Child Justice Bill: Consideration of proposed Regulations; Money Bills Amendment Procedure & Related Matters Act: briefing

Meeting report

Money Bills Amendment Procedure and Related Matters Act, No 9 of 2009: Parliamentary Section Manager’s presentation
Ms Zanele Mene, Parliamentary Committee Section Manager, gave a presentation to the Committee on the objectives, implications and the requirements of the Money Bills Amendment Procedure and Related Matters Act (the Act). This Act set out a step-by-step guideline for Parliament, if it wanted to amend any Money Bills. The Act established four new Committees – two Finance and two Appropriations Committees, in the National Assembly (NA) and National Council of Provinces (NCOP) respectively. It also established the Budget Office, which was expected to have experts who would advise Parliament on how it could do its work. The staffing of the Budget Office was ongoing and would be handled by the Office of the Secretary of Parliament. The Act stipulated that Committees needed to comply with the deadlines that it had set. The Committees had to coordinate their work, as the Act instructed them to meet jointly. The Act had introduced two new stages of the Budget process.

Each Committee had to now assess the performance of the Department it oversaw. The Committee had to compile a report on its findings and make recommendations to the House.. This meant that the Budgetary Review and Recommendations Report (BRRR) should be ready  before Parliament adopted the Medium Term Budget Policy Statement (MTBPS). When compiling the BRRR the Committees could use the quarterly reports published by National Treasury in terms of the Public Finance Management Act (PFMA), and the annual reports of Departments and public entities (those using public funds). The challenge was that some Departments did not meet the deadlines of when reports were to be completed. Further tools that the Committees could use were the Financial & Fiscal Commission’s Report, the Auditor General’s (AG) reports, the Standing Committee on Public Accounts’ (SCOPA) findings, findings by other Committees during oversight visits, and briefings by Departments and entities.

Committees would be allowed to compile the reports from the 11th-22nd of October. No plenaries would be scheduled during this week; Committees would be allowed to make use of Mondays and Fridays. The reason for the allocation of the two weeks was that there would be substantial information for Committees to consider, and the report had to be compiled and tabled in the House. The BRRR would be referred to the Standing Committee on Appropriations, which had a final say as far as the MTBPS was concerned. The Act was silent on the roles of the Committees in the NCOP. However, in terms of the rules of Parliament Committees were allowed to meet jointly.

The MTBPS would be tabled towards the end of October. According to the Act, Parliament would be given 30 days to consider the MTBPS. The Fiscal Framework (FF) was a new addition to the budget cycle. Parliament had to consider and pass the FF within 16 days. The FF would be referred to the Standing and Select Committees of Finance. These Committees had to have joint sittings within these 16 days. Within these allocated 16 days, the Minister had to be given two days to consider any amendments that were being proposed to the FF. There was a challenge around the allocation of time. Parliament, although given only 16 days, must comply with those time frames.

The budget votes were crucial for Parliament, because once the FF was adopted; the Appropriations and Division of Revenue Bills would be considered. The challenge lay in obtaining the Strategic Plan of Departments, as it was necessary for considering the two Bills. The regulations by National Treasury stipulated that the strategic plans had to be tabled ten days before the budget vote. The Act had different time frames, which prevailed over those of National Treasury.

Parliament was given 35 days to consider and pass the Division of Revenue Bill. The main challenge was that this Bill was a section 76 Bill under the Constitution. It meant that the Bill had to follow the 6-week cycle of the NCOP. This left the National Assembly with only two days to consider the Bill. The Division of Revenue Bill had to be passed by Parliament by 31 March. There were not a lot of challenges concerning the Appropriations Bill, since Parliament was given at least four months to pass it after the Minister of Finance had tabled it.  

Discussion
The Chairperson said that the Committee did not intend to deal with this matter substantively at this meeting. It was puzzling that there would be challenges regarding Departmental strategic plans in March, when the budget had already been tabled in Parliament.

Mr P Holomisa (ANC) asked Ms Mene why the Act was silent on the roles of the Committees located in the NCOP. He also asked for the progress regarding the establishment of the Budget Office.

Ms Mene responded that her personal view was that the NCOP did not oversee one Department but instead the Committees in the NCOP oversaw a cluster of Departments. The minimum was between three and seven departments per Committee.  This was the reason why there was a stipulation that allowed joint meetings between the NCOP and the NA. When she had given this presentation to the NCOP, a decision was made to take this matter further.

Ms Mene advised that the Budget Office was work in progress, that was being managed by the Office of the Secretary to Parliament. The advertisement for the position of Director had been compiled.

The Chairperson said that he doubted if the NCOP could be excluded, as Constitutional provisions would be unintentionally breached. When decisions concerning the Fiscal Framework were taken, provincial interests would be affected.

Child Justice Act: Regulations: Presentation by Department of Justice and Constitutional Development (the Department)
Ms Nonkululeko Msomi, Director General, Department of Justice and Constitutional Development, noted that the NCOP Committee had been briefed last week on the Regulations framed under the Child Justice Act, and had accepted them. She noted that the Regulations tabled before the NCOP had been amended following the stipulations of the committee.

Ms Msomi noted that the Director General’s intersectoral committee meeting was convened and the coordination of the whole process on the Child Justice Bill was given effect. The outcome from this meeting was that the Cluster departments were ready for the implementation of the Act on 1 April 2010. The Department had already made comments on the Police Instructions. The South African Police Services (SAPS) was not going to meet the deadline, and had instead issued interim Instructions. Donor funding would be solicited in order to accelerate training.

Mr Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, said that the document that would be presented today was the same document that was circulated in the previous meeting. The document also highlighted the amendments that had been made.

Ms Ina Botha, Principal State Law Advisor, Department of Justice and Constitutional Development, said that the Bill did not make reference to any designated Probation Officer. It was important for the Department to ensure that the Probation Officer could conduct the assessment of the child timeously. The Department thus considered a designation of existing supervisors who were in charge of existing probation offices. This was the thinking behind Regulation 2.

The Committee had previously requested the Department to give consideration of time frames and this had been done.

The Department made provision for a designated Probation Officer who was no longer in service, by stipulating that a new one should be appointed in that instance. The Department of Social Development (DSD) had requested an amendment to Regulation 2, as there were only 484 Probation Officers countrywide. DSD requested that the period of designating Probation Officers should be extended from three months to three years. The Department was concerned about the purpose of this request. The Department suggested that Regulation 2 could be deleted, and this would also mean that the definition of Probation Officer should be removed as well. The reference to a designated Probation Officer would then be also removed under Regulations 3, 4, 8,16,17, and18.

The Department had amended Regulation 21, in accordance with the request of the Committee.

Ms Botha wanted to alert the Committee to Section 28 (2) of the Act, which held that a Station Commissioner must ensure that the child gets immediate medical treatment under certain circumstances: namely, where there was evidence of physical injury or severe psychological trauma, where the child appeared to be in pain as a result of an injury, where there is an allegation that a sexual offence had been committed against the child, and where there were other circumstances that warranted medical treatment. When the Department drafted this amendment it confined the reasons to instances contained in the section that had just been referred to. The Department had now also included that a copy of the report by the Station Commissioner must be submitted to the Independent Complaints Directorate (ICD).

Regulation 24 contained amendments made following the SAPS request. These were technical amendments, to the effect that a police official must keep a record of the manner in which the written report was submitted (instead of referring only to “a presiding officer”). Regulation 25 also contained a technical amendment at SAPS’s request. The proposed amendment to Regulation 33 was that there should be a seven-day time frame in which the Probation Officer should notify the Magistrate of a child’s failure to comply with an order. Regulation 35 was a technical amendment proposed by SAPS. The Department had tried to accommodate this by including a reference for the inclusion of the National Commissioner of Police, and the requirement that the Director General of DSD should submit particulars of the designated official.

The Department gave effect to the definition of an independent observer, which the Committee had said was not consistent with the definitions in the Act itself. The Department also included in this Regulation, a reference to radio stations, newspapers and posting invitations to interested persons who would want to be independent observers.

The Committee had been worried that the Regulations did not make provision for self-nomination; this had now been included. It was important to note that Section 72, 73 and 74 dealt with community based sentences, restorative justice and fines or alternative fines respectively. Section 79 was also important. This section held that the court must request a probation officer to submit progress reports. The Committee had expressed concern over a lack of an effective prescription for this process. The Department had tried to give effect to this concern by including time frames for when the reports had to be submitted, and had included Option 1 on page 30 of the Regulations. Guidance as to the monitoring process had been provided for the Probation Officer.

The Chairperson interrupted and asked how much more time the presenter needed as the Committee needed more time to make decisions. The Chairperson suggested that the Committee could go through each Regulation where decisions had to be made.

Mr J Jeffery (ANC) suggested that the presenter should continue, as she was nearly finished.

Ms Botha continued with Regulation 47, which contained a technical amendment suggested by SAPS. The Department had tried to include time frames within which officers had to comply. Under Regulation 48, there was a debate about whether the proceedings/hearings made reference to a preliminary inquiry. The Department made changes, now clarifying that the relevant term, “court proceedings” meant that the proceedings before the Child Justice Court were being contemplated. The Department also mentioned that there was no need for a legal representative if there was a postponement.

Discussion
Mr Jeffery suggested that the Committee should proceed, Regulation-by-Regulation, to discuss those that needed to be changed.

Ms Botha said the Department recommended that the definition of designated Probation Officer should be taken away, Regulation 2 should be deleted and effect should be given to all other references to a Probation Officer.

Mr Jeffery said that he did not have a problem with the definition being taken away, but asked if the  Department was suggesting that Regulation 2 should be done away with altogether.

Ms Botha replied that there were two approaches, a complete deletion or following the recommendation by DSD.

Mr Jeffery preferred the idea of designation. He said the DSD’s recommendation of a three-year period for designation was completely outrageous. The Probation Officers should be spread out across all stations even if one would be allocated to seven stations. It was important that it was known who the Probation Officer was. He suggested that DSD had to get itself organised.

Mr Bassett said that the Department was of the same view; but that DSD was opposed to this.

The Chairperson said that it had been decided that one Probation Officer should be designated to several stations and that should stand.

Ms Botha referred to page 15, Section 21, and said that the Committee had recommended that, in the case where circumstances under Section 28 existed, the reasons why the child was denied medical attention should be included in the Station Commissioner’s report.

Mr Jeffery said that there was a misunderstanding. If the circumstances referred to in Section 28 existed, then the child must get medical attention, and that was the bottom line. What should have been included was the reasons why the child did not receive medical attention, if the station commissioner believed that the circumstances under Section 28 did not exist.

Ms Botha continued to page 17, noting the amendment relating to the reference to the National Commissioner and the fact that the report had to be submitted to the ICD.

Mr Bassett recommended that this section should be left the way it had been drafted.

Ms Botha referred to Regulation 21, and said that SAPS had suggested that the following should be deleted: the full particulars of the investigating police officials and the impact of the injury or trauma on the child. Under Regulation 24 the reference to the “investigating officer” should be removed and replaced with a reference to “a police official’. This was an amendment that was requested by SAPS. Regulation 25(3) on page 19 was the same technical amendment as the previous two.

Mr Jeffery said that what had been deleted was the requirement that a police official had to ensure that the presiding officer received the report. This provision must remain.

Ms Botha said that the normal procedure was that documents were given to the Clerk of the Court and that was why SAPS had requested the amendment, so as to allow SAPS to hand the document to the Clerk.

Mr Jeffery suggested that the requirement should then be that the document must be submitted to the Clerk of the Court.

Ms Botha said that Regulation 33 was an inclusion of the time frames within which the Probation Officer had to notify the Presiding Officer of the failure to comply by the child. The change in Regulation 35 allowed for the National Commissioner to receive the name and particulars of the person who would deal with the register.

Mr Jeffery referred to Option 1 of Regulation 38 (b), and said the provision in this section allowed the Magistrate to decide not to make use of the various ways in which invitations could be sent for nominations of an independent observer. The word ‘must’ should be included, before the wording dealing with the ways in which an invitation for a nomination for an independent observer should be posted.

Ms Botha continued to page 29. She said that that the Department preferred the Committee to select the option under Regulation 41 and the word ‘submission’ should be also included. The Department also preferred the Committee to choose Option 1 under Regulation 47, and also to include a greater emphasis on the time frames, and the actual submission of the report. This was set out on page 34. The Department recommended that a legal representative should be present at all court proceedings, as set out under Regulation 48 on page 34.

Mr Jeffery said he thought the preliminary inquiry was part of the court proceedings, which was then regarded as the first appearance.

The Chairperson asked the National Prosecuting Authority (NPA) to respond to issue raised by Mr Jeffery.

Advocate Johan Bezuidenhout, Deputy Director of Public Prosecutions, National Prosecuting Authority, said that prosecutors were trained to consider the preliminary inquiries to be part of the court proceedings. However, once this had been finalised it would not form part of the record at the Child Justice Court.

Mr Jeffery said if that was the case, then the Department was wrong. When the Portfolio Committee on Justice in the Third Parliament had finalised the Child Justice Bill it did not feel that there was a need for legal representation at the preliminary inquiry. The correct wording should therefore reflect that there should not be any legal representation at this stage, unless requested by the accused or the parent of the accused.  A further reason for the exclusion of legal representation at the preliminary inquiry was that there was not much that could prejudice a child.

Ms S Michael (DA) said that during the last discussion she was not the only person who felt that there should be legal representation at the preliminary inquiry, as this was the moment when the child was at his or her most vulnerable. Even though the Bill made provision for simple language to be used, this did not mean that the child or parent would necessarily be able to understand the terminology that would be used. Legal Aid South Africa and the NPA were content with the inclusion of legal representatives.

The Chairperson asked if the inclusion of legal representation would materially alter the purpose of the Act.

Mr Jeffery read Section 81 of the Act, which did not preclude legal representation. The Regulations stipulated that there had to be legal representation at this stage. Therefore he felt that the Regulations were inconsistent with the Act. The correct wording should reflect that a legal representative may attend a preliminary inquiry and must attend all other court proceedings. This would be consistent with the Act.

Ms Botha informed the Committee that the amendments had now been completed

The Chairperson asked how far the Department had gone with its engagement with the NCOP

Ms Msomi said that the Department had met with the NCOP last week and there were no proposed amendments.

Ms Michael apologised for going back to the Act, but clarified that she wanted to check what would happen in a situation where there were no parents, and officials could not find an appropriate adult. This would, for instance, apply to street children.

Mr Jeffery referred Ms Michael to section 44 of the Act, which stipulated that officials had to find an appropriate adult.

Ms Michael asked what was the definition of an appropriate adult.

Ms Botha said that an appropriate adult was any member of the child’s family, which could include a sibling who was 16 years or older, or a caregiver in terms of Section 1 of the Children’s Act.

Ms L Adams (COPE) asked if Regulation 3 referred to a child or a child-headed household. She asked if a child who lived in the street would be handed over to a youth care centre. She asked also if there were other alternatives that could be provided if the closest youth care centre was full.

Ms Botha referred to Section 9 (1) of the Act, which held that a child must be handed over to his or her parents, or an appropriate adult or guardian. If no appropriate guardian was available, or it was not in the best interests of the child to be handed over to a parent, then the child should be handed over to a youth care centre.

Ms Adams clarified her question as relating to an instance where the youth care centre was full or there were no police cells.

Ms Pat Moodley, Chief Director, Department of Justice and Constitutional Development, said that the definition of child and youth care centre had been amended in the Children’s Act. If there was no secure care facility then a place of safety could be used, or a semi permanent care facility.  The “child and care centre” definition in the Act was an all-encompassing definition that was used in the Children’s Act.

Mr L Landers (ANC) asked if the Committee was being told that it was unlikely, for instance, to find a 14-year old boy inside a correctional centre.

Ms Moodley responded that the section under discussion referred to children under ten years of age. If a child who was 14 years old committed a Schedule 3 offence, then that child may well be remanded to a correctional centre, if there were no other facilities that could be located by a court.

Ms Adams referred to Regulation 20 and asked what its purpose was, since everybody would find out on the day of the next appearance that the child was absent. She questioned what would be the intention of sending the affidavit, as mentioned under Subsection 2, after informing the presiding officer, with the aim of ensuring that the child became part of the process again.

Ms Botha referred to Section 24 and explained that somebody may become aware of the failure to comply with the conditions before the date of appearance, which could then facilitate this. Insofar as the failure to appear was concerned, this would only be found on the date of appearance, because this referred to a child who was not in detention. The Department then tried to ensure that there were speedy measures as to how the affidavit should be submitted.

National Prosecuting Authority Directives presentation
Adv Bezuidenhout said that the suggestion by the Committee was that paragraphs 2 and 3 should be dealt with under a separate heading, which would be titled: “Directives by the Director of Public Prosecutions”. This had been effected. The NPA agreed with the suggestion that in paragraph 4, heading A should be a separate heading. The NPA was also in agreement with the suggestion that care should be taken before the withdrawal of a case; it felt very strongly about this.

A further suggestion was that the NPA should pay more attention to storing information for children who were 10 years old, and those aged from 10 to 14 years of age together. This had been done through the inclusion of the following paragraph: “It is important to note that the Bill amends the common law regarding the age of criminal capacity, a child committing an offence whilst under the age of 10 years could not be prosecuted for a particular offence. A prosecutor would not prosecute a case where there was a lack of criminal capacity. Children under the age of 10 must not be arrested and the police must notify the Probation Officer. “

The Committee had sought clarity on what the Directives had meant concerning proceedings being brought into disrepute.  It was difficult to determine this since it was not possible to draw up an exhaustive list, but prosecutors had been instructed to seek clarity from the National Director of Public Prosecutions during proceedings.

The Committee had requested that prosecutors should study the assessment report. Therefore the following had been included: “Prior to the preliminary inquiry the prosecutor must - as a general rule – have been provided with an assessment report of the child by a Probation Officer. The report must be studied by the prosecutor as it will provide further information as to how this matter must be dealt with.”

The first paragraph of subsection (e) was deemed to be too ambiguous. It had been altered so that the crime being referred to was a minor Schedule 1 offence.  

A further paragraph which referred to Section 97 (9) had been added. It made reference to disciplinary steps being taken against any prosecutor who would be in breach of the Directives.

Discussion
Mr Jeffery commented that it was difficult to follow what the Directives were when the Committee Members did not have a copy of them. Even though this was an informal procedure, it was completely out of line, and he suggested that the Committee should reject the Directives when they were tabled formally.  The Directives re-wrote the Act incorrectly, and this was a problem. It was insufficient for the prosecution to only notify the Magistrate where a case was diverted because of the age of the child, only for it then to be discovered that the age of the child had been incorrectly determined. There should be more value to this. He asked if the NCOP had been briefed on the Directives.
 
Ms Msomi responded that the Directives had not been tabled before the NCOP

Mr Jeffrey said that the NCOP had to have an opportunity to comment informally on the Directives. The NPA was treating the NCOP with contempt, and was seemingly just expecting NCOP to rubber stamp the Directives.

Ms Msomi apologised on behalf of the person who was supposed to oversee the entire process, and said that the Department was going to appear before the NCOP in Limpopo. The Directives would be tabled before the Committee, and they would be presented, inclusive of the comments made by the Committee.

Mr Kombisa Mbokaza, Deputy Director of Public Prosecutions, humbly apologised to the Committee and said that the NPA would try to circulate the Directives timeously in Limpopo.

The meeting was adjourned.