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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
15 March 2005
CHILDREN’S BILL: JUSTICE DEPARTMENT BRIEFING
Chairperson: Ms J Tshivhase (ANC)
Documents handed out
List of Magistrates’ Districts and Offices in the Department of Justice
Department of Justice PowerPoint presentation on Children’s Courts Chapter in Children’s Bill
Department of Justice briefing on Chapter 5 of the Children’s Bill, 2003
The Chief Family Advocate introduced the Office of the Family Advocate, and explained its location in the court system, and its role in terms of the Children’s Bill. All Family Advocates were qualified mediators, and this was seen as one of their most important contributions in the application of the Bill.
Advocate P du Rand of the Department of Justice and Constitutional Development took the Committee through the provisions of Chapter 5 of the Children’s Bill. The Chapter was in four parts, dealing with the establishment, status and jurisdiction of the courts, court proceedings in the Children’s Courts, appointment and duties of the clerks of Children’s Courts and miscellaneous matters relating to publication of information and the issuing of Regulations regarding the application of the Bill. Members expressed considerable concern about the role of traditional leaders and courts within the structure of the Bill, and it was agreed that this would require further attention. Public submissions received on the Chapter were discussed. The admissibility of hearsay evidence was debated, and a question was raised as to the standard of evidence required in such a court. The Department reiterated that, as the Children’s Court remained a court of law, certain rules of evidence had to apply.
The Department of Social Development was represented by Dr M Mabetoa (Chief Director: Child, Youth and Family) and Mr P du Preez (Legal Advisor). Advocate P du Rand (Chief Director: Court Performance (Inland)), Ms P Moodley (Acting Director: Child and Family Law) and Ms C Kok (Deputy Director: Child Justice and Family Law) represented the Department of Justice and Constitutional Development. Advocate P Seabi (Chief Family Advocate) represented the Office of the Family Advocate. Advocate O Kellner (State Law Advisor [SLA]) was also present.
Department of Justice and Constitutional Development briefing
Mr du Rand explained that the briefing was in two parts, firstly addressing certain specific concerns about Chapter 5, and then a clause-by-clause explanation of the policy behind the Chapter. The Department had received a number of questions on what courts constituted Children’s Courts and where these were situated. He distributed a list of the various courts throughout the country, detailed by province. In the Western Cape, for example, there were 42 main courts, 7 detached offices, 10 branch courts and 27 periodical courts. The Department was in the process of re-looking at some magisterial districts to align them with the Constitution and the needs of the wards. There were currently 369 magisterial districts. There were also eleven High Courts distributed throughout the country, and the Department was busy with the Superior Courts Bill to ensure that there was one High Court per province. Existing Family Court centres were being strengthened in Durban, Cape Town, Johannesburg, Lebowakgomo and Port Elizabeth.
Ms Seabi said that the Family Advocates were a specialised service rendering support to the courts. They were legally qualified persons and admitted advocates, operating in multi-functional teams. The Family Advocate’s Office did investigations, compiled reports and submitted these to the court. They did not represent any of the parties to the matter, but acted in the best interest of the child, and were part of the movement to the concept of giving families an holistic service. Family Advocates were present in the headquarters of the magisterial districts of each province, and also maintained periodic offices and had some teams available to go on circuit. The Family Advocate’s Office was facing very serious human resources constraints in terms of support from social workers. The Department was looking at increasing capacity, and there was consensus on giving this priority.
Mr du Rand explained that, in terms of the oversight role of traditional leaders and courts, the powers of chiefs, headmen and chief’s deputies was conferred in terms of Sections 12 and 20 of the Black Administration Act, 1927. Chiefs’ courts had jurisdiction in determination of the validity, effect or interpretation of a will; determination of the custody or guardianship of minors; and determination of liability for maintenance. Appeals against decisions of indigenous courts lay with magistrates’ courts. Awareness campaigns and training for chiefs regarding children’s matters would be necessary in order to protect children’s rights. The Department was drafting a manual for Traditional Leaders in conjunction with the National House of Traditional leaders, and the Children’s Court issue would be included.
Chapter 5: Clauses 42 - 51
In general, Chapter 5 was modelled on existing legislation dealing with the various courts in the administration of justice. It was also drafted to accommodate possible future changes to court structures. The Bill retained Children’s Courts where every magistrate’s court was also a Children’s Court. It was not possible to incorporate the proposed two-tier Child and Family Court System before the adaptation of the court system to make the establishment of child and family courts possible.
Clause 42 dealt with the establishment of Children’s Courts and their presiding officers. It was suggested that the Committee might choose to amend Clause 42(1) by providing that every magistrate’s court "is" and not "must be" a Children’s Court and "has" and not "must have" jurisdiction, to bring it in line with existing legislation. The Bill also gave the Minister of Justice and Constitutional Development the power to define the area of jurisdiction of each Children’s Court and to increase or reduce such geographical area of jurisdiction after consultation with the Chief Magistrate in a region. Recognising the financial and human resource constraints facing the Department, Clause 42(5) allowed magistrates and additional magistrates to be designated for more than one Children’s Court, should this be required. Clause 42(7) distinctly discouraged the use of venues for proceedings of Children’s Courts in which criminal trials were normally held and encouraged the use of venues that were designed to put children at ease and to facilitate their participation in court proceedings.
Clause 43 provided that a Children’s Court was a court of record and had a status similar to that of a magistrate’s court. Since Clause 42 stated that every magistrate’s court, which was a court of record, was a Children’s Court, this had been included for the sake of comprehensiveness.
Clauses 44 and 45
Clauses 44 and 45 spelt out the issues over which Children’s Courts had jurisdiction and which children fell within the jurisdiction of such courts. Clause 44 provided for cases where there was uncertainty as to which court had jurisdiction, and that was the Children’s Court to which the child was brought. Regarding matters over which Children’s Courts might adjudicate, Clause 45 provided that a Children’s Court might not try any person on a criminal charge except a trial in respect of non-compliance with an order of a Children’s Court or contempt of such a court. As a Children’s Court was a ‘lower court’, it was important to note that Clause 45(3) provided that only a High Court or a Divorce Court have jurisdiction to deal with matters such as guardianship, artificial fertilisation of a child, the appointment of a parent-substitute, the departure, removal or abduction of a child from South Africa, the age of majority or the contractual or legal capacity of a child and the safeguarding of a child’s interest in property. Once fully-fledged Family Courts had been established, these issues might be dealt with at that level.
Clause 46 set out the order that a Children’s Court might make.
Clause 47 placed a duty on any court to refer a matter to a Children’s Court if it appeared to the court that a child involved in or affected by the proceedings in that court was in need of care and protection. The court could also order that the child be placed in temporary safe care, if this appeared to be necessary. There was a need to ensure that capacity was sharpened at a lower level, and the Department recognised the need to engage with the Department of Social Development in this respect.
Clause 48(1)(a) gave the Children’s Court the power to grant interdicts. The Department was planning to introduce intensive training programmes for Commissioners of Child Welfare in order to address this issue.
Clause 49 gave the Children’s Court the power to order that a lay forum hearing be held before it decided on any matter in an attempt to settle that matter out of court. Before a court decided to adopt this approach, it had to take all relevant factors into consideration, including the vulnerability of the child, the ability of the child to participate in the proceedings, power relationships in the family and the nature of any allegations made by any party.
In terms of clause 50, a Children’s Court might, before deciding a matter, order any person to carry out an investigation, and give the investigator the authority to enter premises, remove a child, investigate the circumstances of the child and record any information if so requested.
Clause 51 allowed a party to any proceedings in a Children’s Court to appeal against an order of such court to a High Court having jurisdiction in the same manner as an appeal against a civil judgement of a magistrate’s court is conducted.
Ms C Dudley (ACDP) asked for the Department’s comment on a suggestion that hearings not be suspended for longer than 14 days in clause 47(2)(a).
Mr du Rand replied that this could be included in Regulations or in a Practice Directive. The Department had no major problem with its inclusion in the Bill.
Mr K Morwamoche (ANC) asked about the role of traditional courts as some matters fell within the jurisdiction of the traditional courts.
Mr du Rand explained that it had not been deemed necessary to reflect this in the Bill as traditional courts and their powers were entrenched in the Constitution. Family courts had been mentioned because they had specific impact. As the courts were rationalised, more legislation would be introduced and this would deal with traditional courts in a more detailed way.
Ms J Chalmers (ANC) asked who would carry out the envisaged investigations.
Mr du Rand replied that the investigation would be carried out by any person that the court deemed fit.
Mr M Masutha (ANC) asked whether the clustering of existing magisterial areas was to maximise accessibility as he was concerned that if Children’s Court functions were moved to centrally located places, this would create a new problem.
Mr du Rand replied that the intention was not to centralise, but that the presiding officer would be given the power to sit in a number of districts. In terms of the Family Courts, there was an attempt to centralise to some extent to create a one-stop service centre to improve service delivery. It had never been intended to exclude accessibility. Every magistrate’s court was a Children’s Court. The Department was working on establishing a High Court in each province, and officers would go to outlying areas on a circuit basis.
Mr Masutha referred to the issue of guardianship and expressed concern that the High Courts were inaccessible. After children were orphaned, many people just carried on with their lives. If some of the powers were cascaded to the magistrate’s courts, there would be greater accessibility.
Mr du Rand replied that a representative of the Master’s Office would be in the Committee the next day, and was in a better position to answer this question.
Mr Masutha asked what the status quo was in respect of traditional courts. The Department was still unpacking the extent to which the Bill sought to amend customary law and he asked for clarity on the current relationship between traditional courts and formal courts. This question was reiterated by Ms Dudley.
Mr du Rand replied that the Department would prepare a full explanation of the relationship.
Mr Morwamoche accepted that the Constitution recognised traditional courts but said that this Bill appeared to sideline them. He felt that rural people would not be able to access Children’s Courts.
Mr du Rand replied that the Bill entrenched what was already contained in the Child Care Act, and all current jurisdictions were retained.
Mr M Waters (DA) asked what kind of criminal offences were excluded from the ambit of the traditional courts.
Mr du Rand replied that the criminal jurisdiction of the traditional courts was at a very low level.
Mr Waters asked how gender sensitive the traditional courts were in terms of maintenance, and whether traditional leaders received training in this respect.
Mr du Rand replied that the Department had embarked on a training programme for traditional courts, and that the Constitution was their guideline. Corporal punishment had been taken away, for example. The Department was working on a manual, and gender sensitivity would be included.
Mr Waters asked Ms Seabi to unpack the constraints in respect of social workers, and to give the Committee a better idea of the difficulties faced.
Mr du Rand said that the Department had been engaging with the Department of Social Development for a number of years. There had been a lack of social workers with the necessary expertise. To assist the Department of Social Development, ad hoc counsellors had been appointed from the Department of Justice and Constitutional Development budget. This was a real practical problem.
Ms Seabi said that the Family Court was a specialist court. The Family Advocate was a legal service rendered to various courts. Family Advocates were assigned per province and to go on circuit. The Department was lobbying the National Treasury for funding to increase its social worker capacity, as this was creating a bottleneck, with cases taking up to two years, for example in Limpopo province where there were no social workers.
Dr Mabetoa said that the Department of Social Development was aware that this was a problem. Provinces were experiencing problems with both a lack of funds and prioritising of services. Social workers who left were not replaced, but it was hoped that this would improve with the new retention strategy. It was also hoped that the new budget allocations would improve the situation. The Department would continue to engage with the Department of Justice on the issue.
Mr Waters asked when there were likely to be sufficient Family Courts to devolve the guardianship issue from the High Court.
Mr du Rand replied that it was hoped that, within two years, there would be a family court in each province and at all major sites.
Ms Dudley asked for an explanation of the jurisdiction of chiefs in terms of marriages, and whether chief’s courts and indigenous courts were the same. Mr du Rand replied in the affirmative.
Mr Morwamoche asked for the view of the State Law Advisor on the custom of "my child is your child". Who would decide on the child’s custodian as, under customary law, this would fall to the traditional authority?
Mr du Rand repeated that traditional powers were not being removed. It was, however, necessary to look at new paradigms, as there were new problem areas, such as the issue of child-headed households.
Mr Masutha asked for clarity on the additional powers granted under clause 48 as interdicts generally fell outside the jurisdiction of magistrates. Was this being confined to Children’s Court issues?
Mr du Rand replied in the affirmative, but said that the exception was domestic violence interdicts. The Bill was trying to build in powers for the best interests of the child.
Mr Masutha agreed with Mr Morwamoche that the Bill needed to express itself on the relationship between traditional courts as they executed powers in terms of these matters, and the Children’s Courts, in the same way as it expressed itself in terms of magistrate’s courts. Mr du Rand agreed, and said that he would revert to the Committee with a proposal in this regard.
Mr Masutha asked whether traditional courts were courts of record, and, if not, if appeals lay with magistrates, what was the nature of these proceedings?
Mr du Rand replied in the negative and said that this was part of the problem in absorbing traditional courts into the mainstream.
Ms Seabi said that the status of traditional leaders was clearly articulated in the Constitution and that the Department was training magistrates in diversity. The law would be applied sensitively.
Mr Morwamoche said that, under normal court procedure, notification of each traditional case had to be submitted to the magistrate’s court within 21 days, and asked whether this still applied. Mr du Rand replied in the affirmative.
Ms S Rajbally (Minority Front) asked for clarity on clause 49 and asked what would happen to a very young child with no parents. Would this go straight to the Children’s Court?
Mr du Rand replied that this was at the discretion of the presiding officer. It could be referred to a lay forum or go straight to court.
Chapter 5: Clauses 52 - 66
Clause 52 was very similar to what was contained in the present Child Care Act and other more recent legislation. Sub clause (2), however, encouraged new rules designed to avoid adversarial procedures and provide for appropriate questioning techniques for children in general, children with intellectual or psychiatric difficulties or with hearing or other physical disabilities, traumatised children and very young children.
Clause 53 set out who might bring a matter to a Children’s Court.
Clauses 54 and 55
Clauses 54 and 55 dealt with legal representation. Any party to a Children’s Court proceeding was entitled to bring his or her own lawyer to represent him or her at his or her own expense. A child involved in such proceedings was entitled to legal representation and could request the court to appoint a legal representative. If at the end of the day, no legal practitioner had been appointed for a child, the court might order that a legal practitioner be assigned to the child by the state, at state expense, if substantial injustice would otherwise result. In such a case, the clerk of the Children’s Court must request the Legal Aid Board to instruct a legal practitioner to represent the child.
Clauses 56 and 57
Clause 56 spelled out the persons who might attend court proceedings and clause 57 stated who was obliged to attend if so requested by the clerk of the Children’s Court in writing. The proceedings of a Children’s Court were closed and this was a confirmation of the current position.
Clause 58 listed the persons having the right to adduce evidence, and, with the consent of the presiding officer, to cross-examine a witness or address the court in argument.
Clause 59 dealt with witnesses and gave the clerk of the Children’s Court the power to summons a person to appear as a witness in court. It also provided for failure to comply with such a summons and set out the circumstances in which a witness was entitled to witness fees.
Clause 60 dealt with the conduct of proceedings and explicitly gave the presiding officer the power to control the conduct of proceedings.
Clause 61 encouraged a presiding officer to allow the child in question to become involved and to express a view and preference if the court thought the child’s age, maturity and stage of development allowed for such participation. It also provided for the use of intermediaries to assist a child giving evidence. The Criminal Procedure Act regulated the use of intermediaries and this Bill "piggybacked" on those provisions.
Clauses 62 and 63
In terms of clause 62, a Children’s Court could, for purposes of deciding a matter, order a designated social worker, Family Advocate, psychologist, medical practitioner or other suitably qualified person to carry out an investigation to establish the circumstances of a number of issues. The person required to carry out the investigation might be required to present the findings of the investigation to the court by testifying or submitting a report to court. In terms of clause 63, this report may be admissible as evidence if the presiding officer so agrees.
Clause 64 only allowed proceedings to be postponed on good cause and for a period not longer than 30 days.
Clause 65 gave the Children’s Court the power to monitor compliance with any of its orders, and gave any person the right to report any alleged non-compliance with a court order.
Clause 66 stipulated the persons having access to case records and the protection of court case records.
Ms Dudley asked whether it was necessary to provide for mediation in clause 60.
A submission from the Law Society of South Africa had recommended that the presiding officer be given the discretion to refer a matter for mediation in clause 60.
Mr du Rand replied that the provision already existed in clause 49, and that it was not necessary to mention it again.
Ms Seabi remarked that, if the role of the Family Advocate was properly understood, such referral could be made to them. This also covered the potential for introducing hearsay evidence, but in a professional way. All Family Advocates were qualified mediators.
Mr Morwamoche asked how the Department intended to ensure that prosecutors reminded complainants about what they had said.
Mr du Rand replied that it was important to note that Children’s Courts were not involved with criminal cases where prosecutors would be leading evidence. The proceedings would be much more informal.
Mr Waters asked how many courts had facilities such as one-way mirrors and closed circuit televisions for intermediaries.
Mr du Rand replied that the Department was trying to extend these countrywide. At present, approximately 200 main centres had the facilities, and they were part of the roll out process. The intermediaries were normally a pool of qualified people, and there were not enough of these. Intermediaries were now being appointed on contract to the Department.
A submission had been received that there was a concern than clause 55 did not allow for the constitutional rights of children, and a recommendation that the provisions as per the Law Reform document be reinstated.
Mr du Rand replied that clause 54 provided that any person could appoint any person to represent him at his own expenses. Notwithstanding this, a child was entitled to legal representation. This complied fully with the Constitution. He disagreed with the recommendation.
A submission from the Community Law Centre stated that previous versions of the Bill had allowed for hearsay to be admissible, and argued that its removal ran contrary to the move to make the court more user friendly. Its reinstatement was proposed.
Mr du Rand replied that he had tried to indicate that the presiding officer could bring any evidence to court, and referred to Ms Seabi’s statement about the Family Advocate. Children’s Courts had to remain courts of law, and safeguards had to be built in.
Mr Masutha said that this raised an interesting question about the different levels of proof related to the nature of the case at hand. Civil cases required a balance of probabilities, and criminal cases beyond reasonable doubt. He understood that a Children’s Court was trying to get as much information as possible about the circumstances. He referred to the use of "well-founded" in clause 47(2) and asked whether this was a new concept and what its legal standing was. Was the aim to introduce a different standard of proof in the Children’s Court, and were all precautions really necessary?
Mr du Rand replied that the problem with the previous version was that it had dispensed with any rule of evidence. There had to be a method on which to test evidence in a court of law, and the court had been given certain discretionary powers in this regard.
Ms Moodley said that there had been confusion between civil and criminal matters in the Law Reform Commission version, and the Children’s Courts had been given the ability to hear sexual offences cases, for example. This was the reason for the removal of the provision.
Mr Masutha asked whether this meant that the magistrate had the discretion to relax certain laws.
Mr du Rand replied in the affirmative, and said that as much as possible was left to the discretion of the presiding officer. He agreed that there was a need to look at the standard of proof. He was not amenable to dispensing with all laws of evidence.
Mr Morwamoche remarked that there had been complaints in the past about the quality of state legal representation and asked how this would be balanced.
Mr du Rand replied that he would leave the question for the Legal Aid Board to answer in full, but that there had been a drastic transformation process within the Legal Aid Board. Salaried representatives had now been appointed, and quality assurance had been built in, especially where there was a focus on specialised areas.
Ms Dudley said that concerns had been raised about the rights of disabled children and would this section facilitate communication?
Mr du Rand replied that the Department was trying to ensure that all courts were accessible to the disabled and those with special needs, but that this was a major challenge and part of the service delivery implementation plan in the Department.
Dr Mabetoa suggested that a statement might be required under "Principles", as it was a cross-cutting issue. Mr du Rand suggested that it be included in clause 42(7).
Chapter 5: Clauses 67 to 75
In terms of clause 67, the Director-General might appoint or designate clerks for every Children’s Court. There was a problem with funding, and the Department had been boosting projected functions.
Clause 68 gave the clerk of a Children’s Court the power to act on his or her own in cases where the clerk was of the opinion that a particular child might be in need of care and protection.
Clauses 69 – 71
Clauses 69, 70 and 71 were innovations allowing the Children’s Court to order that a matter be referred to a pre-hearing conference, a family group conference or to another lay forum. The lay forums, which included traditional authorities, were intended to try to settle matters by way of mediation out of court.
A clerk of a Children’s Court was also permitted to attend Children’s Court hearings and must arrange legal representation for a child if so requested by the court.
In terms of clause 74, no person might, without the permission of the court, publish any information on its proceedings if that would reveal the name or identity of a child who is a party to the proceedings or a witness.
Clause 75 empowered the Minister of Justice and Constitutional Development to make regulations on how the Chapter was to be applied in practice.
There had been a submission from the Community Law Centre that the provisions of the June version be incorporated into clause 67. The Department felt that this could be dealt with through the Regulations.
Mr du Rand said that training was a requirement for clerks, and that this was receiving attention from the Department.
The meeting was adjourned.