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WELFARE PORTFOLIO COMMITTEE
22 February 1999
PROBATION SERVICES AMENDMENT BILL: BRIEFING
Probation Services Amendment Bill [B15-99] obtainable from http://www.polity.org.za/govdocs/bills/1999
The Chairperson, Mr Saloojee (ANC) introduced the drafting team, Adv Masutha, Mr Du Toit and Adv Smuts.
Adv Masutha gave a short background on the Bill. He announced that some of the comments made in the last meeting were conceded to. He said that the Bill introduces the phenomenon of diversion which means the referral of cases of children alleged to have committed offences away from the criminal justice system.
The committee then went through the Bill clause by clause:
Section 1: Amendment of section 1 of Act 116 of 1991
The acknowledgement of responsibility for the offence by the child was discussed. Mr Masutha expressed that there exists statutory protection against self - incrimination and that it cannot be used as a confession in any subsequent proceedings. He added that diversion does not oust the jurisdiction of the criminal justice system.
Ms Turok (ANC) asked whether the wording of that clause should be changed. Adv Smuts said that it would not be necessary to make such provisions since the right against self-incrimination was already an established rule.
Mr George (NP) commented on the omission of the impact of the offence on the victim's family.
Ms Gandhi (ANC) suggested that the intention of the person in relation to the offence replace "acknowledge responsibility."
Mr Du Toit concurred with that suggestion. He went on to add that a course on developmental assessment has been developed. People have been specially trained to evaluate the child.
The Chairperson asked if the same situation exists in the rural areas and that question was answered in the affirmative. It was said that the training is a three-day course and on completion, the participants are awarded a certificate.
There appeared to be dissatisfaction among the committee members with regard to the concept of developmental training. However Ms Turok warned the members that they should now only make cosmetic changes to the Bill. An MP suggested the insertion of the word "or" after "developmental assessment and." Adv Masutha replied that where there is a single alternative, 'or' is used but where there are more than one alternative, then 'and' is used.
MP September suggested that the word "attitude towards the offence," replace "intention" of the person.
Mr Masutha explained that persons, who through marriage or emancipation have attained majority status, may not be dealt with as a child. He said that the law is subservient to the Constitution and in terms of S28, the definition of "child" as contained in that section should be adhered to. Mr George suggested the use of the word "minor" instead of "person under the age of 18 years." An ANC MP stated that all persons irrespective of their status, should be subjected to the legislation. Mr Masutha pointed out that in terms of the Child Care Act, the Minister is allowed to declare the marriage of persons under the age of 18 years, null and void.
Ms Gandhi enquired about the qualification of the assistant probation officer. To that Mr Masutha replied that the requirements for the probation officers and the assistant probation officers are set out in the Principal Act.
Section (1) (d)
The Clause "laying of charges against or" was deleted. Mr Masutha explained that the whole situation prior to the laying of charges remains unregulated. He reiterated that the laying of charges would require a comprehensive piece of legislation.
Mr George asked how would that subsection be read.
Mr Du Toit read the subsection as follows: "criminal justice system means any proceedings under any law regarding the prosecution of a person who is suspected of having committed an offence, or the conviction or sentencing of a person who has committed an offence."
Section (1) (e)
Mr George asked the meaning of "according to custom." Mr Masutha answered that it refers to customary law, in accordance with the language used in the Constitution.
Ms Gandhi made a suggestion that the words "community conferencing" replace "family group conferencing." Mr Masutha said that there was a need to avoid a whole range of conferences, by virtue of simply using a term and defining it, indicates that the ordinary meaning of the term is not being used.
An MP asked for the definition of a "family finder". Mr Du Toit said that a family finder is a volunteer used to locate the parents of the child.
Section (1) (f)
Ms Rantho (ANC) asked whether there were any mechanisms in place to monitor the assistant probation officers. Mr Du Toit replied that they are monitored by a probation advocacy group.
Mr George said that in terms of the Principal Act a course was prescribed for the family finders. Adv Smuts indicated that there is currently training in place for volunteers.
Adv Smuts explained that the training of probation officers was an ongoing process at the Justice College. Honour courses were now being offered at the universities of Cape Town and Port Elizabeth. Pilot projects had been started in rural areas as well as in the Northern Province, all of which would be ratified by the Social Services Board.
Section 2: Amendment of section 1 of Act 116 of 1991
An MP asked at what stage in a child's life should crime prevention be taught. Mr Du Toit explained that in line with the Social Welfare White Paper (p86-87), if a child is able to understand the wrong of the offence, the crime prevention programmes can occur at any age (6 - 12 yrs) or (12 - l8yrs)
Mr George enquired about the way in which the Welfare Department is going to handle these programmes and where would it get the money. Ms Turok replied that at this stage in South Africa's development there are no funds available to combat crime. Prevention lies in employment creation and the alleviation of poverty.
Ms E. Gandhi expressed concern that there was no mention of programmes aimed at encouraging parental responsibility. Ms Tambo (ANC) said that there were programmes for the community in place at the moment.
Section 3: Amendment of section 4 of Act 116 of 1991
There appeared to be no problems with this section and it was accepted by all.
Section 4: Insertion of section 4A in Act 116 of 1991
Ms Turok said that it seems problematic, that it would be possible to have a mandatory assessment of arrested children. Children who commit minor offences should be released earlier than the prescribed time. What would the situation be in the rural areas?
Mr Masutha said that the Minister has the power to appoint any number of officers. An amendment was made whereby only the prosecutor can decide whether or not to prosecute. Mr Du Toit added that during November 1998, 45 rural courts and 37 urban courts did not have a probation officer available on a daily basis. Every effort is made to reach most detained children.
Mr George indicated that during the last meeting there was conflicting views from the bench concerning the meaning of 48 hours. He asked whether the whole assessment should take place within 48 hours. The Chairperson said that it should be done within 48 hours.
Mr George asked what would the situation be if the assessment is not done within that prescribed time period. Adv Smuts said that the case would be postponed and that the court will look at the underlying principle, that the child must be assessed. To this the Chairperson replied that the assessment should at all costs occur within 48 hours and to postpone the case would be grossly irregular.
Ms Turok said that under the various options (b) should be (a). Ms Gandhi asked whether the police are responsible to bring the child for assessment and which group of children are being targeted: those already in detention.
Adv Smuts replied that in terms of S50(5) of the Criminal Procedure Act, the police are obliged to inform a probation officer of the arrest of a child.
Ms Coetzee (ANC) asked where are all these secure-care facilities and where is the child kept if there is no judgement. The Chairperson said that the facilities are available. Mr Masutha added that the probation officer will take into account not only the appropriate facility but also the availability of the facility.
Ms Tambo expressed concern for children placed in detention with adults when there is lack of space in those facilities. She also highlighted the abuse that occurs to those children at the hands of the adults as well as the plight of children who cannot be released to their parents e.g. street children. Mr Du Toit said that the Act stipulates that a child can be released to a suitable person and in the case of street children, they can be put in places of safety.
Section 5: Insertion of section 5A in Act 116 of 1991
Ms Turok suggested that this section be placed elsewhere in the Act. Adv Smuts agreed that it can be put in a more appropriate place.
Ms Tambo asked whether the Minister is establishing the centres mentioned in the section. Mr Masutha said that without the provisions that empower the Minister to establish these centres, it would be impossible to acquire the funds. An MP enquired the position of children whose parents are reluctant to take responsibility for them and where there are no places of security. What effect will the Bill have on those children? Mr Masutha answered that it is a statutory responsibility that there be a probation officer for every Magistrate court and that the proceedings are not valid until the appointment of a probation officer.
Section 6: Amendment of section 9 of Act 116 of 1991
Mr George asked whether the words, "other than an assistant probation officer" includes the authorised assistant probation officer. Adv Smuts said that the assistant probation officer is excluded. Mr George then asked if it excludes the authorised assistant probation officer. Adv Smuts replied that "authorised" should be inserted before assistant. Ms Turok suggested that assistant probation officer should be deleted. Mr Masutha said that not every probation officer should be allowed to delegate duties to an assistant.
Section 7: Insertion of section 15A in Act 116 of 1991
Ms Tambo asked of the position of a child whose parent cannot be located.
Mr George asked that if it is the intention to exclude the assistant probation
officer, what is the position if the authorised probation officer is unavailable
Adv Smuts concedes that the Bill is confusing and explains that an authorised assistant probation officer and an authorised probation officer is authorised by the Minister and complies with the requirements set out in S2. Only those that are authorised are able to perform certain functions.
Mr Masutha explained that a probation officer can perform many functions without being authorised but not every probation officer can appoint salaried assistants.
The next meeting is expected to be on 19 March 1999.
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