Child Justice Act Regulations: briefing

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Justice and Correctional Services

16 February 2010
Chairperson: Mr M Gungubele (ANC)
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Meeting Summary

The Department was criticised for the late tabling of the Regulations that according to Section 98(3) of the Child Justice Act were supposed to be tabled in Parliament before 1 December 2009. This was to allow the Committee time to consider them for a period of five months before the Act came into effect on 1 April 2010. The NPA Directives and SAPS Instructions were also late. The Committee decided that the Child Justice Act must be implemented by 1 April 2010 and the Committee would work around the clock to ensure that this deadline was met.

In this briefing on the Regulations, the Committee was told that non-government organisations dealing with children and Cabinet supported the Regulations. The Regulations of the Act prescribed the manner and form of the discharge the duties of magistrates, probation officers, arresting officers and station commissioners. The Department of Justice and SAPS were fine-tuning a few technical regulations such as Regulation 21 which prescribed the manner in which a report would be recorded where a child had complained of sustaining injuries while in detention. Other regulations that attracted discussion were Regulations 38-40 (prescribing how the magistrate would choose an independent observer to assist the child in the absence of a parent or guardian) and
Regulation 48 (on how the court provided assistance where a child refused legal representation).

The Committee wanted the designation period for probation officers to be more specific so as to prevent a situation where there were no probation officers at police stations. The Committee was in agreement that SAPS was not in a position to make a determination where a child had suffered medical injuries, a doctor had to do this. The station commissioner should refer such a report to the
Independent Complaints Directorate. The process of the child having to report back was tedious, vague and not fail-proof enough. The list from which a Magistrate could select an independent observer was deemed to be too exhaustive by the Committee.

Meeting report

Child Justice Act: Regulations and Implementation Plan - address by Department
Mr Lawrence Bassett, Chief Director: Department of Justice and Constitutional Development(DOJ & CD), said that the regulations had been finalised. In this meeting, a broad overview of the Act would be presented as well as the regulations. The Department had met with the South African Police Service (SAPS) earlier.SAPS was not satisfied with a few technical matters in the regulations which they were finalising together. SAPS had asked the Department to convey this to the Committee.

In reply to the Chairperson asking if the changes would affect the substance of the Act, Mr Bassett said that the regulations would be affected but not the Act.

Mr J Jeffery (ANC) pointed out that the Act had been finalised in 2008 and had to be implemented in 2010. The Department had been given a lot of time to finalise the regulations. Both the Regulations and the Directives had to be approved by Parliament.

The Chairperson asked for a further explanation on the Directives and Instructions.

Mr Jeffrey responded that the Committee’s Content Advisor could do a brief presentation. The point was that the Act had already not been complied with because the Regulations, the NPA Directives and the SAPS Instructions were late.

Ms Christine Silkstone, Content Advisor for the Committee, explained that the Regulations came from the Department and had to be approved by Parliament. The Directives came from the National Prosecuting Authority (NPA).

The Chairperson interrupted and asked what the difference was between the Directives and Instructions.

Mr Basset responded by reading out Section 97 of the Act, which gave some clarity. The Directives gave more detail as to how the prosecutors had to go about their work. The National Commissioner of SAPS had to issue Instructions, these were similar to the Directives but they were applicable only to police officials in order to ensure that they dealt with charges in accordance with the Instructions. This they had to do in order to promote uniformity and consistency.

Mr Jeffery said that the regulations were a legal concept as in secondary legislation; they were drawn up by the Minister and dealt with the implementation of the Act. The Directives were how the NPA filled in the gaps of the Act. The SAPS Instructions were similar to the Directives. The Committee had to approve the Regulations. If the Committee did not approve the Regulations before the commencement of the Act, they would be deemed to be approved. Section 98(3) provided for the consideration of the Regulations for a period of 5 months. It stated that the Regulations had to be tabled by no later than 1 December 2009 but they had been tabled only the previous week; this meant that the Committee now had but a month and a half to approve them. The Directives had to be approved and the Committee did not have them yet. The SAPS Instructions had to be tabled in Parliament 30 days before they were issued and the Committee also did not have them. The Regulations were 3 and half months late, the Committee needed an explanation. There also had to be an explanation for the absence of the NPA Instructions. A provision of the Act had already been broken before even the commencement of the Act. The Regulations should have been considered in January, the Committee was now being rushed and this was unacceptable.

Mr Bassett said he understood the frustrations of the Committee and apologised. The Department had tried everything in its power to get the documents ready on time. The component that dealt with the Regulations and the legislation was not responsible for the Directives.

The Chairperson highlighted that the Department knew the deadline and today was too late. How peremptory was the directive to implement the Act on a particular date since it had these defects? What was the relationship between the defects and the legal directive?

Mr Jeffery responded that Section 100 of the Act held that it could not be implemented any later than 1 April 2010. It was extremely serious that some peremptory provisions had not been complied with. An amendment Act could be adopted to change the date to a later time. Why had the Director General (DG) not come to explain this matter herself? A decent and proper explanation was needed from the proper authorities. What could be done to ensure that the Act was implemented properly on the set date?

The Chairperson suggested that the Department should present at the present moment, a deadline could then be set for all the necessary steps that had to be taken for the implementation of the Act to be initiated. The Act had to be implemented considering the vulnerable nature of the objects of the Act.

Mr Jeffery suggested that the Department could brief the Committee, as there was nothing to be gained from not being briefed.

The Chairperson took the decision that the Department would brief the Committee and then at the end of the briefing a plan would be mapped out for the route that would be followed going forward.

Mr Jeffery added that the Committee could not amend Regulations; that power vested in the Minister. The Committee had persuasive powers where it came to things it was not satisfied with. Therefore the Committee could persuade the Minister to make an amendment and then re-table the Regulations. The Committee had an informal power of amendment, not a formal one.

Presentation on the Broad Overview of the Act
Ms Ina Botha,
Director: Secondary Legislation, DOJ &CD, said that the Act brought substantial changes. The translation of the Act into Setswana had taken a lot of time hence the delays. The Act was applicable to children who were in conflict with the law but the Act itself would be applied in accordance with the values of the Constitution. The Act sought to promote the spirit of ubuntu. The Act provided that a child under ten years of age lacked criminal capacity. There were specific provisions for the attendance of children in court. The provision for the holding of a preliminary inquiry for children between ten years and eighteen was important for establishing the background of the child. The different sentencing options available to children would be extended by the Act. It was important to note that the Act sought to entrench the element of Restorative Justice into the criminal justice system. The Act was mostly applicable to a child who committed a crime when they were under the age of 10 years as well as to a child who was 10 years or older but less than 18 years when called to appear in a preliminary inquiry. The exception was that the Act also included persons who committed a crime when they were 18 years but at the time of the preliminary inquiry were less than 21 years. The Act provided a road map for the manner in which a child would be handled. The age of the child and the seriousness of the offence were important considerations. The seriousness of the offences was contained in three Schedules at the end of the Act. Schedule 1 dealt with the least serious offences and Schedule 3 with the more serious ones. The Act tried to take away offenders who were under 10 years out of the criminal justice system. This was because such a child was deemed not to have criminal capacity.

In terms of the Act, a child over the age of 10 years but less than 14 years, who was alleged to have committed a crime, was presumed to lack capacity. The State had to prove beyond reasonable doubt that such a child had criminal capacity. The State had to ensure that such a child understood, knew and could take responsibility for their actions. If the Stated failed to prove criminal capacity, the child would be dealt with according to the provisions for a child less than 10 years. Where the State had proved criminal capacity or the child was over the age of 14 years the Act provided that the probation officer was responsible for the assessment of the child. Where a child had been served with a written warning, a summons or had been arrested, the probation officer had to assess the child within a specific time period. The purpose of the assessment was to establish if the child was not in need of care, determine what the prospects of a diversion were and to estimate the age of the child if it was uncertain. The probation officer also had to formulate the release, detention and placement of the child. The Department did not want to detain the child in police cells. The second option was the preliminary inquiry, which was an informal procedure, which was inquisitorial in nature. One of the objectives of the preliminary inquiry was to assess the report of the probation officer.

Level 1-diversion options applied to the Schedule 1 offences. This included a written or an oral apology. Level 2 diversion options applied to Schedule 2 offences and could be in the form of therapy or placement in the supervision of a probation officer. More importantly, the Act provided for the accreditation of diversion programmes. The court had to explain certain issues to the child; this included the child’s rights and the procedure that could be expected. The Child Justice Court could still divert a case during court proceedings. A child who had not been diverted would be tried which could lead to conviction and sentencing. A child was not removed from the community if the child had a community-based sentence. Restorative Justice was about the child and the victim and how that relationship could be restored through, amongst other things, paid compensation. A further sentence could be placement in a childcare facility.

Presentation on the Consultation Process
Thandazile Skhosana, Senior State Law Advisor: DOJ &CD, said that the regulations were the responsibility of the Minister in consultation with other ministers mentioned in the Act. The nature of the legislation cut across departments and therefore there had to be a consultation processes with these other departments. The Department began drafting the Regulations as early as November 2008 after the Act was approved by Parliament. Bilateral discussions were conducted with the Departments of Police Social Development and Health. A written letter followed the bilateral discussions from the DG of the Department to his counterparts requesting input on the matters concerning the regulations that fell under the scope of their respective departments. The first draft of the Regulations was finalised in August 2009. A notice was published in August 2009 from the Department inviting the public for commentary on the draft regulations. In addition, invitations were sent to the relevant departments including civil organisation groups - especially those who were part of deliberations on the Bill when it was in Parliament. Further bilateral discussions were needed with other departments, as some of the submissions were not clear and warranted further discussion. The Minister had to send letters to his relevant counterparts for their comments on the draft Regulations; this was done in November 2009.

Cabinet supported the draft regulations. The Non Governmental Organisations (NGOs) that were involved in the consultation process had no objections to the draft Regulations. Thus the Department was of the opinion that the NGOs also supported the draft Regulations. The Regulations had to be drafted in line with the framework of the Act as well as the specific enabling provisions.

When the Regulations were sent out for public comment, the South African Human Rights Commission (SAHRC) indicated that in the Act, the provision for the transportation of children with adults was not in line with the provisions of the Constitution. This issue was debated at length in Parliament and amongst Committee members. The conclusion was that because of the financial and human resource constraints it may have been impossible for the Act to comply with the provisions of the Constitution. It was therefore provided in the Act that the child as a general rule would be transported separately. As an exception to this provision, if it was impossible to comply with the provisions in the Constitution, a police official may transport a child with an adult, provided that a written submission to the presiding officer that explained why the child was transported with an adult was submitted. The Magistrates Commission pointed out that measures in Section 58 were harsh as children often failed to comply with orders due to a lack of transport money that was necessary for going to where they had been summoned. The Section of the Department that was responsible for the expungement of criminal records pointed out that Section 87 of the Act was similar to Section 2(b) of the Criminal Procedure Act. The proposal was that the Criminal Procedure Act should be amended to include the provisions of Section 87 in order to make the law more uniform. A further proposal was that the requirements for the expungement of criminal records for adults and children should be the same. An attempt had been made not to over regulate issues but also to allow different unforeseen circumstances to be accommodated.

Presentation on the Regulations
Chapter 1 of the Regulations

Ms Skhosana explained that the Section 1 dealt with general provisions and the definitions. Regulation 2 dealt with the designation of probation officers. There was no enabling provision in the Act. It was requested by SAPS that in order to make the implementation easier a designation for a probation officer should be made at a central point where submissions could be made.

Chapter 2
The second chapter dealt with the capacity of the child and matters relating to the age of the child. Section 9 of the Act required the Minister to prescribe the manner in which the arresting officer should hand over a child who was less than 10 years old or who did not have criminal capacity. Regulation 3 dealt with the handing over of a child. The emphasis in the Regulation was on the use of language by the police official when addressing the child. Regulation 3 addressed the manner in which the police official must conduct himself/herself in accordance with the spirit of the Act. Section 9 requested the police official to indicate to whom the child was handed over. Section 9(3) allowed the probation officer to take certain action to avoid the child going through the criminal justice system.

Chapter 3
Section 18-20 of the Act provided for a written summons as a method to compel the child to attend a court hearing. Regulations 16,17 and 18 dealt with the manner in which a probation officer explained to the child and parent the issues raised in the Act. The emphasis was again on the language to be used by the police official.

Chapter 4
This chapter dealt with the release, deployment or placement of a child. Regulation 19 set out what had to be contained in the report, which would be written as per the requirements of Section 22. Regulation 21 prescribed the manner in which a report would be recorded where a child complained of injuries suffered in detention. Section 28 of the Act required all station commissioners to keep a detailed register of all detained children. Regulation 22 was a reference to this in terms of the content of such a register. It was important to note that the register was divided into two categories. The regulations provided for direct access to the register in so far as officials, in the exercise of their duties were concerned. Any other person who wished to access the register could do so through written request to the station commissioner concerned. Section 29 provided for the presiding officer to request a written statement from the manager of an accommodation center for the child. Regulation 22 prescribed the format of this written statement. The Department had tried to regulate who would be responsible for transporting a child back to court. Section 33 was concerned with the transportation of the child where he/she could not be separated from adults. Regulation 25 regulated the content of the report that had to be written by the transporting officer concerning the non-separation of the child.

The Chairperson asked if the services of forensic psychologists were used?

Ms Skhosana responded that the services would be applicable in terms of Section 11.

Mr Jeffery was surprised that the Department had not dealt with the issue of medical examination in detail. The Regulations did not deal with whether or not the station commissioner had to furnish reasons why he/she would refuse medical treatment for the child. The Regulations did not make provision for minor siblings to be allowed to view the register at the station; it did so only for guardians and parents.

Mr Jeffery asked for more clarity on the issue of Section 79 and 58, what was the Magistrates Commission proposing? Which section of the Constitution was breached if children were transported with adults?

Mr Jeffery asked if there should not be a time period for the designation so that one would not find a situation where there were police stations without probation officers.

Ms Botha responded that a clause compelling the station commissioner to give reasons could be included.

The Chairperson added that misdemeanors could emerge from the report as prescribed by Regulation 21.

Ms Skhosana referred to Regulation 3(b) and (c) which required an investigation by the station commissioner of any complaints and also informed the content of the report on such an investigation.

Ms L Chikunga (ANC), Chairperson of the Portfolio Committee of Police, was worried about the lack of inclusion of the Independent Complaints Directorate (ICD).

Mr Jeffrey added that a requirement should be put in place that compelled the station commissioner to submit the report to the ICD.

The Chairperson requested that this requirement should be a precondition to all such matters.

Ms Chikunga stated that police officers would not be able to properly assess the extent of the impact of injuries and a qualified doctor should do this.

Mr Basset agreed with Ms Chikunga and added that SAPS had already indicated that a doctor would be better qualified and wanted this Regulation to be amended.

Chapter 5
This Section dealt with the regulation of the child. Regulation 29 set out how the probation officer went about informing the child of his or her rights. Section 40 of the Act required of the probation officer to complete a report after assessing the child. Regulation 27 prescribed the manner in which the report should be completed.

Chapter 6
This chapter was concerned with the preliminary inquiry. Section 87 of the Act prescribed how the presiding Magistrate explained certain issues to the child. Regulation 28 dealt with this matter.

Chapter 7
This chapter dealt with diversion. It covered Section 51–62 of the Act. The diversion options were contained in Section 53 of the Act. Regulation 29 prescribed the manner in which the diversion orders were to be issued. The presiding officer could issue more than one diversion order. Regulation 33 dealt with the non-compliance of the child.

Ms N Michael (DA) expressed concern over the use of ‘suitable person’ as its definition was too wide. ‘Suitable person’ should be taken out and replaced with ‘officer’.

Mr Jeffery said that ‘suitable’ person was defined in the Act as being a probation officer. Where were the Regulations for Section 57(2)?

Ms Skhosana pointed out that they were in Regulation 33.

Mr Jeffery continued that his worry was over the failure to comply. What did reporting back to the officer entail and how often did the child have to report back? Reporting back was a measure that was at the end and perhaps at a time when it would be too late to correct the child. A reporting mechanism via the schooling system could be set up. This needed to be re-considered.

Ms Botha drew the Committee’s attention to Section 58 where failure to comply was dealt with by the Magistrate. It should however be strengthened through possibly the suggestion put forward by Mr Jeffery.

Chapter 8
Dealt with the trial in the Child Justice Court and covered Section 53-58 of the Child Justice Act. Regulation 37 prescribed how the presiding officer should inform and explain proceedings to the child. Simple language should be use and the presiding officer should take into consideration the level of development of the child. Section 65 of the Act required the Magistrate to keep a list of independent observers who may be appointed to assist the child. Section 38-40 of the Act regulated the process of drawing up the list. Section 38 required that a particular person on the list must be drawn from the community and the Department had created Form 11 for the nominated person to indicate if he/she wished to accept the nomination.

Mr Jeffery expressed concerns over Section 38(1). The Magistrate should advertise the need for an independent observer. One could have a ward community member or a member from a traditional council. The list was too narrow as it only had NGOs and religious groups etc. Individuals should be allowed to nominate themselves. The Magistrate could be given power to decide who was selected from the prescribed list.

The Chairperson accepted Mr Jeffrey’s view but added that if the Act was open for the Magistrate to exploit any loopholes then this situation could be viewed differently.

Ms Botha commented that the independent observer would take the place of a parent only. They did not possess any special powers. The Department tried to get some sort of respected person, as a nominee would not necessarily be well known by the presiding officer.

The Chairperson asked about the role of forensic psychologists.

Ms Skhosana responded that the forensic psychologists may be nominated on the list of independent observers and may give a pre-sentence report if required.

Chapter 9
This chapter dealt with the sentencing of the child.
Section 72-74 provided for a community based sentence, Restorative Justice and a fine. The court had to request of the probation officer to ensure that the child complied with the order. Regulation 41 required that a report had to be compiled which would indicate the progress mad in compliance with the order. Regulation 42 provided that in the case of Restorative Justice any impediments should be noted. An offence under Schedule 3 may carry a sentence of more than 5 years imprisonment.

Mr Jeffery felt that there should be more detail in the regulations, which required of the Magistrate to order a report on a regular basis.

Ms Silkstone asked what would happen once a child had served his/her sentence?

Ms Botha responded that the Department was already guided by what was already contained in the Act.

The Chairperson added that there were issues that the Act would never be able to completely solve. The state of the entire society had to be sorted out. The ideal behind any law was to complement society.
Ms Pat Moodley Acting Chief Director DOJ & CJ, said that the Restorative Justice option meant that the child had to be re-integrated into society.

Chapter 10
Regulation 48 dealt with this chapter. It set out the manner in which the court provided assistance where a child refused legal representation. The court would appoint a legal representative on behalf of the child.

Mr Jeffery asked why the legal representative had to appear at each and every hearing. Section 83 was contradictory.

Ms Moodley responded that the reason for the requirement was that where the child was in need of a legal representative; lawyers often did not pitch.

Ms Michael agreed with Mr Jeffery. She noted that a child who rejected legal counsel had a serious problem. There had to be a mechanism whereby legal representation would be at the child’s disposal when they needed it. At the same time a legal representative could not possibly be required to be at every single hearing including a remand.

The Chairperson responded that the principle of always taking into consideration the best interests of the child was an objective one. This principle had to be applicable in all circumstances.

Ms Moodley further added that if a child rejected legal counsel, then they were in fact displaying anti-social behaviour and did not want to be part of the system.

Mr Jeffery insisted that there should be a section added for the regulation of legal representatives.

Ms Chikunga added that many of the young prisoners did not want legal aid board lawyers because they thought of them as state lawyers who would put them in jail.

Chapter 11
Ms Botha said that the chapter dealt with convictions, sentences and expungement of records. Expungement of records was possible in the case of children; this depended on the nature of the offence and on certain conditions. The expungement of diversion orders was a provision that came from the DG of the Department of Social Services.

Chapter 12
This was a miscellaneous provision that was in line with Chapter 14 of the Act. Section 97 (6) required the DG of Social Development to keep a register of the children over the age of 10 years who had been diverted from the system.

Discussion of the Committee’s Resolution
The Chairperson stated that the presentation was not in line with any decisions that would be taken. It was more of an informative session.

Mr Jeffery said that the Regulations would have to be withdrawn, amended and then re-tabled by the Minister. He requested that the Committee should have copies of the redrafted Regulations so that the Committee could comment before the Minister re-tabled them. When would the Committee get copies of the NPA Directives and the SAPS Instructions?

Ms Moodley responded that the Directives were with the National Director of Public Prosecutions.

Mr Jeffrey asked for the Chairperson in his acting capacity to ask the Minister to ensure that the Committee had them as soon as possible. The Constitutional Court had pronounced the minimum sentence as being unconstitutional in the Act. What was the latest development on this?

Mr Deon Rudman, Deputy Director General for Legislative Development for DOJ&CJ, informed the Committee that the Judicial Matters Amendment Draft Bill had been finalised and was ready for public comment. It would be brought before the Committee in about two months time.

The Committee decided that the Child Justice Act must be implemented by 1 April 2010 and the Committee would work around the clock to ensure that this deadline was met.

The Chairperson adjourned the meeting.


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