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

Meeting report

The Chairperson welcomed Members and the delegation from the Department of Justice and Constitutional Development (the DoJ & CD) who were in attendance.

She explained that the purpose of the meeting was for the Committee to be briefed by the DoJ & CD regarding the matter of obtaining the approval of Parliament of the Amendments to the Regulations in terms of section 97(2) of the Child Justice Act 75 of 2008.

She noted the apology tendered by the Minister and the Deputy Minister. She appreciated that Members attended the meeting on short notice, as it is prudent for the Committee to continue with the process pertaining to the Amendments to the Regulations.

She noted that it is the first meeting of the Committee since the devastating rainfall and floods that affected the province of KwaZulu-Natal and some parts of the Eastern Cape, which had led to the loss of lives and destruction of human settlements and infrastructure in the affected communities. She expressed the Committee’s condolences to the families that have been affected and expressed an urgent need for Parliament to ensure that urgent interventions are implemented to save the lives and livelihoods of people, along with the mobilisation of resources to speedily counteract the damage.
Opening remarks by the Chairperson:

The Chairperson provided context to the briefing that the Committee would be receiving. The Child Justice Act 75 of 2008 was amended by the Child Justice Amendment Act 28 of 2019, which necessitated the amendment of the Regulations, most of which are of a consequential nature to align them with the amendments’ changes. Section 97(1) of the Child Justice Act empowers the Minister of Justice and Constitutional Development to make Regulations after consultation, where appropriate, with Cabinet members responsible for social development, safety and security, education, correctional services, and health. Section 97(2) of the Child Justice Act provides that Regulations referred to in subsection 97(1) must be tabled in Parliament for approval. This is the reason for the briefing to seek the approval of Parliament of the amended Regulations.

Briefing by the DoJ & CD on the Amendments to the Regulations of the Child Justice Act:

Dr Charmain Badenhorst, Director: Family Law and Child Justice Directorate, DoJ & CD, introduced Ms Alta van der Walt, State Law Advisor, DoJ & CD, who presented the briefing.

Summary of the briefing:

Ms van der Walt explained that the Child Justice Act 75 of 2008 establishes a criminal justice system for children who are in conflict with the law and was amended by the Child Justice Amendment Act 28 of 2019.

The amendments brought about by the Child Justice Amendment Act included the increase of the minimum age of criminal capacity from 10 years to 12 years, while the rebuttable presumption is retained for children who are older than 12 years, but younger than 14 years. In addition, the amendments outline how to deal with a child, depending on the age of the child, from the time of arrest to assessment, preliminary inquiry and until trial at the Child Justice Court. There was a removal of the requirement that prosecutors must consider the cognitive ability of children when determining whether or not to prosecute a child since they are not equipped to do so. The amendments provide that the criminal capacity of the child will only be addressed during a plea and trial in a Child Justice Court, and not during the preliminary enquiry and for diversion purposes. The amendments prohibit a magistrate to dispense with a pre-sentence report where the court may impose a sentence involving compulsory residence in a child and youth care centre or imprisonment.

Section 97(1) of the Child Justice Act empowers the Minister of Justice and Constitutional Development to make Regulations after consultation, where appropriate, with Cabinet members responsible for social development, safety and security, education, correctional services, and health. The provisions of the Child Justice Amendment Act necessitated the amendment of the Regulations, most of which are of a consequential nature to align them with the amendments’ changes. Section 97(2) of the Child Justice Act provides that Regulations referred to in subsection 97(1) must be tabled in Parliament for approval. It is envisaged that the draft regulations will come into operation on the same date as the Child Justice Amendment Act, possibly by no later than 30 June 2022. The date is not yet determined as approval from Parliament is necessary, after which a date can be determined.

Discussion

The Chairperson thanked the delegation from the DoJ & CD for the briefing. She appreciated the clarity with which the information was presented to the Committee. The presentation indicated the in-depth consultations that took place, and there had been no comments from various stakeholders who were in full support. She asked whether the DoJ & CD had any remaining concerns in respect of the amendments to the Regulations as presented to the Committee.

Ms van der Walt responded that there are no other amendments outstanding, and there are no concerns from the side of the DoJ & CD regarding the amendments as presented.

The Chairperson stated that these Regulations are important to ensure that the children who are in conflict with the law are treated fairly at all times. She expressed the Committee’s appreciation for the presentation and the information that has been provided to the Committee. The Committee will take the proposed timeframe under consideration as presented by the DoJ & CD. She stated that Members will deal with the expectations of Parliament under section 97(1) of the Child Justice Act 75 of 2008 during the Committee’s deliberations on this matter.

Mr E Mthethwa (ANC, KwaZulu-Natal) asked for clarity on why one of the legal terms was written as a magistrate when that it is the lowest area of intervention in terms of the law. He noted that the words need to be amended and clarified to be clearer and more straightforward.

Ms van der Walt responded that the Child Justice Amendment Act has removed the term ‘inquiry magistrate’ from a couple of provisions and this was replaced with ‘the Child Justice Court’ to bring the Regulations and the Child Justice Amendment Act into alignment with one another.

Dr Badenhorst stated that before the amendments the child’s criminal capacity could be determined during the preliminary inquiry process, and this was taken out by the Child Justice Amendment Act., which then necessitated the change of terms from ‘inquiry magistrate’ to ‘the Child Justice Court’. The amendments provide that the criminal capacity of the child will only be addressed during a plea and trial in a Child Justice Court, and not during the preliminary enquiry and for diversion purposes.

The Chairperson thanked the delegation for the presentation and thanked the Members in attendance for their contributions.

The meeting was adjourned.