Implementation of the Child Justice Act: Second Annual Report

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12 September 2012
Chairperson: Ms A van Wyk (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development (DoJCD), whose Director-General chaired the Intersectoral Child Justice Committee, and the South African Police Service (SAPS) presented on progress in implementing the Child Justice Act (No. 75 of 2008), highlighting priority areas. Figures were given for training of members in the contents and application of the Act but were not broken down except by year. A decrease in training numbers was explained as being due to the fact that one statistic included informal briefing sessions and the other did not. Preliminary enquiries were shown to have increased, reflecting positively on the prospects of diverting youth offenders away from the conventional criminal justice system. Imprisonment figures specifically had dropped by approximately 80%. Accreditation figures and numbers of Car Centres around the country were also displayed and it was shown that the creation of specialised infrastructure required an increased budget. This, along with the lack of an adequate information management system to collect and compare data, was seen as one of the main challenges. Further to this there appeared to be a skill deficiency and this was attributed to insufficient training.

The Committee demanded greater details of training figures and children offenders, saying that the presentation had not made clear exactly what steps SAPS had taken to implement the Act. It was suggested that the low levels of arrests of youths was not due to decreasing levels of crime but rather reluctance on the part of SAPS members to engage with the contents of an Act with which they were not fully familiar. SAPS admitted that it did not have any specific issues with the provisions of the Act and the Chairperson requested that clarity be given in a number of key areas within the next week.

Meeting report

The Chairperson reprimanded the delegation for arriving late and submitting the presentation only that morning. She reiterated the importance of punctuality and the need to respect the sanctity of the Committee meeting. She described the occasion as a preparatory meeting before the joint meeting with all relevant department. This presentation was purely to focus on SAPS’ role.

Advocate Praise Kambula, DoJCD Chief Director: Promotion of the Rights of Vulnerable Groups,  whose Director-General chaired the Intersectoral   Child Justice Committee, began by apologising for the tardiness of the delegation and the submission of the report.

She then introduced the presentation as focusing on the second year of the intersectoral implementation of the Act from 1 April 2011 to 31 March 2012. She stated that the Act required a collaborative approach by Justice, Crime Prevention and Security Cluster Departments in realising its objectives. It sought to bridge the gap between the Constitution and real experiences of guarantees made to children. It promoted and affirmed collaboration between implementing Departments and institutions via the establishment of the Director-Generals' Intersectoral Committee (ICS) for Child Justice at an Executive level. The ICS was mandated to establish the National Operational Intersectoral Committee that implemented executive decisions made. At executive level there were also fora that monitored implementation.

Key priority areas of the National Policy Framework were building capacity in the Sector, 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 and Communication and Development of Information Management Systems. A breakdown of training was shown detailing numbers for the DoJCD, SAPS, Department of Social Development (DSD), Legal Aid South Africa (LASA), the National Prosecuting Authority (NPA) and the Department of Correctional Services (DCS). In 2010/11 SAPS trained 18 540 persons, but in 2011/12 only 14 060 persons were trained. This decrease was explained as excluding informal training sessions. The DoJCD trained 395 persons in 2012/11 and 496 in 2011/12. The NPA training numbers dropped from 349 to 214. There was a greater focus on training in the initial year which was why so few people required to be trained in the subsequent year. The report indicated a decline in the number of children assessed as well as the number of children charged, which went from 75 435 to 57 592. It was unclear what had caused these variances, but the National Operations Intersectoral Committee had begun an investigation into Mpumalanga and Gauteng to determine case flow gaps.

In terms of preliminary inquiries, there had been an increase from 14 471 to 17 822 which enhanced the prospect of diversion of child offenders from the ordinary justice system. Community based sentences increased from 60 to 795 from 2010/11 to 2011/12. Restorative Justice sentences increased from 137 to 405. Fines of alternative to fines increased mildly from 34 to 37. Correctional Supervision dropped from 804 to 302. Children admitted to compulsory residence in Child and Youth Care Centres increased from 110 to 353. Crucially, imprisonment dropped from 536 to 94.

Diversion and Alternative Sentencing completed the first phase of the accreditation process with 345 service providers and programmes being accredited. 55 service providers received full accreditation, 35 achieved candidacy status, 191 programmes were fully accredited and 32 programmes were awarded candidacy status. 20 programmes and nine service providers were declined. In the relevant period there were 1 577 Section 41 diversions, 2 608 Preliminary Inquiries Diversions, 108 Schedule 3 diversions, 368 Finalised onerous diversions and 3 946 diversions after enrolment.

In terms of Section 191 of the Children's Act (No. 38 of 2005) there were 28 Secure Care Facilities countrywide, resulting in a bed capacity of 3 272. Child justice Centres were primarily within the purview of the department of justice. The governance structures selected two sites for the creation of such centres, the Matlosana Secure Care Facility in Klerksdorp, North West Province, and the Khayalethemba Youth Care Centre in Buffalo City, Eastern Cape.

However, the process was fairly new and required the development of new infrastructure that would amount to roughly R28 million so there had been delays in ministerial permission that had withheld the finalisation of the process of establishment.

Challenges were discussed in the area of resources and budgets. Many departments and institutions did not have dedicated budgets for implementation of the Act, and the budget allocated to DoJCD in 2009/10 for such purpose was distributed to subsequent departments. The DoJCD, LASA and the NPA continued to receive annual budgets, in 2011/12 this amounted to R16 851 318. SAPS did not receive a budget for implementation of the Act.

In terms of communication and public education, the DoJCD developed an intersectoral communication strategy for the Intersectoral Committee (ISC) on Child Justice in partnership with the Government Communication and Information Service (GCIS), including the presentation of 26 television episodes of Jwayela i Justice on SABC 2. Estimated viewership per episode was 1 127 760. Legal Aid SA held sports events at schools in all provinces to educate children on rehabilitation. The NPA held a radio campaign with the South African Broadcasting Corporation (SABC) which included the focus on child justice where approximately 34 million listeners were reached. SAPS and the Department of Basic Education (DBE) safe schools programme linked 9000 schools to police station and established 6 091 school safety committees, and this was identified as the main vehicle through which SAPS engaged children to raise awareness. Departments participated in information sessions hosted by DoJCD with international delegations from a number of countries including Vietnam, Zambia , Uganda and Iran.

The Child Justice Information Management team was established to address challenges surrounding intersectoral availability of information. The team was developing systems to allow the collection of data across departments. It would also ensure standardisation of common definitions. SAPS was addressing the re-designing of management information systems so as to aid in the capturing of other forms of attendance of children, data regarding children under ten who could not feature of the Crime Administration System and finally the notification of probation officers electronically.

Advocate Kambula assessed the limitations on SAPS as being primarily a lack of adequate capacity to implement the Act, the magnitude of which would be determined by a provisional analysis being conducted by DoJCD, and also, by the lack of dedicated budgets allocations by majority stakeholders, recent non-governmental organisation (NGO) budget cuts, and the need to investigate trends in respect of reduction in children charged and assessed. Further, there was a lack of adequate budget to establish and run One Stop Child Justice Centres, a need for an Integrated Information Management System to prevent statistical variances, and finally the ongoing need for capacity building that necessitated a skills audit.

Successes included the gradual rise in the number of preliminary inquiries that indicated compliance with the Act and increases in the imposition of non-custodial sentences. It was believed that children’s constitutional rights were being better served and that the prospects of breaking the cycle of crime amongst children were improving.

The Chairperson asked SAPS to explain the discrepancy in the number of trained officers.

Ms D Kohler Barnard (DA) expressed her expectation of details on SAPS implementation of the Act, such as the number of children in SAPS jail cells, if they were being separated from adults or not and other aspects of the Act. However, none of this had been presented and she was dismayed. She asked what the module on vulnerable children entailed - very few SAPS members seemed trained in this. There was a dramatic decrease in training of about 4 000 members, even though the Child Justice Act was priority legislation. The figures of children arrested or detained were not presented either. There was also a dramatic decrease in diversion orders. There was reference to alternative policing methods that she requested details on. She asked if there was less crime being committed by children or if SAPS members were simply not arresting children any longer due to misunderstanding of the Act or reluctance to implement its cumbersome provisions.

Mr M George (COPE) observed that Khayalatemba has never been associated with children in conflict with the law. The area historically was an orphanage and he asked why it was suddenly receiving this association. The training figures were not broken down by region or province and he asked what the spread was, whether some stations had many trained members and others had none. He also requested details on the Child Care facilities, and especially what the ideal number was, given that there were currently 28. He asked if they were adequately located and if rural areas had proper access to them or if they were too far away. The NGO cuts were a big problem as the NGOs were doing a good job.

A Member wanted to know who was responsible for ensuring that children attended their court cases.

Ms M Molebatsi (ANC) observed that the presentation was unclear on many issues and insubstantial. She asked if new recruits received in house training in the Act. Secondly, she asked about the decrease in children charged, whether this was a good thing or not. She also asked who build the child care facilities and why processes were seen as being new, when the Act had been implemented over two years ago. Finally she asked if SAPS had requested specific budget allocations for departments or not.

The Chairperson was concerned about the low levels of arrest. She stated that in her experience SAPS members were reluctant to arrest children for whatever reason, and asked if SAPS had begun to investigate this and correct it. She asked what ranks the trained members were. She further stated that the committee was aware that SAPS training often left much to be desired and was not always adequate. She asked for proof that the Act was a priority, with financial evidence in support of that. She asked why the two identified centres were not being finalised and how likely it was that further centres would be established.

Ms Kohler Barnard posed a general question, saying that the second annual report did not include any input from SAPS. They did not appear to be on board with the contents of the Act.

Major-General Susan Pienaar, SAPS Head of Crime Prevention: Visible Policing, dealt with the training figures. The 15 891 trainees did not include briefing sessions at police stations as it was not an accredited training programme, but the figure for the first year did include those numbers. The second year focused more on the longer courses rather than simply raising awareness. She committed to providing a breakdown of the figures according to the lengths of programme as well as the ranks of trainees and their provinces. The statistical issues occurred largely from the inefficiency of data systems and this was being dealt with. Although there will be initial changes made, most changes would take time to be properly implemented. There was a tender process underway. This challenge spoke also to the lack of figures of children in cells.

In terms of the lower charge and conviction rates, this figure could be interpreted in a number of ways. It could be that SAPS members were hesitant to act out of unfamiliarity with the Act. It might rather be that they were directed by the Act to charge  only as a last resort. There were also alternatives to arresting and charging.

In terms of reaching rural areas, all stations received the National Instruction and lists of probational officers. Those without access to internet were specifically accommodated for. New recruits were given five day training in the Act as part of their basic training. 

Brigadier Mbali Mncadi, SAPS Section Head: Youth, Children, Gender-based Violence and Victim Empowerment, said that the point of the training modules was to ensure that members were able to deal properly with children in conflict with the law. Social Context training formed part of the module so that members could understand how to treat children differently. It also goes into detail regarding the National Instruction and the legislative mandate. Members should therefore be fully competent in the requirements of the Act. A supporting process to this is a transportation protocol which indicates responsibilities of members. Dealing with immediate actions that must be taken when in contact with a child, such as notifying parents or guardians, was also included in training.

Major-General Pienaar said that the one stop centres were the result of a detailed investigation. They served to provide for initial detention and also facilitate transport to youth care centres.

Advocate Kambula said that the costs involved in these one stop centres was difficult to define, there were a number of processes involved.

The Chairperson asked for a clear answer on whether SAPS’ involvement was made clear in a Memorandum of Understanding regarding its role at the care centres, specifically to what degree they would be financially responsible.

Advocate Kambula said that SAPS’ role had been made clear and that the paperwork involved would be made available.

Major-General Pienaar said that a special request to National Treasury had not been made as there had been sufficient budget.

Advocate Kambula said that the establishment of the one stop care centre at Khayalathemba was strategic so as to build on existing institutions such as the orphanage. The provincial fora at Eastern Cape had identified it as the only appropriate centre.

Mr George interrupted to ask why an existing orphanage was being changed to a place that dealt with children in conflict with the law.

Ms Pritima Osman, DoJCD Senior Legal Administration Manager, said that the centre was pre-existing and it was not replacing the orphanage. In terms of the struggle to finalise the centres, there was a large amount of refurbishing that needed to be done before the centre would be acceptable and permission was required first from the owner of the land. She added that the ideal number of youth care centres was a social development issue and it was for them to say although naturally one in each town would be ideal.

The Chairperson asked if SAPS had identified any legal problems with the Act that hindered its implementation.

Major-General Dr Tertius Geldenhuys, SAPS Assistant Commissioner and Head of Legislation, Legal Services, began by saying that SAPS was involved in the drafting of the Act and where difficulties were foreseen, concerns were raised. However, the legislation was not ideal and there was constant communication with the DoJ on this point. SAPS remains dedicated to implementing the Act, and the purpose of the Act was to prevent unnecessary arresting of children. The decrease in numbers might therefore be due to unnecessary arresting of children in the past. He stated that there were no specific areas of the Act that should be changed in the short or medium term.

Advocate Kambula noted that there had been no determination of the services required by the Act, and as a result provision to provision analysis of resource capacity would reveal exactly how much the budget needed to be extended by to develop skills capacity and implementation capacity. The Department of Social Development had requested an amendment which the Minister was considering.

Ms Osman said that the Act was very broad and that there was a process underway to determine gaps that needed to be filled.

Ms Molebatsi asked about the five day training courses, specifically whether it was sufficient for purposes.

Advocate Kambula said that this was an area under constant revision by the D0JCD and did not wish to commit to an assessment at the time.

The Chairperson summarised by saying that SAPS did not appear to have any problems with the contents of the Act, but on the ground there appeared to be problems with implementation. The question was whether children were given opportunities to be deviated from the Criminal Justice System, not whether arrest numbers were increasing or decreasing. The Committee requested training figures broken down by province, module and rank; the curricula for the modules; plans for implementing the Act; the budget issue including money spent, on what and how much more was required and for what reason. A detailed roll-out plan was also required for bringing the information systems up to standard. She also requested a clear indication of SAPS’ responsibilities regarding the one stop centres for both human and financial resources. She further requested the National Instruction standing orders on the Act. These were all requested five days hence. She reprimanded the delegation for not having these details ready for the meeting. The Child Justice Act was crucial to fighting crime at its source. SAPS would not be allowed to defer the issues at hand and excuses for failed delivery would not be accepted for much longer.

The Chairperson adjourned the meeting.


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