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JUSTICE PORTFOLIO COMMITTEE
3 September 1998
CRIMINAL PROCEDURE AMENDMENT BILL [B 59-98]: DISCUSSION
Documents handed out
Submission by the Acting Attorney-General, Bisho
Submission by South African Police Services
Submission by Correctional Services Department
Summary of Submissions on the Criminal Procedure Amendment Bill
Draft of Bill with proposed amendments for discussion
The committee went through the bill and discussed proposed amendments in light of suggestions made in the submissions received from the public and government departments. The committee did not finish discussing the bill and will return to it on Friday or next week. The bill proposes a new section to be inserted into the Criminal Procedure Act. The section will regulate the detention in prison and police cells of unconvicted children accused of committing serious crimes.
The tabled bill makes a distinction between children under 16 and children who are 16 or 17 years of age. Children under 18 may be detained in police cells pending their first appearance. Children under 16 may not be detained in prison. Children 16 and 17 years old may be detained in prison.
The proposed amendments which the committee considered, will in effect remove the age distinction and provide that all children can be detained in prison (subject to certain requirement being satisfied).
Section 2 says that an unconvicted child may be detained in a police cell or lock-up for a period not exceeding 48 hours pending such person’s first appearance in court after arrest.
The SAPS advised that the words "as contemplated in section 50(1)" should be added after the words "48 hours". The Human Rights Committee (HRC) advised that the words " but not after such first appearance" should be added after the word "arrest" to make it clear that children may not be detained in police cells after their first appearance.
The committee decided to consider the amendments.
Section 2 then provides requirements which must be satisfied before a child may be detained in a police cell. It says that the detention must be necessary and in the interests of justice; and it must be found that the child cannot be placed in the care of his or her parent or guardian, any suitable person or any institution or place of safety as defined in section 1 of the Child Care Act.
The HRC advised that "suitable person" should be defined as "an adult person who is prepared to assist the child in relation to his or her attendance at court and who has a prior relationship of responsibility towards the child or who is prepared to enter into a relationship of responsibility towards the child".
The committee decided that the amendment proposed by the department to give effect to this suggestion was appropriate. The amendment removes the term "suitable person" and inserts the words, "any adult person who is prepared to assist the child in relation to his or her attendance in court and who has a prior relationship or responsibility towards the child or who is prepared to enter into a relationship of responsibility towards the child".
The SAPS has advised that a new sub-section (b) should be inserted into section 2 in order to ensure that section (2) covers all the instances when a child could be arrested. They suggest that detention in a police cell should also be allowed if the child has been arrested in terms of the Aliens Control Act or has absconded from a place of safety.
The committee broadly agreed with this suggestion but resolved that the proposed sub-section (b) should be incorporated under sub-section (a). Sub-section (a) would then have a list of four requirements. The first requirement would be followed by the word "and" while the other three would be separated by "or".
The committee asked Mr Basset , the drafter, to check whether the words "arrested" and "absconded", which were used in the SAPS draft, were appropriate in the context of children.
The tabled bill provides in (3) (a) that the arresting officer should have to provide the court before which the child first appears with a written report, setting out the reasons for the detention and explaining why it was necessary to detain the child in a police cell.
The HRC suggested that the arresting officer should also be required to report on the steps taken to notify the parents or guardian and a probation officer of the arrest of the child and of the steps taken to assist the child to obtain legal representation.
The committee agreed that the arresting officer should be required to report on the steps taken to notify the parents or guardian and the probation officer.
The tabled bill obliges a police officer who arrests a child but subsequently releases the child without the child ever appearing before a court, to write a report setting out the reasons for the detention. Section (4) then requires the police officer to submit the report to the district magistrate one court day after the child’s release.
The committee was alerted by a magistrate and the HRC to the fact that this requirement is not being complied with (the requirement already exists in section 29 of the Correctional Services Act).
The committee instructed Mr Basset to draft a committee resolution alerting police management to police officers failure to comply with the section 4 reporting requirement.
The tabled bill provides in section (5) that only children accused of committing schedule 8 offences and who are over the age of 16 years may be detained in prison.
The amendment proposed in the draft amendments document would have the effect that a child of any age may be detained in prison, if the child is accused of a schedule 8 offence.
Section (5)(b) sets out the requirements which must be satisfied before the court may order detention in prison.
The tabled bill provided 4 requirements. The amendments propose some changes to these requirements and the addition of a fifth requirement.
Section (5)(b)(one) should be amended by deleting the words "as contemplated in section 28(1) (g) of the Constitution".
Section (5)(b)(iii) should be amended by the deletion of the words "exceeding two years" and the addition of the words "without the option of a fine". Some members raised human rights concerns regarding this amendment.
Section (5)(b)(iv) should be deleted and replaced with the following words " the person concerned cannot be placed in a place of safety mentioned in section 28 of the Child Care Act, 1983 within a reasonable distance from the court".
A proposed new section, (5)(b)(v) provides that in the case of children under 16 years of age, detention in prison is only allowed if the child has previously been convicted of a schedule 8 offence.
Section 5 ( c) deals with an obligation on the courts to review the detention order every 14 days. The South African Human Rights Commission (SAHRC) and the Law Society advised that the period should be every seven days. The committee members felt that seven days was not possible considering the resource constraints faced by the police and the justice system. Mr Basset was asked to redraft the section to allow for flexibility in the number of days between court appearances. A period of 14 to 16 days was suggested. This would reduce the strain on the police and the justice system and save costs because it would allow groups of children to be brought to court at one time instead of one at a time.
The committee further resolved that section (5) (c ) and (d ) should be linked together and the proposed proviso in subsection (d) should be removed.
The section, as tabled, requires the court to hear oral evidence. The amendment proposed is as follows:
" the state shall place before the court appropriate evidence…"
The effect of the amendment is that there is no obligation to hold an oral inquiry. Written evidence is sufficient. However, another amendment proposed later in the document describes under what circumstances oral evidence may be dispensed with.
The words "as contemplated in section 35 of the Constitution" should be removed.
This section provides that the highest priority shall be given to the most expeditious processing of the trial of a person detained in terms of subsection (5).
The committee resolved that the relevant role players should be expected to draft guidelines on how to deal with this matter. The guidelines will have to be presented to the committee.
This is a new section, which was inserted upon information received from the Department of Correctional Services . It provides that children should be kept separately from adults. However, a child who has been charged jointly with an adult offender, may be permitted to communicate with the adult, if the official in charge is of the opinion that such communication will not be detrimental to the child.
The word "communication" was preferred over the word "contact" as it was narrower.
This section is a new insertion, and provides that the Minister of Justice may make rules prescribing steps to be taken for the purposes of implementing and monitoring the provisions of this section. The committee agreed that the monitoring procedures/mechanisms needed to be spelled out.
The committee will continue discussing the bill on Friday or next week.
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