Probation Services Amendment Bill: briefing

Background
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.

-Gert Baartman aged 15 years

- Lebohang James Mofokeng aged 17 years.

-Richard Armoed, aged 15
Died in the Knysna Police Cells on 10 March 2001

-Werner Coetzee aged 16 years

-Byron Ince aged 14 years

-Andre Van Zyl Jordaan aged 17 years

-Petros Chiloane age 17 years

-Andile Tawule aged 17 years

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-

1. Inserting definitions relevant to the child and youth care system;

(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.

2. introducing assessment, support, referral and mediation services in respect of victims of crime;

The stepchild of the criminal justice system is the "victim". This bill endeavours to bring victims more central to the criminal justice process.

3. introducing crime prevention strategies through the provision of early intervention programmes including diversion services and family group conferencing;

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.

4. providing for the establishment of restorative justice programmes and services as part of appropriate sentencing and diversion options;

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.

5. 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;

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.

6. providing for the duties of assistant probation officers;

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.

7. and for the mandatory assessment of every arrested child within 48 hours of his or her arrest;

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.

8. 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),
9. 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.

Conclusion
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.

1. Schedule probation officers and RAR centres
2. 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