Probation Services Amendment Bill: deliberations

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
15 May 2002
PROBATION SERVICES AMENDMENT BILL: DELIBERATIONS

Chairperson: Mr E Saloojee (ANC)

Documents handed out:
Probation Services Amendment Bill [B18-2002]
Portfolio Committee for Social Development, National Assembly: Proposed Amendment to the Probation Services Amendment Bill as drafted by Senior Legal Officer Probation Service Act 116 of 1991 (See Appendix)

SUMMARY
It was agreed that the definition of "diversion" and "diversion programme" should not be amended. If amended, it would limit the meaning of these terms and interfere with the principle of fair trial, that is, to be considered innocent until proved otherwise by the court. The aim of diversion is not necessarily to prove whether the accused is guilty or innocent. It works like a civil court in making assumptions on the balance of probabilities.

The Committee felt that the provision of Section 4B that a child should be seen by a probation officer within 48 hours after arrest is practically not feasible as there are very limited number of social workers who could work as probation officers in rural areas. However, it was agreed that the provision would not be changed as that provision is the wording of the Constitution. It was considered though, that the bill would put more pressure at the department of Social Services to hire more probation officers.

MINUTES
Committee members analysed the Probation Services Amendment Bill clause by clause.

Discussion
Mr C De Toit suggested that this Bill is legalising what is already happening throughout the country. For the past six years, about 19000 cases per year throughout South Africa were diverted from formal court procedure. He argued that the definition of "diversion" should be revisited. He suggested that the definition of "diversion" in Section 1(c) to be omitted and to substitute it by "diversion means diversion from the formal court procedure with or without conditions of a person who has been accused of an offence and has voluntarily acknowledge responsibility for that offence".

Advocate M Masutha (ANC) agreed that the definition of "diversion" as it stands in the Bill is too broad. However, any narrowing of the definition is undesirable as it may result in untenable legal complications. He mentioned that there are two terms which are legally acceptable if one acknowledges one's guilt. They are (1) admission of guilt and (2) confession. The former implies that the accused is not necessarily admitting to all the charges. It is the duty of prosecution to prove that person guilty beyond reasonable doubt to all the charges. The latter term refers to where the accused pleaded guilty to all charges of an offence. The prosecutor may suggest that the accused be found guilty as charged without further litigation.

Advocate M Masutha suggested that the terms which are used should be the one in force in the Criminal Law. He explained that according to South African law, a person is considered innocent until the court has proved otherwise. Therefore, acknowledgement of an offence before trial by a person undermines the principle of a fair trail. Diversion may only be made if the person admits that he or she is guilty of an offence. According to Common Law, parents have the power to enforce disciple on their children (except corporal punishment which is declared unconstitutional as in Makwanyane case) This will make it possible for diversion to take place without interfering with principles that are inherent to the formal court procedure.

Ms I Mars (IFP) raised her concern about lack of differentiation between minor and serious crimes.

Mr A Theron (Chief Director, Welfare Services) answered that diversion is usually for minor crimes. But if there is a need for diversion, the seriousness of the crime is not always an indicator.

Ms I Mars asked what is the procedure if an offence was committed because of the influence by elderly person.

Mr C De Toit answered that it is more likely than not that a child commits an offence because of some form of external influence. That is what diversion is aimed at addressing.

Advocate M Msutha reiterated that the aim of diversion is not necessarily to establish whether the child has committed an offence. But informally solve the matter like in civil proceedings (on the balance of probability). Whether acknowledgement is an admission or confession, it is only the court to decide.

Ms O Kasienyane enquired if children of 17 years and 16 years should be kept in the same confinement as, say children of about 14 years. It was suggested that the Bill is not aimed at making substantive law.

Ms I Mars added that diversion is aimed at relieving children from traumatic effect of incarceration.

All members of the committee agreed to leave the definition of diversion as it is in the Probation Services Amendment Bill. Similarly, the definition of "diversion programme" was not changed.

Mr C Du Toit recommended that section 4(c) to be labelled 4(d) and to insert the new 4(c): "the gathering of information for assessment by the probation officer".

Mr Chalmers (ANC) proposed the substitution of the phrase " shall include" by "shall be". The reason being that assistant probation officers end up doing more work than the probation officers whilst they get lower salary. And that "include" is covered by 4(d) "assisting".

Mr E Saloojee (ANC) argued that it is impossible to make a close list because it is not practically feasible. Some duties of the assistant probation offices appeared in the duty sheet.

Mr A Theron cautioned that appointment of assistant probation officers should not be abused. Previously, assistant probation and family finders were volunteers. This Bill is aimed to ensure that the system of protection of children is being run effectively.

Mr B Solo (ANC) argued that the provision of 4(b) that every child who is alleged to have committed an offence shall as soon as possible, but not later than 48 hours after his or her arrest, be assessed by a probation officer, is not practically possible. At this point in time we have very few probation officers, and, worse still none at rural areas. There are at present thousands of children who are incarcerated and who have not seen by a probation officer for years. He therefore suggested that this provision be omitted until such time there are enough resources to address this issue.

Mr B Solo asked what would happen if 48 hours expire without the child being consulted by a probation officer.

Mr A Theron answered that there are enough social workers in prison and in the rural areas who may act as probation officers. In principle children have to be protected and advised by probation officers, otherwise they should be released to their parents' custody. This bill will force the department of social welfare to appoint more probation officers to address this issue.

Mrs O Kasienyane (ANC) was worried that criminals would have to be released from prison without being charged and that would increase the rate of crime which has already reached an alarming stage. The suggestion that we have social workers every where was just not realistic.

Mr A Theron argued that it is the duty of the department of social services to ensure that there are enough probation officers.

Mr B Solo suggested that if this Bill becomes an Act it would invite litigation against the department if it failed to implement it.

Mr E Saloojee closed the debate by suggesting that section 4(b) is the wording of section 35(1)(d) of the Constitution and therefore cannot be tempered with.

Appendix:
PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT
PROPOSED AMENDMENT TO PROBATION SERVICES AMENDMENT BILL [B18-2002]