Can Deveney Nel’s murder suspect, 17, be tried as an adult? Experts weigh in

While the Criminal Procedure Act provides that a minor who commits a crime will be tried as a child despite being over 18 when proceedings start, the alleged killer of Deveney Nel could likely be tried as an adult due to the Child Justice Act, legal experts said. 

Anti-violence against women organisation One Billion Rising SA is calling on the justice system to hold the teenage boy accused of the murder of Deveney Nel in a juvenile facility until he is 18 so he can be tried and sentenced as an adult.

Police finally made a breakthrough at the weekend when they arrested a 17-year-old boy for the alleged murder of Nel, 16, who was found dead at Hoёrkskool Overberg in the Western Cape earlier this month.

Nel, a grade 10 pupil, was discovered dead with multiple stab wounds in a storeroom on the school premises by Caledon police officers after her mother reported her missing when she did not return home to Grabouw.

The 17-year-old suspect appeared before the Caledon magistrate's court on Monday on charges of murder but has been kept in a safe place until the matter resumes on September 18.

One Billion Rising SA said they would be writing to the court to request that the boy be tried as an adult. Despite him having committed the crime as a minor, coordinator Lucinda Evans said the accused boy knew of his heinous crime but even took part in the search for his alleged victim.

“He allegedly killed her and was part of searching for her. He was clever for two weeks as he evaded the police and they couldn’t catch him. That is not the mind of a child; that is the mind of an individual that has worked out how and when and what he is going to do.”

She said the suspect is reportedly a volunteer for emergency services and was therefore aware of what he was doing when he allegedly stabbed Nel to death.

“He is completely compos mentis (having control of his mind) and he knows what he did. His legal team will maybe ask for a psychiatric evaluation.

“We are unapologetic about this. There is no way we can advocate that he is a child. Therefore One Billion is unequivocally asking he be tried as an adult and placed in a juvenile facility until he turns 18, and they try him as an adult. No special treatment and places of safety. Juvenile facilities and [its officials] are equipped to deal with dangerous criminals. How would Deveney’s mom feel?” she told TimesLIVE Premium.

However, the Criminal Procedure Act states that those aged under 18 were minors and would face trials as children.

Criminal law expert Dr Llewellyn Curlewis said while people at the age of 17 have criminal capacity, they cannot be tried as adults. 

“These organisations can do whatever they want, but he is under 18 and he will stand trial based on his age of 17 and his sentencing will also consider his age when the crime was committed, otherwise it is unfair,” he said.

Asked whether the accused teen would be sent to a correctional facility with adults should he be convicted and sentenced after the age of 18, Curlewis said the courts would not expose him to a prison sentence similar to an adult.

I don't see any reason why he can't be tried as an adult. If you kill someone like that, you are no longer a child.

—  Advocate Deon Pool, former magistrate 

“The court will have mitigating factors in his favour of when he committed the crime. He will never be exposed to the most harsh sentence prescribed for adult offenders. He won’t get a life sentence in prison, for example.”

He said the accused boy, should he be found guilty, could be sent to a juvenile facility due to the age that the crime was committed.

“It is a sad scenario and I understand the predicament and the family of the complainant to cry out for justice. The law says children under 18 will be treated differently to adults.”

However, the Child Justice Act says otherwise, as it can indeed try a minor, particularly a 17-year-old, as an adult, depending on circumstances such as when he would be turning 18. 

Former magistrate Adv Deon Pool said the court has the discretion to make that determination after considering various factors such as the accused's developmental stage. 

"He is 17, and [the court will look at] how far he is from 18 would make him likely to be tried as a major, considering the nature of the offence as well. Between 16 and 18, the Child Justice Act makes provision for an inquiry and the court can determine if a 17-year-old should be tried as an adult," he told TimesLIVE Premium. 

Even if the accused is tried as an adult, this does not mean he will be sentenced as such since a different test is applied to determine a suitable sanction, such as the nature of the offence, why it was committed and a probation officer report that outlines the teenager's circumstances, Pool said.

"They will consider the mitigating factors: his age at the time of the offence, development stages, education level and personal circumstances like his family, his motivation to the murder and the relationship with [Nel]. Added to this is violence against women and children.

"I don't see any reason why he can't be tried as an adult. If you kill someone like that, you are no longer a child."