Child Justice Bill & Criminal Law (Sexual Offences) Amendment Bill: briefing by Department of Justice & Constitutional Developme

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE

Criminal Law (Sexual Offences) Amendment Bill [B50-2003]
Child Justice Bill [B 49-2002]

SUMMARY
The Department of Justice briefed the Committee on its role in ensuring that fewer children were placed in prison. The principles of the Child Justice Bill in meeting this objective was set out, particularly the concept of diversion.

MINUTES
The Chairperson said that the Committee was always concerned about children and youth in prison. One of its priorities was to ensure that children were not kept in prison facilities. They were determined to see that offending children were placed in safe facilities and not in prisons, even if the child had committed a very serious crime. The prison system in South Africa was not constructed to harbour children nor were correctional services staff trained to handle children in prison. The Committee was aware that Government faced many challenges in guaranteeing this but progress had to be made after eleven years of democracy. The Minister's recent announcement about the remission of sentences stated that children, youth, people with disabilities and the aged would be the first to be released from prison. The Committee was committed to the achievement of the same purpose. This was the underlying reason for this meeting so that the Department of Justice could brief them on the impact of these Bills for children in prisons. Correctional Services no longer worked alone but operated in a cluster that included the Departments of Safety and Security and Justice. The Committee wanted to be informed about the role of the Department of Justice in combating the problem of sending children to prisons.

Introduction
The newly appointed Director General of the Department of Justice, Advocate Menzi Simelane, thanked the Committee for giving the department the opportunity to make an input on these Bills which addressed problems concerning children The department acknowledged the seriousness of the issues and it was putting much effort into finding mechanisms to ensure that justice that was reasonably fair was attained in this context. The presentation would give insight on the impact that the department believed the Bills would have on society. There had been consultation with the all the departments within the cluster and the presentations would echo the views of these departments and show there was agreement on the subject.
The Director General introduced the delegation: Dr Khotso De Wee (Chief Operating Officer), Ms Bridget Shabalala (Chief Director: Court Services and Protection of the Rights of Vulnerable Groups), Ms Pat Moodley (Acting Director of Child Justice and Family Law), Mr Simon Jiyane (Deputy Director General: Court Services) and Mr Johan De Lange (Director of Legislation).

Presentation by Director of Legislation
Mr de Lange said that the Child Justice Bill had been introduced in Parliament in 2002 and the Criminal Law (Sexual Offences) Amendment Bill had been introduced in 2003.

He said that the ‘Sexual Offences’ Bill would have a very limited impact on children in prison. It dealt with substantive law and definitions of crime such as redefining the old common law definition of rape. It would provide protection to children already incarcerated in prisons. To some extent, there would be a measure of protection afforded to them in the sense that people would be more hesitant to commit sexual offences against those children, particularly with the extension of the definition of rape to include the rape of males and thus boys. Another proposal that was taken up by the Portfolio Committee on Justice and Constitutional Development was the register of sexual offences against children. The latest development on this register, was that it would probably be dealt with as part of the Children’s Bill and taken out of the ‘Sexual Offences’ Bill. It would afford some protection to children though it would be stretching to try and link that to children in prison. The Bill was not really aimed at protecting children in the justice system but was more aimed at the protection of all people, including children, against sexual offences.

The focus of the Child Justice Bill was to introduce a whole new child justice system in the country. The proposed Bill places a great deal of emphasis on the first 48 hours after a child was first apprehended. It also provided a series of alternatives to arrest such as taking the child home and giving him/her a written notice to appear at a subsequent proceeding as opposed to simply arresting the child. Police officers were enjoined to use one of these alternatives if it involved petty offences except in situations where they have very particular reasons for not doing so. The next step of the system would be get the children released into the care of their parents by police in as many cases as possible. The focus on the Child Justice Bill was to keep children out of the mainstream of the criminal procedure system and avoid having them sent to prisons and being detained in places other than places of safety.

There would be an individual assessment of each child and if the child was in custody, the assessment must take place within 48 hours after the arrest. The primary purpose of the assessments would be to establish the prospects for diversion of the case and to formulate recommendations regarding the release of the child into the care of his/her family or the placement of the child into an appropriate residential facility.

The Bill rested on a number of schedules of offences. The least serious offences were included in one schedule and in those matters, diversion was to be considered by a prosecutor. The aim of the Bill is to have diversion in as many cases as possible. "Diversion" was defined as a situation where the offence was of a certain limited seriousness and the child involved did not dispute that he/she had committed the alleged offence. As a result, the criminal justice system was not followed in dealing with the child. If a prosecutor did not divert the matter for any reason, notably due to the seriousness of the offence committed or if the alleged offence was listed in a schedule that did not allow for diversion, the matter would proceed to a preliminary enquiry. This proceeding must take place within 48 hours. There is an emphasis on diversion as the central feature of the new system. The Bill set out a whole range of diversion options. Certain serious cases such as murder and armed robbery were excluded from the operation of diversion.

Another focus of the bill is the wide range of sentencing options, including non residential, community based sentences, sentences involving restorative justice concepts such as restitution and compensation to the victim and finally sentences involving a residential element. The Bill made it clear that imprisonment should only be used as a measure of last resort and only for the shortest possible period of time. The use of imprisonment was further limited to a list of offences for which children may be imprisoned.

These Bills had emanated from the South African Law Reform Commission and had been considered by the Portfolio Committee on Justice and Constitutional Development, a committee which was renowned for looking into draft legislation in great detail, with true adherence to the principles of separation of powers. The Committee added to legislation as they deemed fit and appropriate but also in a very consultative manner.
Public hearings had been held on the Bills and the Committee had then embarked on a very comprehensive process of redrafting these bills. The process had continued up to just before the elections in 2004. After the elections, there was a new Minister of Justice who wanted to be involved in the process of reviewing the bills and their principles. Given the extent to which the Portfolio Committee had proposed revising both bills, the Minister wanted to take the extensively revised Bills to Cabinet before the process in Parliament was continued in the second half of this year starting in August.

Presentation by the Chief Director: Protection of the Rights of Vulnerable Groups
Ms B Shabalala said that in preparation for the passing of the bill, the Department of Justice, the National Prosecuting Authority, Correctional Services, Social Development, Education as well as the Legal Aid Board had initiated an inter-sectoral committee which sat every month to discuss issues pertaining to children, especially children awaiting trial. The main focus of these discussions was how to reduce their numbers in correctional facilities.

The Bill provided that a child awaiting trial should be brought to court every thirty days. This was part of the case management system to ensure that children were not left in prison for indefinite periods and also to reduce the pre-trial time. This did not apply to serious cases such as murder or robbery. The bill provided for alternative means of sentencing, including diversion, and alternative dispute resolution mechanisms. The Department worked with other entities to ensure that children were kept out of the criminal justice system.
The Bill provided for child justice courts which even before the Bill had been passed were now in existence. In bigger centres, there were juvenile courts where cases pertaining to children were held so that they would not be taken to mainstream courts. This meant that no additional resources would be required by the department to create these courts; however the nomenclature would have to be changed to reflect the purpose it served.

With regard to the alternative sentencing reforms, the residential facilities which the Bill mentioned were part of the additional care centres needed over and above the existing reform schools and care centres for children. It was the responsibility of the Department of Social Development to provide these care centres.

The Bill also provided for ‘one stop’ justice centres. These would be courts that would deal with children or juveniles who were in conflict with the law. The essence of these justice centres was the principle of diversion that worked to keep children out of the criminal justice system, ensure that they had no criminal records and that work was being done to reintegrate them into society. The reintegration techniques included schools of industry where incarcerated children received education like their contemporaries in society.
The Bill proposed a slight expansion on the grounds of automatic review which would have huge fiscal implications as more cases would be sent for review. However, very few children would be incarcerated or sentenced in the normal courts if the diversion programs were implemented.

The Bill required the State to provide funded legal representation for children. This again had huge financial implications for the department if every child went through the criminal justice system. Once the ‘one stop’ justice system, diversion programmes and other forms of sentences were properly entrenched, the use of legal representation would not be necessary.

The Bill also provided for monitoring mechanisms. The inter-sectoral committee already provided monitoring services to ensure that children were not languishing in jails but were being diverted. These mechanisms also monitored and assessed proper compliance with the processes. There were challenges associated with this system in the sense that sentenced children received education which did not extend to children awaiting trial because of the lack of adequate reform schools. All the departments worked together to ensure that they looked after children in conflict with the law.

Presentation by Director of Child Justice and Family Law
Ms Pat Moodley (Acting Director of Child Justice and Family Law) pointed out that the new Bill made provision for a child to receive a sentence of imprisonment as an absolute last resort. There were specific conditions under which a child would receive such a sentence: the child must be over the age of fourteen years at the time of the commission of the offence, the offence must be one of a serious nature and must not be an offence which was listed in Schedule 1 which dealt with petty offences, and the child must have failed previously on an alternative restorative sentencing option.

DiscussionMr N Fihla (ANC) commented that this application of justice was similar to the family group conference and victim-offender mediation seen in New Zealand. One problem inherent to Correctional Services was that it was the last link in the chain and therefore was the dumping ground of the justice system. Thousands of youths were brought to Correctional Services and dumped there. Magistrates had been identified as one of the problems because they employed selective justice and not diversion. They did not divert children to correctional supervision within their communities in order to avoid prison.

He noted that a pilot project had been introduced by the justice system in Port Elizabeth where prosecutors, security officials and correctional service officials (known as the cluster system) worked together. When MPs had visited the Port Elizabeth centre under the leadership of the then Justice Portfolio Committee Chairperson, Mr De Lange, it had been noted that there was a need for officials to man the project to ensure its effectiveness. If a child was arrested in that environment, the cluster would deal with it appropriately and divert the case. It appeared that although this pilot project had been recommended for the whole country, it had been abandoned. The outcome of sending children to prison was that they had no protection from older, hardened criminals and as a result imbibed criminal tendencies. It was critical that magistrates should be willing to apply the principle of diversion to ensure that child offenders were separated from adult offenders.

Ms Shabalala responded that diversion programmes were dependent on support structures in the communities. For instance, in the rural areas there were no non governmental organisations responsible for giving the justice system the kind of support it required by facilitating child rehabilitation programs. The National Prosecuting Authority was involved in developing a uniform standard for diversion, so that NGOs in all parts of the country could use the mode of diversion that was acceptable to everyone. Due to the lack of these facilities, a lot of children were not being diverted. The inter-sectoral committee operated to ensure that the operational structures in place in certain parts of the country such as the Western Cape Child Justice Forum, which monitored children awaiting trial, were made available in all provinces.

Ms Moodley explained the "preliminary enquiry" which had been referred to by Mr Fihla. The preliminary enquiry was a new procedure that had been included in the Bill. Immediately after a child was arrested, assessment took place and once a prosecutor had decided that there had to be a prosecution, the preliminary enquiry would then take place. All the people who played a role in the child's life including the prosecutor, the police investigating officer, the social worker who had been assisting the child with the assessment since arrest, and a shelter worker in a situation where the child is a street child would come together. The purpose of this conference would be to discuss what the best procedure for the child awaiting trial would be, and where would the child best be held. If the child at that stage was prepared to accept responsibility for the criminal deed, the diversion option would immediately be made available to the child.

She continued that this was the nature of the preliminary enquiry that was being piloted at various 'one stop' child justice centres in the country. Although there were three of such justice centres, there were many areas which did not have all the required services in one place but these services were to be offered in terms of the bill. Some time ago, all the departments involved in the inter-sectoral committee agreed to a protocol on how children awaiting trial would be dealt with. The provisions in the Convention on the Rights of the Child and those on the rights of the child in the Constitution had been developed into a Protocol. There was unanimous agreement from all the departments on the Protocol and they were all signatories to it.

Reform schools had been labelled as a place for deviant children. To get away from that notion and to make it more restorative in nature, the Bill referred to residential facilities in which children would be held. It was the function of the Department of Education to make sure that these facilities were sufficient in number and that they catered for children throughout the country. They had a plan in place which was not the duty of the Department of Justice to speak on.

Mr Moatshe (ANC) asked for clarification on the legal definition of a child. If childhood began when a child was fifteen years old, what happened to children under that age limit who committed serious offences? Were they sent to prison or diverted to some correctional facility? Could correctional centres also be referred to as places of safety?

Advocate De Wee responded that not all the provinces had places of safety. Once the Department had identified the affected areas, it would notify the Department of Correctional Services and other departments in the cluster to enable them make their own input in rectifying the situation.

Ms Moodley added that the Child Justice Bill did purport to change the existing common law position in respect of criminal capacity. The new position as proposed by the Bill is that a child under 10 did not have criminal capacity while there was a rebuttable presumption that the child under 14 years had criminal capacity. Between the age of 10 and 14, a prosecutor could prove to the court that the alleged child offender did have criminal capacity to understand the nature of the crime committed.

Adv Simelane said that it should not be interpreted to mean that just because a prosecutor could prove that a child did have criminal capacity and appreciation, the diversion option might not apply. Even though it could be shown that a child between the ages of 10 and 14 had criminal capacity, diversion would still be applicable to that particular child.

Mr M Phala (ANC) stated that magistrates seemingly dumped offenders in correctional services which made it difficult for the Department of Correctional Services to do its job. It would serve a better purpose if cases concerning child offenders were reviewed before sentencing them to prisons where there was no distinction between them and the adult offenders.

Adv Simelane responded that the Children’s Bill was not yet law. There was no specific legal provision that a magistrate had to apply except the Criminal Procedure Act without the amendment under discussion to it. They were asked to be appreciative of the issues and to use their discretion which bore direct relevance to the broader issue of transformation of the judiciary and the magistracy. The basis upon which the cases were considered would differ from individual to individual depending on if the child was from an environment that fully appreciated issues regarding child offenders. The quickness with which the Bill was passed would facilitate the question of specific implementation as far the magistracy was concerned. In future, in line with the broader transformation of the judiciary, there would be training on this.

Mr Jiyane said that the criminal justice cluster and government as a whole placed a very high premium on ensuring that the criminal justice system functioned. Some of the questions that had been asked related to the problem of lack of coordination which arose in the cluster. Currently, the cluster had strengthened its capability to interact with all the departments involved in the system. The broader perspective of the legislation would show that not only was the justice system reacting to crimes but also the emphasis had been shifted to prevention of these crimes. The cluster had realised that if it did not become involved at the preventive stage of crime it became increasingly difficult to deal with the ripple effect of crime. There was work being done towards ensuring that the justice cluster worked together with the social cluster. Also intersectoral Committees had been set up to deal with issues regarding to children in conflict with the law.

He continued that efforts were also being made to adopt an integrated approach on the matter of over crowding of correctional facilities. It would no longer be seen as the exclusive responsibility of the Department of Correctional Services. All the projects that had been initiated to combat over crowding were now being integrated through the case management system of the Department of Justice. One such project was the integrated justice court centre in Port Elizabeth which brought together all the relevant departments involved in the criminal justice system to promote coordination. The project, contrary to what Mr Fihla had said, had not been abandoned. The project was being run in forty four sites and had not been rolled out to other provinces precisely because the system which had to be used had not been procured. The department had to wait till the system was procured as well as the IT system that supported the case management in those areas. The present state of affairs was not final as the department this year had planned the roll out of those projects because that was the only intervention that really addressed the issue of coordination and over crowding in the prisons. There were also initiatives like the one stop justice centres of which there were currently three in the country. There was also the idea to ensure capacity was created within the judiciary that were sensitive to cases involving children.

The issue raised about the lack of uniformity in the courts in dealing with the diversion programs was true. There was no legislation yet that stated that magistrates were bound to divert children. Rather it depended on the use of their discretion. The Bill sought to entrench uniformity in the system that courts followed when dealing with children. It also sought to create capacity for handling such issues through some form of interaction, and which the courts could not be expected to create on their own.

There were programmes, which formed part of the inter-sectoral work, in which magistrates were trained to be aware of the importance of the diversion programme and the alternative sentencing model where sentences were not imposed for trivial offences. This all formed part of the change in the strategy of the Department of Correctional Services which needed to focus more on rehabilitation. The projects which were mentioned were being run on a national basis, that is, other departments were also involved. The Department had set up a structure through which all the departments met bi-monthly to monitor the implementation and improvement of mechanisms to combat crime and also to brainstorm on how certain problems might be dealt with. The emphasis on rehabilitation was one of the objectives of the cluster, and it had been suggested that the project which addressed over crowding be integrated into the project dealing with case flow management, as well as the social development initiative of children awaiting trial. There were mechanisms in place to monitor the implementation of decisions regarding the children.

Another observation which was made during the visits to the provinces was the lack of coordination of the structures responsible for the implementation of these programs on the ground. The Justice, Crime Prevent and Security Cluster (JCPS) had this year called on all provinces to address lack of coordination.

The Chair asked when the residential facilities would be ready and if a child awaited trial, would educational programmes be provided for that child? He also asked for clarity on the definition of a child

Ms Moodley responded that a child was defined as anybody under the age of 18 but what was being discussed was the change the Bill had made in respect of criminal capacity of the child.

The Chair said that the reason for his question was that the Committee had visited a place of safety in Cape Town and it had harboured children as young as nine years. In answer to why they were being held, some had been charged with house breaking and stealing trivial items such as sugar. These children awaited trial. How would the law categorise these children?

Ms L Chikunga (ANC) said that if sending children to places of safety was one of the alternatives to imprisonment, there were provinces that did not have these places of safety. Would these provinces be able to use the child's home as an alternative? The Bill provided that the child should have access to parents.
Children who committed crimes far from their home town were often left in prison for a long time without access to parents and all the facilities stipulated by law.

She noted that the Child Justice Bill stated that an adult was any person over the age of 21 while a child was any person under the age of 18. How were the children between the ages of 19 and 20 categorised?

The Bill also stated that 'no sentence of life imprisonment may be imposed on a child'. What would be the case where a child who was a serial killer got a sentence of 100 years from the magistrate? Would the magistrate be told that a sentence of 100 years was equivalent to a life sentence? The Bill referred to children held in detention in police custody. However, no mention was made to children being held in Correctional Services facilities. Was access to education included?

Ms Moodley replied that this was a Justice bill and until the child was sent to the Correctional Services, the provisions of this Bill would apply. The Correctional Services legislation needed to ensure that equivalent services were provided for children in their facilities.

Regarding the presumed vacuum between the ages of 19 and 21, it was a continuation of the common law position that childhood ended at the age of 18 and at 21 became an adult and had contractual capacity and the legal capacity a child had on attaining the age of majority at 21. There was really no vacuum in terms of legislative process because once a child attained the age of 18, they became subject to the Criminal Procedure Act which would apply if they committed a crime. These were protective measures that had been specifically included for children and which were based on the UN Convention on the Rights of the Child.

Adv Simelane added that one issue which needed clarification, was the implications of the minimum sentences Act. If a fourteen year old was charged with murder, the minimum sentencing Act would be considered very strongly because the presiding officer would regard it as relevant legislation to the problem. The other available legislation would be studied to see if there were other types of intervention that were applicable.

Ms W Makgate (ANC) noted that it might sound racist, but in the justice centres, mostly black children were found. Were the sentencing facilities meant for a particular race group? The issue of monitoring was very important in this regard. There were reports that magistrates arbitrarily imposed sentences on children who were perceived as not being knowledgeable in court proceedings. How were these magistrates monitored? It was good to have nice plans but their implementation had to be monitored especially in the rural areas where these problems occurred in a higher proportion.

Mr Fihla asked how far the Department had gone in applying the New Zealand model of victim-offender mediation and the family group conference in South Africa. If a child committed an offence in New Zealand, the families involved were summoned for the purposes of reconciliation after which the offending child went home. The problem with South Africa as many other countries was that cases were seen as between the State and the offender rather than the victim and the offender. If the concept of family group conference and victim-offender mediation was to be applied effectively in South Africa, no child would be sent to prison.

The Chair noted that some of the follow-up questions had already been responded to adequately by Adv Jiyane, such as the question on lack of coordination in the cluster. The observation made by Ms Makgate was not racist but was a finding by the Human Rights Commission. The HRC had found that in all 241 facilities which had children in their prisons, there had not been any white children. First hand experience had confirmed this when he had visited a prison. There were 53 children between the ages of 14-18 and not a single white child was among them. The racial issue was a reality. He had been briefed by the officials of the prison he visited that whenever a white child was arrested, the prosecutor, the social worker and the magistrate would ensure that those who were responsible for the welfare of the child were contacted so that the child did not sleep in prison.

Adv Simelane said that the Chair had correctly articulated some of the difficulties that were faced. One of the issues regarding coordination that the Department of Justice had to look into was the orientation of the officials who worked in that sector. Currently, a prosecutor viewed his/her job as being to ensure that an accused person was sent to prison. This was the approach from time immemorial. Incarcerating an offender was seen as an achievement and as a necessary outcome. The logic did not change when the situation involved children. It did appear to the Department of Justice that it was important that the prosecutor was trained to appropriately consider how the diversion option could be applied to all. On the issue of the treatment of white children, the Department would use statistics to find out how many children from the different race groups faced charges so that it can monitor the facilities that were provided and the discrepancies. On the question of ten year olds who were currently in prison, there were more diversion pilot but the relevant law currently was the Criminal Procedure Act. The passing of the Child Justice Bill was critical for the purpose of solving this problem.

With regard to children who could not afford bail, other factors had also been identified as being responsible for it. In some cases, parents refused to take their children home because the parents were tired of their constantly offending children and preferred that the law would deal with the problem. While this position may reflect the position of a particular parent, it should be seriously considered and should not be used as an excuse to detain a child. The children in that situation might have to be dealt with from a social development perspective and have the diversion option applied to him/her. It should not be interpreted to mean that parents in such situations were giving away their children but rather that they lacked the capacity to be cooperative with the law.

Also, bail which was prohibitory in nature was imposed making it impossible for the offenders to afford it and as a result they were left in detention. The training of the judiciary became relevant here as bail was currently administered at the discretion of the Magistrates. It would be difficult for the Department of Justice to argue that bail should not be imposed at all. Maybe the diversion option should provide a mechanism that served as a substitute for bail, so that when the families concerned in a crime situation met, the diversion procedure would include the procedure in the New Zealand model. If this model was applied, the need for bail might not apply and also might prevent the child from being sentenced to prison. The sooner agreement was reached on the passing of the Bill, the better as the presiding officers would have no choice but to apply it.

The Chair asked Adv Simelane what the present status of the Child Justice Bill was.

Mr de Lange responded that it was expected that the bill would return to Parliament during July or August. It was being redrafted to a large extent and it would depend on if the new Minister was supportive of all the new principles being introduced in the Bill. It would then be entered into the parliamentary process soon.

With regard to how nine year old children would be categorised, he explained that in terms of the proposal, a child did not have criminal capacity up to the age of ten years, and the criminal justice system would not apply. With regard to why a life sentence would not be imposed on children, it underscored why the Portfolio Committee was reviewing the issue seriously, to see if an alternative could be formulated.

The recurring theme was the issue of the operation of Magistrates. There was also another piece of legislation in the pipeline, the so called South African Justice Training College Bill, which was recently discussed at the Colloquium. The judiciary was independent and the judiciary could not dictate how it ran its affairs. The National Prosecuting Authority was subject only to the Constitution and the law. The Bill provided for education for the judiciary and also for the prosecuting officers, which was an ideal vehicle to address the issues that were raised. If a holistic view was taken of the issues under discussion, it would be observed that there was a much bigger transformation process taking place.

The Chairperson asked how old the Child Justice Bill was and what were the obstacles to the Bill being passed?

Mr de Lange responded that the Child Justice Bill had been introduced in 2002. The issues that were raised by the Portfolio Committee related to what boundaries should be imposed in assessing criminal capacity and alternatives to sentencing. Also a big issue was that the problems did not solely relate to the duties in the Justice Department but also to other departments in the cluster. Therefore it did not serve any useful purpose if the Justice Department said that children be sent to places of safety if there was no commitment in undertaking the tasks set out in the Bill. Passing such a law was of no use if it could be implemented. Prior to the introduction of the Child Justice Bill, very comprehensive exercises were undertaken that included a detailed implementation plan. There were also the budgetary constraints which affected the execution of the Bill. Also there was the issue of separation of powers, in which the three arms of government did not agree with all the principles set out in the Bill. These were the main issues that affected the time frame of passing the bill. It was better to have a Bill that could solve the problems for which it was passed, rather than rushing it and having to come back to Parliament because it was not workable.

Mr Fihla said that what had not been discussed was that in prisons, youths were often the victims of sexual offences. It was better that the youths were diverted and not mixed with adult offenders because once they went to prison they were criminalised and sodomised.

The Chair said that funding for legal representation for children was mentioned. Was that a new structure as there already existed the services of the Legal Aid Board which from their experience appeared not to be made available to children in detention. These children who were sixteen years or younger did not know what legal procedure entailed. The Department of Justice had spent millions on legal aid boards yet from interacting with heads of the legal aid boards in the provinces, complaints were made about lack of funds. However making funding available for legal representation for children should be treated with a greater degree of seriousness. Some of the children in the Free State who were interviewed said that they had little or no legal representation.

Adv Simelane responded that it was not a new structure and that the current Legal Aid Board should be providing legal representation. The point highlighted by the Chair was related to the role of the prosecutor. What kind of prosecutor prosecuted a child without legal representation? It did not make sense. The Department of Justice in its re-orientation program would raise this issue so that the prosecutors would understand that their role was not to send people to prison but to offer accessible justice which included ensuring that legal representation was available to children. Prosecuting children who did not have legal representation did not serve the purpose of the justice system though it would achieve easy conviction. The Department would engage on this with the National Prosecuting Authority as ideally, every child should have legal representation. The heads of legal aid boards in the provinces would also be consulted with a view to dedicating resources and making them available to affected children. A report on the process would be given back to the Committee.

Mr Phala said that there was poor awareness in the rural areas about the availability of legal representation from the Legal Aid Board. He asked that the Department make an effort to increase awareness in those areas.

The Chair commented that Mr Phala was a veteran from a very rural area in Limpopo and spoke from experience. The Committee of Correctional Services had also visited courts during the parliamentary recess. The courts had no interpreters to interpret what the Magistrate said to the offenders. However, it was pleasing to observe that the Justice Department took the matter seriously and also that a delegation consisting of senior officials had come to brief the Committee. The presentation was also timely as it was ‘Child Protection week’. He appreciated the emphasis on prevention by Advocate Jiyane. It was duty of everyone to ensure that children were kept out of the courts.

The Chair thanked the Department of Justice for their presentation and said that the Department would be consulted periodically for a progress report.

The meeting was adjourned.