Probation Services Amendment Bill: deliberations

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
1 August 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)

SUMMARY
The Committee continued deliberations on the Probation Services Bill. No final agreement was reached at the end of the meeting. Members undertook to consult in party caucus so as to come up with a unified position. Further deliberations on the Bill would take place on the August 14 2002.

MINUTES
The Chair invited Mr. Du Preez to set the tempo for the meeting by briefing members on where the Department stood at this point in time.

Mr Du Preez informed the Committee that following the previous deliberations on the Bill the Department had drafted four options that had emerged. He said that the first option is the one proposed by the Select Committee of the NCOP and that the second option is the one given by the Department of Justice. He continued that the third and fourth options are the ones that emerged from the previous deliberations of the Committee.

Discussion
Ms Chalmers (ANC) inquired as to whom the responsibility of deciding what is or is not reasonable in given circumstances rests.

Mr Du Preez replied that the question of reasonableness that was alluded to in the draft options was not intended to be applied across the board. He explained that due to the variance of geographical locations and resource distribution imbalance, it was not possible to set a yardstick as to what circumstances were or were not reasonable.

Mr. Masutha (ANC) cautioned that the usage of the word 'reasonableness' could create unnecessary ambiguity that would be susceptible to manipulation.

Ms Gandhi (ANC) suggested that a clause for the release of the child to the care of parents, whenever they were available should be inserted in the Bill to ensure that detention comes in only as a last resort.

Mr Da Camara (DP) said that he agreed with the options set out by the Department but that it would be better to rearrange them in such a way that they address the concerns of all the affected stakeholders. He then suggested that option 1 and 2 be left the way they were and that option three be amended appropriately to ensure that every child is given an opportunity to be assessed.

Mr Du Preez explained that option 2 makes provision for a situation where a child has received summons but has not been arrested and detained. He, however, welcomed Mr Da Camara's suggestion and promised to scrutinise it further.

Ms Tsheole (ANC) noted that Mr Da Camara's suggestion covers every aspect that was discussed in the previous meeting. She insisted that the 48-hour period was not oppressive since there were adequate escape routes to cover any difficulties.

Mr De Lange explained that the 48-hour period is a constitutional provision that guarantees all detainees a right to be processed in the criminal procedure system within that period and this includes the child. He clarified that assessment was not pegged on detention noting that the constitutional provision was absolute no matter what the Act said about assessment.

Mr. Du Preez reiterated his earlier plea that due to the scarcity of Probation Officers in the rural areas, it was impractical to secure an assessment within the mandatory period of 48 hours.

Ms Tsheole insisted that there was no contradiction between the constitutional provision on detention and the child assessment provision. She explained that whilst the former was confined to the criminal procedure process, the later was outside this process.

Mr. Masutha (ANC) agreed with Ms Tsheole's views and emphasised that there were indeed certain constitutional liberties a child enjoys but that this did not mean that such rights could not be reinforced by other legislative provisions whenever this was appropriate.

Mr. Du Toit said that one of the recommendations made in the Bill regards where the child should be placed such as release to the parents, juvenile home or under house arrest.

Dr Jassat (ANC) suggested that a provision be created in such a way that authorities would be compelled to undertake assessment within 48 hours and where this was impractical then within the next 48 hours and no more.

Dr Smith, from the Department, suggested that the 48 hour period be qualified by a proviso to the effect that '…. or not exceeding 96 hours'.

Mr Masutha, again cautioned against allowing an automatic extension which provision he said would cause unnecessary confusion. He pointed out that it would be wiser to opt for a mechanism that allows for bureaucratic intervention so that somebody could take responsibility for the assessment at any stage of the process. He suggested that the suitable officer to be seized with the matter of reviewing the assessment process of the child would be the local magistrate.

Mr Van Jaarsveld (NNP) begged to disagree with Mr Masutha's proposal stating that it sounded ideal but in practice it was bound to create more problems for the already burdened state organs. He pointed out that police and the courts already had a great deal of backlog to contend with and adding this particular burden to the teething problems of scarce resources would be ill-advised.

Ms Tsheole reminded members that care should be taken that the proposed amendment did not contradict the upcoming Child Health Care Bill. She urged that there should be total harmony between the two pieces of legislation.

Mr De Lange said that he was worried about Mr Masutha's suggestion more so in view of the fact that the issue of assessment had never and should never be used to detain a child. He said that whenever the 48-hour period lapsed, the child must be released under the constitutional provision whether or not assessment had been undertaken. He explained that in this case, the constitutional provision automatically overrides any provision on assessment.

Mr De Lange clarified that the current debate was basically on the probation services and not the criminal procedure system. He asked members to tread with care so that debate did not trespass into the criminal procedure process which, he cautioned was a very complicated area.

Mr Du Toit concurred with remarks expressed by Mr De Lange. He pointed out that the principal Act on probation services only regulates the role and duty of the probation officers. He said that option one was acceptable to the Department but he expressed his reservations on the mandatory 48-hour period.

Mr Du Toit assured the Committee that the current legislation was merely trying to legalise what was already happening in practice and that there were in-build mechanisms in place to deal with all concerns that have been expressed by members.

Ms Gandhi said that the problem the current Bill was going to address was principally to divert the child from the criminal justice system at the earliest opportunity possible. In this respect, she agreed with Mr Du Toit's explanation that the Act is going to legalise what is already the common practice on the ground. She appealed to members to try and accommodate all concerns that had been expressed by various state organs so as to ensure that the law is user friendly up and until the promulgation of the Child Health Care Bill.

The Chair concurred with Ms Gandhi and Du Toit's viewpoints and urged members to try and focus mainly on the objective of the Bill. He cautioned against over-emphasising the importance of the 48 hour period .

Mr De Lange said that the only problem he had with the Select Committee's formulation was that it only covered the arrested child whereas there were situations where the child would be in need of assessment even though not under detention.

Mr Masutha sought to dissuade Mr De Lange against taking the committee in another direction. He clarified that the situation the Committee is concerned with at the moment is where the child is in custody. He pointed out that other circumstances would be treated in a different clause. He suggested that a further provision be formulated to cover children that are out of custody.

Mr Du Preez associated himself with remarks made by Mr Masutha and reiterated that the current debate dealt with a child that is under detention only.

Mr Da Camara expressed the fear that if no mandatory provisions were made, the Committee would allow the current practice of detaining children for lengthy periods of time.

Mr Van Jaarsveld lamented that the debate had assumed a discourse that was without a clear direction and that issues were now more heavily clouded than when the discussion started. He pointed out that the problem with the Bill was to do with the 48-hour time frame but that the discussion had involved new issues being put on the table.

The Chair agreed with Mr Van Jaarsveld that it was expedient that discussion on the Bill be brought to a conclusion. He expressed satisfaction that every member had an opportunity to make a contribution. He urged members to go back to the party caucus and within the context of the discussion formulate their respective positions.

Meeting was adjourned until the August 14 2002 when the Committee would reconvene to conclude the matter.

Appendix
PROBATION SERVICES AMENDMENT BILL [B18B -2002]
OPTIONS

CLAUSE 4B
1. 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.
2. Every child who is alleged to have committed an offence shall as soon as may be reasonably possible after arrest or summons to appear in court be assessed by a probation officer.
3. Every child who is alleged to have committed an offence shall, before he or she is charged with the offence, be assessed by a probation officer.
4. Every child who is alleged to have committed an offence and who has been arrested shall as soon as may be reasonably possible before his or her first appearance in court be assessed by a probation officer.