Child Justice Bill: briefing

Meeting report

JOINT MONITORING COMMITTEE ON CHILDREN, YOUTH AND PERSONS WITH DISABILITIES
25 September 2002
CHILD JUSTICE BILL: BRIEFING

Chairperson: Mr S L Dithebe (ANC)

Documents handed out
Draft Child Justice Bill
Preparing for the Child Justice Bill

SUMMARY
The Committee was informed that the Child Justice Bill would promote crime prevention and protect children charged with less serious offences. The Bill aims at promoting moral regeneration which would involve victims and the communities through the spirit of ubuntu and restorative justice. The Bill promises to roll out programmes that aimed at ensuring that imprisonment was the last resort for arrested and convicted children.

MINUTES
Mr Dithebe urged the Committee to elect the acting Chair.

Mr Moss (ANC) proposed Mr. Dithebe for the Chair and Ms Gandhi seconded him. Mr Dithebe then assumed the Chair in an acting capacity.

Briefing by Mr du Rand - Department of Justice
Mr.du Rand informed the Committee that the Child Justice Bill (the Bill) would promote crime prevention and protected children charged with less serious offences. The Bill aims at promoting moral regeneration which involves victims and communities through the spirit of ubuntu and restorative justice. The Bill would roll out programmes that ensure imprisonment is the last resort for arrested and convicted children.

The Bill would ensure the safety of communities by prosecuting and sentencing violent young offenders but that this measure would be achieved through a process of restorative justice. He added that the Bill provides for inter-sectoral monitoring and that officials would deal with this measure from different departments which would ensure that the process was fairly comprehensive.

The powers and duties of various stakeholders were clearly spelt out in the Bill. He noted that the police had the power of arrest and notification for assessment whilst the probation officer was tasked with the duty to assess the young offender before further action was taken. Probation officers would establish whether there were prospects for diversion and at the same time determine if the child needed care or whether it would instead be necessary to release the child to the custody and care of the parent/guardian.

At the other end of the process the Magistrate was provided with various options, which included conditional withdrawal of the child from the criminal justice system or reference of the child to various other suitable programmes.

Mr du Rand informed the Committee that the Bill also makes provision for a pre-sentence phase where there are alternative sentencing measures and that there was also provision for a review of the sentence and appeal. He continued that the Bill made provision for legal representation for the young offender and that the magistrate had been vested with authority with regard to criminal record of the children in certain circumstances.

Mr du Rand submitted that magistrates could, where appropriate expunge such records in the interest of the child's future development. The Department had extensively net-worked with various government agencies and non-governmental stakeholders in this regard.

Briefing by Mr Conrad Barberton of Cornerstone Economic Research
Mr Barberton informed the Committee that he had undertaken the costing for the implementation of the Bill and noted that there was opportunity to use money to prevent children from coming in conflict with the law. It was expensive to keep children in jail and that the government could save a substantial sum of money if it kept children out of jail. He faulted the option of short sentences, which he said had no restorative value to the child.

Mr Barberton pointed out that under section 35 of the PFMA the Bill must be accompanied with a memorandum setting out the financial implication for the provinces in the implementation of the Bill. It was important to set out clear financial targets in order to strengthen the likelihood of the Bill getting through cabinet and the house. He added that it was also important to prepare departments to run the Bill and that costing at different stages was very necessary in the development process.

Mr Barberton noted that the essence of the costing and the Bill was to ensure that children that go through the justice system were well managed pro-actively and in a restorative manner than the way the current system works. He said that the Department was in the process of developing integrated budget and implementation plans for the Bill.

The process was co-ordinated by the Child Justice Project of the Department of Justice. The Department was engaged in a joint consultative committee and that there was an ongoing interaction on the process of reformation. Mr. Barberton concluded that the success of the Bill would depend on the commitment and responsibility of the Department of Social Justice.

Briefing by Mr. Gordon Hollamby of the Law Commission
Mr Hollamby informed the Committee that the Commission's focus in this area was based on vulnerable groups in society. The Commission was currently investigating the law on sexual offences and in particular the area of decision-making process. The Commission was also interested in the area of the power of attorney donated by people without or with diminished capacity.

The Commission's investigation was focused on common law, customary and family law in general. He said that it was not possible to compile all legislation dealing with child welfare into a single Act. He said the Commission was investigating how to effectively criminalise persons involved in child prostitution. He said that the current Bill seeks to keep out of care persons who abused children and that a whole range of sexual offences had been proposed. He noted that these proposals had been submitted to the Department of Social development for in-put before incorporation in the final draft.

Discussion
Mr Nzimande (ANC) asked what age the child was held criminally liable.

Mr du Rand replied that a child was held criminally liable when 18 years old. He explained that the 10-14-age gap was in relation to the criminal capacity of the child and that up to the age of 7 years a child was considered without criminal capacity. He clarified that what the Department wanted to raise this age limit to 10 years.

Mr Nzimande (ANC) pointed out that the Bill dealt with future arrests in which case he inquired what the fate of awaiting trial and jailed children would be.

Mr du Rand pointed out that statistics showed that more than 146, 000 children were arrested annually out of which only 2000 were on the list of awaiting trail. He noted that this vast difference bears testimony to the fact that there were effective intervention measures that took the bulk of the children out of the criminal justice system. The number of 2000 awaiting trial children was still unacceptably high and that these new measures were targeted at drastically reducing this glaring figure.

Mr Nzimande asked how long the child's criminal record was kept since this had negative physiological impact on the child's development.

Mr du Rand replied that the Bill indicates that where a child is convicted of a serious criminal offence the record would not be expunged but that in other cases the magistrate has discretion to expunge the record.

Mr Nzimande noted that there was no mention in the Bill with regard to safe houses, rehabilitative facilities or trauma counselling centres. He underscored the importance of bridging courses for such children.

Mr du Rand acknowledged the importance of these measures and assured the Committee that a lot of work had been done in this regard. He pointed out that there were a lot of planning and implementation programmes underway and that the Bill would be dealt with in phases in conjunction with other Departments in order to cover as much ground as possible.

Ms Gandhi (ANC) said that the Bill was extremely important and that it has been in wait for far too long. She wanted to know the expected impact of the Bill on reducing the number of children that come in conflict with the law.

Mr du Rand replied that it was expected that 50% of the children would be diverted from the criminal justice and that this would be achieved in conjunction with institutions and NGOs.

Ms Gandhi noted that many children were increasingly becoming criminalised in prison and asked whether there were at present urgent measures to deal with this worrying situation.

Mr du Rand replied that the children that were in jail were targeted through an inter-sectoral strategy approach, which hoped to remove most of them from incarceration.

Ms Gandhi asked whether children were being separated according to age and the nature of crime with a view to ensuring that they did not mix with hardened criminals.

Mr du Rand pointed out that rehabilitation and counselling were an important part of the child justice programme and sorting children out was provided for at arrest and the preliminary inquiry.

Mr Lucas (ANC) wondered why a new Bill was necessary when the easiest way was to improve on the current one.

Mr du Rand explained that the current legal dispensation introduced a whole range of far reaching programs, which would require a new style of operating hence the necessity for a new Bill to incorporate and observe these numerous changes.

Mr Moss (ANC) said that the house welcomes the Bill and the notion of inter-secoral co-operation it seeks to promote. He then asked whether the Bill takes cognisance of and makes necessary provision for the child with disability in terms of planning and costing.

Mr Hollamby said that a disabled child was defined in the Bill as those in special difficult circumstances for which the Law Commission had made supplementary recommendations for a special need grant. He said this would make provision for necessary facilities and equipment which such a child would require.

Mr Moss noted that the Western Cape and Kwazulu-Natal had the highest number of child arrests. Were there special magistrate courts like the one in Port Elizabeth to expeditiously process these children?

Mr du Rand explained that the Court in Port Elizabeth was a one-stop centre that was replicated throughout the country. The Department had set up a management program in Durban to look at the exceptionally high rate of child arrests in the area. It was heartening, however, to note that the numbers were actually beginning to drop in most of these places.

Mr Moss asked if there was an age limit for a child in to be incarcerated.

Mr du Rand explained that a child under the age of 10-14 years was not, under the law criminally liable but explained that this was a presumption that could only be rebutted when the court was satisfied otherwise.

The Chair asked if there were innovative ways in which the Bill tried to deal with serious offences committed by children induced by adults.

Mr du Rand explained that under section 84 where a child was utilised by an adult for criminal purposes, the adult must be additionally penalised. Further that the court looked at all relevant factors that would go into mitigating the seriousness of the offence.

The Chair asked if the law took cognisance of and accordingly make provision for children with diminished intellectual capacity.

Mr du Rand replied that children with diminished intellectual capacity were not held criminally liable under the law. The court took into consideration all relevant social factors like poverty and child neglect.

The meeting was adjourned.