Parental responsibility for a young offender

Can a parent be held criminally liable for their child’s crime in South Africa?

Earlier this year, Jennifer and James Crumbley became the first parents in US history to be convicted of involuntary manslaughter for a mass shooting committed by their child. They were each sentenced to 10–15 years in prison, the maximum penalty for the crime. Prosecutors argued they ignored urgent warning signs that their son was having violent thoughts, and they provided access to the gun he used to kill four classmates and injure seven other people at his school in November 2021. Could parents be held liable for young offenders here in South Africa? The short answer is no.

According to the common law, parental criminal liability cannot be considered in South Africa unless a parent uses a child as a “weapon” to commit a crime on their behalf. In these circumstances, the parent is considered a perpetrator by the “qui facit per alium facit per se” rule. This is Latin for “he who acts through another does the act himself” and means that if a person performs an action through another person, it is the same in law as doing it themselves. Any person under the age of 18 is considered a child in South Africa, and our Constitution includes a powerful set of rights and protections for children.

Criminal capacity of a child in South Africa

Criminal capacity means the ability to distinguish between right and wrong and understand and accept responsibility for one’s behaviour. According to the Child Justice Act (CJA), children below the age of 12 do not have criminal capacity and cannot be prosecuted for crimes. They may be referred to the Department of Social Development or the Children’s Court. The minimum age for criminal capacity was raised from 10 in 2022. Children between 12 and 14 are considered to have criminal capacity, but the onus is on the state to prove the child had criminal capacity when committing a crime. If the state has a credible argument, the child can be arrested. Children above 14 years of age are deemed to have the mental ability to distinguish between right and wrong and can be prosecuted for their crimes.

A child may not be sentenced to more than 25 years in prison. Crimes fall under different schedules, which determine the appropriate punishment. Schedules 1, 2 and 3 deal with, respectively, less serious offences, more serious offences, and very serious offences. When a child is convicted they may be sentenced to community service, peer association, supervision, or written apologies, carried out either in a youth care centre or prison. A police officer may not arrest a child under the age of 12 and must hand the child over to the parent or guardian, informing the probation officer of the alleged crime.

Damages

Although a parent cannot be held criminally liable for their child’s offence, they can be held personally liable for the damages caused, because a parent has a duty to educate and monitor the child. The liability is premised on the presumption that the parent’s lack of attentiveness led to the child’s behaviour and the harm caused. It is up to the parent to prove they were not responsible for the damages caused by their child.

Social considerations of the CJA

Prior to the enactment of the CJA in 2010, children were dealt with through the adult justice system. In many cases, this only served to reinforce antisocial behaviour and turn a troubled child into a hardened adult criminal. The CJA sought to manage child justice in a rights-based manner and take child development into consideration. According to the Department of Justice, the CJA “allows for a justice system that heals children and those who were affected by a child’s action, encourages forgiveness and rehabilitation and looks after the needs and rights of children and victims. [It also] allows the child’s background or upbringing to be taken into consideration…[and] ensures that the individual needs and circumstances of children…are assessed before a decision is made on how to deal with the child.” In a country where many children grow up in hardship, surrounded by violence, this is a sensitive approach to young offenders. Positive intervention at this stage can address the cause of the criminal behaviour and will hopefully influence the future course of the young offender’s life.

Diversion and young offenders

A key strategy in the CJA is diversion, defined as “the channelling of criminal cases involving a child away from the criminal justice system with or without conditions”. Diversion aims to encourage offenders to take responsibility for their actions and avoid re-offending. Someone who undergoes diversion does not wind up with a criminal record, which in itself is a major determinant of future success in life. The offender is offered a life skills programme and counselling, and the family may also be involved. There are various options that may be recommended, such as a compulsory school attendance order or a supervision order. Diversion is more likely to be successful if the family is fully engaged in the process.

Balancing justice and healing

Ultimately, while parents in South Africa cannot be held criminally liable for the crimes of their children, the legal system does acknowledge the role they play in a child’s upbringing by holding them financially accountable for damages. The Child Justice Act, in adopting a developmental approach to child justice, recognises children’s vulnerability and capacity for rehabilitation. By contrast, a punitive approach could perpetuate criminal behaviour. The focus on rehabilitation aims to foster societal healing and prevent future harm, and not just to punish wrongdoing.

SD Law can help

At SD Law & Associates we think diversion represents a more humane and thoughtful response to young offenders. We take a practical, empathetic and non-judgmental approach to finding the best possible outcome for clients. If you need help for a first-time offence or any aspect of criminal law or bail, call Simon on 086 099 5146 or email simon@sdlaw.co.za.

Further reading:

• What is diversion?
• Diversion – better than gaol?
• Restorative justice – the arguments

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