Aged Persons Amendment Bill & Social Work Amendment Bill : discussion & voting; Criminal Procedure Amendment Bill: discussion

WELFARE PORTFOLIO COMMITTEE
2 November 1998
AGED PERSONS AMENDMENT BILL [B127B - 98]; SOCIAL WORK AMENDMENT BILL [B125D-98]: DISCUSSION & VOTING; CRIMINAL PROCEDURE AMENDMENT BILL [B132 - 98]: DISCUSSION

Documents handed out:

Simplified version of the Criminal Procedure Amendment Bill by Advocate A. Skelton (see Appendix)

SUMMARY
The committee passed the NCOP amendments to the Aged Persons Amendment Bill and the Social Work Amendment Bill with no further amendments.

The committee were briefed on the Criminal Procedure Amendment Bill that is under discussion in the Justice Portfolio Committee and developed a plan of action regarding this Bill.

DETAILED MINUTES
Mr Salojee, the chairperson, welcomed the Minister and the Director-General of the Department of Welfare. The Minister said the amendments that needed to be looked at in the Aged Persons Amendment Bill and the Social Work Amendment Bill were mostly technical. Six hours had already been spent on the Aged Persons Amendment Bill. She introduced Mr P du Preez, the Department's legal adviser, who would take the committee through the amendments.

The Minister complained that the Portfolio Committee was not always kept informed of legislation of concern to it, which was being considered by other committees. Such a bill was the Criminal Procedure Amendment Bill which had welfare implications, and its current draft differed considerably from when Cabinet had originally seen it. She had asked Adv Ann Skelton, member of the project committee of the South African law Commission drafting juvenile justice legislation, to brief the committee.

AGED PERSONS AMENDMENT BILL [B127B - 98]
The chairperson stated that the NCOP had accepted more or less all this committee's amendments and had made a few of their own. The Bill had been initiated in the NCOP and had later been considered in a joint sitting of the two committees. Mr du Preez led the committee through all the amendments, taking a few minor queries and comments.

The one exception was Clause 3C(3), which was objected to by Mr Botha (FF). He felt strongly that if a home for the aged is situated in a predominantly single race area, it would not be practicable for it to reflect the national ethnic mix. Mr George(NP) felt that admissions to homes should reflect the race composition of the province concerned, rather than of South Africa in general, but he was persuaded to accept that the word "broadly" would cover this. All the amendments were accepted and it was agreed that the totality of the Bill be accepted, with an objection from the Freedom Front noted.

SOCIAL WORK AMENDMENT BILL [B125D-98]
Mr du Preez explained the NCOP amendments to Clauses 9 and 12, which were accepted by this committee. The Bill as a whole was accepted, with abstentions by the Freedom Front and the National Party.

CRIMINAL PROCEDURE AMENDMENT BILL [B132 - 98]
Adv Ann Skelton briefed the committee on the latest draft of this Bill, referring to a simplified version she had prepared for distribution at this sitting. The Justice Portfolio Committee hoped to consider the NCOP amendments this week. She had several major concerns with the Bill, which she asked the committee to consider.

In the first draft of the Bill the age from which children could be detained had been raised from 14 to 16. However, in this draft there is no minimum age stipulated, although children under 7 cannot be arrested. Under common law children under 14 are presumed to be without criminal capacity, and are thus protected in a flexible manner. Ms Gandhi (ANC) felt that age should not be the only criterion. Only children charged with offences under Schedule 8 (previously Schedule 2) can be detained awaiting trial. The Law Commission is still looking at this issue.

This Bill defines a "secure care facility" (Section 71A Clause 3(b)), and limits where children awaiting trial for serious (scheduled) offences can be accommodated, to prison or secure care facilities or police cells (for 48 hours). This reduces the previous flexibility. Few "Places of Safety" can be made secure, and the more serious the crimes with which they are charged, the more likely children are to run away.

Adv Skelton felt that the requirement in Clause 8(a) of a "sworn statement" from the secure care manager in each instance is impractical and unnecessary. She replied in the negative to Ms Tambo's query whether the manager of such a facility would be held liable for a child's security.

Ms Turok (ANC) queried the widely-held view that much of the crime in this country is committed by children under 18. Adv Skelton gave figures refuting this (100,000 adults awaiting trial compared with 1298 under 18, of whom 654 were charged with serious offences), but stated her opinion that a large proportion was the responsibility of young adults of 18-25. Often when young people are arrested they carry no ID and the police have to estimate their age.

The importance was emphasised of the Welfare Dept pushing ahead fast with its programme, which had been much slower than expected, to build and designate suitable "secure care facilities" (at least one for each province), with appropriate programmes of assessment, rehabilitation, education and training. Well-designed programmes, with sufficient well-chosen and well-trained staff to implement them, were seen as more important than high walls in accommodating and containing these children. "Security should be understood in both its meanings." Ms Chalmers (ANC) had visited the two secure care facilities established so far, and found them extremely well equipped.

Adv Skelton said that Section 29 and Schedule 2 of the Correctional Services Act of 1959 were being repealed, and would be replaced by similar offences listed under Schedule 8, but with the addition of item 13 to cover the activities of gangs. However, she felt this provision was too comprehensive and relied too heavily on the magistrate's discretion and understanding of the phrase "of a serious nature".

She pointed out that under "Monitoring of Section 71A" the Minister of Justice was required to consult with the Welfare Dept.

She also gave her opinion that the "Transitional arrangements" were too open-ended.

There was debate on which was worse for children, where no secure care facility was available, prison or police cells, in which children often could not be held separately, but were more accessible to their families. It was pointed out by Mr du Toit of the Dept of Welfare Probation Section that there was very often no alternative to police cells for the first 48 hours, particularly in rural areas. Children were immediately assessed by probation officers, and efforts made to get them back into the community as soon as possible. However, there was a desperate shortage of probation officers. Questions were asked about the availability of bail for children, and its position in the procedure.

Ms Turok asked if Ms Lesley du Toit, who was visiting Cape Town, could be asked for more information on secure care facilities.

The meeting was adjourned. The committee planned to meet again on this issue the following day.

RECOMMENDATIONS FOR ACTION
Short-term:
-Find out when the Justice Portfolio Committee would consider the NCOP amendments.
- Arrange for Ms Lesley du Toit to brief the committee regarding secure care facilities.
Longer-term:
- Establish quickly more small secure care facilities in each province, with appropriate programmes and staff.
- Improve conditions in police cells.
- Provide more probation officers to assess children and return them to the community as soon as possible.

The meeting was attended by 19 MPs - 11 ANC, 5 NP, 1 each IFP, FF and DP, and was chaired by Mr E Saloojee (ANC).

Appendix: Simplified version of the Criminal Procedure Amendment Bill

Simplified version of the Bill [B132-98]

To all members of the Portfolio Committee for Welfare and Population Development

DATE DISTRIBUTED: 2 November 1998

Consideration of the Criminal Procedure Amendment Bill: [B132-98]

SIMPLIFIED VERSION OF CRIMINAL PROCEDURE AMENDMENT BILL B132-98

Section 71 A

(1) An unconvicted child shall not be detained in a prison, police cell or lock up

This does not take away the right to bail, and is subject to exceptions set out in subsection (2), (3) and (6).

(2) An unconvicted child who is accused of an offence other than those listed in schedule 8 may only be held in a police cell during the first 48 hours pending first appearance in court if the police officer is satisfied

(a) that exceptional circumstances so demand

(b) that this detention is necessary in the interest or administration of justice or safety or protection of the public

(c) that the child has not been released on bail

(d) that the child cannot be placed in the care of

(i) his/her parent or guardian

(ii) any adult person who has a prior relationship of responsibility towards the child or is prepared to enter into such a relationship , or

(iii) any other suitable person, or

(e) that the person cannot be placed for the period (48 hours) at any institution or place of safety defined in 5 1 of CCA within a reasonable distance from the court.

(3) An unconvicted child who is accused of having committed or is awaiting for an offence listed in schedule 8 or who has a previous conviction for murder or rape, may, before his /her first appearance in court only be detained in a police cell or lock up for 48 hours after arrest if the police officer is satisfied that

(a) such detention is necessary in the interest of the administration of justice or the safety and protection of the public, and

(b) the child cannot be placed (within a reasonable distance from the court) in a secure place of safety which is intended to be used and is being used for the appropriate physical, emotional and behavioral containment of persons under the age of 18 years who have been accused of having committed serious offences and who are awaiting trial or sentence; or

(c) the child cannot be held in a prison within a reasonable distance from the court.

(4) Where a child detained in a police cell or lock up as contemplated in ss 2 or 3 the police officer must:

(a) provide the court with a written report setting out the reasons for the detention and an explanation as to why it was necessary to detain the child in a police cell or lock up and hold him/her there until the first appearance. and of the steps taken to notify parents or guardian and the probation officer or the child's arrest; or

(b) if the child is released before he/she appears in court, provide the court with a written report setting out the reasons for the detention.

(5) The report mentioned in ss 4(b) must be given to the magistrate not later than one court day after the child has been released from detention

(6) (a) An unconvicted child may only be detained in a prison after his or her appearance in court if the provisions in paragraph (b) are complied with.

(b) A child referred to in paragraph (a) can only be detained in a prison if an application for bail has been postponed or if bail has been refused and if the court is satisfied that

(i) the child is accused of, charged with or awaiting trial on an offence referred to in schedule 8, or has a previous conviction for murder or rape; provided that if the child is below the age of 14 years he or she may only be detained in terms of this subsection if the Director of Public Prosecutions (or a prosecutor authorised in writing by him or her) issues a written confirmation that he or she intends charging the person concerned with an offence referred to in schedule 8 and stating that there is sufficient evidence to proceed with the prosecution; and

(ii) such detention is necessary in the interests of the administration of justice or the safety or protection of the public or of the child: and

(iii) there is a likelihood that the child , on conviction, could be sentenced to imprisonment without the option of a fine, and

(iv) the child cannot be placed (within a reasonable distance from the court) in a secure place of safety which is intended to be used and is being used as a secure care facility for the appropriate physical, emotional and behavioural containment of children persons under the age of 18 years who have been accused of having committed serious offences and who are awaiting trial or sentence.

(c) The court must enter its reasons for ordering the detention of the child in prison on the record of the proceedings

(d) If the age of the child is in dispute and the state cannot prove that the child/person is over the age of 18 years the person will be considered to be under the age of 18 years

(e) A child detained in prison must be brought before a court every 14 days for the detention order to be reconsidered and the court shall enter its reasons for any decisions in this regard on the record of proceedings

(f) If an order is being reconsidered in terms of ss(e) and the magistrate who made the original decision is not available another magistrate can reconsider.

(7) Before a court makes a decision in terms of ss 6 to detain or further detain a child in prison the court must consider any appropriate evidence placed before it by the State or, where appropriate, by any other person having an interest in the matter, including evidence in respect of

(a) the requirements referred to in section 6(b)(i) (the certificate of the prosecutor if the child under 14 years of age)

(b) the best interests of the child

(c) the availability or otherwise of a secure care facility and the sworn statement referred to in subsection (8)

(d) the risk of the child causing harm to other children in a secure care facility

(e) period that the child has already been in custody

(f) the probable period of detention until the finalisation of the case

(g) the reason for any delay in the case and any fault of the child or his/her lawyer for the delay

(h) any impediment to the preparation of the child's defence or in the child obtaining legal representation which will be caused by detention

(i) the state of health of the child

(j) the disposition of the child to commit offences (especially those listed in schedule 8)

(k) the risk of the child absconding from a secure care facility

(l) the reports referred to in ss4(a) or (b) (report from police officer as to why child was held in police cells during first 48 hours after arrest)

(m) the seriousness of the offence in question

(n) the age of the child. Particularly if he or she is under the age of 14 years)

(o) any other factor, which the court deems necessary.

(8) Whenever the court must make a decision in terms of ss 6 to detain or further detain a child in a prison. any secure care manager ("functionary responsible for the provision and management of secure care ) of a secure care facility within a reasonable distance from the court , must. if he or she is requested by the magistrate, investigating officer, prosecutor or legal representative, provide to the court (and whoever requests it) a sworn statement providing information about

(i) the availability or otherwise of accommodation for the child in question

(ii) all other relevant information relating to the amenities and features of the facility which enable it to be used as a secure care facility.

(b) Whenever a court has to make a decision to detain or further detain a child in prison, and, on the evidence is unable to be sure whether a secure care facility is available to accommodate the child the court is then able to make an order for the child to be detained in a specific secure care facility, which will be mentioned in the order; Provided that if the child cannot, for any reason, be accommodated at the secure care facility, the child will them be detained in the prison mentioned in the order.

(c) The Director General of Welfare must from time to time make available to the Director General of Justice all relevant information relating to this section in order for these to be circulated to stakeholders to ensure the effective and proper application of the section.

(9) A child detained in terms of ss 6 must be given the chance, as soon as possible after arrest, to apply legal representation through the Legal Aid Board.

(10) The highest priority will be given to the fastest possible processing of the trial of a child who is detained in terms of subsection 6.

(11) A child referred to in ss (2), (3) or (6) who is detained in a prison, police cell or lock up or who is being transported to court must be kept separately from adults, and a child charged with a non-scheduled offence must be kept separately from a child charged with a scheduled offence, and shall be treated in a manner, and kept in conditions, which take account of his or her age:

Provided that a child will be allowed to communicate with an adult co-accused if the correctional officer or police officer is of the opinion that this will not be detrimental to the child. Any female child will be kept separately from any male child.

(12) A female child will always be under the care of a woman.

(13) An unconvicted person means a person who is an awaiting trial prisoner before conviction or sentencing

SCHEDULE 8

(Section 71A)

1. Murder

2. Rape

3. Robbery -

(a) when there are aggravating circumstances

(b) involving the taking of a motor-vehicle

4. Assault involving the infliction of grievous bodily harm

5. Indecent assault involving the infliction of grievous bodily harm

6. Indecent assault on a child under the age of 16 years

7. Kidnapping

8. Public violence

9. Any offence referred to in section 1 or 1A of the Intimidation Act

10. Any offence referred to in section 13 (f) of the Drugs and Drugs Trafficking Act 1992, if it is alleged that:

(a) the value of the dependence-producing substance in question is more than R50 000

(b) the value of the dependence-producing substance in question is more than R10 000 and that the offence was committed by a person. Group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy.

11. Any offence relating to-

(a) the dealing in or smuggling of ammunition, firearms, explosives, or armament, or:

(b) the possession of an automatic or semi automatic firearm, explosives or armament

12. Any offence relating to exchange control, corruption, extortion, fraud, forgery, uttering or theft-

(a) involving amounts of more than R50 000, or

(b) involving amounts of more than RIO 000, if it is alleged that the offence was committed by a person. group of persons. syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy

13. Any other offence of a serious nature if it is alleged that the offence was committed by a person, group of persons, syndicate or any enterprise, acting in the execution or furtherance of a common purpose or conspiracy

14. Any Conspiracy or incitement to commit any offence referred to in this Schedule or an attempt to commit any of the offences referred to in Items 1.2 and 3 of this schedule (Murder, rape. aggravated robbery, car-hijacking).

Repeal of Laws

Section 29 of and schedule 2 to the Correctional Services Act 1959 are repealed.

Monitoring of section 71A

(a) The Minister of justice shall make regulation, prescribing procedures for the proper application of section 71A and to assess the implications thereof:

shall make regulations prescribing the form and content of reports by police officers

may make regulations prescribing any other matter which he believes necessary to make sure that the section is effectively complied with.

(b) The Minister of Justice may (by way of regulation) direct that the application of s 71A be monitored and evaluated by the DG of Justice. and where applicable by any other relevant departments. This monitoring can take place annually or at other specified intervals, with the object of assessing the implications or effectiveness of and compliance with the s71A.

(c) Each directive issued in terms of para (b) shall be formulated after consultation with the ministers responsible for Welfare, Safety and Security and Correctional Services. as the case may be.

Transitional arrangements

(1) Within 7 days after the commencement of this Act , or such longer period as may be agreed to by the court. every unconvicted child who is in detention in a police cell. lock up or prison and is charged with an offence which is not listed on schedule 8 must be brought to court and dealt with in terms of s 71 A.

(2) Within 14 days after the commencement of this Act, or such longer period as may be decided by the court. every unconvicted child who is detained in prison and is charged with an offence listed in schedule 8 or who has a previous conviction for murder or rape must be brought before court to be dealt with in terms of s71 A

Commencement

The Act will come into operation on a date fixed by the President by notice in the Government Gazette