Criminal Procedure Amendment Bill: discussion

WELFARE PORTFOLIO COMMITTEE
3 NOVEMBER 1998
CRIMINAL PROCEDURE AMENDMENT BILL [B132-98]: DISCUSSION

SUMMARY
The committee discussed the implications of the Justice Portfolio Committee’s amendments [B132-98] to the tabled version of the Criminal Procedure Amendment Bill [B 59-98]. The committee was concerned that if the Bill was implemented in its present form, it would increase the number of children detained in prison and would have practical and budgetary implications for the Welfare Department. They were further concerned at the lack of consultation with role players, specifically with the Welfare committee and Welfare officials. The Chairperson of the Justice committee, Adv J De Lange, had been asked to attend the meeting to discuss the Bill but was unable to as he was chairing the Justice Portfolio committee at the same time. Ms Lesley Du Toit , Head of the Inter-ministerial Committee on Young People at Risk, briefed the committee on the status of Secure Care Facilities in the provinces. The Chairperson said he would discuss the committee’s concerns with Adv De Lange and report back to the committee tomorrow.

DETAILS
The Chairperson, Mr Saloojee (ANC) said that he had asked Ms Gandhi (ANC) to contact and speak to Adv De Lange (Chairperson of the Justice Portfolio Committee) about the Criminal Procedure Amendment Bill. The Bill deals with the detention in prison of unconvicted children.

Ms Gandhi (ANC) reported that she had had a brief discussion with Adv De Lange during yesterday’s sitting of the National Assembly. She raised the Welfare Committee’s concerns regarding the Bill. Mr De Lange said that sub-section 8 of the Bill provides that when a child is brought to court, whether the child has committed a petty or serious offence, if a welfare representative says that they are prepared to accept the child into their custody, then the child will be released to that person. Welfare just has to come to court to say that they have the capacity to take the children.

Ms Turok (ANC) raised a concern regarding this system. If the Bill was implemented, managers of Secure Care Facilities would spend a lot of time making sworn statements in court instead of looking after the children under their care.

Ms Dlamini (ANC) asked whether the Chairperson of the Justice Portfolio committee would be coming to talk to the Welfare committee today. The committee researcher indicated that Adv De Lange had sent a message that he would not be coming. The Chairperson sent the researcher to find Adv De Lange and ask him again.

Ms Turok (ANC) said that there were a number of concerns with the Bill. It must be conceded however that there are some good features. These include:
Detention in police cells is only allowed before first appearance and not after first appearance.
Non-schedule 2 offenders may no longer be imprisoned. Section 29 of the Correctional Services Act allowed magistrates to detain children in prison even though they were not accused of a schedule 2 offence, "if the crime was committed in circumstances so serious as to warrant detention in prison".

The bad aspects of the Bill include the following:
The age limit has been removed from the tabled Bill. The tabled Bill proposed a lower age limit of 16 for detention in prison. This age limit was welcomed by NGOs, including NICRO, Legal Resource Centre, Human Rights Committee and Community Law Centre.
The Justice Portfolio committee had re-written the Bill and had not reported back or re-opened the public participation process. There was a definite lack of consultation.
The whole point of the tabled Bill was to further restrict section 29 of the Correctional Services Act. The Bill as re-written by the Justice committee does not do this.
The Welfare Portfolio Committee should have been consulted because the secure care facilities are not ready. The Gauteng facility is the only one in the whole country that is open and functioning. There are 50 children in that facility. When one looks at the statistics for unconvicted children in prison in Gauteng, they are very low. This is very strange given that Gauteng is so crime ridden. This is because the children are being detained in a private prison near Krugersdorp. This "prison" is not a "secure care facility" and thus if the new Bill is implemented, these children will have to be moved out and placed in prison.

Ms Turok ended by saying that given the above bad features of the Bill, she was of the opinion that the old section 29 is better than the new Bill, even though section 29 has its problems. Furthermore, the Department of Justice is working on new Juvenile Justice Legislation.

The Chairperson said, that in fairness to Adv De Lange, it must be said that he had only received a message to attend the Welfare meeting at 5 minutes to 1 (the meeting was being held at 1). He then suggested that the committee should continue to discuss the Bill and then he would take all concerns to Adv De Lange. He would then report back to the committee tomorrow at lunch time.

Ms Lesley Du Toit, manager of Project Go and co-ordinator of the Inter-ministerial Committee on Young People at Risk (IMC), was asked to give the committee a short input on the status of Secure Care Facilities around the country. The Chairperson said that there was a thinking in the Justice Portfolio Committee that all the Secure Care Facilities were going to be open soon. The Welfare committee needed to know what the existing situation was regarding the establishment of Secure Care Facilities in order to have a clear picture before engaging with the Justice Portfolio committee. He stressed that the Welfare committee had seen the conditions under which children are detained in prison and they all agree that they need to get children out of prison.

Ms Du Toit said that she needs to make it clear that she is not representing the Welfare Department, but that she was here as Head of the IMC which represents 6 government departments. She stressed that she cannot speak on behalf of the Director General of Welfare. Project Go and the establishment of Secure Care Facilities is being facilitated by the IMC. The IMC however, cannot control the process. This is problematic and makes things more complex. The control of setting up the facilities has been in the hands of the provincial governments and the progress made so far is not as it should have been. There should have been Secure Care Facilities open in every province by last year already. The setting up of Secure Care Facilities is not purely a Welfare issue.

Ms Du Toit then elaborated on how each province was doing. Before doing so she explained that a "secure Place of Safety" is simply a Place of Safety which is being used to house awaiting trial children. The new Bill does not support "secure Places of Safety", only Secure Care Facilities. This is a critical aspect to take note of. For example, in the Western Cape, there are 150 kids in a Place of Safety awaiting trial. They will have to be taken out and placed in prison. Some Places of Safety have been turned into Secure Care Facilities and are now designated as Secure Care Facilities. It is important to note that there is a difference between a "secure Place of Safety " and a "Secure Care Facility".

Gauteng: The Walter Sisulu facility has been open for over a year. It was converted from a Place of Safety and can house 60 children.

Kwa-Zulu Natal: The Excelsior facility in Pinetown is a secure care facility which was converted from a place of safety. It has a capacity for 50/60 children. Most of the staff are in place but there are still a few vacancies. Once the staff are in place and trained, the facility will be ready to be opened. The provincial staff moratorium has had an impact on the process. At the moment the facility is a "secure Place of Safety". Actual designation as a Secure Care Facility has not yet taken place. The centre does however have children from prison in it.

If the Bill goes through, the problems are going to be magnified. Place of Safety staff are not equipped to handle awaiting trial children. To push the process will start another crisis.

Western Cape: There are three facilities being designed as Secure Care Facilities. Bonnytoun (a Place of Safety) is currently being used to house awaiting trial children and is full. It is busy being converted to ensure it can detain children accused of serious offences. The other two facilities will be completed over the next year. They are in George and Cape Town (Lindelani).

Eastern Cape: Enkuselweni will be available within the next month. It can house 60 children.

Each of the major provinces has a facility in transition but all are already full to the hilt with awaiting trial juveniles.

Ms Turok (ANC) asked whether they were full with only schedule 2 offenders.

Ms Du Toit replied that there was a mixture of schedule 2 and non-schedule 2 offenders.

Ms Turok (ANC) suggested that the Secure Care Facilities should be limited to schedule 2 offenders.

Ms Du Toit said that the emphasis was on diverting non-scheduled offenders but that this was not always possible because there were not enough probation officers. Welfare does not yet have alternative services to offer to non-schedule offenders. Project Go is aimed at unblocking the system.

Ms Chalmers (ANC) asked whether there was another facility planned for the Eastern Cape.

Ms Du Toit said that another one was being planned for Umtata, but that the IMC had visited the facility and come to the conclusion that it was unsuitable for human habitation. Alternatives are being sought in Umtata, eg putting awaiting trial juveniles into foster care.

Northern Cape: Galeshewe will open in the first week of December.

The Chairperson said that there were many more children who were not schedule 8. When the government began the secure care process, there was an understanding that there would be one very secure Secure Care Facility in each province, yet now it was being said that existing Places of Safety are being converted.

Ms Du Toit said that it had always been the plan to convert some Places of Safety. Many Secure Care Facilities are already built. The problem is training, staffing etc. There has been substantial progress, but it is not unfolding in sync with legislative developments like this Bill.

Mpumalanga: A rural based Secure Care Facility is being set up in Hendrina.

North West: A facility is being set up in Britz. The building is nearly completed.

Free State: The Kroonstad facility is state of the art and will be open within the next month.

Northern Province: The Pietersburg facility has been built but there is a provincial moratorium on staffing so the facility is not yet staffed.

Ms Du Toit said that there will be a facility functioning in each province by January next year.

Ms Du Toit then turned to expand upon what the implications of the new Bill would be.

Places of Safety have not been designated as Secure Care Facilities, therefore children accused of committing schedule 8 offences will have to be moved to Secure Care Facilities. If there is no such facility or it is full, the children will have to be detained in prison.. The end result will be more children in prison. Non-schedule 8 children in prison will have to be moved into Places of Safety.

The Bill will create the perception that there is a great need for more Secure Care Facilities instead of concentrating on early diversions. The Bill is focussed on physical security. Provinces will be forced to go backwards in the new paradigm. There are also budget implications for Welfare. The Department will be forced to find more beds instead of concentrating on systematic changes to the Child Care system.

There are serious impracticalities regarding the manager of welfare facilities having to provide sworn statements to the court. On any given day, Durban’s children’s court can deal with 20 children. Managers will spend the whole day in Court. Furthermore, some facility managers will prefer not to have "trouble makers" in their facilities and there is nothing stopping them from denying access. The sworn statement system leaves the decision in the hands of an individual. The implications are ridiculous and it is very concerning that the persons who have to impose the system have not been consulted. The paper work and bureaucracy involved are bound to result in things getting lost and children’s trials will be delayed.

The Bill speaks about Secure Care Facilities having certain features and requires the sworn statement to refer to these features. One can assume that the Bill is referring to physical features. Who decides what features are acceptable?

The Chairperson asked whether that could not be defined in regulations.

Ms Du Toit said that if the emphasis is on physical features then we might as well go back to prisons. The issue of escapes is going to come up. Magistrates will ask what the facility’s escape rate is and base their decision on that. This is probelmatic because you will never have an escape-proof facility unless you electrocute, beat up or keep kids in solitary confinement.

Ms Turok (ANC) asked whether all cases will have to go back to court before the children can be moved. Ms Du Toit said yes.

The Chairperson said that he would ask Adv De Lange to come to tomorrow’s meeting.

The meeting adjourned.