Child Justice Act Regulations: Department of Justice and Constitutional Development briefing

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Justice and Correctional Services

16 March 2022
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video

In a virtual meeting, the Committee was briefed by the Department of Justice and Constitutional Development on amendments to the Child Justice Act regulations, which were intended to bring it in line with the Child Justice Amendment Act of 2019. The most important provision of the Amendment Act was the raising of the minimum age of criminal capacity from ten to 12 years of age. Other technical amendments and corrections to the regulations were also made.

The Department asked Parliament to approve the amendments to the Regulations.

The Committee appreciated the work of the Department in updating the regulations and said it would decide on its response the following week. Members asked about the implications of the amendments for children who had been or were currently being prosecuted, under the old provisions.

Meeting report

Presentation by the Department of Justice and Constitutional Development (DoJ&CD) on Child Justice Act Regulations

Ms Ina Botha, Principal State Law Advisor: Legislative Development, DoJ&CD, said the changes to the Regulations were intended to bring it in line with the Child Justice Amendment Act of 2019, which amended the Child Justice Act of 2008. The most important provision of the Amendment Act was to raise the minimum age of criminal capacity from ten to 12 years of age. It also provided for assessing criminal capacity at a later stage, instead of it being done by the Inquiry Magistrate, it would now be done by the Child Justice Court (CJC).

Regarding the request by the Department of Health (DoH) for the person doing the assessment to have access to the charge sheet and the probation officer’s assessment report, Ms Botha said this would be added. Prosecutors would no longer be responsible for assessing the cognitive ability of the child, and the Director-General of DoH would have to maintain a list of qualified persons to do criminal capacity assessments.

The Department asked Parliament to approve the changes to the Regulations.

Discussion
Mr S Swart (ACDP) commended the Department for the hard work it did to bring the Regulations into line with the Amendment Act.

Mr W Horn (DA) also commended the Department. He said the presentation was very clear and would enable the Committee to make a proposal to Parliament.

Ms N Maseko-Jele (ANC) said she appreciated the Department’s work. She asked if the Department had any information to share regarding children between the ages of ten and 12, who had been prosecuted. She asked how these children would be treated; and asked if there was a plan to pardon these children or expunge the children’s records.

Ms Botha said her office did not have these statistics. She said such children could not be kept in police cells or prison under ordinary circumstances. She expected current cases against such children would be withdrawn, and ongoing prosecutions halted.

Dr Charmain Badenhorst, Director: Child Justice and Family Law, DoJ&CD, said prosecutions would be halted, but children prosecuted before the changes came into effect had been prosecuted according to the law at the time.

The Chairperson thanked the Department for updating the Regulations, and said it was important for the Amendment Act to be implemented as soon as possible. The Committee would consider its response the following week.

Committee affairs
The Chairperson said he wrote to the Department of Correctional Services (DCS) and to the suspended Kwazulu-Natal Regional Commissioner of Correctional Services, Mr Mnikelwa Nxele, to request documents related to the latter’s case, as raised by Mr Horn. This would allow the Committee to deliberate on the matter after the recess.

Mr Q Dyantyi (ANC) agreed, and said the matter should be dealt with comprehensively. He thanked Mr Horn for raising the matter.

The Chairperson said the Committee needed to do a review of decisions it had taken to ensure it was still on course, and to determine which decisions had and had not been implemented. There were also public submissions on the Prevention and Combating of Hate Crimes and Hate Speech Bill, which would take three days because of the large number of submissions received.

The meeting was adjourned.
 

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