| (b) | An inquiry magistrate may only make an order that the matter be diverted in terms of paragraph (a) if he or she is satisfied— |
| (i) | that the factors referred to in section 52(1)(a) to (d) have been complied with; and |
| (ii) | in the case of a child who is 12 years or older but under the age of 14 years, that the child will benefit from diversion. |
| (c) | If the inquiry magistrate is of the view that the child is unlikely to benefit from diversion, or if diversion is for any reason not appropriate, the inquiry magistrate may refer the child to a probation officer to be dealt with as a child who lacks criminal capacity, in terms of section 9 of the Act. |
[Section 49(1) substituted by section 17 of the Child Justice Amendment Act, 2019 (Act No. 28 of 2019), Notice No. 641, GG43402, dated 4 June 2020 - effective 19 August 2022 per Proclamation Notice 2400, GG46752, dated 19 August 2022]
| (2) | An inquiry magistrate may make an order that the matter be referred to a child justice court in terms of section 47(9)(c) to be dealt with in terms of Chapter 9, in which case— |
| (a) | if the child is not legally represented, the inquiry magistrate must explain to the child and the parent, an appropriate person or a guardian, the provisions of section 82(1) regarding legal representation; |
| (b) | if the child is in detention, the inquiry magistrate must, after due consideration of the provisions of Chapter 4, inform the child of the charge against him or her and the date, time and place of the next appearance in a child justice court and must warn the child's parent, an appropriate person or a guardian to attend the proceedings on the specified date, and at the specified time and place; and |
| (c) | if the child is not in detention, the inquiry magistrate— |
| (i) | may alter or extend any condition imposed in terms of section 24(4); and |
| (ii) | must warn the child and his or her parent, an appropriate person or a guardian to appear in a child justice court on the specified date and at the specified time and place. |
