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JUSTICE PORTFOLIO COMMITTEE
18 September 1998
CRIMINAL PROCEDURE AMENDMENT BILL [B59-98]: DISCUSSION AND VOTE
After concluding deliberations on Section 71 of the Criminal Procedure Amendment Bill, the Committee voted and passed the Bill.
The committee felt that Chapter 9 of the Criminal Procedure Act should be included in section 71A(a) together with sections 50(4)(5) and (6) and section 71 and 72 as currently put in the provision. The chairperson also suggested that the word "as" should be inserted in section 71A(2) and thus the provision should read, "… for a period not exceeding 48 hours as contemplated in section 50(1) … concerned is satisfied."
The chairperson was dissatisfied by the way in which this provision was too narrowly drafted. He suggested that the words "or who is an awaiting trial prisoner" in the provision should be changed to read "or who is awaiting trial …". This amendment will broaden the scope and application of the provision which in turn accommodates the real problems faced by policemen in practice.
Secondly, the committee suggested that the words "or who has a previous conviction in respect of an offence referred to in items 1 or 2 …" should read "or who has a previous conviction and has been sentenced in respect of an offence referred to in items 1 or 2...". It was submitted by the chairperson that the inclusion of the underlined words would set another hurdle to cross before it can be decided to imprison or at least temporarily imprison a child. The committee felt that this insertion was needed in order to uphold the fundamental spirit and purport of this Act which is not to imprison readily children under the age of 18 years. The department will effect the changes.
Section 71 (4)(b)
Mr Nel (ANC) asserted that the words "the report" as contemplated in section 71(4)(a) and (b) should be prescribed by the Bill i.e. the Bill should spell out the format of the report in order to facilitate uniformity amongst policemen. The committee agreed that the regulations to the Bill will make provision for this. The committee also urges the department via a resolution to draft the regulations as soon as is reasonably possible.
Section 71A (6)
Mr Nel expressed his concern regarding the postponement of bail in instances where the child is 14 years of age. The child would then have to be kept in prison and therefore he feels that this Bill should be amended to afford protection for children of 14 years of age. The chairperson felt that "bail issues" cannot be amended in this Bill, but can only be amended in the Bail Act. Furthermore the chairperson asserted that the decision to imprison a child is a burdensome decision per se, in that it involves the Attorney General having apply his mind to ascertain whether a child should be imprisoned. It is submitted therefore that the decision to imprison a child is not a mere formality and the certificate issued by the Attorney General or rather the Director of Public Prosecutions is not a mere act of formality. It is a substantive matter which requires the Director’s stamp of approval. The chairperson therefore laid the matter to rest. The chairperson also asked the department to include "children under the age of 14 years" in the proviso to section 71A (6). Mr Hofmeyr argued that the words, "in consultation with" as used in the proviso is not needed because it adds no value to the determination of the issue and it is here a time-consuming mechanism in view of the fact that the provision operates within a 48 hour time span. The committee agreed with Mr Hofmeyr’s argument and the department was asked to delete the relevant words from the provision.
The committee felt that the words "…and after the evidence recorded and in the presence … with the provisions of this section" should be deleted from the provision because section 71(6)(e) already provides a test and there is no need to spell out how the court should conduct this test.
Section 71A (7)
It was submitted by the committee that section 71A (7) should read "the requirements within the meaning of subsection (6)(b)(I) to (iv)" because elsewhere in the Bill this phrase is used (thus for the sake of uniformity). Ms Jana (ANC) asserted that the provision should address "the best interest of the child", and Mr Nel furthered her point by saying that as it now stands the provision does not take cognisance of the fact that a "criminal child" may be attending school and does not make provision for the further schooling of a child. The chairperson responded by saying that "issues of education" is ultra vires the powers and the functions of the Justice Department and the committee can only via a resolution bring the issue to the attention of the relevant departments. Moreover the chairperson asked the department to insert "the best interests of the child" as the new section 71 A(7)(b) in the Bill. Furthermore the department was asked to combine section 71A(7)(b) and (c) to form one provision.
The committee accepted option 1. In 8 (c) the following amendment was proposed by the committee, "the Department of Welfare shall, for purposes of circulating to stakeholders from time to time, provide the Department of Justice with relevant information relating to this section in order to ensure the effective and proper application thereof". A duty is therefore placed on the Welfare department.
The Legal Aid Act was amended and the department was therefore asked to check if the Act was properly referred to in this clause.
Section 71A (11)
Mr Nel wanted to know whether this provision affects the common law position that infants i.e. children between the ages of 0-7 years are doli inculpax, implying that such children are by virtue of the age precluded from criminal liability. The department was asked to research the issue.
Section 71A (13) page 14 of the Bill
Ms Jana felt that the provision is drafted too widely. The chairperson disagreed and asserted that the provision is aimed at gang-related and syndicate activities and therefore it appears to be drafted widely.
Mr Hofmeyr felt that the words "an attempt to commit any of the offences referred to in items (1) (2) and (3)" should be inserted in the provision. The department was asked to effect the amendment
The committee voted on the Bill and passed it.