The Director-General and Acting Chief Director: Promotion of the Rights of Vulnerable Groups of the Department of Justice and Constitutional Development briefed the Committee on the cost, progress and timetable for the implementation of the Child Justice Act. The implementation date of the Act was 1 April 2010.
The DOJ & CD had submitted a budget application for R660 million to National Treasury for implementation of the Act. An amount of R30 million was approved. The Department submitted a budget for the essential, minimum requirements to implement the Act during the 2010/11 financial year. The funding required amounted to R58.1 million and the Department planned to approach National Treasury for the shortfall. The budget made provision for the appointment of 20 District Court Magistrates, 30 prosecutors, 60 Legal Aid attorneys, 111 Court clerks as well as training, support services and the provision of diversion services.
The briefing included a progress report on the responsibilities, due dates, progress to date and next steps for the Departments of Justice and Constitutional Development, Social Development, Correctional Services and Basic Education, the National Prosecuting Authority, the South African Police Service and Legal Aid South
Members asked questions about the methods applied to determine the budgeted amounts, the availability of statistics and data on child offenders, the reduction of the workload of Magistrates by the introduction of the Preliminary Inquiry, the establishment of One Stop Child Justice Centres in provinces, the training of members of SAPS, the need to transform Reform Schools, the facilities for children in detention and the responsibility for the transport of awaiting-trial and sentenced child offenders. Members suggested that compulsory courses in child law were included in the LLB degree and the police college training curriculum and that funds would be better applied if children were addressed in school on the consequences of committing crime rather than spent on the printing of posters and pamphlets. Members expressed doubts over the ability of the Department to appoint sufficient numbers of additional Magistrates in time for the application of the Act.
Briefing by Department of Justice and Constitutional Development (DOJ & CD)
Ms Nonkululeko Msomi, Director-General, DOJ & CD, advised that representatives of the other affected Government Departments were present at the briefing, with the exception of the Department of Basic Education.
Ms Msomi apologised that the legislative time schedule was not adhered to and that all the affected Departments had not always worked in unison in implementing the Child Justice Act. She expressed appreciation to the Committee for the guidance and leadership provided and gave the assurance that all the Departments concerned supported the implementation of the Act on 1st April 2010.
The current status of the Regulations, Directives and National Instructions required for the implementation of the Act was reported (see attached document). The Regulations drafted by the Inter-sectoral Steering Committee for Child Justice (ISCCJ) had been circulated to all members of the cluster and the comments received had been factored into the final version. The Regulations were ready for submission to a joint sitting of the Portfolio Committee and the Select Committee on Justice and Constitutional Development for approval before re-tabling to Parliament. Consultations were held with the National Director of Public Prosecutions (NDPP) and a meeting was scheduled for Friday, 5 March 2010 to discuss the final Directives. She was of the opinion that the Directives would be accepted and approved and would be ready for submission to the Minister for tabling. The National Instructions had been received from the South African Police Services (SAPS) and had been approved by the DOJ & CD.
The original implementation plan was resource-intensive and costly. The costing plan was reconsidered and subsequently scaled down to the first year only. The scaled-down plan did not replace the original implementation plan and was intended to be a transitional arrangement. An amount of R58.1 million was required for implementation of the Act during the 2010/2011 financial year. Some funding was available and the Department would approach National Treasury to request funding for the shortfall of R28.1 million. Should the additional funding not be forthcoming, the Department intended to re-allocate some of its own funds to ensure that the Act was implemented as any postponement of the implementation date was not acceptable.
Ms Msomi took the Committee through the budget summary. R1 million was budgeted for the provision of training and support to the provinces. R9 million was set aside for the appointment of 111 dedicated
The Department recommended that the Child Justice Act was implemented with effect from 1 April 2010. Ms Msomi requested the support of the Committee in allowing the DOJ & CD to address any teething problems that might be experienced during the first year of implementation.
Ms Pat Moodley, Acting Chief Director: Promotion of the Rights of Vulnerable Groups, DOJ & CD, briefed the Committee on the timetable and progress report of the consolidated Child Justice Act Implementation Plan. The report included the responsibilities, due dates, progress to date and next steps for the DOJ & CD, the Department of Social Development (DSD), the National Prosecuting Authority (NPA), LASA, SAPS, the Department of Basic Education (DBE) and the Department of Correctional Services (DCS) (see attached document).
The Preliminary Inquiry was one of the few new requirements imposed by the Act and most of the other work to implement the Act had been done since 2002.
Mr J Jeffery (ANC) requested further information on the implementation budget presented to the Committee. He noted that an amount of R1 million was budgeted for the National Office of the DOJ & CD and asked if the Department was planning to expand the existing office. He referred to the amounts budgeted for the appointment of additional Court clerks, Magistrates and prosecutors and wanted to know how the budget amounts were arrived at. He asked if there were any statistical data available on the number of children that would need diversion and how the budgeted amount of R17.5 million was arrived at.
Mr Jeffery assumed that the same number of children was expected to be in the criminal justice system but these children would merely be dealt with differently after 1 April 2010 when the new Act was implemented. The Preliminary Inquiry process introduced by the Act was intended to simplify the court system and was expected to reduce the workload at the Courts. He queried the need to appoint more Court personnel.
Mr Jeffery noted the publication of a notice regarding categories of persons competent to conduct criminal capacity evaluations (see point 2.1 of the DOJ & CD responsibilities in the attached document). He asked which section of the Act made provision for such a notice.
Mr Jeffery advised that it was best to ensure that the consultation process was properly followed and urged the DOJ & CD to ensure that the meeting to present the Regulations to the Select Committee on Justice and Constitutional Development took place. He asked for confirmation that SAPS and the NPA had been consulted concerning the Regulations.
Mr Jeffery noted that budget allocations needed to be made to the North-West province for the establishment of one One-Stop Child Justice Centre (see point 4 on page 5 of the attached document). He asked what provision was being made for the other provinces, especially provinces with high population densities such as
Mr Jeffery wanted to know on what basis the DSD would request the Speaker of Parliament to postpone the tabling of the national policy diversion framework (see point 1 on page 8 of the attached document). He pointed out that there was no such position, nobody had the power to grant an extension and the only way to amend the due date was by means of the Minister introducing an Amendment Bill to Parliament. He accepted that the policy framework would not be tabled in time but it would be a waste of time to request an extension of the due date and there was not sufficient time to introduce an Amendment Bill either.
Mr Jeffery noted that the DSD currently employed 476 probation officers (see point 3 on page 9 of the attached document). He recalled that the number of probation officers was stated as 484 during the briefing to the Committee on 23 February 2010. He requested confirmation of the actual number of officers.
Mr Jeffery noted that a period of 30 days had to elapse after the Regulations, NPA Directives and SAPS National Instructions were tabled in Parliament before they could be issued. The Regulations, Directives and National Instructions should therefore have been tabled by 1 March 2010 as the Act would take effect on 1 April 2010. He wanted to know if the other affected Departments had been consulted.
Mr Jeffery was concerned that training would only commence now as it was imperative that there was at least one trained person in every police station who was capable of dealing with child and juvenile offenders in accordance with the Act. He said that, historically, it had always been a problem of which Department (DBE or DCS) was responsible for awaiting-trial juveniles and he asked if the matter had been resolved between the two Departments. He noted that a pilot program had been conducted at Pollsmoor prison and suggested that the Members of the Committee visited the prison to assess the results achieved.
Ms Msomi advised the Committee that consultation with SAPS had taken place and the DOJ & CD was given the assurance that the National Instructions would be finalised before the date of implementation of the Act. The Department had expressed concern over the delay of a few days before the Instructions would be made available and was given the assurance that they would be in effect on the due date.
Mr Jeffery said that the National Instructions should have been tabled by 1st March 2010 as they needed to lie before Parliament for a period of 30 days. He was concerned that the Instructions could be challenged at a later stage if the required 30-day period was shortened.
Ms Msomi explained that the amount of R1 million budgeted for the National Office of the DOJ & CD was because the Department needed to carry out additional activities to implement the Act and it was necessary to augment the existing in-house capacity available. The expanded capacity did not necessarily include additional personnel but it was necessary to strengthen the secretariat, conduct more oversight over the implementation of the Act, increase the number of review meetings and travel to the far-flung provinces to inspect what was happening on the ground. There was a cost associated with the additional responsibilities of the Department. She conceded that the costing of the implementation plan was not entirely accurate but had utilised empirical data available to determine the number of Court clerks, Magistrates, prosecutors and LASA attorneys that would be required. The statistical data gathered on the number of children in the Justice system between January 2009 and January 2010 indicated that the numbers fluctuated from month to month. For example, in January 2009, there were 1312 children in the system and in February 2009, the number was 1464. The highest number of 1554 was recorded in August 2009. In January 2010, the number was 1117. Although the numbers fluctuated, the statistics indicated the need for diversion services.
Ms Msomi explained that a Magistrate and a full support team were required for each Preliminary Inquiry. Not all the capacity required was expected to be on a permanent basis but she considered that the Department would need as much capacity as possible during the first three years of implementation and in particular during the first, transitional year. The Department would be able to determine the capacity required more accurately once data was available on the effectiveness of the application of the Act, which was only possible after implementation.
Ms Msomi advised that a meeting with the Select Committee was in the process of being scheduled and was expected to be held within a few days. She assured the Committee that extensive consultation was held with the NPA and had been informed that the draft Directives would be presented by the Minister on Friday, 5th March 2010. He had personally engaged with the NDPP and the Department’s response to the draft Directives would be finalised within the following days. Copies had been circulated to the other key stakeholders in the cluster.
Ms Moodley explained that the North-West province had developed three One-Stop Child Justice Centres and had identified another site at a Secure Care facility operated by the DSD. The permission of the Head of Department of the DSD to utilise an unused wing of the Secure Care centre was awaited, after which the Department of Public Works would be requested to conduct an assessment of the facility for use as a One-Stop Child Justice Centre.
Mr Tertius Geldenhuys, Assistant Commissioner: Legal Services, South African Police Services (SAPS) responded to the questions concerning the responsibilities of the SAPS. He gave a categorical assurance that SAPS supported the Act, that adequate consultation had taken place and that SAPS was happy that the concerns that were raised had been addressed in the Regulations. The National Instructions were in the process of being finalised in line with the Regulations and a copy had been provided to the DOJ & CD. He admitted that the National Instructions would not be issued in time for the implementation date of the Act because of the 30 day requirement but SAPS felt that it was essential that the consultation process was thorough and that full agreement existed between all the parties to ensure that all concerned worked together in the implementation of the Act. A workshop to finalise the National Instructions was scheduled for 4 March 2010 and he was confident that the Instructions would be ready for submission to Parliament within a matter of days. SAPS had decided to issue Interim Guidelines to cover the lacuna between the implementation date of 1 April 2010 and the date the National Instructions would be formally issued.
Mr Geldenhuys advised that the training of police officers had commenced. The first part of the training programme was information sessions intended to inform all the role players within SAPS of what was expected of them at police stations. SAPS had attempted to reach at least one person in each police station. Secondly, the SAPS legal officials were being trained to provide guidelines and to explain to the officers what was expected of them concerning the Act. The two-day training sessions were moved forward to April 2010, when key role players in SAPS will receive training. The more intensive week-long training programme would provide more intensive training to all the persons within SAPS who dealt with children and juvenile offenders.
Mr Willie Damons, Deputy Commissioner, Department of Correctional Services (DCS) advised that the DSD had taken responsibility for conducting pilot programmes at 6 Correctional Services facilities for awaiting-trial children. The DCS had a variety of programmes in place for sentenced children.
Ms Conny Nxumalo, Chief Director, DSD advised that the Department had a budget of R60.4 million to fund the various programmes of the DSD. The shortfall of R17.5 million for diversion programmes was required to fund the gaps in the existing programmes that were identified during an audit of the programmes. Currently, no programmes were offered on drug abuse and sexual offences and the Department planned to expand the programmes to all the provinces for these types of offences. The amount required was determined by taking the needs of all the provinces into account. The Department had decided to apply the transitional provisions in the Act to cover the period between the implementation date and the issue date of the Regulations. She apologised for the typing error in the briefing document and confirmed that there were currently 484 probation officers employed by the DSD. She advised that the responsibility for awaiting-trail children was taken on by the DSD at the request of the Portfolio Committee but formal responsibility had not yet been allocated to the Department. Should that occur, the Department would include programmes to cater for awaiting-trail children and juvenile offenders. The pilot projects had been completed but there were currently no programmes in place for child offenders.
Mr Lawrence Bassett, Legislation, DOJ & CD, advised that the publication of the notice regarding the categories of persons competent to conduct criminal capacity evaluations was in accordance with Section 97 (3) of the Act.
Mr S Swart (ACDP) commented that the Child Justice Act had been ten years in the making and the report from the DOJ & CD for 2009 had listed the implementation of the Child Justice Act as the first priority. It would appear that a lot of progress had been made but he was aware of the backlog in the appointment of Magistrates. He asked if the Department had alerted the Secretary of the Magistrate’s Commission of the urgent need to appoint more Magistrates. He wanted to know if there were any funds rolled over from previous years that were made available for the implementation of the Act. He recalled that when the Bill was costed, there were a lot of savings involved and that the additional funds would be transferred from the other Departments in the cluster to the DOJ & CD. Although diversions had been in place for a number of years, the main issue was the introduction of Preliminary Inquiries. When the Committee visited one of the One-Stop Centres, Members were informed that 7% to 21% of child offenders would be subjected to a full-blown trial after undergoing the Preliminary Inquiry. Currently, all child offenders underwent full trials. He was heartened by the progress that had been made but expressed caution that the implementation of the Act could be delayed because of the number of magisterial appointments that needed to be made. He said that 40,000 children were assisted by LASA during 2009, of which 5,000 were involved in civil cases. It was important that the documentation necessary for the Regulations, Directives and National Instructions was completed in time. He asked for confirmation that the amount of R60.4 million that was available to the DSD covered the diversion programmes and that the additional R17.5 million required was only for the new programmes on drug abuse and sexual offences.
Prof L Ndabandaba (ANC) asked if the Department was satisfied that the Act covered children who were in custody or who were awaiting trial and who were also in need of care.
Ms N Michael (DA) agreed with Mr Swart’s concern over the ability of the Department to appoint the number of additional Magistrates required in time. She pointed out that 289,000 cases were abandoned because of a lack of Magistrates during 2009. She referred to point 2.3 on page 3 of the report concerning the making of Rules and the statement that existing Court Rules would apply until the new Rules were published. She felt that children required different Rules as they had to be dealt with differently than adults and that the Department had a responsibility to ensure that children were handled appropriately by the Court.
Referring to the printing and distribution of pamphlets and posters, Ms Michael suggested that the money spent on advertising could be better spent by the DSD on educating children in schools on the consequences of committing crimes. She asked where the Department intended to place the posters as posters erected in Courts had little value as a deterrent if they were only seen by children who were already in Court because they had committed a crime.
Ms Michael noted that an audit of reform schools and schools of industry would only be completed by 1 April 2012. She said that the transformation of these schools was extremely important as that was where children learnt to commit crimes. She suggested that the manner in which the schools were managed was investigated as a matter of urgency as many more children will be exposed to criminal activity in a two year period.
Ms Michael pointed out that many LASA trainees were final-year LLB students and she suggested that a compulsory course on child law was added to the LLB degree. She suggested that SAPS officers received specialist training in child psychology as it was important that the police understood the fear and vulnerability of children when they were arrested. She referred to recent media reports of children being raped in the back of police vehicles while being transported and wanted to know what protective measures had been put in place and if the disagreement between DCS and SAPS concerning the responsibility for children in transit had been resolved. She suggested that the officials from the DCS received training in the handling of children in custody as well.
Ms Michael had observed that Ms Msomi appeared embarrassed when Mr Swart pointed out that the DOJ &CD had failed to meet the deadlines for the implementation of the Act. She pointed out that Ms Msomi had been recently appointed to the position of Director-General and was therefore not responsible for this failure but would be held responsible for ensuring that the Act was properly implemented.
Ms Msomi again apologised for the draft policies not being in place by the due dates. At the time the Department’s report was compiled, there was every intention to ensure the policies were issued in time for the implementation date of the Act and there was no intention on the part of the Department to mislead the Committee. With regard to the vacancies for Magistrates, she reported that much consultation was in progress to address the matter. She had met with the Deputy Minister, who had given the commitment to approve the appointment of Acting Magistrates within three to five days if necessary. The permanent appointment of Magistrates took a little longer but the Department was committed to reduce the current backlog of cases in the criminal justice system. She reported that a working session with the representatives of the cluster was in the process of being convened to ensure that any glitches experienced during the first phase of implementation were ironed out. She considered the comments and suggestions made by the Members in the spirit of guidance.
Ms Moodley explained that funding was allocated for Child Justice in the 2003 to 2006 financial years. The funding made available was applied to the rebuilding and furnishing of the Nerina Child Care Centre in
Mr Swart asked why the Department required so much more capacity if the introduction of the Preliminary Inquiry would reduce the workload of Magistrates.
Ms Moodley replied that there were currently backlogs in the Courts and in many of the smaller locations a single Magistrate had to deal with a variety of cases. Where there was only one Magistrate, arrangements were currently made to move urgent cases to a neighbouring Court if the Magistrate was unavailable. The DOJ & CD was not yet able to determine the impact of the Preliminary Inquiry on the workload of Magistrates but expected the Preliminary Inquiry to take longer than the current first appearance. The major purpose of an in-depth Preliminary Inquiry was to remove the child out of the mainstream criminal justice system and to deal with the offence much sooner. She anticipated that the Department would have a better sense of the impact of the Act after one year.
The Chairperson remarked that the Preliminary Inquiry was expected to reduce the overall workload as the number of full-blown trials will be reduced.
Mr Swart remarked that Preliminary Inquiries were already being conducted and the Department should therefore have some idea of the impact on the workload of Magistrates.
Ms Moodley pointed out that the Preliminary Inquiries were only conducted at the two One-Stop Centres currently in operation and where the Magistrates were dedicated to hearing only child cases. The Department was unable to assume that the experience gained in the One-Stop Centres would be replicated in all the Magistrate’s Courts in the country as the Magistrates generally did not only deal with child cases.
Ms Nxumalo responded to Ms Michael’s questions regarding the reform schools. She advised that the Children’s Act made provision for the transformation of the reform schools and the deadline for the handover of the schools to the DSD was 1 April 2012. Currently the schools only provided educational programmes and made no provision for any other types of developmental programmes. An audit of the schools was currently underway.
Mr A Fritz (DA, Member of the Portfolio Committee on Correctional Services) queried the readiness of the Departments in dealing with children who were awaiting trial. He felt that the responsibility for the children in the criminal justice system was not clearly allocated to the various Departments. He felt that the two-day training programme offered by SAPS was insufficient to address the problem of children being sent to prison by the police instead of that being the last resort. He felt that the issue of responsibility and protective measures for the transporting of child offenders had not been satisfactorily addressed by SAPS and wanted to know who was responsible for these children.
The Chairperson asked if children sent to reform schools were categorised according to whether or not they had been in prison and if these children were separated from other children who had not experienced such exposure. He remarked that the current system tended to encourage more children to become criminals by exposing them to hardened criminals.
Mr Damons reported that the DCS had made provision for specialised training in the handling of children but had received no funding for this purpose. The number of children awaiting trial and sentenced to Correctional Services facilities indicated a decline – from 2000 to 564. The general population in prisons was however increasing and the overcrowding in prisons was a major concern. The DCS had the capacity to implement the Act on 1st April 2010 even though no additional funding was available for ongoing training.
Mr Damons advised that SAPS was responsible for the transport of children awaiting trial. DCS was responsible for the transport of children who had been sentenced by the Courts. DCS separated child offenders according to age groups, i.e. children younger than 18, age 18 to 21 and age 21 to 25. The different age groups were placed in separate units. The 240 facilities operated by DCS had limited facilities available for children. Children younger than 18 were placed in single cells and contact with the other units were limited. The Department cannot guarantee that the child offenders would not be influenced by the prison environment and the other inmates.
Mr Jeffery pointed out that the DCS could not expect to receive more funding for training when the number of child offenders in prisons was reducing and the Department had in any event been responsible for child offenders for many years.
Mr Geldenhuys agreed that the members of SAPS needed training in child psychology. He advised that SAPS had involved child psychologist specialists in the planning of the training programme and the drafting of the training material. He said that the existing standing orders regarding the transportation of suspected child offenders were very strict and control measures were in place to ensure adherence by the police officers. Any incident was immediately investigated and severe action was taken if the standing orders were not fully complied with. Children and males and females were transported separately.
Mr Geldenhuys said that there were 180,000 members of SAPS and it would take time to train all the officers concerned. The basic procedures and protocols for the handling child offenders were already in place and the two-day training programme was intended to focus on the personnel most likely to come into contact with child offenders. The two-day training would cover the background to the Act and what was expected of the members of SAPS in the implementation of the Act. A more detailed one-week training programme would be presented to all the members of SAPS who came into contact with child offenders.
Mr Jeffery pointed out that it was the Magistrates who were responsible for sentencing children to terms of imprisonment, not the police. He found it difficult to understand why children were sent to prison by Magistrates and why prosecutors allowed this to happen. He requested that the Committee was provided with more regular and up-to-date data by DCS on the types of crimes committed by children and juvenile offenders.
Mr Fritz reported that he found twenty children in custody at Pollsmoor prison where the police appeared to have made no attempt to contact the parents. Some of the children were sentenced to terms in prison on very frivolous charges. He felt that the onus should be on the police to stop arresting children on relatively minor charges and that more attempts should be made to involve the parents and the school. Arresting a child and sending him to prison should be considered to be a last resort.
Prof Ndabandaba suggested that SAPS obtained the services of an expert in juvenile criminality in addition to child psychologists.
Mr Swart remarked that the Child Justice Act should not be considered to be a “soft” option on crimes committed by children. Section 92 of the Act made it a criminal offence if a child was used by an adult to commit a crime.
Ms Msomi assured the Committee that integration was taking place between the various Departments involved.
Mr M Gungubele (ANC) said that the Act could be implemented even though there were still some issues that needed to be finalised before 1 April 2010. He suggested that the DOJ & CD provided regular progress reports to the Committee on the outstanding matters.
The Chairperson said that the Committee was satisfied that the Act could be implemented on 1 April 2010. He congratulated all involved in the process and requested that the responsible persons ensured that the outstanding matters were resolved as soon as possible. He suggested that SAPS included training on child law in the standard police training curriculum. He urged the Departments involved in the implementation of the Act to continue with the co-ordination of efforts. He requested that the Regulations were presented to the Committee as well as to the Select Committee for approval before they were tabled as there would be no opportunity to make any corrections afterwards. He expressed approval for the issuing of Interim Guidelines by SAPS, pending the issuing of the National Instructions.
The meeting was adjourned.
- Child Justice Act, 2008: Regulations Relating To Child Justice
- Timetable and Progress Report on the Child Justice Act Implementation Plan
- Child Justice: Summary of Budgets for 2010/11
- Child Justice Act, 200
- Department of Justice and Constitutional Development: Consolidated implementation plan for implementation of Child Justice Act
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