Leaning against a wall which supports a five-storey block of flats in the Box in Manenberg — turf of the Hard Livings gang — a young boy outlines his duties as a gang member.
Tyson* (not his real name) sells cannabis and stands post on street corners to signal the presence of the “boere”, meaning the police.
Through selling dagga he earns about R300 per week — “not yet a lot” he says. He buys a bulk of marijuana from a “wholesaler” using money accumulated through begging motorists at traffic lights. Tyson then sells one joint or blunt for R10.
Does he smoke dagga himself?
“Yes,” confesses Tyson, who claims to be 15 years old, but appears to be roughly the same age as the 10-year-old friend leaning next to him. Despite it being school hours, boys not older than 16 years have by now formed a halfmoon around Tyson, who they say is younger than 12.
According to Tyson and his entourage, they do not attend school anymore. Tyson left his school when he was in grade five. After being absent for several consecutive weeks, Tyson was automatically removed from the school’s list of learners.
The same “de-listing” happened to the group of young people talking alongside Tyson. They claim they were removed from their respective school’s lists after not attending classes for a long period of time.
“When it rains, the children here in Manenberg do not go to school,” one boy says as another chirps in to everyone’s laughter: “Die is onse homeground, dis lekker hier, we learn here on the streets.” (This is our homeground, it is nice here …)
(Debate is heating up over the Child Justice Amendment Act increasing the criminal capacity age from 10 to 12 years which some say may accelerate their recruitment into gangs rather than protect them. All Photos: David Harrison)
Another child explains they are better off “outside school than inside”, describing the danger they face when attending local schools that rival gang members also attend.
In March, a violent two-week-long fight between the Hard Livings and Clever Kids gangs saw 11 alleged gang members or affiliates murdered in Manenberg. Two weeks ago, the infamous Americans gang, allegedly murdered three people — one woman and two alleged members of the Jesters gang.
On the day Mail & Guardian met Tyson, the community was warned against stone throwing between two boy groups notorious for their behaviour in Manenberg.
Tyson says he chose to be part of a gang, but that he “doesn’t really” want to be a gangster. The young boy seems to be following in his father’s footsteps.
His father is an alleged Hard Livings member who has been in prison for the past seven years.
Fortunately for Tyson, he has never been caught or searched by the police. Yet.
“He is klein mos,” (he is small) explains another boy.
While adult gangsters might not be aware of their influence on, and abuse of, young Tyson, they are fully aware of the benefit young child gangsters mean to their criminal activities.
And it is for this reason why community activists and workers operating on the notorious Cape Flats in the Western Cape are concerned about the latest amendments to the Child Justice Act.
Criminal above 12
The amended Act’s “inherent danger” is that the revisions might accelerate the recruitment of children into gangs, instead of protecting them, argues Williams Labour Law and Mediation chief executive, Professor Brian Williams.
President Cyril Ramaphosa promulgated the Child Justice Amendment Act (Act 28 of 2019) on 19 August. The amendment increases the minimum age of criminal incapacity from 10 to 12 years.
“Therefore, children below the minimum age of criminal capacity of 12 years may no longer be arrested or charged by the South African police and may also not be prosecuted for the commission of a criminal offence,” the Ministry of Justice and Correctional Services announced on 25 August.
It continues: “Such children, who may have committed crimes, must be dealt with outside of the criminal justice system by social workers who may refer the child to a children’s court for their directions.”
The Centre for Child Law supports the review of the age of criminal capacity.
“The Bill ensures that South Africa is on its way to complying with concluding recommendations from the United Nations Committee on the Rights of the Child as well as General Comment No. 10 which urges states to increase the minimum age to at least 12 years and continue increasing the age from thereon,” the cCentre said in its submissions on the review of the Act.
The centre adds that the minimum age of criminal capacity should be raised even further, to 14 years, “as this is where the upper limit of the current legal presumption that children lack criminal capacity is placed”.
Responding to children being used as vehicles for criminal activities, director at the centre, Karabo Ozah, said: “The fact that children are used by adults to commit offences in gang-related wars should be a matter of concern that is responded to by [the] department of social development and department of justice in order to assist the children and not condemn them.
“The fact that these children are forced [into gangs] is indicative of the fact that they are victims and in fact their communities and the government [have] failed them. We should be asking ourselves if a response through the criminal justice [system] assists the children or not,” contends Ozah.
Upon the signing in of the Act, the ministry of justice cited a 2007 recommendation by the United Nations Committee on the Rights of the Child, that all states parties — of which South Africa is one — “should progressively raise the minimum age of criminal capacity where possible” to not lower than 12 years.
In 2019, the same committee stated that: “States parties are encouraged to take note of recent scientific findings, and to increase their minimum age accordingly, to at least 14 years of age.”
Speaking to the spokesperson for the ministry of justice, Chrispin Phiri explained to the Mail & Guardian which “scientific findings” the committee was referring to.
Phiri says evidence in the fields of child development and neuroscience indicates that “maturity and the capacity for abstract reasoning is still evolving in children aged 12 to 13 years” due to the fact that their frontal cortex is still developing.
“Therefore, they are unlikely to understand the impact of their actions or to comprehend criminal proceedings. They are also affected by their entry into adolescence,” explained Phiri.
When asked to what extent the South African context in terms of child gangsters below the age of 12 years were considered during the Amendment of the Child Justice Act, Phiri responded by saying: “Gangsterism among young children is not yet [a] data collection point”.
However, it was suggested that in 2018 there were about 10 000 child gangsters — or child soldiers — operating in the Cape Flats.
The figure of 10 000 child soldiers formed the centre point of discussion during a public dialogue on the topic hosted at the University of Cape Town in 2018.
Recalling the dialogue that was widely reported on, Williams told the M&G that the figure of child soldiers was obtained by “speaking to different leaders of non-state armed groups who gave us the information on condition that we did not reveal their names”.
“Child soldiers in South Africa are real and exist in those areas of the country, especially in the Western Cape where non-state armed groups predominate,” said Williams.
He defines a child soldier as anyone under the age of 18 who acts in a manner that is directly or indirectly supportive of any non-state armed group (a criminal gang) and hides, carries or uses weapons and/or acts as a lookout or spy in service of the interests of that non-state armed group.
“Youngsters are the preferred recruitment [agents] because of the laws which protect children,” argues Williams, adding: “The inherent danger in moving the age to 12 years old may simply accelerate the recruitment of children into gangs, instead of protecting them.”
Imraahn Mukaddam, human rights and community activist in Elsies River on the Cape Flats, believes the amended Act is an “invitation” to gangs to recruit younger children.
Mukaddam points out his concern that children would not be processed in the criminal justice system, but will be left to social workers and the custody of their parents or guardians.
“These children who have developed criminal instincts and have been exposed to violence are now to be processed by social workers who are already overwhelmed with a number of social issues,” said Mukaddam.
“We had a few cases where children as young as 12 were actual shooters in gang violence and gang-related assassinations,” recalls Mukaddam, adding that they often played a role in home burglaries and breaking into cars.
“They are trained from a young age into these non-combat crimes. But [they] are also the ones carrying drugs and firearms because if they are caught they are not being held criminally liable.”
Mukaddam expresses his concern that after the Covid-19 pandemic the problem has “exacerbated beyond any comprehension”.
“A huge number of boys under the age of 14 years have not gone back to school, and are left to be recruited into criminal networks.”
Data from the past five years from the department of justice and constitutional development shows that rape — at 1 024 charges — is the top charge against children aged 10 to 16 years awaiting trial.
It notes: “It is quite shocking that children from the age of 10 years are charged with the serious crime of rape, and so the GBVF [gender-based violence and femicide] prevention programmes ought to start with children at elementary school.”
Mukaddam says he is not against the Act, but that it exposes a larger systemic problem where young offenders do not have the necessary diversion programmes that holistically address the children’s social needs.
“There is a systemic problem that needs to be assessed, much more than the legislative problem in terms of criminal culpability. The problem is that our systems and safety nets are not working and are aggravating the problem,” argues Mukaddam.
Kensington community policing forum chair, Cheslyn Steenberg shares Mukaddam’s sentiment.
Steenberg argues there is a void between the implementation of legislation and the people on ground level.
The government is making good laws, notes Steenberg. “However the people that are on the ground — your community activists [and] organisations — I don’t think they are empowered enough to be the buffer between the law and the potential transgression.”
Additionally, Steenberg believes the government should focus on preventative measures.
“We need to look at how we put preventive measures in place before we get to that space where that specific law must be activated. We must get to that 10-year-old child soldier or 14-year-old soldier before he or she gets to the punitive stages where, in this case, the law is being activated, you are arrested, you are now handled as if you are a criminal”.
“The minister and all his laws are not ‘human friendly’ if I can use that term. It is not community friendly, or poverty friendly, because it doesn’t consider the plight of the people on the ground. [The government] is putting the resources outside of the community, but they want to come into the community to prosecute.”
Empower ground forces
Kensington, also on the Cape Flats, is known for its gang-riddled neighbourhoods.
However, the forum together with local stakeholders are actively busy to provide an alternative for young people who consider themselves to be part of a gang. The M&G previously reported how empowerment and employment opportunities led to the successful dismantling of the Corner Boys and Okka Boys gangs in Kensington.
In a more recent event involving 10 young boys from Kensington who were begging at traffic lights, the forum mobilised a wide range of stakeholders in the community in an effort to help the boys before they become part of the criminal system.
Steenberg explains that the young boys were begging at traffic lights in Sable Road, on a bridge that crosses the N1 and connects Kensington with the affluent Century City development. The boys’ usual begging became criminal after they started stealing items from passing motorists.
Consequently, the forum called a list of roleplayers together to address the matter — ward councillors, Century City management, the police, the Western Cape social development department, religious leaders and the education sector.
Explaining each stakeholder’s role, Steenberg said: “The police are to react, the ward councillor is to alert traffic officers of the kids and they need to intercept them when they cross the road. Century City appointed two additional security officers to patrol the concerned area, and social development has identified the kids and are intervening on that level. We talked to a religious leader who baptised some of the children and reminded them to intervene on a spiritual level with the family of the child. We have approached the education department to say this child is begging at robots at 10am, why is he not in school?”“That is what we have done as a community to prevent that child becoming the next recruit of the gangs. We are trying to prevent that,” said Steenberg.
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