Child Justice Act Regulations and Directives: finalisation; Committee's Strategic Plan

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Justice and Correctional Services

22 March 2010
Chairperson: Mr. Ramatlodi (ANC)
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Meeting Summary

The Committee went over the amendments that it had asked the Department to make to the Regulations. Amongst others, the definition of a designated Probation Officer was deleted. According to the amendment, any Probation Officer in the province where the police station was situated may receive a notice. The full particulars of an investigative officer would be removed according to Regulation 21. The impact of any injuries or trauma suffered by a child whilst in detention had to be recorded. If that child did not receive any medical care, reasons had to be furnished. The police had to ensure that the clerk of the court received the report about the transportation of a child to or from a Child Justice Court or preliminary inquiry in cases where boys were transported with girls or children with adults. A time frame had been inserted in Regulation 33 about the reporting of a child for non-compliance with a diversion order.

Paragraphs A to B of the Directives had indicated the general requirements for diversion in terms of the Act. These had now been deleted as per the Committee’s request. The general requirements for diversion were in section 52(1) of the Act. Paragraph N(3) spelt out the role of the prosecutor. Paragraph T was a new paragraph that regulated the compliance of prosecutors with the Directives.

The Committee was disappointed that the National Prosecuting Authority was not at the meeting to present the Directives. The Committee debated the obligation of the state where the best interests of the child were concerned. The Committee went on to adopt both the Regulations and Directives.

The Committee debated at length about its approach to the Trafficking Bill: to finalise the Bill before the World Cup versus engaging with it thoroughly over a longer period. The Committee wanted to know what the Sexual Offences Act and the Children’s Act currently not cover on human trafficking. The Committee unanimously agreed that it was important for it to be seen as treating the Bill with seriousness and urgency.


Meeting report

Child Justice Act Regulations
Mr Lawrence Basset, Chief Director: Legislative Development, said that the Department had implemented the changes to the Regulations as proposed by the Committee. His presentation would comprise a comparison between the document of the 16 March 2010 and the amended version provided today.

Regulation 1
The Department had taken out the definition of a designated Probation Officer.

Regulation 2
The option presented for the Committee’s consideration was deleted. This was the suggestion by the Department of Social Development (DSD). The Committee was of the view that the Department should stick to the Regulation as submitted. The Regulation has been adapted in line with the Committee’s instructions.

Regulation 2(1)(b)
This Regulation read as follows: Until such time as the Director General of DSD had appointed a designated Probation Officer any Probation Officer in the district may receive a notice. At the requested from DSD the word district was changed in order to fit in line with their practices. The wording had been changed and read as follows: Until such time as the Director General (DG) had appointed a Designated Probation Officer any Probation Officer in the province where the police station is situated may receive a notice.

The words ‘Designated Probation Officer’ had been kept in all other areas in the Act where they appeared.

Regulation 21
This Regulation dealt with the written complaint about an injury or trauma of a child in detention. Regulation 21(1)(b) referred to a report. The report referred to in 21(1)(a) should contain the following particulars: the full particulars of the police official if they were different from those of the investigating police official referred to in sub-paragraph (i). The full particulars of the investigating police official had been taken out at the request of the South African Police Service (SAPS). The Committee had indicated that they did not have a problem with this. The Department had also removed the following wording: “a police official who receives a complaint or makes an observation concerning an injury must upon the completion of the actions required in terms of this Regulation ensure that the following details are entered in the Register”. The impact of the injury or trauma on the child was one of the details that had to be entered. The Department had re-numbered everything accordingly.

Regulation 21(3)(c)
There was a debate about this Regulation. The Committee was not happy with the Department’s wording. This had been changed in 21(3)(c)(v). It now read: “if the child did not receive medical treatment the reasons why, had to be given”.

Regulation 24(2)
All references to the ‘investigating police official’ had been removed and the Act now had ‘police official’ only. This was done as requested by SAPS.

Regulation 25
This dealt with the transportation of a child to or from a preliminary enquiry or a Child Justice Court. Sub-Regulation three read: The police official must keep record of the manner of submission and make sure that the presiding officer has received a written report. This had been changed as per SAPS’ request to: The police official must keep record of the manner in which the report was submitted. The Committee had requested that this should be changed which the Department had done. It now read as follows: The police official must keep record of the manner of submission and ensure that the clerk of the court received the written report.

Regulation 33
The suggestion by the Committee was that a time frame should be inserted within which the failure of a child to comply with a diversion order had to be reported. The Department had done this.

Regulation 35
In terms of this Regulation, the Director General of DSD must designate an official to make entries, update and maintain the register of diversions. The Director General of DSD must forward the particulars of the designated official to the DG of the Department of Justice and Constitutional Development (DOJ & CJ) and to the National Director of Public Prosecutions (NDPP). The Committee had requested that this information should be made available to the National Commissioner of Police. The Department had inserted this.

Regulation 38
The Department had given effect to the Committee’s request about independent observers. It now read: The Magistrate of a district must for purposes of compiling a list of independent observers invite the community and members of the community police forum to serve as independent observers. Self-nomination was also permitted. The Department was requested to broaden the manner in which individuals were allowed to nominate themselves. It now read: An invitation for an independent observer must be posted on the notice board of the Magistrate’s office, published in a local newspaper, broadcast in a radio station or extended in any other matter that the Magistrate deemed appropriate.

Regulation 41
The Committee had requested that time frames should be made applicable for the submission of progress reports.

Regulation 47
There were two options available for the Committee’s consideration. The second option was selected and the new sub-regulation was inserted which held that: “the Probation Officer must provide the Child Justice Court with a report on the failure of the child to comply with the sentence referred to in section 79(1) of the Act seven days after becoming aware of the child’s failure”.

Regulation 48
Sub-clause 3 was a new insertion. It held that: a legal representative may attend the proceedings of a preliminary inquiry if so requested by the inquiring Magistrate. In relation to this, Regulation 48(1) held that: A legal representative appointed in terms of section 83 of the Act to assist the court must attend all court proceedings in respect of the case unless excused by the court.

NPA Directives presentation
Mr Deon Rudman, Deputy Director General for Legislative and Constitutional Development, apologised to the Committee for the NPA’s absence and began with the presentation on behalf of the NPA. The presentation would only highlight the changes to the Directives. The Directives had been tabled before the Minister of Justice and Constitutional Development as required by the Act.

Paragraph A to B
Mr Rudman said that there were essentially three changes to the Directives. The principles of diversion in the previous version of the Directives were contained in Paragraphs A to B. These paragraphs had indicated the general requirements for diversion in terms of the Act. The Committee had requested that these paragraphs should be deleted and that reference should only be made to the relevant section of the Act. This had been done and one would now find that paragraph F(1) held that: “the general requirements for diversion in terms of the Act are contained in section 52(1) of the Act”.

Paragraph N
This paragraph dealt with any error about the age of the child discovered after diversion. The Committee had requested that the role of the prosecutor should be spelt. This had been done in N(3) which held that: “the prosecutor must inform the presiding officer whether diversion, and if so, the same conditions of diversion would have been ordered if the correct age was known when the matter was initially considered for diversion”.

Paragraph T
This was a new paragraph, which was not in the old version of the Directives. This paragraph held that: “Failure by a prosecutor to comply with these Directives and/or any duty imposed on him/her in terms of this Act may lead or result in disciplinary steps being taken against such prosecutor.”

Discussion
Mr J Jeffery (ANC) highlighted that Regulation 48 was only in respect of a child who had refused legal representation.

Mr M Gungubele (ANC) said that the Committee had had a dilemma in resolving the state’s obligation to ensure the best interests of the child, versus the child refusing legal representation. 

The Chairperson said that the Act should be drafted in such a way that the child should not have discretion where legal representation was concerned.

Mr Jeffery pointed out that the Act held that the child did not have discretion and if the child refused a legal representative, then the court had to appoint one. Section 83 related only to such cases. There was a debate on whether a legal representative had to attend the preliminary inquiry. The view in the Act was that it was preferable for there not to be any legal representation but it was not precluded. The compromise was that legal representatives could attend if requested by the inquiring Magistrate.

Ms N Michael (DA) agreed with Mr Jeffery as she had insisted that children should not attend preliminary inquiries on their own.

Mr Gungubele asked how the amendment dealt with the issue of the obligation of the state where the best interests of the child were a concern?

Ms Michael replied that the obligation of the state rested on the Magistrate who should know what he/she was doing. The Committee hoped that the Magistrates would know the Act inside out as assured by the Department.

Mr Jeffery was not happy with the absence of the NPA which showed a lack of responsibility. There were no reservations on adopting the Directives.

Mr Gungubele agreed with Mr Jeffery and requested the Chairperson to send a letter to the NPA regarding the Committee’s dissatisfaction with their absence.

Deliberation of the Committee’s Report on the Regulations
Mr Jeffery referred to the Committee’s report on the Directives and pointed out that they in eror  instructed the Committee to adopt the Regulations instead of the Directives.

Mr S Swart (ACDP) said there was an error in the very last sentence where the word Committee was omitted. The fourth paragraph had a sentence, which read: “the Committee was concerned that there were certain Departments that already contravened certain sections of the Act before implementation”. Defence lawyers would love to use this sentence to get acquittals on review. The sentence should be deleted.

Ms Michael referred to the last paragraph and said that the word “should” had to be changed to “must” so that the Minister was compelled to develop a National Policy Framework.

The Committee approved the Directives and Regulations amendments.

Discussion on the Prevention and Combating of Trafficking of Persons Bill
Mr Swart requested a brief discussion on the Trafficking Bill before the Department left. It would be useful if the Department could brief the Committee, it would be particularly useful if the Committee knew of the degree of offences that existed in terms of the Children’s Act and the Sexual Offences Act and how the Trafficking Bill added to these offences. The Bill would also ensure that the courts jurisdiction was extra-territorial.

Mr Gungubele shared Mr Swart’s concerns however the Committee had to be properly advised about whether it was going to be possible to finalise the Bill before the World Cup. The Sexual Offences Act and the Children’s Act covered a lot of the offences already.

Mr Swart suggested that the Department should brief the Committee during the week before recess. There were a whole lot of new offences that had been created by the Trafficking Bill. There had been calls from civil society groups about Indonesian women in police cells and the police did not know what to do with them.

Mr L Landers (ANC) said if the Department could brief the Committee during the course of the week then this would be fine.  However the Committee had to try to avoid thinking emotionally. The time frame for the Committee was squeezed to such a degree that the task might become virtually impossible to finish this before June and the start of the World Cup. This was a major Bill and the Committee could not treat it as just another Bill. The Chairperson could issue a statement to the national media informing them that the Committee had received the Bill and would try its level best to deal with it. Personally he felt it was not possible to finalise it before the World Cup. The receipt of public submissions and selection of who would appear before the Committee to give oral submissions would be a lengthy process.

Ms Michael informed the Committee that she had received a pamphlet from the Directorate for Priority Crime Investigation, called the Hawks. The pamphlet was a request for any suspicions about human trafficking to be reported and a number had been provided. The number when dialled went through to the offices of the NPA where no one knew where a person could report a human trafficking crime. It was unlikely that the Department would be able to brief the Committee satisfactorily this week. The Committee did not legislate for the Federation of International Football Association (FIFA) but for the people of South Africa. It was important that the Committee was seen to be doing something though.

The Chairperson suggested that the Committee could issue a press statement informing the press that the Bill was before it and was being dealt with. The press statement would also highlight the seriousness and urgency of the matter however the Committee wanted to do a thorough job in processing the Bill. Since there were laws that applied to human trafficking to a certain extent, it would be possible to consider a way to close the gaps.

Mr Gungubele said that the briefing would be unsatisfactory if it did not highlight the state of readiness of the country for the World Cup on this matter. Alternative measures should be considered before the World Cup that covered such offences.

Mr Jeffery expressed caution about legislating for the World Cup and agreed with Ms Michael. The time allocated for hearings should be three weeks or longer. The Committee should get a briefing from the Department before it held hearings. The briefing should be on highlighting the existing gaps. The briefing could also include what SAPS and the NPA were currently doing to combat trafficking.

Ms M Smuts (DA) agreed with the approach from the Chairperson. The Committee could consider the offences for legislative purposes. In light of the Committee’s last meeting, were advertisements put up or not?

The Committee Secretary noted that at the last meeting there was a proposal for advertisements to be placed requesting comments on the Bill. At the Committee’s strategic planning workshop it had been decided that the Bill would be considered only next year. It would be important for the issue to be fully discussed and a decision taken so that the adverts could be placed.

Mr Swart responded that the Committee had agreed on the advertisements and it was a concern that the clerks had now decided amongst themselves not to send out the advertisement. The approach by Mr Jeffery would make things impossible. There was no harm in sending out an advertisement now. The Committee was not going to have submissions available immediately.

Mr Gungubele agreed with Mr Swart, the technical team should come back to the Committee if it had problems implementing its decisions.

The Chairperson recommended that the Committee should consider what it could do about the gaps.

Mr Rudman said the Department was ready to brief the Committee whenever required. The briefing would fully explain what the current gaps were. The Department would consider any short-term possibilities. This would be in relation to the offences. The briefing would highlight the gaps and how they could be dealt with. 

Mr Jeffery suggested that the Department could brief the Committee on 25 March.

Mr Rudman said that the initial briefing would not include the other departments, as this was an inter-sectoral Bill, they would come later.

The Chairperson declared that the Department would brief the Committee on the following day.

Mr Gungubele highlighted the importance of the briefing, which was to enable the Chairperson to properly craft the message that the Committee wanted to send out to the media.

The Chairperson asked when the advertisements should be sent out.

Ms Smuts replied that a month’s notice should be given to those planning to make submissions.

Mr Jeffery suggested that the Committee could decide what to put in the advert after the briefing. The focus of the briefing should be on the legal gaps, what actions were not covered and what was in the Act that covered the situation of the three Indonesian women that Mr Swart mentioned earlier.

Committee’s Strategic Plan
Ms Smuts referred to section three, which made reference to Co-operative governance. This was entirely out of place, as Justice did not form part of the Constitution’s Chapter Three Co-operative government provisions, which dealt with spheres of government. This should be deleted.

Mr Gungubele said that there were instances where suggestions were made as required by the law and instances where they were recommended. The suggestion on Co-operative governance should be seen in the latter perspective. It was not a legal requirement but something that was important.

Ms Smuts replied that the suggestion was simply not applicable, how could any provincial or local sphere of government have a Justice function?

Mr S Holomisa (ANC) agreed with Mr Gungubele and explained that what they both had in mind was that the suggestion was for a co-ordination of activities amongst the structures of government.

Mr Gungubele added that it was not a pronouncement of a legal imperative but one of a recommended or preferable method of working together successfully.

Ms Smuts referred to the insertion for the fast tracking of women into the judiciary. Was this part of the Committee’s programme or had the Committee taken a decision on this? What did the cross mean next to the 17th Constitutional Amendment under the section on Bills that the Committee had to process?

Mr Jeffery replied that the part on fast tracking women candidates into the judiciary was under section seven, which was part of the Department’s activities. A possible reading of it could be that this was also part of the oversight that the Committee had to perform. Another possible reading of the cross next to the 17th Constitutional Amendment could be that it was a factual situation as it had already been introduced during the 2009/10 financial year.

Mr Holomisa asked if the ‘Asmal Report’ on page 5 and 9 was a correct reference?

Ms Smuts replied that this was not correct.

The Committee adopted its Strategic Plan.
 
Meeting Adjourned.

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