Waiver of counsel in South African child justice: An autonomous exercise of rights

Abstract

The Child Justice Act 75 of 2008 created many unique procedural mechanisms for the processing of children in conflict with the law. One such procedure relates to mandatory legal representation, and the appointment of such to assist the court in terms of regulation 48, where the child refuses to co-operate with the appointed representative. This submission is a theoretical evaluation of section 35(3)(f) of the Constitution of the Republic of South Africa, 1996, juxtaposed against section 83 of the Child Justice Act and its associated regulations. It posits that obligatory legal representation is an infringement of a child offender’s constitutional right to choose to be represented, and to select a representative of choice. The submission concedes that the focus of the Act is the protection of child offenders. It, however, argues that the insertion of a legal hearing phase into the current preliminary inquiry stage of the child justice process would be an improved response to rights protection than mandatory representation. The author uses waiver processes applicable in selected American states to demonstrate the suggested alternative. The author concludes that waiver is an issue deserving of attention at the pre-trial stage and that therein a child offender is guaranteed both the protection of the best interest standard and the autonomy to exercise the  constitutional right to choose to be represented at trial.