The Chairperson set out the process that the Committee would follow during the public hearings on the Child Justice Bill, stressing the fact that public submissions could be made right up to end of the process. The Department of Justice was asked to explain the delay in bringing the Bill again before this Committee. The Department explained that this was due to the complexity of the Bill, the fact that other Bills were processed first and the heavy workload. The Department then introduced the rationale and main concepts of the Bill, indicating that there was now a redrafted version, which had incorporated the comments made by the Portfolio Committee in 2002 and 2003. That version was submitted to Cabinet in November 2007 and approval given to re-submit the Bill to this current Committee. He indicated the major changes between the original and resubmitted Bills, and noted that the Department still had to effect some changes to bring clauses in line with the Children’s legislation and the Criminal Law (Minimum Sentencing) and (Sexual Offences) legislation that had been finalised last year. In particular the Schedules would need to be tightened and explained in full, and this would be done at a later briefing.
Childline indicated that it supported the concept of the Bill, and its preventative and rehabilitative focus, but wished to make comments on the age at which children were presumed to be able to commit crimes, suggesting that this be raised further from the current 10 years, and commenting that in some countries this age was as high as 18 years. It further suggested that prescripts be put in place for police stations holding children in cells, that there was a need to re-think the definition of those who could assess children, that all children, irrespective of the crime committed, should be assessed, and that diversion remain as an option for all children. If not, then it would like the age of exclusion to be raised to 16. Members raised queries on the proposed qualifications, and discussed the high exposure of children to crime, the age presumptions, and asked for further motivated submissions and comparisons. Lack of capacity at the Department of Social Development should be further investigated.
The CSIR Crime Prevention Research Group stressed that it would like to see all children being assessed, all to be capable of diversion, all to have a preliminary enquiry, and that no child could be subject to minimum sentencing. It also would like to see crime prevention mentioned as an objective or outcome of the Bill. Restorative justice must be understood in its proper context. There would need to be a significant mind shift and extensive training, and it recommended that a political head be tasked with responsibility.
Global Security Limited dealt with issues around the period when a child was awaiting trial, suggested that offending behaviour during that period must be considered, and that time already spent in prison must be taken into account when sentencing. Sentencing outcomes must be relevant to residential facilities. Assessments should be done when referrals to correctional facilities were made. Programmes regulating offending behaviour should be standardised, and there should be regular audits of services and infrastructures in residential facilities by independent agents.
Child Justice Bill B49-2002: Chairperson’s Introductory Remarks
The Chairperson noted that the Child Justice Bill had been long in coming before this Committee. The process of public hearings could have begun earlier if the advertisements in the press had appeared earlier, and the reasons for that would be discussed in a closed Committee hearing. A letter had been written to the Chairperson noting that the public hearings were being held very early in the new year, and this caused some inconvenience. The Chairperson took note of these comments, but pointed out that this Committee did not operate differently from any other, and that he did not consider the timing would cause prejudice as the Committee would take written comments right up to the time of voting, and where appropriate, could also call for oral submissions. If there was time, the Committee would like to apprise those making submissions of what had been done. However, it must also be noted that parliamentarians were not obliged to follow every public suggestion as they had the task to finalise the Bill. There would naturally be full consultation, and parliament did operate as an organ of popular power. He asked the Department of Justice (DOJ) also to engage with the commentators as far as possible, and for those making submissions to discuss matters also with each other, even during the session.
Mr S Swart (ACDP) expressed concern about the fact that this Bill had taken so long to bring through the parliamentary process. He knew that there was pressure to finalise other Bills, and had some concerns that the Directorate of Special Operations (DSO) Bill might, for instance, take precedence over this one. He pointed out that diversion was already happening in he courts without the necessary regulatory framework.
The Chairperson agreed that the Department could be asked to give an explanation, but reminded all that there had been a nine-month extension. There were majority mandates for the DSO Bill. The complexity of the Bill had much to do with the time that would be required, rather than the remainder of the Committee programme.
Imam G Solomon (ANC) raised a procedural point, and wondered whether the opportunity to comment and interact would not unduly delay the proceedings.
The Chairperson replied that this Committee had a mandate to operate in this way, and although all Members might not agree with that system, it was not inconsistent with the Rules of parliament. In other Committees, this had been done. This was a parliament of the people and full engagement must be allowed. A number of references had been made to the way in which the previous committees had operated. However, obviously he would run the meetings within the constraints of time.
Child Justice Bill (the Bill): Department of Justice (DOJ) Briefing
Mr Lawrence Bassett, Chief Director: Legislation, DOJ, noted that the Bill was a complex one. Before the 2004 elections the then-Chairperson was mandated by the Committee to get the Bill ready and give effect to the deliberations of the Committee thus far, before the elections. That had taken a while. Members were aware that the Department had an enormous legislative programme and many other bills were revised by Parliament after the 2004 election. The Department had been through a long process on the Criminal Law (Sexual Offences) Bill and the staff who had worked on that Bill were now concentrating on the Child Justice Bill.
Mr Deon Rudman, Deputy Director General: Legislation, DOJ, agreed with Mr Bassett, and said that there had been a comprehensive re-draft. The Bill now before the Committee was not the same as that first introduced into Parliament, and it had even had to be taken back to Cabinet. The Department had also been working on a number of other priority bills at the time.
Mr Bassett said that he would give an overview of the Bill, highlighting the additions made by the Executive.
Adv Shireen Said, Chief Director: Vulnerable Groups, DOJ, noted that the Committee on Child Justice was supported by members of the Departments of Social Development, South African Police Services (SAPS) and others. The Child Justice Bill had been resumed from the stage reached during the second parliament.
Mr Bassett had prepared extracts from various relevant provisions on the rights of the child, which had a bearing on the Bill. He noted that the re-submitted Bill already reflected the changes that the previous Portfolio Committee had asked to be made, and these in turn reflected the approach that Committee had taken at the time. That Committee had also identified a number of issues to flag for further discussion.
Mr Bassett indicated that the imperatives set out in Section 28 of the Constitution regarded every person under 18 years of age as a child, and gave them a right not to be detained, except where necessary, in which case the detention must be for the shortest possible time and under appropriate circumstances. Similar wording appeared in the Convention on the Rights of the Child (CRC), which had been ratified by South Africa in June 1995. Article 37 of CRC required member states not to subject children to torture, capital punishment or life imprisonment without the possibility of release. Further provisions relating to arrest and detention said that imprisonment was to be used for last resort and only for the shortest possible time. Requirements in relation to dignity, separation from adults while detained, and the right to maintain contact with his or her family were set out. The signatory States recognised the right of every child to be treated in a way that was consistent with dignity, and would promote reformation and reintegration into society. There was to be establishment of a minimum age below which children were deemed not to be able to commit a crime.
Following ratification of the CRC, the South African Law Reform Commission (SALRC) was asked to do an investigation into juvenile justice, which was done during a collaborative and comprehensive consultative process.
After Cabinet approved the introduction of the original Bill (OB), the Department had given a briefing to the then-Committee, and extensive public hearings were held. That Committee had deliberated at length on the public submissions. Shortly before the 2004 elections, the DOJ was asked to effect the changes that the Committee had wanted, and that process was concluded. The Bill was then referred back to Cabinet to note the changes that the Committee suggested, in November 2007, and Cabinet endorsed those changes. The reintroduced Bill (RB) therefore reflected changes arising from public submissions and the then-Committee’s views. Mr Bassett said he would later outline the main changes that had been made between the OB and RB.
The Bill sought to deal with crime prevention of children below 18, to protect children from negative effects of imprisonment, to involve committees, to promote programmes to hold children accountable, to reduce trials, to promote the principle that imprisonment of children was a last resort and to provide a monitoring mechanism for the child justice system. It was therefore intended to deal with child justice matters, but must be read together with the Criminal Procedure Act (CPA).
The Bill placed emphasis on the first 48 hours after commission of an offence. Arrest was to be used as a last resort. There was emphasis on the release of a child into the care of a parent or appropriate adult on bail. During that time period, there must be individual assessment by a probation officer of every child alleged to have committed an offence, to formulate the possibility of diversion, and to release the child into familial care. A preliminary enquiry must be held for every child alleged to have committed an offence, to be chaired by an inquiry magistrate, with all present, including the child, being encouraged to participate. The prosecutor had the final say whether diversion was possible. The release of the child into the care of a parent, guardian, or appropriate adult, or further detention of the child in a place of safety or in a cell, were also to be dealt with in that preliminary enquiry.
Another central part of the OB was diversion. Any case, no matter how serious, could in that version be considered for diversion. Failure to comply with a diversion order could result in the prosecution continuing. There were three levels of programmes with the time periods set out. These diversion programmes must be registered and conform to minimum standards. Those cases not diverted would go to plea and trial at the Child Justice Court, where the procedures were similar to those set out in the Criminal Procedure Act.
The Bill contained a large range of sentencing options, including restoration to the victim. Life imprisonment was prohibited and no imprisonment for a child under 14 could be imposed in respect of a Schedule 1 offence. Schedule 1 contained the least serious offences, Schedule 2 more serious, and Schedule 3 offences were the most serious. Legal representation was to be provided at State expense in certain circumstances. The Magistrate in the Child Justice Court must decide, when determining the sentence, whether the criminal record must be expunged after a time. The Bill also contained some important substantive law provisions, including a change to the irrebuttable lack of criminal capacity, now raised from seven to ten years, and a rebuttable presumption of lack of criminal capacity for those between ten and fourteen. The State must prove beyond a reasonable doubt that the child appreciated the difference between right and wrong and that the child appreciated the consequences of the actions. The Departments had jurisdiction to establish and maintain one-stop centres for child justice, which may be situated away from a court or police station. Each government department was responsible for certain services.
The Bill was primarily applicable to those under 18 years of age, but could also apply, when the Director of Public Prosecutions (DPP) so directed, to those between 18 and 21. A child under 10 could not be arrested. At a preliminary enquiry, or during trial, proceedings could be stopped and an enquiry held as to whether the child was a child in need of care.
The Bill proposed an expansion of the grounds of automatic review. Any sentence involving correctional supervision in a residential requirement, whether suspended wholly or partially, must be subject to automatic review.
Mr Bassett reiterated that there were three Schedules setting out the offences. Schedule 1 listed the less serious offences, up to Schedule 3, which dealt with the very serious offences. Mr Bassett had prepared another document for Members listing in order the different offences, and this would be tabled and explained in more detail at a later stage. The Department would also distribute a flow chart showing how the Bill worked.
Mr Bassett then focused on the reintroduced Bill (RB). When deliberating on the Bill, the then-Committee had felt that the Bill was in places couched in terms that could give rise to unrealistic expectations, and therefore suggested that some provisions be tempered to preclude problems in practice, and to allow for more flexibility. The Committee had also felt that some provisions did not take into account the reality of very young children committing violent and serious offences, and that perhaps there should be a balance between the safety of society against the rights of children. The Bill had also been re-arranged from a drafting point of view.
Similar to its predecessor, the RB was to establish a criminal justice system for children in conflict with the law. Like the OB, a central feature was the creation of a mechanism to consider diverting children who had committed less serious offences away from the formal criminal justice system. It also provided for a increase in the minimum age of capacity, creating a mechanism for children who lacked criminal capacity. It provided for assessment of certain children by probation officers. There were additional measures for release from detention and placement, and where cases had not been diverted. It extended sentencing options for those convicted. It attempted to push the notion of restorative justice.
The crux of the RB lay in Clauses 4, 5 and 11. Clause 4 dealt with the application of the legislation, saying that it applied to those between 10 and 18, with certain exceptions to that general statement. Only Part 2 dealt with children below the age of 10. The Bill could also apply to those between 18 and 21. The Criminal Procedure Act would apply where this Bill did not apply, and the two pieces of legislation must be read together. Schedule 7 would assist in determining which procedures would apply and this was one of the issues that the previous Committee had flagged for further discussion.
Clause 5 related to multiple charges, stating that the most serious offence would guide the manner in which the child was to be dealt with.
Clause 11 set out how cases should be dealt with in terms of the Bill. It set out five different ways for dealing with a child in conflict with the law, and there was to a large degree matching with the offences listed in Schedules 1, 2 and 3. The first scenario dealt with a child below the age of 10 years, who was deemed not to have criminal capacity. The second related to a child between 10 and 14 years, who was deemed to be unlikely to have criminal capacity (a rebuttable presumption) and who must be referred to a probation officer. However, in the case of a Schedule 1 offence there was no need to go to a criminal enquiry, but the case would be diverted to the prosecutor. The third scenario related to a Schedule 1 offence that was not diverted by the prosecutor, a Schedule 2 offence, where the case went to a preliminary enquiry, and where the child would be assessed by a probation officer. Fourthly, a person from 18 to 21 years of age could be referred to the prosecutor to consider diversion. Fifthly, in the case of offences under Schedule 1, 2 or Part II of Schedule 3, offences that were not diverted, would go directly to trial in the Child Justice Court (CJC). Schedule 1, 2 and some of Schedule 3 offences were divertible. Some offences in Part 1 of Schedule 3 could not be diverted, would not have a preliminary enquiry, and would go directly to trial. In a nutshell, he said therefore that the less serious offences would be assessed and go to enquiry, and diversion would be considered. The more serious offences would go straight to trial.
Clause 35 of the RB was important and determined that an assessment procedure by a probation officer was compulsory for all children below 10, for those under 14 whose criminal capacity was unlikely to be proved, those in need of care, a child who was to be considered for diversion, and all those between the ages of 10 and 14 who were to be considered for diversion under clauses 11(b) or (c).
Mr Bassett said he had singled out these provisions, because these two clauses in essence gave flesh to the Committee's approach in the RB that it was not necessary for every child to go through the preliminary enquiry. A person who had committed a serious or violent offence could perhaps qualify, in terms of the bill, for diversion. The reasoning of the Committee had been to try to avoid a clogging of the system, due to capacity constraints. The Committee had tried to introduce some measure of flexibility and to cover implementation problems which had caused concern.
Whereas the OB had provisions in various chapters dealing with release and placement, these provisions had been put together in the RB and the Chapter had been divided into two parts – one dealing with each of release and placement, in the event of the child being detained. There was substantial detail and a more detailed document would be made available to members.
Prosecutorial diversion was not in the OB, but was contained in the RB. The Committee had felt that this would also avoid clogging the system. If the prosecutor decided to divert, this must be confirmed by a Magistrate after the child had appeared before him or her in Chambers, and must be made an Order of Court.
In the RB diversion was now only permissible in the case of certain serious offences. All diversions must be made orders of court. The RB contained comprehensive provisions dealing with accreditation of diversion programmes and service providers. Only those complying with minimum standards could be used. The RB also envisaged the creation of a policy system and accreditation. The Committee had emphasised that children who were diverted must be dealt with appropriately and meaningfully when diverted. Another new aspect of the Bill, in Clause 57, provided that rape, compelled rape and certain cases of sexual offences and consensual sexual penetration, with certain children, may be considered for diversion if the child was below 14 at the time of the offence. The type of rape and sexual offences contemplated here were those without undue violence or other aggravating circumstances, but the Committee might want to discuss this matter again. Cases of this nature could only be considered if they complied with directives to be issued by the National Director of Public Prosecutions.
The RB had two, not three, levels of diversion options. In this regard, Ms Thandazile Skhosana, Senior State Law Advisor, DOJ, explained that the procedures had essentially been telescoped.
The principles around trials in the CJC had not changed much from those in the OB, except that those children committing serious offences went directly to trial, instead of to a preliminary enquiry.
The OB had made provision for a child in custody, a place of safety, in a secure care facility or prison to be released if the trial was not finalised in six months, except for very serious offences. The RB now provided that where a child remained in detention for a period of two years from first detention, or twelve months after plea, then the child must be released from detention, unless charged with certain specific (serious) offences. The OB had made provision for children to be brought back to court every 60 days if they were in a secure care facility, or every 30 days, if they were in prison. The RB provided that the matters could not be postponed for more than 30 days at a time.
The RB also made provision for an impact statement on sentencing, which had not been in the OB. A sentence of correctional supervision could not be imposed for those under 14. The RB only allowed correctional supervision for those below 14, but for those of 14 and older, the court could impose imprisonment that could be converted to correctional supervision. The RB referred still to sentencing to a residential facility or reform school, and in this regard Mr Bassett stressed that the DOJ had not yet dealt with the changes that would have to result from the new Children’s legislation. That had been done on purpose. The OB had noted that there could be sentencing to a residential facility for a maximum of two years, with a release of the child at age 18. The RB now had a provision for a five-year sentence, with release at the age of 21. The RB now had safety mechanisms built in to ensure that children were sent to these appropriate facilities and would not languish in prison. The RB said no sentence, including imprisonment for life, may deny the possibility of earlier release. The OB had said that there could not be imprisonment for more than 25 years, but this was another issue that the then-Committee had wished to flag for further consideration.
The RB confirmed that the minimum sentencing provisions could only apply to those of older than 16 years, but it was understood that imprisonment could only apply in the most serious offences, under exceptional circumstances, with substantial and compelling reasons, or where there were previous convictions. If the minimum sentence was imposed, then this would be for a period not exceeding 25 years.
In the RB, although legal representation was not prohibited, it would not be provided at State expense during the early stages. A child without his or her own lawyer should be referred to the Legal Aid Board, if that child was below 14, or below the age of 16 and in prison, or was likely to get a prison sentence if convicted.
In relation to the appeals and automatic review, the Criminal Procedure Act would apply, but the Bill said that in respect of children there would be an automatic right of appeal, without the necessity to apply for leave to appeal. There would be automatic review.
The RB now provided that only Schedule 1 and 2 offences could be expunged, and that this would be done respectively after five and ten years.
The RB also put in comprehensive provisions in regard to the regulations, directives, and other subordinate legislation.
The RB, as distinct from the OB, had now also dealt with the position of children under 10 in a much detail.
Mr Bassett indicated again that some issues had not yet been attended to by the Department. Schedule 6 contained a table of Acts that needed to be amended consequentially, and it might be prudent to deal with those once there was more detail on the Bill. The DOJ needed also to align this with the Children’s Act, the Minimum Sentencing legislation and to ensure full interface with the CPA.
Adv Shireen Said noted that implementation issues were still being worked upon, and would be dealt with at a later stage.
The Chairperson noted that Committees were increasingly looking at capacity and procedures for implementation. This would include costings and plans for implementation. It was also possible to state that certain provisions be phased in at certain stages. One of the reasons for reservations in 2002 related to implementation and costing, and he stressed therefore that this should be dealt with.
Mr S Swart said that there had been a costing done in 2002, but he would share concerns around this issue. In particular, there would need to be an update on the capacity of the Department of Social Development (DSD) to deal with the Bill. However, the Committee would also need a briefing on what was happening in practice with diversion at the moment.
The Chairperson suggested that these kinds of questions could be dealt with in more detail at Committee sessions next week. He agreed that many magistrates and judges were already applying aspects of the Bill.
Adv Said noted that there were still a few processes under way. The cost of the Bill had been assessed, but not necessarily the roll out, nor the time frames during which it would be staggered. There were different stages at pilot level, so the DOJ had already started the process, and would hope to have a fully costed implementation plan, including the roll out, within the next three to four months. However, already in terms of the monitoring policy framework, DOJ had begun to develop an information management system, using the South African context, taking into account child headed households and the like. At the moment there was difficulty in tracking a child through the various systems. Other aspects included a communication and media strategy. Infrastructure costs would require alignment with the Regional Jurisdiction Bill. It was planned to roll out one-stop centres in all nine provinces. The costing of each had been given at around R20 million per centre. The Children's Amendment Act also required certain processes. It was likely that only about 7% of cases needed to go to full trial. Other aspects would present themselves as the Bill proceeded.
Adv Said added that the increasing number of children being used by adults to commit crime, and other socio-economic factors, also needed to be taken into account. Already there appeared to be a need for an inter-sectoral response. The Inter Ministerial Committee had been running for some years, and was now convened by the DOJ. This would ensure coordination and address gaps in the system. Departments involved included not only those named earlier, but also the Departments of Health, Education and Labour and the Child Justice Alliance, a conglomerate of several NGOs. It would be a challenge to ensure that operational aspects could be managed at the provincial level, with policy being made at national level. These issues would come up as the hearings proceeded. Training was another issue, to provide specialised understanding of how to manage children throughout the system.
Mr L Joubert (DA) asked why the age of criminal capacity had been increased.
Mr Bassett said that the age had been changed already at the time of the OB, following the investigation of the SALRC. The Convention on the Rights of the Child noted that there must be a minimum age established. There was a great deal of work on this, and the SALRC had recommended that the age be raised from the current seven to ten years. Although he could not remember the reasons off hand, he noted that there had been comparative studies and he would make these available.
Mr Joubert asked whether the Child Justice Court was an ordinary court.
Mr Bassett said it was essentially a magistrate's court at district level. Although it could be a dedicated court in he larger centres, it was likely simply to be a normal court, convened as a Child Justice Court, in smaller centres.
The Chairperson asked whether there had been comparisons with the situation in other middle-income developing countries, such as the Philippines. South Africa could not necessarily aspire to what the USA was doing, but he felt that comparison with similar countries elsewhere would be useful.
Mr Bassett said that he would investigate this.
Mr Swart said that the problem of adults using children to commit crime was raised during the original discussions, and this was an increasing challenge. He suggested that perhaps consideration could be given to creation of a separate offence.
Mr Bassett said that Clause 94 already provided that an adult using a child to commit an offence would be regarded as an aggravating circumstance.
Imam Solomon said that this Bill had also emanated from the African Charter, and some of the value systems of Africa, namely that the child belonged with his or her family, were enshrined here, and he suggested that there be reference to this.
Adv C Johnson (ANC) asked if diversion would be a possibility for all children.
Mr Bassett said that diversion was not a possibility for offences under Part I of Schedule 3.
A comment as made from the floor that there had been a full costing and implementation plan drawn up by the Inter-sectoral Committee, which had included a three-year plan with a budgeting cycle. The commentator noted that although this would be outdated now, she did not think that it would be too difficult to put together.
Childline Public Submission
Ms Joan van Niekerk, National Coordinator, Childline, noted that Childline operated a toll free counselling service for adults regarding children, provided therapy services to children suffering abuse and trauma, and did prevention and education work in child protection. It had developed and provided therapy and diversion programmes for adults committing offences against children. The crisis line in 2006 dealt with queries relating to children in conflict with the law, including those relating to children detained in police cells.
Childline welcomed the strong preventative focus of the Bill, and also the fact that the Bill held children accountable for their behaviour, as appropriate to the age and level of development. It believed that it was important for children to take responsibility for their own behaviour. It welcomed the remedial focus of the Bill and the potential to involve family and community in the rehabilitation of the child. The restorative and rehabilitative elements were welcomed, and the concept of keeping children out of prison and police cells. Imprisonment failed to allow children could grow and take responsibility for development.
Ms van Niekerk noted that she would focus on a few aspects that were of concern.
Childline had some problems with the definition and the way in which assessment was referred to in the Bill. This was a process with numerous procedures. Probation officers had a specific skills-set and other skills may be required to produce a good assessment. Sometimes probation officers were not immediately available, particularly in rural areas, where the DSD already struggled to provide services to children. Childline thus would recommend that the definition around assessment be expanded to include "and / or a suitably qualified person" and that all children, no matter what crime was committed, should be included in the assessment process, particularly since those committing the more serious crimes often required Child Protection Services. Without this, their needs would not be met. There needed to be provision for assessment in a suitable place, and for the child to be able to request the presence of a support person, who would not necessarily be the legal representative.
Childline commented that although it welcomed the lifting of the age limit for the irrebuttable presumption, ten years of age was still too young, and it would recommend an increase to at least 12 years. This was supported by the UN Committee on the Rights of the Child (which had commented that the 10-years was very low) and by examples from other countries. In the Philippines the age of criminal capacity had been increased to 15 years. Where children lacked criminal capacity, they would not be left without a service. They could still be referred to rehabilitation and developmental programmes, and these remedial programmes should remain.
Childline would like to see diversion remaining as an option for all children. If not, then it would like the age of exclusion to be raised to 16. The current limit was in contradiction with other legislation; for instance, the Sexual Offences Act allowed consensual sexual activity, based on proper understanding, for those above 16. It was contradictory to have the age for commission of sexual crimes at below 16. Those below 16 may have a perception that sexual crimes were wrong, but had no ability to act according to that knowledge. If children under 16 were held responsible, this would exclude them from the necessary rehabilitative process. The likelihood of seeing or being involved in aberrant sexual behaviour in prisons was very high, and this would vitiate against proper rehabilitation.
Childline also was concerned at protection of children in police custody. The clause protecting them in the Bill was inadequate. It considered only matters of health and medical attention, and should be expanded to psycho-social distress or neglect. Childline further recommended that police stations must be regularly inspected and that police cells should have to regularly report if they were holding a child under 18.
Mr B Magwanishe (ANC) asked who should make the determination of "suitably qualified" as suggested by Childline.
Ms van Niekerk said that one would have to look at the needs of the child and the crime committed. One might have to look at a social work assistant, a psychologist or someone with some other skills. Some degree of guidance could be given in the regulations. She was concerned that the qualifications were set at such a high level that children could be excluded. She also did not think that probation officers could assess criminal capacity properly, particularly where the child was older or the crime was serious. A person with an advanced qualification in child assessment, clinical psychology or social work should be considered.
Mr Solomon asked where the suggestion to raise the age of criminal capacity had emanated. He noted that in Africa children were exposed to violence, guns and crime at an earlier age, so that there was greater potential for criminality at that age already.
Ms van Niekerk agreed that exposure was very high, which was why the preventative elements of the Bill were so important. She had extensive experience in working with both perpetrators and victims of sexual violent crime. South African society did not discuss sexual matters with children, who could not relate to adult behaviour, and the impact of their sexual behaviour would only dawn in their early teenage years. She pointed out that children who went through diversion, or correctional supervision, did not get a "soft option". There was a great deal of research and experience that noted that children under 14 would not understand adult sexual behaviour.
The Chairperson suggested that perhaps it would be useful for the Department to respond again on the age at the end of the public hearings. He questioned whether the UN was of the view that 12 years was the minimum age.
Ms van Niekerk said that there were recommendations for criminal capacity to be put even higher than 12. She would like to see it higher. Most of Latin America, according to Mr Muntingh, had an age of eighteen. However, from a practical point of view, she accepted that there might be opposition to fixing the age of criminal capacity too high.
Mr Bassett said that he would have a look at all the comments. His immediate reaction was to agree with Imam Solomon that high levels of violence would tend to make children more aware at an earlier age. However, he noted that there was a marked increase in children being used by criminals, and he wondered what raising the age would effect this.
Mr J Jeffrey (ANC) noted that many countries in Africa were using child soldiers. He felt that it would be useful for NGOs to give a comparative study. He also suggested that the DOJ could provide statistics for how many children between seven and ten, and ten and twelve, were in trouble with the law, and what types of crimes were being committed.
The Chairperson suggested that a motivated submission should be referred to the Committee on this point.
Mr Swart said also that it would be useful to have some further evidence, perhaps from the DSD, on the capacity difficulties
Ms Johnson asked for more detail behind the thinking not to assess all children.
Ms van Niekerk said that the Children's Act had created a personnel crisis. Probation Services drew heavily on the available pool of social workers. DSD had had to develop a skills retention and attraction policy. There was open admission of the shortage of social workers, affected also by the HIV / AIDS pandemic. This legislation would add to the call on social workers, and there was a necessity to be creative about the resources, without dropping the standard of care.
The Chairperson noted that there was a dichotomy between lack of capacity, and asking for goals to be elevated. This Committee had, in 2002, noted that most submissions set out laudable goals and values but there was a need to be realistic. He also noted that the discussions in 2002 could be re-opened, as some matters may be more achievable now. He was not sure that it would be possible to assess all children, although he did not disagree with the principle.
Mr Bassett noted that capacity had indeed been an ongoing issue. In regard to the problem with the police not informing anyone that a child was being held, he said that there was provision now in the Bill for such matters.
Global Security Limited (GSL) Submission
A representative of Global Security Limited (GSL) stated that the submission dealt with issues surrounding the awaiting-trial period, and the issue of offending behaviour during the awaiting trial period. The question must be asked whether the time already served in prison by an offender should be taken into account during sentencing. In respect of offending behaviour after sentencing, it was submitted that most children would go through the sentencing period without any assessment.
Global Security Limited therefore recommended that the Bill should include sentencing outcomes that should be relevant to all residential facilities. When a referral to a correctional facility was made, an assessment must be done. It was also recommended that engagement of specific programmes should be made part of the sentencing process, and that programmes regulating offending behaviour should be standardised. A further recommendation was that regular audits of services and infrastructure in the residential facilities should be carried out by independent agencies, and that the role of these agencies should be spelt out in the Bill.
CSIR Crime Prevention Research Group (CPRG) Submission
The CSIR Crime Prevention Group noted that it was part of the driver group of the Child Justice Alliance and supported the submission of the Child Justice Bill. However, it felt that there was a need that all children should be assessed, could be diverted, and should have a preliminary enquiry, and that no child could be sentenced to a minimum sentence. Crime prevention was not explicitly stated as an objective or outcome of the Bill, but should be so stated. Furthermore it was recommended that training and evaluation of services should be included in the Bill, and that a political head be assigned that responsibility. It also recommended that a credible evaluation of crime prevention mechanisms should be carried out.
Mr Swart asked who was qualified to offer assessment services.
A representative from the Child Justice Alliance stated that there were various persons who could offer assessment services, such as criminologists, psychologists and even retired school teachers. She added that many organisations now offered diversion services already.
The Chairperson asked what the conclusion of the previous Portfolio Committee had been on assessment of children below eighteen years old..
Imam Solomon noted that age capacity was not the only determinant of whether a child should undergo assessment. He stated that some children repeatedly committed such heinous crimes that they should not be allowed to undergo assessment. This was the idea behind the previous Committee’s conclusions not to prescribe assessment in all cases, when it had previously considered the matter.
Mr Magwanishe noted that the Bill was very difficult to read and understand as it contained a lot of cross-referencing. He suggested that these should be taken into consideration when drafting in the future.
The Chairperson agreed that the Bill was difficult to read, and he would even call it “user-unfriendly”. Whilst the Department of Justice must be commended for the amount of work that it had done so far in putting the Bill together, he proposed that after the policy issues had been dealt with the Bill should be handed over to an external body to deal with the wording.
Mr Landers noted that the Committee had in the past agreed in principle that every Bill it passed would be user-friendly, and he was worried that this principle was being eroded or jettisoned. He agreed that the Bill needed to be re-written.
Ms N Mahlawe expressed her agreement with these points.
Imam Solomon (ANC) cautioned that the Committee must be careful not to distort the essence of the Bill in the process of re-writing it. He felt that the cross-referencing was useful in explaining the Bill
Mr J Jeffrey (ANC) asked why there were so many awaiting-trial child offenders ending up in prison. He asked if the secure care facilities were adequate to hold children who had committed very severe crimes.
Mr Landers added that he would like to know if the available secure care facilities were adequate, and what the response was to presiding officers who felt that their authority was being encroached upon by legislation requiring them to consider such facilities.
Mr Lucas Muntingh, representative for Civil Society Prison Reform Initiative, stated that the number of awaiting-trial children in prison had been reduced from about 4 000 to 2 000. He added that the number would be reduced even more if there was a commitment to find alternative residential facilities and to building capacity. He noted that there was a lack of commitment from presiding officers and that sometimes in addition children were inappropriately arrested. He added that some of the secure care facilities were adequately run, while some were undergoing renovation.
The Chairperson commended the Department for the work it had put into the Bill, and thanked all groups for their contributions so far.
The meeting was adjourned.
- SASPCAN submission
- CSIR Crime Prevention Research Group presentation.
- CSIR Crime Prevention Research Group submission.
- Draft Committee Programme
- Civil Society Prison Reform Initiative presentation
- Civil Society Prison Reform Initiative Submission
- Restorative Justice Centre submission
- Campus Law Clinic, University of Kwazulu Natal
- Centre for Child Law presentation
- Centre for Child Law Submission
- Childline Submission
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