Public Protector Amendment Bill & Criminal Justice Amendment Bill: discussion

SECURITY AND JUSTICE SELECT COMMITTEE
1 October 1998
PUBLIC PROTECTOR AMENDMENT BILL: DISCUSSION & CRIMINAL JUSTICE AMENDMENT BILL: DISCUSSION

Documents handed out
Defence Specialist Tribunal Bill [B100B – 98]
Witness Protection Bill [B130 – 98]
Criminal Procedure Amendment Bill [B132 – 98]
Public Protector Amendment Bill [B79B – 98]
Proposed Amendment to Public Protector Bill [79B -98]
Consideration of the Criminal Procedures Amendment Bill [59 - 98]

SUMMARY
The committee discussed the Criminal Procedure Amendment Bill (with input a representative from LHR (Lawyers for Human Rights) and the Public Protector Amendment Bill and reached agreement on amendments to both.

The committee agreed to postpone discussion of the ratification of four international conventions (International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Covenant on Civil and Political Rights, International Convention on the Elimination of all forms of Racial Discrimination, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances) until November, and to attend the National Assembly briefing on the conventions.

The Committee also agreed to sit during the period of 15 October – 2 November despite some members’ commitments in their constituency during that time. It was agreed that the members who could not attend the committee could ask their counterparts to brief them on the progress of the committee.

MINUTES
Public Protector Amendment Bill [B79B – 98]
Ms Lebeko (law adviser to the Department of Justice) detailed the two amendments for the committee to decide on.
The first was the insertion of:
‘provided that any report shall also be tabled in the National Council of Provinces for information purposes only’
after the word ‘year’ in clause 11 on page 16, line 15.
The purpose of this amendment is to ensure that the Public Protector’s reports on its activities are available to the National Council of Provinces.

The second amendment to insert in clause 11, page 16, line 29, after ‘National Council of Provinces’:
‘provided that the Chairperson of the National Council of provinces shall, if requested by any of the provinces, make such a request’.

Mr Radue (Eastern Cape, NP) thought that the first amendment may be inconsistent with s 181(5) of the Constitution which provides that the Public Protector is ‘accountable to the National Assembly, and must report on [its] activities and the performance of [its] functions at least once a year.’

The chairperson, Mr Moosa (Gauteng, ANC) said that the fact that the Public Protector is accountable to the National Assembly does not preclude legislation obliging the Public Protector to report to the National Council of Provinces. He added that the amendment would not seek to make the Public Protector accountable to the NCOP, in the sense of the NCOP wielding any control over the Public Protector, only to provide for the NCOP to be informed of the activities of the Public Protector.

Mr Surty (North-West province, ANC) said that the ‘for information purposes only’ part of the amendment made it clear that the NCOP did not seek to have control over the Public Protector. Mr Moosa replied that he did not like the ‘for information purposes only’, explaining that there was no need for such a limitation in the legislation because it is clear from the Constitution, which is paramount, that the NCOP may not have control over the Public Protector. Plus the limitation may go further than is constitutionally necessary - for instance preclude debate by NCOP over a report from the Public Protector. The committee agreed that ‘for information purposes only’ should be removed and the rest of the amendment should remain.

Mr Moosa then moved on to the second amendment. He said he did not think that the chairperson of the NCOP should be forced by an NCOP member to request a report from the Public Protector. The committee agreed that the chairperson of the NCOP should have discretion whether to request a report so the second amendment should be rejected.

Voting was postponed because there was not a quorum.

Criminal Procedure Amendment Bill [B59-98]
The Bill was discussed and at the conclusion of the discussion the committee was ready to vote except that there was no quorum so voting was postponed.

Below follows a paraphrase of the discussion on the Bill:
Mr Moosa: This is not a public hearing but we have a guest, Ms Anne Skelton, from Lawyers for Human Rights, with us and she is going to talk briefly.
Ms Skelton: I chair a juvenile justice project committee which aims to develop a comprehensive juvenile justice program. It is concerned with long term issues and here I will focus on some things which I think will be problematic in the long term. I have six points. Firstly, there appears to be no minimum age at which a child can be imprisoned. Considering the common law position that a child younger than 14 is deemed to lack criminal capacity until it is proven otherwise, imprisoning a child under 14 pending trial seems to be a serious infringement of the child's rights. The minimum age of 14 should be reinstated. My next point relates to bail. Under the Constitution, imprisoning a child must only be done as a last resort. But according to s 71(a) the bail laws apply to children.
Mr Moosa: But s 71 only deals with certain children, the ones who fall under chapter 8. The bail provisions only apply if, according to the Bill, the child can be held in custody.
Mr Basset (Law adviser, Department of Justice): The constitution guarantees that all children have a right to bail. This Bill reiterates that right, and they have this right in addition to the other right conferred in the Bill. If bail is refused then the provisions of this Bill apply.
Ms Skelton: So which applies first?
Mr Moosa: What would you like?
Ms Skelton: Can we release the child? Don't look at bail, look at release.
Mr Moosa: Release a child who is suspected of committing a schedule 8 offence?
Ms Skelton: Yes.
Mr Basset: The intention of the Bill is to confirm existing rights. When the child is arrested it is asked 'can the child be released?' If no bail provisions apply then this legislation applies.
Mr De Lange (Deputy Chair):I don't know why Ms Skelton thinks that bail doesn't apply to children. It does; the Constitution guarantees it. Bail laws give children any number of different conditions or reasons to be released on bail. When a child is arrested, bail is decided on first. If the child is suspected of committing such a serious crime that bail is not granted, then we look at imprisonment and this legislation because the question arises 'what do we do with the child now?'
Ms Skelton: Either I have not expressed myself well or I have not been heard well. My point is that bail should not be the first issue. There are ways to have children released rather than bailed and children often do not have the funds to post bail.
Mr Moosa: It says that in s 71.
Ms Skelton: The wording needs to be changed.
Mr Moosa: Ok, a technical amendment.
Mr De Lange: Not necessarily. It is clear already. It is obvious that if a child is released under s 71(1) then subsections 2,3 and 6 do not apply. They only apply if the child is not released.
Mr Radue: The first line of s 71, ‘notwithstanding anything to the contrary contained in any law’ may cause confusion in reading the sub clause.
Mr De Lange: Yes, leave it out so the sentence starts with 'without derogating'.
Mr Radue: It gets rid of the double negative.
Mr Moosa: Yes.
Ms Skelton: My third point is that by defining 'secure place of safety' in the legislation you are reducing the number of facilities that qualify as such places. Considering that the legislation makes a secure place of safety an alternative to prison, by reducing the number of secure places of safety, more children will end up in jail.
Mr Moosa: Couldn't the definition be dealt with in the regulations?
Ms Skelton: The legislation defines it. The definition should be taken out.
Mr Moosa: Then why not lobby the Minister for Welfare?
Ms Skelton: Because the definition is in this Bill. A Justice Bill shouldn't define 'secure place of safety' when it is a Welfare job.
Mr Moosa: Justice must deal with it because we must deal with people who break the law but a definition is the job of Welfare.
Ms Skelton: But the Bill does define it.
Mr De Lange: The Bill only applies to schedule 8 children who have failed to get bail. We cannot rely on Welfare to place children. At 4.00 in the afternoon when the magistrate is trying to place a child and there is no one from Welfare to recommend a secure place of safety the magistrate’s only choice is to send the child to prison. If the Bill defines 'secure place of safety' then the Magistrate will be able to decide if there is a place where he can send the child.
Welfare representative: I don't have a brief from Welfare, I'm just speaking practically. I agree that security is needed for children suspected of serious crime but there is a shortage of secure facilities and the clause will limit the number of places where children can be sent.
Mr De Lange: Let me point out that Welfare has a lot of control. Only if Welfare cannot find a suitable place for the child do you resort to the Bill.
Mr Surty: There should be an understanding of what kind of youth we are dealing with here. Both departments are working in the interests of the child but the protection of the public and other detained persons must be considered. Justice says certain things must be taken into account.
Mr Bassett: There is a high rate of absconding from places of safety (as opposed to secure places of safety), over 50% in one place, so secure care facilities are needed.
Ms Skelton: The Department of Welfare sees ‘secure place of safety’ as very specialized places and therefore only considers a limited number of places to be secure places of safety. This means more children will go to prison.
Mr Moosa: That is not what we want. The Department of Welfare has promised to have one new secure care facility in each province by next year.
Ms Skelton: Yes, we'll see.
Mr Moosa: I know they promised last year too.
Mr De Lange: I do not agree that more children will end up in jail. But even so, what is your alternative? To put children who are accused of serious crimes in places of safety where they can escape and commit more crimes?
Ms Skelton: Moving on, my fourth point is regarding s71A(3)(c) which provides that when a child is arrested and awaiting the first court appearance, the child should be held in a prison, rather than a police cell, unless there is no prison within a reasonable distance from the relevant court.
Mr De Lange: Why is this? What is wrong with a police cell while the child is awaiting the first court appearance? Ms Skelton must realize one thing: a child in a police cell (who must be suspected of committing an extremely serious crime or the child would not be there) poses a risk to the other people in the cell plus they do not have access to all the facilities of a prison. We can remove the clause but I have never heard Ms Skelton's objection before. I was not aware that any NGOs had a problem with the clause.
Ms Skelton: We are taking about the first 48 hours only? After that the child should definitely not go back to the police cells.
Mr De Lange: Yes.
Mr Moosa: If you want the clause taken out, ok.
Mr De Lange: As long as you're prepared to take responsibility for it.
Mr Moosa: Put in 'or where practicable' in the clause.
Mr De Lange: I should mention that there was a resolution that a full memorandum will accompany this Bill. It will explain every part of the legislation step by step because it is very complex.
Ms Skelton: Ok, my fifth point is regarding a child being remanded in prison. There is nothing covering it in this Bill.
Mr Moosa: Refer to the Correctional Services Bill. That is not finished so now is the time for NGOs to make submissions.
Ms Skelton: There are always going to be children in prison awaiting trial and the Correctional Services Bill does not deal with it.
Mr Moosa: So take the opportunity to lobby regarding that point. Now is the time to do it.
Ms Skelton: My final point is that in schedule 8, 12(b) and 13 list as a serious crime certain offences which are committed by a person, group of persons, syndicate or enterprise, acting in the execution or furtherance of a common purpose or conspiracy. I am concerned that this will give magistrates the opportunity to class a crime such as theft as a serious crime if it was committed by a child in a group.
Mr De Lange: This clause is aimed at a problem which is peculiar to South Africa, and that is the 900 syndicate and organized gangs which are operating here. The clause only covers gang activity, not every crime committed in a group. It does not give magistrates an open-ended power.
Mr Surty: That should be put in the memorandum.
Mr Moosa: Regarding Ms Skelton's first point, the minimum age. The point is well taken. No one wants a child under 14 to be put in jail but we cannot have a blanket provision saying these children cannot be dealt with by the Act because where would we put them? What do we do with them? We are talking about children who, prima facie, have committed serious offences and if there is nothing else suitable we must send them to prison while they await trial. Let us put an amendment in which says that the age of the accused must be taken into account when deciding what to do with the child pending trial.
Ms Skelton: But isn't it unlawful to imprison a child who lacks criminal capacity?
Mr Moosa: Capacity is determined in the trial. And keeping them in a secure place is necessary. These are dangerous children.
Ms Skelton: But they do not have capacity until a court finds that they do. And you should not legislate for a couple of kids.
Mr Moosa: Yes, we should if they are a danger to society.
Mr De Lange: There is evidence of gangs which use highly trained children to commit serious crimes. And if there is no legislation providing for children under 14 to be imprisoned they can be imprisoned anyway, because then the law is silent. Plus if children under 14 are exempt from jaill the magistrates will be merciless on children who are just above that age and we do not want 15 and 16 year olds in jail either. The best answer is to do what you and Welfare is doing and create and alternative juvenile justice system. We have agonized over this issue and decided that is the best solution.
Mr Moosa: So the amendment to clause 71 (page 4, line 35) will be that 'and where practicable' is inserted after 'place'. What are the other amendments that we've agreed on?
Mr Basset: Page 2, line 6 omit 'young' from the heading. It’s just a technical one. Page 2, line 10 was suggested by the Police Service. They want the whole of s 72 to be referred to, so that if a juvenile is remanded into the care of a guardian and the juvenile fails to appear in court then the guardian is liable. On page 4, line 25 , between ‘safety’ and ‘protection’ replace ‘or’ with ‘and’. That’s technical. On page 4, line 27 omit ‘secure’. That is technical too. On page 8 in subclause 7(m) change the ‘or’ to ‘and’ so the court must take the best interests of the child into account.
Mr Moosa: Does 7(b) say the best interest of the 'child' or 'person'?
Mr Basset: Child.
Mr Moosa: Yes, the best interests of the child is a known legal concept. That is better.
Mr Surti: Yes, it is in the Constitution and conventions.
Mr Moosa: It should be 'person' everywhere else in the Bill but 'best interest of the child'.
Mr Radue: Because we've added that the age of the person must be taken into account, the 'or' should be changed to 'and'.
Mr Moosa: Yes.
The committee agreed on the amendments and thanked Ms Skelton for her participation.