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JUSTICE PORTFOLIO COMMITTEE
19 March 1998
BRIEFING BY MINISTER ON RE-ENACTMENT OF S29; MAGISTRATES’ AMENDMENT BILL: DELIBERATIONS
Document handed out:
Magistrates Amendment Bill [B92-97]: proposed amendments
Briefing by Minister on re-enactment of Section 29
The Minister of Justice, Mr Omar, briefed the Justice Portfolio Committee as well as members from the Welfare Portfolio Committee on Section 29 of the Correctional Service Act. He stressed that Section 29 should be re-enacted not in the Correctional Services Act but as part of the Criminal Procedure Act.
The Minister informed the committee that a project had been launched by the Welfare Department called "Project Go" which aimed to move children from prison cells to reformatory institutions. Through this project, Section 29 should fall away completely.
In South Africa, between 1 200 and 1 400 children were in prison and awaiting trial, according to the Minister. The figures for children in prison were given per province:
KwaZulu Natal – 322 in prison and 132 awaiting trial
Gauteng – 243 in prisons and 47 awaiting trail. The province has one secure centre facility.
Northern Province – 72 imprisoned
North West Province – 58 imprisoned and 20 awaiting trial
Mpumalanga – 125 imprisoned
Free State – 55 imprisoned
Eastern Cape – 126 in prisons and 30 awaiting trial
Western Cape – 317 imprisoned. The province has one secure care facility.
The Minister went on to say that the problem with children in prisons was that half of the total amount were serious offenders, which falls under Schedule 2 of the Criminal Procedure Act. These crimes include murder, rape and assault to do grievous bodily harm. Sufficient safety care facilities did not exist in which to place these children. Although two of the major provinces had secure care facilities, it was not sufficient. For example, the educational needs as well as the material needs of these children needed to be met. The provinces were not ready to cope with the problems that would ensue from a mass release.
The Department of Welfare had stated that by the end of May sufficient facilities would be available to care for those children. However , from the statistics given, it seemed clear that it would not be able to do so. The Department of Justice believed that those centres would only be available by the end of the year. Another problem with the secure care facilities was that those facilities were not available where the children lived. It would not be in the best interest of the child to move the child to a different location.
Minister Omar stressed that it was not the magistrates’ fault that the children were imprisoned as they had no other option. The problem was exacerbated by the delay in finalising awaiting trial cases which was caused by bad case management, incomplete dockets and cases not investigated properly.
After the Minister’s briefing, the members of the committee gave their input on the matter. Mr Gibson (DP) emphasised that no child should be imprisoned. He blamed the old regime for not creating secure care facilities. He suggested a tagging procedure with a proposed timetable for cases so as to speed up the cases. The Democratic Party moved for the re-enactment of Section 29 into the Criminal Procedure Act.
Mr Hofmeyr (ANC) stated that the children become worse offenders when they leave prison. He added that one cannot have a facility without proper security. The ANC supported the re-enactment of Section 29 into the Criminal Procedure Act.
Mr Mzizi (IFP) said that one should not lose sight of the age of the children who were imprisoned. He felt that corporal punishment should be brought back as there were no facilities available for the children and parents had no control over their children. The Minister responded that laws must conform with the Constitution regarding corporal punishment.
Mr O’ Malley (IFP) stated that part of the problem was the incomplete dockets. He agreed with Mr Gibson regarding the time-tabling for cases pending. He said that the IFP supported the re-enactment of Section 29 into the Criminal Procedure Act.
Ms Gandhi (ANC), from the Welfare Committee, asked whether the 1 200 children were being kept legally, according to Section 29. She said that children who committed petty crimes should not be imprisoned, but must have some other form of rehabilitation. The Minister responded to Ms Gandhi by saying that the six case studies his Department were dealing with personally were guilty of a crime.
Ms Turok (ANC), from the Welfare Committee, stated that the other departments must cooperate with the Department with regard to the secure care facilities.
Ms Gandhi suggested that Section 29 first be reviewed. She felt it should be tightened up and there should be a timeframe of one and a half weeks for cases.
Magistrates Amendment Bill [B92-97]: deliberations on proposed amendments
On the new Clause 3, the committee unanimously accepted that the words "magistrate with the rank of chief magistrate" should read instead "person occupying the office of chief magistrate, including an acting chief magistrate" as Mr de Lange, law advisor to the Committee, suggested that the wording was vague.
The same principle for Clause 3(b) also prevailed. Mr O’Malley (IFP) queried if the Baccalaureus Legum was a requirement for all magistrates and he was informed that the Judicial Matters Bill makes provision for an ordinary magistrate to have a three year law degree or similar law degree.
The amendment in clause 3(c) was accepted. Mr Mzizi (IFP) suggested that "unable to carry out the functions" should include a direct reference to the mental or physical ability to perform such duties otherwise the wording was too vague. His suggestion was noted by the chairperson.
Regarding the new Clause 3, Mr Hofmeyr (ANC) asked whether the time on the Bench should be reflected in the amendment. Mr de Lange, law advisor to the Committee, said that that is currently the situation but that they wanted to move away from it.
The committee had a brief discussion concerning the age of the magistrate in Clause 4. Mr Hofmeyr also suggested a voluntary retirement plan. Regarding the appointment of a magistrate, the ANC and IFP wanted the Minister of Justice to be distinctly separated from the appointment of a magistrate. But the Chairperson, Mr de Lange, informed the committee that it was the Magistrate’s Committee itself that provided the Minister with a list of candidates thus limiting the Minister’s powers.
The Chairperson also stated that the country was trying to move away from the distinction between judges and magistrates. The structure had to be reformed in such a manner that only judges existed and he referred to Germany as an example.
Concerning Clause 5, Mr Hofmeyr stated that the clause should read "in" and "after". The Chairperson said that three options were available. Mr Mzizi said that "after" must be an option; it must be a built-in proviso for a deadlock.
The Chairperson said that he saw subsection 3 of Clause 5 as unnecessary, as subsection 2 does provide the duties of the Magistrate. Mr Hofmeyr disagreed with the Chairperson on that point. He said that subsection 3 was necessary because subsection 2 does not give the magistrate the power to do everything. He added that the court would have a problem interpreting that section. No consensus was reached regarding subsection 3 and the Chairperson said that he would consult with the Minister. The committee thinks that it would be able to vote on the amended Bill in two weeks’ time.
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