Judicial Matters Second Amendment Bill: deliberations

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Justice and Correctional Services

07 September 2003
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
8 September, 2003
CHILD JUSTICE BILL: DELIBERATIONS

Documents handed out:
Proposed amendments on the monitoring mechanisms (Clause 80) [not available]
Child Justice Bill [B49-2002]
Inter-sectoral Plan for the Monitoring of the Child Justice System
Working draft of Child Justice Bill (not available electronically)

Chairperson: Mr J De Lange (ANC)

SUMMARY
The Committee concluded working through the Child Justice Bill and mandated the drafting team to effect the proposed amendments and come up with a refined Bill.

MINUTES
Clause 75
The Chair noted that the Committee was in agreement that there was no need for compulsory legal representation at the preliminary level. He referred to 75(1) and noted that it is contradictory to say "subject to Legal Aid Act" and use the obligatory term 'must' at the same time. He advised the drafters to also check with the Criminal Procedure Act (CPA) to see if there is a procedural right accorded to the child as well. He proposed that a procedural right be accorded to the child in the Bill whilst the Legal Aid Act would give the substantive right. He asked the drafters to rewrite 75(2) and drop 75(3), (4) and (5) which were unnecessary.

Clause 76
The Chair said that 76(2) should not refer to just any child but that the provision should be linked to 75(1) in order to make sense. He added that rules must be drafted at this point to regulate how a lawyer would assist the court when a child does not want representation. He faulted the drafting of 76(3). The drafting should make it clear that either a legal representative stays on, and if not, then the Legal Aid Board should seize the opportunity to appoint somebody else.

Ms Skelton said that provision would be made for Legal Aid to train people who would handle child-related cases.

The Chair reminded the Committee that Clause 77 would be taken out and has no relevance any more.

Clause 80
Mr Bassett (Department legal drafter) pointed out there was a new amendment to this clause which makes comprehensive provision for the monitoring of child justice.

Ms Skelton explained that the amendment on Clause 80 has been divided into Part A and B noting that Part A would be incorporated into the regulations whilst Part B would detail what issues must be monitored and by whom.

The Chair noted with appreciation that the document creates monitoring structures that would report to three entities but expressed concern that the real difficulty lies in its implementation.

Mr Bassett said that there is "some sort of structure" already in place upon which these new mechanisms would be built.

Ms Kota (ANC) pointed out that it is unnecessary to legislate monitoring structures, which she noted, are prone to intermittent changes that would entail the cumbersome process of having to amend the law all over again.

Ms Skelton explained that provisions on the monitoring structures would be crafted in the regulations, which are easier to amend.

Ms Camerer (DA) supported the Chair's reservations on successful implementation noting that many policy decisions are taken at the national level whilst implementation is left to the whim of the provincial and local government structures that are already struggling with strained budgets. These entities would need a good incentive in order to divert their shoestring budgets to finance this elaborate monitoring obligation.

The Chair asked the drafters to create two clauses in the regulation:
- one to create the structures and
- the other to state what the monitoring structure should do.

He added that the Director General for Justice should be held directly responsible to report to Parliament on progress regarding child justice and that this reporting should be compiled onto one document.

Clause 81
Ms Skelton pointed out jurisdictions have procedures in place to expunge the criminal records of children that have been reintegrated into mainstream society. She urged that it would be useful to expunge the criminal records of grown-up children in order to remove the stigma of criminality from their reckless past. She added that the magistrate would be given the discretion to make the expunction order at some point in time.

The Chair wondered how the magistrate could possibly predict that the child would not commit another crime at some point in future.

Ms Skelton replied that there is a condition in 81(5) which requires that the child whose record has been expunged must not commit a similar offence between the imposition of the sentence and the date of expungement which is a maximum span of five years.

Ms Camerer said that she fully supports the ideal of expunging records except for cases where serious offences have been committed. She noted that most children engage in criminality due to a lack of proper parental care. Such children should be afforded an opportunity to make a clean break from their troubled past and embark on a new beginning.

Ms Kota expressed the view that the discretion that is given to the magistrate was very selective and subjective. She suggested that an across-the-board uniform provision be made for expunction.

The Chair objected to Ms Kota's suggestion and argued that there is no equality where a uniform mechanism is created noting that some children commit offences at age 14 whilst others at age 18. He noted that his main concern was with timeframes and suggested that offences from Schedule 1 should be expunged at age 21 but that repeat offenders should be exempted from this facility.

Mr Bassett reported that provision is made under the CPA for an automatic expunction after the expiry of 10 years. He explained that this facility is available to all persons doing time for less serious offences.

The Chair proposed that any crime under Schedule 1 should fall away after five years whilst those in Schedule 2 should follow suit after ten years provided that a child under 14 years is now 18 and that a child under 18 is now 21. He added that those who commit serious offences should not benefit from this facility.

Ms Kota asked if provision has been made for the record of children who have been diverted.

The Chair replied that such a diversion record should fall away at age 21 on condition that no further offence is committed.

Ms Camerer pointed out that due to the vast amount of ignorance among the general populace, provision should be made for automatic expunction at some point in time. It is important for the law to create a safe corridor for the rehabilitation of people who drifted in extreme youth.

The Chair agreed with Ms Camerer's observation and suggested that such automatic expunction should apply to offences under Schedule 1.

He asked the drafters to create a special mechanism for one to apply for expunction before the maturity of the date of expunction. However he asked the legal team to hold this suggestion in abeyance to allow members to reflect on it some more.

Clause XX Rules of Court
The Chair asked the legal team to explain the position of XX(j).

Ms Skelton replied that both (d) and (j) are out of place and suggested that the two should be merged into one place.

The Chair raised objection to the provision that creates a regional court and asked the legal team to clearly spell out the jurisdiction of the court at subclause (2).

The Chair pointed out that XX(4) has extreme weakness in its current form since it did does not rest responsibility upon one cabinet member but instead generalises. He noted that the provision pools functions together but not resources which was a recipe for inaction.

Ms Skelton offered that the Department of Justice would take full responsibility for the legal processing but admitted that the tricky part is the area of shared amenities.

Clause 82 Referral of information relating to age to the Department of Home Affairs
The Chair asked the legal team to explain the position of this referral to the Department of Home Affairs.

Mr Bassett said that the Committee had asked the Department to slip in this provision but not to take it any further than that. He promised to check with Home Affairs to inquire whether they have anything to add.

The Chair urged the Department to approach Home Affairs as indicated and at the same time he asked them to create some kind of report mechanism for this purpose.

Adv. Masutha (ANC) said that Home Affairs should also be approached to consider incorporating their own regulations to cover areas of interest to them. The Chair supported this suggestion and asked the Department to act accordingly.

Clause 83
Mr Bassett noted that the clause is a verbatim repeat of Section 297 of the CPA.

The Chair asked the legal team to craft the clause as wide as the CPA. He however questioned the rationale in making the state responsible for a decision that has been taken by a magistrate or judge as provided at 83(5).

Mr Bassett promised to carry out more research on the offending provision.

The Chair asked the team to take out the entire Clause 83 noting that the same is already provided for under the CPA.

Clause 84
The Chair questioned the eference to "a police officer" in 84(1)(a) to which Mr Bassett promised to check and report back.

The Chair said that 84(2) must refer to 3 years and not 3 months. He asked for an explanation as to why an offence has been created under 84(3).

Mr Bassett replied that the Committee had requested that the matter be reported to the Police Commissioner and that therefore the Department decided to create an offence.

The Chair suggested that 84(4) should be crafted separately as a miscellaneous provision, noting that it is not suited where it is presently located.

Ms Skelton said that 84(4) is there to explain 84(3).

The Chair faulted the crafting of 84(5)(a), noting that one cannot be referred to as an adult and be required to be over the age of 21.

Clause 85
The Chair pointed out that there were a number of things that would be changed in this clause in addition to the schedules.

Ms Camerer referred to the footnote [The Bill will allow for children younger than 15 years to undertake commuinty service as a diversion or sentence. This may be questionable in terms of the ban on child loabour below the age of 15 years] and said that children should be encouraged to do community service in order to become responsible citizens.

Ms Skelton objected to Ms Camerer's suggestion and explained that the CPA forbids children who are under 18 years from engaging in community service.

The Chair thanked the legal drafting team for work well done and asked them to come up with a refined Bill complete with all the suggested amendments.

The meeting adjourned.

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