Child Justice Act implementation: progress report

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Justice and Correctional Services

22 February 2010
Chairperson: Mr N Ramatlodi (ANC)
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Meeting Summary

A number of separate briefings were given to the Committee on the progress of the implementation of the Child Justice Act (the Act). It was noted that the Regulations for the Act would be withdrawn and then re-tabled. The Draft guidelines for the One Stop Child Justice Centres were under way. At present there were only two of these centres. The reason for this was that there was no allocated budget from National Treasury for their expansion. The Department of Justice had been developing the protocols for the implementation of the Act since 2002. This included all the other departments. The Department was responsible for the coordination between the Child Justice Act and the Children’s Act but it respected the fact that Department of Social Development (DSD) was the main role-player where the Children’s Act was concerned. There was a cluster budget application of R660 million but only R30 million had been granted.

The National Director of Public Prosecutions had approved the National Prosecuting Authorities’ Directives. A task team had been established shortly after the Act came into existence to ensure that it would be implemented successfully. This included the training of Prosecutors and the development of a training manual.

The South African Police Services’ (SAPS) National Instructions were currently in draft format. The consultation process was already under way. It was imperative for the Department of Social Development (DSD) to work with the police so that Probation Officers would be readily available within the 48-hour period. . Supporting legislation to the Act comprised the Probation Services Act 116 of 1991 and the Children’s’ Act 38 of 2005. The clause that was of most concern for Legal Aid South Africa (LASA) was that a child could waive his or her right to legal representation. LASA would be able to provide continuous service when the Act came into existence, but said that at present the impact of the Act was unknown.

The Committee was worried about the training of magistrates as well the Department’s readiness to implement the Act. The fact that SAPS was the first point of call was particularly worrying for the Committee, as there was a lack of confidence in the ability of SAPS at station level to apply the Act and to deal with the administrative demands of the Act. The NPA Directives repeated the provisions in the Act and there were some errors in the repetition of the Act’s provisions, which the Committee found unacceptable. The Committee found the under utilisation of DSD’s facilities to be regrettable. Some Committee members were of the opinion that the interests of the child would be best served by the presence of legal representation at the Preliminary Inquiry whilst others felt that the nature of these inquiries would be non-adversarial and thus the provisions of the Act should remain unchanged. The Committee was unanimous in its agreement that all the relevant role players were either not ready for the implementation of the Act or were still to provide more information. This was especially the case for the Department of Justice, NPA, SAPS and the DSD. It was noted that further meetings and report-backs must be held.

Meeting report

Outline of the Purpose of the Meeting
Mr M Gungubele (ANC) addressed the meeting and said that there were a number of mechanisms that were not in place for the successful implementation of the Child Justice Act (the Act). The Regulations were supposed to be implemented by the end of 2009 but this was done last week only. The Committee had become apprehensive about the date of 1 April 2010, by which the Act was due to be implemented. It was imperative that all stakeholders who had a role to play in the implementation of the Act should meet. At the end of the meeting there should be clarity on the NPA Directives and Police Instructions.

Department of Justice and Constitutional Development (DOJ & CJ): Progress Report on Implementation of the Child Justice Act
Ms Pat Moodley, Acting Chief Director, Department of Justice and Constitutional Development, informed the Committee that one of this Department’s first responsibilities was to develop subordinate legislation. The Notice for the Evaluation of Injuries by competent persons had already been circulated for purposes of comment. The Minister of Finance would be consulted for approval of this notice. It would be translated and then published on 26 March 2010. The Regulations had to be withdrawn and then re-tabled. This would be done by the end of February.

Mr J Jeffery (ANC) interrupted and asked if there was a written document on this.

Ms Moodley responded in the affirmative.

Ms Moodley continued and said that the Act also provided for rules of court to be drawn. The Rules Board had been notified and if they deemed it necessary that there should be rules of court that governed the processes of the Child Justice Court, then they would be tabled.

Mr Jeffery asked when could the Committee engage with the Department.

The Chairperson replied that the ideal time would be after each presentation

Ms Moodley said that the draft for the National Policy framework on Child Justice had already been developed and a consultation process was under way. The document would be finalised by a task team during February and March. The document had to be tabled three months after the implementation of the Child Justice Act. The document would be tabled by May and presented in Parliament by June 2010. Draft guidelines for One Stop Child Justice Centres, Diversion and Restorative Justice as well as preliminary inquiries were all receiving attention.  The Preliminary Inquiry was a new procedure that had been set out by the Act. A policy was not necessary as the Act and the Regulations clearly set out the process. The draft guidelines for the One-Stop Child Justice Centres were nearing finalisation and readiness for submission to the Director General (DG). The Department of Justice (DOJ &CD) was responsible for ensuring that human resources and infrastructure were ready for the implementation of the Act. There were two One Stop Child Justice Centres. The challenge was that there was no allocated budget from National Treasury for these centres. The plan was to try and find out which facilities were available for secure care from the Department of Social Development (DSD). If there were facilities, then the One Stop Child Justice Centres would be attached to them.  It was not necessary to build new buildings in areas where there was a large volume of children in conflict with the law as the courts and the police stations were often close to each other. A draft-training manual had been developed and training had already taken place in five provinces. The Regulations would be added to the manual as well. The National Instructions from the South African Police Services (SAPS) and the National Directives from the National Prosecuting Authority (NPA) would be included in the manual.

The Inter-Sectoral Committee on Child Justice (ISCCJ) had been in existence since 2002. The Department had been working for many years on the protocol for the implementation of the Child Justice Act. The respective Ministers of the other relevant departments had signed off on this protocol. A lot of aspects of the Act such as assessments, the removal of children from prisons and the provision of accommodation had already been initiated. Statistics for children awaiting trial had been collected via a monitoring mechanism that had been set up. Trends were beginning to show in respect of the information that had been gathered. Each province had its own Child Justice Forums. Information Systems within the Department had been developed. The challenges were that the Department relied on manual statistics and there was a lack of communication between and within departments. Child Justice material had been branded, fliers had been handed out and posters had been put up. Distribution of this material to the regional offices would happen before 1 April.

The Department was responsible for the coordination between the Child Justice Act and the Children’s Act. However, it respected the DSD as the main role-player where the Children’s Act was concerned. The challenges related to inadequate budget allocations. For 2010/2011 the Cluster had requested R660 million for all the departments involved, but only R30 million was granted. This amount would be divided between Legal Aid South Africa (LASA), the NPA and the Department. Other departments had made their own bids but received no additional cluster budgets. The main area affected by the low budget allocation would be the rollout of the One Stop Child Justice Centres.

Mr M George (COPE) asked for more clarity concerning the fact that the presenter had said that the Regulations had been withdrawn but would also be ready.

Mr Jeffery elected to respond for the benefit of the non-Justice members of the Committee. The Regulations on the Child Justice Act had to be approved by both houses of Parliament. The Regulations came from the Minister and there was a briefing on them last week.
The House was limited to either approving or rejecting them. If there were any amendments then the regulations would be withdrawn and then re-tabled by the Minister. There were a few amendments arising from the meeting last week. The Department had to bring the National Council of Provinces (NCOP) on board as soon as possible as the Regulations could be either accepted or rejected. The briefings must be simultaneous. This was in order to ensure that the re-tabling process would be done with both Houses being satisfied.

Mr Jeffery referred to page 4, and asked what the Department meant by the training of magistrates. If the Committee members were to go the Magistrates within their constituencies, and ask them about the Child Justice Act, would they know what the Committee was referring to? The same would also apply to SAPS as well as social workers. He asked if the Department was in a position where all the role-players would know what to do once the Act was implemented.

Ms Moodley responded that the training that was referred to was in relation to the manual and was only the first round. Training had been ongoing for a long time in respect of the Act. Each Department had had individual training; this included the NPA and DSD. The magistrates in Kwazulu-Natal (KZN) had been specially trained, including those in the North West. The Department could not call magistrates to a training session; they had to initiate a request themselves. Magistrates had peer group training. They had their own individual training sessions throughout the country. The Department had been providing support over the last couple of years.

Mr George further expanded on the issue of readiness and asked how ready was the Department regarding the implementation of the Act.

Mr Jeffery was baffled that the Department had to wait for magistrates to request training. Committee members should conduct inspections at the magistrates’ courts within their own constituencies, as this was worrying.

Ms D Schafer (DA) asked if SAPS had been trained because this was not contained in the report. If not, then she enquired the reasons why, and asked what was being done about this.

Ms Moodley replied that SAPS were invited to the inter-sectoral training in the regions. The inter-sectoral training was merely to set-up and pilot the manual. SAPS would address the Committee on their in-house training initiatives.

Rev K Meshoe (ACDP) asked if all the magistrates had been trained, and if those who had been trained were expected to train other Magistrates. It was possible that the few who had already been trained were expected to pass on the information. He wondered if there was a system in place to ensure that all magistrates were on board.

Mr Gungubele said that the point that was being put across by the Committee was that the government was responsible for ensuring that the Act was implemented.

Ms Moodley said that the Justice College (JC) had the responsibility to train all Magistrates. The JC’s training was ongoing and their year programme was already out. JC usually trained all magistrates on new pieces of legislation. The initiatives and endeavours of the magistrates as well as the support by the Department was in addition to the underlying training by the JC.

Mr Jeffery said that it would be useful for the Committee to have regular statistics on children awaiting trial, who were being held in Correctional Service Centres.

Ms S Sithole (ANC) was worried about the reports. She noted that, in order for the Act to be successfully implemented, a holistic approach must be undertaken, which would be in line with cooperative governance. When implementation commenced, everyone must be working from the same basis.

The Chairperson replied that that was why all role-players were present at the meeting in order to integrate the implementation.

Mr Jeffery referred to page 9 and pointed out that the Department had asked for a lot of money but received very little. He asked what the Department would do in order to adjust, and where would there be cost-cutting. He also enquired what the Department would not be able to do, in view of the funding being limited.

Ms Moodley said that Legal Aid South Africa (LASA), as well as the NPA would respond to the question.

Ms Schafer asked if the R124 million was part of the R660 million or not.

Mr Gungubele suggested to Ms Moodley and to the other presenters that it was necessary to set out more details in their presentations and responses, especially in terms of time frames. This was not a process that was theoretical, since the Act had to be ready for reliable implementation.

Ms Christone Silkstone, Content Advisor for the Committee, asked for an overview on the Department’s shortcomings as a result of the smaller budget that was allocated to it.

Mr George expressed worry about the difference between what the Departments had asked for and what they had received in the Cluster budget.

Ms Moodley responded that the figure of R660 million that was requested was an intersectoral, cluster budget. It included the needs of DSD, the Department of Correctional Services and the Department of Education. It was to be seen as a total budget.

Mr L Landers (ANC) commented that one of the requirements when Parliamentary Committees had dealt with Bills was whether the Bill had been costed. Mr Jeffrey indicated that the Committee did do this. This meant that the financial implications were taken into consideration. He therefore enquired why there were such problems now. If the financial implications were done in 2008 then it seemed illogical that budget issues were emerging all of a sudden. A substantial training budget had also been referred to.

Ms F Chohan (ANC) said that the cost implications of implementing the Act were considered right at the beginning. It was clear that the costing exercise was not really worth much. The presentation had too little information. If there was one element of the Act that could not be practically realised, then it would be non-implementable. The Department should have a single implementation plan across the board and present it to the Committee. There should not be a situation where there were youth centres in some areas but not in others.

Ms M Michael (DA) agreed with Ms Chohan, it was the practical implication that posed the biggest challenge; everybody was at a different level and the only certainty was that everybody would not be ready. Chapter 9 required additional staff, and the question was where would these additional staff come from, how would they be paid, especially since the budget was so low, and what service would they provide. The diversion of child offenders required the provision of diversion services and this required a substantial budget, especially in under resourced rural areas. This was testament to the fact that the practical implementation of the Act was not going to happen.

Ms Moodley’s position differed from the point of view of the Committee by saying that collectively the various Departments as well as DOJ & CJ would be able to implement the Act. This was because the protocol had been in place already for the last eight years. There were people who were already giving effect to the Act.

Mr Gungubele pointed out that the biggest challenge emerging from the discussion was that the meeting lacked the capacity to give the Committee a final plan. It was in essence a step towards the realisation of a well-coordinated plan.

Mr G Lekgetho (ANC) asked for further clarification on the additional staff.

Mr Jeffery asked for more information on the NPA Directives and corrected Ms Michael. He had not suggested that the Act should be amended, and nobody had said that it was not ready. This was an area where a lot more information was needed. It was a pity that the Committee did not have a single document; this was perhaps a reflection of the inter-departmental cooperation not being too great.

The Chairperson informed members that there would not be any further discussion sessions, but that instead issues of concern would be flagged and after all the presentations had concluded a resolution would be adopted.

Presentation by the NPA: Progress Report on the Implementation of the Child Justice Act
Mr Kombisa Mbakaza, Deputy Director of Public Prosecutions, apologised for the delay in the NPA Directives. The Committee was informed that the National Director of Public Prosecutions (NDPP) had approved the Directives. The NDPP had made a personal undertaking to take the Directives to the Minister today for him to sign them. The Directives would then be tabled next week. A task team was established after the Bill became an Act in 2008. The task team had terms of reference developed in order to ensure that the Act would be implemented effectively. The task team was established to develop the Directives, the Training Manual and the Process Maps. Process Maps were the showings of the Child Justice Act, as it would apply in court. The end product was communicated to all prosecutors and training was carried out throughout the country. An implementation plan for the task team was developed that spelt out the time frames for the development of the training manual. The training manual was developed and presented. As a start it was decided that 11 training sessions would be held. The training commenced in KwaZulu Natal where 32 Prosecutors were trained. The training manual consisted of the social context, criminal capacity, age determination, detention and placements, preliminary enquiries, diversion, sentencing options, and the expungement of records. The Directives were also connected to the Regulations.

30 Prosecutors were trained in the Eastern Cape. 201 Prosecutors had been trained so far.  The training was detailed and took two and half days. The Diversion Register had been developed. The NPA task team was currently conducting training in the Mafeking area. There were back-to-back training sessions until 25 March. The Directives were issued around diversion.

Mr Jeffery asked why the NPA Directives came late to Parliament, and asked if the Minister had been briefed on the Directives or had any consultation taken place with the Minister, or alternatively if the Minister would be seeing those Directives for the first time today. He also asked if the Directives fulfilled all the requirements of the Act, and whether SAPS and DCS had seen them. The Directives seemed to repeat what was already in the Act; the assumption was that they should fill in the gaps of the Act.

Mr Mbakaza replied that the Directives were late because the NPA thought that the Secretariat of the ISCCJ was responsible for all the documents including the Directives, Instructions and others. The Minister would see the Directives for the first time today. Consultations were conducted with the Accounting Officer. The Directives were not necessarily a repeat of the Act; they directed the prosecutors on what to do. A workshop was hosted by the NPA for all relevant stakeholders to attend and all the Departments were represented except for SAPS.

The Chairperson asked if the Directives needed the attention of Parliament.

Mr Jeffery replied that the Directives had to have the approval of Parliament.

Ms Chohan pointed out that the Act should have allowed for more interactivity on criminal capacity. Were the diversion programmes sufficiently monitored? Was diversion an option that prosecutors were directed towards? The diversion programmes may not be the right option for every single individual. What was the role of the NPA in this regard? She asked for a further report.  

Mr Mbakaza referred to Section 2(b) of the Directives and said that if the Probation Officer had not made it clear what action should be taken, the prosecutor should put together a written report. This referred to Regulation 13. The NPA had been implementing diversions for years, and more than 300 000 children had been diverted to date. Not all prosecutors knew what diversion orders entailed. In the process of the NPA partaking and making inputs in the development of guidelines, an undertaking was made with DSD that prosecutors be sensitised around the question of diversion programmes. This was to ascertain whether a diversion programme was relevant. Page 2, Directive 7 alluded to this.

Mr Jeffery said that the reasons for the delay in the NPA Directives were not satisfactory. He enquired when these had been drafted, and whether SAPS, Department of Correctional Services(DCS) and DSD were consulted, and at what level? The Directives still repeated what was in the Act. An example of this repetition could be found in Section 52 of the Act, which was similar to B(1) of the Directives. In this particular example the NPA not only repeated the Act but it did so incorrectly. The Directives were meant to add more detail.

Mr Mbakaza said that the task team started working in June 2009, and the Directives were drafted as early as July 2009. There was a consultative process with all stakeholders and all the divisions of the NPA. In November the NPA had a draft copy of the Directives. There was a bigger NPA task team that was looking at amending the NPA policy manual. The reason why they were not tabled on or before 1 December 2009 was that the NPA was of the opinion that the Secretariat of the ISCCJ was going to initiate the tabling of all the documents simultaneously. The other departments were consulted, except DCS and SAPS, who had no representation. DOJ & CJ, The Presidency, DSD, JC and LASA were all consulted. The Directives were then circulated for comment, and the levels of consultation ranged from Deputy Directors to Chief Directors. The NPA would look into the issue of the Directives repeating the Act and also misrepresenting it. Relevant documents would be circulated to both Houses as soon as possible.

The Chairperson asked Mr Jeffrey for a suggestion concerning the repetition and misrepresentation of the Act by the NPA Directives.

Mr Jeffrey replied that the Directives should be circulated prior to the Minister tabling them before both Houses and Committees. The suggestions would then be tabled, as well as any amendments.

Ms Schafer was concerned that none of the consultations included the Ministry for Children, Women and People with Disabilities (MCWPD),since surely the Act was directly relevant to their portfolios.

Ms Moodley replied that MCWPD had been invited to the ISCCJ forum, and remained invited but they had not availed themselves of the opportunity to attend. All relevant Documents were being sent to them.

Ms Chohan wanted to know if the diversion programmes that were currently used were accredited by DSD. If there were programmes that were not accredited then could the Committee be given more detail? The Committee should be given a list of diversion programmes as well as where they were situated countrywide. One of the key issues had been the lack of diversion programmes in certain parts of the country. If the Act was implemented on 1 April 2010, then the Department must ensure that there was some degree of equity as otherwise there would be serious problems, including civil claims.

Mr Mbakaza replied that the NPA was currently using diversion programmes that were offered by the National Institute for Crime Prevention and Rehabilitation of Offenders (NICRO). There were challenges in this regard. NICRO was not available throughout the country, particularly in rural areas. NICRO was readily available in urban areas. Where NICRO was not available, DSD was there to offer diversion programmes. The funding for DSD came from non-Governmental Organisations (NGOs). Minimum norms and standards had been developed for diversion service providers.

Mr Gungubele said that a tendency of ‘work to rule’ had emerged during the discussions. This should be avoided. If the Directives were the responsibility of a particular body and the relevant role-players were not present, the tendency was to say, ‘They were not there’. If that was the case then the responsible party should call all relevant role-players. The Committee relied on the administration to work proactively and reactively.

The Chairperson noted the comment and the issue was flagged.

Presentation by SAPS: Implementation of the Child Justice Act, 2008
Mr Gary Krusin, Divisional Commissioner, SAPS, presented to the Committee that Section 97(5) of the Act required the National Commissioner to issue National Instructions. This had to be done after consultation with the DGs of Justice, Social Development, Education and Correctional Services. The Instructions had to come to Parliament. The Instructions were presently in the form of a draft. The consultation process had already commenced. The Instructions would be published in the Government Gazette during the last week of March.

Training incorporated a broad target group. This group comprised, amongst others, the Provincial Heads responsible for visible policing, key police officials at cluster level, Station Commanders, members responsible for police cells and detention as well as Basic Training Learners. SAPS also had an implementation plan. The Implementation plane was spread over three days.

Mr Jeffrey asked when SAPS planned to table the Instructions before Parliament. He asked if all the DGs of the relevant stakeholders had been consulted regarding the Instructions, and asked that the Committee be provided with more details. Were there any inputs in the Regulations and Directives from SAPS?  The biggest issue that the Committee would possibly have would be implementation at station level.

Mr Tertius Geldenhuys, Head of Legal Services and Legislative Division, SAPS, informed the Committee that SAPS was at a consultation stage concerning the Instructions and was waiting for the Minister’s decision before tabling them before Parliament. Copies had been distributed to the Committee at an informal level and all input would be welcome. SAPS had difficulties with the Regulations and these had been raised with the Department of Justice. An initial agreement had been reached on how to resolve them. SAPS did not make any inputs into the Directives and contrary to what the NPA had said, SAPS had not been invited to do so by the NPA. Inputs were made into the Regulations, resulting in some being accommodated and some not. SAPS and DOJ & CJ had reached an agreement. The Instructions were at a lower level, as they had to be consistent with the Act and the Regulations.

Ms A Van Wyk (ANC) agreed that there would be more problems at implementation level. She would not like to see this Act follow the same route as the Domestic Violence Act. This was an opportunity for SAPS to outline problems that it faced regarding the implementation. The Instructions posed a lot of administrative burdens and at various levels reports had to be compiled. There was considerable concern regarding the capacity of SAPS to deal with the administrative burdens. Children were still being held in police cells, as in some areas there was only one care facility. The first contact was with SAPS, yet there would still be some ongoing training at the end of April, which would be a month after the Act’s implementation.

Mr George said that SAPS must specify if it was ready implement the Act; a lack of readiness would become apparent sooner or later. There was a similar situation with the Domestic Violence Act. There was no indication that the police on the ground were ready. He enquired if training for SAPS members had been provided. It would also be in the best interests of SAPS to disclose at this moment if it was ready or not.

Mr Geldenhuys replied that SAPS was pivotal when dealing with the children as the first point of contact was with them. The major challenge facing SAPS was the availability of facilities. He stressed the point that one of the main pillars of the Child Justice Act was that children should not be in cells. The Act and the Regulations made provision for exceptions. However, the question was what should be done when children were not allowed to be in police cells, and the facilities where they should be were lacking.

The Chairperson interrupted and asked if in that instance the exception became the rule.

Mr Geldenhuys replied that the answer to this would regrettably be in the affirmative. The fact of the matter was SAPS could not simply release children into the community. The Child Justice Act had put in place a framework; Parliament had decided to ensure that it was implemented. Checks and balances had been incorporated into the Act. The National Instructions were detailed in order to give effect to the checks and balances. The question of whether SAPS was ready for the implementation of the Act was incorrect, since if one were to wait until all role-players were perfectly ready for every eventuality of the Act then it would never be implemented. It had to be said that there were loopholes and mistakes would be made. SAPS was, as far as possible, ready and would comply with the Act in so far as it would be able to.

Ms Mbali Mncadi, Director of Children, Youth, Violence and Victim Empowerment, SAPS, informed the Committee that SAPS would liaise with DSD concerning safe facilities. The interim protocols had been implemented for the last eight years. If a responsible adult or parent could be found then the child would be handed over to them and if not, then alternative safe facilities would be the next option. Probation Officers were a concern for SAPS. SAPS would try and improve its performance.

Ms L Chikunga asked if SAPS was included in the R30 million that was allocated. There was no certainty as to the implementation of the Act; it was immaterial whether or not the protocols were being adhered to.  There was a very real possibility of lawsuits against the Department when the Act came into operation. SAPS was the first point of contact with the children, and some of the offenders would have committed very serious crimes. 

Ms Moodley replied that the Child Justice Act was drafted to address the concerns that were being raised now. Arrest was a matter of last resort. Before arrest, a written notice to appear before a preliminary inquiry or a summons could be issued. For more serious crimes, children would be arrested. The arresting officer was compelled by the Act to report the arrest within 24 hours to a Probation Officer, who would then conduct an assessment to find out if there was a secure facility for the child. The child had to be brought, within 24 hours, before a Preliminary Inquiry. The Preliminary Inquiry was an informal procedure where the Magistrate, Probation Officer, Prosecutor, parent or any other appropriate adult would meet in order to map out a plan in respect of the child. The Preliminary Inquiry could place the child either in a secure care facility or in a prison. This was to ensure that a child did not end up in a police cell. That was what the Act was trying to address.

Presentation by the Department of Social Development (DSD): Implementation of the Child Justice Act
Ms Conny Nxumalo, Chief Director, DSD, informed the Committee that her presentation would focus on the role of DSD within the criminal justice system. She brought to the attention of the Committee that it was important for the Department to work with SAPS so that Probation Officers would be readily available within the 48-hour period. The Department had to ensure that there was availability of services. Home-based supervision programmes were used as a sentencing option and as a diversion programme. Prevention and early intervention services were very important. Supporting legislation to this Act comprised the Probation Services Act, No 116 of 1991, and the Children’s Act, No 38 of 2005. The Department had 484 full time Probation Officers in all courts across the country. This excluded social workers who performed probation services as part of their generic work. There were 360 Assistant Probation Officers, whose duties were clearly outlined in the Probation Services Act 35 of 2002. The Department had developed norms and standards for facilities in order to standardise secure care services. There were 53 Reception Assessment Referral Centres. Most of the centres were located within district courts, police stations and DSD facilities. Assessments were only done if children were referred to the Department after arrest. DSD had full time staff at the One Stop Child Justice Centres. DSD had appointed a service provider to develop a national diversion policy framework on diversion services. It had to be ready by 31 March 2010. The Department had requested an extension via the Minister, as it would not be able to meet this deadline. The framework would be tabled in June only. The Department had conducted an audit of all Diversion Programmes in the country. If the Diversion Programmes were not expanded, the Department would have less confidence in its implementation plan. A Diversion Register had been developed.

The Probation Officers had been trained in order to improve the quality of the reports. DSD still needed 484 Probation Officers and further funding. The Department would continue to request more funding from National Treasury.

Mr Jeffery asked why the Department did not have a register for children arrested, and why it was not working on this with SAPS. The Department was not on the Cluster budget which reflected poorly on the coordination. He asked why there was a need for an extension, since the Department was fully aware of the deadlines. He had found the presentation to be disappointing.

Ms Nxumalo said that there had to be a link between the number of children that were arrested and the number of available facilities. High risk children were placed in secure care facilities, the alternative would be to place them with their parents and this was very risky. The geographical location of facilities was an acknowledged problem. The Department was supposed to be on the Cluster bid as it did make a submission. The DSD also made an individual submission. The DSD was aware of the process for requesting an extension and it was merely highlighting that a request had been made.

Ms Schafer pointed out that the presentation did not mention social workers, and she wanted to know how many social workers were at the secure care facilities. Had the Department done an assessment and what was the ratio in terms of the number of available social workers to children that were at the secure care facilities? Were there any secure care facilities under the Department of Education? What arrangements were in place for the schooling of children? Were facilities being built where they were mostly needed?

Ms Nxumalo replied that the ratio that the Department was working on was 1 social worker for every 30 children. The Department had developed compelling norms and standards, which were applicable to all the provinces. There were some facilities that were under the administration of the Department of Education for example JJ Sterkfontein, Reform Schools as well as Schools of Industry. There was no schooling in the facilities but a request was made to the ISCCJ for the Department of Education to establish schooling in all the facilities.

Mr Lekgetho asked where the 600 beds were allocated, saying that the facilities of the DSD were under utilised because nobody knew where they were.

Mr George repeated the question and asked where the 600 beds were located? The report was poor and was reminiscent of a speech from a rally where empty promises were made.

Ms Nxumalo informed the Committee that a list of the location of the facilities would be made available to the Committee before the end of the meeting.

Ms Chohan asked what were the problems regarding the under utilisation of facilities. Magistrates often did not know where to send children, as they did not know where secure care facilities were located. A second problem was that transportation was not the primary task of the SAPS and Correctional services. Probation Officers were not available and SAPS had confirmed this, and this was not very comforting. DSD was the cog that held this entire process together.

Ms Nxumalo responded that the under utilisation of secure care facilities was acknowledged. Designated facilities were identified and utilised whilst proper facilities were being built. DSD was under the impression that SAPS was responsible for the transportation of children. This had to be sorted out at a Cluster level.

Ms Michael referred to page 9, Section B, and expressed concern that a child could be at an incorrect facility for 14 days. There had to be a place where children could be referred, else a lot of errors would occur. If an error occurred, she enquired whether DSD would step in and ensure that children were sent to the correct facilities. 

Ms Nxumalo brought to the attention of the Committee that DSD was working with DCS and a task team called Management of Awaiting Trial Detainees (MATD) had been established. MATD fed DCS with monthly statistics of children awaiting trial. DSD did not decide on where a child should await trial, but those children that were at DSD’ facilities were committed by Magistrates. Errors would be detected via the task team.

Mr Gungubele commended the report; it provided a framework, which could be analysed. A similar structure from all the role-players would provide a bigger picture. The structure was impressive.

Mr Lekgetho complained that his question had not been answered.

Ms Nxumalo replied that the 600 beds were not in one province; they were allocated across the province.

Department of Correctional Services: Implementation of the Child Justice Act
Mr Willie Damons, Deputy Commissioner, DCS, outlined the structure of his presentation to the Committee. At the end of 2007/2008, there were 1 163 children aged under 18 years in DCS facilities. The 14-16 year age group had been monitored as well. As at 8 February 2010 there were 143 children in this age group in DCS facilities. Children would be referred to correctional facilities in extreme cases only. There were Probation Officers who were being assisted by DCS. The Probation Officers were at DCS facilities. DCS worked with the other departments in the development of the regulations and guidelines, in line with the stipulations in the Act. DCS was responsible for the programmes. Children under correctional supervision were being monitored.

The correctional facilities were not suitable for the rehabilitation of children. The Department was of the view that children should be diverted from correctional facilities.

Mr Landers said that he would have liked to see how many children were in prison who had been convicted of criminal offences.

Mr Jeffery agreed with Mr Landers. He asked if it could be safely assumed that there were no children under the age of 14 years currently in prison.

Mr Damons replied that this was correct.

Legal Aid South Africa (LASA) presentation: Child Justice Act Implementation
Mr Patrick Hundermark Legal Development Executive, Legal Aid South Africa, informed the Committee that LASA did not know what the impact would be of a new provision in the Act that stipulated that no child may waive his or her rights to legal representation. Where a child declined to appoint or give instructions LASA may appoint legal representation to assist the child. This posed difficulties from a practical point of view, since it was very difficult for a lawyer to represent a child who was not prepared to give instructions. Legal representation at the Preliminary Inquiry was not excluded, and the impact of this in terms of demand for LASA’s services was not known.  

All courts were designated as Child Justice Courts. The protocol for children and the diversion of children had been in place since 2001. LASA would not need any additional resources for providing legal assistance for children. However, it was desirable to use admitted attorneys, specifically trained in dealing with children, not the candidate attorneys. The question then would be how to approach the implementation of the Act from a budgetary perspective. Without a proper budget, the normal applicable practice of LASA would be used. A magistrate who sat during the Preliminary Inquiry, would not be able to preside if a trial then followed. Magistrates would then have to swap courts. There would be practical challenges in implementation, especially in the rural areas. Thirteen One Stop Child Justice Centres had been envisaged and there was no clarity on their future establishment. There were dedicated Child Justice Courts that specialised in children’s matters.

Mr Jeffrey asked if LASA had made any input into the Regulations. What would the increase of LASA’s workload be after the implementation of the Act?  The point of the Preliminary Inquiry was that it was non-adversarial; therefore lawyers were not wanted at this stage. Lawyers were needed at the trial stage only. LASA had misinterpreted the Preliminary Inquiry requirements and had used this stage to apply for more funding. He said that it was not clear what the infrastructural requirements were. The R500 000 for training seemed to be unnecessary. He asked how many children were not covered at the moment.

Mr Hundermark said that LASA did not yet know what impact the Act would have on LASA’s services. The rendering of services would continue as normal. The impact had to be determined. The funding approach would dependent on what approach would be taken where children were concerned. Magistrates would be reluctant to proceed if the prosecutor and the child were at the first appearance, but there was no legal representation, as the proceedings could be deemed unconstitutional and the matter referred to court. Magistrates, who tended to adopt a more conservative approach, would in fact request LASA’s practitioners to be present. It was difficult to specify how many children were not covered; it could be 12 500. Inputs were given on the Regulations.

Mr Gungubele said that the legal profession was evolving continuously thus there would always be a need for training. The issue of legal representation for the child should be viewed in the context of the State’s obligation to look after the child’s best interests, as well as the improvement of the administration of justice. LASA must not sit back on this issue. The Child Justice Centres were critical for the improvement of justice amongst children. The situation of children being moved around as a result of a lack of Child Justice Centres had to be avoided.

Ms Michael disagreed with Mr Jeffery, and thought that legal representation should be provided for children at the Preliminary Inquiry. This was the time that they would be most vulnerable and it was bizarre that the Act did not compel legal representation for the child.

Mr Jeffery suggested that Ms Michael should read the Act. The Preliminary Stage may be regarded as a first appearance but it was a non-adversarial inquiry. It was to establish whether diversion was necessary and to determine the placement of the child and similar issues. The Act did not provide for representation, and that was the point directed to LASA. LASA were assuming that the Act did provide for legal representation. Ms Michael was analysing an amendment and perhaps the overall context should be looked at.

Ms Michael replied that Mr Jeffrey should not assume that he was the only person in the room who had read the Act. The Committee had a responsibility not simply to look at what was in the Act but also to look to the best interests of the child. Children got lost in the system and they should receive legal representation.

Mr Gungubele highlighted that the danger of making any decisions would be that there was currently a lack of information. Another meeting would be held, where there would be no excuses of non-cooperation. A single document outlining the objectives and progress that the Departments had made would be presented. The report would be conclusive and decisive in the sense that it will specify either that the Act should be implemented, or not. If the Act were to be deemed non-implementable, then reasons should be given and a way forward should be drafted.

Mr Deon Rudman, Deputy Director General: Legislative Development, DOJ & CD, informed the Chairperson that amendments to the Regulations that were made by the Committee had been incorporated. Suggestions made by SAPS had also been included. The Department was also in the process of advising the Minister to withdraw the rules that had been tabled.

Mr Jeffery suggested that SAPS should make inputs into the Regulations.

The Chairperson said that DOJ & CJ should lead this process.

The meeting was adjourned.

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