Historically in South Africa, there was no formal specification for youth diversion. This left prosecutors with complete discretion over diversionary decisions. Prosecutors could divert any case but tended to recommend custody for serious offending youths. Because diversionary options were limited, custody was a common placement for many youth offenders. In the mid 2000s, there were 4,158 South African youths under age 18 in youth prisons according to Cavadino and Dignan (Hazel 2008b). This was the second highest number of youths in custody behind the United States. In the late 1990s, the government initiated an investigation of its juvenile justice system to explore alternative methods of punishment. After 13 years of research, discussion, debates, and drafts of bills, South Africa passed the Child Justice Act in 2009 to establish diversionary options for youth offenders.
Child justice courts have two primary options for residential youth confinement: child and youth care centres or prisons. Child and youth care centres offer residential support services for youths with various needs including runaways, children living in deprived family environments, children with disabilities, illnesses or substance abuse problems, and youth offenders. Placement in child and youth care centres is supposed to be a temporary measure that courts and advocates only to use as a last resort. In 2008, there were nearly 20,000 youths in child and youth care centres (Mabetoa 2008).
The Child Justice Act limits the placement of youths in prisons. Children under age 14 cannot serve prison sentences. Child justice courts can only order prison as a last resort and for the minimum amount of time necessary (Gallinetti 2009). Prior to the passage of the Child Justice Act, South Africa had the second highest youth incarceration rate at 69 per 100,000 as well as the second highest youth custody rate in the world. The United States has the highest total and rate of youth custody (Hazel 2008b). It remains to be seen how the Child Justice Act will impact the youth custody population.
The Child Justice Act specifies four categories of sentencing options: community-based sentences, restorative sentences, correctional supervision, and secure custody. Diversion can occur at various points in the legal process. Prosecutors can divert youths who commit offenses, a magistrate can dismiss cases during the preliminary inquiry, and the court can issue diversionary sentences at trial. The Act makes restorative justice a key component of diversion by encouraging the use of family group conferencing and victim-offender mediation (Gallinetti 2009). The purposes of diversion are to require youth accountability, improve reintegration, allow reconciliation, promote rehabilitation, and reduce incarceration for low-risk youths.