Compulsory rehab or a criminal record - which is better for kids?
This is the question at the centre of a potentially precedent-setting court application
Should our courts prosecute drug-addict children or send them for rehabilitation instead, giving them another chance at life without a criminal record? This question is at the heart of a precedent-setting application before the Johannesburg High Court, which could cement the powers of diversion programmes to keep petty child offenders from prosecution through compulsory in-patient drug rehabilitation.
The proceedings were brought about by acting Krugersdorp chief magistrate Abdul Khan, who is asking whether it is appropriate for prosecutors to enforce periods of stay at rehab facilities, even if it means young offenders avoid prosecution and dodge a potentially life-ruining criminal record.
In 2018, a group of four teenagers were charged with drug possession in the Krugersdorp Magistrate’s Court, after repeated infractions and a recommendation by their school’s social worker.
However, the prosecutor in the matter ultimately chose to put the children through the Drug Child diversion programme, which has been operating in Krugersdorp for the past 15 years.
The agreement was that the teenagers would get help to stop abusing drugs instead of facing criminal prosecution.
In his submissions to the high court, Khan explained that the four teenagers had been referred to the informal diversion programme by one of his colleagues, in terms of Section 41 of the Child Justice Act of 2008, by agreement with the state, the children and their guardians.
“I became aware that the children were placed in compulsory residence (in-patient) at Walter Sisulu Correctional Facilities and Bosasa emanating from the informal diversion orders. I was of the opinion that this could not be done as I previously dismissed a similar application for custodial diversions on the grounds that the (act) did not allow for this,” he said.
Khan later brought the matter under review, and an order was made to release the teenagers from their 12-week rehab programme until it was determined whether the magistrate’s courts did have the power to impose custodial rehabilitation.
Khan has argued that this can only happen after a child is convicted and sentenced to compulsory residence.
But the founder of Drug Child, Mienke Erasmus, also a prosecutor, has argued that the entire point of sending the children for drug rehabilitation is to avoid criminal prosecution.
In her own written heads of argument and supplementary affidavits, presented to the court by Johan Badenhorst, she says the act gives them every right to impose compulsory inpatient rehabilitation.
Khan’s argument is that compulsory residence is not listed under Section 53 of the act. However, Erasmus refers to the next section, which reads: “In addition to the diversion options set out in Section 53, a prosecutor ... an enquiry magistrate ... or presiding officer in a child justice court ... may, where appropriate, after consideration of all available information, develop an individual diversion option which meets the objectives of diversion ... ”
Erasmus is insisting that it would be absurd – and go against the spirit of the act – for only offenders who have committed more serious crimes and have been convicted to have access to “structured rehabilitation and other therapeutic assistance as a diversion option”.
When describing Drug Child’s impact on the Krugersdorp community, she said that not a single child in this programme – which takes in about 80 children a year – had been criminally prosecuted.
She has asked the high court to allow for individualisation of diversion options, which may include temporary and compulsory residence at rehab facilities, as long as they are appropriate for the individual circumstances of the child offender.
She has also asked that the order to release the four offenders in Krugersdorp be overturned.
On Wednesday, Judge Ingrid Oppenheimer postponed the matter to allow for further supplementary evidence to be placed before the court to help her make a decision.
It is understood that this will include expert legal opinion on the Child Justice Act. The application will continue in May.