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SOCIAL DEVELOPMENT PORTOFOLIO COMMITTEE
31 July 2002
PROBATION SERVICES AMENDMENT BILL: DELIBERATIONS
Chairperson: Mr E Saloojee (ANC)
Documents handed out:
Probation Services Amendment Bill [B18B - 2002]
Probation Services Amendment Bill [B18B-2002] Options Clause 4B (see Appendix)
Committee was unable to reach a final conclusion on the appropriate provision with regard to clause 4B of the Probation Services Amendment Bill. Opinions were divided on whether to exclude the clause altogether or retain it with substantial qualifications or suspend it to await the Child Health Bill in the pipeline. Deliberations on the Bill would continue the following day.
The Chair stated that Justice; SAPS; Correctional Services; Social Development; department representatives presented comments on the amendments proposed to the Probation Services Amendment Bill by the Select Committee.
Briefing by the Departmental Representatives
Mr Pierre du Preez, legal officer, Social Development stated that his Department stood by the recommendation made by the Select Committee. His Department had drawn up five options that had been discussed in detail by the parties attending the meeting and that therefore he had nothing further to communicate to the Committee at that stage.
Mr De Lange, legal adviser to Department of Justice, informed the Committee that the Child Health Care Bill that is still in the process of promulgation made provision for child assessment in a comprehensive and detailed manner. It also providef for who was to handle the child and where such a person should be positioned. He pointed out that this legislation is still at the initial stages but that it would be introduced in Parliament on the 11 August 2002.
Department of Justice supported the principle in the assessment of children within the 48-hour period. He however noted that the Department was fully aware of the problem of capacity in the various state organs that had to implement the legislation. He noted that the Child Health Bill had several escape routes that would remedy this impasse.
Mr De Lange recommended an integrated approach to the implementation of the legislation given its inter-sectoral implications but stated that the Department of Social Development should play a leading role. It would be useful if there was an indication from the Department as to how many Probation Officers would have been hired by the time the law was implemented and the budgetary implication of this eventuality. He then suggested that the best way to go about the issue in view of his remarks was to suspend the operation of the contentious section of the Bill until the more comprehensive Child Health Care Bill is finally promulgated.
Mr De Lange pointed out that in view of the comprehensive nature of the Child Health Bill, he foresaw the likelihood of consequential amendments to the Probation Services Bill. He said the Bill is fairly comprehensive and that it carried 89 clauses. He promised to collaborate with the Committee during the process of promulgating the Child Health Care Bill.
Mr Jones Venter from the Department of Correctional Services informed the Committee that his department fully supported the principle enunciated in Clause 4B of the Probation Services Bill. The main concern was the handicap created by lack of capacity to implement the said law. He suggested that the Bill should cover Social Services so that social workers could be utilised in the provision of this service. He added that there were budgetary implications on the likely increased of personnel and yet no provision had been made for this item.
Assistant Commissioner Geldenhuys, from the SAPS, supported the principle of assessment within the 48-hour period. He pointed out that the policy of the SAPS had always been to avoid situations where children were taken into custody. He said that other alternative means of handling children were most preferred to the custodian detention.
Commissioner Geldenhuys pointed out that the main concern of SAPS was the pressure that was already overwhelming on capacity to implement the legislation. He added that there was need to revamp the necessary infrastructure before this piece of legislation is fully operational. He informed the Committee that SAPS handled an average of 85, 000 children every year and that given the distances one had to cover to access a police station in some regions, it would be near impossible to implement this type of legislation.
Commissioner Geldenhuys faulted the draft Bill for not specifying who was to take the responsibility of ensuring that the child had been assessed. He agreed with Mr De Lange that the Child Health Care Bill would address most of the concerns raised in the current legislation and urged that this Bill be fast-tracked. He concluded by reiterating that it was not in the interest of the SAPS to detain children in cells.
Mr Du Toit, from the Department of Social Development pointed out that the Probation Services Bill was not drafted in comprehensive terms because the Justice Department assured his Department that the Child Health Care Bill would be ready before the introduction of the Probation Services Bill. He contended that he would have removed the contentious clause if the Child Health Care Bill were in place. He continued that his Department preferred the amendment proposed by the Select Committee and that all practicalities with regards to scarcity of resources would be taken into account.
The Chair called on the Department of Justice to involve Social Department in issues touching on the welfare of the child. He also noted the suggestion of the Department that clause 4B be suspended pending the promulgation of the more comprehensive Child Health Bill and asked members to give their views thereon.
Ms Kalyan (DP) observed that the Department of Social Development had given members an assurance that more Probation Officers would be appointed. She then asked whether this undertaking had become a reality.
Mr Du Toit replied that so far about 695 Probation Officers and 60 Assistants had been hired. He said that his office was liasing with provinces on the issue of costing adding that possibilities of donor funding were assured. He however pointed out that due to their superior training these officers were much sought after internationally noting that at least 10 officers would leave the Department for the UK where they had secured well paying jobs.
Ms Tshoele (ANC) said that the interaction with the departmental cluster had given members the necessary exposure to usefully contribute to the debate around the contentious clause. She asked if there was any budgetary provision for the additional Probation Officers and Social Workers that would be hired. She suggested that the Probation Bill should be harmonised with the Child Health Care Bill but insisted that there have to be mechanism in place to deal with child welfare at this point in time. She added that the answer, in her view, lay in the escape routes provided for by the Department of Social Development.
Mr Masutha (ANC) pointed out that it would have been useful if the current discussion had been conducted prior to the debate on the Bill. He agreed with Ms Tsheole that the current discussion had opened new insights into the Bill that was under review. He also agreed with Ms Tshoele's suggestion that the operation of the Bill should not be suspended until the passing of the Child Health Care Bill.
Mr De Lange contended that even in its amended form, the Bill still sounded as if it would operate in the vacuum since it presumed that there would be an assessment before the provisions of the criminal justice operate which is impossible in practice.
Mr Venter insisted that it was important that there be clustering in the implementation of the Bill to allow for co-ordination and budgeting issues which must be resolved.
Commissioner Geldenhuys said that the suggestion of co-operation in the implementation is appreciated although it is easier said than done. He pointed out that SAPS had its own social workers but for a different purposes and that in far-flung rural areas there are no SAPS social workers and that many courts do not have Probation Officers. He said that the SAPS support the suggestion that the offending clause be removed or suspended until the promulgation of the more comprehensive Child Health Care Bill.
Commissioner Geldenhuys suggested that the only way to address the current impasse was to make a provision that no child should be charged before an assessment by a Probation Officer. He explained that this procedure would ensure that the child was not brought into the formal criminal procedure justice before he/she was assessed. He noted that this provision reinforced the spirit of clause 4B but without necessarily putting capacity pressure on the state organs.
Mr Venter was quick to caution against a situation where pressure is brought to bear on the limited resources of correctional services due to an increase in the awaiting trial children.
Ms Gandhi (ANC) submitted that there must be some interim measures in place to cater for the child welfare while the process of promulgating the Child Health Care Bill ran its course. She suggested that the 48-hour mandatory provision be qualified to find a middle ground between capacity and child welfare.
Mr De Lange said that all the measures under discussion are already adequately provided for in the law. Where this was not put in practice, he explained the reason was more likely a failure of enforcement generally and not lack of legal provision. He further pointed out that the object of assessment, which was not provided for in the Probation Bill, was to ensure better handling of the child through the justice system
Ms Chalmers (ANC) concurred with earlier speakers that interaction between departments was very crucial to the success of the current effort. She pointed out that some departments had social workers and wondered whether such personnel could not be utilised as Probation Officers.
Mr Masutha (ANC) said he agreed with Ms Chalmers that any social worker has the necessary competence to carry out probation duties.
Mr De Toit, however, disagreed with this suggestion. He explained that under the current law it was not practical to deploy social workers as Probation Officers. He explained that Probation work was highly specialised and that social workers would require extra training to acquire the necessary skills and competence to carry out Probation work.
Mr Solo (ANC) said that the Department had assured the Committee that practical steps would be taken to train and deploy extra Probation Officers. He asked whether this assurance had be met and urged that the Committee must move boldly to carry out the basic functions it is empowered by law to do.
Mr Du Toit replied that Probation Officers were trained in various tertiary institutions in the country but added that those who shine are immediately promoted and re-deployed to other areas thereby depleting the manpower in the lower ranks of the Department.
Mr Masutha (ANC) suggested that the Committee list down the various options that have been put on the table so that the discussion can narrow down to the most suitable option.
The Chair agreed that all suggested options would be subjected to scrutiny to come out with the one to best address the welfare of the child in the envisioned circumstances.
Dr Jassat (ANC) said that the question of capacity should not be an issue at all in view of the fact that child criminality is prevalent in urban areas where there were enough officers already. He submitted that rural areas experience little to nil child criminality and that therefore personnel would be less of an issue on this front. He therefore urged that clause B should be left since it was not an entirely impossible law to implement.
Mr Masutha insisted that the Chair should ask drafters to refine the available options for further in-depth deliberation by the committee.
The Chair pointed out that in fact the Department had already summarised the options in the manner suggested by Mr Masutha. He referred Mr Masutha to the summarised options drafted by the Department of Social Development.
Mr Masutha, however, summarised his own version of the options he had captured in the discussion, which he listed thus:
- that a child should not be charged before an assessment is undertaken
- that a child should not be detained before an assessment is undertaken
- that the system should be left the way it is until the Child Health Care Bill comes into operation
- that there be mandatory requirement for an assessment within 48 hours which would be qualified in certain circumstances
-that assessment should be undertaken within 48 hours but where this is not possible the same be undertaken within a reasonable time
Ms Tsheole reiterated that there was no contradiction between the Child Health Care Bill and clause 4B of the Probation Bill. She explained that the spirit of child welfare featured prominently in both situations. She suggested that clause 4B be retained with necessary escape routes where the practicalities of the situation demanded as such.
Mr Du Preez said that in his personal capacity he would recommend the suspension or removal of clause 4B to await the operation of the Child Health Care Bill. However, he felt that the Minister favoured the recommendations of the NCOP.
The Chair ruled that deliberations on the Bill would continue the following day.
PROBATION SERVICES AMENDMENT BILL [B18B-2002]
1. Every child who is alleged to have committed an offence shall as soon as possible, but not later than 48 hours after his or her arrest, be assessed by a probation officer.
2. 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.
3. Every child who is alleged to have committed an offence shall within 48 hours after his or her arrest be assessed by a probation officer.
4. Every child who is alleged to have committed an offence and who has been arrested shall within 48 hours or as soon thereafter as may be reasonably possible but not later than 96 hours after his or her arrest be assessed by a probation officer.
5. Every child who is alleged to have committed an offence and who has been arrested shall be assessed by a probation officer as soon as reasonably possible but not later than 48 hours after the arrest or not later than the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day.