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JUSTICE PORTFOLIO COMMITTEE
19 August 1998
CRIMINAL PROCEDURE AMENDMENT BILL [B59-98] & PUBLIC PROTECTOR AMENDMENT BILL [B79-98]: HEARINGS
Documents handed out:
Submission by Human Rights Committee
Submission by Community Law Centre
Submission by South African Human Rights Commission
Submission by NICRO
Submission by Public Protector’s Office
Submissions were presented on the Criminal Procedure Amendment Bill by the Human Rights Committee, Community Law Centre, South African Human Rights Commission and NICRO. A representative from the Public Protector’s office presented a submission on the proposed amendments to the Public Protector Act.
Criminal Procedure Amendment Bill [B59-98]
Human Rights Committee
Ms Proudlock presented the HRC’s submission to the committee. The HRC stated that it could not condone the retention of a section which allows the courts to order unconvicted children to be detained in prison.
The Constitution provides in section 28(1)(g) that every child has the right not to be detained. Detention of children is allowed only as a measure of last resort and in such cases, only for the shortest appropriate period of time. In addition to the rights which a detained child has under section 12 and 35 of the Constitution, s/he has the right to be kept separately from adults and to be treated in a manner and accommodated in conditions that take account of his or her young age.
The HRC stated that in many instances, the imprisonment of children is occurring in violation of the Constitution and in violation of South Africa’s international obligations: Detention in prison is ordered when other placement options are available; children spend inappropriately long periods of time awaiting trial in prison; separation from adult prisoners is not guaranteed; and the Department of Correctional Services does not have the staff, resources or facilities necessary to ensure that children’s rights are protected and that children are kept in conditions which take account of their young age.
All efforts should therefore be concentrated on ensuring that children are not detained in prison.
The HRC acknowledged that many of the problems raised in its submission relate to implementation and cannot easily be addressed through legislation. However it had decided to bring the problems to the attention of the Justice committee in the hope that the committee would use its oversight powers to vigorously monitor the state departments and officials charged with implementing the legislation and government policy.
The HRC proceeded to go through the bill in detail, making recommendations for possible amendments.
Committee members asked whether and how a monitoring mechanism could be provided for in legislation; what the HRC thought about the inclusion of an expiry clause in the bill; why the HRC suggested that the maximum period for detention in police cells for children under 14 should be 24 hours instead of the Constitutional maximum of 48 hours, what the HRC suggested should be done to resolve the disagreement between the Correctional Services and Welfare Departments; and whether it was fair to hang the threat of a high court action over the heads of magistrates.
Ms Proudlock said that the monitoring mechanism created in the Justice circular mentioned in the submission, could be formalised by incorporating it into the bill or alternatively, the Justice committee could make use of a committee resolution.
The Chairperson, Ms Jana, expressed the view that a committee resolution was probably the best solution.
Regarding Mr O’ Malley’s (IFP) question on an expiry clause, Ms Proudlock replied that the experience with the expiry clause in the 1996 Act had not been good in that the section had been extended in 1997 without the Welfare committee of NGO’s being asked to comment, and the section had subsequently not expired in May 1998 as was intended due to reliance on a drafting error. However, the expiry clause had served to place pressure on the various government department’s involved to concentrate on establising secure care fracilities. The HRC would support an expiry clause if the clause was drafted so as to ensure that the section was only extended after extensive review of its impact and implementation , and then only for a period of 6 months at a time.
In answer to Ms Jana’s (ANC) question about the 48 hour rule: Ms Proudlock replied that the Constitution provides in section 35 that arrested persons may be detained in police cells for a maximum period of 48 hours. Section 28 of the Constitution gives children additional protection to the protection afforded under section 35 on account of their young age. Given the small number of children under 14 who are arrested, their young age and the fact that they can be detained in Welfare institutions pending their first appearance, the HRC stated that the maximum should be set at 24 hours.
Regarding Ms Camerer’s (NP) question on the disagreement between the Correctional Services and Welfare Departments, MS Proudlock suggested that the Justice committee should call the relevant role players to come and account to parliament in order to facilitate the finding of a solution. It was unacceptable that the lack of co-operation between state department’s should be allowed to prevent a solution being found.
Mr Mzizi (IFP) expressed disquite at the words in the justice circular which said that a magistrate could face a high court application or costs if he or she does not comply with the circular.
Ms Proudlock said that it was not all together clear whether the specific wording referred to meant that the Department would take a magistrate to the High Court if he or she failed to comply with the circular or the accused child or public interest groups could launch a High Court application. Ms Proudlock said that appropriate action should be taken against magistrates who consistently breach provisions of an Act of Parliament as is happening with the current section 29.
Community Law Centre
Ms Sloth-Nielsen presented the submission. She explained that she was involved in drafting the juvenile justice draft legislation as a member of the South African Law Commission’s task team. The discussion paper with the draft legislation has just been approved by the Law Commission and will be released soon. This will be followed by a Law Commission report. Ms Sloth-Nielsen has been extensively involved in monitoring the situation of children in prison.
Ms Sloth-Nielsen re-iterated the HRC’s call for independent monitoring to be continued. It was sad that the Department of Welfare had stopped the funding to NGOs who are prepared to monitor.
She said that the Community Law Centre believes that the inclusion of the new provisions in the Criminal Procedure Act is to be welcomed. It has long been said by experts and academics that section 29 is misplaced in the Correctional Services Act and should be in the Criminal Procedure Act where all the related provisions are to be found.
Regarding detention in police cells after first appearance, it must be clear that this is not allowed. Ms Sloth-Nielsen said that it is CLC’s opinion that this issue is sufficiently addressed in the bill.
Although it was clear that section 29 could not simply fall away on 10 May, steps to reduce the number of children in prison should be prioritised.
The CLC believed that it was important that the bill should not deviate too much from section 29 as this might lead to confusion amongst the police and court officials applying the law.
CLC expressed support for the provision which restricted the detention in prison provision to children 16 and 17 years old. The effect was basically to lif the age from 14 to 16. The number of children 15 years old and younger is not that high. The removal of the discretion clause regarding types of offences which warranted detention in prison was a positive step. The discretion had been applied in a very individualistic way by magistrates. By targeting serious offenders 16 and 17 years old, the number of children in prison will be substantially reduced.
Ms Sloth-Nielsen said that the CLC would support time limits for children’s trials. In monitoring, they have encountered many instances where children’s cases have been remanded for periods over 6 months at a time.
A committee member asked that in the event of a speedy trial provision kicking in, where should the child be released to?
Ms Sloth- Nielsen replied that the existence of a speedy trial provision would place pressure on the prosecutors and the courts to prioritise children’s cases and thereby ensure that their trials are completed within the specified period. When the time period goes beyond the set maximum, the court should be obliged to release the child from prison. The trial will however continue. A period of 6 months for district court and 9 months for regional court cases was suggested.
Ms Jana (ANC) asked whether housebreaking and arms and ammunition offences should be added to the schedule.
Ms Sloth-Nielsen said that it is important, in order to avoid confusion, to stick to the existing schedule. Furthermore, including housebreaking will open the door to a large number of children. There is no distinction between the various degrees of housebreaking.
In closing, Ms Sloth-Nielsen referred to the Attorney-General’s (Pretoria) submission where he says that there is a shortage of alternative facilities in his province. Ms Sloth-Nielsen disagreed with his statement, saying that there were in fact alternative placement options in Gauteng, particularly in comparison to the Western Cape.
South African Human Rights Commission
The submission was presented by Mr Dawid de Villiers. The Commission requested that in considering the bill, the members of the committee should apply their minds to the increased age limit and the lack of available alternative facilities.
The bill should place an express obligation on the court to request oral evidence.
The use of probation officers should be encouraged. A probation officer is in a better position than the prosecutor to accumulate the necessary evidence and to make a preliminary assessment for the best placement option for the child. The Commission suggested that the role of the probation officer should be built into the operation of the section.
Regarding the 14 day review provision, the Commission pointed out that the provision was commendable, but implementation appears to be a problem. A provision to prevent remands longer than 14 days needs to be incorporated.
The monitoring mechanism provided for in the Justice department circular should be formalised in the bill. The committee could consider allocating some monitoring functions to the Judicial Inspectorate.
The Commission concluded by asking the committee to include a provision specifying that the bill should be reviewed by Parliament by a certain date.
The Chairperson allowed Ms Sloth-Nielsen to ask a question. Ms Sloth-Nielsen said that the Department of Welfare is currently increasing the rate of appointment of probation officers. However, there are not yet enough on duty to formalise the probation officer step in the bill. In Ms Sloth-Nielsen’s opinion, it is too early for such a provision.
Ms Jana (ANC) asked the Commission whether its Committee on Children would be able to take on the monitoring function.
Mr de Villiers said that although monitoring would fall within its mandate, the Children’s Committee had other tasks and does not have the resources necessary to undertake the type and extent of monitoring which is needed.
Public Protector Amendment Bill [B79-98]
The committee then heard a submission from the Public Protector’s Office on the Public Protector Amendment Bill.
Criminal Procedure Amendment Bill [B 59-98]
Mr Muntingh presented Nicro’s submission. NICRO had undertaken a study of four prisons in an effort to present the committee with up to date statistic on the number of children and how the bill will impact on these numbers. The submission presented the findings of the research.
Mr Muntingh stressed that it is important that any monitoring mechanism which is set up must have the necessary authority.
Mr O’Malley (IFP) asked what the average time spent awaiting trial in prison was for adults.
Mr Muntingh replied that it ranged between 6 and 12 months.
Mr Solomons (ANC) asked how the ages of the children in the study had been established.
Mr Muntingh replied that they used the warrants and Correctional Services records.
Ms Jana (ANC) asked how many children will need to be placed in Welfare institutions.
Mr Muntingh said there will be an estimated 55% reduction.
In answer to the question of whether there would be enough alternative facilities, he replied that this was a difficult question to answer and varied per area. Project Go should be called in to give the committee this information.
Mr Mzizi asked how many of the children in prison are female. The reply was that in the NICRO study, there were only 2 girls.
The meeting was closed.
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