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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
25 June 2002
PROBATION SERVICES AMENDMENT BILL: DELIBERATIONS
Chairperson: Mr E Saloojee (ANC)
Probation Services Amendment Bill [B18b-2002]
The discussion centred primarily around Clause 4(b) of the Probation Services Amendment Bill, and comments and suggestions were made. While these were noted by the Chair, no specific solutions were agreed upon.
Although not specifically agreed, there was general consensus that a clause such as Clause 4(b) should be included, albeit in a modified form that would maintain its constitutionality. This would also accommodate a situation in which compliance with the forty-eight hour requirement is impossible due to a lack of capacity.
Ms E Gandhi (ANC) stated that the Child Justice Bill is coming up for comment soon and she wanted to know how this would impact on the Probation Services Amendment Bill [B18B-2002] (the Bill). She stated that it is more detailed and extensive and clearly deals with all of the situations that have been discussed to date, and thus suggested that all involved should rather concentrate on getting the Child Justice Bill as soon as possible. She also wanted to know whether or not the Child Justice Bill, if passed, would render the current legislation redundant.
Mr Du Toit, from the South African Police Services (SAPS), responded that this was a valid question, and stated that the Bill deals with the powers and functions of probation officers. While the forty-eight hour assessment clause does exist in the Child Justice Bill, the onus is on the Department of Social Development (the Department) to acquire more probation officers. The Bill will empower the Department to do what needs to be done under the Child Justice Bill and thus, when the Child Justice Bill does come into operation, the Department will already have all the structures in place to ensure that provisions under the Child Justice Bill can be implemented.
A clause that makes provision for 'home-based supervision' should also be included. Under such a clause, an alleged child offender would be sent back to his/her family. This model has worked very well in the Western Cape Province, and provided the example of a child in this program that was placed under home-based supervision for eighteen months before the court found him innocent. Under normal conditions such a child would have spent those eighteen months in prison as an awaiting trial prisoner.
A member of the SAPS delegation stated that the Child Justice Bill deals specifically with the Department of Justice while the Bill deals with the Department of Social Development. These Bills complement each other and, as such, Clause 4(b) should be included in both Bills.
Ms Gandhi suggested that the forty-eight hour issue should be removed from the Bill altogether and should instead be dealt with in the Child Justice Bill. She stated that this Bill should rather make provision for assistant probation officers because, while such officers do exist, they are operating 'extra-legally' because there is no provision in any legislation that allows for their existence. The clause dealing with the forty-eight hour requirement will be incorporated in the Child Justice Bill, but a provision for assistant probation officers will not be dealt with in any other piece of legislation.
Ms N Tsheole (ANC) interjected and stated that probation officers and their duties are a function of the Department and as such clauses like Clause 4(b), which make allowance for assessment, should be included. She stated that children have died in prison and that it is the duty of this Department to ensure that this does not occur. A clause like Clause 4(b) is therefore essential.
Mr A Van Jaarsveld (NNP) echoed these sentiments and stated that the specific function of this Committee is social development. If Members feel that there is a need for probation officers to look after children, then this Committee must put something in place towards fulfilling this obligation. It cannot wait for the Department of Justice to act, and it is up to the Department to find a solution.
Prof L Mbadi (UDM) stated that he is happy with the establishment of a clause allowing for assessment but was concerned with the term 'home based care'. The reason is that there are many children who do not have homes and, as such, this term does not adequately describe the situation. A clause has to be inserted to ensure that such children are catered for and that they do not end up in prison.
The Chair stated that this will be taken into account.
With regards to the issue of street children, Mr Du Toit stated that SAPS has had a 90% success rate in finding their families with the help of the 'family finders'. Those children whose families cannot be found are placed in secure-care facilities.
The Chair stated that he is aware of this, but the problem is that there are not adequate secure-care facilities.
Mr Du Toit agreed with this, but contended that Parliament is responsible for making such facilities available, such as more secure-care facilities and more probation officers. He stated social workers can also be appointed as probation officers and criticised the original clause not providing adequate protection for children. There are children that have been in prison for far too long.
Adv M Masutha (ANC) stated that the term 'home-based care' should be used, but that its ambit should be extended in the definitions clause to include street children and other situations where children do not have families.
Furthermore, there is no intention to usurp the roles of the departments of Justice and Social Development as the roles of each department are distinct. The primary reason for the large numbers of children currently in prison is that there is an insufficient capacity to deal with the amount of juvenile offenders. The second reason is that it is assumed that SAPS, state prosecutors, probation officers and magistrates are properly co-ordinating their efforts ,when often this co-ordination does not occur in practice. It is therefore essential to ensure that every child that is arrested is assessed, and this brings one back to the purpose of the clause in the Bill.
The original clause, which stated that a child must be assessed within forty-eight hours, leads to problems which are due to the fact that the original clause does not deal with the consequences that could arise if a child is detained for longer than forty-eight hours without assessment. The first consequence is whether or not continued detention and prosecution would be rendered illegal, and the second is that the State could be held liable for civil claims. Such eventualities needed to be guarded against, and it is thus essential to err on the side of caution and ensure that unreasonable legal liability on the part of the State does not arise.
In order to solve this problem the 48hr time frame should be removed and a reasonableness requirement should also be included, as proposed in the amendment. This is, however, not an ideal situation because the Constitution itself imposes a time. In lieu of this, the following solution is proposed: there must be a requirement that the child is assessed at the earliest possible time, but that this time must be no later than forty-eight hours after the arrest. There are thus concrete timeframes which are not open to the 'reasonableness' interpretation. This requirement, however, needs to be softened to cater for those situations where there clearly is no capacity to assess a child within the forty-eight hour timeframe. Thus the following clause must be added: 'forty-eight hours, or sometime thereafter as may be reasonably possible, but no later than ninety-six hours.' In order to guard against unfounded claims of lack of capacity, a subclause should be added that states under which grounds an extension to ninety-six hours would be reasonable.
Another possible solution would be to require anyone who wishes to breach the forty-eight hour provision to apply to the Magistrate for an extension. This is however undesirable as it creates a further function for Magistrates, and the present obligation of this Committee is to concentrate on probation services and not to interfere with the functions of magistrates.
Furthermore, the prosecution has always had the discretion to decide whether or not to proceed with criminal action. Consequently, this Bill should not be seen as limiting this right of the prosecuting authority and, should the prosecution decide that it is necessary to detain a child, this Bill must not interfere with that decision.
Mr Du Toit supported the ninety-six hour option, but noted that the Child Justice Bill makes provision for seventy-two hours.
Adv Masutha stated that this Committee is not presently concerned with the Child Justice Bill, and should therefore not look at it. Furthermore, that Bill is not prescriptive.
Prof Mbadi raised concerns firstly, with the fact that there must be clarity regarding the forty-eight and ninety-six hour requirement. The reason is that some may interpret it to mean that an additional ninety-six hours would be added to the initial forty-eight, when in fact the total time frame allowed is ninety-six hours.
Adv Masutha replied that this is a technicality that can be worked out. He added that it would not serve any purpose to postpone the inclusion of Clause 4(b).
Secondly, Prof Mbadi asked how does one determine whether or not a child is under-age?
A member of the SAPS delegation replied that there are strategies currently employed by SAPS to determine the age of a child. A foolproof method, although expensive, is to X-Ray the wrist of the child.
Adv Masutha echoed his earlier assertion by stating that a clause should be inserted in the Bill that provides that nothing in the Bill should affect the powers of the prosecution to release a detained person.
The Chair then asked whether it would be better if clauses involving probation services be included under the Child Care Act.
Mr Du Toit stated that the Child Care Act dealt with the care of children generally, whereas this Bill deals specifically with children in the justice system. They are therefore two distinct and separate pieces of legislation and should be treated as such.
Ms Gandhi stated that, based on reports received from the Department of Correctional Services, the prisons with the highest child population are those in the cities. This is the situation despite the fact that it is these city areas that have sufficient probation officers and child-care facilities. She wanted to know why this is the case.
Mr Du Toit's response was that the problem lies with the procedure and the fact that children are not assessed. There is no proper structure in place and, as such, the problem is a structural one. One needs proper co-ordination between all the bodies involved in this structure, from the SAPS through to the magistrates.
The Chair agreed and suggested that all the relevant departments need to get together and workshop the issue.
Adv Masutha stated that the problem is indeed a structural one. He states that probation officers play an important role in the various stages in the system: at the time following the arrest, when the prosecution decides whether or not to prosecute, when proceedings begin in court and when the court decides on the appropriate remedy after the trial. It is difficult however to decide what must be done, especially when there is not complete certainty regarding the actual legal position. He stated that there are areas where the law is not clearly articulated, areas in which assumptions arise and indeed areas where established practice dominates rather than the law.
Before closing the Chair asked if there were any further questions or comments.
A Member stated that this Bill deals with the symptoms, such as the fact that there are too many children in prison, and not the social causes behind this fact. An can be found in the fact that crime syndicates employ young children to commit crimes for them. A solution to this problem would be to do away with these syndicates.
A Member of the Committee raised the concern that children partake in crimes because they know that they will get off easily. Something must be done to curb this occurrence.
It was also stated that it is essential that the Bill defines the functions that a probation officer is expected to perform.
Adv Masutha wanted to know what the link was in practice between the probation system and the Child Care Act.
Mr Du Toit stated that the probation officers deal with the worst-case scenario, which is the arrest of a child, and they therefore do not have the power to deal with the root causes of the problem. They do however have a duty to prevent such children from getting into crime again and if this eventuality presents itself, steps will be taken to guard against it. Thus they have a duty to try ensure that potential repeat offenders do not commit the same crimes again.
The link between the duties of the probation officer duties and the Child Care Act kicks in at the assessment stage, where the duty of the probation officer is to determine what can be done, as a first step, to help a child.
The meeting was adjourned.