SAPS National Instruction on Children in Conflict with the Law (Child Justice Act)

Meeting report

Departmental officials, led by Assistant Commissioner Tertius Geldenhuys, Head of Legislation, SAPS Legal Services, presented to the Committee the draft National Instruction on Children in Conflict with the Law. Section 97(5) of the Child Justice Act required the National Commissioner to issue the National Instruction, directing the procedures to be followed in arresting, detaining and processing of a child who was alleged to have committed an offence. The Instruction would also regulate circumstances when it would be necessary to arrest and detain a child. The underlying premise of the National Instruction was that children should be treated differently from adults. Their processing included the participation of many role players such as parents, social workers and probation officers. It was stressed that the Instruction emphasised that an arrest should be used as a last resort and for the shortest possible time. The National Instruction made provision on how to deal with children under the age of 10 years. According to the new Child Justice Act, a child under the age of ten (no longer seven) years lacked capacity to commit crime. In other words, there was an irrebutable presumption that they lacked mens rea, a necessary element in committing a crime. Also covered in the National Instruction, were the conditions of detention, transportation of children, confession, admission, pointing-out and identity parade involving a child, and a child being used by an adult to commit a crime.

Discussion
Ms A Van Wyk (ANC) asked if the department had done a proper costing of the implementation of the National Instruction. Secondly, what measures were in place to deal with those who chose to ignore the National Instruction on Children in Conflict with the Law. The Committee had in the past observed that the police did not follow the National Instruction on the Domestic Violence Act and not much was being done to punish those responsible.

Commissioner Geldenhuys replied that the organisation had many measures of dealing with such irregularities and was confident that SAPS management had the necessary resources to hold accountable those who might choose not to follow Instruction. Measures such as national and provincial evaluation services and an appraisal system were examples of tools to ensure that individuals could be measured to see if they took their jobs seriously.

Ms D Kohler-Barnard (DA) said she was concerned about the Instruction’ reference to the probation officers. There were certain remote areas of the country where there would be absolutely zero presence of probation officers. Under those circumstances, what then would be the next option for the department? She asked for clarity on the processes which involved ‘pointing out’ and an identity parade where a minor was involved. There seemed to be no protection provisions to be afforded to the minor, especially where a minor had to come face to face with the alleged perpetrators.    

Commissioner Geldenhuys replied the provision which he had mentioned dealt with the identification or pointing out of a minor who was alleged to have committed an offence and not a minor who was a victim.

Ms D Schafer (DA) was concerned about the provision in the Instruction which required the use of unmarked police vehicles in the transportation of the minor. These unmarked vehicles were mostly used by detectives, who were very often swamped with the investigation of serious crimes. Would that provision not result in the stifling of the detective’s duty to investigate serious crime when their vehicles were used to transport minors?

Ms M Dube (ANC) also asked how the provision about using unmarked police vehicles would impact on police capacity, taking into account that at present, the police-vehicle ratio did not look plausible

Commissioner Geldenhuys explained the National Instruction was quite clear that if there is an unmarked police vehicle available, the child must be transported in that vehicle but, in circumstances where there was none, a marked vehicle could be used. The Instruction did not prohibit the transportation of minors in marked vehicles at all.

Mr G Schneemann (ANC) said his concern was that the training given so far was only for higher-level SAPS officials, when in fact the people who needed training the most were police at ground level since they were the ones who did the work. Could the Department tell the Committee how many police officials had been given training on the implementation of the Child Justice Act, especially in rural areas?

Ms Dube requested clarity on who exactly was being trained and how many officials had been trained so far to deal with matters involving children. Was it the Commissioners and other senior officials or was it non-commissioned officers that were being trained?

Mr G Lekgetho (ANC) added to Ms Dube’s question by asking how much the training process would eat into the Department’s budget.

Commissioner Geldenhuys said the National Department was not responsible for the training arrangements. He emphasised that training by the National Department was being given to officials who would in turn train many more police officers. Provincial Commissioners were solely responsible for devising their own training arrangements and they could brief the National Department on the progress made only for record purposes. It was impossible to have trained all police officers by now but all the trainers had been trained and some had already begun the process of training.

Mr Irvin Kinnes, Chief Director: Policy and Research, Secretariat of Police, said he had met with the training division and they had explained that a total of 8 546 members were set to be trained before the end of June 2010 by means of a two-day training programme. Those would be officials selected from all the provinces. The five-day training programme would take longer to complete as there were many logistical procedures that needed to be done. The one-day training had already been completed although actual figures of how many officers were trained were not presented. Mr Kinnes said training took almost 80% of the total budget for the implementation of the National Instruction.

Mr Schneemann asked when the printing of material about the implementation of the Act would be ready for distribution to ensure that all police stations had the material.

Mr M George (COPE) observed that there were very few community service centres and youth centres in the country. On the other hand, the law was very clear that a child who was under 10 years could not, under any circumstances, be detained in custody, despite being in conflict with the law. Under these circumstances, should such a child be “let loose” or what?

Commissioner Geldenhuys said it was important to understand that the departure point was that a child under the age of 10 was not legally capable of committing a crime. However, if such child committed what ordinarily would be deemed an offence but was under the age of 10 year, there were enough provisions from existing legislation on how to deal with that matter.  The Children’s Act was an example of how legislation would deal with a matter involving a child under the age of ten who was alleged to be in conflict with the law.

Ms Kohler Barnard asked how one would determine the age of a child who did not have proper documentation. You could get a minor who was over the age of ten but claimed to be below or vice versa. An example of such children would be street children.

Commissioner Geldenhuys agreed that this was a difficult issue to grapple with. Under such circumstances, the law would require a police official, social worker or probation officer to evaluate and exercise their own discretion based on an objective assessment of the situation. Of course that carried a risk of getting it wrong but there was no other way an individual could resolve such a problem.

Ms Dube said information needed to be disseminated to make everyone, especially the police, aware about the whereabouts of some of the youth centres. she said she was not aware of any youth centre in her own constituency.

Commissioner Geldenhuys said the provisions anticipated that such a situation could arise where there were no facilities to keep the minors. However, the Instruction gave the probation officers, social workers and the station commanders the power to make a determination as to what could best suit the interests of justice and of the minor. That could mean transporting the minor to another far away centre anywhere in the country which could accommodate the minor, if no parent or guardian could be found.

Mr George remarked that a situation could arise where it would be impossible to detain a minor separately from adults due to a lack of adequate police cells. Under such circumstances, how would the implementation of the Instruction be possible in light of the provision that minors should not be detained in the same cell with adult offenders?

The Chairperson agreed with Mr George, saying in her constituency there was a police station situated in Mayflower which did not have a single police cell. Under those circumstances, how were the police expected to comply with the regulations where the detention of a minor was an issue. When one looked at the departmental five-year strategic plan, there was nothing suggesting that police cells would be constructed.

Mr V Ndlovu (IFP) said in light of what other members had raised, he was very concerned that the department could be taken to task by parents of minors who had knowledge of the Child Justice Act and the National Instruction, especially where this inevitable non-compliance was an issue. That would mean the department would lose money defending court cases as certain provisions in the National Instruction were not implementable.

The Chairperson agreed, saying she too was not convinced that some of the Instruction would be implementable at ground level. She cited the completion of the SAPS 583 document as an example of what seemed to be a very cumbersome and tedious procedure that would give the police and probation officers a hard time as they tried to comply. She blamed the department for not participating in meetings where some of the decisions affecting them were made, saying if they availed themselves they would have been able to raise objections before certain decisions were be taken.  

Mr Geldenhuys rejected the sentiments that his department had not availed itself at the deliberations of the legislation which affected it. The process of drafting the Child Justice Act had started more than ten years previously and since then, the department had been a part of the team that was responsible for overseeing it. However that did not mean the department was happy with all the provisions contained in the Act. Certain decisions which were made needed to be made whether the department wanted them or not. The allegations that the police were not committed were far-fetched.    

The Chairperson said it was not a baseless allegation that the department did not take certain parliamentary interactions seriously. One week previously, certain members of the Police Portfolio Committee had attended a Justice Portfolio Committee meeting where the subject matter under discussion was the Human Trafficking legislation. The Department of Police had been invited to participate as a key stakeholder in the implementation of the Bill once passed. To the surprise of every member present, there was not a single representative from SAPS! The Justice Department later reported that an invitation to attend the meeting had been sent to the police but had not been honoured.

Mr Schneemann said it was important for the department, when interacting with other departments on matters which required the police to implement the decisions, to explain to others the conditions on the ground in order to avoid a situation where un-implementable decisions were taken.

The Chairperson added that as the Committee had the interests of the department at heart, they would gladly welcome any concerns from the department regarding decisions taken by other parliamentary committees which adversely affected the police. Throughout the Committee’s existence, not once had the department approached the Committee for help concerning such issues.

Ms Van Wyk asked how much it would cost to roll-out the National Instruction.

The Chairperson added to Ms Van Wyk’s question saying the Committee wanted to know how much it would cost and what was going to be the timeframe for the implementation.

Commissioner Geldenhuys said he did not have the figure of how much it would cost to implement the National Instruction. Further, he could not know when the implementation would be completed because there were many factors which could affect the timeframe period for the implementation. The department was in the process of finalising the determination of how much it would cost the department to implement the orders. The costs of producing booklets that would be distributed to all provinces and police stations would be R1.8 million.

Mr Schneemann asked from where the money for the booklets would come. In an area where the services of a social worker or a probation officer were not easily accessible, who incurred the travel costs to wherever such services could be found?

Commissioner Geldenhuys replied that the money would come from the SAPS administration budget. The Department of Social Development had a budget for the transportation of its social workers. Various non-governmental organisations also had a subsidy granted by Social Development and even SAPS could make arrangements to transport social workers to and from police stations.

Mr H Chauke (ANC) took Commissioner Geldenhuys to task for responding that he did not know how much it would cost to implement the National Instruction. “Maybe in your previous engagements with the Portfolio Committees, you had developed this attitude that you will just come and say things in Parliament and you go away, it's fine! This is a different Parliament, and you can see commitment from all these members and the manner in which they are asking questions. It’s not because we are interrogating you, but we want to understand, so that by the time we do our oversight work, we very much understand the programmes of the department”

Mr Kinnes said he was part of a meeting where the issue of costing for the implementation of the National Instruction had been discussed. It was estimated that R25 million would need to be made available to properly implement the National Instruction, plus an additional R1.8 million for printing the information booklets.

The Chairperson said the Committee had a keen interest in knowing the specifics such as how much the implementation would cost and the time frames for completion. Such information would help the Committee do its oversight properly, something which they were paid to do. It would therefore not be of assistance for the department to visit Parliament without having such information handy.

Mr Chauke said it was clear that Commissioner Geldenhuys lived in an ivory tower of his own and was out touch with the work on the ground. He requested that the department should send another person to interact with the Committee rather than sending officials who did not take the Committee seriously. Should that happen, then it meant some people would have to lose their jobs. One could not understand why the Commissioner did not have information that fell under his area of interest despite that information being readily available.

Ms van Wyk said the response by Commissioner Geldenhuys that the National Department was not responsible for certain activities could not be true because as managers of the organisation, the National Office had ultimate responsibility over activities of provincial departments.

Commissioner Geldenhuys said if the Committee felt undermined in any manner by the department, he wanted to apologise and he gave the assurance that the department took the work of the Committee very seriously.

The Chairperson agreed with Ms Van Wyk, saying at no point should the Department consider visiting Parliament without having answers to questions about time frames and costing because those questions were crucial in enabling the Committee to do its oversight.

Committee Reports on Department of Police & Independent Complaints Directorate budgets The Committee agreed to amend the statement about a correlation between the number of safety stock firearms within police stations and the number of illegal firearms. It would be better to make it clear that SAPS had made the claim that a correlation did not exist - rather than it appearing as if it was an observation of the Committee. There was consensus to specify exactly what needed to be repaired, rehabilitated and upgraded under the Department’s capital infrastructure programme. A Democratic Alliance member requested that the report mention the need to combat trafficking of women in addition to that of children. The Committee agreed to reject the reduction of the targeted detection rate from 7-10% to 4-7%. Members said that they had not received enough information about what had informed this decision to lower the target as set in the five year plan of the Department. The Committee Report on the ICD budget was adopted without amendments. A member clarified that adopting the report did not amount to adopting the budget which still needed to be debated in Parliament.

The meeting was adjourned.