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SOCIAL SERVICES SELECT COMMITTEE
4 June 2002
PROBATION SERVICES AMENDMENT BILL: BRIEFING
Chairperson: Ms L Jacobus (ANC)
Documents Handed Out:
Probation Services Amendment Bill [B18b-2002]
Background on the Probation Services Amendment Bill (Appendix)
Breakdown of Staff and Facilities by province (Excel file)
The Department of Social Development as well as the South African Police Services made presentations to the Committee on the Probation Services Amendment Bill. The Department pointed out that their concern was to legalise practices which already existed in the field of probation. The SAPS on the other hand expressed concern that they lacked the capacity and infrastructure to handle the assessment of child offenders and unless capacitated to do so, their mandate of fighting crime would be seriously incapacitated as a result.
Briefing by Department of Social Development
The legal advisor for the Social Development Department, Mr Du Preez, began by pointing out that most of what is proposed by the Probation Services Amendment Bill is already being done in practice, the Bill simply seeks to legalise these actions. He noted that the amendments concern mainly the issue of the Assistant Probation Officer. In this regard, he pointed out that Clause 3 amends Section 4 dealing with the powers and duties of probation officers. Clause 4 deals with the duties of the assistant probation officer and will be amended to, ' the appointment and duties of the assistant probation officer. Clause 5 deals with the establishment of new structures at the discretion of the Minister, who might not do so if he does not feel obligated.
He also pointed out that access to the probation officer in some areas is difficult. For instance in Limpopo, one area had access to a probation officer who is 359 km's away, which understandably makes it difficult for the system to work properly. He pointed out that Clause 4(b) would remain part of the bill when finalised but will not come into effect with the rest of provisions until later as required by the minister. He pointed out that this bill was widely consulted. In fact it was a collaboration between the Departments of Justice and Social Development as well the SAPS to a certain extent. He pointed out that a matter which was deemed inappropriate was the usage of the term 'house arrest' and the Minister of Social Development also agreed that this should be re-looked at.
Mr C Du Toit (Department) pointed out that the whole spirit of the bill deals with the competencies of the probation officer as to what he or she can or cannot do, should or should not do. He pointed out that they agree on the matter of the 48 hours probation trial period but also feel that provinces should be given time to declare their readiness for implementing the programme.
The Chairperson pointed out that this issue has a great deal to do with capacity issues. The Minister of Social Development had also indicated his concerns about the capacity issue.
Dr Nel (NNP) asked what the family finder entails.
Mr Tlhagale (UCDP) asked about adults who send children who are old enough to have ID books to commit crimes. The child is then found to be incriminated by the adult and therefore given a light sentence due to age, whereas the benefactor of the crime is an adult who gives the youngster a minimal amount from that which he/ she benefits out of the transaction.
Mr Du Toit explained that the family finder traces and fetches the parents or guardian of a child who is being prosecuted to attend the trial. In some provinces where capacity problems are prevalent, the Department makes use of volunteers as in the Western Cape, where the system has operated since 1994.
On the issue of adults using children for crime, this Bill seeks to provide that once an assessment has been done on the child involved and an adult is found to be responsible, they want the child to be out of the system and the adult to face the charges. This would depend on the seriousness of the crime, in which case the child will have to be charged as well. He pointed out that in fact according to the Child Justice Bill, an adult will be charged if found to be behind the crimes committed by children.
Briefing by SAPS
Assistant Commissioner of the SAPS, Mr Geldenhuys, pointed out that they feel that as South Africa is a vast country in terms of size, accessibility to the probation system is currently a problem which the SAPS is confronting head on. He pointed out that the SAPS feels that children should not be involved in crime and in this regard, they are looking at projects to tackle this. Practically, this problem is prevalent, as much as the police do not want to and also do not like to arrest children. They would like the probation officer to assist them in ensuring that once arrested, the child is taken to a safer place than police cells since there have been a number of child deaths in this regard.
He also pointed out that the problem is that offences of the nature involving children often occur during weekends. Distances between police stations and probation offices/officers are also too big for the system to be effective and efficient. As examples, he pointed out that in the Western Cape, in area the distance is 170 kms, in Limpopo, the distance is 359 kms, the Free State, 205 kms, etc. He pointed out that the examples in this regard are many and this generally gives an indication of the seriousness of the problem. He pointed out that if this bill is passed, there will be problems in light of (a) how the child should be treated/assessed and (b) effective implementation due to the vast distances.
This means that if this is followed, at any given time a police officer and vehicle to assist the community against crime is unavailable due to the traveling distance involved. He pointed out that their plea is that alternative arrangements for child cases should be sought . The programme which the Department seeks to start is good in this regard. It is only after a proper structure for the probation services has been put in place that they will be in a position to co-ordinate the assessments.
Secondly, he pointed out that the term 'house arrest' is something that could allude to the apartheid era and they therefore also suggest that it be changed. Thirdly he pointed out that the question 'why now?' is relevant. He added that they are engaging at this point because they were not consulted during the early stages of the bill. The problem is that the bill provides for the SAPS to make these assessments, but is very vague on how, when, and why.
Dr Nel (NNP) asked why the bill should be fast-tracked now since the actions are already being practiced.
Mr Tlhagale (UCDP) expressed concern about the 'dumping' of some responsibilities as in this case, to the SAPS. He felt that this incapacitates the police.
Mr S Nhlabati (ANC) pointed out that maybe the SAPS should make proposals to be heard by the Committee in their meeting on Friday regarding the areas which they do not agree with in the Bill.
Mr Du Toit pointed out that indeed the vast distances are a problem. But he also expressed concern that as any arrested person has to appear in court within 48 hours, this is where, in case of capacity due to the vast distances, intervention will be ensured.
He said that the Bill is important for legalising this procedure, as it ensures that all the provinces will take it seriously, which will not happen if it is left as it is.
Commissioner Geldenhuys pointed out that it is not about fast-tracking the bill. He noted that they had submitted their comments on the bill to the Portfolio Committee on Safety and Security and their coming to the Select Committee is the result of their realisation that their comments have not been seriously entertained.
The meeting was adjourned.
BACKGROUND FOR THE SELECT COMMITTEE ON SOCIAL SERVICES ON THE BRIEFING ON THE PROBATION SERVICES AMENDMENT BILL (B18B-2002)
Tuesday 4 June 2002
Committee Room: V 226: Old Assembly Wing: Second floor, 11h00-13h00
The Probation Services Act, number 116 of 1991 provides for probation services to be rendered to accused and convicted persons in the criminal justice system. Probation work consists of a body of occupation-specific knowledge and skill. Probation officers are currently all social workers that carry out work in the fields of crime prevention, treatment of offenders, care and treatment of victims of crime, working with families and communities. There is currently 695 probation officers and/or social workers delivering the service on a full time or part time basis, with 82 in a management or supervisory capacity.
Over the past decade in South Africa the importance of probation officers as role players in an integrated criminal justice system has grown. The department has accordingly strengthened probation services through increasing posts and through wide spread training and capacity building. The University of Cape Town, Rand Afrikaans University, the University of Port Elizabeth, Fort Hare and University of Rhodes are all now offering post-graduate degrees in probation practice. Probation practice is drawn from number of disciplines including social work, criminology, penology, criminal law, psychology, and sociology. The required educational standard for probation officers is set out in the personnel administration standard and in the CORE. A professional board for probation officers will also be established in the near future. Once this board is established then the regulations to the Probation Services Act will be amended to make provision for other occupational groups to be appointed as probation officers.
A number of High Court cases have in recent years confirmed the importance of pre-sentence reports by probation officers, stipulating that such reports be a pre-requisite to periods of imprisonment in the case of children who are convicted of crimes.
An important element of the Department's ten point plan deals with children in conflict with the law. In the past few years there has been a great deal of development on the ground in this field, with important strides being made in a number of areas. The first of these is the practice of children being assessed by probation officers after they have been arrested, which has a bearing on how the matter should be dealt with and whether the child can be released or must be accommodated in a residential care facility, as well as considering whether or not a case is suitable for diversion.
Diversion of children away from the criminal justice system into suitable programmes is, in itself, an innovation that has developed in the last decade in our country. Probation services has played an integral role in these developments, and in 2001 approximately 15000 children were diverted into programmes, the majority of which were run or funded by the Department.
There are currently 2322 children under the age of 18 years awaiting trial in prison and 1767children awaiting trial in social development facilities (secure care and places of safety).
Since 1996, twelve children have died in detention in South Africa, the details of which are as follows:
-Stephen Dube aged 11 years.
Died in police cells at Waterval, Northern Province on 18 February 1999.
-Monica Salfina Mkansi aged 15 years.
Died in the Phalaborwa police cells on 6 December 1999.
-Gert Baartman aged 15 years
Died in the Fraserburg police cells on 16 July 2000.
- Lebohang James Mofokeng aged 17 years.
Died in Bethlehem police cells on 8 August 2000.
-Richard Armoed, aged 15
Died in the Knysna Police Cells on 10 March 2001
Death of a child in prison
-Werner Coetzee aged 16 years
Died at Odendaalsrus Prison on 28 May 1999
Death of a child in a Place of Safety
-Byron Ince aged 14 years
Died at Excelsior Place of Safety on 23 January 2001
Deaths of children in Reform Schools
-Andre Van Zyl Jordaan aged 17 years
Died at Porter Reform School 21 March 1999
-Petros Chiloane age 17 years
Died at Ethokhumalo Reform School on 24 January 2000
-Andile Tawule aged 17 years
Died at Ethokhumalo Reform School on 12 February 2000
All possible measures need to be found to protect children from further harm. Whilst holding them accountable for their actions, it must be ensured that they do not become victims of the system itself.
This Bill seeks to provide a legislative framework for a number of activities already being provided by Probation Services on the basis of pilot projects and innovations in service delivery, by amending the Probation Services Act, 1991 (Act No. 116 of 1991), hereinafter referred to as "the Act," by-
- Inserting definitions relevant to the child and youth care system;
- introducing assessment, support, referral and mediation services in respect of victims of crime;
- introducing crime prevention strategies through the provision of early intervention programmes including diversion services and family group conferencing;
- providing for the establishment of restorative justice programmes and services as part of appropriate sentencing and diversion options;
- providing for the reception, assessment and referral of an accused person and the rendering of early intervention services and programmes, the investigation of the circumstances of an accused person and the provision of a pre-trial report on the desirability or otherwise of prosecution and the investigation of the circumstances of convicted persons;
- providing for the duties of assistant probation officers;
- and for the mandatory assessment of every arrested child within 48 hours of his or her arrest;
- providing for the competency of a probation officer to recommend an appropriate sentence or other options to the court ; and ( this section merely introduce the legal notion for what probation officers are doing for a long time as part of their core functions),
- providing for the establishment of a probation advisory committee to advise the Minister on matters with regard to probation services. Such an advisory committee will be able to advice the Minister and the department on a range of policy, practice and personnel matters regarding probation services.
(b) inserting the definition of "family finder" whose main function would be to trace the parents or guardian of a child who is being prosecuted, so as to make them available to assist the child in court;
It is, under the current law, the duty of the police to inform the parents of an arrested child with regard to the arrest of their child. This does not always happen. Sometimes parents are informed or in some cases the parents are not in a financial position to attend the court case. Thus some provinces have introduced the system of family finding; it simply involves that a person from the community is empowered to fetch the child's parents and bring them to court. This system is in operation in the Western Cape since 1994. This one way of ensuring that a parent takes co-responsibility for his/her child, and it also prevents children from being kept awaiting trial in prison for minor offences.
The stepchild of the criminal justice system is the "victim". This bill endeavours to bring victims more central to the criminal justice process.
The Director-general and Department is the lead department in the cluster for social crime prevention. This Bill will ensure the legal opportunity to full this role with regard to social crime prevention.
The concept of restorative justice is based on the idea that we all live in a society based on mutual respect and a balance of rights and responsibilities. When somebody does something to upset that balance, such balance needs to be restored. It's about how ordinary people settle their differences. It's about bringing people together.
These restorative concepts were part of African adjudication prior to colonisation and apartheid. The elders would listen to both sides, and encourage the parties to settle the matter in a way that would allow them to live harmoniously together thereafter. For example, thief would return a goat he stole as well as offering a second goat to restore the damage done. It is about repairing and healing relationships, rather than focusing on punishment for its own sake. It's very relevant and very practical.
The Department of Social Development has started, with the help of donor funding( Royal Netherlands Embassy), Reception, Assessment and Referral centres for children in trouble with the law as well as the well known One stop Youth Justice centre in Port Elizabeth. This could not have been achieved without the partnerships of other department such as SAPS, Justice and Correctional Services.
The Department has provided for the appointment of assistant probation officers in the Personnel Administration Standard on the 1 July 1996. It was not however till September 1998 that the Department started with two pilot projects on assistant probation officers, four were appointed in the Western Cape and two in the Northern Province. These pilots were so successful that Mpumalanga province has appointed 20 assistant probation officers during February 2002. At present there are 60 assistant probation officers in South Africa. There are plans to appoint more of these quality workers shortly, this will go a long way to relief the probation officers to concentrate more on professional task such as assessment of children.
One of the duties of the assistant probation officer is the monitoring of persons placed under house arrest. The Department, in partnership with the Western Cape Provincial Department of Social Services, started such a project during September 1998. The areas covered by the programme are Bellville,Cape town, Goodwood, Kuilsriver, Mitchells Plain, Eerste Riveier, Vredendal, George, Khayelitsha and Oudtshoorn. The arrested child (including those charged with serious offences) is placed in the care of his or her parents under the supervision of a probation officer. The child is then monitored by an assistant probation officer. Since September 1998 till February 2002 a total of 379 children have been in this program. An interesting fact is that out of 379 cases of children in this program 188 cases were eventually with drawn in court. This means that at least 188 children could have been in prison awaiting trial for up to a year or longer, their young lives totally disrupted and their schooling interrupted, only to have the charges ultimately withdrawn.
Another important factor is the element of cost saving. It costs an average of R94.60 per day (100 persons x R 94.60 x 30 days = R 283 800 per month in prison.) On the other hand a child under house arrest costs R2.69 per day per child (100 children x R2.69 x 30 days = R8 070 per month under house arrest.) The costs saved by keeping 100 children in house arrest programmes rather than have them awaiting trial in prison are thus R 275 730 per month. And that does not even take into consideration the social costs that are undoubtedly saved.
The department plans to replicate this program throughout the country. The decision to place a child under house arrest must obviously be carefully weighed with the concerns of safety of the community, and the process of assessment is essential in this regard.
Our constitution requires that every arrested person must be brought before court within 48 hours of being arrested. Section 28 provides that a child can only be detained as a matter of last resort. This provision echoes Article 40 of the United Nations Convention on the Rights of the Child, which South Africa ratified in 1995.
Assessment is an effective way of determining whether a child may be placed in the care of parent or guardian, and to generally advise the court regarding the most appropriate placements available. Thus assessment is an essential tool for determining and making recommendations about when the measure of last resort, prison, should or should not be utilised.
The principle that all children should be assessed by a Probation Officer within 48 hours is thus strongly rooted in constitutional and international law.
The remaining question in this regard might then be, do the provincial departments have the capacity to ensure that these assessments can and will be done within the stipulated time?
In fact, in urban areas of South Africa assessments of all children within 48 hours of arrest are indeed carried out at the present time. This depends largely on inter-sectoral partnership with the Departments of Justice and the SAPS. The probation officers must be notified by SAPS and Justice of the arrest of a child as soon as possible after arrest. The magistrates' courts in all cities and the majority of towns are covered by full time probation services. Those provinces that have large rural areas use a satellite system where a probation officer may cover a number of different districts, responding on a case by case basis. The Department can and does also use the services of social workers employed by civil society organisations.
In the event of a child "slipping through" the system and is not being assessed by a probation officer, the following procedure is usually followed. The child appears in court within 48 hours, as required by the Constitution, the UN Convention on the Rights of the child as well as the Criminal procedure Act. The matter will then stand down for assessment to be done by a probation officer.
It is however important to make it a requirement that provinces declared themselves ready, within a year after signing by the President of this bill, by proclamation in the Government Gazette, to fully implement this section.
The Department is convinced that this service is required, and the capacity to deliver is being developed in a planned and systematic manner. The implementation of this legislation will also help to pave the way for the Child Justice Bill, which was approved by Cabinet in November 2001 and is due to be introduced into Parliament in the near future. The Department supports this Bill and considers it to be a priority.
The Department is currently involved in an inter-sectoral process led by the Department of Justice and Constitutional Development to develop a detailed costing and implementation strategy to support the Child Justice Bill. The Chief Financial Officers from the national Department and provincial Departments have been involved in this process, as have senior finance and line function personnel from all the provincial departments. The provincial departments are now fully cognisant of the impact that the Child Justice Bill will have our sector, including the matter of assessments of all arrested children. The inputs to the MTEF currently being developed will take all of this into account.
The Probation Services Amendment Bill will provide legal certainty to innovative practitioners who have been doing their best to provide a progressive and effective service. It will help to ensure equality of service provision so that all children in South Africa, as well as adults requiring assistance, may be provided with services of a high quality.
- Schedule probation officers and RAR centres
- Schedule children awaiting trial in DSD and DCS facilities
A comparison of the Survival, Protection, Development and participation Rights of children as safeguarded in the United Nations Convention on the Rights of the Child, The OAU Charter
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