Could Deveney Nel’s alleged killer be tried as an adult? Here’s what the law says

Crimes committed by underage individuals create consequences that echo for life.

The case of Deveney Nel, the 16-year-old girl found dead in a school storeroom, has brought into focus the rights of criminal offenders.

Calls were made outside the Caledon Magistrate’s Court on Monday to prosecute Nel’s alleged killer as an adult, highlighting the emotions running through the small town.  

NPA on Child Justice Act

National Prosecuting Authority (NPA) Western Cape spokesperson Eric Ntabazalila did not confirm if the NPA would seek to try the 17-year-old as an adult, he instead stated the Child Justice Act is currently applicable.

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Citing S v N and Another (WCC), Ntabazalila explained to The Citizen that the accused’s rights could also be protected up until the age of 21.

“When a person commits an offence while under the age of 18, their conduct falls to be judged in the context of these considerations,” notes the judgement of the case involving a minor rapist.

“That would mean punishing them for what they had done as children as if it had been done when they were adults.

“That such an approach would impinge on the substance of the rights provided in terms of Section 28 of the Constitution is axiomatic,” the judgement of the 2003 case concluded.

The case of Deveney Nel: ‘Essentially, the trial process is the same’

Adéle van Schalkwyk, Head of Criminal Law at Burger Huyser Attorneys elaborated on the specifics of possibly prosecuting a minor as an adult.

Van Schalkwyk explained the age of the accused is only relevant in determining the criminal capacity of the offender.

“Essentially, the trial process is the same. The difference would relate to court proceedings in that the minor would be accompanied by an adult and their name would not be revealed to the public,” Van Schalkwyk told The Citizen.

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She added that these stipulations could also be waived at the magistrate’s discretion.

“It depends on the facts before the court. Should there be a rebuttable presumption – prima facie evidence – then the court can treat the accused accordingly,” she added.

Sentencing a minor

Children under the age of 12 are deemed to have a low capacity for criminal intent, whereas those above 14 are considered mature enough to be cognisant of their crimes.  

Minors are also eligible for life sentences, with Van Schalkwyk citing the Griekwastad murders, where Don Steenkamp was given a 76-year concurrent sentence for murdering three family members when he was 15 years old.

In sentencing a minor, the criminal lawyer said the court would also be obliged to consider relevant reports and evaluations submitted by social workers.  

Rehabilitating offenders

While violent crimes leave little room for short-term rehabilitation, diversion programmes are used to assist in guiding child offenders.

Khulisa Social Solutions runs programmes focusing on offender rehabilitation and reintegration, among others.

“For children, we make use of the Child Justice Act. It caters to those up to 21 years old provided the offence was committed when one was still a child,” said Khulisa’s Mabana Moyo, explaining the difference in rehabilitating children and adults.

Dr Casper Lotter, a conflict criminologist at North-West University (NWU), questioned South Africa’s approach to criminal punishment in a February report, stating that between 86 and 94% of offenders re-offend.

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However, Moyo expressed her belief that if rehabilitation was correctly implemented with individuals when they were young, it would reduce recidivism rates.

Suggesting prevention was better than cure, Moyo told The Citizen, “The focus of the Department of Social Development should be more on early intervention and not children who commit crimes”.

“Targeting children in schools or any other centres will equally improve the learning environments in schools with less levels of violence,” she added.