Probation Services Amendment Bill: discussion on proposed amendments

Social Development

18 June 2002
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Meeting Summary

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Meeting report

SUMMARY

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
19 June 2002
PROBATION SERVICES AMENDMENT BILL: DISCUSSION ON PROPOSED AMENDMENTS

Chairperson:
Mr Saloojee (ANC)

Documents handed out:
Probation Services Amendment Bill [B18b-2002]
Children in Custody Statistics
Select Committee on Social Services Report on the Probation Services Amendment Bill (see appendix 1)
Background Report to consider Proposed amendments by the Social Services Select Committee on the Bill (see appendix 2)
Breakdown of Staff & Facilities by Province (see appendix 3)
A Comparison of the Survival, Protection, Development and Participation Rights of children (see appendix 4)

SUMMARY
The Committee met to discuss the proposed amendments by the NCOP committee, the Select Committee on Social Services. The Committee proposes broadening Clause 4(B) as the South African Police Services is concerned that Clause 4(B) of the Probation Services Amendment Bill is 'unimplementable" as there is a non-availability of probation officers. Also, the Department of Social Development feels that the Child Justice Bill, soon to be introduced, already makes provision for mandatory assessment of arrested children within 48 hours. Duplication is not necessary. There are therefore several options that the Committee may adopt: either do away altogether with Clause 4(B) or retain it but not have it operational once the Bill is passed or put in a provision for when the 48 hours is not met.

MINUTES
Briefing
Mr Pierre Du Preez, Departmental drafter of the Bill, briefed the committee.
On 11 May the Bill was approved by Parliament and was deliberated on on May 14th. The NA approved it and on 17 May the select committee of NCOP was invited to discuss the Bill. On 30th May, the Department of Justice and SA Police had a meeting to discuss the Bill. Their focus was aimed at clause 4(B), which refers to the Mandatory assessment of arrested children.

He noted that the Child Justice Bill is to be introduced to Parliament some time the following year and has a provision similar to clause 4(B). The Department of Justice and SAPS did not feel that there is a need for duplication.

He suggested that the committee has to decide between 2 options namely, to remove clause 4(B) completely or to retain 4(B) but stipulate that it should come into effect at a period determined by the president.

The Minister had suggested that clause 4(B) remain but not come into effect. This was presented to the Select Committee on 7th June and published for comment, however no comment was received.

The committee then discussed the definition of "house arrest" (clause 1) and it was suggested that it be changed to "supervision"


Discussion
The Chairperson first pointed out that this would an informal meeting, inviting various views from the members.

Miss Boloyi was concerned with the safety of children once arrested and wanted to know more about the practical implication of "house arrest" & "supervision" if the proposal for clause 1 is adopted. She inquired if the children were accommodated in rehabilitation centres and whether they could attend school.

It was explained that supervision was in most cases done by the parents or guardians of the child, under the monitoring eye of the probation officer. Safety was therefore assured.
Furthermore, statistics showed that out of 375 children placed under supervision, only 1 was killed by a gang and another sentenced to imprisonment. Thus this new model of supervision was 95% successful.

Ms Baloyi speaker pointed out that the 48 hour period requirement within which a child was to be assessed was idealistic considering the backlog of cases the police had and in some provinces, the high rate of child offenders who were arrested.

Another committee member sought to distinguish between the constitutional requirement of appearance in court of any arrested person (not necessarily a child) within 48 hours of being arrested and the requirement of child assessment within 48 hours.
The two were not to be confused, he stated.

One other comment from a member was that backlog was common only in cases where persons were awaiting their cases to be called in court after the first appearance, i.e. prisoners awaiting trial and not children waiting to be assessed.

One member enquired about the situation where a child had an unstable family background and parental supervision was required.

It was explained that even within the family set-up, monitoring by social workers was necessary and each case, with its special circumstances, was taken into consideration by the probation officer when placing the child under supervision.

It was suggested that the term "supervision "be changed to "parental supervision".

This was opposed as supervision could also be done by the guardians the child, so the term should remain as it was.

Ms Xola suggested that clause 4(B), which deals with mandatory assessment of arrested children within 48 hours should be looked at from a practical point of view and accept that it was almost impossible to avail a probation officer in such a short period.
He suggested that a further provision be added to that clause in cases where probation officers could not be availed within those prescribed 48 hours.

Most of the members agreed that although a further provision could be added to Clause 4(B), the already present provision that reads "as soon as possible, but not later than 48 hours after…arrest" should remain.

One member sought to distinguish between the rights of the child and process. She emphasised that these two terms were not to be confused. The assessment within 48 hours was a right whereas the capacity issue was a part of process.

Mr Masuka explained that there was in fact no provision in the Constitution requiring mandatory assessment of a child within 48 hours of arrest. Only appearance in court of an arrested person within 48 hours was contained in the Constitution. The Probation Services Amendment Bill, therefore provided a mechanism for handling an arrested child, and sought to create a framework and process for the handling of an arrested child. The objective was to encourage diversion to occur within 48 hours. However, as this was not always possible, the introduction of a further provision dealing with cases where capacity to assess was not possible within the 48-hour period was necessary. Thus in such cases if assessment were not done was soon as possible or within 48 hours, it should be done "as soon thereafter as is reasonably possible".

One member termed this "the two edged sword" and pointed out that the Bill was an indirect amendment of the Criminal Procedure Act. If no assessment is carried out within 48 hours, it would be unlawful to continue detaining a child, and if a child is never ultimately assessed, the trial would be jeopardised. In the long run, therefore, assessment must take place. The court may even stand matters until the child is assessed. Thus, diversion can become part of the criminal system. His suggestion was therefore that clause 4(B) read "as soon as possible, but not later than 48 hours after his or her arrest, or as soon as is reasonably possible."

One member however felt strongly that this addition was too vague and that a time limit be provided with 5 days as a maximum.

Ms Ramotsamaai called for uniform applicability of the Bill. She was of the view that varying capacity within different police stations should not be an excuse to delay assessment. She stated that the same standard should be applied throughout the country.

The 2 terms assessment and diversion were explained by one member who stressed that one did not mean the other, though one consequence of assessment is diversion, but not always.
In the case of a hardened child criminal, for example, diversion was not the best of solutions. In fact, the probation officer could, after assessing the child, recommend that he or she be kept in the cells pending trial.
Also, whereas diversion did not have to occur within the prescribed 48 hours, assessment did.

Ms Southgate suggested that a time limit, namely, " within not later than 5 days" be included in section 4(B).

The discussion continued and the overall view of the committee was divided. Some felt that the assessment period should be spelt out in the provision to protect the interest of the child and other members felt that due to a lack pf capacity assessment provision should be read widely and provide for assessment " as soon as reasonably possible".

Another suggestion was the elevation of the probation officer to being a part of the criminal system and to have a probation officer in every court.

One committee member was worried about the scenario where a child was arrested on a Friday evening or on a weekend. A probation officer could obviously not be available then.

It was therefore suggested that provision be made for a stand-by probation officer during weekends.

One suggestion was that since Clause 4(B) was the major problem, it could be put on hold while the rest of the Bill was passed.

Most members opposed this, stating that it would complicate matters.

In all, it was agreed that the term "as soon as is reasonably practicable" would be considered for insertion into clause 4(B), as well as the time limit of 5 days.

The Child Justice Bill would also be discussed after the recess and a briefing would be needed on it.

The meeting was adjourned.

Appendix 1:
Report of the Select Committee on Social Services on the Probation Services Amendment Bill [B 18B - 2002] (National Assembly - sec 75), dated 7 June 2002:

The Select Committee on Social Services, having considered the subject of the Probation Services Amendment Bill [B 18B - 2002] (National Assembly - sec 75), referred to it, reports the Bill with proposed amendments, as follows:

CLAUSE 1

1. On page 2, in line 13, to omit "2" and to substitute "4A".

2. On page 4, from line 12, to omit the definition of "house arrest".

3. On page 4, after line 19, to add:

(e) by the substitution for the definition of "supervision" of the following definition:
"`supervision' means supervision of [a] an accused, convicted or sentenced person by a probation officer [by virtue] in terms of the provisions of any law;".

CLAUSE 3

1. On page 4, in line 48, to omit "mandatory".

CLAUSE 4

Clause rejected.

NEW CLAUSE

1. That the following be a new Clause:

Insertion of section 4A in Act 116 of 1991

4. The following section is hereby inserted in the principal Act after section 4:

"Appointment and duties of assistant probation officers

4A. (1) The Minister may appoint as many suitable persons as he or she may deem necessary as assistant probation officers to perform the duties imposed by or under this Act or any other law on an assistant probation officer.
(2) The duties of an assistant probation officer shall include-
(a) the monitoring of persons under supervision;
(b) family finding;
(c) the gathering of information for assessment by the probation officer; and
(d) assisting a probation officer with his or her duties.".

NEW CLAUSE

1. That the following be a new Clause:

Insertion of section 4B in Act 116 of 1991

5. The following section is hereby inserted in the principal Act after section 4A:

"Assessment of arrested children

4B. Every child who is alleged to have committed an offence and who has been arrested shall as soon as may be reasonably possible after his or her arrest be assessed by a probation officer.".

CLAUSE 7

1. On page 6, in line 23, after "2002" to insert:

, and comes into operation on a date determined by the President by proclamation in the Gazette

LONG TITLE

1. On page 1, in the fourth line, to omit "mandatory".

Appendix 2
BACKGROUND REPORT TO THE PORTFOLIO COMMITTEE TO CONSIDER THE PROPOSED AMENDMENTS MADE BY THE SELECT COMMITTEE ON SOCIAL SERVICES PERTAINING TO THE PROBATION SERVICES AMENDMENT BILL (B18C-2002)

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 delivery the service on a full time or part time basis, with 82 in a management or supervisor 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. 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. It is hoped to establish a professional board for probation officers in the near future. Once this board is established then the regulations to the Probation Services Act may be rewritten 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 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 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 following children died in detention:

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 these 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;

(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.

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.

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.

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.

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.

(f) 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, 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.

It is felt that the term "house arrest" can be a political loaded word. It also not describe what it intend. Therefore the term "house arrest" and its definition needs to be omitted. It is incorporated in the substitution for the definition of "supervision" which means supervision of (a) an accused, convicted or sentenced person (by virtue) in terms of any law. The assistant probation officer will then monitors persons under supervision.

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

This will be changed to read as follows:

"Every arrested child who is alleged to have committed and offence and who has been arrested shall as soon as may be reasonable possible after his or her arrest be assessed by a probation officer".

The reason for the above change came about after a meeting called for on the 2 June 2002 when the Department of Justice and the South African Police Services informed the Department that the proposed section 4 B of the Bill was either to be removed or amended. This section deals with the mandatory assessment of arrested children and provides for that any arrested child must be assessed by a probation officer within 48 hours. The Select Committee on Social Services in the NCOP requested a briefing on the contents of the bill and was informed on the 4 June 2002 that the Department of Justice and the South African Police Service were not in favour of the retention of the proposed section 4 b. After consultation with Justice and SAPS, it was decided to amend the section 4B. It was also decided to amend the definition of "house arrest". The amended version was discussed and approved by the Department of Justice and SAPS and the State Law Advisors. These amendments were agreed to and formally adopted by the Select Committee Social Services on 7June 2002. [The debate on this bill is scheduled for 21 June 2002 in the NCOP].

The following extract formed part of the briefing documents to the Select Committee on 4 June 2002.

"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 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 budget and implementation strategy to support the Child Justice Bill. The Chief Financial Officer from the national Department has been involved in this process, as have senior finance 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."

Assistant Commissioner T. Geldenhuys, to the Select Committee on the 4 June 2002 based SAPS argument on the fact that probation officers cannot cover all police stations in South Africa. He indicated the long distances between police station and places where probation officers are based.

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.

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.

Annexures
Schedule children awaiting trial in DSD and DCS facilities
Schedule probation officers and RAR centres
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 on the Rights of the African Child as well as the South African Constitution.

Appendix 3:

Number of Probation Officers

One Stop Child Justice Services

Feb-02

Feb-02

Current

Planned

Current

Planned

Mpumalanga

23

22

Mpumalanga

0

0

North West

29

9

North West

0

0

Limpopo

202

12

Limpopo

1

Eastern Cape

78

48

Eastern Cape

1

Northern Cape

55

6

Northern Cape

1

Western Cape

94

Western Cape

1

Free State

55

Free State

1

1

KZN

82

KZN

Gauteng

77

Gauteng

TOTAL

695

97

TOTAL

2

4

Number of Assistant Probation Officers

Reception Ass & Referral Services

Feb-02

Feb-02

Current

Planned

Current

Planned

Mpumalanga

21

Mpumalanga

3

2

North West

0

2

North West

5

5

Limpopo

1

4

Limpopo

1

1

Eastern Cape

10

20

Eastern Cape

3

2

Northern Cape

12

Northern Cape

6

6

Western Cape

10

Western Cape

17

5

Free State

7

Free State

0

0

KZN

9

KZN

5

0

Gauteng

2

Gauteng

3

2

TOTAL

60

38

TOTAL

43

23

Secure Care Facilities

Feb-02

Current

Planned

Mpumalanga

1

North West

1

Limpopo

1

1

Eastern Cape

1

2

Northern Cape

2

Western Cape

1

1

Free State

1

1

KZN

1

1

Gauteng

1

1

TOTAL

10

7


Appendix 4:
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 on the Rights and Welfare of the African Child as well as the South
African Constitution

By André Viviers

The following table provides an outline for the comparison of the United Nations Convention on the Rights of the Child; the OAU Charter on the Rights and Welfare of the African Child and the South African Constitution followed by a brief discussion at the end.

It first should be noted that all three (3) these instruments define a child as a person under the age of 18 years and this provides common ground for the comparison and discussion.

The United Nations Convention on the Rights of the Child

The OAU Charter on the Rights and Welfare of the African Child

The South African Constitution

Survival Rights

Article 6:
Guarantees the right to life and places the duty on the state to ensure the survival and development of the child to the maximum extent possible.

Article 5
Deals with the survival and development of children and provides for the right to life, the right to survival, protection and development and that a death sentence shall not pronounced on a child.

Section 10
Guarantees the right to life

Article18:
The responsibility of both parents in the upbringing and development of the child and with state assistance where needed.

Article 19
Deals with the parental care and protection AND
Article 20
Deals with parental responsibilities and the state assistance where needed in accordance with national means and conditions
Article 18
Provides for the protection of the family as a natural unit.

Section 28(1)(b)
Affords the child the right to family and parental care

Article 24:
Requires the highest attainable standard of health care and addresses associated issues such a child mortality, malnutrition and preventative health care.

Article 14
Deals with health the state's obligation to the best attainable physical, mental and spiritual health care and elaborates on this further in specific measures.

Section 27
Deals with Health Care link with food, water and social security
And Section 28(1)(c) afford the child the right to basic health care.

Article 25:
Deals with the care, protection and treatment of children placed in care and the periodic review of such placements.

Article 19
Deals with rights of children separated from their parents AND
Article 25 deals with specific measures such as the care of children deprived from their family environment, foster care, residential care and re-unification.

Section 28(1)(b) refers to appropriate alternative care.
Section 28(1)(c)-(d) deals with the basic needs of children in care (including alternative care)
Section 28(1)(g) stipulates that children shall not be detained with adults.

Article27:
The child's right to a standard of living adequate for the child's development and includes issues such as maintenance and assistance to parents and caregivers.

Article 20
Creates a basis to the standard of living required for children and assistance to parents and caregivers

Section 28(1)(c) creates a basic requirement for a standard of living and refers to basic nutrition, shelters, basic health care and social services.

Article 30:
Protects children belonging to ethnic, linguistic and religious minorities.

Article 3
Creates a standard for the protection of children against discrimination, which includes aspects such as language, ethnic group, race, sex, religion, etc.

Sections 30-31 afford the right to language and culture and protection to people (Children) belonging to cultural, religious and linguistic communities.

 

 

 

Protection Rights

Article 6:
Guarantees the right to life and places the duty on the state to ensure the survival and development of the child to the maximum extent possible.

Article 5
Deals with the survival and development of children and provides for the right to life, the right to survival, protection and development and that a death sentence shall not pronounced on a child with the obligation on the State.

Section 11 guarantees the right to life and section 28(1) affords protection to children from maltreatment, neglect, abuse, degradation, and exploitation.

Article 7:
Provide for the registration of a child and a child's right to a name and nationality, as well as for parental care.

Article 6
Provides for a child's right to name and nationality from birth and registration of births.

Section 28(1)(a) affords a child the right to name and nationality from birth.

Article 8:
Provides for the child's right to preserve his/her identity, including name, nationality and family relations.

Article 6
Refers to child's right to preserve his/her identity, name and nationality.

Section 20 safeguards that a child should not be denied the right to citizenship.

Article 9:
Determines that a child shall not be separated from his parents, unless where it is determined by competent authorities to be in the best interest of the child, and that the state must ensure, unless not in the best interest of the child, that the child maintains close relationships with both parents. It also provides for the access to information where a parent or a child is detained.

Article 19
Indicates that a child shall not be separated from his or her parents unless when a judicial authority determines that in accordance with law and that the best interest of the child shall be taken into consideration.
Article 25
deals with the separation of a child from his or her parents specifically and that a child is in such circumstances entitled to special protection.

The Constitution does not indicate the same rights as the said conventions, though the order of wording in section 28(1)(b) implies that alternative care should be only a resort if parental or family care is not possible.

Article 10:
Deals with family re-unification across state borders.

Article 25
Deals with family re-unification that is caused by internal and external displacement.

Section 28(1)(b) in terms of the child's right to family care provides for child not to deprive of family care.

Article 11:
Prohibits the illicit transfer and non-return of children abroad.

No specific provisions

No specific provision.

Article 16:
Deals with a child's right to privacy.

Article 10
Deals with the Child's right to privacy

Section 14 safeguards people's (Children) right to privacy.

Article 19:
Deals with physical and mental violence, injury or abuse, neglect or negligent treatment.

Article 16
Deals with the protection of children from all forms of torture, inhumane or degrading treatment, especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse.

Section 10 deals with the person's right to human dignity. Section 28 deals with the child's right to be protected from maltreatment, neglect, abuse and degradation.
Section 12 safeguards the security of the person and that all persons shall be free from all forms of violence and torture and not be punished in a cruel, inhuman or degrading manner.

Article 20:
Grants special protection to children temporarily or permanently deprived of their family environment.

Article 25
Grants special protection to children temporarily or permanently deprived from their family environment.

Section 28(1)(b) refers to appropriate alternative care for children not being with their parents or family.

Article 21:
Governs adoption of children.

Article 24
Governs the adoption of children

Section 28(1)(b) by implication creates the opportunity for adoption through the provision of a child's right to parental care.

Article 22:
Deals with child refugees.

Article 23
Deals with Refugee children

No specific provision

Article 26:
Deals with the child's right to benefit from social security.

Article 20(2) deals implicitly with children's rights to social security

Section 27 provides the right to social security in that every one has the social security if they are unable to support themselves and their dependants.

Article 32:
Prohibits the economic exploitation of children i.e. child labour

Article 15
Deals with child labour and protect children from all forms of economic exploitation.

Section 28(1) (e) and (f) protect children against exploitative and harmful labour practices.

Article 33:
Protect children from narcotic and psychotropic substances.

Article 28
Protect children from the use of narcotics and illicit use of psychotropic substances.

No specific provision

Article 34:
Deals with the sexual exploitation of children

Article 27
Deals with the commercial sexual exploitation of children

Section 28(1)(d) protects children from all forms of abuse, which shall include then Commercial Sexual Exploitation of Children. If read with Section 28(1)(e), and considering that ILO refers to Commercial Sexual Exploitation of Children as the worst form of child labour, children are protected under the constitution.

Article 35:
Requires measures that prevent the abduction, trafficking and sale of children.

Article 29
Deals with the measures to prevent the abduction, sale or trafficking of children.

No specific provision

Article 37:
Protects the child's freedom and security as a person, including the right not to be subject to cruel, inhuman and degrading treatment or punishment.

Article 16
Deals with the protection of children from all forms of torture, inhumane or degrading treatment,

Section 12 deals with the security of the person and that all persons shall be free from all forms of violence and torture and not be punished in a cruel, inhuman or degrading manner.

Article 38:
Protects children in situations of armed conflict.

Article 22
Protects all children under 18 from being involved in armed conflict

Section 28(i) states that no child shall used directly in armed conflict and be protected at all times from armed conflict

Article 40:
Contains extensive provisions on juvenile justice.

Article 17
Deals with the Administration of Juvenile Justice

Sections 33 (just administration action, 34 (access to courts) and 34arrested, detained and accused persons) deals implicitly with children in the criminal justice system and should be read with section 28(1)(g) that deals with the detention of children.

 

Article 21
Deals with the protection of children against harmful social and cultural practices.

No specific provisions except that section 31 requires that the rights to cultural and religious practices shall be exercised consistent with the provisions of the Bill of Rights.

 

Article 30
Deals with the protection of children of imprisoned mothers.

No provisions made.

 

Article 26
Deals with the protection of children against apartheid and discrimination

Section 9(3) deals with equality and intrinsically prohibits any form of discrimination.

 

 

 

Development Rights

Article 17:
Deals with children and the media.

No explicit provision made.

 

Article 23:
Provides for the rights of mentally and physically disabled children.

Article 13
Deals with rights of physically and mentally handicapped children

No specific provision

Article 28:
Deals with the child's right to free basic education.

Article 11
Deals with the right of a child to education within the context of Africa and free and compulsory basic education

Section 29 deals with the right to education.

Article 29:
Deals with the aims of education.

Article 11
Highlights the importance of education that reflects the values of Africa.

Refer section 29

Article 31:
Deals with the child's right to leisure, play and recreation as well cultural and artistic activities.

Article 12
Deals with the child's right to leisure, recreation and cultural activities.

Not directly mentioned in the Constitution though the cultural and association rights provide for this.

Article 39:
Deals with the physical and psychological recovery and reintegration of child victims of violence.

Article 16
By implication deals with recovery of children who have been victims of child abuse and neglect.

Not directly reflected

Participation

Article 12:
Right of the child to have his/her views and to be heard in accordance with his/her age and maturity.

Refer Article 31 that implies the principle of participation through responsibilities.

Section 16 deals with the freedom of expression, which safeguards also children's right to participation.

Article 13:
The child's right to freedom of expression and access to information.

Article 7
Deals with the child's right of freedom of expression

Section 16 deals with Freedom of expression.

Article 14:
Right to freedom of thought, conscience and religion.

Article 9
Deals with the child's right to freedom of thought, conscience and religion.

Section 15 affords to all the right to freedom of religion, belief and opinion.

Article 15:
Right to freedom of association and peaceful assembly.

Article 8
Deals with the child's right to free association, and freedom of peaceful assembly.

Section 17 affords the right to freedom of assembly demonstration and petition and section 18 affords the right to freedom of association.

 

Article 31
Deals with the responsibility of children in accordance with their abilities.

 


From the above table it is clear that these 3 instruments compares well in affording children their rights. It needs to be noted that there are not always exact comparisons in terms of the wording, but in general it safeguards the survival, protection and development of children. Thus from international, continental to national level, the same golden threat runs through in creating the parameters to serve the best interest of children.

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