Diversion within South African Criminal Law

By 1st September 2023Criminal Law
diversion south african criminal law

Anyone can make a mistake, caused by an error in judgement which can result in a criminal conviction. For juvenile offenders and first-time offenders, a run-in with the criminal justice system can often result in a career of crime even if the offence does not warrant imprisonment, the offender will be left with a criminal record that has a detrimental impact on employment prospects. Diversion is the alternative initiative where the criminal justice system makes provision for juvenile offenders and first-time offenders to have a second chance. The purpose of diversion is based on principles of restorative justice rather than retribution, to shield remorseful offenders, who freely admit guilt.

A distinction should be drawn between adult diversion and minor diversion. Adult diversions are governed under the Criminal Procedure Act 51 of 1977 and minor diversions are governed under the Child Justice Act 75 of 2008. The main requirement for diversion is that the offender freely and voluntarily admits their guilt before pleading in open court on the criminal charge. Anyone can be considered for diversion depending on the circumstances of each offence. The most common offences considered for diversion are attempted theft, theft, shoplifting, assault, and possession of illegal substances (drugs).

With diversion, the offender is offered a life skills programme and counselling. The family of the offender may be involved in these programmes. Diversion encourages offenders to take responsibility for their actions and avoid re-offending. The diversion programme is determined on the merits of each case. For less serious offences diversion may involve a written apology, counselling, or therapy. For more serious offences diversion can be several hours or up to six months of community service, family group conferences or victim-offender mediation.

Diversion is initiated by the legal representative of the offender. The legal representative will submit a written representation to the Senior Public Prosecutor who will consider the written representation. The prosecutor will usually interview the offender after perusal of the written representation. If the prosecuting authority is satisfied, they will recommend the offender as a suitable candidate for diversion. Diversion does not result in a criminal record, will not impact the offender’s prospects of employment, and will deter the offender from committing further crimes.

Diversion aims to rehabilitate and redeem the offender rather than punish them for the crime. Diversion is created to heal rather than to hurt the offender. Should you find yourself in a situation where an error in judgement caused you to commit an offence that you deeply regret and are willing to take responsibility for, do not hesitate to contact us for legal assistance.


Charne Sebonka



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