| (1) | A matter may, after consideration of all relevant information presented at a preliminary inquiry, or during a trial, including whether the child has a record of previous diversions, be considered for diversion if— |
| (b) | the child has not been unduly influenced to acknowledge responsibility; |
| (c) | there is prima facie evidence that the child committed the offence; |
[Section 52(1)(c) substituted by section 18 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]
| (e) | the prosecutor indicates that the matter may be diverted in accordance with subsection (2) or the Director of Public Prosecutions indicates that the matter may be diverted in accordance with subsection (3). |
| (2) | A prosecutor may, in the case of an offence referred to in Schedule 1, if the matter has not already been diverted in accordance with Chapter 6, or in the case of an offence referred to in Schedule 2, after he or she has— |
| (a) | considered the views of the victim or any person who has a direct interest in the affairs of the victim, whether or not the matter should be diverted, unless it is not reasonably possible to do so; and |
| (b) | consulted with the police official responsible for the investigation of the matter, |
indicate that the matter may be diverted.
(3)
| (a) | The Director of Public Prosecutions having jurisdiction may, in the case of an offence referred to in Schedule 3, in writing, indicate that the matter be diverted if exceptional circumstances exist, as determined by the National Director of Public Prosecutions in directives issued in terms of section 97(4)(a)(iii). |
| (b) | A Director of Public Prosecutions may only indicate that a matter may be diverted in terms of paragraph (a) after he or she has— |
| (i) | afforded the victim or any person who has a direct interest in the affairs of the victim, where it is reasonable to do so an opportunity to express a view on whether or not the matter should be diverted, and if so, on the nature and content of the diversion option being considered and the possibility of including in the diversion option, a condition relating to compensation or the rendering of a specific benefit or service and has considered the views expressed; and |
| (ii) | consulted with the police official responsible for the investigation of the matter. |
| (d) | A Director of Public Prosecutions may not delegate his or her power to decide whether a matter may be diverted in terms of paragraph (a). |
| (4) | The written indication referred to in subsection (3) must be handed to the presiding officer at the preliminary inquiry or child justice court and must form part of the record of the proceedings. |
| (5) | If the prosecutor or a Director of Public Prosecutions indicates that the matter can be diverted in terms of subsection (2) or (3), the prosecutor must request the presiding officer at the preliminary inquiry or child justice court to make an order for diversion in respect of the child, in accordance with the provisions of this Chapter. |
| (6) | If the presiding officer does not divert the matter as provided for in subsection (5), he or she must refer the matter to the child justice court to be dealt with in accordance with Chapter 9. |
