw, A. (2002). Where did we go wrong? Glanz (Ed.), Preventing juvenile offending in South
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Crime Quarterly, 2: 1-4. ences Research Council, 11-21.
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programmes for prison inmates: Reward for offences
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@vn Schaik
Publishers 213
OBJECTIVES KEYWORDS
You should be able to age and criminal capacity
discuss the development of child justice and diversion in South Child Justice Act
Africa diversion
articulate the purpose of and criteria for a child to be diverted from diversion options
the criminal justice system family group conference
describe the different diversion options and the schedule of follow-up
offences as categorised by the Child Justice Act life skills training
appraise different diversion strategies with specific reference to life mentoring
skills training, mentoring, family group conferencing and outdoor minimum standards
programming. outdoor intervention
referral
11.1 INTRODUCTION
Because children and adolescents mature youths often present risky behaviour which
toward adulthood, it is generally accepted includes antisocial and criminal acts (Klein-
that they have less responsibility than adults. hans 2013: iii; Louw & Louw 2014: 304). It is
Adolescence, in particular, is considered to be therefore understandable that the literature
a stormy phase in the life stages chain since notes an increase in antisocial and problem
1 Parts of this chapter stem from the first author's postgraduate research (cf. Steyn: 2010).
oven Schaik
Publishers 215
behaviour during adolescence, but that this Before democracy was achieved in South Africa
should be seen against the natural process of in 1994, legal responses to the criminal
maturation (Muncie 2004: 25-26). The daily behaviour of children were inhumane. Many
life of children and adolescents is character- were subjected to harsh corporal punishment,
ised by many rules at home, in school and in in particular caning by designated police offi-
the community. Rules serve as guidelines for cers. Thousands of children awaited trial in
the nurturing of pro-social and problem-free abysmal conditions in prison and police cells,
behaviour. Learning does not only take place where they were often held for lengthy periods
through formal education, but also through of time without their parents knowing their
the mistakes children make, Sometimes these whereabouts (Juvenile Justice Drafting Consul-
have a criminal element which can be less seri- tancy 1994: 2). In the mid-1990s, the country’s
ous, but at times they also entail more serious legal system commenced a process of trans-
criminal behaviour. Owing to their develop- formation, away from a politically motivated
mental age, it is only fair to give children and repressive approach to a justice system based
adolescents a second chance and to create an on the principles of human rights and dignity.
opportunity to change the mistake into a learn- Prior to this period, the legal system had no
ing event. dedicated strategy to deal with children in
When a minor has committed a crime, it is conflict with the law, and those charged with
not always in his or her best interest to be sub- crimes were tried as adults (Brink 2010: 29).
jected to the harsh realities of being arrested, Systems were fragmented and scattered among
appearing in court and receiving a sentence. different ministries and departments, while
Moreover, a sentence of imprisonment, regard- emphasis was placed on the pathology of
less of how short a period of time, opens the criminal behaviour instead of developmental
door for the child to be labelled a criminal, strategies that acknowledge the strengths of
which could propel him or her toward further communities, families and children in curbing
and more serious criminal behaviour. Custo- problem behaviour. These stakeholders also
dial sentences also promote the learning of had no opportunity to participate in legal deci-
further crime and criminal techniques, there- sions that affected them. In addition, statutory
fore the way in which the criminal behaviour intervention received more attention than pre-
of children and adolescents is managed vention or early intervention in the problem
could have a profound effect on whether they behaviour of children (Inter-ministerial Com-
will commit crime again. Barto] and Bartol mittee on Young People at Risk (IMC) 1996: 13).
(2017: 170) confirm in this regard that juvenile In the early 1990s, campaigns and initia-
offenders usually benefit from intensive treat- tives, such as Justice for children: No child
ment in the community rather than in an insti- should be caged — initiated by the Community
tutional setting. Law Centre, Lawyers for Human Rights and
This chapter deals with diversion, which the National Institute for Crime Prevention
follows a child-centred, developmental and Reintegration of Offenders (NICRO) -
approach to the criminal behaviour of chil- placed increasing pressure on government to
dren and adolescents. The chapter looks at the respond to the inhumane treatment of child
development of child justice and diversion in offenders. It was only after a 13-year-old boy
South Africa, and what diversion entails and was murdered by his cellmates in a police cell
its legal provisions. An overview is provided of in Robertson, Western Cape, in October 1992
a selection of diversion strategies in terms of that the National Working Committee on Chil-
their understanding of and responses to crim- dren in Detention was formed. The need for
inal behaviour. a comprehensive and effective child justice
system became imperative. Around that time,
NICRO and state diversion programmes were
11.2 DEVELOPMENT OF CHILD
implemented to prevent children from enter-
JUSTICE AND DIVERSION IN ing the criminal justice system unnecessarily
SOUTH AFRICA (IMC 1996: 13-14). Although numerous others
(Note: This section should be read with section 13.1 followed, no legal framework existed to gov-
in Chapter 13.) ern child justice in general and diversion in
216 |Crubisners
CHAPTER 11 DIVERSION
particular. Many programmes were developed In 1997, the Juvenile Justice Project Com-
and established in an informal, haphazard and mittee of the South African Law Reform Com-
disjointed fashion without any comprehensive mission commenced an investigation into
policy framework to guide them (Badenhorst youth justice, and in 1999 published a discus-
2013: 315). Minimum norms and standards to sion paper and a draft bill on the matter. In
steer service delivery were absent. Diversion the drafting process, the Committee consulted
providers were increasingly confronted and a wide range of role players in the criminal
frustrated by inadequacies in the Criminal Pro- justice field, including children, and the final
cedure Act 51 of 1977, the Child Care Act 74 of report was submitted to the Minister of Jus-
1983, and the Correctional Services Act 8 of tice in August 2000. November 2001 saw its
1959. In November 1994, the Juvenile Justice approval by cabinet for introduction into par-
Drafting Consultancy published the first com- liament, which took place in August 2002 as
prehensive tool for the management of child the Child Justice Bill 49 of 2002. Although the
offenders in South Africa. The framework pro- submission represented a milestone for child
posed procedures for arrest, reception and justice in South Africa, delays characterised
referral, and also commented on diversion the enactment of the Bill as it underwent sev-
and the sentencing of child offenders (Juvenile eral revisions by the Portfolio Committee for
Justice Drafting Consultancy 1994: 1). In May Justice and Constitutional Development. At
1995, the IMC was established to manage the last, the Child Justice Act (CJA) 75 of 2008 was
process of transforming the child and youth approved and enacted in late 2008. However, it
care system. Its interim policy recommenda- only took effect on 1 April 2010 to allow suffi-
tions broadened the work of the Juvenile Jus- cient time for the preparation of role players.
tice Drafting Consultancy by, among others, The enactment of the CJA is seen as significant
delineating the roles and responsibilities of in ensuring that the rights of child offenders
service providers in the child justice sphere are protected (Badenhorst 2013: 315).
(IMC 1998: 8). It is important to note that the CJA has
The National Crime Prevention Strategy _been developed with the directives of various
(NCPS) of 1996 emphasised the absence of international and regional policy instruments
child sentencing policies. Moreover, it called in mind. The most noteworthy of these instru-
specifically for the development of approaches ments are the following:
to divert minor offenders from criminal justice e¢ United Nations Convention on the Rights
procedures (NCPS 1996: 61). These sentiments of the Child (1989), which emphasises that
were echoed in the White Papers and strate- any action against children should have
gic plans of various government departments, their best interest in mind, and that young
including Correctional Services and Social offenders should be dealt with without
Development. Shortly after the introduction of resorting to formal judicial proceedings
the NCPS, the South African Law Reform Com-
e¢ United Nations Standard Minimum Rules for
mission issued two papers relevant to child
the Administration of Juvenile Justice (Bei-
justice. The first, Sentencing Restorative Jus-
jing Rules) (1985), which provide guidelines
tice (South African Law Reform Commission
for child justice systems and resources for
1997a), dealt with the crime victim’s position
non-custodial intervention such as the family,
and role in the justice process. It made spe-
volunteers and the community
cific reference to restitution, compensation
and mediation, which today form part of fam- e¢ United Nations Guidelines for the Preven-
ily, community and victim-involved diversion tion of Juvenile Delinquency (Riyadh Guide-
strategies. The restorative sentiments of the lines) (1990), which emphasises govern-
publication eventually became an important ments’ role in enacting relevant legislation,
thrust in official directives in managing child as well as the pivotal role of the family in
offending. The second paper, Juvenile Jus- preventing offending and recidivism
tice (South African Law Reform Commission e United Nations Standard Minimum Rules
1997b), focused particularly on age and crimi- for Non-custodial Measures (Tokyo Rules)
nal capacity, police powers and duties, pre-trial (1990), which calls on public participation
detention, diversion and sentencing. in the dispensation of cases so as to access
©ven Schaik
Publishers 21 7
local resources and ensure the public’s 2010: 31; Woodward, Sloth-Nielsen & Mathithi
involvement in crime management 2007: 69). The objectives of diversion are
e African Charter on Human and People’s based on the principles of restorative justice,
Rights (1982), which prohibits any form of with the aim of rehabilitating and reintegrat-
inhumane and degrading treatment or pun- ing the offender (McGregor 2010: 34; Gelden-
ishment of young offenders, with emphasis huys 2015: 11). The CJA enacts diversion and
being on the preservation of the family as ensures the fair treatment of children in con-
the primary support structure of children flict with the law.
Diversion encompasses non-punitive mea-
e African Charter on the Rights and Welfare sures in dealing with child offenders (Atilola
of the Child (1990), which states that deci-
2013: 5). Diversion sets out to prevent crime
sions about young offenders should pro-
and promote public safety through the use of
mote reintegration and social rehabilitation,
alternative sentencing and restorative justice
and that a minimum age is needed below
procedures (National Prosecuting Authority
which children are presumed not to have
(NPA) 2011: 24).
the capacity to break the law
Section 51 of the CJA the objectives of diver-
sion as follows:
Advocacy, programme development and
research related to diversion received much ¢ Deal with a child outside the formal crimi-
attention up to the enactment of the CJA in nal justice system.
2010. Since then interest in diversion has ¢ Encourage the child to be accountable for
waned with very little research forthcoming. the harm caused by him or her.
For example, a 20-year review of publications in ¢ Meet the particular needs of the individual
journal Acta Criminologica showed that articles child.
(in terms of the proportion of all publications)
¢ Promote the reintegration of the child into
dedicated to youth offending decreased from
his or her family and community.
7,6% (2002-2005) to 1,3% (2010-2013) (Steyn
& Klopper 2015: 13). Furthermore, there have ¢ Provide an opportunity to victims to
been four amendments to the CJA since its express their views about the offence's
enactment, although these do not change pro- impact on them.
visions related to diversion of child offenders. ¢ Encourage the rendering to the victim of
some symbolic benefit or compensation for
the harm.
11.2.1 Definition and aims of ¢ Promote reconciliation between the child
diversion and the person or community affected by
Section 1 of the CJA defines diversion as divert- the harm.
ing “a matter involving a child away from the e Prevent stigmatising the child and prevent
formal court procedures in a criminal matter” the adverse consequences flowing from
when there is sufficient evidence to prosecute contact with the criminal justice system.
the child. Diversion aims to reduce and pre- e Reduce the potential for re-offending and
vent future involvement in crime (Seroczynski, prevent the child from having a criminal
Evans, Jobst, Harvath & Carozza 2016: 663). record.
Diversion entails that children in conflict with ¢ Promote the dignity and wellbeing of the
the law are kept away from the formal criminal
child, and the development of his or her
justice system and ensures that they are suc-
sense of self-worth and ability to contribute
cessfully reintegrated into society (Terblanche
to society.
2012: 446; Van der Merwe & Dawes 2009: 572).
By diverting child offenders, they are protected
In terms of the CJA, diversion can occur in
from the negative effects of the criminal jus-
three ways:
tice system and prevented from unnecessary
stigmatisation and having a criminal record e Through prosecutorial diversion when a
(Badenhorst 2013:315; Kleinhans 2013: 38; child has committed a Schedule 1 offence
Leoschut & Mutongwizo 2012:9; McGregor (section 41)
218 (Cribisner:
tee? CHAPTER 11 DIVERSION
¢ At the preliminary inquiry, through an order might be at risk of re-offending in the near
of the inquiry magistrate (section 51 (2)) future, and as such need lesser intervention
¢ During the trial in the child justice court, compared to high-risk offenders.
through an order of the court (section 67 ¢ Low-risk offenders have committed one or
@)) two offences, display high levels of victim
empathy and remorse, take full responsi-
bility for their behaviour, enjoy healthy
11.2.2 Principles guiding the decision
parental supervision and bond with their
to divert school. Low-risk offenders are at minimal
The decision to divert a child who has commit- risk of re-offending in the near future, and
ted an offence varies across contexts. In some therefore require the least intervention of
countries, for example the US, the simple cau- all three risk levels.
tioning of the child —- most often in the case of
a very minor transgression — is the least inva- In addition to the risk principle, the need prin-
sive form of diversion. However, based on ciple means that any intervention aimed at
the seriousness of the offence and the profile changing the criminal behaviour of children
of some child offenders, an element of inter- should be directed toward their unique crim-
vention is sometimes needed (Wilson & Hoge inogenic needs. If, for example, the child dis-
2013: 498). When considering diversion, deci- plays aggressive behaviour, then the diversion
sion makers often consider the personal and programme opted for must include training in
environmental factors of the child and, togeth- anger management. Finally, the responsivity
er with the nature of the offence, determine principle means that any intervention must
the child’s risk of future problem and criminal accommodate the child’s non-criminogenic
behaviour. The risk principle implies that the needs, for example academic skills and emo-
intensity or level of intervention should match tional problems, as well as his or her positive
the criminogenic risk presented by the child traits (Wilson & Hoge 2013: 499).
(Wilson & Hoge 2013: 499). In other words, for
a lesser crime, a lesser intervention is needed,
while more intense programming is needed
11.2.3 Age, criminal capacity and
for children who exhibit higher levels of risk. diversion
As explained later in the chapter, diversion in Section 4 of the CJA states that any person
South Africa is not only aimed at minor offenc- alleged to have committed an offence while
es, but can be used to address more serious under the age of 18 years - and in exceptional
types of offending behaviour as well. The lev- cases between the ages of 18 and 21 years -
els of risk are as follows (Omar, Steenkamp & should be considered for diversion. Younger
Errington 2012: 55): age groups, however, are guided by the prin-
ciple of criminal capacity, which deals with
* High-risk offenders have committed numer-
ous offences, show little empathy for vic- whether a child can distinguish between right
tims, have a general lack of remorse, fail and wrong. Section 7 of the CJA states that a
child under the age of 10 years does not have
to accept responsibility, abuse substances,
criminal capacity; however, this does not auto-
have limited parental supervision and per-
matically mean that no action against the child
form poorly at school. High-risk offenders
is warranted. The steps that are followed in
are at great risk of re-offending in the near
such cases resemble that of diversion, but with
future and therefore require a higher level
no involvement of a prosecutor or court. The
of intervention.
police may not arrest a child under the age of
* Medium-risk offenders have engaged in more 10 years, but must hand the child over to his
than one offence, do not always take respon- or her parent or guardian. A probation officer
sibility for their actions, deny their actions must then arrange a meeting with the child’s
at some level, display victim empathy and parent or guardian to assess the circumstances
remorse, and are sometimes disruptive and surrounding the offence. A written plan is
aggressive in groups. Medium-risk offenders drafted that specifies the objectives and
Van Schaik
© publishers 219
nature of the intervention, its duration, and ter about the prospects of diversion. When
the responsibilities of the child and his or her dealing with more serious criminal cases, the
parent or guardian. If the child fails to comply Director of Public Prosecutions may decide te
with the plan, he or she is referred to a chil- divert a matter if exceptional circumstances
dren’s court for further action (CJA s 9). exist and after the victim, or a representa:
A prosecutor must decide whether or not tive of the victim, states that the case may be
to prosecute a child who is between the ages diverted. Exceptional circumstances includ
of 10 and 14 years based on an evaluation of the youthfulness and low development of th
the child’s ability to distinguish between right child, the presence of hardship or compellin
and wrong at the time of having committed and mitigating circumstances, undue influenc
the alleged offence. The decision is guided by exerted on the child, the preference of the vic.
the child’s educational level, cognitive ability, tim for diversion, the fragility and/or unwill-
domestic and environmental circumstance, ingness of witnesses for the prosecution, and
age and maturity, the nature and seriousness when to proceed would be potentially damag-
of the offence and the impact of the crime on ing to a child witness/victim. The victim also
the victim (CJA s 10). If criminal capacity is has a say in the content of the diversion option
proven, the child can be diverted. However, if and conditions relating to compensation or the
criminal capacity cannot be established, the rendering of a specific benefit or service (CJA
child is treated in the same manner as those S'5)).
under the age of 10 years (CJA s 11). (in Chap-
ter 12 criminal capacity is discussed in detail.)
11.2.5 Diversion options
Section 53 of the CJA stipulates various
11.2.4 Criteria for diversion
options for diversion. Before describing these,
Section 52(1) of the CJA sets out the criteria the CJA provides the following definitions of
for a child to be considered for diversion. A the orders applicable to diversion:
case may, after consideration of all the rele-
vant information presented at a preliminary e A compulsory school attendance order
inquiry or during a trial, including whether the requires a child to attend school every day
child has a record of previous diversion, be for a specified period of time, which must
diverted if be monitored by a specified person.
¢ A family time order requires a child to
¢ the child acknowledges responsibility for
spend a specified number of hours with his
the offence
or her family.
e the child has not been unduly influenced to
acknowledge responsibility ¢ A good behaviour order requires a child to
abide by an agreement made between the
* a prima facie case exists against the child
child and his or her family to comply with
(in other words, there is sufficient evidence
certain standards of behaviour.
to prosecute the child)
¢ A peer association order requires a child
e the child and his or her parent or guardian
to associate with persons or peers who can
consents to diversion
contribute to the child’s positive behaviour
e the prosecutor or Director of Public Pros-
or to refrain from associating with certain
ecutions indicates that the child may be
persons or peers.
diverted in accordance with relevant provi-
sions of the CJA. ¢ A reporting order requires a child to report
to a specified person at a time or times
In addition, a prosecutor may consider the specified in the order so as to enable that
views of the victim or any person who has person to monitor the child’s behaviour.
a direct interest in the affairs of the victim in ¢ A supervision and guidance order places a
the decision to divert the case. The prosecu- child under the charge of a mentor or peer
tor may also consult with the police official in order to monitor and guide the child’s
responsible for the investigation of the mat- behaviour.
Van Schaik
220 ©publishers
The diversion options are set out in two lev- as a cause of the child coming into conflict
els. Level One applies to the offences referred with the law. This order may include a period
to in Schedule 1 of the CJA, while Level Two of temporary residence. Lastly, the child can
includes all other offences indicated in sched- be placed under the supervision of a proba-
ules 2 and 3. Level One diversion options tion officer on conditions which may include
include the following (CJA s 53(3)): the restriction of the child’s movement to the
magisterial district in which the child usually
¢ An oral or written apology to the persons
resides unless prior written approval to move
affected by the offence.
elsewhere is obtained from the probation offi-
‘* A formal caution, with or without condi- cer (CJA s 53(4)). In terms of the duration of
tions. the Level Two diversion options, an order may
* Placement under an order, for example not exceed 24 months if the child is under the
supervision, family time or good behaviour age of 14 years. For children older than 14, the
order, or an order prohibiting the child order may not exceed 48 months in duration.
from visiting a specified place. As with Level One options, an order exceeding
¢ Referral to counselling or therapy, or com- these time periods may be given, in which case
pulsory attendance of a vocational, educa- the reasons for exceeding the time period must
tional or therapeutic intervention. be entered into the record of the proceedings
(CJA s 53(6)).
¢ Symbolic restitution to a specified person,
In addition to the diversion options
community or welfare organisation.
described above, a magistrate may order a
¢ Returning or restoring a specified object to child to appear at a family group conference
the victim or provision of some service to or a victim-offender mediation on a speci-
the victim. fied date and at a specified time and place, or
¢ Community service under the supervision order any other restorative justice option in
of an organisation or a specified person. appropriate cases in the place of any of the
diversion options described above, or in com-
¢ Compensation to a victim, group of persons
bination with any of the diversion options
or welfare organisation where the child or
(CJA s 53(7)). Any decision about the appro-
his or her family is able to afford this.
priateness of a diversion option must take into
¢ Where there is no identifiable victim to account the child’s cultural, religious and lin-
whom restitution or compensation can be guistic background, as well as his or her edu-
made, provision of some service or pay- cation level, cognitive ability and domestic
ment of compensation to a community or and environmental circumstances. The rec-
welfare organisation. ommended option must be in proportion to
the circumstances of the child, the nature of
In terms of the duration of the diversion the offence and the interests of society. It is
options that fall under Level One, an order may equally important to keep the child’s age and
not exceed 12 months when the child is under developmental needs in mind when selecting a
the age of 14 years. For those older than 14, diversion option (CJA s 54(1)). Decisions about
an order may not exceed 24 months in dura- the most appropriate diversion option for each
tion. Nevertheless, an order exceeding these case should inform the development of individ-
time periods may be given, in which case the ual diversion plans, keeping in mind the objec-
reasons for exceeding the time period must be tives of diversion and its minimum standards.
entered into the case record (CJA s 53(5)). The minimum standards for diversion state
Level Two diversion options include those that interventions (CJA s 55)
of Level One with the addition that the child
can be ordered to attend vocational, educa- * may not be exploitative, harmful or hazard-
tional or therapeutic intervention, which may ous to the child’s physical or mental health,
include a period or periods of temporary res- and may not interfere with the child’s
idence at a specified centre. The child can schooling.
also be referred for intensive therapy to treat ¢ must be appropriate to the age and maturity
or manage problems that have been identified of the child.
ev" Schaik
Publishers} 22
¢ may not exclude certain children due to a must, where reasonably possible, impart
lack of resources, financial or otherwise, useful skills, include a restorative element,
and also bearing in mind the circumstances and promote the child’s understanding of
of children in rural areas. the impact of the offence.
e must be sensitive to the circumstances of must be accessible to the child, structured
the victim, and must involve the child’s par- in a way that is suitable to be used in a vari-
ents or guardians. ety of circumstances and for a variety of
offences, and measurable in terms of effec-
tiveness.
Schedules of offences as categorised by the Child Justice Act

The CJA categorises offences in three schedules according to their seriousness. Schedule 1 includes less
serious offences, Schedule 2 deals with more serious crimes and Schedule 3 sets out serious offences.
In the case of a child being charged with more than one offence at the same time, the most serious
offence guides the manner in which the child must be dealt with (CJA s 6).
Schedule 1 offences include the following:

* Theft or possession of stolen property to the amount of R2 500
* Fraud, extortion, forgery or vandalism to property to the amount of R1 500
* Common assault, perjury, contempt of court, blasphemy, compounding (when someone agrees
not to report a criminal incident or not to prosecute an offender in exchange for financial return),
crimen injuria, defamation, trespassing or public indecency
* Engaging the sexual services of persons 18 years or older, bestiality, consensual sexual penetration
and consensual sexual violation
* Theillicit possession of drugs to the amount of R500
* Any other statutory offence where the maximum penalty determined by that statute is imprison-
ment for a period of no longer than three months ora fine for that period

* Theft or possession of stolen property to the amount of R2 500
* Fraud, extortion or forgery where the amount exceeds R1 500
* Robbery other than robbery with aggravating circumstances
* Malicious damage to property (vandalism) where the amount involved exceeds R1 500
* Assault with the infliction of grievous bodily harm, public violence, culpable homicide or arson
* Housebreaking with the intent to commit an offence
* Administering poisonous or noxious substance
* Crimen expositionis infantis (abandoning a child with disregard for its survival)
* Abduction, sexual assault, compelled sexual assault or compelled self-sexual assault where griev-
ous bodily harm has not been inflicted
* Compelling or causing persons 18 years or older to witness sexual offences, sexual acts or self-mas-
turbation, or the exposure or display of child pornography or pornography
Van Schaik
9909 ©publishers
Incest and sexual acts with a corpse or violating a dead body or grave
The exposure or display of genital organs, anus or female breasts to any person (“flashing”)
Defeating or obstructing the course of justice, any offence referred to in the Intimidation Act, offences
related to criminal gang activities, and any contravention of the Animal Protection Act
The illicit possession of drugs with a value between R500 and R5 000
Any other statutory offence where the maximum penalty is imprisonment for a period exceeding
three months but less than five years, or a fine for that period

Treason, sedition, murder, kidnapping or extortion with aggravating circumstances
Robbery where there are aggravating circumstances or which involve the taking.of a motor vehicle
Rape or compelled rape, sexual assault, compelled sexual assault or compelled self-sexual assault
involving grievous bodily harm
Sexual exploitation of children, sexual grooming of children, and using children for child pornogra-
phy or benefiting from it
Exposure or display of child pornography or pornography to children, if that exposure or display
is intended to facilitate the sexual exploitation or sexual grooming of a child or the use of a child for
purposes of child pornography or in order to benefit in any manner from child pornography
Compelling or causing children to witness sexual offences, sexual acts or self-masturbation
Sexual exploitation, grooming, exposure or display of pornography to persons who are mentally
disabled, or using persons who are mentally disabled for pornographic purposes
Trafficking or involvement in trafficking of persons for sexual purposes
Any offence under the Protection of Constitutional Democracy against Terrorist and Related Activi-
ties Act, as well as crimes of genocide, crimes against humanity and war crimes
Any offence relating to racketeering or the proceeds of unlawful activities
Any offence or possession of items described in laws relating to the dealing in or smuggling of
ammunition, firearms, explosives or armament
Any offence referred to in the Drugs and Drug Trafficking Act or illicit possession of drugs where the
value exceeds R5 000
Any offence of a serious nature if it is alleged that the offence was committed by a person, group of
persons, syndicate or any enterprise, acting in the execution or furtherance of a common purpose
or conspiracy
Any other statutory offence where the maximum penalty determined by that statute is imprison-
ment for a period exceeding five years or a fine for that period ,
11.2.6 Compliance with and legal ance with it. If the child has successfully com-
consequences of diversion plied with the order, the probation officer must
submit a report to the relevant prosecutor. If
Once a diversion order has been made, the the child does not honour the order, the pro-
court must identify a probation officer or other bation officer must inform the court (CJA s 57),
suitable person to monitor the child’s compli- which will then issue a warrant for the arrest of
Van Schaik
© publishers 223
the child. Upon appearance before the court, 11.2.7 Numbers and trends of
it must be determined why the child failed to diversion referrals
comply with the order, and whether this is
due to the child’s fault. If non-compliance is A total of 13 969 children were diverted in the
not the child's fault, the court may continue period 2014/15, of which 602 (4,3%) were chil-
with the same diversion option (with or with- dren between the ages of 10 and 13 years and
out altered conditions), add or apply any the remaining 13 367 (95,7%) were between the
other diversion option, or make an appropri- ages of 14 and 17 years of age (NPA 2015: 40).
ate order which will assist the child and his or Diversion at the preliminary inquiry phase car-
her family to comply with the initial order. If ries the bulk of all diverted cases, followed by
non-compliance with the diversion order is the section 41 and section 9 referrals. These have
child’s fault, the court may proceed with pros- decreased significantly, while the overall num-
ecuting the criminal case, or it can decide ona ber of diversions decreased by 8%.
more stringent diversion option than the one The decrease in the number of diverted
originally decided on (CJA s 58). cases in the recent past is given prominence
Diversion has certain legal consequences when considering figures in South Africa since
for the case and the child involved. Firstly, 2007/2008. In that period, 18 817 cases involv-
successful completion of the diversion order ing child offenders were diverted compared
results in the withdrawal of the criminal to 5528 in 2015/16. The decrease amounts
charge against the child. Secondly, the diver- to 340% or two-thirds of the total number of
sion order made in terms of the CJA does not diversions in 2007/08. This drastic drop in the
constitute a previous conviction as referred to use of diversion for youthful offenders is worri-
in the Criminal Procedure Act. Thirdly, a pri- some. The actual trend can be better fathomed
vate prosecution may not be instituted against when the differences are compared in bar dia-
a child who has successfully completed diver- grams (see Figure 11.1).
sion intervention (CJA s 59). Despite these The substantial decrease in the number of
positive consequences, a record is maintained diversions appears to coincide with the imple-
of all children who have been diverted. The mentation of the CJA in 2010. In this regard,
record includes information on the personal Badenhorst (2012:7) noted that frontline
details of each child, details about the offence police officers may not have been sufficiently
for which the child was diverted, the diversion trained on the CJA, resulting in police officers
option used and particulars of the child’s com- deciding not to arrest children suspected of
pliance therewith (CJA s 60). As mentioned criminal behaviour. The matter would not
earlier, a court may take previous diversion have been problematic if the decrease in arrest
into account when a child commits further were matched by a decrease in written notices
crimes (CJA s 52). Access to the register is lim- issued by police officers, but this does not
ited to probation officers, police officials, pros- seem to be the case. In addition, the decrease
ecutors and magistrates. in diversion has an impact on the functioning
Table 11.1 Trends in the nature and number of child offender diversions, 2012/13-2015/16
2012/13 ~| 2013/14 2014/15 2015/16 Progress
Section 9 referrals 541 335 Not recorded -61%
Section 41 diversions 2 066 1796 1 539 1 386 -49%
Preliminary inquiry diversions 3 797 4051 3 866 3 945 +3%
Schedule 3 diversions 201 142 197 -2%
Total 6 005 6 362 5 882 5 528 -8%
Source: NPA (2016: 35)
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224 |©pubiishers
18 817
17 628
16 058 15588 15 809
6 005 6 352 5 882 5 528
T T T T
2007 2008 2009 2010 2012 2013 2014 2015
Figure 11.1 Trends in the number of child diversions, 2007/08-2015/16

Source: NPA (2009; 2011; 2016)
of diversion service providers. For example, life and prevent problem behaviour (Chance
NICRO, which is the largest provider of diver- 2003: 235). Life skills training focuses on the
sion services in South Africa, diverted 17 786 ability to function efficiently in society, react-
children in 2007/08 compared to 2014 in ing to life’s stressors amicably, successfully
2014/15 and 4325 in 2015/16 (NICRO 2008: 7; dealing with provocative situations and con-
2016: 5). flict, and communicating meaningfully with
others (Eberséhn & Eloff 2003: 40; Muthukrish-
na 2002: 82). Life skills training promotes
11.3 TYPES OF DIVERSION
social, cognitive, emotional and behavioural
PROGRAMME competencies that are critical in reducing
11.3.1 Life skills training high-risk behaviours (Kibret 2016: 1). Life skills
training as an intervention makes the following
Many South African children are subjected to
assumptions about the criminal behaviour of
an inferior education system. In addition, tra-
children (Steyn 2005: 283):
ditional value systems are being challenged,
while troubled homes do not always equip chil- e Adolescence entails a shift in skills needed
dren with much-needed life skills (Eberséhn & to understand the consequences of
Eloff 2003: 39). Alas, it is accepted that children behaviour.
commonly require teaching in cognitive, affec- ¢ Crime results from an inadequate ability to
tive and behaviour skills as primary competen- react appropriately to particular situations.
cies for adulthood (Louw & Louw 2007: 281).
e Specific skills are required to maintain
Among others, life skills are required for suc-
direction and focus in life.
cessful independent living, the maintenance
of friendships, success at school, and the pre- e The acquisition of relevant life skills
vention of prolonged interpersonal problems strengthens responsibility and accountabil-
(Algozzine, Serna & Patton 2001: 231). ity.
Life skills are viewed as those acquired ¢ Collective interaction creates opportunities
attributes that can enhance the quality of to learn from others.
oven Schaik
Publishers} DOH
Based on these assumptions, life skills training entails a declarative phase during which
as a diversion mechanism makes use of social details about a skill are provided, followed
cognitive theory to bring about change in child by a procedural phase in which knowledge is
offenders. Social cognitive. theory explains embodied in performing the skill. The latter
human action in terms of the triadic reciproc- consists of association, rehearsal and feed-
ity between the environment, behaviour and back, ultimately to promote insight into the
cognition, all of which function as interact- value of the skill. The final stage amounts
ing determinants of one another (Bandura to generalisation where the new behaviour
1986: 18-21). From a broad perspective, social becomes spontaneous, and application of the
cognitive theory prescribes the following capa- skill takes place across different situations
bilities for behaviour (Bandura 2001: 6-10): (Algozzine et al. 2001: 247). Structured activ-
ities promote group interaction and sharing,
¢ Symbolising capability. Past experiences and
and vicarious self- and social reinforcement
symbolising abilities allow an individual to
are common. Active participation, especially
test possible solutions symbolically and
through role play and group discussion, facil-
estimate the outcomes before taking action.
itates insight into the behaviour generated
¢ Forethought capability. By using future time during group sessions. At the same time, it
perspectives, the likely consequences of serves as platform for experimenting, ana-
prospective behaviour can be anticipated. lysing and identifying effective behavioural
e Vicarious capability. Through observing the responses. Participants also have an opportu-
behaviour of others and the consequences nity to learn from the mistakes of others (Ban-
thereof, people can learn behaviour without dura 1986: 271).
engaging in those actions themselves. Specific methods employed in life skills
e Selfregulatory capability. Personal stan-
training include role play; discussions guided
dards dictate discrepancies between an by a facilitator; coaching where participants
action and the standards against which it is demonstrate and practise the skill; the use of
print material and homework; and case stud-
evaluated.
ies or critical events where alternatives and
¢ Selfreflective capability. Reflective self-con- outcomes for behaviour are identified and
sciousness allows people to analyse experi- analysed (cf Eberséhn & Eloff 2003). Methods
ences and reflect on their own thought pro- to strengthen the learning of life skills include
cesses. making use of peers throughout the process
and having them monitor the use of skills;
In view of social cognitive theory dictating using skills in a variety of circumstances;
that human behaviour is largely learnt, it log- and establishing self-monitoring procedures
ically flows that learning principles are to to regulate the use of skills (Algozzine et al.
be employed in the acquisition of life skills. 2001: 251).
In fact, the very nature of life skills training In 1993, NICRO developed the life skills-
implies that they be acquired in a practical based programme “Mapping the Future”,
manner and, more specifically, through expe- which was revised in 2000. The programme
riential learning. This mode of learning states sets out to achieve the following (National
that appropriate behaviour must be experi- Institute for Crime Prevention and Reintegra-
enced in the context of an exercise, followed tion of Offenders 2000: 6-7):
by reflection on reactions and observations,
and a period to internalise the learnt principles e Transfer skills to children. that will assist
(Eberséhn & Eloff 2003: 41, 67). In essence, them to understand themselves, relate to
therefore, the practical usefulness of life skills others and take responsibility for their
has to be experienced in order to understand deeds.
and use them effectively. This necessitates a e Provide a platform for children to share
facilitator and the active involvement of partic- their views and feelings in a non-threatening
ipants to practise, test, accept and apply newly way.
learnt behaviour. e Strengthen the ability of children to cope
A broad framework for acquiring life skills with the challenges in their environment.
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226 © publishers
_GRAFTER
13 _ DIVERSION
e Facilitate communication between children of others is addressed, the dishonouring
and their parents. of which means forfeiting some personal
¢ Promote self-respect and respect for others rights.
within a human rights framework. ¢ J am part of ... The session deals with the
e¢ Encourage and advance parental responsi- need for laws and norms in society and why
bility. it is necessary to adhere to them. An under-
standing of the importance of legislation is
The programme is interactive and reality based promoted in addition to awareness about
regarding the challenges facing children today. different sanctions for offending behaviour.
The manual provides numerous examples and e J respect ... The session facilitates an under-
exercises of real events to stimulate learning. standing of socialisation, particularly in
It is up to programme implementers to decide terms of gender and how self-perception
which activities and themes to include (NICRO and self-worth are influenced by stereotyp-
2000: 8). The programme content, structured ing and the media. Participants are to chal-
over eight sessions, is summarised below: lenge their own misconceptions, thereby
creating awareness about the equality of all
¢ Who am I? The first session sets out to
people.
develop a healthy self-concept and an
understanding of how responsibility relates ¢ I commit ... In the final session, it is essen-
to choices and actions. Emphasis is placed tial to place participants on a secure path
on the impact of having a criminal record. for the future. They are requested to openly
The session also aims to promote parent- pledge achieving something concrete and
child interaction through role play. specific in relation to the goals they have
set. In promoting reconciliation and trust,
¢ Jam... The session centres on self-belief
participants ask their parents for forgive-
and the inherent ability of people to ness, and communicate about how they
change. Attention is given to stereotyping wish to relate to them in future.
and how internalised negative labels affect
behaviour. The session builds on the first
with continuous focus on strengthening the 11.3.2 Mentoring
self-concept of participants.
Parents are generally viewed as the most
¢ I respect you and I can say my say ... The important adults in the lives of children since
session aims to develop conflict resolu- they significantly impact on the beliefs, atti-
tion and assertiveness skills, as well as an tudes, behaviours and goals of their young
understanding that conflict is normal and (Beam, Chen & Greenberger 2002: 305). Sever-
can be managed in appropriate ways. Pas- al stressors have been indicated which distort
sive, assertive and aggressive behaviour or impede the ability of parents to meaningful-
responses are explained, and participants ly support and develop their children. These
practise effective communication. include unstable home environments situated
in poor and marginalised communities, and
¢ Ihave choices ... The session aims to enhance
those characterised by dysfunction, child
responsible decision making and instil an
neglect and deprivation, single and disrupted
understanding of the relationship between
or inconsistent parenting, as well as alcohol
choices and achieving personal goals. Cen-
and drug abuse (Campbell 2005: 91; Gur & Mill-
tral to this stands decisions and offend-
er 2004: 587; Hall 2007: 15; Larson 2006: 677;
ing behaviour. Future planning focuses
Steyn, Louw & Van Rensburg 2012: 124;
on longer-term personal and career aspira-
Vanderven 2004: 95). Amid these challenging
tions, and group discussions appraise these
circumstances, children may not have at least
in terms of achievability.
one older, more experienced person who can
¢ I have rights and responsibilities ... The ses- provide guidance and stability. Section 53(1)
sion sets out to inform participants about (f) of the Act advocates for the use of mento-
their rights and how these balance with cer- ring as an intervention strategy. It states that
tain responsibilities. Respecting the rights a child may be placed “under the supervision
Van Schaik
©publishers 227
and the guidance of a mentor or peer in order mental health, positively influence self-worth
to monitor and guide the child’s behaviour”. and beliefs about personal competence, and
In current usage, mentoring implies a cross- strengthen the ability to negotiate the challenges
age, dyadic relationship between an experi- associated with adolescence (Abrams et al.
enced, caring adult and a disadvantaged or 2014: 407). In addition, mentoring assumes that
troubled younger person (Davies & Thurston positive attributes created or strengthened by
2005: 37; Steyn et al. 2012: 127). A troubled facilitated relationships can be generalised to
young person is paired with an adult with the other proximal bonds and life experiences (Dal-
aim of building a relationship that will nurture los & Comley-Ross 2007: 381).
the young person’s development and wellbe- Mentoring as an intervention has its roots in
ing, and promote positive growth (DuBois, Por- developmental psychology (Phillip & Hendry
tillo, Rhodes, Silverthorn & Valentine 2011: 58; 1996: 189). More specifically, it is founded on
Timpe & Lunkenhelmer 2015: 12). By conven- modelling, which believes that children learn
tional standards, the age difference between behaviour by observing adults and peers.
the mentor and mentee varies between eight Skills and cognitive development thus take
and 15 years (Day 2006: 196). Mentoring rela- place by emulating the traits and abilities of
tionships are based on acceptance and sup- the model perceived as important (Karcher
port in order for the mentor to provide atten- 2005: 67). However, modelling does not entail
tion, guidance and understanding. This serves mere behavioural mimicry, but conveys rules
to assist the young person in negotiating life’s for generative and innovative behaviour (Ban-
challenges and to foster his or her potential dura 1999: 25). It consists of four sub-functions
((DuBois et al. 2011: 66; Abrams, Mizel, Nguy- (Bandura 1997: 89-90):
en & Shlonsky 2014: 406; Wesely, Dzoba, Miller
& Rasche 2016: 200). Mentoring is consid- e Attention processes influence what is selec-
ered an effective means of intervention for tively observed of the model and what
at-risk youth (DuBois et al. 2011: 80; Wesely information is taken from modelled events.
et al. 2016: 211). Although mentoring relation- These processes depend on the cognitive
ships are generally not prescriptive, expert or abilities, preconceptions and value pref-
overtly therapeutically driven (Dallos & Com- erences of the observer, while the promi-
ley-Ross 2007:370), those involving at-risk nence, attractiveness and functional value
populations are usually structured to organise, of modelled activities equally play a role.
sustain and monitor matches (McPartland & ¢ Cognitive representational processes,
Nettles 1991: 569). or retention, relate to transforming and
In the context of child offending, mentor- restructuring information about modelled
ing as an intervention assumes the following events for recollection in the form of rules
(Steyn 2005: 283-284): and concepts. Retained behavioural con-
e During their formative years, young people cepts serve as generative guides for actions
require guidance and support from older, and variations thereof to fit different cir-
more experienced persons. cumstances.
e Adolescents who are at risk of criminal ¢ In the behavioural production process, con-
behaviour often grow up without a father cepts are converted into adapted action.
figure or positive role model in their lives. Behaviour is subsequently modified to cor-
e The establishment of longer-term, trusting respond closely with retained concepts. In
relationships can help at-risk adolescents to other words, the adequacy of behaviour is
cope with challenges. compared against the conceptual model
e Meaningful interaction between a men- with the aim of matching actions to that of
tor and an at-risk child stimulates a posi- retained concepts.
tive self-concept, which in turn promotes ¢ Performance of observationally learnt
responsibility. action is maintained or strengthened
through motivational processes in the form
It is believed that mentoring relationships of direct rewarding incentives (as opposed
can build self-esteem and resilience, promote to punitive effects), being motivated by
208
CHAPTER 11 _ DIVERSION
the successes of others, and personal stan- emerge over longer periods of time (DuBois
dards or worth of conduct. et al. 2011: 65). Programmes thus tend to indi-
cate the duration of the relationship, as well as
The theoretical foundations of mentoring the number and length of mentoring contacts
necessitate suitable structures and processes (Karcher, Kuperminc, Portwood, Sipe & Taylor
to facilitate and monitor effective modelling 2006: 716). It is generally accepted that mento-
relationships. Agents involved in structured ring relationships with at-risk children should
mentoring are adults, at-risk children, and the last for between six and 12 months (Open Soci-
initiatives that establish and oversee matches ety Foundation 2002: 18).
(Wandersman, Clary, Forbush, Weinberger, Activities with enjoyable and developmen-
Coyne et al. 2006: 782). Successful mentoring tal characteristics are needed for mentors
depends upon the interconnectedness of all to establish themselves as significant adults
three of these agents. Mentors require some in the lives of troubled children (DuBois et
form of training prior to their being matched al. 2002b: 54). Although the type of activities
with participating children. This is, in part, matches engage in could be stipulated, men-
undertaken to identify opportunities for mean- tors must be alert to opportunities that can
ingful interaction, provide guidelines on how stimulate the relationship and interests of
to optimise the mentoring experience and the child (Gilligan 1999: 192). These include
deal with conflict, and establish a knowledge cultural, entertainment and sporting activi-
base for mentoring a troubled child (Belshaw ties. Some mentoring organisations provide
2007: 2). Training may include themes on programme-sponsored events, such as cul-
diversity, goal setting, problem solving, child ture evenings and attending sports matches
abuse, alcohol and drug abuse, and domestic (Vanderven 2004: 97). Regardless of the nature
violence (Jucovy 2001: 11). Ongoing training of activities, they must offer conditions for
and support feature to track progress and rein- communication, motivation, learning and asset
force perseverance in the relationship. This building (Larson 2006: 684-686). Continued
could include forums where mentors share support and supervision of relationships are
experiences and good practice in working with essential (Thompson & Kelly-Vance 2001: 238).
at-risk children (DuBois & Neville 1997: 233; As both potential contributors to and inhib-
Vanderven 2004: 97). itors of the offending behaviour of children,
For structured mentoring to succeed, the parents must, when available, be involved in
likelihood of compatibility between the men- the mentoring experience. On the one hand,
tor and the child is imperative (DuBois et al. concerns have to be clarified about the safety
2011: 62). Key variables considered in this of their children and matters related to paren-
matching process include demographic char- tal authority (Morley & Rossman 1997: 50). On
acteristics, the time volunteers have available, the other hand, their buy-in and commitment
intervention needs, preferences, interests and are likely to reinforce the positive influence of
personality (DuBois et al. 2011: 77). Mentor- mentors, as well as to counteract feelings of
ing relationships must be flexible yet tailored being supplanted by alternative adult support
to the specific intervention needs of the child for their children (Rhodes, Grossman & Resch
(Gray & Seddon 2005: 70; Karcher 2005: 66). 2000: 1669). Some mentoring programmes also
Goals and objectives are generally struc- target other family members in addressing
tured around the purpose of the match and dysfunctional relationships and domestic chal-
the anticipated developmental outcomes, for lenges perceived to generate antisocial and
example school attendance, academic achieve- criminal behaviour (Belshaw 2007: 5).
ment, positive peer relationships or pro-social Although some matches terminate prema-
behaviour (Wandersman et al. 2006: 782). turely due to incompatibility or eventual opt-
Mentoring requires time to mature and ing out by either participant, most mentoring
unfold into caring relationships (Steyn relationships come to an end at some time
2005: 236), therefore the timespan of relation- (Jucovy 2001: 14). If not carefully planned,
ships, as well as the frequency and intensi- such separation could cause severe distress
ty of contacts, are important moderators of on the part of the child and may even negate
mentoring effects. Also, benefits are likely to the positive gains brought about by the inter-
even Schaik
Publishers) 2DOO
vention. Mechanisms to facilitate the termina- fore problem behaviour ought to be handled
tion process could include a farewell ceremony in a kgotla (homely) fashion before the conflict
or, at least, arranging intermittent contact can be considered irresolvable (Pule 2002: 9).
(Vanderven 2004: 102). Nevertheless, it is pos- In this framework, the broader community
sible that mentoring might be a worthwhile also has stake in the raising of children, which
diversion strategy for some children, under includes dealing with their problem behaviour
specific circumstances and with particular (Badenhorst & Conradie 2004:121; Mou-
needs, hence the need for proper assessment. sourakis 2004: 13).
FGC entails creating a platform for child
offenders and those affected by the criminal
11.3.3 Family group conferencing act to discuss the events surrounding the crime
Section 61 of the CJA defines family group and its impact in order to develop a mutually
conferencing (FGC) as an informal proce- beneficial strategy to remedy it (CJA 2008 s
dure which brings together the alleged child 61(1)(a); Department of Justice and Constitu-
offender, the victim, their families and other tional Development 2011: 9). The parties then
relevant persons in order to develop a plan come to an agreement on the steps needed
on how the child will redress the effects of to remedy the offence (Hipple, Gruenewald &
the offence. FGC has its roots in restorative McGarrell 2014: 1132; Steyn 2012: 79). FGC pro-
justice. Restorative justice differs substan- vides for a range of potential outcomes, includ-
tially from conventional (specifically retribu- ing an apology, community service, restitution,
tive) views of justice where a case is roughly compensation or attendance of rehabilita-
turned into a contest between prosecutors (on tion programmes (Baffour 2006:557; Morris
behalf of the state) and lawyers (on behalf of 2002: 599). The approach has conventionally
the accused). Whether an accused is found been used with first-time non-violent offend-
guilty or not implies that there is a winner and ers, such as property crime and minor assault
a loser (Pule 2002: 9). Furthermore, victims are (Bradshaw, Roseborough & Umbreit 2006: 88;
largely ignored in retributive justice since their Hudson 2002: 621). However, it has also been
interests are represented by either the state employed to intervene in some cases of adult
or legal practitioners (Mousourakis 2004: 7; assault and domestic violence (Dissel 2000: 2;
Shearar 2005: 9), yet crime of any kind can Hargovan 2009: 75). The basic assumptions of
have an immense impact on victims. Not only FGC are the following (Steyn 2005: 283-284):
does victimisation often imply financial costs, ¢ Crime does not only affect the victim, but
but it leaves the victim with many unanswered also the family and the community.
questions (Zehr 1990: 26). Also, victims gener-
¢ Crime is effectively managed with the active
ally have little direct say in the sentencing of
involvement of all stakeholders.
offenders (Muntingh & Monaheng 1998: 14).
Restorative programmes aim to actively ¢ Responsibility and accountability are
involve the victim(s) of the offence to mean- achieved by making amends for the wrong-
ingfully participate in diversion procedures doing, either symbolically or directly to the
(Badenhorst 2013: 315; Hargovan 2013: 25). victim and/or the community.
When an adolescent is prosecuted for a ¢ The relationships that were damaged by the
criminal act, the power of the family to inter- crime, as well as the resulting conflict, can
vene is shifted to the state. Some parents want only be harmonised through dialogue and
the state to take over this function through for- negotiation.
mal procedures, because the disciplinary mea-
sures they used were no longer effective. As The underpinnings of FGC draw from belong-
such, mechanisms are needed for families to ing, systems and humanistic schools of
be re-empowered to play their rightful role in thought. Attachment to others and a sense
the upbringing of children (Morris 2002: 598). of belonging provides the structure through
Furthermore, crimes are often committed which personal relationships are carried out.
against people with whom the child interacts Children are born into a group (i.e. the family),
regularly (Kuloane 2002: 7). In ubuntu philoso- which is primarily tasked to care for, protect
phy, every child is a child of the nation, there- and socialise them (Toseland & Rivas 2009: 3;
Van Schaik
230 ©publishers
Zastrow 2009: 244). In light of this important In light of the assumptions and theories under-
task, poor communication and problems with- pinning FGC, it is clear that mechanisms are
in the family are considered important cata- needed to establish meaningful dialogue
tysts in the behavioural problems of children among the parties affected by the offence.
(Farley, Smith & Boyle 2003: 80). In addition to Group work as an intervention method meets
familial bonds, children and adolescents con- this requirement. Group work'is defined as
Stantly interact with multiple social systems goal-directed activities with two or more peo-
such as peers, schools and the communities ple aimed at achieving socio-emotional goals
they grow up in (Gray 2010: 87). Groups do not and accomplishing tasks (Toseland & Rivas
exist in a vacuum but make up the parts of a 2009: 12). Activities take place within a sys-
broader system that legitimises and influenc- tem of service delivery, and set out to reduce
es their purpose (Toseland & Rivas 2009: 12). or eliminate blockages to socially desirable
With this in mind, the ecological perspective behaviour. In group work, the individual
considers the meaningful structures within remains the focus of concern with the group,
a person’s life and how he or she functions serving as a vehicle for growth and change
within that environment (Bronfenbrenner (Farley et al. 2003: 83, 85). Group work gener-
1977: 513; 1994: 37). It explains interrelation- ally pursues the goals of improving social func-
ships within the system, which holds specific tioning, promotes feelings of belonging with
value for the assessment of problems and the others, stimulates positive personality traits,
level or subsystem which requires interven- and assists in solving problems (Strydom &
tion (Gray 2010: 82, 86). Strydom 2010: 126).
From a_ therapeutic framework, the In structured, time-limited groups such as
strengths of and existing capabilities within FGC, problem-solving approaches have the
the system play a pivotal role in promoting an advantage of being specific, concrete and rep-
individual's effective functioning. With this in licable. They have the potential of addressing
mind, it is evident that theorising about FGC immediate challenges while also strengthen-
represents a shift from individual theories to ing the interpersonal abilities of participants
those of collective existence. Gray (2010: 81) (Rose 1998: 27-28). Closed-ended group work
notes that this has important implications for implies that members are identified prior to
contemporary South Africa given its diverse the commencement of the group (Zastrow
population and traditional notions of collec- 2009: 11). With FGC, stakeholders who attend
tiveness. While it can be argued that many the meeting include the offender and the vic-
traditional norms have and are being eroded tim, those who support the two parties (most-
by Western influences, a focal point in presently family members), and community members.
day South Africa nevertheless revolves around A police or probation officer could represent
mutual understanding and respect for fellow the interests of the community at the FGC. The
human beings, regardless of ethnic origin FGC process has four distinct phases, which
and personal preferences. From a humanis- will be discussed next.
tic approach, the values underlying the very
nature of human existence, conflict and the
11.3.3.1 Referral and reception
search for healing include the following (Umb-
reit 1997: 204-205): If they meet the criteria for diversion, child
offenders are referred to a provider of FGC
¢ Beliefs in the connectedness of a common
services by the court. Service providers liaise
humanity and the desire of most people
with the relevant probation officer or social
to live peacefully and to grow through life
worker regarding the assessment of the child,
experiences
and to ensure that victims will voluntarily par-
¢ The capacity of all people to draw upon ticipate in the programme. The referral itself
inner reserves to overcome adversity and serves to start orienting the child about what
to assist others in similar circumstances can be expected of the conferencing process
e The inherent dignity and self-determination (Steyn 2010:110). Referral documentation is
that arise from embracing conflict through scrutinised as it provides background informa-
dialogue and mutual aid tion about the crime and the child offender.
evn Schaik 231

11.3.3.2 Preparation Once all parties have expressed their views,

they engage in a brainstorming session about
The careful preparation of participants is an
the actions needed to remedy the offence. FGC
essential component of effective group work
is by no means prescriptive about the agree-
(Strydom & Strydom 2010: 136). As a first step, ment since cases are treated individually. Par-
the facilitator becomes acquainted with the
ticipants are guided toward the best solution
members through a series of individual inter-
for the matter at hand (Strydom & Strydom
views. These meetings also serve to formu- 2010: 132-133). Flexibility and innovation in
late individual expectations and the overall
the decision-making process is imperative
goal that the FGC needs to achieve (Farley et (Shearar 2005: 6). Outcomes can include repa-
al. 2003: 90, 93). Initial meetings may expose ration in various forms, for example financial
underlying problems which contributed to the compensation, community service or a service
child’s criminal behaviour, such as domestic or performed to the satisfaction of the victim.
substance abuse. Preparation of the victim and Still, it is acknowledged that children are not
his or her family entails assessing the impact necessarily in a position to pay for the damage,
that the crime had on them. When dealing hence the importance of having their parents
with participants from diverse backgrounds, involved in the FGC. The child offender can
preliminary interactions also provide an also be requested to, as part of the agreement,
opportunity to identify possible challenges to attend further developmental programmes
effective cooperation. Sociocultural practices, such as life skills training. Some activities are
in particular how people communicate and symbolic in nature, where the child performs
show respect, can have a profound impact on a service to the victim in the form of domestic
group processes and outcomes if they are mis- tasks. Care is taken to ensure that any type of
understood (Branken 1997: 42-43; Strydom & restitution entails a positive experience in the
Strydom 2010: 127). child as opposed to feelings of being punished.
The providers of FGC services often have link-
ages with welfare and treatment agencies to
11.3.3.3 The meeting
which participants can be referred, for exam-
The meeting phase represents the interaction ple in cases of drug dependency or family dys-
among FGC participants. Following introduc- function.
tions, a composite list of the expectations and The length of the actual conference
goals drafted during the preparation phase is depends on the nature of the offence and the
presented to and refined by the group (Zas- level of victimisation, but seldom takes less
trow 2009: 93). A safe place is created within than two and a half hours. The conference is
which participants can express their feelings held in the community so as to be accessible
openly. The facilitator, who remains neutral to participants. It also promotes a sense of the
throughout the meeting, structures the con- intervention being based in the community.
ference and maintains order during the pro- Facilitators make use of venues at schools and
ceedings. The facilitator must ensure that all churches for this purpose. In addition to the
participants are treated with respect and that facilitator, about six people attend the confer-
they experience the conference as fair and ence, and some accommodate up to 15 partic-
equitable (Hipple et al. 2014: 1136). All parties ipants. Care is taken not to allow one party to
take a turn in relating their views and expe- bring too many supporters to the meetings so
riences, in particular listening to the impact that the conference and the opinions do not
the offence had on others. All parties have to become one-sided (Steyn 2010: 111).
verbalise their emotions. The facilitator must
manage strong emotions as the child is some-
times exposed to severe scolding. The offender
11.3.3.4 Follow-up and aftercare
has time to apologise to the victim and the The plans developed during an FGC must be
families, while the victim has time to forgive. followed up. Effective monitoring is an essen-
Usually the presence of legal representation in tial component of FGC since the court expects
the conferencing phase is not permitted (Steyn the agreement to be fulfilled. Different compo-
2010: 111). nents of the plan that need monitoring can be
232
CHAPTER
11 DIVERSION
delegated to different members of the group. 2005: 181). In addition, strategies are needed to
The length and scope of follow-up largely increase the personal growth, self-worth and
depend on the needs of participants and the sense of accomplishment of participants in
nature of the agreement. Individual cases are order to foster positive direction in life (Bosch
tracked until the agreement is fully honoured. & Oswald 2010: 64). Outdoor diversion aims
Providers of FGC services submit a final report to strengthen the self-image of participants
regarding the outcomes of the diversion to the through activities that challenge them at a
referral court (Steyn 2010: 111). physical and emotional level. Participants per-
ceive programme activities as insoluble, risky
and even dangerous, when in fact they are
11.3.4 Outdoor programmes safe. Successful completion of these activities
Entry-level diversion programmes, such as facilitates altered perceptions of the self, oth-
the predominantly classroom-based life skills ers and the environment in advancing positive
training, are sometimes ineffective with adoles- psychological and behavioural change (Steyn
cents who present chronic problem behaviour. 2010: 75). As such, outdoor diversion makes
The self-destructive paths of children guilty the following assumptions about the criminal
of more serious and persistent criminal behaviour of children (Steyn 2005: 283):
behaviour often have their roots in prolonged e Disconnectedness between the self, oth-
exposure to adverse social conditions and ers and the environment hampers effective
negative life experiences. Among these are the functioning.
risk factors associated with disrupted family
e Past experiences have to be understood
life, deprivation, violence and personal trauma
before strategising for the future can be
(Bruyere 2002: 210; Steyn & Louw 2012: 423;
undertaken.
Zygmont 2014: iii). A sense of imbalance or
e Unfamiliar settings and active participation
disequilibrium between the self and others
in physical and emotional challenges stimu-
is thereby created. This is accompanied by
late learning.
defence and coping strategies that involve
lower levels of impulse control and risk mea- e¢ Responsibility is promoted by _ instilling
surement, decreased empathy toward others pro-social values through collective under-
and reality, and indifference to consequences standing and learning.
(Peterson & Stumbo 2000: 32). The typical
profile of participants in outdoor diversion Based on these assumptions, outdoor diver-
are high-risk youth older than 16 years of age, sion has its foundations in the theory of self-
serious misbehaviour (such as drug use and efficacy, which relates to the strength of a per-
aggression), poor performance at school or son’s belief that a task that tests his or her
unemployed school dropouts, identified past abilities can be achieved successfully. Self-
trauma, dysfunctional home environments, efficacy theory states the following (Bandura
gang affiliation, and more serious and repeated 1977: 191-201):
offending in the form of housebreaking, theft e Perseverance in activities that are sub-
and assault with the intent to inflict serious jectively perceived as daunting enhances
bodily harm (Steyn & Louw 2012: 428). self-efficacy and reduces defensive
Outdoor diversion inherently means remov- behaviour. Experiences of mastery which
ing participants from their everyday distrac- arise from effective performance therefore
tions. This creates opportunity for partici- positively alter cognitive processes.
pants to focus on their lives (Bosch & Oswald
2010: 68). The child is placed in an unfamiliar ¢ Self-efficacy entails generality where the
environment where the usual leisure of home sense of mastery can be transferred to dif-
and factors predisposing offending and prob- ferent situations outside the treatment
lem behaviour are absent (Bartholomew focus. The more varied the circumstances
2002: 2; Garst, Scheider & Baker 2001: 48). The in which threats are mastered, the greater
situation causes a level of vulnerability and dis- the potential for generality.
sonance since previous strategies to cope with e Effort is needed to sustain notions of self-
reality no longer work as effectively (Steyn efficacy amid contradictory information,
Onbisres) 233
existing barriers and absence of experi- e Facilitating communication skills (in partic-
ence. Success with easy tasks provides little ular leadership and listening)
directive for increased self-efficacy, while ¢ Promoting adaptability, — self-discipline,
mastery of a major challenge could surpass cooperation and responsibility
numerous small setbacks. e Drawing out the particular strengths of indi-
vidual participants
The vehicle through which outdoor program-
ming pursues self-efficacy in child offenders The outdoor activities serve to propel and
is experiential learning. This entails specific extend the physical abilities of participants
events that change the way participants feel, parallel to their emotional capacities (Ryklief
think or behave, and primarily involves reflec- 2002: 6). In addition, conflict within the group
tion, integration and continuation (Priest is welcomed as it provides an opportunity to
2001: 34). Outdoor diversion entails three implement and strengthen problem-solving
broad phases, namely preparation, the adven- skills. The task of programme facilitators is to
ture and follow-up (Steyn 2010: 83-84): guide the emotional experience of participants
by using metaphors to connect physical and
mental experiences.
11.3.4.1 Preparation phase The adventure activities are followed -
Prior to the adventure component, the identi- either immediately or around the campfire at
fied individual needs of participants are com- night - by a debriefing process where partici-
piled into common needs of the group, which pants have an opportunity to express what
in turn inform the specific aims and design they have experienced, and how this relates
of the intervention. The preparation phase to their daily lives and pressures. As such,
sets the stage for participants to get to know the therapeutic sessions provide a platform
each other and to become familiar with the to deal with their past experiences, and plan
process of the intervention. Details of the pro- immediate and longer-term goals for their
gramme are not disclosed beforehand in order future. Future plans are developed with the
to achieve the desired outcomes. As part of input of fellow participants. In this regard,
the preparation, participants engage in group Bosch and Oswald (2010: 68) note that a “grow-
cohesion and various teambuilding activities. ing sense of trust in one another and in the
Group rules are formulated, and participants instructors helped participants to share ‘their
commit themselves to the programme by stories ... These trusting relationships created
signing them. Meetings with parents are also a platform of understanding and empathy
undertaken to inform them about the purpose where they could share their experiences with
of the intervention, as well as to obtain con- others and grow within themselves”.
sent and indemnity for their children’s partic- Equally important are the communication
ipation. and problem-solving lessons they learnt during
the adventure activities, and how to trans-
fer these to the home, school and community
11.3.4.2 Adventure phase environments. At all times, facilitators strive
to ensure an environment that is safe and con-
Depending on resources, the adventure phase
ducive to empathy and the sharing of intimate
can encompass various outdoor activities such
life experiences and trauma. Matters that may
as rope and problem-solving courses, hiking,
require follow-up intervention are identified
mountaineering, abseiling, navigation, horse
and taken up during the next phase of the out-
riding and canoeing. Some programmes entail
door programme.
keeping a daily journal and spending long peri-
ods of time alone (Bosch & Oswald 2010: 69).
Each activity has specific goals, and includes 11.3.4.3 Follow-up and aftercare
a combination of the following (Moolman Following completion of the adventure phase,
2002: 3): parents are provided with feedback, and the
e Strengthening the ability of participants to child’s future plan is discussed. A victory
persevere function is held where participants can share
934 |Orbinens
their experiences and commit themselves to ring programme with 34 youths deemed at risk
changing their behaviour. Certificates are proof offending and mental illness found signifi-
vided as a token of appreciation for their brav- cant improvement in problem behaviour, com-
ery. Follow-up takes the form of regular group pared with a group of 34 youths who remained
meetings to assess progress, and individual on the waiting list (Keating, Tomishima, Foster
sessions with participants and their parents. & Alessandri 2002: 717). However, no signifi-
The psychological and emotional changes cant effects were found over a one-year period
brought about by outdoor diversion provide regarding the emotional or behavioural adjust-
an important basis from which further pro- ment of 67 mentored children compared with
social behaviour can be developed (Steyn & a matched comparison group (DuBois et al.
Louw 2012: 431) 2002b: 46). It is worthwhile to reflect on the
key results of three meta-analyses that set
out determine the effect of mentoring on chil-
11.4 EVIDENCE ABOUT THE dren. Firstly, a meta-analysis of 55 mentoring
IMPACT OF DIVERSION evaluations showed a modest or small benefit
In the 1990s and early 2000s, a limited num- for average youth participating in mentoring
ber of research studies were conducted in (DuBois et al. 2002a: 187). The authors noted
South Africa to determine the extent to which that this result stands in stark contrast to the
diversion programmes prevent re-offending. widespread and commonly unquestioned sup-
Life skills training as a diversion strategy has port for mentoring as intervention with the
received most research attention. Studies problem behaviour of children. Secondly, a
found recidivism rates of 17,1% (Kivedo & meta-analysis of 73 evaluations of mentoring
Botha 1999: 82); 19,6% (Kok 1994: 32); 21,6% programmes found improved outcomes across
(Steyn 2008: 233); and 25% (Morata 2002: 4). behavioural, social, emotional and academic
This suggests that between one in four and spheres, although these outcomes appear
one in five children re-offend following par- modest with a 9% difference compared to
ticipation in life skills-based diversion. When non-mentored youth (DuBois et al. 2011: 57).
combined with other intervention mecha- Thirdly, a meta-analysis of 46 interventions
nisms - such as community service, victim- aimed at offending and high-risk youth found
offender mediation, mentoring and outdoor significant improvements regarding aggres-
programmes - recidivism decreases to 3% sive behaviour, drug use and academic per-
(Schmidt 2003: 7); and 6,7% and 9,8% (Munt- formance, although all three outcomes were
ingh 2001: 33). Research indicates re-offences modest in effect sizes (Tolan, Henry, Schoeny,
to amount predominantly to property crimes Lovegrove & Nichols 2013: 197). The results of
(Kok 1994:31; Muntingh 2001: 46). Studies the three meta-analyses suggest that, although
found information on crime and the law, good mentoring has a positive influence on children
behaviour, relationships, peer pressure and with problem behaviour, the effects of such
decision making to be mostly retained by par- programmes appear marginal.
ticipants (Muntingh 2001: 31; Steyn 2008: 231). While the benefits of restorative justice
Life skills training may well buffer children procedures for adult offenders in South Africa
against future problem and criminal behaviour. have been explored (cf. Hargovan 2009; Steyn
A meta-analysis of 69 after-school programmes & Lombard 2013), evidence is lacking about
demonstrated that participation in life skills the effectiveness of FGCs with child offend-
training significantly strengthen participants’ ers. Investigations from other countries, espe-
personal, social and academic life, specifi- cially the US, Australia and New Zealand, pro-
cally in relation to behavioural adjustment, vide indications of the influence of restorative
school performance, self-perceptions, bonding practice on offending behaviour. The greater
to school and pro-social behaviour (Durlak, part of investigations, including three meta-
Weissberg & Pachan 2010: 299, 302). analyses, suggests that about a third (28-34%)
Locally, no decisive evidence exists about of offenders re-offend following participation
the impact of mentoring with child offenders. in restorative programmes; in experimental
In addition, research from abroad shows con- studies, the majority of offenders were less
tradicting results. A six-month intensive mento- likely to re-offend when compared to control
even Schaik
Publishers} QOH
groups (Bergseth & Bouffard 2007: 441; Bonta, impacts (Gecevis 2004: 2087; Kaly & Heesack-
Jesseman, Rugge & Cormier 2006: 117; Bonta, er 2003: 102; Larson 2007: 326). Evidence on
Wallace-Capretta, Rooney & McAnoy 2002: 320; recidivism among child offenders shows a sim-
Bradshaw et al. 2006:87; Latimer, Dowden ilar trend. A meta-analysis of 28 outdoor pro-
& Muise 2005:137; Rodriguez 2007: 355). grammes found a moderate recidivism rate of
Research in South Australia found that, among 29% as opposed to 37% for comparison groups
365 youths who committed sex offences, those (Wilson & Lipsey 2000:11). Another meta-
- who participated in restorative conferenc- analysis of 197 outdoor programmes found
ing were less likely to have engaged in crim- better outcomes for adult participants, possi-
inal behaviour compared to children who bly since adults voluntarily enrol for outdoor
were sent to court (Daly, Bouhours, Broad- programmes while minors are more likely to be
hurst & Loh 2013: 241). In the US, Hipple et referred to such interventions (Bowen & Neill
al. (2014: 1132) found that, in a sample of 215 2013: 40). Similar to other types of interven-
youths, less re-offending featured when FGCs tions, this meta-analysis found significant short-
follow the principles of restorative justice and term and overall moderate treatment influence
procedural fairness. A randomised study of 225 on the psychological and/or behavioural func-
children with a history of property and violent tioning of participants (Bowen & Neill 2013: 41).
offences revealed that 28% were re-arrested There are numerous studies from abroad
within 18 months following participation in the commenting on the effectiveness of diversion
programme (Baffour 2006: 571). In general, vic- programmes, regardless of the type of diver-
tims and offenders express high levels of sat- sion intervention. For the purposes of this
isfaction with the mediation process (Bonta chapter, two meta-analyses are noteworthy
et al. 2006: 114; Bradshaw et al. 2006: 89; Mc- regarding broader influences of diversion and
Cold & Wachtel 2000: 16; Mutter & Dugmore diversion programming. In their meta-analysis
2008: 262; Umbreit & Fercello 1997: 8; Wem- of 39 programmes aimed at young offenders,
mers & Cyr 2005: 540). However, restorative De Vries, Hoeve, Assink, Stams and Asscher
intervention appears to have little impact on (2015: 108) found that effective interventions
the recidivist behaviour of higher-risk offend- are multimodal in nature, behaviour oriented
ers (Bonta et al. 2006: 117). and involve the child's family. Greater effects
Despite numerous investigations, mixed are also achieved by less intensive pro-
results characterise the impact of outdoor grammes, which underscore labelling the-
intervention with at-risk groups, including ories that state that excessive intervention
child offenders. Authors generally agree that may well propel a child to engage in further
this intervention strategy lacks a well-organ- and more serious criminal behaviour. The
ised, indisputable and’ widespread knowledge second meta-analysis of the effectiveness of
base about effectiveness (Bruyere 2002: 207; diversion programmes was conducted by Wil-
Garst et al. 2001:42; Larson 2007: 326; Neill son and Hoge (2013). The study included evi-
2003: 317; Sprouse & Klitzing 2005: 17). Local- dence about the outcomes of 73 diversion pro-
ly, many anecdotal reports — particularly in the grammes based on restorative justice, commu-
media (cf. Robertson 2003; Mockenhaupt 2016) nity service, restitution, education and treat-
— feature the benefits of outdoor programmes, ment modalities. Key finding are the following
yet descriptions are almost exclusively based (Wilson & Hoge 2013: 507, 509):
on their esoteric properties of bringing about
* Greater effectiveness is achieved with low-
healing and personal growth. Investigations
risk youth who are diverted before formal
have thus far yielded contradicting results
charges are laid compared to programmes
across key outcome variables of outdoor pro-
geared towards low-risk youth who had
gramming. Although some support has been
been formally charged.
generated for the intervention’s objective of
bringing about a healthy self-concept, self- ¢ No differences prevailed in the effectiveness
esteem and resilience among at-risk ado- of diversion programmes regarding male
lescents (Bloemhoff 2006:148; Bosch & and female offenders, or age.
Oswald 2010:72; Cross 2002: 253; Garst et ¢ Diversion programmes with a strong treat-
al. 2001: 48), other studies recorded no such ment component were more effective in
Van Schaik
236 publishers
preventing recidivism with medium- to high- 2012: 80). The same can be said about outdoor
risk youth compared to programmes’ with- diversion as some children may struggle to
out any form of treatment. extract and understand the metaphors asso-
* Programmes with a treatment component ciated with wilderness activities. Moreover, it
built on cognitive-behavioural therapy might be difficult to translate those metaphors
or those tailored to the learning style of to real-life situations. Young participants also
offenders were more effective than those struggle to pay constant attention to lengthy
without such therapeutic components. and overly instructive and classroom-based
activities. In addition, addressing negative
These meta-analyses demonstrate the value peer influence could prove challenging when
of targeting diversion interventions accord- diversion participants are reluctant to end
ing to the needs, risk and responsivity prin- those relationships.
ciples. Youths who present as lower risk
(and are potentially accused of minor crime)
11.5.2 Parents
appear more amenable to non-formal diver-
sion (e.g. cautioning), while interventions with Parents play an important supporting role in
more active intervention elements should be achieving effective diversion outcomes since
reserved for medium- and higher-risk offend- their absence in programming may lessen
ers. Furthermore, it is clear from the review of the potential impact of diversion messages.
evidence that the impact of diversion in South Some parents are contributors to the crimi-
Africa needs further investigation. Research nal behaviour of their children, and if inter-
endeavours should not only determine whether ventions do not meaningfully include them,
outdoor intervention works, but should inves- the child's problem behaviour may well per-
tigate under which circumstances and for sist (Steyn 2012: 80). Moreover, some parents
which child offender profile the strategy works proclaim their children’s innocence despite
best. the diversion order, which negatively influ-
ences the attitude of their children towards
the diversion programme. In a similar vein, if
11.5 CHALLENGES IN MEETING parents are not actively involved in diversion,
THE AIMS OF DIVERSION they may fail to provide the supportive envi-
Diversion has positive outcomes for children, ronment in which the child can practise good
society and the criminal justice system. As with behaviour. This is especially the case with out-
any programme, however, various factors pose door diversion since parents are completely
a threat to the effective implementation and absent during the adventure phase and they
rendering of diversion services. These factors may not necessarily appreciate or understand
include challenges associated with the char- the way in which the programme functions.
acteristics of diverted children, their parents, Some parents may also absolve their involve-
victims, the community and the diversion sys- ment in diversion since the child has been
tem itself. The summary in the following sec- referred to a programme by a court and they
tions highlights some of the main challenges therefore do not see the need to participate in
facing diversion in South Africa. the process.
11.5.1 Participants 11.5.3 Victims

Some diversion strategies require participants As the CJA indicates, restorative justice is
to have certain cognitive abilities. For exam- an important pillar of diversion hence it is
ple, some of the activities of life skills training expected that the victims of crime be actively
involve reading and writing. It might, therefore, involved in the diversion process. However,
be unrealistic to expect younger participants not all interventions create the necessary
to express their emotions and thoughts in space for child offenders and their victims to
writing since they may not yet have mastered meet and reconcile. For example, victims are
the ability to think in an abstract way (Steyn virtually absent in the implementation of out-
Van Schaik
© publishers 237
door diversion, and participants in life skills and a recommendation is made to the court
training are often requested only to write a let- on whether to proceed with or withdraw the
ter of apology to their victims, which may or case. These timeframes might be too short
may not be sent to the victim (Steyn 2012: 81). to address the criminogenic needs of some
FGCs can be considered as the strongest diver- diverted children meaningfully, in particular
sion strategy that inculcates meaningful vic- those who present higher-risk profiles and
tim participation. On the other hand, not all are in need of longer-term continuous sup-
victims want to become involved in diversion, port (Steyn 2012: 81). Furthermore, the way
especially when a minor offence has been com- in which diversion strategies understand the
mitted against someone unknown to the child criminal behaviour of children may not always
offender. Also, it is sometimes difficult to iden- match the criminogenic needs of participants.
tify a direct victim, as is the case with shoplift- For example, if the child committed an eco-
ing from a large chain store. nomic crime such as theft due to abject pov-
erty, broader social and economic support is
needed since a diversion programme will fail
11.5.4 The community to address his or her living conditions. Service
In light of the high burden of crime in South providers must therefore have the necessary
Africa, communities are sometimes reluctant training and skills to refer children in need to
to embrace the reintegration of offenders, even other appropriate interventions.
more so when a serious offence was commit- Follow-up and aftercare are important com-
ted (Steyn 2012: 81). Life skills training and ponents of diversion services since steps are
outdoor interventions often lack a dedicated needed to monitor the behaviour of diverted
component to involve community members children and to measure the overall impact
actively. Furthermore, performing community of interventions. In the case of FGC, for exam-
service at public service points (e.g. police sta- ple, the agreement must be approved by the
tions and clinics) as part of a diversion order court before the case can be withdrawn (Steyn
exposes the child to the scrutiny of the com- 2012: 82). It is therefore essential that mon-
munity, which might compromise the diver- itoring takes place to ensure that all parties
sion aim of avoiding stigmatising the partici- honour the agreement. In addition, inadequate
pant (Steyn 2012: 83). sharing of information (by means of a national
database on diverted children) may cause
repeat child offenders to abuse the diversion
11.5.5 Diversion strategies system by opting for referral to different types
Diversion programmes differ in how they of programmes, especially in urban areas with
approach intervening in the problem different service providers.
behaviour of children. Some strategies focus
on the individual child (e.g. mentoring and
FGC) and others accommodate a group of
11.6 CONCLUSION
child offenders at a time (e.g. life skills train- Diversion holds various benefits for children,
ing and outdoor programmes). While group- their families and victims of offences. An over-
oriented diversion provides a platform for par- arching benefit of diversion is that participants
ticipants to support and learn from each other, remain mostly in their domestic environments,
the individual needs of participants may not thereby counteracting the deficits associated
be met (Steyn 2012: 81). It is also possible that with institutionalisation. Diversion also pro-
some diverted children might “fall through the vides opportunity for facilitators to engage
cracks” if groups are too large. As such, diver- with parents and assess intervention progress.
sion with a group of children may fail to mean- In addition, programmes have referral poten-
ingfully involve all participants. Also, reliance tial. Service providers sometimes identify or
on group dynamics may undermine the ability are confronted with factors in a child’s life
of the individual participant to function on his that fall outside their scope of intervention. In
or her own. this regard, programmes often have linkages
Diversion orders are linked to a timeframe with specialised intervention, in particular
during which the intervention must take place, social workers. Furthermore, diversion strat-
Van Schaik
238 ©publishers
egies follow unique methods to promote an tors of child offending, and how interventions
understanding of criminal pathways, whether should factor in these variables. In addition,
through reconstructing crime lines, dialogue parental involvement should be made manda-
or reflecting on past experiences. Diversion tory by the court and should also form part of
programmes must be flexible in both their plan- reporting back on outcomes (Steyn 2010: 150).
ning and implementation phases. Such flexibil- Poverty and adversity are realities for a
ity prevents rigid, unfocused practices. Except large number of children in South Africa. Many
perhaps for conferencing, most strategies households find it difficult to provide for daily
entail enjoyable experiences - they are infor- needs, which could turn children to crime.
mal in nature with most encompassing recre- In these conditions it is debatable whether
ational and creative activities (Steyn 2010: 150). exposure to a short-term programme has the
On the deficit side, the conceptualisation ability to prevent economically motivated
and design of diversion strategies bring to the crimes. This has important implications for
fore limitations in their ability to impact on diversion as programmes must form part of
criminal behaviour. The role and involvement other developmental initiatives if they wish
of parents in particular could have a profound to succeed. With this in mind, it is not clear
effect on diversion outcomes. Group-oriented whether diversion strategies always impact
programmes tend to exclude parents in on the factors that primarily contribute to
important programme phases. This ultimately criminal behaviour. Very often, child offending
undermines the ability of children to give shows multiple causes and also progression
effect to the good intentions brought about by over time. Diversion strategies run the risk of
programmes. Absent and disinterested par- focusing only on the crime for which a child
ents could seriously compromise the potential has been arrested, therefore causal factors and
of participants to implement what they have risk profiles, and not only the secondary mani-
learnt in their domestic settings. It is therefore festations thereof, must inform diversion deci-
important that assessments pay specific atten- sions (Steyn 2010: 151).
tion to parents as both facilitators and inhibi-
CRITICAL QUESTIONS
Define the concept “diversion”.

oak
2. Describe the objectives of diversion as stipulated in the Child Justice Act.

3. Whatare the criteria for a child to be diverted?
4, What are the minimum standards for diversion?
D. Define life skills training as a diversion strategy and discuss its main assumptions about the criminal
behaviour of children.
Define mentoring and discuss its main assumptions about the criminal behaviour of children.
if Define family group conferencing and discuss its main assumptions about the criminal behaviour of
children.
8. Define outdoor diversion and discuss its main assumptions about the criminal behaviour of children.
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encing program: An initial assessment of client satis- 1(1): 69-88.
faction. St Paul: University of Minnesota (School of Zastrow, C.H. (2009). Social work with groups - a
Social Work). comprehensive workbook (7th ed.). Belmont, CA:
United Nations Convention on the Rights of the Child. Brooks/Cole.
(1989). Resolution 44/25 of 20 November 1989. New Zehr, H. (1990). Changing lenses. Scottsdale: Herald
York: United Nations. Press.
United Nations Guidelines for the Prevention of Juve- Zimmerman, M.A., Bingenheimer, J.B. & Notaro, P.C.
nile Delinquency (Riyadh Guidelines). (1990). Reso- (2002). Natural mentors and adolescent resilien-
lution 45/112 of 14 December 1990, New York: Unit- cy: A study with urban youth. American Journal of
ed Nations. Community Psychology, 30: 221-243.
United Nations Standard Minimum Rules for Non-cus- Zygmont, C.S. (2014). A phenomenological study of the
todial Measures (Tokyo Rules). (1990). Resolution qualitative variation of adventure/wilderness pro-
45/110 of 14 December 1990. New York: United gramme experiences among adolescent high school
Nations. participants in the Western Cape. DPhil thesis, Fac-
United Nations Standard Minimum Rules for the ulty of Arts and Social Sciences, Stellenbosch Uni-
Administration of Juvenile Justice (Beijing Rules). versity.
(1985). Resolution 40/33 of 29 November 1985. New
York: United Nations.
(oa Schaik
244
OBJECTIVES KEYWORDS
You should be able to accessory after the fact impubes
* understand the elementological accomplice infans
approach to crime in South actusreus legality
African criminal law cognitive mental ability mens rea
* explain the influence of youth- common law negligence
fulness on criminal liability in conative mental ability obedience to orders
South African common law crime perpetrator
* explain the statutory provisions criminal capacity private defence
regarding the criminal capacity criminal law punishment
of juvenile offenders culpability recidivism
* explain the influence of the Child elementological sentencing
Justice Act 75 of 2008 on the concept of a crime statutory law
sentencing of juvenile offenders.
fault theories of punishment
imperitiaculpaeadnumeratur unlawfulness
A
12.1 INTRODUCTION
The day will come when nations will be judged not by their military or economic strength, nor
by the splendour of their capital cities and public buildings, but by the well-being of their peoples; ..
by the provision that is made for those who are vulnerable and disadvantaged; and by the
protection that is afforded to the growing minds and bodies of their children.
(exaiter) 245
These words appeared in the Progress of Section 28, commonly known as the chil-
Nations Report of 1997, published by the United dren's rights clause, affords rights to children
Nations Children’s Fund, and were reiterated exclusively and reads as follows:
by the late Dr MantoTshabalala-Msimang, at
(1) Every child has the right -
the time Deputy Minister of Justice, during her
opening address at a conference hosted by the (a) to aname and a nationality from birth;
Centre for Child Law in Pretoria on 30 Octo- (b) to family care or parental care, or to
ber 1998. In compliance with and exhorted appropriate alternative care when
by these words, South Africa ratified the 1989 removed from the family environment;
United Nations Convention on the Rights of (c) to basic nutrition, shelter, basic health
the Child on 16 June 1995 (and, five years later, care services and social services;
the African Charter on the Rights and Welfare
(d) to be protected from maltreatment,
of the Child on 7 January 2000). The United
neglect, abuse or degradation;
Nations Convention on the Rights of the Child
came into force on 2 September 1990 and is (e) to be protected from exploitative
underpinned by three principles: the right of labour practices;
children not to be discriminated against; their (f) not to be required or permitted to per-
right to participate in decisions affecting their form work or provide services that
lives and to be heard; and the “best interest” (i) are inappropriate for a person of
concept. This concept means that the best that child’s age; or
interests of the child shall be of paramount
(ii) place at risk the child’s well-be-
importance in all actions concerning him or
ing, education, physical or men-
her. This Convention is the most widely rati-
tal health or spiritual, moral or
fied human rights instrument in the world and social development;
theoretically provides the minimum standard
of respect states must guarantee to the child (g) not to be detained except as a measure
(Heaton & Kruger 2015: 296; Mahery 2009: 309; of last resort, in which case, in addi-
Currie & De Waal 2013: 601). tion to the rights a child enjoys under
Section 40(1) embodies one of the cardinal sections 12 and 35, the child may be
values of this Convention and reads as follows detained only for the shortest appro-
(United Nations 1989): priate period of time, and has the right
to be
State parties recognise the right of every (i) kept separately from detained
child alleged as, accused of, or recognised persons over the age of 18 years;
as having infringed the penal law to be and
treated in a manner consistent with the
(ii) treated in a manner, and kept in
promotion of the child’s sense of dignity
conditions, that take account of
and worth, which reinforces the child’s
the child’s age;
respect for the human rights and funda-
mental freedoms of others. (h) to have a legal practitioner assigned
to the child by the state, and at state
Moreover, in recognising the injustices of our expense, in civil proceedings affecting
past, South Africa underwent a major consti- the child, if substantial injustice would
tutional change on 27 April 1994 with the com- otherwise result; and
mencement of the interim Constitution Act 200 (i) not to be used directly in armed
of 1993. Thereafter, on 8 May 1996 the Consti- conflict, and to be protected in
tutional Assembly adopted the current Con- times of armed conflict.
stitution of the Republic of South Africa with
(2) A child’s best interests are of paramount
effect from 4 February 1997, Apart from the
importance in every matter concerning the
rights granted to all citizens, the Bill of Rights
child.
in Chapter 2 of the Constitution affords addi-
tional rights to children and singles them out (3) In this section “child” means a person
for special protection. under the age of 18 years.
246
CHAPTER 12 JUVENILE OFFENDERS IN SOUTH AFRICAN CRIMINAL LAW
Section 28(2), often referred to as the para- 12.2 THE INFLUENCE OF

mountcy principle, confers a separate consti- YOUTHFULNESS ON THE
tutional right on children. In 2009, the Consti-
CRIMINAL LIABILITY OF
tutional Court in Centre for Child Law v Minister
of Justice and Constitutional Development 2009 JUVENILE OFFENDERS
(6) SA 632 (CC) justified the special protection 12.2.1 General remarks on criminal
afforded to children on the basis of children’s
liability
greater physical and psychological vulnerabil-
ity. The Constitutional Court recently affirmed Before one can properly understand the influ-
in J v National Director of Public Prosecutions ence of youthfulness on the criminal liability of
(Childline South Africa and others as Amici Cur- juvenile offenders, it is crucial to understand
iae) 2014 (7) BCLR (CC) that section 28(2) cre- what the concepts “criminal law”, “crime” and
ates an independent right and stated in Teddy “punishment” mean. It is also necessary to
Bear Clinic for Abused Children v Minister of understand the difference between the fields
Justice and Constitutional Development 2014 (2) of criminal law and criminology. Criminal law
SA 168 (CC) that the best interest of the child defines certain forms of human conduct as
should be the guiding principle in all matters crimes, and provides for the punishment of
affecting children. those persons with criminal capacity who
This new constitutional dispensation places unlawfully and with a guilty mind commit a
new emphasis on the criminal justice system crime (Snyman 2014: 4; Burchell 2013: 3). Crim-
in all matters affecting the children of South inal law is thus a mechanism that is used to
Africa. A much-anticipated judicial advance as coerce all members of society to abstain from
far as the treatment of juvenile offenders by committing crimes, which is achieved through
criminal law is concerned came with the enact- the threat of a criminal sanction or punishment
ment of the Child Justice Act 75 of 2008, which (Burchell 2013: 33). The concept of a crime is
commenced on 1 April 2010. The Act affords defined by Snyman (2014: 4) as conduct that is
juveniles in conflict with the law specific safe- legally forbidden and that may be prosecuted
guards, and emphasises that statutory law in only by the state, and which always results in
South Africa did not effectively and compre- the imposition of punishment. Put differently,
hensively address the plight of children in con- Snyman (2008: 34; 2014: 4) explains that a per-
flict with the law. While creating the possibility son commits a crime if he or she engages in
of diverting matters involving juvenile offend- conduct which accords with the definitional
ers from the formal criminal justice system, elements of the crime in question, which is
two of the main aims of the Act are to raise the unlawful and culpable.
minimum age of criminal capacity for children After an individual has been convicted of
and to provide a wide range of appropriate a crime, he or she must be punished or sen-
sentencing options specifically suited to their tenced. Punishment invariably infringes on a
needs. As will be discussed in this chapter, a convicted criminal’s basic human rights (such
child is defined as any person under the age of as the right to dignity, the right to privacy and
18 years and, in certain circumstances, a per- the right to freedom of movement) and could
son who is 18 years or older but under the age be described as the pain inflicted by the state
of 21 years. on a person after he or she has been convicted
In addressing the position of juvenile offend- by a competent criminal court that had juris-
ers in the South African criminal law, this diction over the matter. The principle of pro-
chapter focuses on three main themes. Firstly, portionality requires that the degree of pun-
the influence of youthfulness on criminal liabil- ishment should always be in proportion to
ity according to the common law is discussed. the degree of harm caused by the committed
The second part focuses on legislative changes crime.
brought about by the Child Justice Act (CJA) While criminal law deals exclusively with
regarding the criminal capacity of children the determination of criminal liability and
accused of perpetrating crimes. Thirdly, the the imposition of punishment, Burchell and
sentencing of juvenile offenders according to Milton (2006: 18) explain that the science of
the common law and the Act is addressed. criminology centres on the study of criminals
oven Schaik
Publishers 247
and the incidence of different crimes in order though they are not elements of the crime. The
to explain the phenomenon of crime. It also principle of legality basically protects the legal
examines the factors contributing to the com- subject by proclaiming that convictions of and
mission of crime and the working of the crim- punishment for crimes may only be inflicted if
inal justice system in dealing with criminals such a designated crime was created by a law
and the causes of their unlawful behaviour. that was in force before such contravention for
Snyman (2014: 3) also correctly refers to the which the punishment is inflicted took place.
spheres of criminology and penology as “not The principle of legality is also entrenched
pure legal sciences”. This chapter, however, in our Constitution in section 35(3)(1), which
deals exclusively with criminal law. states that every accused person (including a
The South African criminal law adheres juvenile offender) has the right not to be con-
to the so-called elementological concept of victed for an act or omission that was not an
a crime (Burchell 2013: 47; Snyman 2002: 64; offence under law at the time it was committed
2008: 3; 2014: 29-34; Visser & Vorster 1987: 3; (Snyman 2014: 38). Interesting case law dealing
De Wet & Swanepoel 1985: 17). In short, this with the principle of legality include S v Smit
means that a crime consists of three elements 2007 (2) SACR 335 (SCA); Veldman v DPP WLD
in a specific sequence, namely a deed, unlaw- 2007 (9) BCLR 929 (SCA); Masiya v DPP 2007
fulness and fault. A deed, often referred to (5) SA 30 (CC); S v Mashumpa 2008 (1) SACR
merely as conduct, can in the legal sense of the 126 (E); S v Agliotti 2011 (2) SACR 437 (GSJ);
word take one of three possible forms, namely and S v Ndebele 2012 (1) SACR 245 (GSJ).
an act (commissio) or failing to act in the exis- In the US, the principle of legality is often
tence of a legal duty to act (omissio); the caus- referred to as “the principle of fair warning”
ing of a consequence (as in Lee v Minister of (Snyman 2008: 38; 2014: 37) as it ensures that
Correctional Services 2013 (2) SA 144 (CC) and S the legal subject knows beforehand exactly
v Van Heerden 2010 (1) SACR 529 (ECP)); and a what he or she may and may not do, and what
so-called state of affairs, such as possession of the punishment will be if a crime is indeed
a prohibited substance or driving with exces- committed. Criminal capacity, also referred to
sive alcohol in the blood in contravention of as criminal responsibility, refers to the perpe-
the National Road Traffic Act 93 of 1996 (as in trator’s mental ability at the time of the com-
Price v Mutual & Federal Insurance Co Ltd 2007 mission of the crime to appreciate the nature
(1) SACR 501 (SE) (Snyman 2014: 420; Burchell of his or her deed, the unlawfulness of his or
2013: 788). her deed (the so-called cognitive mental abil-
Unlawfulness is the second element of a ity) and the ability to act in accordance with
crime, and means that the perpetrator’s con- this appreciation (the so-called conative men-
duct is seen to be contra boni mores - that is, tal ability). (See DPP, Tvl v Venter 2009 (1)
contrary to the good values or legal convic- SACR 165 (SCA).)
tions of society. Conduct which is unlawful is A juvenile offender can be involved in the
referred to as wrongdoing or actus reus (the commission of a crime as a perpetrator, an
action) (Snyman 2014: 74; Burchell 2013: 113). accomplice or an accessory after the fact. A
Actus reus thus refers to the first two elements person is a perpetrator in criminal law if his or
of a crime. Fault, also referred to as guilt, cul- her conduct, the circumstances in which the
pability, blameworthiness or mens rea (mental conduct takes place and the culpability or fault
element or intention), is the third element of a with which it is carried out are such that he or
crime, and can take one of two possible forms, she satisfies all the requirements for criminal
namely intention (dolus, as in S v Humphreys liability. These requirements are contained in
2013 (2) SACR 1 (SCA)), or negligence (culpa, the definition of a crime (as in S v Gedezi 2010
as in S v Engelbrecht 2005 (2) SACR 41 (W)) (2) SACR 363 (WCC) and S v Mzwempi 2011 (2)
(Snyman 2014: 146; Burchell 2013: 415). SACR 237 (ECM)). A person will incur liability
Even though there are only three elements as an accomplice to a crime if, although he
in a crime, five requirements have to be met or she does not satisfy all the requirements
before one can incur criminal liability because for liability contained in the definition of the
legality and criminal capacity are also require- crime, he or she unlawfully and intentionally
ments for incurring criminal liability, even engages in conduct whereby he or she furthers
24g (Ome
the commission of a crime by somebody else are concurrent perpetrators and will both be
(the perpetrator, as in. S v Msomi 2010 (2) SACR guilty as perpetrators of the crime of murder.
173 (KZP)). The liability of an accomplice and The requirements for criminal liability in
an accessory after the fact is accessory or our common law on which youthfulness has
dependent by nature. This means that a per- a particular effect are unlawfulness, criminal
son can only be held liable as an accomplice capacity and fault. These requirements will
or accessory after the fact if somebody else is now be discussed.
liable as a perpetrator (Snyman 2014: 266).
The accomplice facilitates, assists or
encourages the commission of the crime by 12.2.2 Common law
the perpetrator (as in S v Msomi 2010 (2) SACR
12.2.2.1 Unlawfulness
173 (KZP) and S v Pakane 2008 (1) SACR 518
(SCA)). An accessory after the fact is not a par- The factors or defences excluding unlawful-
ticipant in the actual commission of the crime ness are called grounds of justification (Midi
since he or she arrives on the crime scene only TV t/a E-TV v DPP Western Cape 2007 (2) SACR
after the crime has been completed. The acces- 439 (SCA)). This makes sense if one keeps in
sory after the fact then associates him- or her- mind that the terms “unjustified” and “without
self with the committed crime by helping the justification” are synonyms for “unlawfulness”.
perpetrator or accomplice to escape liability. Viewed as such, unlawfulness can be seen as
For a clear explanation of different parties to the absence of a ground of justification which
a crime, see Burchell (2013: 465-512) as well as excludes unlawfulness (Burchell 2013: 111; con-
Snyman (2014: 252-274). tra Snyman 2014: 97). There are not a limited
We further distinguish between four dif- number (numerus clauses) of grounds of justifi-
ferent types of perpetrators in criminal law, cation in criminal law, but the recognised ones
namely the direct perpetrator, the indirect or are private defence (see, for example, Ngubane
vicarious perpetrator, the co-perpetrator and v Chief Executive Director of Emergency Ser-
the concurrent perpetrator. These are theo- vices, Ethekwini Metropolitan Services 2013 (1)
retical distinctions that have no bearing on SACR 48 (KZD)); necessity; consent; official
the perpetrator’s liability. A direct perpetrator capacity (see Minister of Safety and Security v
commits the crime with his or her own body, Mohofe 2007 (2) SACR 92 (SCA); April v Minis-
and is also known as the principal offender ter of Safety and Security 2009 (2) SACR 1 (SE));
or actual perpetrator (as in S v Marx 2009 (2) obedience to orders (see S v Mostert 2006 (1)
SACR 562 (ECP), for example). SACR 560 (N)); disciplinary chastisement;
The indirect perpetrator commits the crime spontaneous agency; and the trifling nature
through the instrumentality of another (see SA of the act (as discussed in S v Visagie 2009 (2)
Metal and Machinery Co (Pty) Ltd 2010 (2) SACR SACR 70 (T)).
413 (SCA)). This would be the case where a The two grounds of justification affected
person (the indirect perpetrator) procures by the perpetrator’s youthfulness are private
another person, who may be a young child or defence and obedience to orders. A person
an insane person, or it may even be an animal, who performs an otherwise unlawful act may
to commit the crime for him or her. The rule justify that act by alleging that he or she was
qui facit per alium facit per se (he who does an merely obeying the order of another person
act through another does it himself) will then to whom he or she was subordinate (Burchell
apply (as in S v Cupido 1975 (1) SA 537 (C)). 2013: 186; Snyman 2008: 138;2014: 134-136).
Co-perpetrators work together consciously in Van Oosten and Louw (1997: 119-160) describe
the commission of a crime and incur equal lia- this ground of justification as an unlawful
bility, irrespective of the extent of each one’s order by a superior that the subordinate is
contribution. Concurrent perpetrators work obliged to obey.
together unconsciously in the commission of A person acts (lawfully) in private defence
a crime. An example would be the following: if he or she uses force to ward off an unlaw-
X and Y, both snipers, hate Z. If X and Y, who ful human attack that has commenced upon
are unaware of each other’s existence, shoot or is imminently threatening his or her own
and kill Z at exactly the same moment, they or somebody else’s legally protected interest
@ven Schaik
Publishers 249
(e.g. life, property or good name). The defen- from her (Snyman 2014: 104). The court acquit-
sive act must be necessary to protect the ted K of murder (the unlawful, intentional
interest threatened, must be directed at the causing of the death of another human being)
attacker and may not be more harmful than as he had acted in private defence. The court
necessary to ward off the attack. The princi- stated the following:
ple of proportionality is very important here,
We must imagine ourselves in the posi-
meaning that the harm caused by the defen-
tion in which the appellant, a youth of
sive act must be justified by (be in proportion
13 years, was. He was confronted with a
to) the severity of the initial unlawful attack. If
woman who was apparently in a state of
more harm is caused by the defensive act than
frenzy and he could not free himself by his
was reasonably necessary, the perpetrator will
own efforts.
transgress the boundaries of private defence
and will him- or herself act unlawfully. The
Obedience to orders can be raised as a ground
Supreme Court of Appeal in S v Grigor [2012]
of justification, and thus a defence, where a
ZASCA 95 thus held that there was an imbal-
subordinate commits a crime in the execution
ance between the alleged attack and the appel-
of an unlawful order of a superior. Where the
lant’s defensive act of inflicting severe injuries
person executing the unlawful order is a child,
on the complainant in an act of road rage (see
the test to determine whether the child’s con-
also S v Steyn 2010 (2) SASV 411 (HHA); Snyders
duct is lawful or unlawful differs from the test
v Louw 2009 (2) SASV 463 (K)).
that is applied where the perpetrator is an
Where a child acts in private defence, the
adult. Where the perpetrator is an adult, the
test whether the means of defence was neces-
nature of the order determines the lawfulness
sary is not that of a reasonable adult, but that of
or unlawfulness of his or her conduct. Obedi-
a reasonable child in the same circumstances
ence to a manifestly unlawful order remains
(Snyman 2014: 110). This is evident from the
unlawful, and obedience to orders would not
court’s decision in S v T 1986 (2) SA 112 (O). In
succeed as a ground of justification in such cir-
this case the accused was a 16-year-old school-
cumstances. The appropriate defence in such
boy from Bloemfontein. He was of a sensitive
circumstances would be the absence of inten-
nature, and younger and physically weaker
tion, as the subordinate who obeyed the order
than the deceased. The latter had a reputation
would not have knowledge of unlawfulness,
as a bully and a fighter, and was in the habit of
which is an integral part of intention (Burchell
humiliating and intimidating the accused. One
2013: 190, 401-402). Where the perpetrator is a
Friday afternoon a scuffle arose between the
child, the lawfulness or unlawfulness of his or
two, during which the accused fatally wounded
her conduct in obedience to an unlawful order
the deceased with a firearm.
is determined by the nature of the crime (Van
The accused was charged with culpable
Oosten & Louw 1997: 122).
homicide, but was acquitted, since private
The test is whether the crime the child
defence excluded the unlawfulness of his
committed in the execution of the unlawful
conduct. (Culpable homicide is the unlawful
order was so atrocious that it could be rea-
and negligent causing of the death of another
sonably expected of the child to disobey his
human being.) The court was of the opinion
or her superior’s (parent’s) unlawful order.
that the accused acted reasonably, objectively
This test was applied in R v Albert 1895 (12)
speaking, because a reasonable, physically
SC 272, where an 11-year-old boy was charged
weak 16-year-old schoolboy in the same posi-
with theft and housebreaking with intent after
tion as the accused would have acted likewise.
he had assisted his father instealing two bags
Also, in S v K 1956 (3) SA 353 (A), the
of oat-hay from a loft. The boy was ordered
accused, a 13-year-old schoolboy, was given
by his father to help him. On acquitting the
special consideration by the court of appeal.
accused of a charge of theft, the court said the
K had stabbed his mentally disordered mother
following:
to death with a pocketknife. A struggle had
arisen between K and his mother after K had It cannot be reasonably expected from a
taken an apple to eat. K’s mentally disordered child under fourteen that he will disobey
mother was the aggressor and K could not flee the illegal orders of the father unless the
250
offence he is ordered to commit is of an a woman to murder the baby of her former

atrocious kind ... The offence of assisting boyfriend. The court cautioned that “when
his father in removing two bags of oat-hay sentencing children and juveniles, especially
was not so heinous as obviously to absolve where payment was offered to them to commit
the child from the duty of obedience. an offence, courts should see these children
and juveniles not only as perpetrators but also
The crime of theft consists of unlawfully and as victims of a serious form of exploitation”.
intentionally appropriating the movable, cor- For similar reasoning, see S v Dyk 1969 (1) SA
poral property of another with the intention 601 (C); S v M 1978 (3) SA 557 (TK); and S v
ofdepriving the owner permanently of his or Khubeka 1980 (4) SA 221 (O).
her possession(s) (Snyman 2014: 502). House-
breaking with intent constitutes the unlawful
12.2.2.2 Criminal capacity
and intentional breaking into and entering of a
building or structure with the intention of com- According to the Preamble of the CJA, before
mitting a crime inside (Snyman 2014: 543). 1994 South Africa had not given children,
Also relevant in our context is the rebutta- especially black children, the opportunity to
ble presumption in criminal law that a child live and act like children. As a result of the
who commits an unlawful act together with, in circumstances in which many children found
the presence or under the authority of an adult themselves, they have come into conflict with
or another youth appreciably older than him the law. Our Constitution now affords children
or her whom he or she would be expected to in conflict with the law specific safeguards. In
obey, was ordered, coerced or influenced by light of this, one of the main aims of the Act is
the adult or older youth to commit such act. to raise the minimum age of criminal capacity
This may render the child’s conduct lawful for children. This legislation has replaced the
by reason of the order, coercion or influence common law regarding the criminal capaci-
involved (Snyman 2014: 162; S v Ngobese 2002 ty of children (see s 7(3) of the Act). The old
(1) SACR 562 (W)). In S v Pietersen 1983 (4) common law position will, however, still be
SA 904 (E), two nine-year-olds were charged, discussed here briefly as it gives the reader a
together with an 18-year-old, of housebreaking good understanding of how the common law
with the intent to steal. The court stated the and statutory law differ, thus enabling the
following: reader to make a comparison between the two.
The term “criminal capacity” is often con-
Where a child aged between seven and 14 fused with “criminal responsibility” or “crimi-
years is associated in the commission of a nal liability”. Sloth-Nielsen (2000: 393) empha-
crime with an adult or even with a youth sises that criminal capacity should be distin-
appreciably older than it is, the relation- guished from criminal responsibility, the latter
ship between the two and the circum- depending on whether all the elements of the
stances under which they both became crime, as well as the requirements of legality
involved in the crime must be investigated and criminal capacity, are present. Proof of
before the child can be pronounced dol- criminal capacity is thus a conditio sine qua
icapax ... Prosecuting authorities should non [an indispensable and essential action] or
appreciate that, when they charge young prerequisite for the proof of criminal respon-
children under 14 years together with sibility, and criminal responsibility and crim-
adults or older youths, they accept the inal liability are synonyms. Criminal capacity
onus not only of proving that the chil- is the second requirement for liability where
dren know that what they do is wrongful, youthfulness on the part of the perpetrator
but also of proving that they do that with has a particular effect. Perpetrators have
which they are charged of their own voli- criminal capacity if they possess the mental
tion, uninfluenced by their older compan- ability to realise the nature of their conduct;
ion’s persuasion. to realise the unlawfulness of their conduct
(the so-called cognitive mental function); and
In S v SM 2010 (1) SACR 504 (WCC), a 16-year- to act in accordance with this realisation of
old was one of a number of people hired by unlawfulness (the so-called conative mental
even Schaik 9 5 {
function. Compare DPP, Tvl v Venter 2009 (1) capacity to know that the act that he was doing
SACR 165 (SCA); Burchell 2013: 247; and Sny- was wrong” and “that the accused's mind was
man 2014: 155). sufficiently mature to understand, and that he
Previously, the criminal capacity of juve- did understand the wrongful character of the
niles was governed by certain arbitrary age conduct” [author’s italics]. Also, in S v Ngobese
limits. Children could, for purposes of this dis- 2002 (1) SACR 562 (W), the court particularly
cussion, be divided into three groups: those emphasised the importance of investigating
who have not yet completed their seventh year the child’s ability to resist temptation. This
of life (infantes); children from the age of seven refers to the conative mental ability (Snyman
but who have not yet completed their 14th 2014: 162).
year of life (impubes); and children from the In S v Mbanda 1986 (2) PH H 108 (T), Mbanda
age of 14 years but not yet 21 years. was a 13-year-old street child who broke into
Children under the age of seven (infantes) a shop and stole food and sweets. The court,
were irrebuttably presumed to lack criminal apart from confirming the test for criminal
capacity and could therefore never incur lia- capacity, added the following criteria for the
bility as perpetrators, accomplices or accesso- criminal liability of children in this category
ries after the fact. This was the position irre- (Van Oosten & Louw 1997: 125-126):
spective of the child’s development and actual
mental abilities. On a charge of an intentional (i) Was the accused, at the time of the
crime, such a child was doliincapax (Schwik- commission of the alleged crime, aware
kard & Van der Merwe 2012: 35), which liter- of the fact that he or she acted in con-
ally means “incapable of forming the intention travention of the law, or was he or she
required for the crime and thus incapable of aware of such possibility?
incurring liability for an intentional crime”. (ii) Could the child, at the time of the com-
(The Latin word for intention is dolus, as men- mission of the alleged crime, control his
tioned earlier.) or her conduct?
On a charge of any crime requiring negli-
gence, the child was culpaeincapax, which is
(iii) Did the child intend the consequences of
literally “incapable of incurring liability for a his or her conduct or did he or she fore-
crime of negligence”. (The Latin word for negli- see the consequences as a possibility but
gence is culpa, as mentioned earlier.) An infans acted notwithstanding such foresight?
could, however, be used as an instrument by
an older person in the commission of a crime. Since 1987, a boy under the age of 14 years
Where X, an adult male, broke open a small could also incur liability for unlawful sexual
window of a house and sent Y, a five-year-old intercourse with a female. This is due to the
boy, through it to fetch items and bring them fact that section 1 of the Law of Evidence and
to him, it would be X who is committing the the Criminal Procedure Amendment Act 103 of
crimes of housebreaking with the intent to 1987 repealed the old irrebuttable presump-
steal and theft, not Y, who was merely an inno- tion that boys under the age of 14 are incapa-
cent instrument in X’s hands. Youthfulness ble of sexual intercourse (Burchell 2013: 598;
was thus a complete defence to a perpetrator Schwikkard & Van der Merwe 2012: 35; Suv A
who was an infans. 1962 (4) SA 679 (E)).
A child from the age of seven but younger The younger the child, the more difficult
than 14 was rebuttably presumed to lack crim- it was for the prosecution to rebut the pre-
inal capacity, but could incur liability if the sumption of incapacity, and vice versa (Sny-
state could prove beyond reasonable doubt man 2014: 174). It was also more difficult for
that the child did have criminal capacity at the the prosecution to rebut the presumption of
time of the commission of the crime (Schwik- incapacity where the child was charged with
kard & Van der Merwe 2012: 35). The test to a crime mala prohibita than it was where the
determine whether such a child had criminal child was charged with a crime malum in se.
capacity was the same as the general test for The same was true for statutory offences of a
criminal capacity. In S v Tsutsol1962 (2) SA 666 technical nature as opposed to common law
(SR) 668, the court stated ‘X’ had sufficient offences. A crime mala prohibita embodies
252
mere prohibitions or injunctions, and does 12.2.2.3 Fault

not refer to conduct that is inherently evil or
Fault, or mens rea or culpability as courts often
morally blameworthy. An example would be
refer to this element, means that, in the eyes
section 22 of the National Road Traffic Act 93
of the law, there are grounds for blaming the
of 1996, which orders a holder of a motor vehi-
accused personally for his or her unlawful
cle licence to give notice of change of place of
conduct (Snyman 2014: 155). As explained ear-
residence. Crimes malum in se (literally “bad in
lier, fault can take one of two possible forms,
itself") embody immoral conduct or conduct
namely intention or negligence. Negligence
that is inherently evil, such as rape or murder.
in itself can take the form of conscious (luxu-
Academic writers often criticised the test ria) or unconscious (culpa) negligence. (For a
applied by courts in the rebuttal inquiry detailed explanation, see Snyman 2002: 179-
(Sloth-Nielsen 2000: 393; Van Oosten & Louw 221; 2008: 219; 2014: 148; Burchell & Milton
1997: 125; Snyman 2014: 174; De Wet & Swane- 2006: 459-498; 522-543; Burchell 2013: 337-
poel 1985: 111). According to Van Oosten & 343). Youthfulness on the part of the perpe-
Louw (1997: 125), trator has a particular effect on the test for
courts have more often than not paid negligence. The test for criminal negligence
mere lip service to the criminal capacity (culpa) is that of reasonable foreseeability,
test by making the inquiry turn on the or foreseeability by a reasonable person. The
child’s actual knowledge and appreciation questions to be answered if one is testing for
of the wrongfulness of his or her conduct negligence on the accused's part are whether
in the specific circumstances and at the © a reasonable person in the accused's position
time of his or her act, or on the presence would have foreseen the reasonable possibility
of the unlawful act or consequence resulting; -
or absence of malicious intention or evil
whether such reasonable person would have
motive.
taken steps to prevent the forbidden act or
consequence from setting in; and whether the
See also S v Kenene 1946 EDL 18 as referred to
accused had failed to take the steps which he
by Burchell (2013: 257) and S v M 1978 (3) SA
or she should reasonably have taken to guard
557 (Tk) as referred to by Snyman (2014: 175).
against it (see S v Crossberg 2008 (2) SACR 317
This test applied by the courts is actually
(SCA)).
one of fault and not of criminal capacity, with
If the answer to all three of these questions
the result that criminal capacity and fault have is in the affirmative, the accused would. be
been confused with one another. Fault, in the negligent if he or she did not foresee and/or
form of intention, consists of the will to act as prevent the prohibited act or consequence.
well as knowledge of unlawfulness. Intention The term “negligence” thus indicates that
thus refers to the child's actual knowledge at the accused’s conduct did not conform to a
the time of the commission of the crime. Crimi- prescribed standard of carefulness (Snyman
nal capacity, on the other hand, does not refer 2014: 150, 204; Burchell 2013: 409). In S v Ngu-
to the child’s actual knowledge but to his or bane 1985 (3) SA 677 (A), Judge of Appeal Jan-
her mental ability at the time of the commis- sen stated the following: “The view generally
sion of the crime. : held by our courts is that culpa is constituted
Once a child had reached the age of 14 years, by conduct falling short of a particular stan-
he or she was regarded in law to be no differ- dard, namely that of the reasonable man.”
ent from an adult. Such a child was, in other Where the accused is a child, the test for
words, rebuttably presumed to have full crim- negligence is relegated to that of a reasonable
inal capacity. Youthfulness per se has, how- child in the same position as the accused. The
ever, always served as a mitigating factor in law thus recognises that the same degree of
the imposition of punishment, as is illustrated care and responsibility cannot be expected
in the well-known case of S v Lehnberg 1975 (4) from a child as one would expect from an
SA 553 (A), where the accused arranged for her adult. In other words, conduct that is deemed
lover’s wife to be stabbed to death with a pair negligent in terms of the reasonable adult test
of scissors. will not necessarily be deemed negligent in
evan Schaik
Publishers} 253
terms of the reasonable child test (Van Oost- but the fact that the child unreasonably
en & Louw 1997: 129; Snyman 2014: 213). This engaged in conduct requiring special skill that
can be viewed as a qualification to the objec- he or she did not have. It is thus not the igno-
tive test for negligence insofar as a subjective rance in itself which amounts to negligence. |
attribute of the perpetrator, in this case youth- For example, if a child decides to perform an
fulness, is taken into account. operation on a friend as a result of which the
In S v T 1986 (2) SA 112 (O), a 16-year-old friend dies, the conduct of the accused would
schoolboy was charged with culpable homi- be measured against that of the reasonable
cide after he had killed another boy who had surgeon and not that of the reasonable (igno-
frequently intimidated and humiliated him. rant) child.
The court acknowledged the fact that it would The second qualification to the application
be wrong to apply the test of a reasonable of the reasonable child test in determining neg-
adult in determining whether the accused had ligence is where the child indeed has a greater
negligently exceeded the boundaries of private degree of knowledge or skill than the average
defence (for the test for and effect of exceeding child of his or her age. In such a case, the test
the boundaries of defence, see S v Bruce-Lee for negligence will be that of the reasonable
Naidoo 2010 (1) ZASCA 40; S v Steyn 2010 (1) child who does possess such greater degree
SACR 411 (SCA); Govender v Minister of Safety of knowledge or skill in the same circumstanc-
and Security 2009 (2) SACR 87 (SCA); and S v es as the accused. In this sense, the test for
Maimela 2011 (2) SACR 339 (SCA)). negligence is adjusted upwards and it is not
The accused’s insight, judgement and lowered.
self-control were, by reason of immaturity,
obviously less developed than those of a rea-
sonable adult.
12.2.2.4 Sentencing of juvenile offenders
The court must put itself in the same posi- Although this part of the chapter deals with
tion and circumstances as the accused. One the sentencing of juvenile offenders under the
can therefore say that the test for negligence common law, the aim is really to discuss and
is fundamentally an objective one (with refer- explain the common law position regarding
ence to the fictitious reasonable person), with sentencing before the Child Justice Act 75 of
subjective qualifications (with reference to 2008 came into effect on 1 April 2010. Certain
the same position in which the accused found references to statutes are, however, mandatory
him- or herself) (Van Oosten & Louw 1997: 128: in this part to discuss the position before 1
Burchell & Milton 2013: 414; Snyman 2014: 209; April 2010. The sentencing of juvenile offend-
S v Ntuli 1975 (1) SA 429 (A)) where the court ers under statutory law (i.e. after the com-
said the following: “In applying these formula- mencement of the CJA), will be discussed later
tions to flesh and blood facts, the Courts adopt in this chapter.
a robust attitude, not seeking to measure with It is often said that a criminal trial con-
nice intellectual callipers the precise bounds sists of two separate stages. While the first
of legitimate self-defence ...”). stage encompasses the determination of the
There are two instances where negligence accused's criminal liability or innocence, the
on the part of a juvenile offender would not second deals with the determination of an
be determined by merely applying the reason- appropriate sentence or punishment should
able child test. The first is the so-called situa- the accused be found guilty of the charges
tion of imperitia culpae adnumeratur (“igno- against him. A criminal conviction is always
rance amounts to negligence”). Where a child followed by the imposition of a form of sen-
engages in an activity requiring particular skill, tence or penalty (Burchell 2013: 3, 5; Snyman
expertise or experience, well knowing that he 2014: 4; S v Dodo 2001 (1) SACR 594 (CC)).
or she lacks such skill, expertise or experience, First and foremost, when it comes to sen-
negligence will be determined with a reason- tencing, one has to take cognisance of section
able expert adult test and not with a reason- 35(3)(n) of the Constitution, which stipulates
able child test. that every accused person has the right to the
The maxim is misleading as it is not the benefit of the least severe of the prescribed
child’s ignorance that amounts to negligence, punishments. This is relevant if the prescribed
254 (Omiset)
punishment for the offence has been changed explain why we punish offenders in criminal
between the time that the offence was commit- law. In other words, these theories provide jus-
ted and the time of sentencing. Additionally to tification for the imposition of punishment:
this right, section 28(1)(d) of the Constitution
e According to the retributive theory of pun-
affords every child the right to be protected
ishment, punishment is an aim in itself. We
from maltreatment, neglect, abuse or degrada-
thus punish a person because he or she
tion (Heaton & Kruger 2015: 291; Currie & De
deserves it, punishment being a “just desert”.
Waal 2013: 612; S v Myburgh 2007 (1) SACR 11
Punishment is a categorical imperative that
(W)). Section 28(1)(g) stipulates further that
follows automatically on the commission of
every child has the right not to be detained
a crime (Burchell & Milton 2006: 69-71; Sny-
except as a measure of last resort (compare
man 2014: 11-15). The retributive theory of
Gallinetti 2009: 640; Currie & De Waal 2013: 615;
punishment is diagnostic or retrospective in
Director of Public Prosecutions KwaZulu-Natal v
character in the sense that it looks back at
P 2006 (1) SACR 243 (SCA) and S v BF 2012 (1)
the crime committed and acknowledges that
SACR 298 (SCA)). Section 28(1)(g) of the Con-
the degree of punishment must be in propor-
stitution is modelled on article 37 of the Con-
tion to the degree of harm done to society.
vention on the Rights of the Child.
This theory accordingly relates punishment
The well-known “Trits in Zinn” principle (S
directly to the crime committed, thus encom-
v Zinn 1969 (2) SA 537 (A)) has always gov-
passing the very important “principle of
erned the sentencing of convicted criminals.
proportionality”. In S v Botes 2011 (1) SACR
According to this principle, the sentencing
439 (GNP), for example, the court applied
court ought to pay particular attention to
this theory of punishment by particularly
three factors in order to arrive at an appropri-
emphasising the nature of the crime, which .
ate sentence (Snyman 2014: 19), which are the
was a racially motivated one. In this case, a
crime, the criminal and the interest of society.
white youth was convicted of participating
By “crime” is meant that the extent of harm or
in the racially motivated murder of a black
the seriousness of the crime committed should
man. A full bench of the North Gauteng high
be considered. By “criminal” is meant that the
court decided that racially motivated crimes
personal circumstances of the convicted per-
offend against the ethos and aspirations of
son should be considered, and by the “inter-
our democracy. Racist bigotry should not
est of society” is meant that society should be
be tolerated, irrespective of the age of the
protected against the convicted person and
offender. Since the youth are the future of
that the sentence should be such as to give
our country, the courts should not hesitate
proper expression to the indignation of soci-
in imposing long sentences of imprisonment
ety and their demand that the criminal be pun-
to ensure that this evil is eradicated. The
ished. Snyman (2014: 13) cautions that there
young offender received 15 years’ imprison-
ought to be a healthy balance within this triad
ment.
of considerations (see also S v Mngoma 2009
(1) SACR 435 (EC); S v Malgas 2001 (1) SACR e According to the preventive theory of pun-
469 (SCA); and S v De Kock 1997 (2) SACR 171 ishment, punishment is not an aim in itself
(T)). In recent times it was, however, empha- but merely a means to a further aim, namely
sised that the interests of the victim(s) of the to prevent other possible perpetrators
crime should equally be considered (Snyman from committing crimes or to prevent the
2014: 19; Burchell 2013: 4; .S v Matyityi 2011 (1) accused from repeating his or her criminal
SACR 40 (SCA); S v Tabethe 2009 (2) SACR 62 behaviour (Snyman 2014: 15; Burchell &
(T); S v Isaacs 2002 (1) SACR 176 (C)). In this Milton 2006: 73). This theory of punishment
sense one should refer to the “square” or four is therefore prognostic in nature as it sees
considerations in punishment rather than the punishment merely as a means to a further
triad in punishment. aim. Closely linked to the preventive theory
The ultimate purpose of the entire criminal is the theory of “incapacitation” according
process is to punish the offender. A distinc- to which X is punished in order to prevent
tion can be drawn between four so-called the- him or her from being capable of commit-
ories of punishment, the aim of each being to ting crime again (Snyman 2014: 15).
255
¢ The theory of deterrence is also prognostic circumstances also increased by 2,7%, and
in nature and holds that the imposition of hijacking by 14%, meaning that between
punishment on a person would deter him or April 2015 and March 2016 about 40 took
her, as well as the community at large, from place every day. In addition, during the
committing (further) crimes. The premise of same period 250606 home burglaries and
this theory is, however, undermined by the 20820 house robberies were reported
shockingly high percentage of 90% of recid- (Evans & Verster 2016; South Africa crime
ivism in South Africa (convicted criminals stats 2016: Everything you need to know
who continue to commit crime after being 2016).
released from prison) (Snyman 2014: 15-16;
Burchell 2013: 517). Some critics even place It is a firmly established principle in our com-
the recidivism rate among violent criminals mon law that youthfulness on the part of the
at 94% (Jules-Macquet 2014). In line with perpetrator may mitigate punishment (S v
this worrisome recidivism figure is the fact Senatsi 2006 (2) SACR 291 (SCA); S v Kolobe
that South African correctional facilities are 2005 (1) SACR 203 (T); S v Kwenamore 2004
severely overpopulated, a fact which also (1) SACR 385 (SCA); S v Thisa 2003 (1) SACR
casts a dark shadow on the success of this 174 (O); Sloth-Nielsen 2000: 448; Van Oosten
theory. In a recent article by outgoing Amer- & Louw 1997: 130; Rabie & Strauss 1981: 226;
ican president Barack Obama, he reflects Du Toit 1981:55). There are several reasons
on the incarceration rate by country by list- underlying this principle, one of which is that
ing the number of inmates per 100 000 res- tender age affects the moral culpability of the
idents. The US is at the top of the list with accused juvenile. In S v F 1989 (1) SA 460 (Z),
300 out of every 100 000 residents incarcer- the court emphasised the propensity of young
ated while South Africa is number 18 at 291 children to mimic the behaviour of others and,
out of every 100000. On the continent of in particular, adults. The court opined that it
Africa, South Africa has the most incarcer- is common knowledge that young children nec-
ated persons with a total of 161 984 (Obama essarily internalise the perceived behaviour of
2017: 811). those around them and then proceed to mimic
this behaviour while being unaware that they
e According to the reformative theory of pun- are acting criminally.
' ishment, a perpetrator commits a crime According to Judge of Appeal Botha in S$ v
due to a personality defect for which he Jansen 1975 (1) SA 425 (A) 428, “the interest of
or she must receive treatment. By endur- society cannot be served by disregarding the
ing punishment, so the theory goes, the interests of the juvenile, for a mistaken form
perpetrator is reformed or rehabilitated to of punishment might easily result in a person
become a law-abiding citizen again (Sny- with a distorted personality being eventually
man 2014: 17-18). Snyman (2014: 18) cau- returned to society”. In S v Phulwane and Oth-
tions against granting this theory too much ers 2003 (1) SACR 631 (T), it was also held
weight, especially in light of the alarming that the reintegration of the young offender
increase in crime in South Africa in recent back into his or her family and the community
times (Snyman 2014: 23). Every year approx- should be a priority for every judicial officer
imately 2,1 million serious crime cases are who has to sentence such an offender. How-
registered at the South African Police Ser- ever, where young offenders have chosen
vice (SAPS). The murder rate in South Afri- a “life of crime” our courts will not shy away
ca is of grave concern, as the country has from imposing harsh sentences on them. In S$
been in the global top 10 for its high homi- v Brandt [2005] 2 All SA 1 (SCA), the Supreme
cide rate for all but two years since 2000. Court of Appeal substituted a sentence of
The murder rate increased by 4,9% (18 673 18 years’ imprisonment for a life sentence
people were murdered in South Africa from imposed on a 17-year-old for the murder of
April 2015 toMarch 2016), which amounts to an elderly woman. Similarly, in S v N 2008 (2)
+51 murders per day, and is 5-8 times higher SACR 135 (SCA) the Supreme Court of Appeal
than the 2013 global average of six mur- affirmed a sentence of five years’ imprison-
ders per 100 000. Robbery with aggravating ment of a 17-year-old schoolboy for rape.
Van Schalk
256 © publishers
Before punishment is imposed on a convict- affords every child the right to be protected
ed juvenile offender, the court or the defence from maltreatment, neglect, abuse or degra-
may Call for a probation officer’s pre-sentence dation. Similarly, section 10 of the South Afri-
report in order to assist the court in pass- can Schools Act 84 of 1996 prohibits the use
ing sentence. The probation officer’s report of corporal punishment of learners in schools.
should be based on a thorough assessment of In Christian Education South Africa v Minister
important issues such as the juvenile’s fam- of Education 2000 (4) SA 757 (CC), a voluntary
ily circumstances, childhood development, association representing certain independent
behavioural patterns and maturity. The role private schools challenged the validity of sec-
of the probation officer is thus to provide all tion 10 of the South African Schools Act on the
available information which will assist the basis that this section infringed their right to
court in determining an appropriate sentence religious freedom.
(S v N 2005 (1) SACR 201 (CkH); S v Manka 2003 It was also argued that parents of learners
(2) SACR 515 (O)). The younger the accused, in independent schools had consented to their
the more important this information becomes children being subjected to corporal punish-
(see S v Cloete enVyf Ander Hersieningsake ment. The Constitutional Court rejected the
[Cloete and Five Other Revision Cases] 2003 parents’ claim, holding that section 10 of the
(2) SACR 489 (O)). Schools Act constituted a reasonable and jus-
The report should also contain appropriate tifiable limitation on the parents’ religious
sentencing options for the court to consider. rights. The current legal position is therefore
The importance of obtaining.a pre-sentencing that the ban on corporal punishment laid down
report in the process of sentencing juvenile by section 10 of the Schools Act applies to all
offenders was exhaustively dealt with in S v schools in South Africa (Snyman 2014: 137;
Madoda Kwalase 2000 (2) SACR 135 (C). Burchell 2013: 16; Currie & De Waal 2013: 613;
According to section 12(1) of the Consti- Snyman 2008: 141).
tution of the Republic of South Africa, every- Section 276 of the Criminal Procedure Act
one has the right to freedom and security of provides for the following forms of punish-
the person, which includes the right not to ment to be imposed on a convicted criminal:
be tortured in any way and not to be treated a fine, imprisonment, declaration as a habitual
or punished in a cruel, inhuman or degrad- criminal, periodic imprisonment, correctional
ing manner. While section 294 of the Criminal supervision, committal to a_ rehabilitation
Procedure Act 51 of 1977 previously provid- centre, postponement and suspension, and
ed for whipping as a form of punishment for caution and reprimand. There are also spe-
juvenile offenders, corporal punishment has cial sentencing provisions for juveniles in the
since been outlawed in South Africa (Burchell above-mentioned Act. Section 290 provides
2013: 15; Currie & De Waal 2013: 612). In S v that a court may instead of, or in addition to,
Williams 1995 (2) SACR 251 (CC), the Constitu- imposing punishment on a juvenile offender,
tional Court, on account of whipping constitut- order that he or she be placed under the
ing cruel, inhuman or degrading punishment, supervision of a probation officer or correc-
declared corporal punishment unconstitution- tional official, and/or be placed in the custody
al, which led to the enactment by parliament of a suitable person, or be sent to a “reform
of the Abolition of Corporal Punishment Act 33 school” in terms of section 1 of the then Child
of 1997. Care Act 74 of 1983. Prior to the Children’s Act
It was held that juvenile whipping as a sen- 38 of 2005, residential facilities were divided
tencing option violated the right to human into places of safety, children’s homes, schools
dignity as entrenched by section 10 of the of industry and reform schools. In the Chil-
Constitution. Not only does juvenile whipping dren’s Act all these terms now resort under
infringe this right, but also the right to freedom the umbrella term “child and youth care ‘cen-.
and security of the person, which includes the tres”.
right not to be treated or punished in a cruel, In S v P 2001 (1) SACR 70 (C), for example,
inhuman and degrading way as entrenched in the probation officer recommended that the
section 12(1)(e) of the Constitution. Additional accused, a 16-year-old, be committed to a
to this, section 28(1)(d) of the Constitution “reformatory”, the term being used at the time.
evn ‘Schaik
Publishers} D577
There are, however, disturbing indications Amendment Act 105 of 1997 did not apply at
that referral to a child and youth care centre all to children under the age of 16 years. This
as a sentencing option may be regarded, due is also stated in section 51(6) of the same Act
to the difficulties in its implementation, as a (see S v BF 2012 (1) SACR 298 (SCA) where
dead letter (see S v Zand 23 similar cases 2004 the trial court imposed a prison sentence of
(2) SACR 410 (E)). These residential facilities 25 years on an accused who was convicted
are often seen as “universities of crime” where of robbery with aggravating circumstances
rehabilitation is highly unlikely. and rape. The accused was 14 years and 10
In S v Makwanyane 1995 (3) SA 391 (CC), months old at the time he committed the
the Constitutional Court declared the death crimes. The Supreme Court of Appeal held that
penalty, as provided for by section 277(1)(a) the trial court overlooked section 51(6) of the
of the Criminal Procedure Act, as unconstitu- Act, and replaced the sentence with one of 12
~ tional and it was therefore abolished (Burchell years’ imprisonment.) (See also Terblanche
2013: 14). A consequence of this decision by (2007: 69);Centre for Child Law v Minister of Jus-
the Constitutional Court is that the South Afri- tice 2009 (11) BCLR 1105 (CC); and S$ v P 2002
can government is obliged to secure an under- (1) SACR 56 (C).)
taking from a foreign state in which an accused Owing to governmental concern over
has allegedly committed a crime that such an the increase in serious offences committed
accused will not be executed if extradited to by 16- and 17-year-olds, the legislator made
such foreign state (Minister of Home Affairs v the prescribed minimum sentences applica-
Tsebe 2012 (5) SA 467 (CC)). ble to these offenders in terms of the Crimi-
On 1 May 1998, the legislature implemented nal Law (Sentencing) Amendment Act 38 of
sections 51 to 53 of the Criminal Law Amend- 2007 which came into effect on 3 March 2008
ment Act 105 of 1997 in terms of which mini- (Burchell 2013: 24). In the well-known case of
mum sentences are prescribed for various S v Mahlangu [2012] ZAGPJHC 144 (the Eugéne
crimes. The Act stipulates that a sentencing Terre’Blanche killing) Judge Horn emphasised
court may impose a lesser sentence only if it that
is satisfied that “substantial and compelling
circumstances” exist which justify it (compare there is no special magic in the Child Jus-
Burchell 2013: 23; S v Malgas 2001 (1) SACR 469 tice Act. It is not supposed to turn juvenile
(SCA); S v Dodo 2001 (1) SACR 594 (CC)). Sec- offenders into untouchables. Experience
tion 51(1)(a) of the Act, for example, provides has shown that youthful offenders commit
that a high court shall sentence a person who some of the worst crimes. They should not
has been convicted of a crime referred to in be permitted to hide behind their youth-
Part | of Schedule 2 of the Act to imprisonment fulness when they make themselves guilty
for life. of violent crimes.
Part I of Schedule 2 lists the crimes of mur-
der and rape committed under certain circum- The discretion to impose the minimum pre-
stances. In S v B 2006 (1) SACR 311 (SCA), a scribed sentence (i.e. life imprisonment) did
17-year-old was convicted of murder and sen- thus indeed exist for children between the
tenced to life imprisonment. His appeal against ages of 16 and 18 years. In Direkteur van Open-
this sentence brought into question the appli- bareVervolgings, Tul v Makwetsja 2004 (2) SACR
cation of the provisions of the so-called mini- 1 (T), it was, however, held that the minimum
mum sentence legislation to offenders under prescribed sentence should be imposed upon
the age of 18 years. The Supreme Court of children between the ages of 16 and 18 years
Appeal held that section 51 distinguished only in extreme instances and only if the
between adult and juvenile offenders. Juvenile accused committed the crime as a principal
offenders were divided into two categories: offender and not as an accessory after the fact
children under the age of 16 years at the time (see S v Mokasi 2002 (2) SACR 609 (T)). A few
of the commission of the crime, and children years later, in 2009, Justice Cameron (for the
between the ages of 16 and 18 years at the time majority of the Constitutional Court) in Centre
of the commission of the crime. for Child Law v Minister for Justice and Consti-
The court held that the Criminal Law tutional Development 2009 (6) SA 632 (CC) was
even Schaik
258 Publishers
responsible for a significant judicial advance ity of children under the age of 14 years. This
by holding that the 2007 Criminal Law (Sen- meant that the common law governing the
tencing) Amendment Act was unconstitutional criminal capacity of children who were under
insofar as making the prescribed minimum sen- the age of 14 years at the time of the crime was
tences applicable to offenders between 16 and no longer valid and enforceable.
18 years of age. The Constitutional Court opined
that, when sentencing a juvenile offender, New Age limits
a sentencing court should impose an individ-
ually appropriate sentence rather than a legis- While the common law distinguished between
latively imposed one. Justice Cameron empha- three age groups, namely 0-6 years (infantes), -
sised that there is a sharp distinction between 7-13 years (impubes), and 14 years and older,
children and adults, and this should be borne the Child Justice Act 75 of 2008, in sections
in mind when sentencing child offenders. The 7 and 11, introduced new age limits which
aim of the Criminal Law (Sentencing) Amend- replaced the former common law provisions
ment Act is to obliterate this distinction and relating to the criminal capacity of young
for this reason it was found that the amending offenders (see s 7(3)). The three groups into
legislation unjustifiably infringed the rights of which children are now divided are 0-9 years,
children as enshrined by section 28 of the Con- 10-13 years, and 14-21 years.
stitution. Children who have not yet completed their
ninth year of life (in other words have not yet
celebrated their 10th birthday) are now irrefut-
12.2.3 Statutory law: the Child ably presumed to lack criminal capacity (see s
Justice Act 75 of 2008 7(1) of the Act). Burchell (2013: 255) refers to
evidence to support the view that the left and
12.2.3.1 Criminal capacity right halves of the brain join at approximately
This part of the chapter will address the juve- the age of 10 years and that children begin to
nile offender's criminal capacity as it is set evaluate and think in the abstract between
out in Part 2 of Chapter 2, specifically sections the ages of seven and 11 years. Interestingly
7-11 of the CJA. It therefore deals with the enough, this evidence makes the choice of 10
legal position regarding the criminal capacity years of age for the limit below which children
of children where the alleged crime was com- will not incur criminal liability defensible. The
mitted on or after 1 April 2010 when the Act fact that this presumption is irrefutable means
came into operation (stipulated as such in sec- that such a child can never incur any criminal
tion 4(1) of the Act). liability and cannot even be prosecuted, irre-
The main aim of the CJA was essentially to spective of how mature or intelligent such a
create a separate criminal justice system for child may be or whether the child had the nec-
children by addressing the plight of those who essary mens rea (S v M 1978 (3) SA 557 (Tk)).
were in conflict with the law and who were Any evidence regarding such a child’s cogni-
sometimes treated unduly harshly in a formal tive and conative mental abilities at the time of
criminal justice system designed by adults for the alleged crime is inadmissible.
adults. While providing for diversion of offend- Section 7(1) of the Act thus raised the min-
ers under the age of 18 years from the formal imum age of criminal capacity (and possible
criminal justice system, the legislation also criminal liability) of children from seven to 10
envisaged the improvement of juvenile offend- years, with the result that a child under the
ers’ position by keeping them out of the formal age of 10 will never enter the formal criminal
criminal justice system altogether by raising justice system. A police official who has rea-
the minimum age of criminal capacity for chil- son to believe that such a child has commit-
dren. It was explained earlier that, under the ted a crime is not allowed to arrest the child
common law, the minimum age of criminal but must immediately hand over the child to
capacity where a child could possibly incur his or her parents or guardian (s 9(1)). The
criminal liability was seven years. Section 7(3) introduction of a new minimum age of criminal
of the Act stipulated the amendment of the capacity constituted an important change in
common law pertaining to the criminal capac- our material criminal law. Practically, though,
even Schaik
Publishers 259
this was not likely to bring much change as the unless the defence counsel can, on a balance
state almost never charged a child under the of probabilities, rebut the presumption of hav-
age of 10 years before the commencement of ing had criminal capacity at the time of the
the Act anyway (Snyman 2014: 174; Burchell alleged crime. The possibility of diversion of
2013: 255). the child’s case from the formal criminal jus-
Children in the second age group, namely tice system in terms of section 4 of the CJA still
those who are 10 years or older but under the exists.
age of 14 at the time of the alleged crime, are If one can compare the old common law
rebuttably presumed to lack criminal capacity position regarding the criminal capacity of
unless the state proves that they had crimi- juvenile offenders with the new statutory posi-
nal capacity at the time of the alleged crime (s tion, it becomes clear that the only material
7(2) of the Act). The test to determine whether change is in the first age group, namely chil-
children in this category had criminal capacity dren aged 0-9 years. The common law position
is set out in section 11(1) of the Act. The fact for having criminal capacity was seven years of
that this presumption is rebuttable means that age, and this has now been increased to nine.
the prosecution may adduce evidence to prove Put differently, previously a child had to be
to the court that the child did possess the cog- at least seven years old to be convicted of a
nitive and conative mental abilities required crime, but according to the new statutory posi-
for criminal capacity at the time of the alleged tion, a child now has to be at least 10 years old
crime. Because the point of departure is that for this to occur.
the child lacked criminal capacity, the onus is
on the state or prosecution to prove beyond
Proof of criminal capacity
reasonable doubt that the child met all the
requirements, including criminal capacity, for Section 11(1) of the Act stipulates that the
incurring criminal liability. Children who are 10 state must prove, beyond reasonable doubt,
years or older but under the age of 14 years can the capacity of a child 10 years or older but
thus incur criminal liability if the state manages under the age of 14 “to appreciate the differ-
to rebut the presumption of criminal incapac- ence between right and wrong at the time
ity beyond reasonable doubt. Schwikkard and of the commission of an alleged offence and
Van der Merwe (2012:500) describe a rebut- to act in accordance with that appreciation”
table presumption as a rule of law (within the (Snyman 2014: 174). The first part of what the
law of evidence) compelling the provisional state must prove (“to appreciate the differ-
assumption of a fact. This assumption (in this ence between right and wrong”) is the cogni-
instance that the child possesses criminal tive mental ability, which refers to intellectual
capacity) will stand until the accused satisfies ability. The second part of section 11(1) (“to
the court to the contrary. In S v F 1989 (1) SA act in accordance with that appreciation”) is
460 (Z), the state did not succeed in rebutting the conative mental ability, which refers to the
the presumption of criminal incapacity on the power of resistance or self-control to refrain
part of a 10-year-old boy who was charged with from doing something wrong. Both the cog-
indecent assault (see also S v Mdukazi 1972 (4) nitive and conative ability have to be there
SA 256 (NC); S v M 1979 (4) SA 564 (B)). One before one can have criminal capacity. It is
must also keep in mind that the investigation very important to understand that criminal
into criminal capacity precedes the inquiry into capacity refers to a mental ability. Fault, in
fault or mens rea and that, after criminal capac- the form of intention specifically, consists of
ity on the part of the accused has been estab- the will to act and knowledge of unlawfulness
lished, the prosecution still needs to prove (Snyman 2014: 176). It is thus clear that crim-
mens rea in the form of either intention or negli- inal capacity deals with a mental ability while
gence before criminal liability may ensue. intention deals with knowledge, and that these
Children who have completed their 14th but two concepts are vastly different. Where the
not yet their 21st year of life are, like adults, state takes a shortcut by merely asking the
rebuttably presumed to have had criminal child whether he or she knows “the difference
capacity at the time of the alleged crime. Such between right and wrong”, criminal capacity
a child will therefore be convicted of a crime will not be proven. Such a shortcut question
260
confuses criminal capacity (a mental ability) crimes (such as murder, rape and robbery
with intention (knowing that certain conduct is with aggravating circumstances) in Schedule
unlawful). 3. A diversion order does not amount to a con-
For the state to prove criminal capacity as viction (s 59(1)), and diversion may be consid-
stated in section 11(1) of the Act, it should ered at any time during the trial and even after
prove beyond reasonable doubt that the child conviction (S v MK 2012 (2) SACR 533 (GSJ)).
had the cognitive ability to realise, at the time Emphasis is placed on the possibility of effec-
of the crime, the wrongfulness of the specific tively rehabilitating and reintegrating juvenile
conduct he or she is charged with in the spe- offenders back into society.The effectiveness
cific circumstances it was committed (Snyman of diversion to fulfil one of the most important
2014: 175). functions of punishment, namely the expres-
Equally important for the state to prove sion of society's indignation at the commission
criminal capacity is not only to prove the of the crime, has, however, been questioned.
child’s cognitive ability as explained above, Muntingh (1997: 75-76) is, for example, scepti-
but also that the child had the required cona- cal about diversion and states that
tive ability at the time of the crime. According
to section 11(1), what must be proved is the diversion of a case ... does not explicitly
child’s ability “to act in accordance with that express society's disapproval of a particu-
appreciation” (see also S v Goeda 1969 (1) PH lar act. Whereas conviction is a recorded
H 85 (OD); and S v Pietersen 1983 (4) SA 904 action, diversion becomes a clandestine
(E)). This means that the state must prove operation alongside the criminal justice
beyond reasonable doubt that the child pos- system — a private agreement between the
sessed sufficient maturity and power to resist accused, the public prosecutor, and the
temptation in the specific circumstances, tak- organization responsible for administering
ing into account the specific conduct the child the diversion programme.
is charged with.
Section 10(a)-(h) lists factors the prosecu- Chapter 10 of the CJA governs the sentenc-
tor must take into consideration in deciding ing by a child justice court of child offenders
whether or not to prosecute a child; in other who are not diverted. In S v BF 2012 (1) SACR
words, in deciding the likelihood of the child’s 298 (SCA), the Supreme Court of Appeal reit-
criminal capacity being proved. These factors erated that, where incarceration of a juvenile
include the educational level, cognitive ability, must occur, the sentence must be such as to
domestic and environmental circumstances, prepare the juvenile offender for his or her
age and maturity of the child, the nature of the return to society from the moment of enter-
alleged offence and the interests of the coming the detention facility. Part 2 of Chapter
munity. 10 (ss 72-77) provides for six new sentencing
options, which include community-based sen-
tences; restorative justice sentences; a fine, or
12.2.3.2 Sentencing of juvenile offenders alternatives to a fine; sentences involving cor-
Certainly, the main aim of the CJA is to rectional supervision; a sentence of compul-
create a new criminal justice system for chil- sory residence in a child and youth care cen-
dren where matters involving children who tre; imprisonment; and, lastly, postponement
have committed crimes can be diverted from or suspension of sentence. These sentenc-
the formal criminal justice system. The CJA ing options may also be used in combination
provides for the diversion of all offenders (s 69(2)). Restorative justice as a non-punitive
between the ages of 10 and 18 years (and resolution of conflict is promoted through var-
also over 18 years but younger than 21 if the ious sections of the CJA, such as family confer-
alleged crime was committed when the offend- ences, victim-offender mediation (s 61) and
er was under 18 years of age at the time of the community-based sentences (s 72) (S Maluleke
crime) and for all crimes. Crimes are divided 2008 (1) SACR 49 (T); S v Shilubane 2008 (1)
into three schedules for purposes of diversion, SACR 295 (T)).
ranging from less serious crimes (such as com- As far as the sentence of compulsory resi-
mon assault) in Schedule 1 to the most serious dence in a child and youth care centre in terms
Van Schaik
© Publishers 261
of section 76 of the CJA is concerned, the court ing sentence is not done in a vacuum. The seri-
in S v CS 2012 (1) SACR 595 (ECP) emphasised ousness of the offence, its impact on the vic-
that section 85 of the CJA stipulates that such tims and the interests of the broader society
a sentence is subject to review by a judge of must be taken into consideration”. The empha-
the high court in terms of section 304 of the sis on the rights of the victim, as mentioned
Criminal Procedure Act 51 of 1977. This is so above, indicates that the “Trits in Zinn” or triad
even if the child was represented by a legal of considerations in the sentencing process
practitioner. As far as imprisonment is con- has, also in the CJA, become a “square” with
cerned, section 77(1) of the CJA stipulates four considerations to be taken into account
that a child justice court may not impose a when imposing a sentence. In a judgment deliv-
sentence of imprisonment on a child who is ered on 29 September 2011 in Fredericks v State
under the age of 14 years at the time of being (208/11) [2011] ZASCA 177, the Supreme Court
sentenced. When sentencing a child who is 14 of Appeal declared that the Appeal Court is at
years or older at the time of being sentenced liberty to interfere with a sentence where the
for the offence, a court must only do so as a trial court has materially misdirected itself in
measure of last resort and for the shortest imposing a sentence on a convicted juvenile.
appropriate period of time. The CJA, in section 82, also provides for legal
The whole of chapter 10 (ss 68-79) of the representation at state expense for all alleged
Act governs the sentencing of children by mak- juvenile offenders appearing before a child
ing it compulsory for a child justice court that justice court.
has convicted a child to impose a sentence.
One of the main objectives of sentencing a
juvenile offender, according to section 69(1) 12.3 CONCLUSION
(b), is to promote an individualised response South Africa, especially before 1994, has a dark
(see S v Scheepers 1977 (2) SA 154 (A), as well history of apartheid and a total disregard for
as S v BF 2012 (1) SACR 298 (SCA)) to sentenc- fundamental human rights. Part of this unten-
ing that strikes a balance between the circum- able situation was the plight of children who
stances of the child, the nature of the offence came into conflict with the law and who were
and the interests of society. This echoes the taken up in a rigid criminal justice process
old “Trits in Zinn” principle when imposing a with disastrous results, such as whipping as
sentence and which was discussed earlier in a form of punishment, detention without trial,
this chapter under the common law. However, and/or imprisonment for political beliefs under
in the Preamble to the Act it is stated that the the infamous security legislation.
Act aims to “balance the interests of children In the early 1990s, South Africa saw the
and those of society, with due regard to the birth of a new democratic country and
rights of victims”. Also, according to section with this a Constitution with a Bill of Rights
69(4)(c) of the Act a child justice court must designed to protect the basic human rights
take, among other factors, the severity of the of every person in our society. Child rights
impact of the crime on the victim into consid- activists also began to promote the creation
eration when considering the imposition of a of a separate criminal justice system for chil-
sentence involving imprisonment, and section dren, underpinned by separate legislation in
70 of the Act permits the use of victim impact accordance with constitutional values. Their
statements in the sentencing process (Burchell tremendous efforts in child justice reform in
2013: 4). A victim impact statement is defined South Africa must be applauded. The Child Jus-
in broad terms in the Act as “a sworn state- tice Act 75 of 2008 was assented to on 7 May
ment by the victim or someone authorized by 2009 and commenced on 1 April 2010. The Act
the victim to make a statement on behalf of the predominantly aimed to create a new criminal
victim which reflects the physical, psychologi- justice system for children with the possibility
cal, social, financial or any other consequence of diverting matters involving children who
of the offence for the victim”. have committed crimes from the rigid criminal
In the decision of S v BF 2012 (1) SACR 298 justice system. The age of criminal capacity
(SCA), the Supreme Court of Appeal stated that was also raised from seven to 10 years of age,
“the attention given to a child when consider- and provision was made for the establishment
262
of child justice courts. The principles of restor- that the prosecutorial discretion to divert
ative justice, reconciliation and rehabilitation should be subjected to proper and clear limits
in the criminal justice system were also statu- in order to honour society's legitimate interest
torily entrenched. Almost seven years since its in seeing a violent criminal pay for the harm he
coming into operation, the CJA is operating in or she has done. The effectiveness of the diver-
a milieu where more and more juvenile offend- sionary options in alleviating the plight of chil-
ers are committing serious and extremely vio- dren in conflict with the law will depend, to a
lent crimes. It is this phenomenon, coupled large extent, on the resources allocated to the
with society's concern to see justice being proper practical implementation of what the
done when sentencing a convicted criminal, CJA offers on paper. Obtaining a perfect bal-
that elicits sharp criticism against the new ance between justice to juvenile offenders and
legislative framework for diversionary proce- justice to society will remain a challenge.
dures laid down by the Act. There is no doubt
CRITICAL QUESTIONS
1, Explain the term “elementological concept of a crime’.

Discuss critically the influence of youthfulness on criminal liability under the common law.
SS
Discuss the statutory provisions regarding the criminal capacity of juvenile offenders.
Explain the “Trits in Zinn” principle when it comes to imposing a sentence.
Sof
Explain the influence of the Child Justice Act 75 of 2008 on the sentencing of juvenile offenders.
REFERENCES
Burchell, J. (2013). Principles of criminal law. Cape T. Boezaart (Ed.), Child law in South Africa. Cape
Town: Juta. Town: Juta.
Burchell, J. & Milton, J. (2006). Principles of criminal Muntingh, L. (1997). Policing the transformation. ISS
law. Cape Town: Juta. Monograph 12 (April 1997).
Currie, |. & De Waal, J. (2013). The Bill of Rights hand- Obama, B.H. (2017). The president’s role in advanc-
book, Cape Town: Juta. ing criminal justice reform. Harvard Law Review,
De Wet, J.C. & Swanepoel, H.L. (1985). Strafreg. [Crimi- 130: 811.
nal law.) Durban: Butterworths. Rabie, M.A. & Strauss, S.A. (1981). Punishment: An
Du Toit, E, (1981). Straf in Suid-Afrika. [Punishment in introduction to principles. Johannesburg: Lex Patria.
South Africa.) Johannesburg: Juta. Schwikkard, P.J. & Van der Merwe, S.E. (2012). Princi-
Evans, J. & Verster, J. (2016). Crime stats 2016: Murder ples of evidence. Cape Town: Juta.
up 4,9%. Retrieved 10 April 2017 from http://www.
Sloth-Nielsen, J. (2000). Child justice and law reform.
news24.com/SouthAfrica/News/
In C.J. Davel (Ed.), Introduction to child law in South
Gallinetti, J. (2009). Child Justice in South Africa: The
Africa. Cape Town: Juta, 383-461.
realization of the rights of children accused of
Snyman, C.R. (2002). Criminal law (4th ed.). Durban:
crime. In T. Boezaart (Ed.), Child law in South Afri-
Butterworths.
ca. Cape Town: Juta.
Heaton, J. & Kruger, H. (2015). South African family Snyman, C.R. (2008). Criminal law (Sth ed.). Durban:
law. Pretoria: LexisNexis. Butterworths.
Jules-Macquet, R. (2014). The state of South African Snyman, C.R. (2014). Criminal law (6th ed.). Durban:
prisons. NICRO Public Education Series. (2nd ed.). Butterworths.
Cape Town: National Institute for Crime Prevention South Africa crime stats 2016: Everything you need to
and Reintegration of Offenders. know. (2016). Retrieved 10 April 2017 from http://
Mahery, P. (2009). The United Nations Convention www.businesstech.co.za/news/general/
on the Rights of the Child: Maintaining its value Terblanche, S.S. (2007). Guide to sentencing in South
in international and South African child law. In Africa. Durban: LexisNexis.
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United Nations.(1989). United Nations Convention on Visser, P.J. & Vorster, J.P. (1987). General principles
the Rights of the Child. UN document A/44/49. New of criminal law through the cases. Durban: Butter-
York: United Nations. worths.
Van Oosten, F.F.W. & Louw, AS. (1997). Children,
young persons and the criminal law. In J.A. Robin-
son (Ed.), The law of children and young persons in
South Africa. Durban: Butterworths, 119-160.
LEGISLATION
Abolition of Corporal Punishment Aet 33 of 1997 Criminal Procedure Act 51 of 1977

Child Care Act 74 of 1983 Interim Constitution of the Republic of South Africa
Child Justice Act 75 of 2008 Act 200 of 1993
Children’s Act 38 of 2005 Law of Evidence and the Criminal Procedure Amend-
Constitution of the Republic of South Africa ment Act 103 of 1987
Convention on the Rights of the Child: United Nations National Road Traffic Act 93 of 1996
Document A/44/49 South African Schools Act 84 of 1996
RELEVANT CASE LAW
April v Minister of Safety and Security 2009 (2) SACR 1 S v Brandt (2005) 2 All SA 1 (SCA)
(SE) Sv Bruce-Lee Naidoo 2010 (1) ZASCA 40
Centre for Child Law v Minister for Justice and Constitu- S v Cloete en Vyf Ander Hersieningsake [and Five Other
tional Development 2009 (6) SA 632 (CC) Revision Cases] 2003 (2) SACR 489 (O)
Centre for Child Law v Minister of Justice 2009 (11) S v Crossberg 2008 (2) SACR 317 (SCA)
BCLR 1105 (CC) Sv CS 2012 (1) SACR 595 (ECP)
Christian Education South Africa v Minister of Education S v Cupido 1975 (1) SA 537 (C)
2000 (4) SA 757 (CC) S v De Kock 1997 (2) SACR 171 (T)
Direkteur van OpenbareVervolgings (Director of Public S v Dodo 2001 (1) SACR 594 (CC)
Prosecutions), Tvl v Makwetsja 2004 (2) SACR 1 (T) S v Dyk 1969 (1) SA 601 (C)
DPP, Tvl v Venter 2009 (1) SACR 165 (SCA) S v Engelbrecht 2005 (2) SACR 41 (W)
Fredericks v State (208/11) [2011] ZASCA 177 S vu F 1989 (1) SA 460 (Z)
Govender v Minister of Safety and Security 2009 (2) S v Gedezi 2010 (2) SACR 363 (WCC)
SACR 87 (SCA) S v Goeda 1969 (1) PH H 85 (OD)
J v National Director of Public Prosecutions (Childline S vu Grigor [2012] ZASCA 95
South Africa and others as Amici Curiae) 2014 (7)
S v Humphreys 2013 (2) SACR 1 (SCA)
BCLR (CC)
S vu Isaacs 2002 (1) SACR 176 (C)
Lee v Minister of Correctional Services 2013 (2) SA 144
S v Jansen 1975 (1) SA 425 (A)
(CC) Sv K 1956 (8) SA 353 (A)
Masiya v DPP 2007 (5) SA 30 (CC)
S uv Kenene 1946 EDL 18
Midi TV t/a E-TV v DPP Western Cape 2007 (2) SACR
S v Khubeka 1980 (4) SA 221 (O)
439 (SCA)
S v Kolobe 2005 (1) SACR 203 (T)
Minister of Home Affairs v Tsebe 2012 (5) SA 467 (CC)
Minister of Safety and Security v Mohofe 2007 (2) SACR S v Kwenamore 2004 (1) SACR 385 (SCA)
92 (SCA) S v Lehnberg 1975 (4) SA 553 (A)
Ngubane v Chief Executive Director of Emergency Ser- S v M1978 (3) SA 557 (TK)
vices, Ethekwini Metropolitan Services 2013 (1) Su M1979 (4) SA 564 (B)
SACR 48 (KZD) S v Madoda Kwalase 2000 (2) SACR 135 (C)
Price v Mutual & Federal Insurance Co Ltd 2007 (1) S v Mahlangu (2012) ZAGPJHC 144
SACR 501 (SE) Sv Maimela 2011 (2) SACR 339 (SCA)
R v Albert 1895 (12) SC272 S v Makwanyane 1995 (3) SA 391 (CC)
SA Metal and Machinery Co (Pty) Ltd 2010 (2) SACR 413 S v Malgas 2001 (1) SACR 469 (SCA)
(SCA) S uv Maluleke 2008 (1) SACR 49 (T)
Su A 1962 (4) SA 679 (E) S v Manka 2003 (2) SACR 515 (O)
Sv Agliotti 2011 (2) SACR 437 (GS J) S v Marx 2009 (2) SACR 562 (ECP)
Sv B 2006 (1) SACR 311 (SCA) S v Mashumpa 2008 (1) SACR 126 (E)
Sv BF 2012 (1) SACR 298 (SCA) S v Matyityi 2011 (1) SACR 40 (SCA)
Sv Botes 2011 (1) SACR 439 (GNP) S v Mbanda 1986 (2) PH H 108 (T)
264
Sv Mdukazi 1972 (4) SA 256 (NC) S v Senatsi 2006 (2) SACR 291 (SCA)
Sv MK 2012 (2) SACR 533 (GSJ) Sv Shilubane 2008 (1) SACR 295 (T)
S v Mngoma 2009 (1) SACR 435 (EC) S v SM 2010 (1) SACR 504 (WCC)
S v Mokasi 2002 (2) SACR 609 (T) S uv Smit 2007 (2) SACR 335 (SCA)
S v Mostert 2006 (1) SACR 560 (N) S v Steyn 2010 (1) SACR 411 (SCA)
Sv Msomi 2010 (2) SACR 173 (KZP) Sv T 1986 (2) SA 112 (O)
Sv Myburgh 2007 (1) SACR 11 (W) S v Tabethe 2009 (2) SACR 62 (T)
Sv Mzwempi 2011 (2) SACR 237 (ECM) Sv Thisa 2003 (1) SACR 174 (O)
Sv N 2005 (1) SACR 201 (CkH) S v Tsutso 1962 (2) SA 666 (SR) 668
Sv N 2008 (2) SACR 135 (SCA) S v Van Heerden 2010 (1) SACR 529 (ECP)
S v Ndebele 2012 (1) SACR 245 (GSJ) S v Visagie 2009 (2) SACR 70 (T)
Sv Ngobese 2002 (1) SACR 562 (W) Sv Williams 1995 (2) SACR 251 (CC)
Sv Ngubane 1985 (3) SA 677 (A) Sv Z and 23 similar cases 2004 (2) SACR 410 (E)
Sv Ntuli 1975 (1) SA 429 (A) S v Zinn 1969 (2) SA 537 (A)
Sv P2001 (1) SACR 70 (C) Snyders v Louw 2009 (2) SASV 463 (K)
Sv P2002 (1) SACR 56 (C) Teddy Bear Clinic for Abused Children v Minister of Jus-
Sv Pakane 2008 (1) SACR 518 (SCA) tice and Constitutional Development 2014 (2) SA 168
Sv Phulwane and Others 2003 (1) SACR 631 (T) (CC)
Sv Pietersen 1983 (4) SA 904 (E) Veldman v DPP WLD 2007 (9) BCLR 929 (SCA)
Sv Scheepers 1977 (2) SA 154 (A)
265
OBJECTIVES
understand the general principles and objectives of the child justice system as set out in the Child Justice Act
describe Schedule 1, 2 and 3 offences at the end of the Child Justice Act (and this chapter) that list the
categories of offences
understand to which age categories of children the Child Justice Act applies
discuss arrest and alternatives
understand the rules that aim to limit pre-trial detention
discuss the pre-trial processes of assessment and diversion
understand the rules of the child justice court
understand the sentencing of child offenders within the constitutional context
explain other relevant provisions of the Child Justice Act.
KEYWORDS
assessment child justice court preliminary inquiry
acknowledgment of respon- children’s court probation officer
sibility criminal capacity prosecutor
appropriate adult detention restorative justice
child diversion ubuntu
child and youth care centre inquiry magistrate =
oven Schalk
Publishers) Q67
13.1 THE DEVELOPMENT OF A nile offenders (http://www.anc.org.za/show.

RIGHTS-BASED APPROACH php?id=3661).
The ratification by the South African gov-
FOR CHILDREN IN CONFLICT
ernment of the United Nations Convention on
WITH THE LAW: 1992-2010 the Rights of the Child (UNCRC) in 1995 set the
The death of Neville Snyman in 1992 was a scene for far-reaching policy and legislative
watershed moment for the child rights move- change. The rights of children in conflict with
ment working towards the reform of South the law - as espoused in the UNCRC - were
Africa’s child justice system. Neville was only given constitutional protection through the
13 years old when he and a group of friends inclusion of such rights in the Constitution,
broke into a local shop in Robertson and stole which came into operation on 8 May 1996.
sweets and cold drinks. Neville was arrested Children were provided with the express con-
and detained in police cells with other offend- stitutional guarantee that they would not be
ers under the age of 21 years. While detained, detained except as a measure of last resort,
his cellmates bludgeoned him to death. Non- and, if they were detained, it would be for the
governmental organisations (NGOs) had been shortest appropriate period of time; that they
raising the issue of children in the criminal jus- would be kept separate from adults; that they
tice system and calling for law reform for some would be kept in conditions which took their
time (Community Law Centre, National Insti- age into account; and that their best interests
tute for Crime Prevention and Rehabilitation would be of paramount importance. One of
of Offenders (NICRO) & Lawyers for Human the earliest cases to come before the newly
Rights 1992), but until this happened, their established Constitutional Court was S v Wil-
calls had fallen on deaf ears. Neville’s tragic liams 1995 (3) SA 632 (CC), which dealt with
death led to a public outcry, and the govern- the sentence of corporal punishment (whip-
ment took action by setting up a national work- ping), until then a sentence commonly used
ing committee on children in detention. for the punishment of children by the courts.
In the meanwhile, NGOs redoubled their The court struck down corporal punishment
efforts. Lawyers for Human Rights ran a cam- on the grounds that it was cruel, inhuman and
paign called “Free a Child for Christmas”, degrading.
which resulted in the release of 260 children The government did act with urgency on
by Christmas 1992. The NGOs also decided the issue of children in prison, as the president
that legislative reform was necessary, and in at the time, Nelson Mandela, had promised it
1993 they set about drafting proposals for a would. In this regard, however, the country dis-
new child justice system (Pinnock, Skelton covered that the practice of proceeding with
& Shapiro 1994). Although the proposals did too much haste could create problems of its
not have any official status, they did influence own. An amendment to.an existing law, which
future developments, in particular the rights- was intended to outlaw entirely the impris-
based approach - which would later form onment of children during the awaiting-trial
the bedrock of the Act - and the principles of phase, led to chaos when it was suddenly pro-
restorative justice. mulgated. Inadequate consultation between
The establishment of the first democratic the relevant government departments, as well
government in 1994 ushered in a renewed as a lack of alternative residential facilities for
focus on the need to protect children in con- children, caused the application of the new
flict with the law. In his State of the Nation law to be fraught with practical problems. So
Address in 1994, the then president Nelson serious were the consequences of this that
Mandela promised that the government would, within a year the government had to amend
as a matter of urgency, attend to the tragic and the law again, this time allowing children who
complex question of children and juveniles in had been charged with certain offences to be
detention and prison. The basic principle from detained in prison awaiting trial.
which we will proceed from now onwards is The debacle also had some positive results,
that we must rescue the children of the nation however. It led directly to the setting up of a
and ensure that the system of criminal jus- structure called the Inter-ministerial Com-
tice is the very last resort in the case of juve- mittee on Young People at Risk (IMC) which
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CHAPTER 13 THE CHILD JUSTICE ACT: PRACTICE AND PROCEDURE
became an important agency for policy making (a) protect the rights of children as provided
in the field of child and youth care, including for in the Constitution;
the management of children who come into (b) promote the spirit of ubuntu in the child
conflict with the law. justice system through —
In 1997 the law-making process began when
(i) fostering children’s sense of dignity
the Minister of Justice and Constitutional
and worth;
Development requested the South African Law
Reform Commission (SALRC) to investigate (ii) reinforcing children’s respect for
and interrogate issues relevant to “juvenile jus- human rights and fundamental free-
tice”. The Juvenile Justice Project Committee doms of others holding children
of the South African Law Commission (SALC) accountable for their actions and safe
commenced its work almost immediately, guarding the interests of victims and
releasing a discussion paper with a draft bill the community;
for comment in 1999. The project committee (iii) supporting reconciliation by means of
followed an extensive consultative process, a restorative justice response; and
holding workshops and receiving written sub- (iv) involving parents, families, victims
missions from a range of criminal justice role and, where appropriate, others mem-
players. Children were also consulted on the bers of the community affected by
bill while it was still being developed (Commu- crime in terms of this Act in order to
nity Law Centre 2000). The final report of the encourage the reintegration of chil-
Commission was completed and handed to the dren;
Minister of Justice in August 2000 (SALC 2000).
(c) provide for the special treatment of chil-
The Child Justice Bill was approved by cabinet
dren in a child justice system designed to
in 2001 for introduction to parliament, and was
break the cycle of crime, which will con-
introduced to parliament in August 2002 as Bill
tribute to safer communities, and encour-
B49 of 2002. Although fraught with significant
age these children to become law-abiding
delays, the bill was eventually assented to on
and productive adults;
7 May 2009 and came into operation on 1 April
2010 (Skelton & Gallinetti 2008). (d) prevent children from being exposed to
the adverse effects of the formal criminal
justice system by using, where appropri-
13.2 THE CHILD JUSTICE ACT ate, processes, procedures, mechanisms,
On 1 April 2010, a historic day in the protec- services or options more suitable to the
tion of the rights of children in South Africa, needs of children and in accordance with
the Child Justice Act 75 of 2008 (“Act”) came the Constitution.
into operation.
The Act aims to establish a criminal justice The Act furthermore provides a set of “guiding
system that has as a central feature the possi- principles” which frame the paradigm in which
bility of diverting matters from the criminal jus- a range of nuanced mechanisms, processes
tice system, and that expands and entrenches and procedures are to be applied (s 3).
the principles of restorative justice, while The Act may thus be said to have intro-
ensuring that children are held responsible duced a comprehensive system of dealing
and accountable for offences they commit. with children in conflict with the law that rep-
It further recognises the need to be proac- resents a decisive break with the traditional
tive in crime prevention by placing increased criminal justice system (S v CKM 2013 (2) SACR
emphasis on the effective rehabilitation and 303 (GNP)). The traditional pillars of punish-
reintegration of children in order to minimise ment, retribution and deterrence are replaced
the potential for re-offending, and balances the with continued emphasis on the need to gain
interests of children and those of society with an understanding of a child caught up in
due regard to the rights of victims (Preamble behaviour transgressing the law. This is feasi-
to the Act). In order to realise these aims, the ble by assessing his or her personality, deter-
Act provides for the following stated objec- mining whether the child is in need of care and
tives, namely to correcting errant actions as far as possible by
Van Schaik
© publishers 269
diversion, community-based programmes, the tect children who are actually in the crimi-
application of restorative justice processes nal justice system (s 4(1)(6) of the CJA; Gal-
and reintegration of the child into the commu- linetti 2009b: 15).
nity (S v CKM 2013 (2) SACR 303 (GNP)).
It is important to note that at the end of the Once it is established that the Act finds opera-
Act, the law sets out several schedules. Sched- tion in a given matter, it continues in its oper-
ules 1, 2 and 3 are lists of offences, and are set ation until the conclusion of the matter, irre-
out at the end of this chapter for ease of refer- spective of whether the child subsequently
ence. Schedule 1 lists the least serious offenc- turns 18. (This approach was taken in two
es, and Schedule 3 the most serious ones. They reported cases: S v Melapi 2014 (1) SACR 363
are referred to in many sections of the Act. (GP) and S v Nteta and Others 2016 (2) SACR
A thematic breakdown of the Act follows. 641 (WCC).)
The Act - recognising that people between
the ages of 18 and 21 years may also benefit
13.2.1 Scope and application of the from certain procedures laid down in the Act
Child Justice Act (CJA) - allows for the Director of Public Prosecutions
The Act applies to any person under the age to direct that such person be assessed and
of 18 years who is alleged to have committed placed into a diversion programme (s 4(2) of
an offence. This seems simple at first but when the CJA).
one considers that children under the age of
10 years cannot be held criminally responsible
13.2.2 Criminal capacity
for their actions and that the status of being
a child is by its very definition transitional, it Note: Please read this section with section 12.2 in
becomes quite complex (also see Chapter 12). Chapter 12.
In order to provide some clarity, the Act
prescribes that it applies to the following cate- In law, a person is responsible for criminal
gories of children: conduct only if the prosecutor proves, beyond
reasonable doubt, that at the time the conduct
e Children below the age of 10 years at the was perpetrated he or she had criminal capac-
time of the commission of the offence. The ity (Burchell 2011: 255). Offenders are consid-
rationale for the Act applying to these chil- ered to be endowed with criminal capacity if
dren and not only to those between the they have the mental ability to appreciate the
ages of 10 and 18 years is that section 9 wrongfulness of their conduct (“cognitive fac-
of the Act mandates a probation officer to ulty”) and the ability to conduct themselves in
undertake an assessment to establish the accordance with such appreciation (“conative
cause of the behaviour and undertake a faculty”) (Snyman 2008: 160; S v TNS [2015] 1
measure of remedial action (s 4(1)(a) of All SA 223 (WCC)).
the CJA). Any action taken pursuant to this The youthfulness of an accused may serve
section against the child, however, does not to exclude criminal capacity in certain cir-
amount to a criminal prosecution. cumstances. In this vein, the Act distinguishes
¢ Children aged 10 years and older but younger between three groups of children, which are
than 18 years at the time that they were described below.
handed a written notice to appear in court,
were served with a summons, or were 13.2.2.1 Children who have not yet com-
arrested. The rationale for not having the
“date of the commission of the offence”
pleted their 10th year
as the determining factor is simple: it is to In these instances the child is irrebuttably
avoid the anomalous situation where a child presumed to lack criminal capacity and may
commits an offence and is only brought into therefore not be prosecuted (s 7(1) of the CJA;
the criminal justice system much later, for Burchell 2011: 264).
example when he or she is middle-aged. The Although children below the age of 10 years
procedures in the Act are designed to pro- may not be arrested or prosecuted, the Act
270 (Onsiten)
recognises that they are at risk and that some The Department proposes the raising of the
action should be taken. The Act therefore age of criminal capacity to 12 years (South
makes it mandatory that a probation officer be African government 2016). Questions remain
notified to conduct an assessment. Once such about whether the presumption will stay or
children have been assessed, the probation be scrapped. If it is to be removed, this would
officer may mean that children under 12 years cannot be
prosecuted, but such an option would also
e refer them to the children’s court
mean that 12- and 13-year-olds would have less
e refer them for counselling or therapy protection under the law. Consequently, some
e refer them to a programme designed to suit civil society groups have indicated that they
the needs of children under the age of 10 will advocate for raising the minimum age to
¢ arrange support services for them 14 years (Skelton 2013).
e set up a meeting with them and their par-
ents or any other person in order to develop 13.2.2.3 Children who are 14 years and
an appropriate written plan of action
older
e decide to take no action (ss 9(3) and (4) of
the CJA). On attaining the age of 14, a child is presumed
to have criminal capacity and is regarded in
law as being no different from an adult with
13.2.2.2 Children between the ages of 10 regard to criminal capacity (s 7(3) of the CJA;
and 14 years Burchell 2011: 267), though youthfulness does
affect culpability for purposes of sentencing.
There is a presumption that a child between
the ages of 10 and 14 years lacks criminal
capacity. This presumption, however, is rebut- 13.2.3 Methods of securing a child’s
table and it weakens as the child approach- attendance at a preliminary
es the age of 14 (s 7(2) of the CJA; Burchell inquiry
2011: 264).
In order to rebut this presumption, the One of the main aims of the Act is to prevent
state is tasked with proving beyond reason- children from being exposed to the adverse
able doubt that the child had criminal capaci- effects of the formal criminal justice system
ty (s 11(1) of the CJA; S v TNS [2015] 1 All SA (s 2(c) of the CJA). One of the ways in which
223 (WCC)). In deciding whether the child has this is achieved is by providing for various
criminal capacity or not, the inquiry magistrate “non-traditional” ways of ensuring that a child
or the child justice court must have regard to attends the preliminary inquiry. Thus where
the probation officer's assessment report and a child is suspected of committing an offence
may consider any other information that is of and is apprehended, his or her presence can
relevance (ss 11(2) and (3) of the CJA). This be secured in various ways, namely by the fol-
may include calling on mental health experts
lowing:
to provide their opinion on the criminal capac- e A police official may hand the child a written
ity of the child. notice warning him or her to appear before
Where a child is not found to have criminal a preliminary inquiry. A written notice may
capacity, he or she should, if it is in his or her only be handed to a child who has com-
best interest, be dealt with in the same manner mitted a Schedule 1 offence (s 18(1) of the
as if he or she was below the age of 10 (s 11(5) CJA). The notice should be handed to the
of the CJA). child in the presence of his or her parent,
The Act requires parliament to consider guardian or an appropriate adult. Where
raising the age of criminal capacity within five this is not possible, the police official must
years of the Act coming into consideration. hand the written notice to the child and a
In September 2016 the Department of Justice copy must, as soon as circumstances per-
reported to a joint meeting of the Parliamen- mit, be handed to the parent, guardian or an
tary Portfolio Committee on Justice and the appropriate adult (s 17(1)(@) read with s 18
Select Committee on Security and Justice. of the CJA). The police official must notify
Onbisnes) 271
the probation officer concerned, within 24 The court found the arrest of the 15-year-
hours, that a written notice has been served old girl in this case to have been unlawful
on a particular child (s 18(4)(6) of the CJA). because the officer failed to consider her
best interests, and it was not necessary to
e A police official may also serve a summons
arrest her. Although this case dealt with an
on a child. A summons is usually used
incident that occurred in 2008 prior to the
when a period of time has elapsed since the
Act coming into operation, it underscores
offence was committed. This is usually the
the application of the Constitutional princi-
case when a charge was previously with-
drawn and the prosecutor elects to rein- ple of best interests to arrest.
state it (Gallinetti 2009b: 24). A summons
is also issued when the docket has been 13.2.4 Pre-trial detention
referred to a prosecutor to make a decision,
and he or she has decided to prosecute. A Deaths and injuries of children in custody in
summons may be used to secure the atten- South Africa have occurred most often during
dance of a child regardless of what schedule pre-trial detention (Skelton & Courtenay
offence is alleged to have been committed. 2015: 335). This illustrates not only the vulner-
The summons must be served on the child ability of arrested and detained children, but
in the presence of his or her parent, guard- also underscores the importance of adhering
ian or an appropriate adult. Where this is to the constitutional injunction contained with
not possible, the police official must serve section 28(1)(g) of the Constitution, which
the summons on the child and a copy must, provides children the right not to be detained
as soon as circumstances permit, be hand- except as a measure of last resort and for the
ed to the parent, guardian or an appropriate shortest possible period of time. The Act pro-
adult (s 17(1)(b) read with s 19 of the CJA). ceeds from the understanding that section
The police official must notify the probation 28(1)(g) applies to pre-trial and pre-sentence
officer concerned, within 24 hours, that a detention as well to detention as a sentence. In
summons has been served on a particular Raduvha v Minister of Safety and Security (CCT
child (s 19(3)(b) of the CJA). 151/15) [2016] ZACC 35, the Constitutional
Court confirmed this. Arrest and detention
¢ Apolice official may arrest a child. However,
were seen as separate stages — arrest of chil-
it is important to note that a child may not
be arrested for an offence referred to in dren to be subject to the best interests of chil-
dren and pre-trial detention to be considered
Schedule 1 unless compelling reasons exist
that justify this. The police official must an aspect of detention as referred to in sec-
notify the parent, guardian or an appro- tion 28(1)(g). In that case, the court found the
priate adult of the arrest. If this is not detention in police cells of a 15-year-old girl on
possible, the police official must submit a minor charge of obstructing justice, whose
a written report to the inquiry magistrate father was present and willing to receive her,
explaining why he or she was unable to do to be a flagrant breach of section 28(1)(g).
so (s 17(1)(c) read with s 20 of the CJA). In order to cure the situation that existed
The police official must notify the proba- in South Africa and to give effect to the consti-
tion officer concerned, within 24 hours of tutional imperative contained within section
arrest, that the child has been arrested 28(1)(g), the Act comprehensively overhauled
(s 20(4) of the CJA). Moreover, a police the processes and procedures for and condi-
official must take any child who has been tions of pre-trial detention.
arrested and not released to the relevant The Act sets its face firmly against the
magistrate’s court within 48 hours of the detention of children by stating unequivocally
arrest. In Raduvha v Minister of Safety and that “[w]hen considering the release or deten-
Security (CCT 151/15) [2016] ZACC 35, the tion of a child who has been arrested, prefer-
Constitutional Court found that when con- ence must be given to releasing the child” (s
templating the arrest of a child, the police 21(1) of the CJA). However, if detention is to be
officer must apply the principle of best used, then the Act distinguishes between two
interests as a paramount consideration. situations of release and pre-trial detention:
Van Schaik
272 ©pubiishers
e Release and detention before the first detention of the child in an appropriate CYCC,
appearance at the preliminary inquiry where such centre is available within a rea-
¢ Release and detention after the first appear- sonable distance from the court and where a
ance at the preliminary inquiry and at any vacancy exists.
subsequent appearance in court Where no such facility is available, or there
are no vacancies, or the child is 14 years and
older and has committed a Schedule 3 offence,
13.2.4.1 Release and detention before the child must be detained in a police cell or
the first appearance at the lock-up facility.
preliminary inquiry The Act does not provide for the possibility
of a child being detained in a prison prior to
A police official must, in respect of an offence
the first appearance (Gallinetti 2009b: 27).
referred to in Schedule 1, where appropri-
ate, release a child on written notice into the
care of a parent, an appropriate adult or a 13.2.4.2 Release and detention after
guardian (s 21(2)(a) of the CJA). It would not the first appearance at the
be appropriate to release such a child where
preliminary inquiry
either the child’s parent, an appropriate adult
or guardian cannot be located or is not avail- A child may be released at a preliminary inquiry
able despite all reasonable efforts having been or any subsequent appearance in one of three
made to locate such person; or a substantial ways:
reason exists to believe that a child may be a ¢ The child may be released, in respect of any
danger to any other person or to him- or her- offence, into the care of a parent, an appro-
self (s 22(1) of the CJA). Where a police official priate adult or guardian (s 21(3)(a) of the
does not release a child, he or she must set out CJA).
the reasons in a written report, which must be
¢ The child may be released, in respect of a
submitted to the inquiry magistrate (s 22(2) of
Schedule 1 or 2 offence, on his or her own
the CJA).
recognisance (s 21(3)(b) of the CJA).
In instances where the police official cannot
release a child, a prosecutor may authorise the ¢ The child may be released on bail (s 21(3)
release of the child on bail. The prosecutor is (c) of the CJA).
entitled to do so in relation to both Schedule 1
and 2 offences (s 21(2)(b) of the CJA). A presiding officer must consider releasing a
If a child is not released before his or her child on his or her own recognisance or into
first appearance, a police official must, where the care of a parent, an appropriate adult or a
appropriate and applicable, consider the guardian unless doing so would not be in the
placement of a child in a suitable child and interests of justice (s 24(1) and (2) of the CJA).
youth care centre (CYCC) (s 26(2)(a) of the In order to determine whether the release of
CJA). Whether it is appropriate or applicable the child is in the interests of justice or not,
to consider placement of a child, section 27 of the presiding officer must have regard to the
the Act distinguishes between three categories recommendations of the probation officer’s
of children: assessment report and all other relevant fac-
tors, including the best interests of the child;
¢ Acchild who is 10 years or older but under whether the child has a previous conviction;
the age of 14 who is charged with any
the interests and safety of the community in
offence
which the child resides; and the seriousness
¢ Achild who is 14 years or older and charged of the offence (s 24(3) of the CJA). In the event
with a Schedule 1 or 2 offence that the presiding officer elects to release the
e Achild who is 14 years or older and charged child, as aforesaid, he or she may impose one
with a Schedule 3 offence or more conditions to ensure the child does
not abscond. These include reporting period-
With regard to the first two categories, a ically to a specified person or at a specified
police official must give consideration to the place, attending a particular school, residing
Onbisnes) 273
at a particular address, being placed under accused of committing a Schedule 3 offence;

supervision, or not associating with any: per- the detention is necessary in the interests of
son or group of persons (s 24(4) of the CJA). justice; and there is a likelihood that the child,
Should the child fail to adhere to any such con- if convicted, could be sentenced to prison (s
dition, a warrant of arrest or a summons may 30(1) of the CJA). These requirements are fur-
be issued. ther qualified in respect of children who are
In the event that none of the above manners 14 years or older but under 16 in that, in addi-
of release is appropriate, a child may neverthe- tion to the above factors, the Director of Pub-
less be released on bail (s 25(1) of the CJA), an lic Prosecutions must issue a certificate which
application for which must be considered in confirms that there is sufficient evidence to
three stages. institute a prosecution against the child for
First it must be determined whether the an offence referred to in Schedule 3 (s 30(2) of
interests of justice permit the release of the the CJA). Even where such circumstances are
child on bail. If they do, a separate inquiry present, a presiding officer must nevertheless
must be held to determine what an appropri- consider the recommendations of the proba-
ate amount of money would be to set as bail. If tion officer’s assessment report as well as any
after such inquiry it is found that the child and other relevant evidence which has a bearing
his or her parent, appropriate adult or guard- on the best interests of the child; the child’s
ian is unable to pay any amount of money, the state of health; the risk of the child absconding
presiding officer must set appropriate con- from a CYCC; the probable period of detention
ditions that do not include the payment of until the conclusion of the matter; and the seri-
money. If they can pay an amount of money, ousness of the offence, to name a few (see s
the presiding officer must set conditions and 30(3)(a-k) of the CJA).
an amount of money that is appropriate in the Lastly, where a child has been ordered to
circumstances (s 25(2) of the CJA). remain in any form of pre-trial detention, the
If a decision is made that a child is to remain Act mandates that such detention must be
in detention, the presiding officer may order re-evaluated at each and every subsequent
that he or she be detained at either a CYCC appearance (s 32 of the CJA). In S v S unre-
or a prison (s 26(3) of the CJA). When making ported case [2015] ZAGPPHC 520 (11 June
such a determination, the presiding officer 2015), the reviewing judge took a dim view of
must give preference to the least-restrictive the magistrate postponing a matter twice for a
option possible in the circumstances (s 26(1) month each time while the child remained in
of the CJA). In practice this would mean that a detention.
child should be detained at a CYCC rather than
in a prison (Gallinetti 2009b: 29).
When a presiding officer is tasked with 13.2.5 Pre-trial procedures
deciding whether a child should be detained at A dramatic departure from the conventional
a CYCC, consideration must be given to the age South African criminal procedure was the intro-
and maturity of the child; the seriousness of duction of two critical processes at the pre-tri-
the offence in question; the risk that the child al stage of proceedings by the Act, namely
may be a danger to him- or herself or others; assessment and the preliminary inquiry.
the appropriateness of the level of security at Although they are distinct processes, assess-
the CYCC; and the availability of accommo- ment and the preliminary inquiry are closely
dation (s 29(2) of the CJA). When considering linked in that they must both occur within 48
these factors, the presiding officer must con- hours of a child’s arrest (s 43(3)(b)(i) of the
sider the probation officer’s assessment report CJA; Gallinetti 2009a: 653). Moreover, one of
(s 29(3) of the CJA). the objectives of the preliminary inquiry is to
In order to ensure that children are consider the recommendations of the proba-
detained in a prison as a matter of last resort, tion officer’s assessment report and make deci-
the Act provides that a presiding officer may sions based on it (s 43(2) of the CJA).
only order detention in a prison if an applica- The interrelatedness of these two processes
tion for bail has been postponed or refused; provides for a more central role for probation
the child is 14 years or older; the child is officers. In this way the Act promotes the prin-
274
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__ CHAPTER 13 THE CHILD JUSTICE ACT: PRACTICE AND PROCEDURE
ciples of restorative justice by tempering the ¢ Consider whether the child was used by an
cold and uncaring mainstream criminal justice adult to commit the offence.
system by placing professionals at the coalface e Provide any other information regarding
who are knowledgeable about crime preven- the child which the probation officer may
tion, the treatment of offenders, and the care regard to be in the best interests of the
and treatment of victims, as well as working child or which may further any objective
with families and communities of both offend- which this Act intends to achieve.
ers and victims.
When conducting an assessment, the proba-
13.2.5.1 Pre-trial assessment tion officer must ensure that the child is pres-
ent (s 38(1) of the CJA). The probation officer
The Act makes it compulsory for all children must explain the purpose of the assessment to
who are alleged to have committed an offence, the child; inform the child of his or her rights;
including those under the age of 10 years, to and inquire from the child whether or not he
be assessed by a probation officer before they or she intends acknowledging responsibility
appear before a preliminary inquiry (s 34 of the for the offence in question (s 39(1) of the CJA).
CJA). A child must be brought before a prelim- The probation officer must further encourage
inary inquiry within 48 hours of being arrest- the participation of the child during the assess-
ed if still in detention, or if not detained, with- ment (s 39(6) of the CJA).
in such period indicated in the written notice In addition to having the child present, a
or summons (s 43(3)(6) of the CJA). While an probation officer must ensure that the par-
assessment of a child is mandatory, the Act ent, an appropriate adult or guardian attends
does, in limited circumstances, provide that it the assessment unless such person has been
may be dispensed with where it is in the best exempt or excluded from attending (s 38(2) of
interests of the child. This may either occur at the CJA). The probation officer may also per-
the insistence of the prosecutor or the inquiry mit a diversion service provider, a researcher
magistrate (ss 41(3) and 47(5), respectively, of or any other person whose presence is neces-
the CJA). sary or desirable (s 38(3) of the CJA).
The purpose of the assessment report in Once the assessment of the child has been
terms of section 35 of the Act is, among other completed, the probation officer must provide
things, to do the following: a written report with recommendations to the
court on, among other things, the following
¢ Establish whether the child is in need of
issues, where applicable:
care and protection.
¢ Estimate the age of the child if this is uncer- ¢ Whether the child should be referred to
tain. the children’s court for care and protection
proceedings to commence
¢ Gather information relating to any previ-
ous convictions or diversion, or pending ¢ Whether the child may be diverted, includ-
charges in respect of the child. ing what type of programme he or she
¢ Formulate recommendations regarding the should attend and where
release or detention and placement of the e The possible release of the child on his or
child. her own recognisance or into the care of a
e Establish whether the child is a suitable parent, an appropriate adult or a guardian
candidate for diversion.
e If there is a likelihood of the child not
¢ Determine whether any measures should be being released, a recommendation regard-
taken against a child who is 10 years of age ing whether the child should be placed in
or younger. a CYCC or prison, which should include
¢ Express views on whether expert evidence an assessment of the availability or other-
is needed in relation to the criminal capacity wise of such accommodation and the level
of a child 10 years or older but under the of security, amenities and features of the
age of 14. centre
Van Schaik
©pubiishers 275
e¢ Determining what measures should be ¢ establish whether the matter should be

taken in relation to a child who is 10 years referred to the children’s court for care and
or younger protection proceedings to commence
¢ The possible criminal capacity of the child * ensure that all the available information rel-
if the child is 10 years and older but young- evant to the child, his or her circumstanc-
er than 14, as well as any measures that es and the offence are considered in order
should be taken to prove the child had to make a decision regarding diversion,
criminal capacity release or detention
* ensure that the views of all present, includ-
e An estimation of the age of the child if this
ing the child, are taken into consideration
is uncertain
before a decision is made
¢ Whether a further and more detailed assess- * encourage the participation of the child
ment of the child is required in order to con- and his or her parent/s, an appropriate
sider whether the child may be a danger to adult or a guardian in decisions concerning
others or him- or herself; whether the child the child
has a specific propensity towards commit- e determine the release or placement of child
ting offences or absconding; whether the where such child is detained (s 43(2) of the
social welfare history of the child warrants CJA).
a further assessment; and whether the child
should be admitted to a sexual offenders’,
Once the inquiry magistrate has considered
substance abuse or other intensive treat-
all the information, he or she may make essen-
ment programme (s 40(1) read with ss 40(2)
tially one of two orders (Gallinetti 2009b: 41).
and (3) of the CJA)
The first is that the child be diverted. How-
ever, where the child is 10 years or older but
This report must be handed to the prosecutor under 14, the inquiry magistrate must first be
before the commencement of the preliminary satisfied that the child has criminal capaci-
inquiry so that “... the role players ... have a ty, otherwise the child should be discharged
general understanding of the makeup of the (s 49(1) of the CJA). The second is that, if not
juvenile (sic) or child being dealt with, [and] diverted, the child must be referred to the
.. can from the outset of the case agree on child justice court for plea and trial. Where the
how to proceed with the matter” (S v S [2015] child is unrepresented, the inquiry magistrate
ZAGPPHC 520 (11 June 2015) at [13]). must explain the right to legal representation
to the child, and refer the child to Legal Aid
13.2.5.2 Preliminary inquiry South Africa. Moreover, should the child be in
detention, the inquiry magistrate must consid-
Unlike the adversarial nature of a mainstream er whether release is appropriate. The child
criminal trial, the preliminary inquiry envisag- must be informed of the charge against him or
es an inquisitorial pre-trial discussion, which her, and the date, time and place of the next
is presided over by an inquiry magistrate, appearance (s 49(2) of the CJA).
and involves the child; the parents, an appro- The preliminary inquiry is aimed at truth
priate adult or a guardian; the prosecutor; telling in an effort to fully understand the child
and the probation officer (Skelton & Potgieter and his or her circumstances, as well as the
2002: 492; s 43(1) of the CJA). The objectives of nature of the offence, in order to decide on the
a preliminary inquiry, among other things, are best course of action. Section 45(2) contains a
to rule that no information furnished at a prelim-
inary inquiry may be used against the child in
¢ consider the assessment report of the pro-
any bail application, plea, trial or sentencing.
bation officer
In S v S [2015] ZAGPPHC 520 (11 June 2015),
¢ establish whether the child can be diverted the court found several irregularities. The
before plea information that the accused was addicted to
e identify a suitable diversion option, where drugs was revealed at his first appearance and
applicable was later used to justify sentencing him to be
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__SHAPTER 13 _THE CHILO JUSTIGE ACT: PRACTICE
AND PROCEDURE
detained in a centre for treatment. No proper that, where it is completed successfully, the
preliminary inquiry was held, that the matter child cannot be prosecuted on the same facts
was postponed several times for long periods, (s 59(1)(@) of the CJA). Further, a diversion
contrary to section 40, which does allow post- order does not constitute a previous con-
ponements beyond the usual 48 hours for fur- viction (s 59(1)(6) of the CJA). This rule was
ther assessment but within strict time frames. applied in S v EA 2014 (1) SACR 183 NCK, in
which a 17-year-old was charged with sever-
al counts of assault (the offences occurred
13.2.6 Diversion before the CJA came into operation) and a
Diversion is the channelling of children away decision was made by the prosecutor to divert
from the formal court system into re-inte- the matter. The matter was subsequently with-
grative programmes. If a child acknowledges drawn after he had completed the diversion
responsibility for a wrongdoing, in certain cir- programme. After he turned 18 years of age, he
cumstances he or she can be diverted to such was charged again with the same offences and
a programme, thereby avoiding the stigmatis- convicted, but before sentence was imposed
ing and even brutalising effects of the main- it was discovered that he had previously been
stream criminal justice system. Diversion gives diverted. On review, the high court found that
children a chance to avoid a criminal record, the successful completion of diversion created
while at the same time teaching them account- an expectation that the accused would not be
ability and responsibility for their actions prosecuted again on the same facts, and the
(Badenhorst 2011: 5). conviction was accordingly set aside.
Prior to the enactment of the Act, the law did In S v S [2015] ZAGPPHC 520 (11 June 2015),
not specifically provide for diversion. Rather charges were laid after the CJA came into oper-
it was practised on an ad hoc basis, generally ation. The court found that a boy who had
in urban areas that were well resourced. The completed a diversion on a theft charge was
introduction of the Act, however, made diver- wrongly convicted of that offence at a later
sion a central feature in the child justice pro- stage. On review, the high court made specif-
cess. The Act further provides a framework for ic reference to s 59(1)(a@), which provides that
diversion, which reduces the risk of discrimi- a child who completes diversion may not be
natory applications and practices relating to prosecuted again on the same facts, and found
diversion (Badenhorst 2011: 18). that it was in the interests of justice to set that
The concept, objectives and options of conviction aside.
diversion are discussed in detail in Chapter 11.
However, it is important to bear in mind that a
child may be diverted at any stage of the crim-
13.2.7 Child justice court
inal justice process up until the close of the A child justice court is any court having juris-
state’s case (Badenhorst 2011: 18; ss 41, 52 and diction that deals with the bail application,
67 of the CJA), and moreover may be diverted plea, trial or sentencing of a child (s 1 of the
irrespective of whether he or she committed a CJA). A child justice court may thus be a dis-
Schedule 1, 2 or 3 offence (ss 52(2) and (3) of trict court, a regional court or a high court. In
the CJA). In S v MK 2012 (2) SACR 533 (GSJ), some major urban areas, there are a sufficient
the high court found that a court that had con- number of children being charged with offenc-
victed a 16-year-old on two charges of rape es to warrant the establishment of a desig-
(Schedule 3) had misdirected itself by failing to nated child justice court (Skelton & Potgieter
consider the possibility of diversion - and the 2002: 483). The Act further makes provision for
court underscored the fact that diversion can the establishment of one-stop child justice cen-
take place during a trial. This judgment found tres, which are specialised institutions geared
that even the child justice court presiding offi- towards streamlining the whole child justice
cer (in this case a regional court magistrate), process within the confines of a single building
who did not preside over the preliminary (s 89 of the CJA).
inquiry in the matter, had a duty to consider In instances where an adult and child are
diversion. tried together, the court must apply the Act
The legal consequence of a diversion is in respect of the child, and the Criminal Pro-
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cedure Act 51 of 1955 in respect of the adult the child’s best interests are of paramount
(s 63(2) of the CJA). importance in every matter concerning the
In order not to impede on the fair-trial rights child (ss 28(1)(g) and 28(2) of the Constitu-
of the child, specifically the ability to testify tion). In order to ensure that these constitu-
freely and to promote the future reintegration tional imperatives are adhered to, the Act pro-
of the child into society, the Act bars from vides that a child justice court must impose a
the proceedings any person whose presence sentence in accordance with the provisions set
is not necessary (s 63(5) of the CJA). In the out in the Act (s 68 of the CJA).
case of Media 24 Limited v National Prosecut- In determining an appropriate sentence
ing Authority in re: S v Mhlangu (2011 (2) SACR for a child, the Act prescribes certain objec-
321), the court found that the media represen- tives that the child justice court must seek to
tatives could not sit in the courtroom as one achieve. These include, among others, the fol-
of the accused was under the age of 18 years lowing:
and this would affect his rights. However, due
¢ Encouraging the child to understand the
to the public interest in this case, which dealt
implications of and be accountable for the
with the murder of prominent right-wing lead-
harm caused
er Eugene Terre’Blanche, the judge did allow
media representatives to sit in another room ¢ Promoting an_ individualised response
at the court and view the proceedings via which strikes a balance between the cir-
closed-circuit TV, provided that the face of the cumstances of the child, the nature of the
child accused was blurred. offence and the interests of society
The Act also prohibits the publication of ¢ Promoting the reintegration of the child
any information that reveals or may reveal the into the family and the community
identity of the child (s 63(6) of the CJA). This e Ensuring that any necessary supervision,
rule has generally been upheld while the child guidance, treatment or service which forms
is under the age of 18 years, though the press part of the sentence assists the child in the
ombudsman has ruled on complaints (Nadine process of reintegration
Hamman v Huisgenoot 2014). However, there
¢ Using imprisonment only as a measure of
have been several cases where, once the child
last resort and only for the shortest appro-
turns 18 years, the media have published iden-
priate period of time (s 69(1) of the CJA)
tifying details, and the Centre for Child Law at
the University of Pretoria has launched a case
challenging this practice (Skelton 2017). In order to promote sentences that realise
these objectives and to encourage a restor-
Lastly, where a child appears before a child
ative justice approach, sentences may be used
justice court, the Act provides that a parent, an
in combination (s 69(2) of the CJA).
appropriate adult or a guardian (s 65(1) of the
CJA) must assist him or her. If none of these
can be traced and any further delay would 13.2.8.1 Pre-sentence reports
be prejudicial to the interests of the child or
to the administration of justice, the child jus- Within both an international as well as a local
tice court may dispense with this obligation context, the importance of compiling pre-sen-
(s 65(2) of the CJA). If the child is not so assist- tence reports, especially where a child is at
ed, then the presiding officer can, in excep- risk of being detained, has long since been
tional circumstances, appoint an independent recognised. The United Nations Standard Min-
observer to do so (s 65(6) of the CJA). imum Rules for the Administration of Juvenile
Justice (Beijing Rules) requires the following:
In all cases except those involving minor
13.2.8 Sentencing offences, before the competent authority
When sentencing children, there are two renders a final disposition prior to sentenc-
important constitutional injunctions that must ing, the background and circumstances
be taken heed of, namely that imprisonment in which the juvenile is living or the con-
should be a matter of last resort and for the ditions under which the offence has been
shortest appropriate period of time; and that committed shall be properly investigated
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so as to facilitate judicious adjudication of ing them to opt for uniquely tailored sentences
the case by the competent authority. that aim to maximise the rehabilitation and
reintegration of the specific child. Because
In order to maintain the “child centricity” that probation officers are at the coalface of the
resonates throughout the Act, sections 71(1) criminal justice system, they play an important
(a) and (6) provide that a pre-sentence report role in ensuring that their recommendations
must be requested in every matter, and that are uniquely designed to the specific needs of
this may only be dispensed with if the matter the child, and therefore they need to be thor-
is a Schedule 1 offence, or the obtaining of the oughly trained in this field.
report would cause a delay that would preju- It is important to note that these sentences,
dice the child. However, no sentence involv- used in combination, are not limited to chil-
ing compulsory residence or imprisonment dren who commit petty offences. Correction-
may be imposed unless a pre-sentence report al supervision especially has been used in
has been presented to, and considered by, conjunction with other programmes in cases
the court. A pre-sentence report must be com- as serious as rape and murder. In the case of
pleted as soon as possible but not later than Director of Public Prosecutions, KwaZulu-Natal v
six weeks following the date on which it was P 2006 (1) SACR 243 (SCA), the Supreme Court
requested (s 71(2) of the CJA). of Appeal reviewed the sentence of a girl who
In S v S [2015] ZAGPPHC 520 (11 June 2015), had murdered her grandmother when she was
the court criticised the process in which a 12 years of age. The court gave her a wholly
brief report that was apparently prepared by suspended sentence of imprisonment coupled
the probation officer for a preliminary inquiry with the performance of correctional supervi-
(which was not held) was signed months later sion, which included house arrest. In the case
by the probation officer and presented to of S v N 2008 (2) SACR 135 (SCA), the Supreme
court as a pre-sentence report. Court of Appeal was yet again tasked in dealing
with a 17-year-old child who had committed a
very serious offence, namely rape. The court
13.2.8.2 Community-based sentences found that while imprisonment was unavoid-
A community-based sentence is one that able in this instance, it was necessary to tem-
allows a child to remain in the community. per the length of the sentence, and accordingly
This type of sentence may take on a variety of held that a five-year term imposed under sec-
forms, for example the following: tion 276(1)() of the Criminal Procedure Act
was appropriate. This is a sentence of impris-
¢ Postponement of a sentence
onment in which, subject to the behaviour of
e Suspension of a sentence the child, he or she is eligible for release under
e Sentencing a child to undergo one or more a community-based sentence after serving one-
diversion options, detailed elsewhere in tenth of the prison sentence. Imposing this
the Act, as a sentence that may be linked sentence the court, per Cameron J held:
through the postponement or suspension of
the sentence (s 72(1) read with s 53 of the Is this too soft? | cannot say no with any
CJA) assurance. But I am less unsure that it may
be too soft than I am sure that an undiffer-
e A restorative justice sentence, which may
entiated sentence of direct imprisonment
encompass a family group conference or
is too harsh. And if we are to risk erring
victim-offender mediation (s 73 of the CJA)
at all, the Constitution requires us to err
e A fine or an alternative to a fine, such as by recognising the possibility of prom-
symbolic restitution (s 74 of the CJA) ise that may still flower from his youth,
e A sentence involving correctional supervi- rather than fixing on the destruction that
sion (s 75 of the CJA) was immanent in his crime (S v N 2008 (2)
SACR 135 (SCA) at [43]).
The provision of such a wide variety of sen-
tences by the Act focuses the minds of both The cases above were decided before the CJA
presiding officers and probation officers, forc- came into operation. In S v S [2015] ZAGPPHC
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520 (11 June 2015), the court found a sen- The matter of S v CKM 2013 (2) SACR 303
tence of detention in a treatment centre to be (GNP) dealt with the circumstances in which
“against the tenets of the CJA which recogniz- such a sentence would be appropriate, as
es that before a sentence of incarceration or well as the duties of a probation officer. The
detention can be imposed, due regard should facts, briefly, were that three boys (anony-
be taken of section 28(1)(g) of the Constitu- mised as CKM, IMM and FTM) appeared at
tion”. Section 28(1)(g) provides that detention different times before the same magistrate
of a child must be a measure of last resort and on various charges. CKM and IMM were both
for the shortest appropriate period of time. charged respectively with assault, and FTM
with housebreaking with the intent to commit
an unknown offence. On the strength of a pro-
13.2.8.3 Compulsory residence in a child bation officer’s report, all three boys were sent
and youth care centre to a CYCC. The court found, in respect of the
The Act provides that - as a sentencing option imposition of such sentence, that
-a child may be sentenced to compulsory res- .. referral to a reform school [child and
idence in a CYCC (s 76 of the CJA). The Act, youth care centre], which amounts to
in this regard, provides for two types of sen- an involuntary, compulsory admission
tence. The first involves a sentence in a CYCC to a facility where the convicted child
that provides for a secure care programme for is obliged to participate in various pro-
a period not exceeding five years or for a peri- grams, represents a serious invasion of
od which may not exceed the date on which a the child’s rights to freedom of movement
child turns 21 years of age, whichever date is and decision making. Such a sentence
the earliest (s 76(2) of the CJA). The second should therefore not be imposed lightly or
involves a period of imprisonment that is to without compelling reasons (S v CKM 2013
be served after completing a period of compul- (2) SACR 303 (GNP)).
sory residence in a CYCC (s 76(3) of the CJA).
This sentence may only be imposed where the The court highlighted that a sentence of com-
child is convicted of a Schedule 3 offence that, pulsory residence is not a “light” sentence that
if committed by an adult, would have justified should easily be imposed but rather that any
a term of imprisonment exceeding 10 years, such sentence must - as in the case of impris-
and which - in addition to the general factors onment — only be used as a last resort and
to be considered, which are dealt with below - where appropriate for the shortest period of
substantial and compelling reasons exist justi- time. Acknowledging the considerable weight
fying such a sentence (s 76(3)(/) and (if) of the that both the Act and the courts place on the
CJA). recommendations of probation officers in mak-
When imposing a sentence of compulsory ing a final determination of a just and equita-
residence in a CYCC, and similarly when a pro- ble sentence, the sentiments of the court find
bation officer recommends such a sentence, a equal application regarding recommendations
court must take the following factors into con- of compulsory residence in a CYCC (Courte-
sideration: nay 2012: 8). These sentences should not be
e Whether the offence is of such a serious imposed in an attempt to simply restore struc-
nature that it indicates that the child has a ture, discipline or education to a “troubled
tendency towards harmful activities or troublesome” child who has had the mis-
fortune of being the product of a poor social
e¢ Whether the harm caused by the offence
upbringing or who lacks adequate parental
indicates that a residential sentence is
control. Rather, such children should be dealt
appropriate
with either as children in need of care and pro-
¢ The extent to which the harm caused by the tection or be diverted from the criminal justice
offence can be apportioned to the culpabili- system should they acknowledge that they
ty of the child in causing or risking the harm have indeed committed the offence.
e Whether the child is in need of a particular In CS v S 2013 (2) SACR 323 (ECG), the high
service provided at a CYCC court set aside a sentence of compulsory resi-
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CHAPTER 13. THE CHILD JUSTICE ACT: PRACTICE AND PROCEDURE
dence in a CYCC for a minimum period of two Thirdly, children may not be sentenced to
years. The court acknowledged that such a a minimum sentence -— that is, a sentence in
sentence is severe and should only be imposed which the law prescribes a minimum sentence
after careful consideration and only on young that must be imposed where certain condi-
offenders who have committed a serious crime tions are met (see the Criminal Law Amend-
or repeatedly committed relatively serious ment Act 105 of 1997).
crimes. Furthermore, the court found that the In Centre for Child Law v Minister of Justice
sentence was incorrect in that it set a mini- and Constitutional Development 2009 (2) SACR
mum period but no maximum. 477 (CC), the Constitutional Court held that
In S v Melapi, the magistrate had wanted to the minimum sentencing legislation should not
sentence a boy to a CYCC. He was 17 years old apply to children aged 16 and 17 years old. The
at the time of the offence, but because he had majority of the Constitutional Court found that
subsequently turned 18, the CYCC would not the minimum sentencing legislation limited the
accept him. On review the high court found discretion of sentencing officers by directing
that a person who has turned 18 years before them to hand down long sentences (including
the time of sentencing (but was below 18 years life imprisonment) as a first resort. Further-
at the time of the offence) can still be sen- more, the legislation discouraged the use of
tenced to a CYCC. non-custodial options, it prevented courts
from individualising sentences, and was likely
to cause longer prison sentences. All of these
13.2.8.4 Imprisonment
features of the law amounted to an infringe-
Long before the enactment of the Act, our ment of child offenders’ rights in terms of sec-
Constitution recognised the principle that tion 28(1)(g). The court found that children
children should not be imprisoned unless as should be treated differently from adults not
a measure of last resort and then only for the for sentimental reasons, but because of their
shortest appropriate period of time (s 28(1)(g) greater physical and psychological vulnera-
of the Constitution; see also S v B 2005 2 All SA bility, and the fact that they were more open
1 (SCA) and Centre for Child Law v Minister of to influence and pressure from others. The
Justice 2009 (2) SACR 77 (CC)). Similarly, and court found it to be vitally important that child
more profoundly, “[e]very day [that a child] offenders are generally more capable of reha-
spends in prison should be because there is no bilitation than adults. These are the premises
alternative” (S v N 2008 (2) SACR 135 (SCA) at on which the Constitution requires the courts
par 39). and parliament to differentiate child offenders
In order to ensure that these and other such from adults. The court went on to explain:
principles are promoted and respected, the
Act lays down certain fundamental require- We distinguish them because we recog-
ments when imposing a sentence of imprison- nise that children’s crimes may stem from
ment, immature judgment, from as yet unformed
Firstly, an absolute ban exists on imposing character, from youthful vulnerability to
a sentence of imprisonment on a child who is error, to impulse, and to influence. We
below the age of 14 years at the time of being recognise that exacting full moral account-
sentenced (s 77(1)(q@) of the CJA). ability for a misdeed might be too harsh
Secondly, in instances where children are because they are not yet adults. Hence we
14 years or older at the time of being sen- afford children some leeway of hope and
tenced, they may only be sentenced to a term possibility (para 28).
of imprisonment if they are convicted of an
offence referred to in Schedule 3; Schedule 2 Lastly, where a court nevertheless imposes a
if substantial and compelling reasons exist for sentence of imprisonment, such sentence must
imposing such a sentence; or Schedule 1 if the be antedated by the number of days the child
child has a record of relevant previous convic- has been held in custody awaiting trial.
tions, and substantial and compelling reasons The Act, also mandates a court - and thus
exist to justify such a sentence (s 77(3) of the by implication a probation officer — to consider,
CJA). in addition to those elsewhere in the Act, the
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following factors before imposing or recom- 13.2.9.2 Referral of children from the
mending a sentence of imprisonment: criminal justice system to the
¢ The seriousness of the offence. care and protection system
e The protection of the community.
In order to realise one of its two main objec-
e The severity of the impact of the offence on
tives - namely providing for the special treat-
the victim. ment of children in a child justice system
¢ The previous failure of the child to respond designed to break the cycle of crime, and the
to non-residential alternatives. prevention of children being exposed to the
¢ The desirability of keeping the child out of adverse effects of the criminal justice system
prison. — the Act provides for the opportunity for crim-
inal proceedings to be stopped and transferred
to the children’s court for care and protection
13.2.9 Other provisions
proceedings to be initiated.
13.2.9.1 Legal representation This process is not new, but the Act places
more emphasis on it. The referral may occur
Every person who stands accused of commit-
if it appears that the child is in need of the
ting an offence has the right to have a legal
care and protection referred to in s 150(1)
practitioner assigned to him or her by the
or (2) of the Children’s Act 38 of 2005; or the
state and at the state’s expense if a substantial
child does not live in his or her family home
injustice would otherwise result (s 35(3)(g) of
or in appropriate alternative care; or the child
the Constitution). Such state-funded legal rep-
is alleged to have committed a minor offence
resentation can be obtained through Legal Aid
or offences aimed at meeting the child’s basic
South Africa. Despite this right being a clearly
need for food and warmth. It is important to
articulated constitutional guarantee, it was
emphasise that the grounds of referral to a
estimated that prior to the enactment of the
children’s court are not restricted to cases
Act, fewer than half of all children appearing in
involving minor offences (CS v S 2013 (2) SACR
court were legally represented (Intersectoral
323 (ECG)). This referral to an alternative sys-
Committee on Child Justice 2002).
tem may take place at one of the following four
In order to give effect to a child’s right to
junctures:
legal representation and to ensure that all
children are singled out for special protec- ¢ Where a child who is under the age of 10
tion, the Act - without qualification —- makes it years commits an offence, the probation
compulsory for all children to be legally repre- officer may, after assessing the child, refer
sented during their trial before a child justice the child to the children’s court (s 9(3)(a)(i)
court (S v CS 2012 (1) SACR 595 (ECP) at par read with ss 9(1) & (2) of the CJA).
10). This protection cannot per se be waived. ¢ Where a child who is 10 years or older but
Section 83 of the Act provides that even in under the age of 14 commits an offence and
instances where a child does not wish to have is not referred to a preliminary inquiry, the
legal representation or refuses to provide his prosecutor may request that the probation
or her legal representative with instructions, officer assess the child and, if needed, refer
the child justice court must appoint a legal the child to the children’s court (s 10(2)(b)
representative to assist the child. The legal of the CJA).
representative would have to cross-examine
witnesses, address the court on the merits of ¢ Where a child who is 10 years and older
the case, ensure procedural fairness, and note commits an offence and is referred for a
an appeal (if necessary) (Gallinetti 2009b: 59). preliminary inquiry, the inquiry magistrate
Although the legal representative, in this may stop the proceedings and order that
instance, does not act on behalf of the child or the child be brought before the children’s
take instructions from the child, the practical court (s 50 of the CJA).
effect of such appointment would be the same ¢ Where a child who is 10 years and older
as in the case of an own legal representative (S has been referred for trial in a child jus-
v Fortuin [2011] ZANCHC 28 at par 48). tice court, the presiding officer may never-
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theless stop the proceedings and have the a person below the age of 18 years is charged
matter referred to the children’s court if it with an offence, he or she may be charged with
appears that the child is in need of care and an offence under the Sexual Offences Act. How-
protection (s 64 of the CJA). ever, it is important to note that the young sex
offender’s case must be managed under the
The purpose of this alternative system — which CJA, and the principles of that Act continue to
is not part of the criminal justice system — is to apply.
address the root causes of the social ills which In South Africa, a constitutional challenge
may have led to the child coming into conflict has declared unconstitutional a section of the
with the law through the provision of a variety Sexual Offences Act that included a require-
of intervention processes, such as the removal ment that when children who are both between
of a child for care and protection reasons from the ages of 12 and 16 years indulge in any con-
his or her home environment, and the provi- sensual sexual act (penetrative or non-pene-
sion of psychosocial and therapeutic services. trative) and a decision is taken to prosecute,
then both must be prosecuted. In the case of
Teddy Bear Clinic and Another v Minister of Jus-
13.2.9.3 Appeal and review of sentences tice and Constitutional Development and Others
The Act has special provisions regarding (CCT 12/13) [2013] ZACC 35, the Constitution-
appeal (s 84 of the CJA), which allow for a al Court handed down a unanimous judgment
child who was, at the time of the offence, (a) which found that the impugned provisions
under the age of 16 years; or (b) 16 or older infringed adolescents’ rights to dignity and pri-
but under 18 years and sentenced to any form vacy, and further violated the best interests of
of imprisonment not wholly suspended, to the child principle. The judgment underlined
note an appeal without having to apply for the dignity of children, describing the law as
leave to appeal. having placed youthful transgressors in a state
The provisions regarding review (s 85 of the of disgrace for behaviour that was develop-
mentally normative.
CJA) have been controversial, giving rise to
numerous high court judgments. The section The Sexual Offences Act also introduced a
sex offender register aimed at preventing per-
follows the logic of s 84, dividing the children
sons convicted of sexual offences from being
entitled to “automatic review” of their sentenc-
permitted to work with children. The law
es into the categories of under 16 or over 16
treated adult and child offenders in exactly
years and sentenced to any form of imprison-
the same manner - if they were convicted of
ment not wholly suspended or other custodial
sexual offences, then their names would auto-
sentence. The courts have so far established
matically be placed on the register, and they
that the Act’s provisions regarding automatic
would not be able to make any arguments to
review override the Criminal Procedure Act
the contrary. In some instances, an offend-
rules, and that all sentences in the named cat-
er’s name stays on the register for life. In J v
egories must go on appeal, regardless of the
National Director of Public Prosecutions (CCT
experience of the magistrate, and regardless of
114/130) [2014] ZACC 13), section 50(2) of the
whether the matter was heard in the district or
Sexual Offences Act was declared to be uncon-
the regional court (S v Fortuin (38/2011) [2011]
stitutional insofar as it applied to offenders
ZANCHC 28 (11 Nov 2011); S v FM 2013 (SACR
below the age of 18 years. The court found
57 (GNP); S v LM 2013 (1) SACR 188 (WCC)).
that the law went against the spirit of the CJA,
which aims to rehabilitate and reintegrate
13.3 INTERACTION WITH THE child offenders, and was contrary to the best
interests of the child because it did not allow
SEXUAL OFFENCES ACT
for an individualised approach. It stigmatised
The Criminal Law (Sexual Offences and Related child offenders, and was not rational because
Matters) Amendment Act 32 of 2007 (referred child sex offenders do not generally grow up to
to hereafter as the Sexual Offences Act) defines be adult sex offenders. Finally, because it was
sexual offences and provides for certain pro- automatic, it did not allow the child to partici-
cedural rules regarding sex offenders. When pate in the decision being made.
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As result of these two cases, the Criminal It is a pre-eminent example of legislation that
Law (Sexual Offences and Related Matters) gives not only content to the rights of children
Amendment Act 5 of 2015 has changed the espoused in the Constitution, but also pro-
law to align with the Constitution. Adolescents vides a practical basis in which such rights
between 12 and 16 years who engage in con- may be realised. The case law discussed in
sensual sex will not be charged, and nor will this chapter shows that the operation of the
a 16- or 17-year-old who has consensual sex CJA has had some teething problems in its first
with someone below 16 years who is no more few years of operation, but the guiding prin-
than two years younger than him or her. With ciples in the Constitution and in the Act itself
regard to the Register for Sex Offenders, child have ensured that the courts come to the aid
offenders are, as a general rule, not placed on of child offenders. In the past, child offenders
the register. If the prosecutor decides to apply have been treated in a manner that does not
for this to be done, notice must be given and an live up to the spirit of the law.
assessment concluded, and the defence must The success or failure of this truly remark-
be given an opportunity to argue against it. able piece of legislation rests squarely on
those at the criminal justice coalface. It is
hoped that this chapter will give those who
13.4 CONCLUSION elect to practise in the field of child justice a
The CJA represents a decisive break from platform on which to ensure the ultimate suc-
the manner in which South Africa treated its cess of the Act and the promotion of a safer
children in conflict with the law in the past. South Africa.
CRITICAL QUESTIONS
1. What are the main aims of the CA?

2. Which children fall within the scope of the Act?
3. What are the procedures for arrest and alternatives? Differentiate these per scheduled offence.
4. What is considered during the process of assessment by a probation officer?
5. What is the purpose and process of a preliminary inquiry?
6. What is the legal status of diversion?
7. How is the child justice court different from any other court?
8. What are the key constitutional principles relating to detention?
9. What are the issues to be considered during sentencing?
10. How does the Sexual Offences law interact with the CJA?
REFERENCES
Badenhorst, C. (2011). Overview of the implementation (NICRO) & Lawyers for Human Rights. (1992). Jus-
of the Child Justice Act, 2008 (Act 75 of 2008): Good tice for the children: No child should be caged, Cape
intentions, questionable outcomes. Cape Town: Town: University of the Western Cape.
Open Society Foundation for South Africa. Community Law Centre. (2000). What the children said.
Burchell, J. (2011). South African criminal law and pro- Cape Town: University of the Western Cape.
cedure (Vol. 1: General principles of criminal law) Courtenay, R.M. (2012). Solon’s warning: S v CKM & 2
(4th ed.). Claremont: Juta. Similar Cases (Centre for Child Law as amicus cur-
Community Law Centre, National Institute for Crime jae). Article 40, 14, 1.
Prevention and Rehabilitation of Offenders
284 ([Oxnier
Gallinetti, J. (2009a). Child justice in South Africa: The Skelton, A. (2017). What’s in a name? Retrieved from
realisation of the rights of children accused of http://www.ohrh.law.ox.ac.uk/whats-in-a-name-
crime. In T. Boezaart (Ed.), Child law in South Afri- identity-of-children-in-criminal-proceedings-heads-
ca. Cape Town: Juta. to-court/
Gallinetti, J. (2009b). Getting to know the Child Justice Skelton, A & Courtenay, M (2015). South Africa’s new
Act. Cape Town: University of the Western Cape. child justice system, In J. Winterdyk (Ed.), Juve-
Intersectoral Committee on Child Justice. (2002). Bud- nile justice: International perspectives, models and
get and implementation plan for the Child Justice trends. Boca Raton: CRC Press.
Bill. Pretoria: Department of Justice. Skelton, A. & Gallinetti, G. (2008). A long and winding
Juvenile Justice Drafting Consultancy (1994). Juve- road: The Child Justice Bill and civil society advo-
nile Justice in South Africa: Prospects for change. cacy. South African Crime Quarterly, 15: 3.
Community Law Centre, University of the Western Skelton, A. & Potgieter, H. (2002). Juvenile justice in
Cape. South Africa. In A. Winterdyk (Ed.), Juvenile justice
Pinnock, D., Skelton, A. & Shapiro, R. (1994). New systems: International perspectives (2nd ed.). Toron-
juvenile justice legislation for South Africa: Giving to: Canadian Scholars Press.
children a chance. South African Journal of Criminal Snyman, C. (2008). Criminal law (5th ed.). Durban: But-
Justice, 3: 338. terworths.
Skelton, A. (2011). Children locked up: Towards deten- South African Law Commission (SALC). (2000). Report
tion as a measure of last resort. In S. Hoctor & M. on juvenile justice. Pretoria: SALC.
Carnelley (Eds), The contribution of Tony Mathews South African government (2016). Parliament on
to South African law: Commemorative Publication review of age of criminal capacity. Retrieved from
of the Centre for Criminal Justice Pietermaritzburg: http://www. gov.za/speeches/joint-justice-com-
UKZN Press. mittees-want-consultation-age-criminal-capaci-
Skelton, A. (2013). Proposals for the review of the min-
imum age of criminal responsibility. South African
Journal of Criminal Justice, 3: 257.
ty-7-sep-2016-0000
CASE LAW S vu EA 2014 (1) SACR 183 (NCK)

Sv FM 2013 (SACR 57 (GNP)
Centre for Child Law v Minister of Justice 2009 (2) SACR S v Fortuin (38/2011) [2011] ZANCHC 28 (11 Nov 2011)
77 (CC) Su J 2000 (2) SACR 310 (C)
Director of Public Prosecutions, KwaZulu-Natal v P 2006 S v Kwalase 2000 (2) SACR 135 (C)
(1) SACR 243 (SCA) Su LM 2013 (1) SACR 188 (WCC)
J v National Director of Public Prosecutions (CCT Sv Melapi 2014 (1) SACR 363 (GP)
114/130) [2014] ZACC 13) Sv MK 2012 (2) SACR 533 (GSJ)
Media 24 Limited v National Prosecuting Authority in re: S uv N 2008 (2) SACR 135 (SCA)
Sv Mhlangu (2011 (2) SACR 321) Sv Petersen 2001 (1) SACR 16 (SCA)
Nadine Hamman v Huisgenoot (appeal from a ruling of SJ v S [2015] ZAGPPHC 520 (11 June 2015)
the Press Ombudsman) 14 Mar 2014 Sv TNS [2015] 1 All SA 223(WCC)
Raduvha v Minister of Safety and Security (CCT 151/15) Sv Williams 1995 (3) SA 632 (CC)
[2016] ZACC 35 Sv Z1999 (1) SACR 427 (E)
Sv B 2005 2 All SA 1 (SCA) Teddy Bear Clinic and Another v Minister of Justice and
S v CKM 2013 (2) SACR 303 (GNP) Constitutional Development and Others (CCT 12/13)
Sv CS 2012 (1) SACR 595 (ECP) [2013] ZACC 35
Most of the unreported cases here are available at
http://www. saflii.org
INTERNATIONAL INSTRUMENTS LEGISLATION

United Nations Convention on the Rights of the Child Child Justice Act 75 of 2008
United Nations Standard Minimum Rules for the Children’s Act 38 of 2005
Administration of Juvenile Justice Constitution, 1996
Criminal Law Amendment Act 105 of 1997
Van Schaik
© publishers 285
APPENDIX: THE SCHEDULES TO

THE CHILD JUSTICE ACT
Schedule 1 Item 17 of this Schedule, where the quanti-

ty involved does not exceed R500 in value.
I Theft, whether under the common law or
17. Any other statutory offence where the
a statutory provision, receiving stolen
maximum penalty determined by that
property knowing it to have been stolen or
statute is imprisonment for a period of no
theft by false pretences, where the amount
longer than three months or a fine for that
involved does not exceed R2 500.
period, calculated in accordance with the
. Fraud, extortion, forgery and uttering or Adjustment of Fines Act, 1991 (Act 101 of
an offence referred to in the Prevention 1991).
and Combating of Corrupt Activities Act,
18. Any conspiracy, incitement or attempt
2004 (Act 12 of 2004), where the amount
to commit any offence referred to in this
involved does not exceed R1 500.
Schedule.
. Malicious injury to property, where the
amount involved does not exceed R1 500.
Schedule 2
. Common assault where grievous bodily
harm has not been inflicted. 1. Theft, whether under the common law or
. Perjury. a statutory provision, receiving stolen
property knowing it to have been stolen, or
. Contempt of court.
theft by false pretences, where the amount
. Blasphemy. involved exceeds R2 500.
. Compounding. Fraud, extortion, forgery and uttering or
. Crimen injuria. an offence referred to in the Prevention
. Defamation. and Combating of Corrupt Activities Act,
2004 (Act 12 of 2004), where the amount
. Trespass. involved exceeds R1 500.
. Public indecency. Robbery, other than robbery with aggra-
. Engaging sexual services of persons 18 vating circumstances.
years or older, referred to in section 11 . Malicious injury to property, where the
of the Criminal Law (Sexual Offences and amount involved exceeds R1 500.
Related Matters) Amendment Act, 2007
. Assault, involving the infliction of grievous
(Act 32 of 2007).
bodily harm.
14. Bestiality, referred to in section 13 of the . Public violence.
Criminal Law (Sexual Offences and Related
MID
. Culpable homicide.
Matters) Amendment Act, 2007.
Arson.
15. Acts of consensual sexual penetration with
certain children (statutory rape) and acts . Housebreaking, whether under the com-
©
of consensual sexual violation with cer- mon law or a statutory provision, with the
tain children (statutory sexual assault), intent to commit an offence.
referred to in and subject to sections 15 10. Administering poisonous or noxious sub-
and 16 of the Criminal Law (Sexual Offenc- stance.
es and Related Matters) Amendment Act, 11. Crimen expositionis infantis.
2007, respectively. 12. Abduction.
16. Any offence under any law relating to the 13. Sexual assault, compelled sexual assault
illicit possession of dependence-producing or compelled self-sexual assault referred
drugs, other than any offence referred to in to in sections 5, 6 and 7 of the Criminal
Van Schaik
286 © Publishers
Law (Sexual Offences and Related Matters) dance with the Adjustment of Fines Act,
Amendment Act, 2007 (Act 32 of 2007), 1991 (Act 101 of 1991).
respectively, where grievous bodily harm 25. Any conspiracy, incitement or attempt
has not been inflicted. to commit any offence referred to in this
14. Compelling or causing persons 18 years Schedule.
or older to witness sexual offences, sex-
ual acts or self-masturbation, referred to
in section 8 of the Criminal Law (Sexual Schedule 3
Offences and Related Matters) Amendment Treason.
Act, 2007.
ae: FS)
Sedition.
15. Exposure or display of or causing exposure
Murder.
or display of child pornography or pornog-
raphy as referred to in sections 10 or 19 Extortion, where there are aggravating cir-
of the Criminal Law (Sexual Offences and cumstances present.
Related Matters) Amendment Act, 2007, Kidnapping.
respectively. Robbery —
16. Incest and sexual acts with a corpse, (a) where there are aggravating circum-
referred to in sections 12 and 14 of the stances; or
Criminal Law (Sexual Offences and Related
(b) involving the taking of a motor vehicle.
Matters) Amendment Act, 2007, respective-
ly. Rape or compelled rape referred to in sec-
17. Exposure or display of or causing exposure tions 3 and 4 of the Criminal Law (Sexual
or display of genital organs, anus or female Offences and Related Matters) Amendment
breasts to any person (“flashing”), referred Act, 2007 (Act 32 of 2007), respectively.
to in sections 9 or 22 of the Criminal Law Sexual assault, compelled sexual assault
(Sexual Offences and Related Matters) or compelled self-sexual assault referred
Amendment Act, 2007. to in sections 5, 6 and 7 of the Criminal
18. Violating a dead body or grave. Law (Sexual Offences and Related Matters)
Amendment Act, 2007, respectively, involv-
19. Defeating or obstructing the course of jus-
ing the infliction of grievous bodily harm.
tice.
Sexual exploitation of children, sexual
20. Any offence referred to in section 1 or 1A
grooming of children and using children
of the Intimidation Act, 1982 (Act 72 of
for or benefiting from child pornography,
1982).
referred to in sections 17, 18 and 20 of the
21. Any offence relating to criminal gang activ- Criminal Law (Sexual Offences and Related
ities referred to in Chapter 4 of the Preven- Matters) Amendment Act, 2007, respective-
tion of Organised Crime Act, 1998 (Act 121 ly.
of 1998).
10. Exposure or display of or causing exposure
22. Any contravention of section 2 of the Ani- or display of child pornography or pornog-
mals Protection Act, 1962 (Act 71 of 1962). raphy to children referred to in section 19
23. Any offence under any law relating to the of the Criminal Law (Sexual Offences and
illicit possession of dependence-producing Related Matters) Amendment Act, 2007,
drugs, other than any offence referred to in if that exposure or display is intended to
Item 24 of this Schedule, where the quan- facilitate or promote -
tity involved exceeds R500 but does not (a) the sexual exploitation or sexual
exceed R5 000 in value. grooming of a child referred to in
24. Any other statutory offence where the section 17 or 18 of the Criminal Law
maximum penalty determined by that stat- (Sexual Offences and Related Matters)
ute is imprisonment for a period exceeding Amendment Act, 2007, respectively; or
three months but less than five years or (b) the use of a child for purposes of child
a fine for that period, calculated in accor- pornography or in order to benefit in
Van Schalk
©pubiishers 287
any manner from child pornography, 16. The crimes of genocide, crimes against
as provided for in section 20 of the humanity and war crimes referred to in the
Criminal Law (Sexual Offences and Implementation of the Rome Statute of the
Related Matters) Amendment Act, International Criminal Court Act, 2002 (Act
2007. 27 of 2002).
1. Compelling or causing children to witness 17. Any offence under any law relating to -
sexual offences, sexual acts or self-mas- (a) the dealing in or smuggling of ammu-
turbation referred to in section 21 of the nition, firearms, explosives or arma-
Criminal Law (Sexual Offences and Related ment;
Matters) Amendment Act, 2007.
(b) the possession of firearms, explosives
12. Sexual exploitation of persons who are or armament.
mentally disabled, sexual grooming of per-
18. Any offence referred to in section 13(f) of
sons who are mentally disabled, exposure
the Drugs and Drug Trafficking Act, 1992
or display of or causing exposure or dis-
(Act 140 of 1992).
play of child pornography or pornography
to persons who are mentally disabled or 19. Any offence of a serious nature if it is
using persons who are mentally disabled alleged that the offence was committed by
for pornographic purposes or benefiting a person, group of persons, syndicate or
therefrom, referred to in sections 23, 24, any enterprise, acting in the execution or
25, and 26 of the Criminal Law (Sexual furtherance of a common purpose or con-
Offences and Related Matters) Amendment spiracy.
Act, 2007, respectively. 20. Any offence under any law relating to the
13. Trafficking in persons for sexual purposes illicit possession of dependence producing
referred to in section 71(1) and involve- drugs, other than an offence referred to in
ment in trafficking in persons for sexual Item 21 of this Schedule, where the quanti-
purposes referred to in section 71(2) of the ty involved exceeds R5 000 in value.
Criminal Law (Sexual Offences and Related 21. Any other statutory offence where the
Matters) Amendment Act, 2007. maximum penalty determined by that stat-
14. Any offence referred to in Parts 1, 2 and ute is imprisonment for a period exceeding
3 of Chapter 2 of the Protection of Con- five years or a fine for that period, calcu-
stitutional Democracy against Terrorist lated in accordance with the Adjustment of
and Related Activities Act, 2004 (Act 33 of Fines Act, 1991 (Act 101 of 1991).
2004). 22, Any conspiracy, incitement or attempt
15. Any offence relating to - to commit any offence referred to in this
Schedule.
(a) racketeering activities referred to in
Chapter 2; or
(b) the proceeds of unlawful activities
referred to in Chapter 3 of the Preven-
tion of Organised Crime Act, 1998 (Act
121 of 1998).
288
S E C T I O N C
e m p o r a r y c h a l l e n g e s
Cont
e r t a i n i n g to y o u t h at risk
p
ee
OBJECTIVES KEYWORDS
You should be able to child trafficking-
* understand what human trafficking is human rights
* understand the three main elements that make up human trafficking human trafficking
* understand the root causes of trafficking
* understand the different elements of the trafficking process as they relate to child
victims
* highlight the crimes that are committed against child victims of trafficking
* discuss the consequences to child victims of trafficking in terms of their physical,
psychological and social wellbeing
+ develop a general understanding of the trafficking phenomenon in South Africa.
14.1 INTRODUCTION there is a demand for cheap labour, organs,

Human trafficking is the buying and selling body parts or sex services, there will always
of human beings for the purpose of making a be criminals striving to service that demand
financial profit, or for obtaining some kind of with the required supply. Anyone can be traf-
free service. It is a business, and it thrives on ficked - men, women, boys, girls, babies, the
the principle of demand and supply - where disabled and the elderly too.
It ought to concern every person, because it is a debasement of our common humanity. It ought
to concern every community, because it tears at our social fabric. It ought to concern every business,
because it distorts markets. It ought to concern every nation, because it endangers public health and
fuels violence and organized crime. I'm talking about the injustice, the outrage, of human trafficking,
which must be called by its true name — modern slavery.
BARACK OBAMA 291
SECTION C CONTEMPORARY CHALLENGES PERTAINING TO YOUTH AT RISK
Slavery was abolished 150 years ago, right? While it is true that slavery is illegal almost
everywhere on earth, the fact is there are more slaves today than there ever were.
ROBERT ALAN SILVERSTEIN
In order to appreciate the trafficking situation lence, horrific living conditions and dangerous
in South Africa, it is important to understand workplaces.
the definition and occurrence of human traf- Some become victims after answering
ficking and how it can affect children, as well advertisements promising them a good job
as to have knowledge of the international and in a new country. Others have been sold into
national legal instruments that have been this modern-day form of slavery by a relative,
developed to address this phenomenon. acquaintance or family friend. Social media
This. chapter explains human trafficking platforms are now being increasingly used
briefly, going into some detail describing the to deceive children and youth into believing
process of trafficking in children, and exam- false promises and stories, which are then
ines the patterns of child trafficking that have used to lure them away from their known sur-
been identified. It reviews the international roundings. Trafficking occurs across borders
legal instruments that have been developed to and within countries. It is found in developed,
ensure the continued protection of all victims developing and underdeveloped nations,
of trafficking, especially children. It also touch- in countries where the government abuses
es on the law reform process in South Africa, human rights and also in countries where the
where anti-trafficking legislation that protects government's human rights record is generally
victims of trafficking, aids in the prosecution excellent (US Department of State 2001). Traf-
of traffickers, assists victims of trafficking and ficking is but a modern-day version of slavery,
advocates preventative activities has recently which has now been dressed up, camouflaged
been passed and implemented. and modernised.
Trafficking is not a single criminal act done
at a specific time or at any specific place, but a
14.2 UNDERSTANDING HUMAN criminal process. It is a series of criminal activ-
TRAFFICKING ities carried out by a range of people (such as
the recruiters, transporters, harbourers, receiv-
Human trafficking, or “trafficking in persons” ers and finally the exploiters) that takes place
as it is legally termed, is the buying and selling over time and spans geography. This crime is
of human beings for the purpose of making a committed by big-time criminal syndicates as
profit, or sometimes for obtaining a free ser- well as by small-time individual criminals, both
vice. It is a business that caters to the supply locally and across international borders.
side of the demand for cheap and dispensable For criminal syndicates, the business of traf-
human beings, either for a variety of sexual ficking in persons is the third biggest money
purposes or for labour exploitation in various generator, the first being drugs, followed by
fields/industries. Victims are forced to toil in arms and ammunition (US Department of State
sweatshops, on construction sites, in broth- 2004). Modern slavery around the world claims
els and in fields. Deprived of the enjoyment of 21 million victims at any time, according to the
their human rights, many victims are subjected International Labour Organization (ILO 2014),
to threats against their person and family, vio- which gives us the following statistics:
Facts and figures

* Almost 21 million people are victims of forced labour — 11,4 million women and girls and 9,6 mil-
lion men and boys.
»
292 [Onsiten)
CHAPTER 14 CHILD TRAFFICKING IN SOUTH AFRICA
* Almost 19 million victims are exploited by private individuals or enterprises, and over 2 million by
the state or rebel groups.
* Of those exploited by individuals or enterprises, 4,5 million are victims of forced sexual exploitation.
* Forced labour in the private economy generates USS 150 billion in illegal profits per year.
* Domestic work, agriculture, construction, manufacturing and entertainment are among the sec-
tors most concerned.
* Migrant workers and indigenous people are particularly vulnerable to forced labour.
Source: ILO (2014)
MILLION
‘te | PEOPLE
WORLDWIDE
Cue CCLT
Ja vome ports of Afrloo ¥ into domentic secritvde

children ore thos explodedan
most sexocily exploited.
4.5 MILLION - WORLDWIDE 3 out of every 1000

are victims of forced sexval exploitation ore victims of forced lobor 7%
Figure 14.1 Graphic Depiction of some TiP Stats

Source: ILO Human Trafficking Centre (2012)
Domestic servitude
$8 billion | 5,3%
Forced labour exploitation

$43,2 billion | 28,7%
Figure 14.2 Breakdown of different kinds of

Sexual exploitation exploitation
$99 billion | 66% Source: ILO Human Trafficking Centre (2012)
Schaik
© publishers 293
SECTION © CONTEMPORARY CHALLENGES PERTAINING TO YOUTH AT RISK
14.2.1 The modus operandi of situation, previously consented to work for a

trafficking trafficker, or participated in a crime as a direct
result of being trafficked. At the heart of this
It is important to understand the modus ope- phenomenon is the traffickers’ goal of exploit-
randi of trafficking in order to understand how ing and enslaving their victims and the myriad
this crime works, as only then will we be able coercive and deceptive practices they use to
to identify it. do so (ILO 2012).
There are three main elements or compo-
nents that have to be present, connected and
linked in a case, for it to be classed as human 14.2.2 Understanding child
trafficking (UNODC 2017): trafficking: the definition
¢ The act (what is done) of recruiting, trans-
of child trafficking
porting, transferring, receiving or harbour- When it comes to children, a “child” shall
ing of a person. mean any person younger than 18 years of age.
¢ The means (how it is done) of threat or using The recruitment, transportation, transfer, har-
force, coercion, abduction, deception, abuse bouring or receipt of a child for the purpose of
exploitation shall be considered “trafficking in
of power, abuse of a position of vulnerabil-
persons” even if this does not involve any of
ity, or giving or receiving of payments or
the means set out in the section above.
benefits to achieve the consent of a person
The consent of a child, or the means to
having control over another person.
achieve such consent, is irrelevant as long as
e The purpose (why it is done), which is the overall objective of the operation is the
always for exploitation, and may be for exploitation of the child.
financial gain or for a gain in kind, as in Only two of the three components have to
some kind of service. be present in a case of child trafficking, which
are as follows:
The exploitation, at a minimum, will be for the
¢ The act (what is done) of recruiting, trans-
purpose of forced labour or services, slavery
porting, transfer, receipt or harbouring of a
or practices similar to slavery, servitude, the
child.
removal of organs, prostitution or other forms
¢ The purpose (why it is done) of exploitation
of sexual exploitation.
for a financial gain, or a gain in kind.
Either one or more of the activities present
within the elements of the act, the means and
The means of how a child was trafficked falls
the purpose must be present and linked to each
away as long as it can be proved that the act
other for a case to be defined as human traf-
was committed with the intent of exploiting
ficking. Every activity within the elements does
the child.
not have to be fulfilled. Even if one activity is
present from the act, one from the means and
one for the purpose of the prescribed exploita- 14.2.3 Some facts about human
tion, it will be a case of human trafficking. trafficking
If a victim has been recruited, transported
and received by means of deception or coer- 14.2.3.1 Consent in a court of law
cion for the purpose of sexual exploitation or Consent cannot be used as defence in a court
forced labour, but this exploitation has not yet of law. When an adult is coerced, forced or
taken place, the case may still be treated as deceived into any kind of exploitative situation
human trafficking, but the onus will be on the and maintained in that situation through any
police and the prosecution to prove this. one or more of the means mentioned above,
Human trafficking can include but does not including psychological manipulation, the per-
require transportation or movement. People son will be considered a victim of trafficking.
may be considered trafficked victims regard- The fact that that person might have initially
less of whether they were born into a state of consented to be in that situation does not
servitude, were transported to the exploitative negate the trafficking crime, because the con-
Van Schaik
294 © Publishers
sent was obtained by some falsehood and/or of victims to satisfy the demand in the des-
deceit. tination countries. Other than in the case of
those victims who are forcibly abducted and
trafficked, there continues to be a ready sup-
14.2.3.2 Complete violation of human ply of large numbers of victims who are willing
rights to leave their homes in anticipation of a bet-
Trafficking in persons is a serious crime and ter life. This is despite the impact of victim-
a gross violation of human rights. Every basic focused information campaigns that have been
human right that each one of us takes for conducted in many countries to alert poten-
granted, such as the right to dignity, freedom tial victims of the risks they run in agreeing to
of self-determination, freedom of speech, free- the propositions put to them by traffickers. It
dom of movement, etc., is taken away from the is therefore important to the understanding
victim, who then becomes a mere puppet in of this phenomenon to consider the range of
the hands of the trafficker, and is exposed to underlying push and pull factors that continue
complete and ruthless exploitation. to create the supply (IOM 2008).
Following is a list of possible push factors:
14.2.3.3. Trans-national and national e Poverty, and the feminisation of poverty
(UNIFEM describes this as “the burden
Human trafficking is not an isolated problem,
of poverty borne by women, especially in
but is found all over the world. It may be a
developing countries”)
transnational organised crime, meaning that
victims may be recruited from, for example, a e Lack of education opportunities
European country and transported to, say, an ¢ Unemployment: a lack of availability of jobs
African country, where they will be ruthlessly and good employment opportunities
exploited. It may also be a national organised e Gender discrimination, where men and
crime, wherein victims are trafficked within
women with the same qualifications do
their own country.
not have the same opportunities because
A country or a place could be the following:
women are considered of less value in some
¢ Acountry ora place of origin from which vic- cultures
tims are recruited ¢ Domestic violence, resulting in dysfunctional
¢ A country or a place of transit through which families, which might cause children to look
victims are transported before reaching the for any chance to leave home
final destination, which is very often where e Political conflict or transition in a country
the abuse of the victim starts that makes people flee, seeking refuge in
e A country or a place of destination where surrounding countries
the victims are sold into various forms of
e Natural disasters like floods and earth-
exploitation
quakes that leave people homeless and des-
perate
South Africa is a country of origin, transit and
destination for victims of trafficking. e Lack of opportunity for legal migration,
which make people look to unscrupulous
agents to help them get into another coun-
14.2.4 Causes of human trafficking try illegally, through fraudulent visas and
The conditions whereby innocent people fall passports
victim to the perpetrators of this crime can e¢ Lack of opportunity or alternatives for a
be summarised into two categories: the push better, more prosperous life
factors in the countries of origin, and the pull
factors of the countries of destination. Characteristically, the background of the
majority of victims is one of poverty that is
often inescapable. The chances such people
14.2.4.1 Push factors
have of improving their position are severely
Trafficking cannot operate without the supply limited by a combination of a lack of appropri-
©van Schaik
Publishers} 2Q5
ate education and a lack of employment oppor- sex workers leads to the globalisation of
tunities, especially within depressed econo- trafficking based on satisfying customer
mies where levels of unemployment are con- needs.
sistently high. However, it is also important to
e Increased marketability and profitability is
note that in certain countries, such as Eastern
derived from the exploitation of trafficked
Europe for example, the most at-risk victims victims because the element of coercive
may be highly educated young women who are exploitation that is inherent in human traf-
vulnerable to the bogus opportunities offered ficking means that the victims are com-
by the traffickers because the economic and pelled to endure conditions that the indig-
labour conditions that prevail in their country enous population would not accept, such as
fail to offer any viable possibility of pursuing providing more dangerous, but profitable,
a profitable career that is commensurate with services and working for little or no wages.
their level of education and qualifications.
To express it in the simplest terms, irrespec-
14.2.4.2 Pull factors tive of the exploitative purpose, the services
of trafficked victims continue to be in demand
Pull factors exist in both the countries of ori- because they satisfy the needs of the clients
gin and destination, and reflect the supply-and- who exploit them, and they are easier to con-
demand economic reality of the crime. In the trol, cheaper to maintain and make more
origin countries, the combination of push money for the traffickers.
factors that creates the supply of victims is
reinforced by the number of pull factors that
attract vulnerable victims into the process. 14.2.5 How traffickers control their
These pull factors can be summarised as fol- victims
lows:
The threat of violence is the most commonly
e Better jobs - anticipation of employment used form to maintain control over victims
and financial gain of trafficking. Violence towards the victims
¢ Better life - anticipation of material im- themselves and the threat of violence towards
provement and a better lifestyle their families and loved ones if orders are not
followed keep the victims bound to their abus-
e Attraction of glamour: potential access
ers. Over and above this, traffickers also often
to the perceived glamour of the life in the
make use of psychological and financial con-
industrialised countries as portrayed by
trol mechanisms to manipulate and control
the media - the proverbial “land of milk and
their victims.
honey” scenario
Some of the methods that create invisible
¢ Hope in life — belief that this offers the only shackles and bind the victims to their traffick-
available alternative to continued poverty ers are described below (IOM 2008).
despite the well-publicised risks
In the destination countries or regions (where 14.2.5.1 Debt bondage

the exploitation takes place), the pull factors Debt bondage means making a person believe
are characterised by the demand of the desti- that they owe an exorbitant sum of money to
nation markets (IOM 2008): the trafficker, for an expense undertaken by
the trafficker.
e There is an increasing demand for the ser-
Traffickers often exploit the reality that the
vices of trafficked victims for a range of
majority of trafficked victims do not have the
exploitative activities, such as exploitation
money to fund the purchase of documents
within labour and sex markets, as domestic
and travel tickets by agreeing to loan them the
slaves, drug mules, criminal agents or for
funds in advance on the basis that the victims
organ donation.
will repay the debt from the money that will be
e Within the sex industry, client demand for a earned in the destination country/town. This
broader range of ethnic appearance among creates the “debt bond” that the traffickers
Van Schaik
296 © Publishers
then use as a coercive measure to ensure that 14.2.5.5 Substance abuse

victims engage in the activity that they have
Drugs and alcohol are commonly used to con-
planned for them. For example, if a particular
trol victims. Initially they may be force-fed the
victim refuses or is reluctant to become a sex
drugs that are free flowing, but once they are
worker, the trafficker will coerce her by telling
addicted, the flow of the drugs gets controlled,
her that she has no choice, as she has to clear
her debt. and they have to do what is asked of them to
get their next “fix”.
14.2.5.2 Isolation
Victims are often kept in isolation, under lock 14.2.5.6 Voodoo/juju/muti/black magic-
and key, with no contact with the outside Voodoo, juju, muti and black magic are differ-
world except for the people they are forced to ent terms for similar activities, wherein rituals
cater to. Even if they sometimes see police offi- are performed by a priest/sangoma, that prom-
cers being welcomed into their place of captiv- ises the fulfilment of an outcome much wished
ity and hosted by their traffickers, they may be for by a person. This wish fulfilment ritual,
unwilling to approach the police for help for later becomes a tool used by the traffickers to
fear that they may all be corrupt. control their victims.
Victims are often kept in situations where Often, before the journey starts, the victim
they cannot communicate in their mother is taken to a “priest”, having being told that
tongue and are kept away from anyone with a this is to seek a blessing for the new life ahead.
similar background. They are not allowed to The priest, who is part of the trafficker’s syn-
befriend each other, and are often prevented dicate, is coached on his role. In accordance
from making phone calls, sending letters or he does some rituals and often keeps a lock
receiving any kind of communication.
of hair or a piece of the person’s nail, or any
other object that belongs to the victim, say-
14.2.5.3 Confiscation of documentation ing that this is for protection purposes. This
and money is then later used as a threat against the vic-
tim, saying that if the victim refuses to comply
Travel and ID documents are often taken away
with the trafficker’s demands, the priest will
by the traffickers, which robs the victims of
their official identity and makes it difficult for use the belongings or body fragments to cause
utter and complete destruction to the victim
them to seek help. Victims have no freedom of
movement without proper documentation, and
and his or her family. The fear of what the voo-
without money they are trapped. doo/juju/muti/black magic/might do to them
and their families keeps the victims shackled
to their traffickers until they have served their
14.2.5.4 Blackmail duty.
Traffickers often smuggle their victims into a
country, as a result of which there is no legal
14.2.5.7 Other forms of control
documentation of entry for them. The illegal
status of the victims is then used as a threat Victims that have been trafficked are likely to
(of exposure to authorities) and the victims’ be
fear of police and their fear of being deported
¢ alone in another region or a foreign country
is exploited and used as a means of control.
¢ unable to communicate in the local lan-
Another form of blackmail would be threat-
guage
ing to send suggestive photographs to the vic-
tim’s family, showing the victim in a compro- e denied contact with their families
mising position. e disoriented by constant movement and
Violence (psychological and_ physical) relocation
and fear are also used as a means of control. ¢ forced to perform difficult and dangerous
Traffickers also threaten to and use reprisal work on a daily basis for very long hours
against the victims’ families if the victims do e made to face threats against themselves
not follow their orders and do as they are told. and their family members.
Ooishes) 297
14.3 UNITED NATIONS CONVEN- instrument with an agreed definition on traf-

TION ON TRANSNATIONAL ficking in persons. The intention behind this
definition is to establish uniformity in domes-
ORGANISED CRIME tic criminal offences that would support effi-
Realising the immensity of this problem, the cient international cooperation in investigating
United Nations decided to address the issue and prosecuting trafficking in persons cases.
by bringing forth a convention that targeted The purpose of the Trafficking Protocol is
the problems of organised crime. The United the following:
Nations Convention against Transnational ¢ To prevent and combat trafficking in per-
Organized Crime was adopted in 2000, and sons.
came into force on 29 September 2003. With
¢ To protect and assist victims of trafficking,
the signing of this convention in Palermo, Italy,
¢ To promote cooperation among states par-
in December 2000, the international commu-
ties to meet these objectives.
nity demonstrated the political will to answer
a global challenge with a global response. If
On an international level, a number of con-
crime crosses borders, so must law enforce-
ventions relating to the abolition of slavery as
ment. If the rule of law is undermined not only
well as forced and child labour exist. Howev-
in one country, but in many, then those who
er, it was the Palermo Protocol that strove to
defend it cannot limit themselves to purely
provide an internationally recognised defini-
national means (UNODC 2017).
tion of trafficking in human beings. The con-
This convention is the main international
vention requires that every country that has
instrument in the fight against transnational
ratified the convention and moves to domes-
organised crime and is supplemented by three
ticating it has to base its definition on the UN
protocols, (also known as the Palermo Proto-
definition in order to establish uniformity and
cols), that target specific areas and the mani-
harmonise the understanding of this transna-
festations of organised crime:
tional organised crime. This is also because
e The Protocol to Prevent, Suppress and the UN definition makes it possible for every
Punish Trafficking in Persons, Especially person who has played any part in the traf-
Women and Children ficking of another to be arrested, prosecuted
¢ The Protocol against the Smuggling of and convicted. So while prosecuting cases of
Migrants by Land, Sea and Air trafficking, every link in the trafficking chain
- be it the recruiter, transporter, harbourer,
¢ The Protocol against the Illicit Manufac-
receiver exploiter or end user - may be held
turing of and Trafficking in Firearms, their
responsible and prosecuted if it can be proved
Parts and Components and Ammunition
that he or she was aware that the victim was
indeed a victim of trafficking.
Countries must become party to the Conven-
tion itself before they can become party to any
of the protocols. 14.4 GENERAL TRENDS
Very few international legal instruments
have been as rapidly and globally endorsed 14.4.1 Scale of child trafficking
as the UN Trafficking in Persons Protocol. The There are no concrete statistics on the scale
Protocol was enacted in December 2003 only of trafficking as estimates vary widely. Victims
three years after its adoption by the General (including children) are increasingly being traf-
Assembly in 2000. By October 2016, 170 coun- ficked for forced labour, begging, peddling and
tries had ratified the Protocol (UNODC 2017). delinquency, as well as sexual exploitation.
The Trafficking Protocol advances inter- Statistics remain elusive due to the clandestine
national law by providing, for the first time, a nature of trafficking in human beings and the
working definition of trafficking in persons and lack of comparable data.
requires ratifying states to criminalise such There is a variety of reasons for this lack
practices. (For more detail, see http://www. of comparable statistics. Notable with data
unodc.org/unodc/en/human-trafficking/faqs. relating to children is that age is difficult to
html.) This is the first global legally binding determine and data is recorded based on the
298
Definition
As per the United Nations convention on transnational organised crime, the trafficking protocol
defines trafficking in the following way:
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or
receipt of persons, by means of threat or use of force or other forms of coercion, of abduction,
of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve the consent of a person having control over another
person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation
of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery
or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subpara-
graph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a)
have been used.
The protocol recognises a range of exploitative purposes and is gender neutral. The protocol therefore
does not specifically define prostitution or “other forms of sexual exploitation”, which could include por-
nography and other related fields, such as working as a striptease dancer or performing lap dancing.
The protocol addresses all types of exploitation and as there is no requirement for a victim to cross a
border, the terms of the protocol can be equally applied to local internal and international trafficking.
age of the victim upon identification rath- to their families. Children are also vulnerable
er than upon recruitment. Victims could be to kidnappers, pimps and professional bro-
adults when identified, but could have been kers. Some children are even sold to traffickers
recruited when they were still children, thus by their families, who may or may not have an
the actual number of trafficked children is understanding of what will happen to the child.
likely to be higher than statistics reveal. Also, The ILO estimates that 1,2 million children
trafficking is a silent crime as most victims, are trafficked each year (ILO 2008). The traf-
when they are rescued or if they do manage ficking of children has been internationally
to escape, keep very quiet about their experi- recognised as a major human rights violation,
ence, because they are ashamed of what has one that exists in every region of the world, yet
happened to them and blame themselves for it is only within the past decade that the prev-
it, and/or because they fear their traffickers to alence and ramifications of this practice have
such an extent that they think it better to keep risen to international prominence due to a dra-
quiet and fade into oblivion. Child traffick- matic increase in research and public action.
ing victims, whether for labour, sex or organ On 1 June 2012, the ILO released its second
trafficking, come from all backgrounds, and global estimate of forced labour, which rep-
involve both boys and girls. They span a wide resents what the US government considers to
age range from 1-18 years old. On average, sex be covered by the umbrella term “trafficking in
trafficking victims up to roughly 25 years old persons”. Relying on an improved methodology
most often started sex work as young as the and greater sources of data, this report esti-
age of 14 years. Children are trafficked from all mates that modern slavery around the world
regions of the world and represent a variety of claims 20,9 million victims at any time. This
different races, ethnic groups and religions. means that a shocking 20,9 million women, men
Trafficked children can be lured through and children are trapped in jobs into which
the promise of school or work, and are usually they were coerced or deceived, and which they
promised the opportunity to send money back cannot leave. The ILO estimate captures the full
(Omni) 299
realm of forced labour and human trafficking for e Illicit activities and petty offences, street
labour and sexual exploitation, or what some begging and peddling, pickpocketing, bur-
call modern-day slavery. The figure means that, glary, drug smuggling as a “mule child”
at any given point in time, around three out of ¢ Labour exploitation such as catering labour
every 1000 persons worldwide are in forced in the form of kitchen hands and waitresses;
labour. The figures do not include trafficking for agricultural or plantation labour; mine
the removal of organs or for forced marriage/ labour; fishing fleet labour; sweatshop
adoption unless the latter practices lead to a sit- labour
uation of forced labour or service.
The ILO’s first estimate of forced labour and ¢ Sport, such as camel jockeys where babies
sex trafficking in 2005 was 12,3 million victims. or young children (mostly boys) are
The main differences between the 2005 and strapped to camels and forced to do camel
2012 reports are: running
¢ Child soldiers
¢ Unlike the 2005 estimate, this new finding
does not disaggregate human trafficking vic- ¢ Illegal adoption
tims as a subset of the global forced labour
estimate. This recognises that human traf- While distinct forms of trafficking are rec-
ficking is defined by exploitation and not by ognised in international law and most national
movement. law, in practice child victims of trafficking are
¢ The ILO estimates that 55% of forced labour often subject to a variety of exploitation. Girls
victims are women and girls, as are 98% of trafficked for begging might also be sexually
sex trafficking victims. exploited, and boys trafficked for forced labour
may be made to perform a variety of illegal
¢ The ILO identified a higher percentage
activities along with begging. There is emerg-
of sex trafficking victims than in the 2005
ing evidence to suggest that the exploitation of
report.
trafficked children is often progressive - once
¢ By region, the Asia and the Pacific region they are caught up in the trafficking situation,
(which includes South Asia) remains largest they are vulnerable to repeated and various
in terms of number of victims, though the kinds of exploitation.
estimate of trafficking victims in Africa has
grown since the 2005 estimate (ILO 2012; US
Department of State 2012). 14.4.3 Particular vulnerability of
children, and profiles of child
victims of trafficking
14.4.2 Forms of trafficking
As with the trafficking of adults, the wider
The forms of trafficking explicitly included in
socioeconomic situation of child victims can
the UN Palermo Protocol include the following:
also make them more vulnerable to traffick-
¢ Prostitution and other forms of sexual ers. Children are particularly vulnerable due
exploitation to their lack of experience; their dependence
¢ Forced labour or services on and trust of adults, relatives and people in
e Slavery or practices similar to slavery positions of authority; and their fewer possibil-
e Servitude ities of escaping exploitative situations.
¢ Removal of organs Often-cited profiles of victims of traffick-
ing include families suffering from economic
The most widely recognised form of trafficking restructuring, social dislocation, conflict, pov-
is prostitution. Other forms of sexual exploita- erty, dysfunction, a low level of education,
tion include the commercial production of discrimination, a culture of migration, lack of
child pornography, forced marriage or sexual opportunity and desperation for a better life.
servitude. Ethnic minorities seem to be particularly
The forms of labour exploitation, servitude vulnerable to traffickers, as social discrimina-
and slavery-like practices include the follow- tion and marginalisation hinder their access to
ing, amongst others: education, healthcare and employment. Cul-
Van Schaik
300 publishers
tural factors such as the acceptance of child ship with a girl with the intention of forcing
labour, under-aged forced marriages and a her into prostitution. He will buy her nice
nomadic lifestyle seem to contribute to child presents at first, and protect her and try to
vulnerability. keep her away from her family. Lover boys
Exploitation through parents or relatives know that they can earn money very quickly
(for begging, petty crime and prostitution) by forcing girls into prostitution, and are
makes detection and intervention more diffi- aware of the almost invisible character and
cult. low risk of arrest for trafficking.
In addition, children within dysfunctional
e Traffickers continue to target vulnerable
families whose parents may be abusive toward
children, such as those on the street or in
them and unable to provide appropriate care institutions, recruiting them by abduction
seem disproportionately at risk. The lack of or or with promises of a better life. Victims,
insufficient child protection systems in many over time, often become sympathetic to
countries of origin result in a large number of their captors (a situation known as Stock-
children landing up in orphanages or on the holm syndrome).
streets. Institutionalised and street children
are particularly vulnerable, and are often tar- ¢ The established “mail-order bride” system
geted by traffickers. has been further exploited as women with
Other factors that are often cited as increas- children are recruited to marry foreign men,
ing the vulnerability of children to trafficking and the children are later sexually exploited
include the following: by their new “fathers” and/or others. Some
men adopt the children to increase the level
e Inequality of the status of women and girls of control.
¢ Lack of enrolment in school
¢ Children may be recruited through illegal
e Lack of birth registration, which makes it
adoption or prior to birth, where expect-
very easy for such children to go missing as ant mothers are offered payment for their
there is no record of them unborn child. In the case of the latter, after
¢ Humanitarian disasters and armed conflicts birth some women are told that their baby
has died, thus they receive no payment.
These children are born as victims.
14.4.4 Child-specific recruitment and
border crossing 1 This describes the behaviour of kidnapped victims
Aside from the general recruitment methods, who, over time, become sympathetic to their captors.
The name derives from a 1973 hostage incident in
many of which are also used to recruit chil-
Stockholm (Sweden) at the end of which several kid-
dren, several methods specifically target chil- napped victims resisted rescue attempts and refused
dren: to testify against their captors. One of the female hos-
tages actually married one of her abductors. On occa-
e Parents in countries of origin may readily sion the hostage will side with the captor in working
accept - often due to socioeconomic prob- out demands. Although this may simply reflect a
wish to end the terrifying ordeal as quickly as possi-
lems, for example debt bondage — or even
ble, it may also signify some attraction to the abduc-
encourage the emigration of their children tor. When hostages act this way, experts sometimes
to financially support the family. While a maintain that they have been brainwashed. An alter-
certain percentage of parents are likely to nate explanation is that they have become attracted
be aware of the impending exploitation, to their captors and have temporarily identified with
their values and goals. Stockholm syndrome is a rare
many are not. In some cases, there is evi- occurrence, usually occurring when the following
dence of families selling their children. or three features are present: first, the hostage taker
being otherwise involved with the traffick- and victim must be together for a significant length
ing networks. of time; second, the hostage must be in direct social
contact during the incident (e.g. physical separation
¢ The “lover boy” system is where girls fall of the hostages, from the hostage taker, such as com-
plete isolation in a separate room, is likely to prevent
in love with trained recruiters who pose as
development of the effect); and third, the hostage
potential boyfriends but then exploit them taker must treat the hostages kindly (Bartol & Bartol
in prostitution. A lover boy starts a relation- 2017: 479).
eve" Schaik
Publishers} 301
e Traffickers exploit educational opportu- 14.5 CONSEQUENCES OF

nities, using actual or fake letters of con- TRAFFICKING FOR
firmation to attend school exchanges or
trips. Zambian police have reported cases
CHILD VICTIMS
of Zambian boys and girls brought to South Trafficking is a violation of every child’s right
Africa having been issued visas based on to a safe and healthy childhood, and a pro-
“confirmed” school placing. Some children ductive, rewarding and dignified life. Child
never turn up and are feared to have been trafficking victims are subjugated and phys-
trafficked. ically abused by the perpetrators — traffick-
e Aware or not of the trafficker’s intentions, ers, employers, pimps, madams and “custom-
some parents provide letters of authorisa- ers”. Trafficked children are often beaten and
tion permitting their children to travel with abused, with violence occurring at all stages of
another adult, thus legalising the border the trafficking cycle.
crossing.
Other negative experiences suffered by traf-
ficked children include the following:
¢ Given the recent attention to the issue of
accompanied and unaccompanied minors, ¢ Deprivation of opportunities for education
traffickers falsify travel documents, stating ¢ Deprivation of critical childhood play and
the age of their victims as over 18 to reduce experiences
suspicion. ¢ Being forced to change names and identity
¢ Being forced to lie, steal or commit other
Currently, one of the most worrisome aspects illegal acts
of trafficking is the lack of identification of ¢ Inadequate nutrition, nurturing and medical
child victims of trafficking. care (World Federation for Mental Health
2017)
14.4.5 Reporting on child trafficking
While there remains a focus on trafficking for 14.5.1 Trauma
sexual exploitation, more attention and recog- Trauma experienced by trafficked children is
nition are gradually being given to other forms manifold, and includes the following (World
of child trafficking, such as begging, forced Federation for Mental Health 2017):
labour and criminal activities. Under-reporting
-is still evident, as children are often not iden- ¢ Separation from loved ones, and family and
tified as trafficked or exploited (but seen as friends’ support systems
delinquents), and a distinction between adult ¢ Physical abuse or threats of abuse
and child victims is still rare. Child victims of ¢ Threats against loved ones for non-compli-
trafficking are recruited, transported, trans- ance
ferred, harboured or received for the purpose ¢ Sexual exploitation
of exploitation. They may be forced to work in ¢ Psychological humiliation
sweatshops, on construction sites or in houses ¢ Being restrained and confined to a locked
as domestic servants; on the streets as child place
beggars; in wars as child soldiers; on farms; ¢ Being transported without knowledge of the
in travelling sales crews; or in restaurants and destination
hotels. Some are forced to work in brothels
¢ Witnessing violence and sexual activity
and strip clubs, or to perform escort and mas-
sage services.
Intense traumatic experiences can have the fol-
The IOM and other agencies have noted
lowing consequences:
a trend of children being trafficked with their
parents or mother, often for exploitation in ¢ Narrowing of attention. The most common
street begging. This may be a strategy to foil effect is an intense focus on the most cen-
authorities, an attempt to authenticate asylum tral parts of the traumatic experience,
claims, or simply a method of exerting greater for example a gun or a hitting hand. Nar-
control over the child. rowing attention improves recollection of
302 (Oxaiter)
core details, with little distortion or loss recall events in detail, errors in accounts or
of important information, but peripheral fabrications concerning specific events are all
details are either not encoded at all or only likely to occur as a consequence of trauma,
weakly, so when the child tells his or her and should be accepted as such. While physi-
story, it will have a lot of gaps, which may cal injuries are evident, psychological ones are
make it difficult to believe. less obvious and often ignored.
¢ Dissociation. The child becomes totally
overwhelmed and cannot process any 14.5.2 Other possible consequences
information. Dissociation means a lack of of trafficking on children
normal integration of perception, thoughts
and feelings. What remains is sensory mem- The following are other possible consequences
ory, which is vulnerable to distortion (false of trafficking on children (World Federation for
memory creation). Adults and older chil- Mental Health):
dren with traumatic histories show large e Negative perception of self-worth (shame,
gaps in their autobiographical memories for guilt and stigmatisation)
both trauma and non-trauma, and are more ¢ Sense of vulnerability and helplessness
vulnerable to suggestibility.
e Distorted value system/involvement in ille-
e Repression. This is the unconscious exclu- gal activities :
sion of painful impulses, desires or fears ¢ Physical illnesses - among others, sexu-
from the conscious mind. While children ally exploited children are susceptible to
can originally encode the traumatic episode contracting sexually transmitted diseases,
into their memory in a narrative form, the including HIV/AIDS
information is repressed and “forgotten”. ¢ Structural brain changes
When repression occurs, the memory of the ¢ Low educational achievement
event can be recovered later on in a thera- ¢ Sexual promiscuity
peutic environment.
¢ Difficulty in establishing or maintaining
* Post-traumatic stress disorder (PTSD). This healthy relationships
condition occurs when a _ victim lives ¢ Loss of ability to trust
through an experience or series of experi- e Negative expectations about the future
ences that are so extreme that he or she is ¢ Hyper-vigilance, heightened anxiety
unable to comprehend the nature of them or ¢ Difficulty in concentrating
accept that this has happened to him or her. ¢ Difficulty in regulating emotions
¢ Sleep and eating disorders
PTSD is known to affect memory in different
¢ Profound sadness and depression
ways. Individuals suffering from PTSD are char-
e Irritability
acterised by re-experiencing traumatic experi-
ences involving intrusive images, visual or sen- e Self-destructive behaviour
sory hallucinations, and vivid flashbacks. Chil- ¢ Inappropriate attachment behaviours
dren might have nightmares and hear voices. ¢ Developmental delays or regressions
They suffer from hyper-arousal and are
extremely sensitive. Children may avoid stim- Many victims of trafficking experience trau-
uli associated with the traumatic event. They ma during and after the event. If they man-
may be unwilling to and, in fact, unable to pro- age to escape from their traffickers, they
duce a description of what happened. are often rejected by society and are some-
PTSD also leads to an irreversible decrease times blamed for the situation that they
of hippocampal volume (the frontal part of the found themselves in. The secondary trau-
brain) and_to memory impairment, especially ma can cause severe depression and can
short-term memory. lead to suicide. It is therefore key that soci-
Stress among children also leads to hyper- ety assists victims of trafficking to grad-
activity and learning difficulties. Lack of coop- ually work through the painful trauma
eration, overt hostility, an impaired ability to of trafficking.
Crises} 303
14.5.3 International and national traffic in children for any purpose or in any
legal instruments addressing form”. It urges state parties to protect children
from “economic exploitation and performing
child trafficking and human
any work that is likely to be hazardous or to
rights interfere with the child’s education, or to be
Many international, regional and_ national harmful to the child’s health or physical, men-
instruments have been implemented that tal, spiritual, moral or social development”. It
relate to and affect the practice of child traf- refers to the child’s right to be protected from
ficking. These tools have been used to define all forms of sexual exploitation and sexual
what legally constitutes trafficking of children, abuse. This places an obligation on states to
such that appropriate legal action can be taken protect children from trafficking for the pur-
against those who engage in and promote this poses of sexual and labour exploitation.
practice. These legal instruments are called by
a variety of terms, including conventions, pro- The Supplementary Convention on the
tocols, memorandums, joint actions, recom-
Abolition of Slavery, the Slave Trade and
mendations and declarations. Some significant
Institutions and Practices Similar to Slavery
tools are listed in the following sections (ILO,
UNICEF & UNGIFT 2009). This convention calls for the complete abolish-
ment of debt bondage, serfdom (the condition
or status of a tenant who is by law, custom or
14.5.3.1 International human rights agreement bound to live and labour on land
instruments belonging to another person and to render
These legal instruments were developed by some determinate service to such other per-
the United Nations in an effort to outline the son, whether for reward or not, and is not free
international human rights of human beings to change his or her status), forced marriage
and, more specifically, children. and the exploitation of a child.
UN Universal Declaration of Human Rights, The UN Convention on the Elimination of All

1948 (UDHR)? Forms of Discrimination against Women, 1979
(CEDAW)
Article 3 of UDHR states that everyone has the
right to life, liberty and security. These basic This is an international bill of rights for women
rights that every human being is entitled are that ensures elimination of all acts of discrim-
taken away from the victim, who is forced to ination against women by persons, organisa-
perform acts against his or her will while in the tions or enterprises.
clutches of the trafficker. This is then further
intensified when the victim is apprehended by The trafficking of children often involves both
the state and treated as a criminal and an ille- labour and migration. As such, the following
gal migrant. international labour and migration treaties
clarify instances in which these practices are
UN Convention on the Rights of the Child, 1989 illegal.
(CRO)
ILO Minimum Age Convention, 1973
The CRC stipulates the legal obligations of
governments to children (UNICEF 2006: 1) This ensures the effective abolition of child
and specifically mentions trafficking, and obli- labour and to raise progressively the minimum
gates state parties to take all “appropriate age for admission to employment or work to a
national, bilateral and multilateral measures level consistent with the fullest physical and
to prevent the abduction of, the sale of or the mental development of young persons.
2 The Universal Declaration of Human Rights (UDHR) is a declaration that was adopted by the United Nations General
Assembly on 10 December 1948. The Declaration arose directly from the experience of World War II, and represents
the first global expression of rights to which all human beings are inherently entitled.
Van Schaik
304 © publishers
ILO Worst Forms of Child Labour Convention 14.5.3.2 Regional instruments

no. 182, 1999
The African Charter on the Rights and Welfare
This identifies trafficking for sexual and labour of the Child
exploitation as one of the worst forms of child
labour. This instrument has two specific provisions
that aim to protect the rights of child victims of
trafficking. It deals explicitly with the “abduc-
ILO Convention 29, Forced Labor Convention, tion, sale or traffic in children for any purpose
1930 or in any form”, urging state parties to “take all
For the purposes of this Convention, the term appropriate measures” to address these activ-
forced or compulsory labour will mean all work ities, and states that children should not be
or service that is exacted from any person used in any form of begging.
under the menace of any penalty and for which The charter refers to a system of adoption
the said person has not offered him- or herself that ensures that the best interests of the child
voluntarily. are paramount. It also refers to inter-country
adoption and to the need for “appropriate mea-
sures” to avoid placement that would result in
ILO Convention no, 105, Abolition of Forced trafficking or financial irregularities.
Labor Convention, 1957
This provides that all necessary measures The Ouagadougou Action Plan to Combat
shall be taken to prevent compulsory or forced Trafficking in Human Beings, Especially
labour from developing into conditions analo-
Women and Children
gous to slavery and provides for the complete
abolition of debt bondage and serfdom. Fur- This was adopted on 23 November 2006 by the
thermore it provides that wages shall be paid European Union (EU) and African states. It is a
regularly and prohibits methods of payment reaffirmation of the international instruments
that deprive the worker of a genuine possibili- on trafficking in persons, and provides specific
ty of terminating his or her employment. measures and recommendations to tackle traf-
ficking in human beings in general and African
The following are trafficking-specific instru- women and children in particular.
ments: The South African government is party to
all these human rights instruments, and thus is
¢ The Protocol to Prevent, Suppress and
obliged to assimilate the provisions contained
Punish Trafficking in Persons, especially
in them into domestic legislation.
Women and Children, 2000, which is part
of the United Nations convention against
Trans National Organised Crime 14.5.3.3. National instruments
¢ The Office of The High Commissioner Act 7 of 2013: Prevention and Combating of
for Human Rights: Recommended Princi- Trafficking in Persons (PCTP)
ples and Guidelines on Human Rights and
Human Trafficking (2002), which has been To fulfil its international obligation, which
developed in order to provide practical, came with the signing and ratification of the
rights-based policy guidance on the pre- UN Convention on Transnational Organised
vention of trafficking and the protection of Crime in 2004, South Africa passed a compre-
victims of trafficking. Their purpose is to hensive legislation called Act 7 of 2013: Preven-
promote and facilitate the integration of tion and Combating of trafficking in Persons,
a human rights perspective into national, which though passed in 2013, was implement-
regional and international anti-trafficking ed in August 2015.
laws, policies and interventions. Prior to this legislation, prosecution and
ow: Schaik
Publishers 305
SECTION © CONTEMPORARY CHALLENGES PERTAINING TO YOUTH AT RISK
conviction of the perpetrators of this crime was (c) the abuse of vulnerability;
covered mainly by Criminal Law (Sexual Offenc- (d) fraud;
es and Related Matters) Amendment Act of (e) deception;
2007. This act convicted trafficking of persons
(f) abduction;
only for sexual exploitation, which if proved
could sentence a perpetrator to life. Other leg- (g) kidnapping;
islations used did not criminalise the crime of (h) the abuse of power:
human trafficking per se, but were used to pros- (i) the direct or indirect giving or receiving
ecute the perpetrators for the crimes they com- of payments or benefits to obtain the
mitted in the process, like kidnapping, rape, consent of a person having control or
violence, racketeering, blackmail, pornography authority over another person; or
etc. Legislations used included both statuto- G) the direct or indirect giving or receiving
ry offences (including under the Intimidation of payments, compensation, rewards,
Act of 1982 and the Prevention of Organized benefits or any other advantage, aimed
Crime Act of 1998) and common law offences at either the person or an immediate
(such as kidnapping, assault, slavery). Chil- family member of that person or any
dren were protected under the Children’s Act other person in close relationship to
of 2005, which included a chapter on the crime that person, for the purpose of any
of trafficking of children. These laws used were form or manner of exploitation, is guilty
fragmented and limited in scope, which did not of the offence of trafficking in persons
allow for every actor in the trafficking ring to be ¢ The Purpose: Exploitation, which includes,
prosecuted. Perpetrators who were convicted but is not limited to—
got away with minimum inadequate sentences,
(a) all forms of slavery or practices similar
which allowed traffickers to function with near
to slavery;
impunity.
The Trafficking in Persons Act 7 of 2013 leg- (b) sexual exploitation;
islation, is a comprehensive legislation that (c) servitude;
addresses the crime of trafficking in its entirety, (d) forced labour;
criminalising offences such as possession and (e) child labour as defined in section 1 of
destruction of another’s travel documents, the Children’s Act;
debt bondage, forced marriage, and also using (f) the removal of body parts; or
the services of a victim of trafficking. The legis-
(g) the impregnation of a female person
lation also includes provisions of support ser-
against her will for the purpose of sell-
vices to victims, including children. ing her child at birth;
Definition of trafficking under the new South The definition also includes that:
African legislation (2) Any person who—
The definition of The Prevention and Com- (a) adopts a child, facilitated or secured
bating of Trafficking in Persons Act 7 of 2013 through legal or illegal means; or
(PCTP Act) is in keeping with the UNCTOC defi- (b) concludes a forced marriage with
nition. It consists of the three elements of the another person, within or across the
crime, being: borders of the Republic, for the pur-
¢ The Act; Any person who delivers, recruits, pose of the exploitation of that child or
transports, transfers, harbours, _ sells,
other person in any form or manner, is
exchanges, leases or receives another per- guilty of an offence of trafficking
son within or across the borders of the
Republic Liability of carriers: A carrier who transports
a person within or across the borders of the
e The Means; by means of— Republic, who knows or ought reasonably to
(a) a threat of harm; have known that the person is a victim of traf-
(b) the threat or use of force or other forms ficking and fails to report it to the police, is
of coercion; also guilty of an offence of trafficking
ev" Schaik
306 Publishers
¢ Involvement in Offences under this Act: Any (d) the conditions in which the victim was
person who— kept;
(a) attempts to commit or performs any act (e) whether the victim was held captive for
aimed at participating in the commis- any period;
sion of; (f) whether the victim suffered abuse and the
(b) incites, instigates, commands, directs, extent thereof;
aids, promotes, advises, recruits,en- (g) the physical and psychological effects the
courages or procures any other person abuse had on the victim;
to commit; or (h) whether the offence formed part of organ-
(c) conspires with any other person to ised crime;
commit, an offence under this Chapter (i) whether the victim was a child;
is guilty of an offence of trafficking
(@) the nature of the relationship between the
victim and the convicted person;
Consent: Consent of a victim, or of person hav-
ing control or authority over a victim, cannot
Victim Assistance under the PCTP Act:
be used as defence by the perpetrator, in a
court of law. Compensations for victims of traffick-
ing by the perpetrators for for damage
Penalties: The PCTP Act imposes harsh penal- to or loss of property, physical or men-
ties for perpetrators of this crime. The follow- tal suffering, causing the contraction of
ing are among the offences enumerated in the a life-threatening disease or diseases, or
legislation: loss of income or support. If the payment
awarded by the court is insufficient, the
¢ Trafficking in persons: punishable by a fine
victim reserves the right to institute a civil
not exceeding South African Rand 100 mil-
action against the perpetrator.
lion and/or a custodial sentence of up to life
in prison.
Extraterritorial jurisdiction: The PCTP Act
e Intentionally engaging in conduct that caus-
accords South African courts extraterritorial
es another person to enter into debt bond-
jurisdiction in certain circumstances. South
age: punishable by up to fifteen years in
African courts may assume jurisdiction over
prison and/or a fine.
certain cases involving acts committed out-
e Using the services of victims of trafficking: side of South Africa if such acts constitute an
punishable by up to fifteen years in prison offence under the relevant provisions of the
and/or a fine. PCTP Act and one of the following factors is
¢ Facilitation of trafficking in persons, includ- present:
ing through the leasing of rooms or publish-
ing of advertisements: punishable by up to ¢ The victim or the alleged perpetrator is a
ten years in prison and/or fine. resident or citizen of South Africa.
e Attempt of any of the above-listed offenses: e The alleged perpetrator is present in South
punishable by the same penalty imposed African territory (including on a vessel or an
for the commission of the actual offence. off-shore installation registered or required
to be registered in South Africa).
Factors considered when sentencing under the ¢ The perpetrator is a juridical person regis-
PCTP Act are: tered under South African law.
(a) The significance of the role of the convicted Whether the act in question constitutes an
person in the trafficking process; offence in the jurisdiction where it was com-
(b) previous convictions relating to the mitted is immaterial.
offence of trafficking in persons or related The PCTP Act seeks to encourage witness
offences; cooperation with law enforcement. It requires
(c) cause of substance abuse and dependence that anyone (except legal practitioners in cer-
for victim; tain circumstance) who knows or suspects the
Van Schaik
© publishers 307
commission of a trafficking offence to report it form duties in the home of the receiving
to the police. The Act accords confidentiality family. The “given” children are exploited
and immunity to individuals who report sus- for cheap labour. Children are also traf-
pected trafficking offences in good faith, from ficked into other forced labour practices
any civil or disciplinary actions, “unless the outside the home, such as mines and plan-
interests of justice require otherwise”. tations, and are used as child soldiers in
countries at war.
Criminal prosecution of victims of trafficking:
e In East Asia and the Pacific, children are
A victim cannot be prosecuted for a criminal
trafficked for commercial sexual exploita-
offence, if it was committed as a direct result
tion as child prostitutes, and also for cheap
of the person's position as a victim of traffick-
labour in agriculture and other industries.
ing,
¢ In South Asia, the trafficking of children and
Unauthorised access to and disclosure of infor- child labour are intricately linked. Children
mation: Any person disclosing any information are often sold to pay back a family debt.
that leads to access to a victim or to his/her Girl children are often trafficked for sexual
family, will be guilty of an offence (http://www. exploitation. Other forms of trafficking in
justice.gov.za/legislation/acts/2013-007.pdf). the region include forced labour in con-
struction and factories.
The Constitution of the Republic of South Africa e Children are trafficked from Eastern to West-
Act 108 of 1996 ern Europe, feeding the demand for cheap
labour and child prostitution in the richer
This is the supreme law of the country, and all countries. Organised crime groups play a
other law and actions are subject to the Consti- role by exploiting the open borders of the
tution. Chapter 2 is a bill of rights that enumer- European Union to facilitate the process.
ates the civil, political, economic, social and
cultural human rights of the people of South ¢ Child trafficking in North and South America
Africa. Most of these rights apply to anyone in and the Caribbean is linked to tourism, and
the country. Some of the sections that speak to feeds on the demand for the sexual exploita-
the crime of trafficking are the following: tion of children and their use as cheap
exploitable labour.
e Section 10 states that “everyone has inher-
ent dignity and the right to have their dignity
respected and protected”. 14.5.4 South Africa’s position as per
¢ Section 12 includes the right to be free of all the United States Trafficking
forms of violence and not to be treated or in Persons Report (JTiP)
punished in a cruel, inhuman or degrading
way. Every year the US Department of Justice pub-
lishes a report called the JTiP Report (previ-
e Section 13 covers freedom from slavery, ser-
ously called GTiP Report) that ranks countries
vitude or forced labour.
that have ratified the Palermo Protocol into
¢ Section 28 provides for the special protec- one of four tiers:
tion of children.
e Tier J. Fully compliant with minimum stan-
dards of the Palermo Protocol
14.5.3.4 Global and local context
¢ Tier 2. Not fully compliant, but making sig-
The following section covers some of the nificant efforts to be so
general global patterns of child trafficking as
¢ Tier 2 Watch List. Same as Tier 2, but the
reported by UNICEF:
number of victims is significant; or no pros-
¢ West and Central Africa play host to chil- ecutions and convictions have taken place;
dren trafficked as a result of traditional or there is no evidence of increasing efforts;
or cultural practices, where children are or the country has promised but has not yet
“given” to other families and forced to per- enacted new steps to combat this crime
308
¢ Tier 3. Not fully compliant and not making can women to Europe and Asia, where some
any significant effort to be so (which can are forced into prostitution, domestic service
affect US government assistance to a coun- or drug smuggling.
try) Law enforcement officers report that traf-
fickers employ forced drug use to coerce traf-
In its 2017 Trafficking in Persons (TIP) Report, ficked victims into the sex trade. Thai women
the US Department of State gave South Africa remained the largest identified foreign victim
a Tier 2 designation, the number of victims group, but reports to the IOM show an increas-
identified and referred to care has increased, ing number of Chinese victims in the trade.
as has convitions of the perpertrators, with Women and girls from Brazil, Eastern Europe,
stringent sentences of up to life improsonment Asia and neighbouring African countries are
being handed down. South Africa has had this recruited for legitimate work in South Africa,
rating since the Department of State started where some are subjected to sex trafficking,
issuing the annual TIP reports. South Africa domestic servitude or forced labour in the
has been put into the Tier 2 group because rea- service sector, or taken to Europe for simi-
sonable improvement has been seen in aware- lar purposes. Non-government organisations
ness raising and the prosecution of perpetra- (NGOs) in the Western Cape have reported an
tors of this crime. increased number of Nigerian sex trafficking
South Africa is a source, transit and desti- victims, many coerced through voodoo rituals.
nation country for men, women and children IOM has also seen an increase in Nigerian girls
subjected to forced labour and sex trafficking. in domestic servitude. NGOs reported a new
South Africans constitute the largest number
trend of Central African women being forced
of victims within the country. South African
into labour duties in hair salons. Foreign and
children are recruited from poor rural areas
South African LGBTI persons are also increas-
to urban centres, such as Johannesburg, Cape
ingly subjected to sex trafficking. (LGBTI com-
Town, Durban and Bloemfontein, where girls
munities/populations collectively refer to peo-
are subjected to sex trafficking and domes-
ple who are lesbian, gay, bisexual, trans, and/
tic servitude, and boys are forced to work in
or intersex.)
street vending, food service, begging, crimi-
From time to time, foreign male forced
nal activities and agriculture. Many children,
labour victims are also discovered aboard fish-
including those with disabilities, are exploited
ing vessels in South Africa’s territorial waters.
(e.g. in forced begging on the streets). Non-con-
sensual and illegal marriages are also on the NGOs estimate that 10-15 victims of labour
increase. In South Africa, ukuthwala is the trafficking disembark from sea vessels in Cape
practice of abducting young girls and forcing Town each month. Young men and boys from
them into marriage, often with the consent of neighbouring countries migrate to South Africa
their parents. This occurs mainly in rural parts for farm work; some are subjected to forced
of South Africa, in particular the Eastern Cape labour and are subsequently arrested and
and KwaZulu-Natal. With the ukuthwala prac- deported as illegal immigrants. Forced labour
tice, girls as young as 12 years are forced into is reportedly used on fruit and vegetable farms
marriage with adult men. These girls are not across South Africa and in vineyards in the
only forced into the marriage, but also forced Western Cape. Government and NGOs report
into labour and sex slavery. In addition, local an increase in Pakistan and Bangladesh nation-
criminal rings organise child sex trafficking, als who are subjected to bonded labour by
which is globally growing in popularity. Rus- fellow nationals who own businesses in South
sian and Bulgarian crime syndicates are also Africa. Official complicity by government offi-
known to operate in the Cape Town sex trade, cials - including police officers — in trafficking
and Chinese nationals organise the sex traffick- crimes remains a serious concern. Some well-
ing of Asian men and women in South Africa. known brothels in some provinces previously
Nigerian syndicates dominate the commercial identified as locations of sex trafficking contin-
sex trade in most provinces in South Africa. To ue to operate with officials’ tacit acknowledg-
a lesser extent, syndicates recruit South Afri- ment (US Department of State 2016)
Van Schaik
© publishers 309
14.6 CONCLUSION specific legislation to address trafficking has

been promulgated. One challenge is still the
Human trafficking, which includes the cruel availability of official statistics as there is no
and inhumane trafficking of children, is a glar- clear indication of the number of children traf-
ing reality in South Africa, which more often ficked each year to, through and from South
than not gets overlooked and remains unde- Africa. The government has put in place leg-
tected, or if detected, unresolved. Lack of islation and provincial task teams to address
proper data collection, lack of research, insig- this issue, but clear evidence and answers are
nificant crime classification and recording by still lacking. Trafficking in persons is not just a
the police leaves the extent of the problem government's problem, as each one of us has
unknown. Trafficked children toil behind the a duty and a responsibility to take ownership
walls of private homes, hotel rooms and sweat- of our communities and our neighbourhoods.
shops - obscure places from which most never Collective actions by vigilant citizens against
come forward for fear of their perpetrators or trafficking attempts will also ensure that traf-
of prosecution. In addition, many fear deporta- fickers do not exploit humans for financial
tion if they were taken across borders. gain. Trafficking is real and many citizens are
There seems to be some hope, though, as oblivious of it.
CRITICAL QUESTIONS
1, Explain the concept of human trafficking?

2. What are the three main elements that have to be present in a case for it to be deemed human
trafficking?
. Can a case still be deemed as trafficking if only one or two of the elements are present?
Ww
. What does'child trafficking entail? How is it different from the trafficking of adults?
LH
. What are the main causes of human trafficking?

DWN
. Highlight the exploitative situations into which children are trafficked.

. Indicate the possible consequences of trafficking for children.
wWOanN
. What is the title of the TiP Legislation in South Africa?

. When was it passed and implemented?
Oo
10. What is the definition of TiP under the South African Legislation?
11. Should a victim of trafficking be prosecuted for any crimes committed during the time he or she was
trafficked? (Highlight your answer with specific reasons.)
12. In your opinion, would regional cooperation within the Southern African Development Community be
beneficial in addressing child trafficking? Explain.
13. Give an overview of the trafficking situation in South Africa.
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312 (Oniser)
OBJECTIVES KEYWORDS
You should be able to child pornography
* understand the nature and incidence of child prostitution in South Africa child prostitution
* define the terms “child prostitution” and “child pornography” child sex work
* discuss the link between child prostitution, child pornography and human human trafficking
trafficking pimps
* outline the causes of child prostitution traffickers
* know the perpetrators of child prostitution victims
* understand the consequences and risks for children that are involved in sex
work
* discuss the prevention and rescuing of child sex workers.
15.1 INTRODUCTION Worldwide, half the money made from the

sex trade comes from industrialised nations
Prostitution is one of the world’s oldest pro-
such as Austria, America and China, while
fessions (Siegel 2016). During the 19th century,
it was practice in England for poor young girls more and more children are entering the sex
to trade sex in exchange for financial or other industry on an international level and in South
types (food) of compensation (Siegel 2016). On Africa (Geldenhuys 2014a; Lewis 2015; SAPA
a global scale, it is estimated that millions of 2009). Furthermore, Geldenhuys (2014a) and
children are forced into the multibillion-dollar Siegel (2016) add that human trafficking, child
child prostitution trade (Geldenhuys 2014a). pornography and child prostitution are inter-
313
linked phenomena that cannot be separated child that are used for sexual gratification. Child
and that the majority of trafficking cases that pornography is regulated by the Criminal Law
involve children in South Africa involve differ- (Sexual Offences and Related Matters) Amend-
ent forms of sexual exploitation (Kamaldien ment Act 32 of 2007, which, broadly speaking,
2016). outlines child pornography as the manufactur-
According to Whiting (2014), child prosti- ing or possession of explicit or sexually inclined
tutes are a diverse population that varies in images of persons under the age of 18 years, of
cultures, gender and ages, and it is not strange which said images are applied for aesthetic or
to find 11l- to 12-year-old girls soliciting on erotic stimulation (Geldenhuys 2014a).
the streets in places such as Johannesburg
(Gauteng) and Durban (KwaZulu-Natal) (Lewis
2015). As atrocious as it may seem, children are 15.3 INCIDENCE AND PREVALENCE
even offered by their parents for as little as R50 OF CHILD PROSTITUTION IN
in South Africa (Daily News Reporter 2012). SOUTH AFRICA
This chapter addresses child prostitution, There is a heightened demand for child pros-
human trafficking and child pornography as titutes (boys and girls) in South Africa even
intertwined forms of child abuse. The reader is though child victims are not only recruited
presented with definitions of child prostitution from South Africa, but also from bordering
and child pornography while the recruitment of countries, such as Mozambique (Daily News
child prostitutes is explained. Also presented Reporter 2012). Approximately 1,2 million
are the causes of child prostitution and a look children are victim to human trafficking and
at who the perpetrators are. Lastly, the pre- consequential sexual exploitation around the
vention of child prostitution and the rescuing world (Songca et al. 2016). These children are
of child victims are outlined. often runaways who are forgotten by their fam-
ilies, and once lured into prostitution they are
locked up in rooms and the only people they
15.2 DEFINITIONS
see are the clients to whom they are sold for
The concepts in the following sections are cen- sex (Daily News Reporter 2012). The following
tral to the theme of this chapter. topical media examples illustrate the preva-
lence and incidence of child prostitution in
South Africa:
15.2.1 Child prostitution
e An adult female prostitute was arrested in
Geldenhuys (2014a) refers to child prostitu-
Durban with an under-aged female child
tion as the commercial sexual exploitation of a
whom she was selling to men for up to
child by an adult, an organisation, a group, or
R3 000 per hour. It is alleged that the girl
by another child through the abuse of power
had run away from home and ended up
(and trust), influence or forced actions. The
drifting along the beach when the adult
child victim is lured or recruited into the sex
prostitute recruited her into the sex indus-
industry and has to take part in sex or sexual try. The girl was severely drugged when
activities (pornography) in exchange for found and rescued by police (Daily News
favours (e.g. drugs, shelter, food) or money
Reporter 2012).
(Geldenhuys 2014a).
e Eight girls under the age of 16 years (of
which the youngest was 12) were rescued
15.2.2 Child pornography from a prostitution ring — two of these girls
The term “child pornography” is a challenging were pregnant. Among the adults responsi-
one to define (Geldenhuys 2014a). This phe- ble for these girls’ fate was a medical doctor
nomenon is seen as a consequence of sexual and his wife (Daily News Reporter 2012).
exploitation or the abuse of a child for sexual ¢ Most girls are trafficked from neighbouring
purposes (Geldenhuys, 2014a). The main focus countries (e.g. Zimbabwe, Botswana, Namib-
of this definition falls on the actual images (i.e. ia, Mozambique) and the two countries
photographs, video clips) of the abuse of a within South Africa (namely Lesotho and
Van Schaik
314 © publishers
CHAPTER 15 CHILD PROSTITUTION
Swaziland) to work as child sex workers. the offender of wrongdoing and appeas-
In addition, girls from European and Asian es the family, but it does not recognise or
countries are also sought after because of address the harm caused to the victim
the so-called exotic factor (they look differ- (Ndaliso 2016). In addition, this contributes
ent) and the demand for them. Since 2009, to the dark figure (i.e. unreported cases)
there have been 10 successful convictions relating to child pornography, and we will
in trafficking cases that involved the sexual therefore never be able to determine the
exploitation of children (Heavy sentences true prevalence and extent of this phenome-
for human trafficking 2015). non in South Africa.
Girls as young as 12 years are alleged to
be working as prostitutes in Durban (SAPA 15.4 RECRUITMENT INTO CHILD
2014).
PROSTITUTION
The South African Police Service and the
Research (Daily News Reporter 2012; Siegel
metro police raided a brothel in Kempton
2016; Songcea et al. 2016) proves that adult pros-
Park (Ekurhuleni) and found teenagers,
titutes, traffickers and pimps constitute the
some of them 15 years old, who were work-
majority of adults who recruit vulnerable chil-
ing as prostitutes (Smillie 2017). The girls
dren into child prostitution. These children are
were lured to the premises with undertak-
often runaways who are characterised by dys-
ings of employment and prospects to study
functional families, poverty and backgrounds
further (Smillie 2017).
with severe financial constraints. Recruitment
During March 2017, a 33-year-old male was into the sex industry becomes a means to sur-
sentenced in the Port Elizabeth Magistrate’s vive (for food, shelter, clothing, drugs, etc.) for
Court for being involved in an internation- them and the quickest way to make money is to
al child pornography ring known to have sell their bodies. The demand is always there,
shared sexually explicit material among and as soon as the supply meets the demand
one another. The perpetrator and his wife the business flourishes. ‘
distributed images of rape, torture and the When children are recruited for the sex
murder of babies (including newborns) in industry, they are most often also introduced
the pornography ring (Smillie 2017). to drugs and alcohol (Daily News Reporter
A pimp who posed as a sports coach for 2012). Once addicted, they are controlled and
underprivileged and under-aged boys at an subdued by pimps with drugs and alcohol,
informal settlement in Fochville (in west- and they become trapped in a vicious cycle of
ern Gauteng) convinced poverty-stricken selling their bodies to sustain their drug and
minors to join a sports outing to Johannes- alcohol addiction (Daily News Reporter 2012;
burg on the pretext of getting them involved Songea et al. 2016). Prominent media stories
in sports (Panyane 2017). The man drugged of recruitment practices into child prostitution
the children the night before they left for are listed below:
Johannesburg. Some of the boys were taken ¢ A 62-year-old Mpumalanga businessman
to a hotel where drugs were used, while oth- was sentenced to eight life sentences for
ers were left on their own in the veld. The holding captive five Mozambican under-
man’s intention was to traffic the boys, but aged girls as sex slaves at his home (Heavy
some of them managed to escape and went sentences for human trafficking 2015). The
to a police station to report their ordeal girls were aged between 10 and 16 years,
(Panyane 2017). and were held captive for a period of three
In some rural areas in KwaZulu-Natal, chiefs years. All of them were smuggled by a
and headmen intercept in child sexual Mozambican adult female who claimed to
abuse cases and impose fines to be paid in have been smuggled herself to South Afri-
livestock (cattle) to the family of the victim ca when she was 12 years old. She too had
to remediate the offence rather than inform- been raped by the 62-year-old businessman
ing the authorities of the sexual abuse (Heavy sentences for human trafficking
(Ndaliso 2016). Paying with livestock clears 2015).
315
e SAPA (2014) reports of a 14-year-old Durban unknown adult man with whom her under-
girl who was lured into prostitution with aged daughter was liaising on the internet.
free clothes, alcohol and drugs. The girl was The man sent her daughter a plane ticket
given drugs for a period of two months and to Cape Town, where she was promised a
once she was addicted she had to “work on good job. The distraught mother tracked
the streets” (sell her body for sex) in order the man down and interrogated him about
to secure and maintain her drug addiction her daughter's fate. Eventually he con-
(SAPA 2014). This girl, like many others, firmed that the website and the modus
was recruited into child prostitution by a operandi were used to recruit sex workers
doctor, his wife and three other adult men. (Kamaldien 2016).
She sold her body for R100 to her first cli-
ent. On another occasion, the girl and two The prominence of social media and online
others, both under-aged, were picked up by advertisements offering employment and
a group of men who “paid” them with high accommodation for homeless and runaway
volumes of alcohol. They eventually passed youth in exchange for sex has been a cause
out and when they woke up the next day, for concern. Currently in England social media
they found themselves in Pretoria. Adult platforms are reported to be causing serious
prostitutes there gave them money for bus challenges in this regard (Hayden 2017). Ruth-
tickets to get back to Durban (SAPA 2014). less pimps prey on and vet vulnerable and
¢ Community members and the police in Kuils desperate youths by advertising escort work
River (Western Cape) report that there is a or “friends with benefits” arrangements along
human trafficking syndicate operating in the with accommodation. Even online dating apps
area that lures and abducts under-aged girls and websites are used to lure vulnerable and
for prostitution (Francke 2017). The clan- desperate youths into sex work. Another meth-
destineness of this type of business makes od of recruitment is by approaching these
detection very difficult. youths in clubs or bars, and asking if they need
food and accommodation (Hayden 2017).
¢ Social media platforms play an important Often children that have been subjected
role in the recruitment of children into to poverty, physical and sexual violence, and
the sex industry (Kamaldien 2016). Many neglect are seeking ways out of their dire home
internet websites advertise potential job circumstances (Siegel 2016; Songea et al. 2016).
opportunities, dancing careers and model- Such children are easily deceived by promises
ling opportunities that are pitched at very of better living circumstances, freedom and the
young children, enticing them into the cities assurance of a job opportunity, yet once recruit-
(Kamaldien 2016). Once they show interest, ed by traffickers, they are held captive and used
the pimps even go as far as flying them to in the sex industry to accumulate money for the
the big cities where their real fate (in being traffickers and pimps (Songca et al. 2016; Traf-
a sex slave) awaits them (Kamaldien 2016). ficking for sexual exploitation 2017).
Parents are conned into providing the nec-
Although children are trafficked to work on
essary documentation or, in some cases, construction sites and plantations as camel
selling their children to ruthless recruiters.
jockeys, child soldiers, forced labour (e.g.
Once the victims arrive in the cities, they
domestic and/or farm work) and for begging,
find themselves indebted to the pimps or
the majority are trafficked for prostitution
traffickers for the money spent for their
(Geldenhuys 2014a; Songea et al. 2016; Traf-
flights and accommodation, and their iden-
ficking of Children 2017). Because children are
tification documents are confiscated. They
more vulnerable, they are cheaper to hire, and
are introduced to drugs, and once addicted,
less likely to demand better working condi-
they commence with prostitution to feed
tions or higher wages, and this leaves them at
their drug habit and to repay the pimps
the mercy of the traffickers. The children’s vul-
(Kamaldien 2016). (Also see Chapter 14 in
nerability increases when they are trafficked to
this regard.)
a different country with no contacts or family
¢ A small-town mother who became worried (Trafficking of Children 2017). Another way in
about her teenage daughter contacted an which children become ensnared is when they
316
are abducted from the streets and sold into Human trafficking is rife in South Africa, and
the sex industry or forced into under-aged children are at particularly high risk (Wilkinson
marriage by relatives (Trafficking of Children & Chiumia 2013). This claim is also supported
2017). In South Africa it is also not uncommon by available popular media reports (Wilkinson
for young girls to become involved in “rela- & Chiumia 2013). On a YouTube documentary
tionships” with older men where there is an video called Child prostitution - South Africa’s
exchange of money or some reward for sex, young street walkers (2016), it is claimed that
sometimes with the knowledge of their par- human trafficking and the demand and supply
ents, who are complicit (Daily News Reporter for prostitution and child prostitution expand-
2012). Such older men are sometimes referred ed in South Africa with the 2010 Soccer World
to as sugar daddies or “blessers”. Cup, but this is not supported by any empirical
In the UN Trafficking of Children (2017) research. According to Wilkinson and Chiumia
report it is stated that at least one million chil- (2013), international sporting events often
dren are recruited into sex slavery annually increase human trafficking.
on a global scale and the demand for younger Between 2003 and 2007, the fraction of chil-
children is on the rise. dren in human trafficking cases increased from
15-22%, and on an annual basis over 1,2 mil-
lion children are sexually exploited over the
15.5 HUMAN TRAFFICKING AND world (SAPA 2009). This corroborates the UN
CHILD PROSTITUTION figures that were mentioned earlier. Since host-
The phenomenon of child sex work and human ing the National Human Trafficking Awareness
trafficking is linked and interdependent, and Week in 2016, it was estimated that approxi-
words such as “indignity”, “degradation” and mately 20 000 children in South Africa fall prey
“disgrace” are used to describe the suffering to human trafficking every year (Child prostitu-
of the children (and women) who meet this tion — South Africa’s young streetwalkers 2016).
fate (Wilkinson & Chiumia 2013). Human traf- Still, clear evidence and accurate figures. in
ficking is the third most lucrative illegal trade South Africa and globally are clearly not avail-
after weapons and drugs, with an estimated able about this phenomenon, which is shroud-
value of US$32 billion a year (SAPA 2009). ed in secrecy.
Although child trafficking is broadly discussed In America, many motels and hotels facili-
in Chapter 14, it is necessary to explain the link tate sex trafficking by assisting traffickers to
between trafficking and child prostitution in remain anonymous because they benefit from
this chapter. their business, so hotel owners and staff often
According to Wilkinson and Chiumia (2013), ignore this form of child abuse (Schmidt 2017).
a precise understanding of the requirements During March 2017, a 14-year-old girl from Phil-
of human trafficking is important as activities adelphia in the US brought a lawsuit against a
such as voluntary sex work and illegal migra- motel known to facilitate human trafficking and
tion are excluded in the act of trafficking. the sexual exploitation of children by renting
These authors posit that human trafficking rooms to men who forced teenage girls to have
occurs when the following occurs (Wilkinson & sex with them (Schmidt 2017). Apparently the
Chiumia, 2013): victim “was held for weeks and months at a
time, barred from leaving, and was forced to
e A person is transferred, transported, deliv- have sex with as many as 1 000 men over the
ered, recruited, sheltered, sold, exchanged course of two years” (Schmidt 2017: np). This
or leased within or across the borders of occurred while the motel’s owners and staff
South Africa; rented rooms to the victim's traffickers, ben-
¢ Coercion, use of force, threats, abduction, efiting financially from it and doing nothing to
fraud, deception, abuse of power or weak- stop the abuse (Schmidt 2017).
ness, or payments or advantages to a per- In South Africa, similar atrocities take place.
son in control of the victim were made; and In one such case an under-aged girl ran away
e The victim was trafficked for the purpose of from home and, anxious to avoid homeless-
sexual abuse, slavery, forced labour, child ness, met traffickers and ended up being sold
labour or for the removal of body parts. into sex slavery. She was “forced to perform
Van Schaik
©pubiishers 317
sexual acts on men more than twice or three parents are presently facing charges of rape,
times her age and if she tried to leave there sexual assault and the manufacturing of child
was someone at the bottom of the staircase pornography (Smillie 2017). This case became
that prevented her from doing so”. (Schmidt known after American police officers contacted
2017: np). In most cases, children who end up the South African Police Service after the recip-
as trafficked sex slaves have no assistance in ient of the child pornography was arrested
escaping their ordeal. In the highly unlikely and his phone confiscated. The police in the
event that they do break free, law enforcers US found explicit photos of the victim on it,
may only discover their victimisation by acci- payments for which were traced to South
dent. It is usually only when the traffickers and Africa. The recipient of the child pornography
pimps release them that their ordeal ends. used social media (Facebook and WhatsApp)
However, this might be the end of the physical to communicate with the girl and her family
ordeal but many victims suffer long-term emo- (Smillie 2017). Apparently, he befriended the
tional effects of the sexual exploitation. Most victim on a social media platform. Eventually
children who are used in the sex trade are seri- her mother became involved and demanded
ously hampered in their physical, psychologi- payment for allowing her child to pose for
cal, social and emotional development (Bartol the requested sexual positions (Smillie 2017).
& Bartol 2017: 421). In addition, many suffer With the development of technology, children
lifelong symptoms of post-traumatic stress dis- are now, more than ever, vulnerable to ruth-
order (PTSD), anxiety and depression. less exploiters. It has become an easy avenue
to download child pornography or to solicit
potential child victims on the internet.
15.6 CHILD PORNOGRAPHY AND
CHILD PROSTITUTION
15.7 CAUSES OF CHILD
According to Geldenhuys (2014a: 25), child
PROSTITUTION
pornography can be traced to “the time when
man discovered the ability to write or draw”. Many children who end up as sex slaves were
Drawings of children engaging in sexual inter- once desperate for employment and accom-
course with adults date at least as far back as modation, and ran away from home to escape
ancient Greece, and a graphic written descrip- abuse and neglect. By following this path, and
tion of child sexual abuse was found in 17th because they are so desperate and naive, they
century France. Child pornography is a prime are at risk for sexual exploitation and lured
and interconnected form of child abuse and into child prostitution (Hayden 2017; Song-
the sexual exploitation of children, and it is ca et al. 2016). Adding to this, Wilkinson and
also associated with sex tourism, child prosti- Chiumia (2013) state that many children are
tution and trafficking of children (Geldenhuys forced into prostitution by circumstances such
2014a), thus there is a direct link between as dysfunctional families and poverty.
child pornography and the demand for and
supply of child prostitutes (Daily News Report-
er 2012; Siegel 2016). On an annual basis, more
15.7.1 The role of the family
than a million children are used in pornogra- Most child and juvenile misbehaviour and tru-
phy and child prostitution, many of whom are ancy (i.e. runaway behaviour and substance
runaways who are being exploited by adults abuse) can be traced to the family of origin or,
(Siegel 2016). The following story serves as an stated otherwise, the lack of a stable, caring,
example of the link between child pornography non-abusive and loving family (Songca et al.
and child prostitution. 2016; Siegel 2016). Recent research as outlined
From the age of 11 years, a Vredenburg by Songca et al. (2016) demonstrates a strong
(Western Cape) girl was forced by her mother correlation between a number of factors and
to pose in sexual positions and perform sexual the child's involvement in misbehaviour (i.e.
acts with adult males, which she (the mother) running away). These factors include child
photographed and forwarded to an adult male abuse (physical, sexual and emotional, and
in America (Smillie 2017). Both the victim's neglect), parental roles and characteristics
318
(involvement with children, discipline styles 15.7.3 Poverty and unemployment

and supervision), the family setting (over-
Poverty is one of the preconditions that allows
crowding, a broken family or an absent par-
traffickers to operate (Trafficking of Children
ent), the school setting (academic achieve-
2017). Many children see prostitution as a
ment, commitment to school, dropping out of
means to earn an income. In addition, child
school), as well as the child’s immediate envi-
prostitution is aggravated by the high poverty
ronment (poverty stricken, high-crime neigh-
index, and many poverty-stricken parents see
bourhood) (Siegel 2016; Songca et al. 2016).
their children as an opportunity to generate
Exposure to poor parental involvement,
an income for the family (Daily News Reporter
lack of supervision, absent parents, a broken
2012). Poverty is compounded by unemploy-
or dysfunctional family environment, parental
ment, and the dire levels of poverty push
criminality, domestic violence, family over-
young girls into prostitution as a means of sur-
crowding, poverty, parental unemployment, vival (SAPA 2009; Lewis 2015). According to the
parental and child substance abuse, abandon- YouTube clip Child prostitution — South Africa’s
ment, and lack of significant others (involved, young street walkers (2016), child prostitution is
non-abusive, caring and non-criminal extended endemic to South Africa, and for many children
family members or role models) may push a from informal settlements (squatter camps),
child to seek a better life and circumstances prostitution is practised as a means of survival.
elsewhere (Siegel 2016; Songa et al. 2016). Chil- Children are easily tricked into prostitution
dren exposed to such conditions may develop with promises of employment, fancy clothes
behavioural problems, run away from home and hairstyles, modelling and dancing careers,
to escape their dire family and home circum- and prospects to study further (Smillie 2017;
stances, end up on the street, befriend unde- Teke 2016). Once lured into these networks,
sirable or delinquent friends, and ultimately they are kept sedated, locked up and sexually
become vulnerable targets for traffickers and exploited (Kamaldien 2016; Kimberley 2017;
subsequent recruitment into the sex industry Siegel 2016; Songca et al. 2016). Following are
(Songcea et al. 2016). two examples which demonstrate the link
between unemployment, poverty and child
prostitution:
15.7.2 Exposure to abuse
e An under-aged female girl was prostituted
Siegel (2016) believes that many parents are by her parents for three years (between the
involved in child abuse. Circumstances con- ages of 11 and 13 years) because they were
ducive to child abuse (and neglect) at home unemployed and needed money to buy
include exposure to family violence (domestic food. The victim was deceived into believ-
violence and the physical abuse of children) ing that she would eventually marry the
and blended families (abuse by a parent’s man who the parents allowed to exploit her
partner, by step-parents or by extended fam- sexually (Smillie 2017).
ily members). Sexual abuse within the family
home is also common (Siegel 2016). Accord- e A YouTube video that was recorded in
ingly, Chothia (2016) discloses that even 2007 depicts a 16-year-old female prostitute
though boys and girls are equally vulnerable who is also a drug addict and who admits
to sexual abuse, girls are more likely to expe- that she has been selling her body for sex
rience contact sexual abuse (i.e. rape) than in exchange for money for years (Bastian
boys, who described higher levels of non- 2015; Child prostitution - South Africa’s young
contact sexual abuse (verbal advances and street walkers 2016). From this one can
exposure to pornography by adults). Siegel deduce that unemployment, sex work and
(2016) maintains that children, irrespective of drugs are interweaved in most scenarios.
culture, gender and race who experience any
form of abuse (sexual, physical or emotional 15.8 WHO ARE THE
abuse, or neglect) are more prone to suffering
PERPETRATORS?
from suicidal ideation and attempts, problem
behaviour, depression, substance abuse and Geldenhuys (2014b) postulates that adults
self-harming behaviour. are the main consumers of child prostitution
Van Schaik
©pub fishers} 319
and the largest viewers of child pornography. Children that have been exposed to sexual
These perpetrators come from all strata of life abuse may display problem behaviour (vio-
and many of them have respected occupations lence and aggression), sexualised behaviour
such as medical doctors (Daily News Reporter (behaviour inappropriate to their age), poor
2012) that bring them into regular contact self-esteem, depression, self-harm and suicidal
with children (Geldenhuys 2014b). Adults and behaviours, and even mental illness (Siegel
even children have lured other children into 2016; Songca et al. 2016). Sexually exploited
child prostitution. Male and female traffickers, children, like child prostitutes, are traumatised
pimps, parents, adult prostitutes, corrupt law and often ill (caused by depression, anxiety
enforcement officials (at border posts), hotel and stress, or dealing with sexually transmit-
and club owners, community leaders, trans- ted diseases) (Whiting 2014). In this regard,
port workers, paedophiles, clients, sex tourists Whiting (2014) mentions the case of a 13-year-
and passport counterfeiters are the perpetra- old female sex slave who entered the sex trade
tors of child prostitution (SAPA 2009; Kimber- through child trafficking. After being rescued,
ley 2017; Ndaliso 2016; SAPA 2009; Schmidt this child lives in constant fear of being sold
2017; Siegel 2016; Smillie 2017). Most of the to traffickers again and is severely trauma-
offenders have legitimate access to children. tised by the abuse she endured during her
Unfortunately no typical profile exists of the sex slave days (PTSD) (Whiting 2014). Accord-
child sex or pornography offender (Bartol & ing to SAPA (2014), a 14-year child prostitute
Bartol 2017: 419). who was lured into the sex industry with false
About child pornography, Geldenhuys promises reflected that she now blocks out all
(2014b) posits that child pornographers use the abuse and trauma because it is better just
pornography for personal sexual arousal to forget it.
and gratification purposes. They also use it Worldwide, the use and abuse of alcohol
to groom and seduce children; lower their and drugs are common coping mechanisms in
inhibitions; for extortion to guarantee their the sex trade - for adult and minor sex work-
victims’ silence; and to gain trust with other ers (Trafficking for sexual exploitation 2017).
paedophiles and sex rings. In addition, they Addiction to substances occurs either vol-
feed the demand for child prostitution; ensure untarily or it is forced on children in order to
access to markets that exchange pornographic entrap them into a web of addiction and sexual
material of children; profit from it; and use it exploitation, which in turn leads to health con-
endorse their cognitive deficits pertaining to sequences (i.e. poor nutrition and poor men-
child abuse and child pornography, and to jus- tal, physical and emotional wellbeing) (Teke
tify the notion that sex with a child is normal. 2016; Trafficking for sexual exploitation 2017).
Child prostitutes also experience a lack of
safety. It is alleged that some police officials
15.9 CONSEQUENCES AND RISKS harass and verbally abuse adult and child pros-
ASSOCIATED WITH CHILD titutes and that they (the officials) sometimes
expect sexual favours from them (Teke 2016).
SEX WORK
Regularly, child sex workers are assaulted
Children who are forced into prostitution suf- and raped either by customers or by law
fer severe violations of their human rights, enforcement officials (Teke 2016). Many child
such the right to dignity, liberty, freedom, prostitutes also suffer from health issues such
security of person, health and the right to be as HIV and AIDS and sexually transmitted dis-
free from violence (Geldenhuys 2014a; Traffick- eases (Teke 2016).
ing for sexual exploitation 2017). Many times when children are forcibly kept
Siegel (2016) states that involvement in in brothels or rooms, they are not allowed to
child prostitution leaves permanent damage on seek healthcare and this may lead to undi-
a spiritual level (feelings of guilt and shame), agnosed and untreated infections (i.e. pelvic
on an emotional level (low self-esteem and low inflammatory disease) and poor health con-
self-worth), a sexual level (sexual dysfunction), ditions (Trafficking for sexual exploitation
and on the children’s health (due to the con- 2017). Owing to lack of medical attention, poor
sequences of violence and substance abuse). nutrition and exposure to sexual exploitation,
Van Schaik
320 © publishers
violence, abuse (physical and emotional) and and leads to increased levels of stress, neglect,
neglect, basic mental, physical and social well- abuse (emotional, sexual and physical), mem-
being for child sex workers may be impossible ory loss, an inability to concentrate and per-
(Trafficking for sexual exploitation 2017). This sistent nightmares (Whiting 2014). Such chil-
can result in depression, suicidal ideation, dren are mostly scared during night time when
physical injuries, mouth and teeth injuries, they are alone, when they have to cope with
broken bones, stab wounds, head wounds, their emotions and their memories of the atro-
and even death (Trafficking for sexual exploita- cious experiences they have to endure as sex
tion 2017). Female child prostitutes may fur- slaves (Whiting 2014).
thermore experience serious reproductive Rescued child prostitutes need therapy,
health issues, HIV/AIDS, sexually transmitted debriefing and constant support to help them
diseases, unwanted pregnancies and unsafe cope and make sense of their abuse and expe-
abortions — and this is made worse by lack of riences (Whiting 2014). One of the positive
access to healthcare (Teke 2016; Trafficking attributes of children is often their resilience.
for sexual exploitation 2017). Even if there is This entails the ability to pull themselves
access to healthcare, many female child pros- together and to carry on with life despite the
titutes fear being stigmatised, or detected and cruel, inhumane and terrible things that they
deported for being illegally in a country and have endured (Whiting 2014). Many rescued
without identity documentation, which exacer- child prostitutes, with determined and strong
bates their situation (Teke 2016; Trafficking for personalities and the assistance of long-term
sexual exploitation 2017; Whiting 2014). adequate and meaningful support, have taken
To underline the ruthless nature of the control of their lives, completed school, found
exploiters, Kimberley (2017) reports of a good jobs, studied at a tertiary institution and
mentally disabled child who had to terminate married (Whiting 2014). However, under the
her pregnancy after she was rescued from a surface there will always be scars from their
human trafficking ring that operated in Port involvement in prostitution (Whiting 2014). An
Elizabeth (Eastern Cape). Apparently, several adult female who was rescued years ago from
children were rescued in July 2012 after the child prostitution (having been sold as a sex
police raided a house in an informal settlement slave in London) reflected on her experience by
where many under-aged girls were held as sex stating that “I feel like they’ve taken my smile
slaves and kept in dire conditions. A 50-year- and I can never have it back” (Whiting 2014).
old female was arrested for housing the chil- With regard to crime, many child sex work-
dren and allowing their exploitation. ers also commit offences for various reasons,
Child prostitutes are often labelled, discrim- such as robbery (i.e. of clients’ money and/
inated against and further abused (emotion- or wallet), assault (according to them only
ally abused due to their involvement in pros- to “protect” themselves from abuse/clients),
titution) by community and health workers hijacking, fraud, intimidation and even murder
(Whiting 2014). This exacerbates the trauma (Hesselink-Louw 2001).
The hidden ins and outs of the sex trade

The following OL article that originally appeared in the Sunday Tribune illustrates the reality of child
prostitution in South Africa as a case in point (Harper 2012: 1):
For 12 years Ruby’ lived alife of abuse, drugs, homelessness and prostitution. But two months ago she
joined the lucky few to escape the horrors of prostitution. She started out in the business when she was
14, while living at a homeless shelter in Durban’s Point district. An attractive dark-haired, brown-eyed
26-year-old, her arms are covered with scars and burn marks. There are more scars around her mouth.
All are testimony to violent assaults by her pimps. Hers is a horrific story of abuse and neglect, first at
home and later on the streets. Speaking to the Tribune at the Umgeni Community Empowerment Centre
Van Schaik
©publishers 321
in the Durban CBD this week, Ruby recalled how her suffering began with abuse from the people meant
to protect her.
When she was five years old, Ruby's mother abandoned her and her siblings. She cannot remember
a time when her father was around. She had to live with her grandmother, who often left her in the care
of an uncle. “My uncle started playing games with me. Then he began to touch me. It eventually became
full-blown molestation. This carried on for a while, until | told someone at school. They took me to a hos-
pital and found out | was telling the truth. He was eventually locked up, but that was when my problems
started. Members of my family, especially my aunt, blamed me for the allegations,” said Ruby, her eyes
welling up with tears.
After being bounced from one family's house to the next, Ruby decided to run away. She moved in with
a friend in Effingham and was able to get a job on North Beach. She was 13 at the time and so desperate
for money that she lied about her age to get the job. After a year, she decided to return home. “I was
working every day. Life was going great, but | decided to go home. | missed my grandmother because
she was all | knew. Everything was fine for a few weeks. But then things started going wrong. | could feel
| wasn't wanted and decided to leave again. This time | had no home or job. | had to live on the street.”
Several men offered to pay for her to live in a shelter. She didn't know it then, but these men would later
become her pimps. A woman she met in the shelter made her an offer she couldn't refuse. “This woman
told me that | could earn a living hustling on the street. | was only 15 and |! had no idea what that meant.
She told me what it meant. | didn’t want to do it, but | had no money or job, so | had to. | was dressed up
and told to just walk and if anybody stopped me tell them it was R150 a time. After a few months, | went
to live with my stepsister, taking care of her daughter during the day and working at night. But | fell out
with her and went to live on the street again,” she said.
This continued for five years and when she was 20 she fell pregnant with her first child. Her then boy-
friend was a male prostitute who had left for Jo’burg. She decided after the birth to give up her son for
adoption. “That was the hardest decision of my life,” she said. She soon took refuge in drugs and alcohol.
“At that point, | didn’t care. | was drinking and just going with the flow. Then| fell in with other pros-
titutes who were being run by a group of pimps. They had us hooked on rock [crack cocaine] and they
would beat us if we tried to run away. They would beat us until we were bloody and threatened to kill
us. That is what many people don’t know about prostitution — the way the pimps treat the girls.” Every
night she walked the streets she feared she would not survive. “! never knew how far Johns [clients] would
go —whether one would go over the edge and kill me.” And there was the constant spectre of AIDS. Final-
ly, a fearful Ruby managed to get away and find help at the Umgeni Community Empowerment Centre.
Ruby seemed to have turned her life around. She was off drugs and alcohol, had a stable job, and did
volunteer work as a hairdresser and masseur. She was in a relationship and looking forward to the birth
of her second baby, Leticia. But the joy would not last. “] gave up my job in October last year because |
thought | could get something better. That was a big mistake. | had everything going for me and | threw
it all away.
“l couldn't find a job and had to send Leticia to live with my brother. She eventually went to live with
her father's mother. | fell back into my old life,” said Ruby. In January this year she was staying with
three other women when they were approached by two Nigerian men who wanted to take them to
Jo’burg, and offered food, liquor, clothes and money. “We stopped in Hillbrow and in Midrand. They
said they wanted to go to Rustenburg before we left. When we got to Rustenburg, we were there for a day
>»
322
when | asked one of the guys when we were going home. He said to me, ‘Don’t you know | stole you?’
They made us smoke rock, and | refused because | was six months pregnant. But they forced me to,” she
said. Ruby was then forced to have sex with a man who had “bought” her for R500. Another deal was
struck and she “changed hands” and was forced to work as a prostitute to pay back the money that was
used to buy her.
When she gave birth to her third child, Jordan, two months prematurely, she knew she needed to
escape. She contacted the centre again and its staff got her back to Durban at the end of February. Since
then, she has been attending Alcoholics Anonymous meetings, and working at a massage therapy estab-
lishment in Umhlanga. She sees both her children regularly. She admits she has made mistakes and is
fighting to turn her life around. “On the street | heard about human trafficking, but | always blamed the
girls. | always thought the girls wanted to go with the pimps. Now | know it could happen to anyone. If |
have learnt anything, it is that | never want this life for my children,” she said. Joy Conradie, project man-
ager at the centre, said though Ruby's tale was terrifying, it was not unusual. “Once they fall into that life,
it’s very hard for them to keep out of it. The fact that she got out is amazing. Hundreds don’t — which is
the more terrifying thing, ” she said.
15.10 THE PREVENTION OF CHILD counterparts across the world (Geldenhuys

PROSTITUTION AND THE 2014c).
RESCUING OF CHILDREN In the modern era, everyone is pressured
for time. Parents and guardians often give
In 2013 the Prevention and Combating of Traf- children freedom to use electronic devices
ficking in Persons Bill, which explicitly focuses without realising the possible dangers they
on the prevention of human trafficking, came could encounter on the internet. Parents must
into effect (Wilkinson & Chiumia 2013). Sanc- monitor their children. They must report sus-
tions for human trafficking include a life sen- picious-looking people in their area, dodgy
tence (25 years), a fine and/or forfeiture of internet messages and missing children to the
assets (Heavy sentences for human traffick- police (Daily News Reporter 2012). Good par-
ing 2015). Prior to 2015, human traffickers enting (i.e. the involvement of parents, paren-
were prosecuted under substitute laws such tal supervision and monitoring practices) can
as the Sexual Offences Act or the Children’s be a valuable factor in shielding children from
Act, especially if the victims were minors and sexual abuse and involvement in prostitution
forced into prostitution (Heavy sentences for (Chothia 2016). Parents should know who their
human trafficking 2015). children’s friends are, what they are doing on
Modern technology allows for perpetrators the internet, who they communicate with on
of child pornography to be tracked, identi- social media platforms, and with whom they
fied and arrested (Geldenhuys 2014c). In this associate, and they should be alert about unfa-
regard, Interpol (an international policing agen- miliar vehicles and people in the neighbour-
cy) plays a pivotal role in the detection, iden- hood and at schools (Chotia 2016; Francke
tification and tracking of child pornographers 2017).
and images of child sexual abuse material. Children should be assisted in being com-
The International Child Sexual Exploitation mitted to school and church activities. Schools
image database (ICSE DB), is an intelligence and communities should increase organised
and investigation-driven instrument that uses and supervised recreational activities for
refined image comparison software to estab- children (especially in poor communities),
lish links between victims and places, and and parents, family members and community
allows investigators to share data with their leaders should advocate a child-protection
Van Schaik
©pubiishers 323
approach and policy by being involved the child’s involvement in and exposure to sex-
(through adequate supervision) in children’s ual activities; substance abuse; lack of skills;
lives (Chothia 2016). The best interests of chil- health risks (i.e. sexually transmitted diseas-
dren must be taken into consideration in order es, HIV/AIDS); and mental and psychological
to prevent effectively sexual exploitation and wellbeing; and need to take care not to judge
the prostitution of them. The roles of schools them further (Hesselink-Louw 2001; Neethling
concerning safety and life skills syllabuses 2007). Preventative measures need to be insti-
that directly target sex, gender and violence tuted on primary, secondary as well as tertiary
can be strengthened and updated to curb the level. The government cannot expect NGOs to
sexual exploitation of children (Chothia 2016). do this preventative and rehabilitative task on
The life skills syllabuses should also address their own.
substance and sexual abuse issues in society,
and programmes should be set up for adults as
well to make them aware of the link between 15.11 CONCLUSION
substance abuse and the sexual exploitation of The reasons why children become involved
children (Chothia 2016). in prostitution are abundant. Society is often
Important aspects when rescuing child sex not aware of how these children end up pros-
workers include the provision of the follow- tituting themselves — that is, being sold, lured,
ing services (Daily News Reporter 2012; Hes- recruited, captured and trafficked into the
selink-Louw 2001): sex industry. This chapter highlighted the
reality of child prostitution in South Africa by
e Alcohol and drug rehabilitation
addressing the incidence, occurrence, causes
¢ Food, shelter and clothing and consequences attached to child prostitu-
e Protection against pimps and clients tion. The chapter is supplemented with real-
¢ Legitimate work/employment life examples to illustrate the reality of this
phenomenon. Lastly, the prevention of child
¢ Counselling (i.e. to address PTSD/symp- prostitution and factors that play a role in the
toms and abuse) rescue of child sex workers was discussed.
¢ Important skills such as life skills, commu- The exploitation of children for sexual pur-
nications skills, conflict-resolution skills, poses remains a growing industry, and this
anger management and decision-making phenomenon is often viewed as a moral issue
skills rather than a societal phenomenon. Measures
e Education, as a considerable period (some- to combat child prostitution include the fight
times years) has often passed since their against HIV/AIDS, attempts to increase pub-
last school attendance lic awareness of the vulnerability of children
to prostitution, and reducing the “demand vs
¢ Medical assistance for, among other things,
supply” aspect of sex with minors. The most
exposure to abortions, sexually transmitted
important and far-reaching measure would
diseases and HIV/AIDS
be a reduction in poverty levels, which would
e Aftercare for their children, as research have a significant impact on the existence of
(Hesselink-Louw 2001) indicates that child child prostitution (Hesselink-Louw 2001; Prosti-
sex workers often have children of their tution - South Africa’s young street walkers 2016;
own (mostly those of pimps and clients) to Siegel 2016).
care for and support The community responds to child prostitu-
tion in a generally negative way, often rejecting
In order for children to exit prostitution, mech- such children, which leads to their further iso-
anisms such as places of safety, and/or organ- lation. It is also important to promote aware-
isations working/rescuing child sex workers ness to allow families to understand the dan-
need to be established. These facilities need to gers of children becoming involved in prostitu-
be sensitive towards the needs of children and tion, and to establish more organisations and
the risks they face. These children were often places of safety to “rescue” and rehabilitate
subjected to physical, emotional and sexual child victims (Chothia 2016; Hesselink-Louw
exploitation. Organisations need to address 2001).
Van Schaik
324 © publishers
CRITICAL QUESTIONS
1. Whatis the current incidence of child prostitution in South Africa?

Define child prostitution and child pornography.
SS
Explain the link between child prostitution, child pornography and human trafficking.
&
Discuss the causes of child prostitution.

Se
Who are the perpetrators of child prostitution?

What are the consequences of child sex work?
SA
How can child prostitution be prevented?
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326
Since 1994, South Africa has faced many chal- relevance to children. In fact, crimes against
lenges as a young democracy, and violent and by children are dealt with in a very specific
crimes as well as the high prevalence of chil- manner in South Africa. On paper, children in
dren involved in criminal activities are two of South Africa are treated in a sort of exclusive
them. Every year approximately 2,1 million way — they are the “future leaders”, the author
serious crime cases are registered at the South is often told. This exclusivity is being ques-
African Police Service (SAPS). The murder rate tioned by many scholars and practitioners as
in South Africa is of grave concern, as the coun- it appears that more and more children are
try has been in the global top 10 for its high becoming incorrigible, landing up in the jus-
homicide rate for all but two years since 2000. tice system. The use of violence by the young
The murder rate increased by 1,8% (19 016 people of South Africa to “communicate” with
people were murdered in South Africa between the authorities is worrisome. For example, the
April 2016 and March 2017), which trans- defacing of monuments as well as the violence
lates to + 52 murders per day. In 2013, South at schools and tertiary institutions regularly
Africa's murder rate was 5-8 times higher feature in the media. This begs the question as
than the 2013 global average of six murders to whether more than 20 years of democracy
per 100000 people (EWN 2017; Evans & Ver- has actually increased the problems South
ster 2016; South Africa crime stats 2016: Every- African youths faced before democratisation.
thing you need to know 2016). The desperation of many youths and the
The new constitutional dispensation puts seriousness of their misbehaviour are affirmed
fresh emphasis on the criminal justice system by the media in their daily news reports and
in all matters affecting the children of South stories of crime. The constant barrage of the
Africa. Many changes have taken place since level of youth misbehaviour in South Africa
1994, and different bills, interventions and has led to the apparent “normalisation” of using
strategies have been developed with specific violence as an instrument of communication
327
and to vent frustration. In addition, because sticks being driven up the accused's rectum,
of the culture of violence in South Africa, after which the sufferer was left in the veld to
community violence (taking law into one’s die (Van der Westhuizen 2011: 125). Today we
own hands), sexual violence (rape and sexual still hear of kangaroo courts and vigilantism.
assault) and domestic violence, many citizens We regularly read of xenophobic attacks and
have accepted violent crime and aggressive murder where children are also involved, muti
outcomes as “normal” everyday phenomena. murders and the “corrective” rape of lesbian
Violent crime and violence towards children women. There are frequent media reports of
have thus become a normal everyday occur- the sexual promiscuity of school-going chil-
rence or cognitive script for many in the home, dren, teenage pregnancies and young girls
in schools and in society in general, and this being “blessed” by adult men. The Constitution
is transferred from generation to generation. of South Africa is touted as the most advanced
The populist view of crime may create the in the world, and is supposed to protect every-
impression that it is behaviour that can easily one in society. The question is whether our
be explained. This, however, is far from reality, populace is in an appropriately moral place
and crime is in fact an extremely complex in order to understand and accept the pre-
phenomenon. This is especially true in South scription of such a document and whether
Africa because of its diverse population and everyone, children included, has the ability to
because traditional indigenous laws and beliefs achieve high-level socio-moral reasoning.
often clash with Westernised legislation and The paradox is that traditional beliefs and
practices. Child-rearing practices differ among customs clash directly with the First World
all the different ethnic groups in South Africa. Westernised ideas that are being propagated
In addition, adults differ vigorously on the best in newly promulgated laws such as the Child
ways to discipline children. Some say methods Justice Act and others. Can we achieve the
using kindness and understanding are better, high level of morality necessary to adhere to
while others advocate corporal punishment these laws according to the principles of ubun-
as the most effective technique. Different par- tu, or are these laws purely an effort to clear
enting styles contribute to different outcomes the conscience of our society so that we can at
with regard to the behaviour of children. least state that we have tried to give our chil-
Standards of behaviour have always been dren a special place and a voice in the justice
prescribed to people in society. In an attempt system? We are trying to keep children out
to maintain these standards, people who vio- of the criminal justice system; we do not use
lated the expected norms were penalised, corporal punishment as part of a disciplining
therefore punishment has always been part of agenda; and every child has the right to basic
society (Van der Westhuizen 2011: 125). In bib- nutrition, shelter, education, healthcare and
lical times, for example, offenders were stoned social services; the right to be protected from
or crucified. During the Middle Ages, political maltreatment, neglect, abuse or degradation;
and social organisations within Europe were and the right to be protected from exploitative
intertwined with religion, and even the crim- labour practices. Should children transgress,
inal justice system was based on religious our aim in South Africa is to divert them from
beliefs and customs. Crime was considered the system and not to detain them, except as
a private matter, and victims took personal a last resort, in which case in addition to the
revenge and meted out punishment to perpe- rights they enjoy, they may be detained only
trators themselves. However, this sort of jus- for the shortest appropriate period of time and
tice often led to blood feuds, which gradually must be kept separate from detained persons
resulted in the annihilation of entire families, over the age of 18. Is this enough to safeguard
therefore alternatives to dealing with crime- our troubled youth? Are we fighting a losing
related issues were eventually introduced. battle or are we winning by ensuring that all
Children never had a “special” place in earlier our youth grow up in a safe and secure envi-
justice systems. Pre-colonial society in South ronment where they are given the opportunity
Africa was violent at times - for example, the to develop healthy cognitive scripts of society
brutal punishment imposed on a tribesman and their fellow citizens?
found guilty of witchcraft involved sharpened The truth is that many youths derail and
328
CHAPTER 16 CONCLUDING THOUGHTS
become delinquent in South Africa because themselves alight to make statements about
of a variety of factors such as poverty, lack the gravity of the situation. These martyrs and
of opportunities, poor discipline and absent the collective resistance have become known
guardians. In addition, many youths sound mil- as a unifying endeavour and are referred to
itant and are still voicing the same sentiments as the “Arab Spring”. This radical collective
as they did prior to 1994. Many news reports stance against different governments is very
voice the sentiments of the African Nation- similar to the service protests in South Africa,
al Congress Youth League (ANCYL). Struggle the Marikana mine massacre and radical mes-
language is still being used, and the youth are sages echoed by youth leaders. What will the
being “mobilised”. In 2012 the then ANCYL dep- outcome be? Since the writing of this chapter
uty president Ronald Lamola alleged during a in 2012, protests have escalated, with the fig-
public lecture pertaining to youth unemploy- ure estimated to be just over 11 protests a day
ment that this issue could only be addressed (De Wet 2016).
as soon as land was expropriated. He stated Aside from all the controversies, insecu-
the following: rities and haziness of the current moral level
of the youth, this book will stay positive in an
The land question will not be won through effort to seek answers, and is concerned with
romantic acts. We need an act as force- the youth of our country and the factors related
ful as a war to bring back the land to the to their misbehaviour. The youth, however,
majority of South Africans .... We must form part of society and are therefore also
never suffer under the illusion that now subject to all the occurrences and conditions
it’s democracy, we will be able to reclaim that affect it. It has been stated that political
the land through peaceful means, through change, prejudice and moral views influence
peaceful acts (SABC2 2012). behaviour and cloud the ability of people to
think and act objectively. It may thus be that
During the struggle, people fought for a new in facing the current crime wave the perhaps
social order, which was attained. Now instead overzealous but relatively inexperienced
of enjoying the spoils of the new dispensation, authorities sometimes neglect important youth
it seems that our youth are still dwelling in issues, such as moral and cognitive develop-
the previous era of struggle and revolution- ment, and fail to advocate ubuntu principles.
ary ideas. Will the majority of youth reach The government and society are both guilty of
high-level moral thinking if the current repeti- neglecting youth matters.
tive negative genre is followed and vehemently Historically, the youth have been denied a
supported? Or are the youth spoiled and specific place in society and in criminal jus-
trapped in reverse gear which inadvertently tice, and the laws and procedures pertaining to
focuses on low-level moral thinking and per- children have been implemented without their
sonal interests? input, whether law abiding or derailed. This
Another question that beckons: is this in has led to youth governance in South Africa
some way a forerunner of a “South African being in a state of disarray, as past processes
Spring” similar to the “Arab Spring”? The mil- have not helped to curb crime among the coun-
itant stance of many youths and young peo- try’s youth. After the advent of democracy,
ple in South Africa can be compared to the many problems manifested in the governing of
unstructured civil action in the Middle East the youth in South Africa, and the face of youth
and North Africa. Citizens from Tunisia, Egypt, governance has changed dramatically in the
Libya, Bahrain, Yemen, Iraq, Jordan, Saudi past 20 years. These drastic changes include
Arabia and Syria question current govern- the way in which youths are processed and
ments in a very militaristic style. These gov- handled in the justice system. Crucially, the
ernments are caught up in a wave of activism, age of majority has been lowered from 21 to
demonstrations, resistance and calls for social 18 years, but whether children can be deemed
change. Citizens demand social justice, free- “adults” at this lower age remains an open
dom of expression, accountability by govern- question. Significant numbers of young peo-
ments, employment opportunities and better ple still live in extreme poverty with limited
service delivery. Some citizens have even set or no schooling and very few opportunities of
Onniien 329
changing their situation. It remains to be seen as well as section 56 (2)(b) of the Act, were
whether the government’s liberal legislation, unconstitutional.
for example with regard to the age of majority, Objectors feel that this ruling could have
in any way influences the social obstacles that far-reaching implications in the escalating
the youth in South Africa face. Also, provision rate of underage sexual activities and sexual
has been made for cases involving youths to violence among children under the age of 16
be handled separately from those of adults. years, as seen in many cases dealt with by law
The diversion of youthful offenders is cur- enforcement and our courts.
rently the preferred way of dealing with chil- The judge found that consensual sexual
dren, and the restorative justice process has activities between youths were of a wide range
become a popular tool for dealing with those of acts that would commonly be performed
in conflict with the law, but current indications by children engaging in ordinary sexual explo-
are that these approaches are failing. “Repair ration such as “French” kissing. He held that
instead of punish” is the favoured approach criminalisation would constitute an unjusti-
when dealing with youths. fied intrusion of control into the intimate and
By implementing this approach, it is hoped private sphere of children’s personal relation-
that derailed youths will eventually become ships, in a manner that would cause severe
hardworking citizens who contribute to the harm to them.
economy of the country. Whether such errant Supporters of the ruling applauded this as
youths are morally able to have insight into recognition of children’s right to dignity and
the destructiveness of their behaviour and the privacy, and their right to participate in deci-
clarity of mind and willingness to repair their sions about sexuality. They feel that profes-
situation is a moot point. Unfortunately, some sionals and parents are now able to provide
youths become calloused and hardened repeat children with the necessary support and guid-
offenders at a young age, and it seems as if ance about sexuality, and to make informed
therapeutic intervention has no effect on them. decisions without fear of incriminating the
They often manifest with psychopathic traits child or themselves. Also, the judgment pro-
such as lack of remorse, empathy or regret. moted the best interests of children and pro-
They do not learn from previous punitive mea- tected them from being violated by the very
sures, and show no respect for authority. The system supposed to protect them (SAPA 2013).
criminal justice system usually has no answer This ruling will cause dilemmas in court in
for such hardened young criminals. Bartol and future. A good example of this is a case that
Bartol (2017: 2018) state in this regard that recently made headlines. In August 2017 a
“recent studies continually find support for 19-year-old student was charged with statutory
the existence and validity of psychopathy in rape after allegedly having sex with a 12-year-
the young, and it seems to remain stable from old girl in Sunnyside, Pretoria (Mabena 2017).
age 7 to at least age 24”. Perhaps the so-called The dilemma is that the ruling by Judge Rabie
underlying factor in some youth plays a role in deemed punishing “consensual penetration”
this continued incorrigible behaviour. between children younger than 16 and older
In addition, moral freedom with traits such than 12 unconstitutional and therefore not
as a lack of remorse could impact on several a crime. This college student was 19 years at
levels of that type of child’s life. Status offences the time of writing which implies that adults 18
and incorrigibility will become the norm and years and above will be held criminally liable
not the rule. Moreover, certain legal decisions for engaging in sexual activities with minors
could indirectly stimulate status offences. below the age of 16 years. This leaves one with
For example, the recent ruling by Judge Pierre the question: what about the same scenario,
Rabie in the North Gauteng High Court in but with the perpetrator being 17 years of age
Pretoria against certain sections of the Sex- and not an adult?
ual Offences Amendment Act could have an The ruling does not affect or deal with any
adverse impact on our youth. Judge Rabie acts of sexual violence perpetrated by chil-
ruled that sections 15 and 16 of the Act, which dren. It deals exclusively with consensual
criminalise “consensual penetration” between sexual acts between children, and any non-
children younger than 16 and older than 12, consensual violent sexual offences commit-
Van Schaik
330 ©publishers
__ CHAPTER 16 CONCLUDING THOUGHTS
ted by children would still be dealt with in the macy that it once had and this leaves a huge
criminal justice system. However, the Depart- gap in the lives of youths that desperately
ment of Justice is adamant that the judgment needs to be filled”. Children find themselves
had far-reaching implications in the escalating in a materialistic, unconcerned society that
rate of sexual violence among children under craves material possessions and spurns the
the age of 16 years. Aside from the new “sexual poor and marginalised, treating beggars, street
freedom” after the ruling, the young people of children and the like as outcasts.
our society do face a number of other serious Personal success is determined by what a
challenges. Although reliable statistics regard- person drives and earns, and where he or she
ing sexual violence among children are not lives. These materialistic standards also apply
available, we need to accept that a high rate to our youth: being able to wear designer
of sexual violence against girls in the 12- to clothing, own a cellphone and be financially
17-year age group is a reality in South Africa. independent are ideals that put a huge burden
Girls within this age group are in adolescence on youths who are often not able to compete
and are developmentally in a critical peri- on that level. Those who can (usually middle-
od of their lives. Unfortunately for the girls, and upper-class youths) often become bored,
many boys learn about sex in the peer groups and pursue alternative leisure activities such
they frequent (Petersen, Bhana & McKay as alcohol and drug abuse. Material obsession
2005: 1234). These peer groups often host has caused many ills in South Africa.
antagonistic attitudes and behaviours about The craze, which is currently escalating
sex and gender, which could contribute to the within townships in South Africa, is the ruining
existing sexual aggression problem that exists of expensive goods. This is an act performed
in South African society. by a group of youths and is called ukukhotha-
Moreover, children are increasingly sub- na, which loosely translated means “to lick”.
jected to pull factors in society, for example The partakers in this event are called izik-
peer group drug and alcohol use, high-risk hothane (“lickers”). The youths will converge
leisure-time activities such as train surfing, at a corner within their area to brag to each
and promiscuous sexual activities, as well as other about their branded clothes or other
exploitation by adults who pay children for expensive articles.
sexual favours (“blessers”) or traffic them with They also brag to each other about who
the promise of, for example, a job opportunity. has a better and more lavish lifestyle and who
They are also becoming progressively more has more money. The bragging is probably not
involved in serious offences such as murder, the problem, but the youths are usually from
rape, robbery and hijacking. impoverished backgrounds. The izikhothane
The endemic use of drugs (e.g. dagga and arrange a gathering to compete in order to
tik) and alcohol among the youth in South ascertain who the better izikhothane group or
Africa is a further cause for concern. Newer individual is. In these gatherings, the youths
drugs such as nyaope and whoonga are grow- will burn expensive jewellery, clothing and
ing in popularity, and slowly impacting on actual banknotes. They will buy and destroy
our youth at different levels, for example in the goods by stepping on them, setting them
their psychological and emotional develop- alight or throwing them around. They will even
ment. It goes without saying that these drugs buy food and crush it with their feet. Those
are also impacting on their general health and who take part who can afford it will probably
behaviour. not go out and steal luxury items to take to a
Children and young people who grow up gathering since they have the monetary means
in informal settlements and other under- to buy them. However, poor youths who would
resourced living areas where crime flourishes like to take part must either borrow money
are exposed to violence and criminality daily. from their poverty-stricken parents or inno-
There have been extreme changes in per- vate by stealing expensive shoes or clothes
sonal relations and values between children from stores that stock certain branded names.
and their parents or guardians. According to More often than not, parents are not aware of
Marx (1992), “the traditional authority of the this expensive game their children are com-
parents and teachers no longer has the legiti- peting in. The izikhothane usually do not work
@v20 Schaik
Publishers} 33]
and therefore depend on their parents to feed and cellphones (Facebook, MXit, Snapchat and
this pastime. Some of the parents are domestic WhatsApp) pose serious challenges to chil-
workers or pensioners, and some are unem- dren and to their parents and caregivers. The
ployed. Some youths pressure their parents WhatsApp Messenger service, for example, is
or guardians for money and will even assault a cross-platform mobile messaging application
them to get the necessary funds to be able to which allows the exchange of text messages
compete in the “event” (Skhokho-Mhlongo without having to pay for them. Free Wi-Fi net-
2011). (Also see Chapter 3.) works compound the challenge. In addition,
Moreover, a brutal society and huge indus- even television and the many different channels
tries has commercialised girls’ bodies, which available to the public should be seen as a risk
causes insecurity in food consumption and factor. Using cellphones and the internet can
other choices girls have to make (Orbach have a negative impact on the grammar and
2013: 111). In addition, many girls develop language ability of the youth, as abbreviations,
eating disorders and a distorted perception emoticons and incorrectly spelt words are key
of beauty, sexuality and body form. Some aspects of this slang language. Furthermore,
youths willingly engage in pornography, even children are not necessarily safe while they are
selling nude pictures of themselves via their surfing the Web, as sexual predators use the
cellphones to fellow learners or adults. In internet to gain access to children who have
short, many young people are confused, face unwittingly shared their personal details with
many challenges and do not have the emotion- others through chat rooms (Campher & Bezuid-
al intelligence to cope with the demands of enhout 2007). This impact negatively on fam-
modernity. This is exacerbated by the absence ily time as children will fiddle with electronic
of appropriate parenting. gadgets during family meals or gatherings.
Some youths even become addicted to Youths tell me they cannot “survive” without
abnormal games or practices such as “the being connected all the time. If this is true family
choking game”. This game, also known as auto- bonding and attachment will definitely suffer.
eroticism, refers to self-gratification of sexual Children who have access to television, Play-
desire without a partner (Bartol & Bartol Station and other electronic games spend many
2005: 327). In slang terms it is also known as hours using such devices, and thus become
“the pass-out game”, “dreaming”, “space mon- housebound and physically inactive, which can
key”, “space cowboy” and “suffocation rou- eventually lead to obesity. This inactivity also
lette” (Engelbrecht 2007: 1). There are four ver- impacts on their hand-eye coordination and
sions of the game, namely autoerotic hanging general health. The rapid growth of the fast-
(e.g. with a string noose), aqua eroticism (e.g. food industry, hours spent watching television
near drowning in a bathtub), chemical eroti- or playing electronic games, and the decreasing
cism (e.g. the use of freon gas) and self-suffoca- time devoted to participating in traditional past
tion (e.g. holding breath in). times outdoors are most probably impacting
The main aim is oxygen starvation during on rising obesity levels among children from all
masturbation to a point of almost losing con- races in South Africa. As television viewing time
sciousness as it is believed that starving the increases, the time spent on physical activity
brain of oxygen produces a more intense decreases and the prevalence of obesity rises
orgasm (Bartol & Bartol 2005:327). While (Crespo & Smith 2003: 9), thus there is a cor-
some youths have caused their own death relation between the hours spent watching tele-
through these practices, new games of a sim- vision and an increase in the viewer's weight.
ilar type develop because young people are The American Association of Pediatrics recom-
bored and lack opportunities for self-develop- mends that the time spent by children watch-
ment and facilities for leisure activities. Many ing television and playing computer games be
youths do not have positive role models and limited to a maximum of two hours a day and in
are not involved in healthy programmes such total not longer than eight hours a week. This
as school sports or religious activities (e.g. a is not the case in South Africa, where children
church camp). watch television on an average of four hours a
Technological advances such as computers day (Coertze 2013: 35). Furthermore, the more
and the internet (chat rooms) as well as tablets time children and adults spend watching tele-
332 onnias
vision, the more exposure they will have to social challenges many youths face. Since
advertisements that promote food. Lobstein it has become more socially acceptable for
(2013: 49) highlights the fact that “the food women to pursue a career rather than stay
industry encourages over-consumption of junk home to take care of their children, youth
food”, and many children fall victim to junk food crime has escalated. Although this is often eco-
marketing strategies (e.g. the supply of toys nomically necessary and not by choice, long
with every meal for children). Allowing chil- times away from infants and children can have
dren to play video games compulsively should an effect on their development and socialisa-
be seen as a form of neglect. Video gaming is tion. Garland (2001: 160) also attributes this
one of the most popular modern pastime activ- to, for one thing, the entering of middle-class
ities that the youth engage in for recreation- women into the economic sector for a better
al purposes. Dr Timothy Sim (Guest lecture household income. A family with a dual income
on pathological gaming, Department of Social can acquire more luxury goods, but if both
Work and Criminology, University of Pretoria, the husband and wife are away at work, their
07 August 2017) emphasises that youth engage- home becomes more attractive and vulnerable
ment in video gaming is in the vast majority of to crime. When both parents are at work, there
cases not problematic and that it fact has been is usually no proper guardian to guide the chil-
proved to improve, amongst others, hand-eye dren through the difficult and challenging pro-
coordination, cognitive skills as well as social cess of growing up on a daily basis.
and communication abilities amongst youthful This means, therefore, that while the finan-
gamers. However, video game “addiction” or cial or material needs of most middle- and
problematic/pathological video game engage- upper-class households can be met, the emo-
ment occurs globally and evidence exists that tional needs are usually neglected in these
a small minority of youth appear to develop a families. Middle- and upper-class children
number of problems as a result of excessive spend most of their childhood in day-care
gaming. Engagement in video gaming becomes facilities or with a nanny. This implies that
pathological or problematic when such engage- secondary role players raise the children, with
ment leads to the functional impairment of an the parents as primary onlookers. While many
individual in terms of it having a direct impact parents question the methods these secondary
on their daily functioning in various spheres role players use and often complain about the
of their life, for example school, social, fam- negative influences their children are subject-
ily, occupational and psychological. Patho- ed to in day-care facilities or at pre-primary,
logical gamers spend approximately 40 hours primary or secondary schools, they rarely
per week playing video games compared to become involved or try to change the state of
19 hours per week for gamers who are not affairs. Their obsession with either survival
considered to be pathological gamers (Sim, (low class) or materialistic gluttony (upper
2107). Outcomes of pathological play identi- class) causes many parents to neglect their
fied are depression, suicidal ideation, anxiety, children completely.
social phobias, sleep disturbances, irritability, Children are also the secondary victims of
exhaustion and poor school performance (Wit- domestic violence between spouses, be they
tek, Finseras, Pallesen, Mentzoni, Hanss, Grif- the parents, guardians or caregivers. Such
fiths & Molde, 2015). It should be noted that children are vulnerable and in a very awkward
although pathological video gaming has as yet position as sometimes they have to defend
not been officially identified as a form of addic- one parent or choose sides in such situa-
tion, it is estimated that in countries like Sin- tions. Children may be hurt or belittled during
gapore approximately 9% of all video gamers domestic violence, and the emotional scarring
meet the standards of the American Psychiatric they incur in these encounters usually affects
Association for diagnosing gambling addiction their functioning in other areas of their life.
(Sim, 2017). Young males seem to be more at Because of their powerlessness in these situa-
risk of pathological video gaming than young tions, youths often act out their frustration by
females. running away or showing destructive or with-
There are, however, also other factors in drawal behaviour. Childhood is seen as a very
our society which contribute to the current sensitive time in human neuropsychological
Van Schaik
© publishers 333
development, and any form of abuse can have lead to fights, often with fatal consequences.
acute influences on the moral development of Safety in schools is of grave concern to parents
a child (Knapp van Bougaert 2012: 17). and other role players, as schools should be
Many children in South Africa have to run safe havens for academic discourse, and for
households in the absence of parents. In some acquiring life skills and moral growth. However,
cases, older siblings have no choice because many schools have become war zones where
their parents have passed away (e.g. from HIV/ gangs and drugs are part of everyday life, and,
AIDS). However, in some cases parents leave sadly, so is crime. This is a current challenge
their younger children in the hands of the in the Western Cape where gangs are locked
older children, as they have no choice but to in drug wars, turf wars and the provision of
work away from home to ensure an income. nightclub security. To scare or remove the
This places a burden on children for which competition, drive-by shootings and assassina-
they are not prepared, and they often have to tions occur regularly. Turf wars even manifest
develop survival strategies such as begging in schools, and scholars are often killed, either
and committing crime to ensure their own sur- because of retaliation or during the cross-
vival. Emotionally and psychologically, they fire between rival gangs. In some instances,
are challenged with issues which even some one youth gang member will kill another youth
adults find difficult to handle (Louw 2008: 219). because of competition for or the inability to
Even schools have been affected. A phe socialise with a specific girl. Jealousy and terri-
nomenon that has raised its head in South toriality play a significant role in these attacks
African schools is bullying and fighting. School in schools.
fights take place regularly, and these and other Suicide among the youth is also on the
acts of violence often spiral out of control, as increase. According to the Health24 website
evidenced by media coverage. Stabbings and chttp://www.health24.com), “adolescents have
shootings take place between learners within to deal with physical, social and academ-
a specific school or from rival schools. During ic changes and may thus easily feel over-
2012, a Grade 11 learner, using the official whelmed”. The pressure to fit in, pressures at
firearm of his mother, a metro police officer, home and the inability to adapt to change can
shot and killed a fellow learner he accused of cause feelings of loneliness, and may cause
bullying him (SAPA 2012). It is true that some children to become alienated from their peers
teachers bully scholars in different ways. Some and guardians. Suicide might sometimes be
bully emotionally while others still use cor- seen as the only alternative in this desperate
poral punishment to bully. Corporal punish- situation.
ment has been declared unconstitutional in A significant number of South African
South Africa but is still being used frequently youths are in dire situations and can fall vic-
in schools. Moreover, teachers also fall prey tim to desperate thoughts and behaviour.
to bullying by scholars, usually by means of Young people may struggle to develop positive
insults, name-calling, refusal to cooperate, self-esteem and this often contributes to a neg-
sexual harassment, assault or damage to their ative self-image and poor school performance.
belongings or vehicle. In this regard, Kaup- Unfortunately, a significant number of these
pi and Pérhdla (2013: 118) state that “when a desperate youths often think that suicide is the
student bullies his or her teacher, there exists only way of addressing their situation.
a situation where a party holding an inferior Furthermore, many young people find it
status position within the institution bullies a very difficult to obtain employment and earn
party holding a superior status position”. This an income in South Africa. Throughout the
is probably also true when young people dis- world, young people who are not yet employed
rupt academic programmes at universities, often depend on an allowance or pocket
attack and insult academic personnel, deface money from their parents; however, poor
monuments or damage property on campus, parents or guardians who can hardly fend for
such as the firebombing of buildings. themselves do not have the financial means
Another challenge in South Africa is when to give such benefits to their children. In addi-
learners gate-crash parties or other social tion, job opportunities are scarce for the mar-
events of neighbouring schools, which may ginalised and for certain race groups in South
334 (Onsite
Africa. Many children are left with guardians Psychology has shown that one of the great-
(e.g. a grandmother) or older siblings in rural est needs of a child is the security a father can
areas while their parents (or single parent - offer. In many cases in South Africa this need is
mostly the mother) look for work in the towns never fulfilled, and this causes confusion, anger
or cities. and emotional problems in children. Sigmund
The absence of proper guardians and ade- Freud believed that “by the age of five, all of
quate care is often the reason why children the essential ingredients of a child’s adult per-
become aberrant during childhood. Their sonality are determined” (Bartollas 1997: 110).
acting-out behaviour usually meets with social This implies that children who are confused,
disapproval and they are then subjected to angry and in need of nurturing and securi-
the inadequate judicial system in South Africa. ty will go through their different life stages
We should be asking whether their behaviour with these unfulfilled feelings. According to
should be investigated, and should try to Freud, such persons can be expected to misbe-
determine whether the youth of today are the have because of the neurotic development of
victims of the current system. It seems that their personalities. Children start to suppress
social disorganisation, coupled with absent or all their negative emotional feelings of rejec-
poorly skilled parents, sets the youth of South tion, abuse, neglect and insecurity, and to use
Africa up for failure. violent actions to get some form of control in
Converse to the unemployment situation is their own lives.
that a significant number of youths are being The solutions that the current judicial sys-
used for cheap labour. Companies and private tem offers are usually simplistic. The truth
individuals alike are guilty as they turn a blind is that the phenomenon of crime and misbe-
haviour by children is an extremely complex
eye to the dire situation of such children so
one that is not fully understood. We do not find
that they can exploit them. In Chapter 5 youth
conclusive answers in psychology, sociology,
offenders actually stated that a low-paying,
psychiatry, anthropology, social work, crimi-
mundane job was often an additional reason
nology or any other discipline alone. Although
why they committed crime.
the government claims that South Africa has a
While people are aware of many of the
separate juvenile justice system with specific
above problems, it is the way in which society
reference to a separate youth court, this is not
judges behaviour that determines to a certain
entirely true. Matters pertaining to children
extent whether an action is considered crimi-
are still processed in adult courts by adults
nal and, if so, what punitive measure is regard-
who work with adult criminals.
ed as appropriate. Even if there is consen-
Youth offenders need a completely separate
sus that certain actions have to be regarded building with different personnel who work
as criminal, it is accepted that all offences are with children exclusively. At present children
not equally serious. Worldwide the view is are not getting their own justice and it is key
held that violent crimes (e.g. rape) have to be that everyone who is governed by one system
regarded more seriously than misbehaviour by should have a voice in that system. The youth
children (e.g. rebelliousness). of South Africa should be encouraged to stand
However, criminal and/or serious misbe- up and champion for themselves. If our youth
haviour by children is intriguing as it arouses had more opportunities and if they grew up in
interest, and yet saddens, repels and fright- safe homes that addressed their many needs
ens us. Violent crime by children is especially during their formative years, the current con-
frightening and difficult to believe. We all cept of the so-called lost generation would not
would like to know what causes children to be relevant.
indulge in serious criminal behaviour, how it The good news is that the Child Justice Act
can be prevented and how we should manage has the potential to make dramatic changes in
those who commit serious crimes. The ques- the handling of derailed children. Moreover, it
tions that behavioural sciences scholars try makes provision for the establishment of one-
to answer are the following: what causes mis- stop child justice centres, which are special-
behaviour by youths? How can their misbe- ised institutions geared towards streamlining
haviour be curbed? What should be done with the whole child justice process within the con-
these non-conformists? fines of a single building.
One
335
These concluding thoughts aim to high- caregivers, and children should grow up in a
light the difficult situation in which South safe and healthy atmosphere. Children should
African children find themselves. Although never have to face the atrocities that current
some children derail and come into contact society sometimes hurls at them.
with the mechanisms of criminal justice, many The authors hope that the fourth edition of
youths miraculously make it through the many this book will bring new insights into the dif-
challenges they face en route to adulthood. ficult challenges facing our youth. Some new
According to Bartol and Bartol (2017: 170), problems that were raised in the final chap-
only a small percentage of the youth popula- ter of the third edition were addressed in this
tion engages in serious delinquent behaviour. fourth edition. We hope that the insights in
It is the contributing factors (e.g. absent par- this book will assist in understanding the many
ents, pull factors in society, poverty and low factors that are devouring the healthy develop-
self-esteem) that should become the main ment of our youth and depriving them of their
focus of society and the government. Parents innocence and what should be trouble-free
should rethink their roles as providers and young lives.
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murder rate up 1,8%. Retrieved 25 November 2017 lem-of-anomie-and-the-role-of-youth-organisations
from http://www.ewn.co.za/2017/10/24/south-afri- Orbach, S. (2013). The commercialisation of girls’ bod-
ca-murder-rate-increases ies. In J. Wild (Ed.), Exploiting childhood: How fast
Garland, D. (2001). The culture of control: Crime and food, material obsession and porn culture are creat-
social order in contemporary society. Oxford: Oxford ing new forms of child abuse. London: Jessica King-
University Press. sley, 110-115.
Ox; Schaik
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Petersen, I., Bhana, A. & McKay, M. (2005). Sexual Skhokho-Mhlongo, L. (2011). The lickers. Retrieved
violence and youth in South Africa: The need for December 2012 from http://www.expressimpress.
community-based prevention interventions. Child org/2011/04/11/the-lickers
Abuse & Neglect, 29(2005): 1233-1248. South Africa crime stats 2016: Everything you need to
SABC2. 20 June 2012 (08:25). Land won't be reclaimed Rnow. 2016. Retrieved 24 June 2017 from http://
through peaceful means: Lamola. Retrieved Decem- www. businesstech.co.za/news/general/
ber 2012 from http://www.sabc.co.za/news Van der Westhuizen, M. (2011). Criminological the-
SAPA. (2012). Boy takes mom's gun to school: Kills ories. In C. Bezuidenhout (Ed.), A southern Afri-
“class bully”. 21 November. Retrieved 23 March can perspective on fundamental criminology. Cape
2013 from http://www.sowetenlive.co.za/ Town: Pearson (Heinemann).
news/2012/11/ 21/boy-takes-mom-s-gun-to-school Wittek, C.T., Finseras, T.R., Pallesen, S., Mentzoni, R.A.,
SAPA. (2013). Child sex ruling welcomed. 16 January. Hanss, D., Griffiths, M.D. & Molde, H. (2015). Prev-
Retrieved January 2013 from http://www.news24. alence and predictors of video game addiction: A
com/SouthAfrica/News/Child-sex-ruling-welcomed study based on a national representative sample.
Sim, T. (2017). (Guest lecturer on pathological gam- International Journal of Mental Health Addiction (23
ing. Department of Social Work and Criminology, September 2015). Springer Online.
University of Pretoria, 7 August 2017). Dr Sim is an
Assistant Professor of Applied Social Science at the
Hong Kong Polythechnic University.
Van Schaik
© Publishers 337
Glossary
accessory after the fact — a person who, after the ing a child to be sexually abused by someone else;
commission of a crime, unlawfully and intention- bullying by another child; subjecting a child to
ally enables the perpetrator or accomplice to evade labour (work) that is not age appropriate, or is too
liability for it difficult; or subjecting a child to behaviour that may
accomplice — a person who unlawfully and intention- harm the child psychologically or emotionally
ally furthers a crime committed by the perpetrator Child Justice Act — an Act which aims to establish a
affective empathy — an emotional response that criminal justice system that has as a central feature
manifests in feelings of concern for another individ- the possibility of diverting matters from the criminal
ual and the desire to assist that person in alleviating justice system, and that expands and entrenches
his or her distress the principles of restorative justice, while ensuring
arrest — the lawful limitation of a suspect's freedom of that children are held responsible and accountable
movement for offences they have committed. It further recog-
nises the need to be proactive in crime prevention
assessment — an evaluation of a child and his or her
by placing increased emphasis on the effective
circumstances, in this context with a view to advis-
rehabilitation and reintegration of children in order
ing criminal justice professionals about whether the
to minimise the potential for re-offending,.and bal-
child is a candidate for diversion, and if not,
ances the interests of children and those of society
whether the child can await trial at home in the
with due regard for the rights of victims
care of his or her family
assistance — helping or enabling somebody to per- child justice system — the set of procedures and
intersectoral services designed to manage children
form certain actions
who are accused of crimes through the various
attachment — consistent affection and care that
stages of apprehension, pre-trial and trial, pre-sen-
develops an emotional bond between a child and
tence and sentence, appeal and monitoring
his or her parents or primary caregivers. This is a
fundamental part of normal behavioural and social child prostitution — the involvement of any child
development in all children under the age of 18 in providing sexual services of
any nature for compensation — financial or other-
awareness — is a fundamental aspect of human's
wise
mental experiences with which they have the subjec-
tive sense of knowing or being. It can be a subjective child sex work — a term which is interrelated and
felt sense, a knowing and a known synonymous with the term “child prostitution”
and includes any child under the age of 18 who is
biochemical factors — factors that are genetically
involved in providing sexual services of any nature
predetermined, as well as those that are acquired
for compensation — financial or otherwise
through diet and environmental contaminants,
and which have been linked to criminality children’s court — a creation of the Child Care Act 74
biosocial factors — physical and mental traits, the of 1983, which operates in the sphere of private law
social environment and behaviour chivalry hypothesis — the notion that decision mak-
causes — a set of facts, information, circumstances or ers in the criminal justice system treat women differ-
conditions that would predispose a person to crimi- ently and are less likely to process them formally
nal behaviour chronic juvenile offenders — a smal! number of
child abuse — any form of harm or ill treatment youth offenders who commit a significant percent-
deliberately inflicted on a child, including physical age of all serious crimes
violence or inflicting any other form of deliberate classical school|/|classicism — an approach to the
injury to a child; sexually abusing a child or allow- study of crime and criminal behaviour, which is
338
GLOSSARY
underpinned by the notion of rational action and detention — the lawful limitation of a person's free-
free will. Alongside the concept of individual choice dom of movement in a recognised institution
as a core assumption is the idea that punishment development — the physical, mental (cognitive), emo-
should be proportionate to the criminal act, and tional (affective) and moral changes that occur ina
viewed as a deterrent. This school of thought person’s life from birth to death
developed in the late 18th and early 19th century
disorganisation — a lack of consensus, norms and
by reformers who aimed to create a clear and legiti-
values, social support and community integration,
mate criminal justice system based on equality
and the inability to adjust to social change
cognitive empathy — the ability to understand
diversion — the channelling of children away from the
another person's frame of reference without being
formal court system into reintegrative programmes.
blinded by one’s own point of view
This is a way of getting children to take responsi-
cognitive script — a thought process that determines bility for what they have done without taking them
how a child has learnt to behave in response to through courts and prisons. If a child acknowledges
environmental stimuli and what the outcome of responsibility for the wrongdoing, he or she can
that behaviour is. Once a cognitive script has been be set specific tasks, be required to attend a pro-
“programmed” into the memory, it eventually gramme or in some way be made to put right what
becomes very resistant to change he or she has done wrong
community youth development-— a philosophical, doli capax — with criminal capacity
sociological and educational movement to harness
the power young people bring to effect community doli incapax — without criminal capacity
change and, similarly, to engage communities in drug use and abuse — the taking of substances
embracing their role in the development of children and the psychological and behavioural effects that
control/social control — a sociological approach to can result in impaired judgement and paranoid
understanding the causes of conformity, focusing thinking that markedly impair coping mechanisms
on the ability of society and its institutions such as which may otherwise protect against aggressive
family, peers and schools to restrain individuals episodes
from deviance. The basic premise is that conformity early onset — in misbehaviour terms, the commence-
results when societal ties are strong, thus social ment of a criminal career under the age of 10
institutions have the ability to influence human economic deprivation — the discrepancy between
behaviour, and the justice system is the primary current economic welfare and economic expectation
agency of formal social control
egalitarian family — a family in which the husband
corporal punishment — the infliction of punishment and wife share equal rights
in the form of whipping or caning as imposed by a
emotional poverty — the deprivation of emotional
court of law
resources that normally come from healthy nurtur-
crime — conduct that is prohibited by law and punishing and supportive human interaction
able by the state
fault — the grounds for blaming the perpetrator per-
crime involvement — taking part in criminal or anti- sonally for his or her unlawful conduct
social behaviour
feminism — the representation of both a worldview
criminal capacity — the mental ability to realise and a social movement that focus on certain
the nature of one’s conduct and to appreciate its assumptions and beliefs about the origins and con-
wrongfulness, and to act in accordance with this sequences of a gendered society. It is a movement
appreciation for the social, cultural, political and economic equal-
derivative offending — enjoying the benefits of the ity of women and men. It is a campaign against
offending behaviour of a primary offender by asso- gender inequality and it strives for equal rights for
ciation or extension (i.e. without engaging directly women. It is not, as is popularly believed, about
it) taking rights away from men, but about extending
even Schaik
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GLOSSARY
rights and freedoms to women so that they may juvenile court— criminal court where persons
have all the same opportunities as men, and be free under the age of 18 are tried. Currently in South
from harm Africa there are no special juvenile courts — adult
gang formation — the processes involved by which courts simply become juvenile courts and the hear-
individuals become members of a gang ings are held in camera
gender — an identity that is learnt, that changes over learning (theories) — a theoretical perspective based
time, and that changes from one place, culture or on the assumption that all social behaviour, includ-
society to another. Hence gender is both a social ing criminality, comes about through a process of
construct (something made up) and personal iden- learning, primarily by observing and listening to
tity. In social terms gender refers to the socially cre- people around us. It posits that misbehaviour is
ated roles, personality traits, attitudes, behaviours learnt through human interaction
and values attributed and acceptable for men and legislation — laws made by the legislative body or
women, as well as the relative power and influence the state to which all citizens are subject in order to
of each. That means that gender is relational ensure a law-abiding country and population
(occurs in relation to something else) and refers not low-level socio-moral reasoning — a decision-
simply to women or men but to the relationship making process motivated by fear of consequences,
between them personal interests and interpersonal relationships
high-level socio-moral reasoning — a decision- moral development — a lifelong process, influenced
making process motivated by support for social by social institutions such as the church and family
order, rights and responsibilities as well as ubuntu as well as personal experiences, during which a per-
(i.e. recognising that a person is a person because son learns to acquire forms of pro-social behaviour
of other people) such as being sympathetic, cooperative, helpful and
hostile attribution bias — the likely interpretation comforting
of ambiguous actions as hostile and threatening. negligence — a form of fault where a reasonable
Children with this bias are twice as likely as their person in the perpetrator's position would have
non-hostile counterparts to see or interpret innocent foreseen the possibility of a negative outcome and
behaviour from a peer as a hostile action would have taken steps to prevent it
human trafficking — the buying and selling of neoclassical (criminology) — a contemporary
human beings for the purpose of making a profit or version of classical criminology that places more
obtaining a free service, catering to the supply side emphasis on deterrence and retribution than on
of the demand for cheap and dispensable human rehabilitation, supporting the basic (classical)
beings, either for a variety of sexual purposes or in doctrine of human nature, namely that people are
labour exploitation guided by reason and have free will, and are there-
industrial schools — institutions for children or fore responsible for their acts and can be controlled
youths displaying problem behaviour that are used through fear of punishment
as an alternative to imprisonment neopositivism — an approach that continues the
integrated theories — the act of linking different positivist tradition and encompasses the more con-
theoretical arguments or combining two or more temporary developments within this sphere, repre-
sets of logically interrelated propositions into one senting individualised explanations for criminality
larger one in order to provide a more comprehen- neuroplasticity — entails the ability of the brain to
sive explanation for crime and criminal behaviour. change its structure in response to experiences
Different theories are combined through integration obedience to orders — a ground of justification
as a way of reducing the number of theories in excluding unlawfulness where the perpetrator, in
criminology committing the crime, was merely a subordinate
interpreting statistics — analysing and contextualis- who executed an order given to him or her by a
ing statistics to understand their meaning superior
340
— eee eee
passive offending/ acting — a situation where probation officer — a social worker who works with
someone is complicit in an offence without actually families and communities in the fields of crime pre-
committing it and does nothing to prevent it vention, treatment of offenders, and the care and
pathway — an evolving developmental growth- treatment of victims of crime
related direction that a person acquires during their recidivism — a relapse into crime
lifecycle reformatory — a penal institution for the reform of
patriarchal family — a pattern of family relation- young offenders
ships in which the father is seen as the undisputed
resilience — an active rather than a passive orientation
head of the household
to problems, persistence in problem solution, flexible
peer associations — children’s friends who give them strategies to respond to problems, and the ability to
emotional support and in whom they can confide elicit assistance from family and other adults
intimate feelings without fear of betrayal. Later, in
restorative justice — holding offenders accountable
adolescence, peer approval has a major impact on
through getting them to acknowledge what they
socialisation, and there is persistent pressure to con-
have done wrong, often through facilitated pro-
form to group values
cesses that bring them face to face with victims, and
personality — patterns of behaviour, including sometimes involving restitution or compensation to
thoughts and emotions, which distinguish one per- the victim
son from another
risk factors — several individual and social variables
pimp — any person responsible for the facilitating of
that are known to be associated with an increased
buying, selling, luring or providing children (and
potential for later criminal behaviour
any others) for sexual services in return for com-
pensation, financial or otherwise secondary prevention — focus on the early identi-
fication of potential perpetrators and dangerous
positivism — a theoretical approach that emerged
situations or circumstances that may lead to crime
in the early 19th century that argues that social
if not addressed
relations and events (including crime) can be stud-
ied scientifically using methods derived from the sentencing — the stage during a criminal trial where
social sciences. In criminology, positivism straddles punishment is meted out to the convicted criminal
biological, psychological and sociological disciplines sexual abuse and maltreatment — includes (i)
in an attempt to identify key causes of crime that coerced (unwanted or by force) and consensual
are thought to lie largely beyond the control of the sexual touching; (ii) exposure to intimate body
individual parts or pornographic images; (iii) sexual harass-
pre-trial detention — the lawful limitation of a per- ment; and (iv) penetrative and non-penetrative sex-
son's freedom of movement before such a person is ual intercourse (actual or attempted), all by either
tried for his or her alleged crime an adult, or similarly aged peers
preventative factors — factors that insulate children social context — the physical, structural, environ-
from a problem, either reducing the impact of risk mental, cultural and social factors in which people
factors or changing the way in which they respond live and which influence the way they engage in the
to risks world. Specific “socio-demographic’” factors may
primary prevention — the identification and alter- be used to define social contexts and might include
ation of conditions or situations in the physical living conditions and poverty, education levels,
and/or social environment that provide opportuni- employment rates, crime rates, or the risk of mor-
ties for or precipitate criminal acts bidity within a specific geographical context
private defence —a ground of justification, excluding status offences — behaviours that are considered
unlawfulness, where the person who committed the misbehaviours only when committed by children
crime was merely warding off an unlawful human and youths due to their status in society
attack on his, her or somebody else's interests, strain (theory) — a theoretical perspective based
which attack was imminent but not yet completed on the assumption that lack of opportunity such
ovr Schaik
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GLOSSARY
as being locked out of the cultural and economic ubuntu — an Nguni term not easily translated into
mainstream, coupled with the desire for conven- English, except by way of drawing together strands
tional success, produces strain and frustration. of concepts such as “a person is a person through
Strain theories describe the types of strain that con- other people” and “the very essence of being
tribute to crime and the factors that may influence a human”
person to respond to strain with crime unlawfulness — the second element of a crime, which
street children — children with disrupted or no family entails that there is no justification for a person's
ties who are forced to survive on the streets in urban conduct
areas victim — anyone who is subjected to any form of
subordinate offending — when someone is com- physical, sexual, emotional {including neglect) and
pelled to commit crime by another person, such as financial abuse
an intimate partner or family member women’s liberation — increased economic and
supervision — the responsibility of parents or adults to social liberation from inequalities gained by women
watch and direct young persons to behave correctly in society
tertiary prevention — prevention aimed at avoiding youth sexual offence — any sexual act perpetrated
a relapse into crime (recidivism) and thus focusing by a person under the age of 18 with a person of
on individuals already in conflict with the law any age against that person's will, without consent
thinking errors — a faulty thinking process whereby or in an aggressive, exploitative or threatening
a person alters his or her perception of reality in an manner F
effort to avoid taking responsibility
342
Index
A plausibility 122
acculturation 6 predictability 122
Act 7 of 2013: Prevention and Combating of real-life evidence 122
Trafficking in Persons (PCTP) 305 child 12
actus reus 248 Child Justice Act 335
addiction 333 Child Justice Act 75 of 2008 9, 12, 13, 71, 254,
adolescence 4, 331 262
adolescent 12 Child Justice Act 75 of 2008 (Act) 269
African Charter on the Rights and Welfare of rights of children 269
the Child 305 Child Justice Act (CJA) 217, 247, 270
afrocentric 20 child justice court 277
age and criminal responsiblity 13 child pornography 314, 318
age of majority 14 child prostitution 314
AIDS 10, 161 child-rearing practices 328
alcohol 39, 42 Children’s Act 38 of 2005 257
drinking 39 child-specific recruitment 301
amalayitas 26 chivalry 173
apartheid 113 chivalry hypothesis 173
apartheid system 6 chronic juvenile offender 70
Arab Spring 329 CJA 261, 271, 283
attention deficit disorders 5 classical school of criminology 122
auto-eroticism 332 celerity (swiftness) principle 123
choking game 332 certainty principle 123
Cesare Beccaria 123
Jeremy Bentham 123
B
rational decision 123
battered-child syndrome 6 severity principle 123
biosocial factors 100 cognitive mental ability 260
biochemical factors 100 cognitive scripts 115
genetic factors 101 colonisation 23
neurophysiological factors 101 inggwele 26
blessers 10, 331 commissio 248
border crossing 301 common law 249
bullying 56, 334 unlawfulness 249
emotional bullying 56 community disorganisation 85
physical bullying 56 community violence 328
proactive bullies 57 community youth development 117
proactive victims 57 facilitating and modelling healthy
reactive bullies 57 relationships 117
sexual bullying 56 providing viable life skills 117
youth/adult partnerships 117
Cc conative mental ability 260
causes of human trafficking 295 conduct disorders (CDs) 5
pull factors 296 constitution 246, 254, 255, 257, 269, 328
push factors 295 minimum age of criminal capacity 247
Cesare Lombroso 170 constitution court 257
characteristics of a good theory 122 Constitution of the Republic of South Africa
falsifiability 122 Act 108 of 1996 308
@ven Schaik
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INDEX
consumers of child prostitution 319 ecstasy or MDMA

contra boni mores 248 (methylenedioxymethamphetamine) 61
co-offenders 193 hallucinogens 59
corporal punishment 29, 30, 216, 257, 334 heroin (diacetylmorphine) 58
counselling 324 heroine 61
crimen 12 krokodil 62
juridical definition 12 LSD 60
non-juridical 13 mandrax 59
criminal capacity 219, 249, 251, 259, 270 methamphetamine 62
cognitive faculty 270 new drugs on the market 62
conative faculty 270 nyaope 62
criminal responsibilty 251 opiates 59
diversion options 220 popular drugs 59
new age limits 259 stimulants (uppers) 59
criminal law 247 tik 62
Criminal Law (Sexual Offences and Related tik (crystal methamphetamine) 59
matters) Amendment Act 32 of 2007 283 tolerance 59
criminal liability 247 whoonga 62
Criminal Procedure Act 51 257
culpable homicide 250
E
culpaeincapax 252
cultural deviance 133 early childhood 12
cyber bullying 57 eating disoders 332
cyber stalking 58 obesity 332
denigration 58 economic inequality 84
flaming 58 elementological concept of a crime 248
happy slapping 58 deed 248
sexting 57 fault 248
unlawfulness 248
D emotional poverty 114
empathy 115
debt bondage 296
affective empathy 115
Department of Correctional Services
cognitve empathy 115
(DCS) 188
environmental 8
derivative offending 194
nature 9
different types of perpetrators in criminal
nurture 8,9
law 249
eurocentric 20
concurrent perpetrator 249
extrafamilial relationship variables 96
co-perpetrator 249
direct perpetrator 249 antisocial peer associations 96
indirect or vicarious perpetrator 249 gang membership 97
diversion 216, 261, 277
F
diversion programme 211
doli capax 14 family integration 41
doli incapax 14 family variables 88
doliincapax 252 family structure 88
domestic violence 328 socioeconomic status of the family 88
drug 42 fault 253
drugs 58, 86, 331 culpability 253
cocaine 60 mens rea 253
dagga 60 female delinquency 179
dagga (cannabis) 58 female offenders 185
depressants (downers) 59 female offending 186
344
INDEX
female-headed households 48 ILO Worst Forms of Child Labour Convention

feminist theory 181 no. 182, 1999 305
filicide 4 impact of diversion 235
firearm-free zones (FFZs) 55 imperitiaculpaeadnumeratur 254
five modes of adaption 132 ignorance that amounts to negligence 254
conformity 132 impubes 252
innovation 132 incorrigibility 330
rebellion 133 industrial schools 31
retreatism 133 infant 12
ritualism 133 infantes 252
forms of trafficking 300 infanticide 4
initiation schools 6
G integrative theories 150
gangsterism 64 integrated biologicl theories 153
gender and risk 193 integrated classical theories 151
gender roles 174 integrated conflict theories 156
general aggression model (GAM) 158 integrated control theories 156
Craig Anderson 158 integrated learning theories 155
Nathan DeWall 158 integrated psychological theories 154
trigger event 159 integrated sociological theories 155
general theory of crime 157 integrated strain theories 155
self-control 157 intention 252
dolus 252
H Inter-ministerial Committe of Young People at
Risk (IMC) 268
Hans Eysenck 130
extroversion 130 International Labour Organisation 292
neuroticism 130 IOM 295
hate crimes 65 isolation 297
mission hate crimes 66 izikhothane 38, 331
reactive (defensive) hate crimes 65 lickers 331
retaliatory hate crimes 66 izikhothane (lickers) 69
thrill-seeking hate crimes 65 licking the snake 69
high-level socio-moral reasoning 112 pantsula 69
high-risk offenders 219
HIV/AIDS 89, 105, 303, 334 J
family violence and abuse 91 junk status 7
homelessness 91
inter-generational continuity in offending 90 K
lack of parental supervision 90
kangaroo courts 328
homunculus 5
human trafficking 291, 317
child trafficking 292 L
trafficking in persons 292 labelling 137
hyperactive behaviour 5 negative labelling 137
stigmatisation 137
| LGBTI 309
low-level socio-moral reasoning 110
idiographic 81
low-risk offenders 219
ILO Convention 29, Forced Labor Convention,
1930 305
ILO Convention no. 105, Abolition of Forced M
Labour Convention, 1957 305 masculinisation theory 178
ILO Minimum Age Convention, 1973 304 masculinised 170
even Schaik
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INDEX
masculinity hypothesis 177 Ouagadougou Action Plan to Combat

materialistic 331 Trafficking in Human Beings, Especially
medium-risk offenders 219 Women and Children 305
mens rea 248 outdoor programmes 233
Merton 132
middle ages 328 P
middle and late childhood 12

peer influence 43
minimum sentences 258
personal factors 164
minority 14
personality 129
misbehaviour 12
temperament 129
modus operandi of trafficking 294
positivist school 125
moral development 128, 165
atavistic (subhuman or primitive) 126
biological theories (the born offender) 126
N Cesare Lombroso 126
National Crime Prevention Strategy degenerative nature 126
(NCPS) 217 empirical research 125
nature 118 individual positivism 125
negligence 252 verification 125
culpa 252 power control theory 180
neighbourhood 42 egalitarian families 181
neoclassicism 146 patriarchal family 180
just deserts 147 pre-colonial times 23, 328
rational choice 147 pre-trial detention 272
utilitarian 147 pre-trial procedures 274
neonate 12 preliminary inquiry 276
neonaticide 4 pre-trial assessment 275
neopositivism 148 Prevention and Combating of Trafficking in
biological approach 148 Persons Act 7 of 2013 (PCTP Act) 306
social approach 149 act 306
neuroplasticity 116 consent 307
new drugs on the market 62 means 306
krokodil 62 penalties 307
methamphetamine 62 purpose 306
nyaope 62 victim assistance 307
tik 62 prima facie 14
whoonga 62 primary offenders 193
nomothetic 81 primary prevention 201
non-government organisations 309 prostitution 313
numerus clauses 249 psychoanalytic explanations 127
nurture 118 ego 127
id 127
0 psychodynamic theory 127
offender reintegration 211 Sigmund Freud 127
official crime information sources 71 superego 127
Department of Correctional Services psychological theories 127
(DCS) 71 psychopathic traits 330
Department of Justice and Constitutional psychopathy 330
Development 71 psychosocial factors 102
SAPS 71 intelligence as factor 102
StatsSA 72 personality traits 103
omissio 248 pull factors 331, 336
opportunity theory 179 high-risk leisure time activities such as
Van Schaik
346 © publishers
train surfing, and promiscuous sexual stress 320
activities 331 suicidal behaviours 320
peer group drug and alcohol use 331 traumatised 320
unsafe abortions 321
Q unwanted pregnancies 321
qui facit per alium facit per se 249
)
R schedule 1 offenders 222
radical criminology 138 schedule 2 offenders 222
Marxism 138 schedule 3 223
new criminology 138 school variables 92
rainbow nation 7 disorganised conditions in and around the
recidivism 42, 209 school 92
reform schools 257 educator or teacher 95
reformatory 257 learner 94
reformatories 30 school violence 54
rehabilitation programme 211 learner-on-learner violence 55
re-integrative shaming 138 learner-on-teacher violence 55
relative deprivation 84 school shootings and stabbings 55
restorative justice 261 teacher-on-learner violence 55
community -based sentences 261 secondary prevention 206
family conferences 261 sentencing 278
victim-offender mediation 261 appeal and review of sentences 283
risk factors 82, 200 community-based sentences 279
deviant role models 200 compulsory residence in a child and youth
emotional poverty 200 care centre 280
high risk 83 imprisonment 281
imminent risk 83 legal representation 282
incomplete families 200 pre-sentence reports 278
individual characteristics 200 referral of children from the criminal
marginalisation 200 justice system to the care and protection
minimal risk 82 system 282
negative school experiences 200 sex offenders 10
protective factors 83 sex roles 176
remote risk 82 sexual offences 45
at risk 83 contact abuse 45
socioeconomic factors 200 non-contact 45
static risk factors 83 paedophiles 45
weakening of community support 200 youth sex offenders 45
risk taking 43 Sexual Offences Act 283
risks associated with child sex work 320 sexual violence 191, 328
anxiety 320 sexually transmitted diseases 10
depression 320 sibling abuse 53
HIV/AIDS 320, 321 physical abuse 53
mental illness 320 psychological abuse 54
often ill 320 sexual abuse 54
poor self-esteem 320 Sigmund Freud 11, 335
problem behaviour 320 social control 135
(PTSD) 320 attachment 136
self-harm 320 belief 136
sexualised behaviour 320 commitment 136
sexually transmitted diseases 320, 321 involvement 136
(Onaiet) 347
INDEX
Travis Hirschi 135 repression 303

social disorganisation 131 Trits in Zinn principle 255, 262
Shaw and McKay 131 types of diversion programme 225
social learning 134 family group conferencing 230
Albert Bandura 135 life skills training 225
differential association 134 mentoring 227
Edwin Sutherland 135
social process 134 U
social strain 140 ubuntu 110, 112, 113, 328
social structure 130 ukukhothana 331
socio-demographic 189 ukuthwala 309
South African Law Commission 50 UN Convention on the Elimination of All Forms
South African Police Service (SAPS) 9 of Discrimination against Women, 1979
South African Schools Act 84 of 1996 257 (CEDAW) 304
Statistics SA (StatsSA) 43 UN Convention on the Rights of the Child 304
StatsSA 34 UN Universal Declaration of Human Rights 304
status offences 15, 38 unemployment 84, 335
strain 132 United Nations Convention against
Emile Durkheim 132 Transnational Organized Crime 298
Robert Merton 132 palermo protocol 298
subordinate offending 194 United Nations Office on Drugs and Crime
substance abuse 297 (UNODC) 294
suicide 334 act 294
Supplementary Convention on the Abolition of means 294
Slavery, the Slave Trade and Institutions purpose 294
and Practices Similar to Slavery 304 United States Trafficking in Persons Report
(JTiP) 308
T tier 1 308
tier 2 308
tabula rasa 5
tier 2 watch list 308
technological advances 332
tier 3 309
cellphones 332
unofficial crime information sources 72
playstation 332
self-reported 72
tablets 332
victim survey 72
television 332
video gaming 333
teddy bear clinic 283 V
tertiary prevention 207 victim impact statement 262
theories of punishment 255 victimisation 192
preventive theory 255 vigilantism 328
reformative theory 256 violence 87
retributive theory 255 violence exposure 190
theory of deterrence 256 violent offences 50
thinking errors 116 child-to-parent violence 51
assuming 116 family violence 50
blaming 116 intrafamilial violence 51
minimising 116 matricide 52
tobacco 87 parent abuse and murder 51
toddler 12 parricide 52
train surfing 67 patricide 52
trauma 302
dissociation 303 WwW
narrowing of attention 302 White Paper on Correctional Services
post-traumatic stress disorder (PTSD) 303 (2005) 12
348
INDEX
women in prison 193 Y

world female imprisonment list 188 young female offenders 191
world prison population list 188 youth 12
youth at risk 11
xX youth care centres (CYCTs) 188
xyy hypothesis 126 youth homicide 66
youth sex offenders 47
Van Schaik
©publishers 349
South Africa has a broad and complex history that has greatly influenced the unique,
diverse and democratic country that we know today. One of the many challenges
South Africa faces is crime, with those crimes committed by youthful offenders
being the most distressing - it is sadly not unusual to hear of youths who have been
involved in murder, rape or robbery. In addition, sexual offences among children are
occurring more frequently, and the number of child victims of abuse and domestic
violence is also on the rise. An added and escalating danger for children is falling
prey to ruthless traffickers and being used as sex workers or slaves. Despite specific
laws having been promulgated to protect them, many children are still growing up in
unforgiving environments that never allow them the opportunity to develop morally
according to the prescriptions of a democratic society.
Child and youth misbehaviour in South Africa addresses the complex and poorly
understood phenomenon of youth misbehaviour. It discusses and analyses various
theories on the nature and causes of deviant behaviour, and assesses them critically
with regard to their applicability to South Africa. The book presents the relevant legal
processes pertaining to young people, and reinforces theoretical explanations with
research and real-world examples. The female youth offender is also discussed in
depth in this edition.
Contents include the following:

e = The difficulty in demarcating the position of children in South Africa
e¢ The complex diversity in the various ethnic and racial groupings in South Africa
e The local risk factors and international influences associated with youth
misbehaviour
e The effective processing and treatment of youthful offenders by the South African
olga] OCCA I CclE
e Preventive measures based on constitutional guidelines
Child and youth misbehaviour in South Africa is aimed at enabling both practitioners
and students to address the plight of the South African youth in a constructive way so
they can become part of creating a safer South Africa for all its people.
Professor Christiaan Bezuidenhout holds a BA (Criminology), BA Honours

(Criminology), MA (Criminology), DPhil (Criminology), as well as an MSc (Criminology
and Criminal Justice) from the University of Oxford. He is currently attached to the
Department of Social Work and Criminology, University of Pretoria, where he teaches
psychocriminology, criminal justice and contemporary criminology at undergraduate
and postgraduate levels.
ISBN 978 O be? O3b05 7?
Van Schaik | | ll!

PUBLISHERS
www.vanschaiknet.com Obe?"O3b

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_2Child and youth

No part of this publication may be reproduced, stored in a retrieval system, or transmitted

First edition 2003

ISBN 978 0 627 03605 7

Commissioning editor Marike Visagie

Website addresses and links were correct at time of publication.

This book has been reviewed by independent peer reviewers.

Prof. Christiaan Bezuidenhout holds the following degrees: BA (Criminology), BA

About the authors

Dr Karen Booyens is a lecturer in the Department of Social Work and Criminology

Dr Laetitia Coetzee is a lecturer in the Department of Social Work and Criminology at

Prof. Michelle Ovens holds a BA degree, an Honours degree and a doctorate in

Prof. Ann-Mari (Anni) Hesselink is a researcher and a professor in the Department of

Section B: Youth in contact with criminal justice

Section C: Contemporary challenges pertaining to youth at risk

ADOUE thE GdltOr: ccesisncnwansmmnwnenanernranmacno hues atte MWinaeeMRIA NER RONEN vi

Chapter 2 A historical perspective of the youth offender

Chapter 4 Risk factors pertaining to youth offenders

Chapter 5 The socio-moral redirection of troubled youth

Chapter 6 Traditional theoretical explanations for youth misbehaviour

Chapter 7 Contemporary theoretical explanations for youth misbehaviour

Chapter 8 A historical overview of approaches to understanding female youth

SECTION B Youth in contact with criminal justice

Chapter 13 The Child Justice Act: practice and procedure

SECTION C Contemporary challenges pertaining to youth at risk

Chapter 16 Concluding thoughts

1.1 INTRODUCTION case of boys) or chambermaids or wives from a

It is incorrect to view sex offenders as a as divorced from individual-human factors, as

2.1 INTRODUCTION plinary studies have been conducted on juve-

2.7 JUVENILE CRIME IN SOUTH

2.7.4 Development of gangs

. Explore the origin of gangs in South Africa.

. Provide a brief overview of corporal punishment in South Africa.

. Critically map the development of reformatories in South Africa.

dren failed in South Africa.

3.1 INTRODUCTION This chapter discusses the juvenile sex

3.2.3 Sexual offences the following reasons:

Table 3.1 Categories of youth sex offenders

Youth vs adults/peer Youth vs children Common features of both

family. Types of intrafamilial violence commit- it as dehumanising is another form of parent

Psychological abuse dalism (South African Council for Educators

e They tend to evolve into antisocial adults. Cyber bullying

vary in colour ranging from white to blue, Cocaine

of a certain neighbourhood or prevent their involvement of youths in homicide and,

Train surfing thrills bored youngsters

. Explain the nature of sibling abuse.

. Critically discuss bullying in schools.

4.1 INTRODUCTION nities, but the opposite is equally true. People

good education and gang membership are 4.3.3 Protective factors

4.4.1 Community or neighbourhood individual's moral threshold, therefore a rise

4.4.2 Family variables Overcrowded living arrangements are indic-

manifestation of crime directed at learners. A 4.4.3.2 The learner

is indicative of a certain lifestyle, which in 4.7 IDENTIFIED COMBINATIONS

HIV/AIDS. In Asian countries, youth unemploy- Table 4.1 Risk factors

The thinking pattern of individualism is moti- The focus on interpersonal relationships is

good. For a youth to change from Circle of pain

1. Distinguish between low- and high-level socio-moral reasoning.

Define the concept “neuroplasticity”.

6.1 INTRODUCTION the issue of why the incidence of crime among