Child Justice Act implementation: briefing by Department of Justice

Meeting report

Department of Justice and Constitutional Development (Inter-Sectoral Child Justice Steering Committee) briefing on implementation of the Child Justice Act, 75 of 2008
Advocate Praise Kambula, DOJ&CD Chief Director: Promotion of Rights of Vulnerable Groups, said that the report was consolidated and was an overall impression on the implementation of the Act. It had been compiled by all the implementing departments. The National Policy Framework (NPF) was the guiding tool for the implementation of the Child Justice Act. There were ten key priorities of the NPF: Building Capacity in the Sector, Ensuring the Assessment of Children, Preliminary Inquiries, Sentencing, Provision of Diversion and Alternative Sentencing Services, Establishment of Child and Youth Care Centres, Establishment of One Stop Child Justice Centres, Resources and Budgets, Public Education as well as Communication and Development of Necessary IT and IJS-Systems.

Building Capacity in the Sector
The DOJ&CD had appointed 111 Child Justice court clerks; the National Prosecuting Authority (NPA) had provided a number of dedicated prosecutors; the Department of Correctional Services (DCS) used existing staff; the Department of Social Development (DSD) had 484 Probation officers and 370 assistant Probation Officers; the South African Police Service (SAPS) used existing staff and Legal Aid South Africa (LASA) had trained 64 dedicated practitioners. In terms of training, 15 891 police officials had been trained in all provinces, plus 854 Probation Officers and Assistant Probation Officers. The NPA had trained 349 prosecutors in a two-phase learning programme, DOJ&CD had trained 395 clerks in all provinces, LASA had trained 1174 general practitioners, the Justice College had trained 176 magistrates and the Department of Basic Education had trained officials. The DCS had trained 146 correctional officials, unit managers, social workers and heads of correctional centres. The establishment of dedicated infrastructure entailed two One Stop Child Justice Centres, 28 Child Youth Care Centres (with beds) with a capacity of 3 272. The Department of Health (DOH) had designated 64 psychiatric hospitals and care and rehabilitation centres, plus 15 establishments for admitting state patients and the mentally ill and five Reform Schools.

Ensuring the Assessment of Children
DSD had assessed 32 494 children. At the preliminary inquiry stage, DOJ&CD reported a total of 14 471 children who appeared before preliminary inquiries.

Sentencing
There were 110 children who were sentenced to compulsory residence and child youth care centre. 137 children underwent restorative justice, 34 were issued with fines, 804 were sentenced to correctional supervision and 536 were imprisoned. In December 2006 the figure of imprisoned children was 973 and in 2010 it was 658. The NPA reported that 15 588 children were diverted in 2010/11. In 2009/10 a total of 16 173 children had been diverted. Thus the figure had decreased and this was a concern for the DOJ&CD. A research initiative has been commissioned to look further into the reason for the decline in diversions.

Resources and Budgets
The budget comprised a cluster bid from which R30 million was received. The funds were shared between the NPA, DOJ&CD and LASA in equal measure. The budget for this financial year was R52 million.

For communication and awareness raising the DOJ&CD had developed 100 child friendly booklets, distributed banners in each region and SAPS had conducted 24 crime prevention initiatives. The Act was launched in Soweto on 1 April 2010. An information management task team was set up to establish the Integrated Information Management System (IIMS). All the implementing departments were required to develop a manual for statistical gathering purposes. The development of the Information Technology and Integrated Justice Systems Support was in three phases. In Phase 1 all the implementing departments were required to develop a manual for statistical gathering purposes. In Phase 2 all the implementing departments would be required to submit their manual statistics to the Integrated Justice System. During Phase 3 the implementing departments’ Electronic Information Management Systems would be linked with one another through the Integrated Justice System. SAPS had made 75 435 arrests, of the arrests 4 671 were on sexual offence charges. 41 175 children who were arrested were released into the care of a parent of guardian. There were 2 171 children awaiting trial and there were 1 587 children currently appearing in court on sexual offence charges. The DSD had placed 8 879 children in Child and Youth Care Facilities. Awaiting trial children in correctional facilities were 298. LASA had represented 25 586 children in criminal matters during the past financial year.

One of the challenges faced during the first year of implementation was funding. The decline in diversion statistics was a concern. A task team has been set up to address the challenge of a slow rollout of training for officials. There was insufficient communication and awareness-raising. To address this concern, the completion of the communication strategy would be done soon.

Discussion
Mr S Swart (ACDP) asked if the number of diversions were in order if one had to take the statistics on the number of arrests into consideration. The decrease in the number of diversions was a concern. Why did the Annual Report mention a decrease of 24% in diversions when the presentation document spoke about only 3%? Could there be more clarity on page 34 of the Annual Report where it mentioned that 83 000 cases were successfully mediated on an informal basis. What has been done to address the issue of finances?

Ms M Phaliso (ANC) asked if there was a tool, or if one would be developed, for ascertaining the child’s background.

Ms D Schafer (DA) questioned the numbers, how many children after preliminary inquiries were diverted?

Mr J Selfe (DA) said that there was a need for the DCS to capacitate itself with trained staff to deal with children that fell under this Act. The current training did not seem adequate.

Ms Corlia Kok, Director: Child Justice and Family Law, DoJCD, said that the departments had challenges with regards to the statistics. The SAPS statistics included children who had not been charged for example children who had been arrested, summoned and warned. The statistics on diversions were obtained from the NPA directly. The number of arrested children and the figures for diversion were being investigated. There were budget constraints and the DOJ&CD needed more funding.

Mr Zacharia Modise, Chief Deputy Commissioner for DCS, said that 146 officials were trained within the Department. The training would be on a continuous basis.

Ms Connie Nxumalo, DSD Chief Director: Families and Social Crime Prevention, said that in terms of the Act all arrested children should be assessed. However the figure of 32 494 children assessed was obtained from SAPS as they arrested and referred them to DSD.

Major-General Tertius Geldenhuys from SAPS Legal Division said that in every single police station there were police trained in terms of this legislation. SAPS were happy with the way that it was implemented despite some teething problems.

Professor G Ndabandaba (ANC) asked if the 111 appointed clerks were trained. How successful was the task team on training?

Mr J Jeffery (ANC) said that the fundamental question was whether the Act was working; one could not gather this from the report. The statistics were all over the place. 75 434 children were charged, 32 494 were assessed by DSD and then there were 14 471 who were appeared in preliminary inquiries. All of the 75 434 children should have been assessed and appear at the preliminary inquiry. This was a problem. It appeared that there were children who appeared in court who did not have preliminary inquiries. The figures were incorrect and were not as the Act applied. The figures of children who were released into custody did not add up. The Committee had had a problem with children being fined as the parents would pay, what was the breakdown for the figure in terms of fines: alternatives to fines? The figures did not tell what happened down the line. Informal mediations should not be used when it came to child justice as it was not regulated. The Committee was not going to ask for more money unless it knew what it was for.

Mr L Max (DA) asked if records of repeat offenders were kept. The Act did not have a preventative element to it.

Ms W Ngwenya (ANC) referred to the Annual Report on page 35 and asked why the Department of Basic Education (DBE) was not involved, the state of facilities were a worry, why were some not operational. What programmes did the Youth Care Centres have? The report was worrying as it was not clear, what was DSD doing to assist these children.

Mr V Smith (ANC) said that the Act was not working, less than 1% of awaiting trial children had received bail. How long have the children been in awaiting trial prison cells? The Annual Report on page 49 specified that child offenders over 14 had to be detained in a police cell, there was no police cell in the country that had humane conditions. All the police stations in this country have not had training.

Ms Kok said that all 111 clerks had been trained; they would also be re-trained this year. From a cluster perspective the Act was working even though some of the stats appeared to be flawed. There were more children out of prison rather than in and the programmes at the Youth Care facilities were working.

Mr Jeffery said he was worried about the non-implementation of Section 8, which was the investigation of criminal capacity. On page 50 of the report the 298 figure for awaiting trial detainees was the lowest figure for the quarter. According to the presentation the figure for awaiting trial detainees was 863, which was the highest it had ever been. If the departments wanted to say that this Act was working could they avoid using vague generalistions and incorrect figures.

Ms Nxumalo said that the Act was working. DSD had started the implementation process in 2003, which was why there facilities in existence by the time the Act came into operation. Diversions were already being done before the Act but DSD had to negotiate around the criminal justice system, as they were not provided for before. In 2007 there were about 2000 awaiting trial children, currently there were 298.

Mr Smith said that there were not 298 awaiting trial children as the Annual Report referred to 863 on page 50, the average was 563.

Mr Collin Govender, Director: Security and Infrastructure for DSD, said that the 298 was a figure for the quarter, the three months was added instead of an average being given. The average was 298.

Mr Jeffery said that he did not have a clue how the average was arrived at. The first quarter was 302, second quarter 502; third quarter was 298, what was the figure for the final quarter?

Mr Govender replied 288.

Mr Jeffery said that the figures were incorrect and it was stated to in the Annual Report that the reason why the figure for the fourth quarter had risen to 863 was being investigated. This was not a typo. The Committee should get a report on all the children in DCS’s facilities; this could be broken down to awaiting trial and sentenced. The charges for those awaiting trial should be included.

Mr Smith said that the time period of those awaiting trial should be included.

Mr Govender said that this could be provided within the next seven days.

Mr Jeffery said that the question about diversions was, were there enough diversion service providers and were there adequate programmes? Were there enough service providers in rural areas where there was provision for children who committed minor to more serious offences?

Ms Nxumalo replied that after the Minister had gazetted the list of service providers it would be made available. There were enough service providers in the provinces who had put forward their applications. DSD was satisfied with the content of the programme so far. The type of accredited programmes could deal with all types of categories of crimes.

Ms M Nyanda (ANC) asked in which facilities were offenders under ten years kept.

Ms Ngwenya (ANC) said that the response from DSD was not satisfactory. The report did not provide figures for whether or not there were facilities for girls and boys at the Youth Care Centres. The report was all over the place.

Ms Connie Nxumalo replied that the types of programmes run at facilities were therapeutic, vocational and life skills oriented. Some of the facilities were also used as diversion options in terms of the Act. There were facilities made available for girls but most alleged offenders were boys. Children who were still at school received help via assistance programmes.

Mr Jeffery said that his earlier question on the statistics had not been answered.

Ms Nxumalo replied that she would not be able to answer the question as DSD was on the receiving end of child offenders. DSD assessed children who were referred by the police.

Mr Geldenhuys said that he was not in a position to provide an explanation about the 75 434 children who  were charged and 32 494 assessed by DSD. This was disturbing to SAPS as well. The training provided by SAPS however was successful in terms of how the Act was applied. All commanders had been trained. SAPS was pleased that there were fewer children arrested and detained in police cells. It was impossible to say at this stage that the Act was working in every single aspect.

The Chairperson said that the concern about the anomaly in the statistics had to be addressed. SAPS should provide the Committee with the requisite information on the question posed.

Mr Swart added that SAPS should provide reasons as to why there was a reduction in arrests.

Mr Jeffery said that he suspected that the 75 434 figure was for children arrested and not charged. If this was the case then over the half of children arrested were detained without anything happening. If this was the case then the question would be why so many children were being arrested and not charged.

Mr Smith addressed LASA and said that of the 25 000 children serviced, what was the service rendered and what was the success rate? In addition what was the racial profile of the clientele that LASA serviced?

Mr Patrick Hundermark, Legal Development Executive for LASA, said that he was not sure if the numbers could tell whether there was a success rate or not. The figures for LASA had come down from about 54 000 in 2009/10 to about 25 000 in 2010/11. LASA has picked up challenges, for example, on charge sheets it indicated that a person was 18 when they were under 18. In one instance a child was sent on a diversion course but remained in custody, this did not fit within the schedule where this could be ordered. All children awaiting trial for longer than three months were tracked by LASA. The figures from LASA could be provided.

Ms Phaliso said that the response was not good enough; the issues being raised should have been raised at the Inter-Sectoral Committee (ISC). The report from DSD should have outlined the number of children at the secure centres who were awaiting trial. This means that there was no integrated approach and the Committee was being given answers as they were going along.

Ms Ngwenya said that her question had not yet been answered.

Ms Kok said that according to the Child Justice Act the minimum age of criminal capacity had been raised from seven to ten years.

The Chairperson thanked the Departments and said that the Child Justice Alliance would soon follow.

Child Justice Alliance presentation: Implementation of Child Justice Act, 75 of 2008
Dr Charmain Badenhorst, Senior Researcher at the Child Justice Alliance, said that her presentation was based on Occasional Paper 10, which listed all the implementation challenges identified for the Child Justice Act. Some of the challenges identified was that there was a lack of public awareness about the Act; the training of police officers; the decrease in the number of arrests; a shortage and unavailability of probation officers, a decrease in the number of diversions; a lack of training of all the role players in the child justice system; inaccurate and unavailability of statistics; legal representation; and the transportation of children in detention. Since the implementation of the Act there had been a lack of visible information sharing, awareness raising and communication to the general public about the case. Concerning the training of police, South Africa did not have specialised units dealing exclusively with children in conflict with the law. Therefore all police members at all levels should receive training on the Act and be enabled to act in an informed manner when dealing with children in conflict with the law. Only 6 279 police members had been trained and this was a small percentage. During the period 1 April 2010 to 30 June 2010 19 487 children were charged by SAPS. This was about 6 495 children per month which was substantially lower than the approximately 10 000 children arrested per month which was reported in Parliament in 2008.

There were currently 484 Probation Officers in DSD who were servicing 388 magisterial courts, the high courts and 299 periodical courts. Probation Officers played an essential and integral part in the successful implementation of the application and operation of the Act. Failure to provide transportation guidelines also increased the risk of these children failing through the cracks in the system at each hand-over point and also made it more difficult to determine liability in cases where these children’s rights had been violated. The lack of and urgent need for educational or other programmes for children awaiting trial in prisons had been highlighted before the implementation of the Act. One way of achieving this was to ensure that these children’s constitutional right to education was protected, even if they were awaiting trial in prisons. In terms of recommendations, it was important that knowledge sharing and public awareness raising about the Act and its benefits to children in conflict with the law, was important. The rollout of training programmes to all professionals dealing with children should be accelerated as a matter of urgency. Clear and practical guidelines on the transportation of children in detention should be developed and implemented as soon as possible. There should be a provision of accurate and detailed statistics of children in conflict with the law.

Discussion
Ms Schäfer asked why it said in the presentation that there were no dedicated units in SAPS when the Family Violence and Child Protection Services Unit has been re-established.

Dr Ann Skelton, Director at the Child Justice Alliance, said that the units in question had never and did not deal with child offenders, only with child victims.

Prof Ndabandaba asked how Probabition Officers could be made available in the rural areas.

Dr Badenhorst said that if there was more information on the number of children in conflict with the law in rural areas, then one would know the number of assessments that would have to be done, and in turn the number of Probation Officers required to conduct them.

Ms S Sithole (ANC) said that she was concerned about the lack of awareness especially in the rural areas, what could be done to correct this? Information should also be communicated in a local language.

Mr Jeffery said that it would be useful for Child Justice Alliance to make contributions about how the review on criminal capacity ought to be done. The Department should go and consider this; Section 9 referrals were not diversions and this had to be changed in the DOJ&CD’s categorisations. Some of the Section 41 diversions were in the regional court; this was a concern as minor offences should be in the district courts. It might be possible that in the next Annual Report there would be similar problems regarding statistics. The departments and Non-governmental Organisations (NGO) should develop a uniform system for data capturing to avert future problems around statistics.

Dr Skelton said that there had to be a communication strategy and proactiveness to address the lack of awareness. Child Justice Alliance has held a workshop with psychiatrists and psychologists on what the issues were for determining criminal capacity. The idea on the Section 9 referrals was a good one. The point with Section 41 diversions was that it was not working; there were more diversions at the preliminary inquiry. Prosecutors were simply not diverting yet they used to divert when there was no legislative framework. The problem with the statistics may be that they were not being properly analysed. The NGOs may be able to assist in this regard but not on the methodology as they were outside of government.

Ms Nyanda asked why there were only 6 279 trained SAPS members.

Mr Swart asked why Magistrates were making use of psychologists, as the change in criminal capacity was not that high nor different from what it had been. What was the Child Justice Alliance’s general take on the Bill?

The Chairperson asked if the legislation was working.

Dr Skelton replied that for police one could not have a specialised unit for arrests as any police officer could arrest a child. This Act was designed to not place that much emphasis on the police. Magistrates used to work with the Common Law which only kicked in at the trial stage, now there was an Act and they were churned up about the fact that they cannot do diversions and guilty pleas. There was an earnest grappling with the Act from both the departments and the people on the ground. There was a dialogue in the ISC on the Act; it was better than the Child Care Act. There were issues and problems but they could be resolved.

Ms Phaliso asked LASA to respond to the challenge on legal representation and why were there transport issues for those arrested or being sent to facilities.

Dr Badenhorst said that the challenge about legal representation was that some Magistrates postponed proceedings for the child to obtain representation even though the Act did not provide for this at the preliminary inquiry stage. Magistrates from different districts dealt with this differently. There was no uniformity in the way that the courts dealt with the issue of legal representation.

The Chairperson thanked the Child Justice Alliance as well as the departments and adjourned the meeting.

Meeting Adjourned.