Child Justice Bill Regulations

Meeting report

Child Justice Act: Regulations: Briefing by the Department of Justice and Constitutional Development (DOJ)
Ms Nonkululeko Msomi, Director General, Department of Justice and Constitutional Development, briefly addressed the Committee concerning the tabling of the regulations that were needed before the Child Justice Act (the Act) could be fully enforced. She apologised for the earlier failure to meet the deadlines, on behalf of the Department of Justice and Constitutional Development (the Department, or DOJ), noting that although this was supposed to have been done in December 2009, it had been impossible, due to circumstances beyond the Department’s control. Parliament had been consulted on the regulations. The Department also wished to outline how it was preparing for full implementation of the Act. The Department had also consulted various affected Departments who had submitted their comments in line with the guidance that they had received from Parliament. The Department had also received comments on some aspects, from the Portfolio Committee on Justice, and these had been factored into the regulations that were now before this Committee. She highlighted that in the area of the regulations that spoke about designated probation officers, there had been a request from the Department of Social Development (DSD) that for the time being the regulations should omit the word “designated”.  

Mr Lawrence Bassett, Chief Director: Legislative Drafting, Department of Justice, explained to the Committee that there had been two documents circulated. Firstly, there were the regulations themselves, and secondly a document setting out all the provisions in the Act that required regulations. It was a useful document that gave an indication of what the regulations were required to deal with. He clarified that the regulations now before the Committee was the draft, as amended by incorporation of comments.    

Ms Ina Botha, State Law Adviser, DOJ, gave a brief overview of the Child Justice Act to facilitate an understanding of what was being dealt with in the regulations. The objects of the Act were, in broad terms, to establish a separate system of justice for children. This would be a system that would be aligned with the values of the Constitution and ensure that South Africa complied with international obligations. The second important object of the Act was to provide for the minimum age at which a child could be held responsible for his or her actions, which was based upon the child at which a child was expected to be able to distinguish between right and wrong. Children who could not be held responsible for their conduct would be dealt with by a separate procedure that was contained in the Act. The Act also dealt with assessment, which was done by a probation officer to ensure that the mental capacity of the child and the age of the child were brought to the attention of the courts. There was also a requirement for a preliminary inquiry in terms of the Act and provisions for diversion. She explained that the intention behind diversion was to remove children away from the criminal justice system, where there had not been a proper framework that was specifically designed to look at the needs of children. For matters that could not properly be diverted, the Act now provided for the establishment of Child Justice Courts. The Act provided a “roadmap” for dealing with children in three schedules dealing with different categories of offences. In order to understand the Act, it was important to look at three categories of children, namely; children under the age of 10 years; children between 10 years and 14 years of age, where criminal capacity determined the manner in which a child was dealt with; and children over 14 years of age. The Act also provided for an informal pre-trial process for children, where a magistrate was expected to play a proactive role. One of the objectives of such preliminary hearing was to look at the assessment report of a probation officer, to consider how to proceed in a particular matter. The Act tried to see to what extent it was possible to divert a child.

As already mentioned, diversion was a key feature of the Act, and there were a number of options at various stages of the trial process before the close of the State case. The Act provided for diversion options at two levels. Firstly, there was the level that applied to a Schedule 1 offence (Schedule 1 listed the minor offences). The second level was for Schedule 2, 3 or 4 offences, which were serious offences. The period of diversion also differed. It was possible to make a diversion order for twelve months, or up to 48 months, depending on the nature of a specific programme. The Child Justice Court conducted trials to ensure that children understood the implications of their actions and so that they could be held accountable for the harm that they would have caused. The Act also looked at the re-integration of the child into society.                                                                                                            

Ms Thandazile Skhosana, Senior State Law Adviser, Department of Justice, gave a detailed outline of the regulations to the Committee, clause-by-clause. [see attached document]

Discussion
The Chairperson referred to Chapter 2 of the regulations, which set out the provisions relating to the referral of a child under the age of 10 years to the Children’s Court, for counseling, or therapy, or to an accredited programme. He also referred to Chapter 9 of the regulations which spoke about the sentencing of children. He asked the Department to elaborate on this and to clarify whether this process entailed removal of the child from his or her family. He asked how it would assist that child to be separated from the family.

The Chairperson asked what the implication was of the child staying in a youth care centre with regard to the rehabilitation programme, saying that these centres were not found in every township. Often this might result in the child being taken to a centre that was very far from his or her parents and family. He wanted to know if it would assist rehabilitation.

Ms Skhosana responded that in terms of Chapter 9 of the regulations, two scenarios were envisaged, with respect to referral of a child who, being under the age of 10 years, could not be prosecuted. If there was an allegation that this child had committed an offence, the police officer could do two things. Firstly, the police officer could hand the child over to the parents or an appropriate adult or guardian in terms of the Act. If a parent or guardian could not be located, or if was not in the best interests of the child to hand him or her over to that parent or guardian, then the child could be handed to a youth care centre. Her understanding was that in terms of the Children’s Act, there were Child and Youth Care Centres that were designed in such a way that they provided different programmes, depending on the age of the child, and depending on the issues that the child had. After handing over the child, the police official had to inform the probation officer, who then had to assess the child and make a decision whether to refer the child as a child in need of care or to the children’s court.

Ms Pat Moodley, Acting Chief Director, Department of Justice, added that the Children’s Act would govern the circumstances under which children would be removed. If, for instance, a child who was under 10 years old had stolen a loaf of bread, then the police officer would most likely realise that there was economic need, and nobody was providing the child with food. However, the referral, and what a court might eventually decide, would be determined by the Children’s Act.

Ms Moodley also submitted that with the way that the Act was formulated at the moment, it was a matter of last resort that the child would get a residential sentence. All other options needed to be considered first, and there was an entire section on alternative sentences that the court must consider. The child could go to a residential option which could be a Child and Youth Care Centre. There would be rehabilitation and reintegration programmes, because restorative justice was one of the principles underlying the Act. The child would therefore be prepared for reintegration into the community, rather than being treated as someone who was to be removed. The child would go to prison as an absolute last resort, and only when the child was above 14 years of age. The kind of circumstances that might lead to this would also entail that the child had committed a Schedule 3 offence, or was a repeat offender; there were several criteria to be considered. The Act was designed in such a way that all possible steps would be taken first to ensure that the child would not go through the criminal justice system, and that very few children would be referred to trial, because the preliminary enquiry process would have sifted out those children who did not need to go to trial.

The Chairperson asked who had the responsibility for ensuring that the rehabilitation and reintegration programmes were implemented. A question had also been asked about whether other Departments were ready to implement the regulations. When the Select Committee had visited two youth centres in the Free State, the management had complained that programmes could not be implemented because it was the responsibility of the Department of Education (DOE) to employ teachers who were responsible for some of the programmes.

Ms Moodley responded that the DOE provided programmes for sentenced children in these facilities. However, children who had not been sentenced but were awaiting trial were dealt with by the Department of Social Development (DSD).  The DSD had run a programme in the last financial year to test whether it would need to run these programmes in six different correctional facilities. That project had come to an end. One aspect that needed to be checked was how many children would be held while awaiting trial. The Act was very strict about which category of children awaiting trial could be remanded in a prison. It was anticipated that the number of children awaiting trial who were supposed to be remanded in prison would drop drastically. It was also considered desirable to draft a provision requiring a child remanded in prison to be brought to court every 14 days so that those cases would be prioritised. If the Act was properly implemented, that child would not be in prison for months on end awaiting trial and the programmes would be of an ad hoc nature, depending on the child’s needs.

Mr Makhubela asked about the assessment of a child by a person at the first encounter with that child at a crime scene. The regulations spoke about the age but did not focus on mental capacity or the intellectual capability of a child in that situation. He asked whether there was any formula to determine the mental capacity of a child and that child’s background.

Ms Skhosana responded that the idea was that before a child appeared in court or before a decision was made on how to deal with the child, there had to be an assessment done. One of the purposes of assessment was to establish the child’s background. The probation officer in doing such assessment would interview and ascertain the child’s background from any other person that could give any information in that regard.

Mr Makhubela asked that the definition of plain language be clarified.

Ms Skhosana responded that this meant that the language that was used had to take into account the age of the child concerned. A child would not understand, for instance, complex wording or concepts such as criminal capacity, and officials therefore had to use the type of language that the child could comprehend.

Mr M Makhubela (COPE, Limpopo) commented on the burden of proof required by the State about the criminal capacity of a child. The person who assessed the child had to prove such capacity. He asked what yardstick would be used to determine that a child was able to understand the charges that she or he was facing.

The Chairperson remarked on the issue of the proof of guilt or innocence of a child. Although he appreciated that children were capable of committing very serious crimes, he wondered if children in South Africa were so bad as to warrant the passing of legislation to confine them to rehabilitation centres. He wanted to know if there had been any comparative studies to show how South Africa compared with other countries.

Ms Skhosana responded that it was initially required for the State to prove that the child did have criminal capacity, and in order to assist the State, Section 11 of the Act stated that the court could ,on its own, refer the child to a medical practitioner or suitably qualified person to be able to evaluate the child’s criminal capacity. This could also be done upon request by the child’s legal representative or the prosecutor. The Act also required the Minister to identify categories of persons who would be able to evaluate criminal capacity. The Department had identified that psychologists and psychiatrists would be able to assist the court in evaluating the criminal capacity of a child. The court would then refer the child to such experts, who would compile a report to assist the court to decide on the criminal capacity of the child.

Ms Moodley added that in terms of the Act, the Department of Justice was also required to submit a report to Parliament after five years, indicating whether the current age of criminal capacity was deemed, through experience, to have been correctly applied to South African children, or if there was a need to either raise or lower this age of criminal capacity. The Department would, over the next five years, put in place a research programme to track the age issue.  

Mr Basset added that Section 11(1) of the Act required the State to prove beyond a reasonable doubt the capacity of a child who was 10 years or older, and therefore “beyond reasonable doubt “was the burden of proof that was applied, as was the case with all criminal proceedings.

Mr Makhubela also commented that even adults faced great difficulty, psychologically, when they encountered trauma such as crime scenes and he could only imagine what impact such scenes had on a child. He was concerned that exposure to the trauma and dealing with police at the scene of a crime would affect children negatively, and he wanted to know what protection was given to them under such circumstances.

Ms Moodley responded that the State was required to prove that the child had criminal capacity.

Mr Makhubela asked about the accommodation provided to children who were taken to youth care centres for compulsory residence. He was concerned about whether this was suitable accommodation for children.
           
Ms Botha responded that this would normally only happen when there was a reference from the probation officer. The Act was saying that before the Magistrate merely accepted that recommendation, the Magistrate had to ensure that there was suitable accommodation for the child, taking into account the age of the child and other relevant information. It was important to ensure that the accommodation was in line with the needs of the child.

Mr Basset added that Section 71 of the Children’s Act stated that compulsory residence sentences were going to be the exception rather than the rule. However, if a child had to go to either a child and youth care centre or to prison, Section 71 required a pre-sentence report. Where a probation officer required that a child be sentenced to compulsory residence in a child and youth care centre, the recommendation had to be supported by current and reliable information obtained by the probation officer from the person in charge of that centre, regarding the availability or otherwise of accommodation for the child.

Mr Makhubela asked the Department to indicate the criteria that would be used for the monitoring of compliance with these regulations, because they dealt with issues affecting children who were vulnerable and also unpredictable.

Mr Makhubela asked the Department to elaborate on the proposal which they had said they would send to the Independent Complaints Directorate (ICD).

Ms Botha responded that the initial regulations as tabled had not provided that if there was a complaint that a child was injured or severely traumatized, this had to be referred to the Independent Complaints Directorate (ICD). Bearing in mind the deliberations in the Portfolio Committee it was recommended that there had to be provision for that in the regulations. It was true that in terms of the legislation regulating the ICD, such an issue could be brought to their attention, but the DOJ wanted to ensure that the report would also be submitted so that ICD could conduct its own investigation, and so that the complaint did not get further than the Station Commissioner.

Mr D Bloem (COPE, Free State) asked when this Act was supposed to be implemented.  He asked whether all the Departments affected were involved and whether they were ready to implement the Act. He also asked about the age determination of a child by a medical practitioner. He commented that this was a very difficult undertaking and, from his own experience, a child who was 14 years of age could easily say that he was older, and might end up going to prison if he did not wish to be held among other young children. He therefore wanted to know how, in practice, the ages of the children could be determined, and whether it was practical to expect that this would be correctly assessed.

Ms Msomi assured the Committee that to a large extent, some of the interventions that were required by the Act had already been happening. They just had not been legislated and regulated for. There were already some provisional probation officers and some of these interventions reported to the Committee were already in existence. What the Department was trying to do was to streamline them so that they were available throughout the country, and they were available to all children that needed these interventions. The legislation was going to be supported by a number of mechanisms. She noted that the Act came into effect on 1 April 2010. The Cluster would be monitoring the implementation, and would be meeting regularly, as prescribed in the relevant legislation. She summarized that there were five aspects to be monitored. The first was that there would be sufficient “warm bodies” who would ensure that all the matters being spoken of today would happen. Secondly, there was a governance framework. In those areas where it was not already in place, the inter-sectoral team would ensure that governance was in place, as it was the responsibility of the Directors General. The third issue related to infrastructure and resources, and that was where the Members’ questions had been primarily focused – in terms of resources available to fund programmes for rehabilitation and reintegration. The Department had submitted some requests to National Treasury for financial resources to support the Departments, but accepted that, given the recession, not all the resources that it required were going to be given. Therefore each of the affected departments had been asked to go back and try to find resources within their existing baselines. The amount earmarked for this presently was only R30 million, without the amounts to be found from the baselines. The inter-sectoral committee of Directors General would then ensure that such funds were allocated in places where they were meant to be allocated. In addition to that the departments were also seeking donor funding and they already had some, to try and make those programmes sustainable.

The fourth aspect related to training, which was a necessary part of the Act’s implementation. The intersectoral committee had met on the previous day, and had agreed to have three phases of training. The intermediary training would be day to day type training, of the nature that officials involved in the administration of justice would require for managing the Act. It made a lot of sense to consolidate that type of training. There was also short-term training and medium-term training. The third level of training was the curriculum to be developed for universities, police academies and justice colleges to sustain the Act in the long term.  

Ms Msomi noted that DOJ was comfortable that, from the point of view of itself and the Cluster, there was readiness to implement the Act by 1 April 2010. It was important for her, however, to indicate that the directive that had to be issued by the National Director of Public Prosecutions had been submitted to the Minister for consultation. He would be interacting with that directive and it was expected that this would be done before the due date for the implementation. The National Commissioner of South African Police Service (SAPS) also had to issue national instructions, and the Department had interacted with the first preliminary instructions issued. DOJ made comments formally to the National Commissioner, who was now interacting with them. DOJ was aware that the second round of draft instructions had already been populated and largely completed, although it had not seen the final set of instructions. Some might not be ready for 1 April. However, the Cluster had agreed to guard against simply rushing things through to meet deadlines. The National Commissioner would therefore be issuing interim instructions whilst they were finalising the detailed instructions.

The meeting was adjourned.