Child Justice Act, 2008 (Act No. 75 of 2008)Chapter 7 : Preliminary Inquiry47. Procedure relating to holding of preliminary inquiry |
| (1) | The inquiry magistrate must conduct the preliminary inquiry in an informal manner by asking questions, interviewing persons at the inquiry and eliciting information, and must keep a record of the proceedings. |
| (2) | At the start of the preliminary inquiry the inquiry magistrate must— |
| (a) | in the prescribed manner— |
| (i) | explain the purpose and inquisitorial nature of the preliminary inquiry to the child; |
| (ii) | inform the child of the nature of the allegation against him or her; |
| (iii) | inform the child of his or her rights; and |
| (iv) | explain to the child the immediate procedures to be followed in terms of this Act; |
| (b) | in order to consider diversion, ascertain from the child whether he or she acknowledges responsibility for the alleged offence, and if the child— |
| (i) | does not acknowledge responsibility, no questions regarding the alleged offence may be put to the child and no information regarding a previous diversion or conviction or charge pending against the child may be placed before the preliminary inquiry, whereupon the provisions of subsection (9)(c) apply with the changes required by the context; or |
| (ii) | does acknowledge responsibility, the preliminary inquiry proceeds in terms of this Chapter; and |
| (c) | determine the age of a child in accordance with section 14, if necessary. |
| (3) | The following information must be placed before the inquiry magistrate: |
| (a) | The probation officer's assessment report, if available; |
| (b) | any form and documentation required for the determination of age referred to in section 14(2)(a) and (b), if available; |
| (c) | any documentation relating to any previous conviction, diversion or a pending charge; |
| (d) | the report regarding the detention of the child in police custody provided by the investigating police official in terms of section 22(2), if applicable; and |
| (e) | any other information that may be relevant to the proceedings. |
| (4) | In considering the information referred to in subsection (3), the inquiry magistrate may— |
| (a) | request any further documentation which may be relevant to the proceedings; |
| (b) | elicit any information from any person attending the preliminary inquiry to supplement or clarify the available information; and |
| (c) | take any steps as may be necessary to establish the truth of any statement or the correctness of any submission. |
(5)
| (a) | If the child has not yet been assessed, the inquiry magistrate may dispense with assessment if it is in the best interests of the child to do so. |
| (b) | An inquiry magistrate who dispenses with an assessment in terms of paragraph (a), must enter the reasons for that decision on the record of the proceedings. |
| (6) | If a preliminary inquiry proceeds in the absence of a probation officer, the probation officer's assessment report must be available at the preliminary inquiry, unless assessment has been dispensed with in terms of subsection (5). |
| (7) | In order to ensure that the views of all persons present are considered before a decision regarding the child is made, the inquiry magistrate must— |
| (a) | encourage the participation of the child and his or her parent, appropriate person or a guardian; |
| (b) | allow the child, the child's parent, an appropriate person or a guardian or any other person present to ask questions and to raise issues which, in the opinion of the inquiry magistrate, are relevant for the purposes of a preliminary inquiry. |
(8)
| (a) | If the child is a co-accused with one or more other children, a joint preliminary inquiry may be held if the inquiry magistrate is satisfied that this will be in the best interests of all the children concerned. |
| (b) | If a joint preliminary inquiry is held in terms of paragraph (a), different decisions may be made in respect of each child. |
| (9) | If the prosecutor indicates that the matter may not be diverted, the inquiry magistrate must— |
| (a) | obtain from the prosecutor confirmation that, based on the facts of the case at his or her disposal and after consideration of other relevant factors, there is sufficient evidence or there is reason to believe that further investigation is likely to result in the necessary evidence being obtained, for the matter to proceed; |
| (b) | enter the prosecutor's confirmation on the record of the proceedings; and |
| (c) | inform the child that the matter is being referred to the child justice court to be dealt with in accordance with Chapter 9. |
| (10) | Where an inquiry magistrate has presided over a preliminary inquiry and has heard any information prejudicial to the impartial determination of the matter, the magistrate may not preside over any subsequent proceedings, procedure or trial arising from the same facts. |