The Department of Justice briefed the Committee on the Jurisdiction of Regional Courts Amendment Bill. The Magistrate’s Courts Act was outdated and there was a process under way to rationalise all courts. In the meantime this Bill sought to address issues of access to justice. Currently the regional courts had criminal jurisdiction with one main exception. The new Bill sought to grant civil jurisdiction also to these courts. This would address not only the needs of litigants, but also help with the career paths of district court magistrates with extensive civil experience, who might not have wished to take promotion to regional magistrates posts when they were limited to hearing criminal matters. In turn this would assist the grooming of experienced regional magistrates for appointment to judicial posts, and address some of the anomalies in respect of jurisdiction at present. This Bill would also deal with the position of the old Divorce Courts.
The Association of Regional Magistrates of South Africa supported the increase of jurisdiction. It had undertaken significant training and there would be sufficiently skilled regional magistrates available. It suggested that the increase in civil jurisdiction should however be based on civil actions in the High Court, in particular to include motion court proceedings and matters under the Promotion of Access to Justice and Promotion of Access to Information Acts, and a wider range of orders under the Prevention of Organised Crime Act. There was no reason to retain separate Rules. Time periods consistent with those of the superior courts would be more appropriate and promote better access. Jurisdiction should also be extended to matters concerning the validity of a will and other status issues. The readiness of the Association in terms of training was detailed. Members asked the Association to communicate with the Department of Justice to try to reach agreement on issues of principle, and to report back in two weeks. The Department reiterated that this Bill was the start of a process and that matters would not change overnight. Members raised concerns that the Bill would have an impact on applications for civil legal aid, and the geographical spread of courts.
The Law Society of South Africa supported the amendments in principle, and noted that its practising attorney members were prepared and competent to accept acting appointments. It noted the assurances around training and geographical spread. It remained concerned that the current infrastructure of the Courts was inadequate to deal with the increase in jurisdiction, and requested the Department to address this issue. The Association suggested that liquidations of companies and sequestrations could also usefully be incorporated in the increased jurisdiction. Members raised issues around capacity, and noted that they would like to monitor the training and programmes, as these had been ongoing concerns.
The Committee then continued its public hearings on the Child Justice Bill. The SA Society for the Prevention of Child Abuse and Neglect was particularly concerned about the minimum age of criminal capacity at 10 years, suggesting that this be raised to 12, and recommended also that the parameters relating to the rebuttable presumption of lack of capacity be raised to apply from 12 to 16 years. Comparisons with other countries were cited, and the Society submitted that the special circumstances of South Africa meant that new and specialised solutions must be found, which should move away from the punishment-oriented approach towards prevention and rehabilitation. The Society was asked to critique the report and findings of the South African Law Reform Commission, and further details were requested from the Department in relation to numbers of crimes and the ages of children committing them.
During the afternoon session, a number of other civil society organisations and individuals, dedicated to the preservation of children’s rights, presented submissions to the Committee on the Child Justice Bill. Submissions were received from RAPCAN, the UCT Department of Social Development, Professor J Sloth-Nielson, the Community Law Centre of UWC, the Child Justice Alliance, the South African Catholic Bishops Conference and the Catholic Institute of Education. Generally, all the submissions supported the concept of the Bill, but raised similar concerns on several issues. These were that the benefits of the Bill should not be prescriptive and should be extended to all children, especially regarding assessment and diversion. Another consistent appeal was for the trials of co-accused children and adults to be separate proceedings. There was frequent mention of a lack of data and trained probation officers in improving the child justice system. There was deliberation over the age of criminal capacity and the protection of children who did not fall within this age group. Criticism was expressed around the imprisonment of children, either while awaiting trial, or of older children who had been sentenced. Each presenter requested a protective, rather than punitive approach to child justice.
The Department of Justice and Constitutional Development noted all the submissions and promised to respond to all the issues at a later date.
Jurisdiction of Regional Courts Bill (JRC) Department of Justice (DOJ) briefing
Mr Johan de Lange, Principal State Law Advisor, Department of Justice, noted that the Magistrate’s Courts Act 32 of 1944 was in need of overhaul in the long term. Currently that Act provided that the district courts (or the common Magistrate’s Courts, although they were not referred to by this name in the Act) had jurisdiction as spelt out in both civil and criminal jurisdiction. In its original version, that Act had not made reference to civil or criminal courts. However, in 1952 the new concept of Regional Courts was introduced. The Minister would, in terms of that amendment, create regions, with a “court of Regional Division” (commonly known as a regional court) for each region. In due course all the definitions and references to the courts would need to be tidied up in the legislation. These regional courts were created to assist with High Court matters, specifically to take over some criminal matters. Therefore the regional courts had criminal jurisdiction, save that a Regional Court Magistrate (RCM) could be designated as an additional magistrate for a district court for the purposes of civil jurisdiction. This provision had not been used in recent years. The criminal jurisdiction had been adjusted from time to time, including most recently in the amendments to the minimum sentencing legislation, but no jurisdiction had yet been granted in civil matters.
The lack of jurisdiction to hear civil matters had impacts upon those district court magistrates (DCM) wishing to seek promotion. Many, once they were experienced in civil matters, were loath to give up their civil practice and move to criminal matters exclusively, and they were therefore prevented effectively from exercising more substantive jurisdiction. RCMs, similarly, were limited to dealing with only certain types of criminal matters, and were not permitted to employ their expertise also on civil matters. The Department of Justice (DOJ) was constantly looking to develop the pool of fit and proper persons to be appointed as judges of the High Court, and if RCMs were permitted to develop civil expertise, they would be able to make a huge contribution in this field.
Mr de Lange added that another object of the Bill would be to dissolve the Divorce Courts, which were originally created as courts for divorce matters of black people, through an amendment of the old Black Administration Act, but which, in 1997, were opened to all races, since they were accessible and effective, with simpler rules, and more user-friendly in that the clerks were able to assist litigants. These courts were still in use and would, under this Bill, be merged with the regional courts.
Mr de Lange stressed that the Bill was not establishing new courts, nor abolishing old structures. In its current form, the Bill did not mean that regional magistrates would automatically have civil jurisdiction. The Minister would have discretion to bestow civil jurisdiction on certain regional courts, as and when capacity was established, but this would not be an overnight process. The divorce courts, however, would become part of the regional court, without any change to their jurisdiction or rules.
Mr J Skosana, Chief Director: Policy Development, DOJ, noted that this matter had been debated for some time, first being raised at the Hoexter Commission. In 2003 the matter was considered again in the context of a specialised Family Court. He noted that the dual system that was designed historically to deal with dispute resolution relating to “blacks” provided that civil adjudication could be dealt with through the Chief's Courts, which still existed. Only since the 1980s were criminal matters for black people dealt with at the magistrate’s courts. He noted that the Small Claims Courts operated outside the mainstream courts, with limited jurisdiction of R7 000. The Divorce Court was the relic of the system designed for African divorce cases, whilst all other races had their matters dealt with at the superior courts. He tabled the structure of the divorce courts, indicating that this structure had impacted on access, and the new Bill would assist access in all areas. He stressed that the current court system reflected the pre-1994 position. Although the whole structure of the courts was being examined, as part of the total transformation, DOJ would like to ensure that at least some of the hardships currently suffered would be alleviated. In addition it would like to assist district court magistrates to rise through the ranks without artificial distinctions, to be able to be properly qualified and experienced for appointment to the superior courts.
In the harmonisation, the magistrates at the lower courts would be integrated. Currently there were presiding officers for every division, traditionally largely appointed from the public service. The Magistrate's Commission did not currently have full opportunity to engage with all appointments. This Bill would ensure better oversight to the Magistrate's Commission.
The issue of capacity would be built in to the implementation plan. All current courts would be able to provide the additional services of the Divorce Court through the integration, and the minimum costs should be capable of being absorbed. Allocations had been given by National Treasury towards this end. The jurisdiction being given to the regional courts would not be taking work away from the district courts, but would allow for matters to be devolved from the High Courts. It was anomalous that although RCMs could impose life sentences, they were still not entrusted with civil matters of R500 000. Rationalisation would enhance efficiency. Magistrates no longer had different qualifications that would justify a continued distinction in their jurisdiction.
Mr Skosana tabled statistics for the District Court and High Court, indicating that there was a huge workload and backlog in the high courts. In Pretoria 70 cases were enrolled every day, 40 were dealt with out of court, but the 2009 Roll was already full. This was obviously having a huge impact - in particular on those seeking a divorce, who may have been separated for a number of years, may be wishing to re-marry, or regularise the implications of side issues such as pension and succession rights. Granting civil jurisdiction to the regional court would alleviate the problems.
Mr Skosana conceded that there were likely to be teething problems with implementation, but noted that these problems would be far less serious than the current problems caused by non-accessibility. Additional capacity would be sourced from existing magistrates, and structural changes were being discussed with the Magistrate's Commission. Regional Magistrates had already had their first round of civil training.
Adv L Joubert (DA) welcomed the Bill as a positive step. He noted that the regional courts did work effectively. He had been under the impression that the Divorce Courts had a higher status than the regional courts, by reason of the form of address of presiding officers, and he queried whether this was so, and whether salaries were on par.
Mr Skosana said that this was a perception, but the only reference in the Act was that the High Court and Divorce Court had concurrent jurisdiction, although the rules were slightly different. In terms of salary and status, the presiding officers were equivalent to RCMs.
Mr Joubert asked how many additional posts could be created and whether applications from attorneys would be considered.
Mr S Swart (ACDP) asked for clarity on what the raised jurisdiction would be for civil matters.
Mr Swart asked for clarity on the high court statistics. He also noted that the training of Regional Court magistrates was an ongoing process, and asked what had been done in that regard.
Mr Pieter du Rand. Chief Director: Court Services, DOJ, noted that there had already been a special project, whereby senior counsel had given assistance, on a pro bono basis, to help to clear the backlog of 4 000 appeals, and the previous year’s listing of 2 000 outstanding cases was now down to around 300. Trained magistrates would be needed in the largest centres, and here there was already a pool of trained and experienced people. The DOJ was also looking at fast-track training as part of the implementation plan.
Ms M Mahlawe (ANC) noted that there would be a further presentation on traditional courts, but she asked for some clarity at this point.
Mr Skosana replied that there was a process under way to deal with these matters, and he assured her that further details would be available.
Mr B Magwanishe (ANC) asked if there was any way of determining the financial jurisdiction in civil cases rather than naming it in the Act. Inflation was not taken into account in the current formula, which was out of date. He wondered if this should not rather be set by regulations.
Mr Skosana noted that there was a move that the Minister be delegated with authority to declare amounts from time to time, and the declaration would be outside the principal legislation.
Imam G Solomon (ANC) noted that civil expertise lay mostly at the district courts level and asked how this would be transferred to the regional courts.
Mr Skosana responded that already, some two years ago, training programmes were initiated and implemented, to give regional magistrates training in civil justice. These RCMs were already thoroughly competent both in terms of academic training and general court experience, although they may have lacked specific civil jurisdiction. There was in addition an attempt to identify those RCMs who had civil experience in the district courts before being promoted to RCMs. Minimum training resources would be put at every division. The long term vision was not to separate, but rather to integrate, the system.
Adv Shireen Said, Chief Director: Vulnerable Groups, DOJ, noted that recognition of customary marriages, religious marriages and civil unions had not been factored in as yet to the statistics. Once again, there would need to be alignment with the Children's Amendment Act, and implementation plans would consider the allocation of resources. Another important factor was the option of alternative systems of dispute resolution. Currently parties had to resolve matters by litigation, although a number of family matters could possibly be better resolved by using alternative methods, and this was a matter under extensive discussion and testing. There was a high level of legal illiteracy amongst the public. She cautioned that the currently available statistics could not always give the most accurate picture.
Mr du Rand noted that many DCMs had high academic qualifications. In Western Cape 20 out of 45 Regional Court Magistrates already had civil court experience. The training would seek to update them, not to train from scratch.
The Chairperson asked why regional courts had initially been given only criminal jurisdiction and why it took so long to decide to grant civil jurisdiction.
Mr de Lange said that the regional courts were created specifically to address the number of criminal matters in the High Courts. Although district courts had substantial criminal jurisdiction to hear matters, they had limited jurisdiction in imposing sentences, and substantive sentences would also go on automatic review to the High Court. The regional court was created as a court of first instance with greater jurisdiction in sentencing.
Mr de Lange informed Members that Act 120 of1993 was a Magistrate's Court Amendment Act, and that this had comprehensively overhauled the Magistrate's Court Act to create separate courts. Although it was on the statute books no date of commencement had ever been – or would be – proclaimed. It had not been considered fair to the new infrastructure to burden it with putting this Act into operation, particularly since 11 departments of justice had been merged into one. He suggested that perhaps this Bill should seek to repeal that Act.
Mr Skosana added that at the time the High Court was dealing with cases that could attract capital punishments. The High Court was essentially only transformed in 1996, and this could be another reason for exclusive jurisdiction in criminal matters. The special courts for Africans were only done away with in 1986.
The Chairperson hoped that with restructuring court performance would improve, although he noted that this was seen as an interim measure pending full restructuring.
Mr de Lange said that in future, once the appropriate legislation was passed, the Judicial Training Institute would undertake the training.
Association of Regional Court Magistrates of South Africa (ARMSA) Submission
The Chairperson noted that all written submissions would be considered in full, and asked those making submissions to highlight the main points.
Ms Jackie Wessels, Regional Magistrate and Chairperson of Training: ARMSA, noted that ARMSA had undertaken a great deal of training over the last few years, particularly since there was insufficient expertise at Justice College to train RCMs. She noted that ARMSA had ensured that all RCMs had received training on the new sexual offences and minimum sentencing legislation.
ARMSA supported the grant of civil jurisdiction for the regional courts. It was committed to providing guidance and training and ensure proper implementation. The purpose of the Bill was to enhance access to justice, by conferring jurisdiction in civil matters and promotion of development of expertise. Many magistrates already had civil experience, but, in terms of their career path, had been forced to make the move to the regional court and thus focus, whether or not this was their primary interest, on criminal matters. ARMSA suggested that instead of granting civil jurisdiction in the way proposed in the Bill, this should instead be based on the legislation relating to civil actions in the High Court. The Bill in its present form had limitations on the types of applications that would be done by RCMs, and that would not give them the opportunity, for example, to gain expertise in motion court proceedings. This lack of experience was one of the arguments raised against appointing RCMs to the judiciary of the High Court, and the Bill in its current form would perpetuate the situation. The Divorce Courts had their own rules, and the issue of costs was important. Regional Courts would have to have their own cost structures if given civil jurisdiction under this Bill. She said there was no reason to retain separate Rules.
Ms Wessels noted that the Bill should also address other important issues relating to access to justice. RCMs should be permitted to undertake matters under the Promotion of Administrative Justice (PAJA) and Promotion of Access to Information (PAIA) Acts. Seeing that magistrates were already permitted to undertake applications in terms of Rule 6 of the High Court, there was no reason not to extend permission also to other applications. Most of the issues raised under these Acts were concerned with principles, not money, and those needing recourse under the Acts did not have the finances to go to High Court. Justice College already had developed a course around these Acts and most of those who had had training were RCMs.
Ms Wessels further pointed out that in fact RCMs had jurisdiction in one type of civil matter – namely that they had jurisdiction to undertake confiscation orders in terms of Section 18 of the Prevention of Organised Crime Act (POCA). These orders could be done after conviction, although all other orders in terms of the same Act, such as preservation of property, restraint, forfeiture orders and restitution orders could be granted only in the High Court, which resulted in the prosecutors having to go from one court to another. Extending the jurisdiction for these orders to Regional Magistrates would further alleviate the burden of busy High Courts.
Ms Wessels said that regional courts had provincial jurisdiction, which covered numerous districts. The time periods in the MCA and Rules were shorter than those in the Superior Courts Act (SCA) and rules. That could create problems for litigants, and she submitted that time periods consistent with those of the superior courts would be more appropriate. A separate tariff of costs needed to be drafted, taking into account the need to promote access to justice.
Mr Robert Henney, Regional Court President and representative of ARMSA, submitted that consideration should be given to amending relevant legislation in order to recognise the de facto status of the regional courts, and that further consideration must be given to Section 46(2) MCA. He noted that RCMs would still, under this Bill as drafted, be excluded from dealing with matters such as validity of a will and other status matters, although they were dealing with questions of status in divorce matters. Meaningful change was needed. He referred Members to other side-issues contained in the written submission.
Ms Wessels said that there was a comprehensive draft implementation plan, put together by ARMSA and widely accepted. Core groups would be able to be trained by the end of August, anticipating that the legislation could come into effect in September. Trained magistrates would be available in each province. Practical training courses would be timed to have least impact on attendee’s court work, and would require them to undertake assignments, skills enhancement, leadership and case management. A variety of experts and stakeholders, including Law Society of South Africa and practitioners, would be used to train. All RCMS would eventually have to attend training, but attendance would be staggered and incremental. The classes would be kept small, and around 17 courses would be run on a back-to-back basis over the next 18 months until conclusion. Civil training, court and case flow management would be included, and skills overall would be enhanced. Finally, she noted that in the last few years there had been appointments from the practising profession, and there was a need to create judicial skills there for both permanent and acting appointments. Judicial skills enhancement programmes would be set in place, with mentors being trained for both civil and criminal courts.
The Chairperson asked if these proposals for amending the Bill and the issues raised were communicated to the Department
Ms Wessels said that there had been communication before the Bill was drafted.
The Chairperson noted that, as a general principle, he would like Committee Chairs and Whips to discuss the levels of consultation that the Executive should have prior to placing Bills before parliament. This would help to shorten the time needed for public hearings. He stressed that of course any body or individual failing to reach consensus with the Executive would always retain the right to present its case to Parliament, but in many cases matters could be more speedily resolved. During deliberations on the Infraco Bill, a number of matters were raised that should have been settled prior to the matter being referred to parliament. He asked ARMSA and the Department to comment on whether ARMSA had requested the first draft of the Bill.
Mr Skosana noted that there was a level of consultation on the policy principles, including workshops, but the DOJ did not send out the Bill again for further comment, nor were implementation matters specifically discussed.
Mr Adriaan Bekker, President, ARMSA said that in line with the usual process, ARMSA had preferred to make formal submissions to this Committee. It was not a question of ARMSA deliberately not contacting the DOJ, but rather of following what it had thought to be the correct process. ARMSA took the view that it was the prerogative of the Executive to put legislation on the table, whereafter there would be the opportunity to comment and debate the issue.
Mr de Lange noted that it was not standard procedure to publish the draft law for comment. The DOJ would generally approach identified parties for comment.
The Chairperson urged the DOJ to meet with ARMSA. He had thought that there was generally agreement on the issues in the Bill. He asked the DOJ for its response on points raised by ARMSA.
Mr de Lange noted that he had been apprised of the provisional views by Mr Bekker. He wished to make the point that this Bill was simply enabling the creation of something from nothing. He did not think that sufficient weight was given to the fact that family jurisdiction alone was a massive change. This Bill must be seen as a starting point and it would not stop any further development. In addition he wished to reiterate that matters would not change immediately the Bill came into force, but it was rather facilitating a process.
Mr de Lange felt that there were some policy issues on which the Committee might wish to engage further with ARMSA. In regard to the PAIA and PAJA Acts, he felt that it was "mischievous" to make the proposals. Currently there was nothing in those Acts preventing the Minister from designating a RCM to have jurisdiction; he summarised the relevant provisions. He reminded Members that the MCA referred simply to courts, with no distinction being made as to the types of courts.
The Chairperson asked that ARMSA and the DOJ should confer before the following Wednesday, when a representative from each should apprise the Committee whether consensus had been reached on any issues, and summarising the arguments for each point. He stressed that of course the final decision on the matters would remain with this Committee and Parliament.
Mr Joubert noted ARMSA’s contention that it did not wish to set up a glorified district court.
Mr Swart was surprised that there was no input from the General Council of the Bar (GCB) on whether the superior courts' rules and procedures should apply.
Mr Swart noted that ARMSA had touched on the training, and that was an issue to be looked at.
Mr Swart noted that the Law Society of South Africa had raised concerns about the infrastructure at the moment and he would like to have further comment on whether there were insurmountable difficulties.
Mr Henney was glad to see that provision had been made in the budget already by the Department. He said that proper case-flow management was also important.
Imam Solomon was worried about the question of access to justice. He was not sure whether the geographical distribution indeed would extend access, and whether the lives of ordinary people would be affected. Many people would require legal aid, and the granting of legal aid for civil matters was currently restricted.
Mr du Rand responded that legal aid in civil matters was constantly under discussion, and he thought this Bill would further those discussions.
The Chairperson noted that these issues could be taken further on 18 and 19 March.
Mr Skosana clarified that all magisterial districts were the seats of the courts. Regional Courts could sit in divisions. Some courts were under-utilised, such as Khayelitsha, so if a regional court could operate there to hear civil cases, this would assist access.
Mr Henney said that there was a need to look at where the greatest need lay in terms of volumes of work, and that would be part of the implementation plan. ARMSA and DOJ did not differ in their policy but in their approach. ARMSA would not like to see obstacles to implementation of the Bill, and would be prepared to discuss all points.
Mr Skosana too had no doubt that ARMSA and DOJ would come up with areas of commonality. He confirmed that there were still challenges in transformation aspects. The Minister would generally consult with “official” or representative bodies, rather than with all individuals, and rely on them to take matters to their members. It might be that not all matters had been fully communicated.
Mr Swart noted that sometimes it was appropriate for the Chief Justice also to give comment on legislation. Because this dealt with structures of the Court, he had thought that it might be appropriate, but noted that presumably the Judicial Service Commission had decided not to make input.
Law Society of South Africa (LSSA) submission
Mr Graham Bellairs, Attorney representing LSSA, noted that LSSA supported the amendments in principle, and recognised the need to expand access to justice. The rule of law must be respected, and justice must be seen to be done. The question of proper training had been a concern of LSSA, but he noted that this had already been dealt with at length. LSSA pointed out that the attorneys' profession had many competent members who were prepared to take up acting appointments or terms as RCMs, similar to those taking up acting judicial appointments and the profession could therefore assist the process and implementation of the Bill.
The LSSA had a concern that the current infrastructure of the Courts was inadequate to deal with the increase in jurisdiction. The experience had been, in magistrate’s courts, that structures were liable to break down, typically in the clerks’ offices, which were hampered by lack of experience, discipline, and management. This could be compounded by increased workload being given to regional courts, both at judicial and administrative levels. LSSA therefore requested that DOJ must look into and deal with the issue thoroughly. If the courts were not able to deal with the increased jurisdiction, then any increase would erode access and disadvantage litigants.
LSSA was pleased to hear the possible solution of a phased-in implementation. LSSA had also been concerned about the perception of a shortage of civil-trained RCMs, but he would not take this point further having now heard the assurances of DOJ and ARMSA. The geographical demarcation concerns had similarly been dealt with. He endorsed comments that this was part of a developmental process.
Mr Bellairs asked DOJ why liquidations of companies and sequestration of individuals had not been incorporated in the increased jurisdiction, particularly since debt counselling was dealt with at district level. Liquidations and sequestrations had status and proprietary consequences, but then so did divorces, which the Divorce Courts were permitted to handle. Close Corporations could be liquidated at district level. There was a further anomaly around the expense of High Court actions; sequestrations should be aiming to conserve money for creditors rather than spending on litigation.
Mr Vincent Saldanha, Attorney and LSSA representative, suggested that the question of civil legal assistance by the Legal Aid Board should be directed to the Board for its comment. He agreed that the proposed legislation would clearly have an impact in this area.
The Chairperson asked the DOJ to respond.
Mr Skosana agreed that the issues and concerns around capacity were real, but were not necessarily a problem. The Director General was aware of the need to address capacity issues, and this would bring value-add to the whole system. By the time the Bill came into effect, there would be properly-trained clerks as part of the implementation.
The Chairperson noted that these concerns would be included in the Committee Report and that the Committee would like to monitor the training.
Mr Swart appreciated the comments by Mr Skosana, but cautioned that these were issues that had been raised over many years and the Committee would need to scrutinise the progress.
South African Society for the Prevention of Child Abuse and Neglect (SASPCAN)
Ms Carol Bower, Executive Committee Member, SASPCAN, noted that this was an umbrella body, representing a wide cross section of Members. A number of submissions already had made reference to issues relating to diversion and incarceration of children under 18 years of age. SASPCAN was in agreement with most of those submissions, and noted congratulations to the Committee for a more child-focused approach. However, she wanted to focus on the age of criminal capacity.
Currently a child was irrebuttably presumed to have no criminal capacity under the age of seven. SASPCAN noted that the Bill raised the minimum age of criminal capacity to 10, with a rebuttable presumption that there was lack of criminal capacity of a child between 10 and 14. SASPCAN would recommend that the minimum age of criminal capacity be raised to twelve, and the rebuttable category should be stated at between the ages of 12 and 16. In making this submission, SASPCAN had looked at a range of international statutes and conventions - including the UN Convention on the Rights of the Child (UNCRC), The Standards Rules for Administration of Justice (The Beijing Rules) and other comments and documents, which also included the response of the UN Committee on the Rights of the Child to South Africa’s first report on the CRC.
Article 14 of the UN Convention noted that there should be establishment of a minimum age for criminal capacity but had not given guidelines. The Beijing Rules were referred to in the Convention. However, there was reference that the age should not be fixed too low, bearing in mind the fact of intellectual and mental ability. The African Charter also provided for a minimum age below which there should be no criminal capacity, although it did not give any guidelines. The UN General comment 10 said that the lowest age should be 12 years, although it also commented that the limits should be fixed in the upper range of the 12 to 18 category.
South Africa ratified the UNCRC in 1995, and had to present a report on progress in 1997. South Africa was now behind by two reports (due in 2002 an 2007). The observations of the UN Committee in response to the initial country report (at which time the Bill had been drafted) noted concerns that a minimum age of 10 years was still low, and recommended that this be re-assessed. The implications were that the UN Committee felt that 12 years was the lowest desirable age for criminal responsibility. It said that to set too low an age violated the Convention in effect, and this reflected on a number of country reports that had set low ages. The Committee was also not necessarily in favour of the “categories” of children who could not or might not commit crimes, and those falling in the juvenile justice system. SASPCAN, recognising that these categories did however appear in the Bill, recommended that the rebuttable presumption range be from 12 to 16.
Ms Bower said that the capacity to commit a crime related to the capacity to understand the wrongfulness of the act, and to modify behaviour in accordance with that understanding. Determination of capacity should consider both the child’s cognitive functioning (ability to think and reason) and the connative functioning (ability to exercise self-control). Developmental functions did not always occur at the same age, and were affected also by diverse cultural backgrounds, socio economic circumstances and other factors. However, in general, only after the age of 12 did children begin to develop advanced reasoning and abstract logical thinking, along with capacity to understand wrongfulness fully.
Ms Bower said that on the previous day, questions were asked about the position in other African countries. SASPCAN had done some research. In Ghana, Kenya, Uganda, Lesotho, Namibia and South Africa there was the concept of lack of capacity below a certain age, as well as a rebuttable presumption of incapacity between another age parameter. Countries colonised by the British tended to regard criminal capacity at 7 years, which was the Roman Dutch common law rule. Those colonised by other European countries had different levels. Countries that recognised a rebuttable presumption between certain ages, included South Africa, Namibia and Kenya. The minimum ages in other countries included 12 years in Senegal and Burkina Fasso, 15 in Sudan and 14 in Libya. The African Policy Forum stated that the most common minimum age for criminal capacity was 13. This rule was abolished in Uganda and Ghana. In Uganda the minimum age was 12, with no rebuttable presumption, and in Ghana, which similarly had no rebuttable presumption, the minimum age was set at 14. The increase of the lower age limit in these countries was based on the Beijing Rules. In both countries the issue was raised that almost no serious crime was being committed by children under 14.
In summary, therefore, SAPSCAN proposed (and tabled) suggested alternative wording for Clauses 6 and 9, as contained in the written submission.
The Chairperson asked the DOJ what criteria it had used to decide on the demarcations in the Bill.
Mr Lawrence Bassett, Chief Director: Legislation, DOJ, said that the previous Portfolio Committee had relied on the recommendations of the South African Law Reform Commission (SALRC).
Ms Thandazile Skhosana, Senior State Law Advisor, DOJ, noted that there had been extensive consultation by the SALRC, which felt that there was sufficient scientific evidence to set the age at 10 years.
Mr Bassett suggested that the relevant extracts from the report and discussion document be made available to Members for further detail, and noted that these were also available on the SALRC's website. He confirmed that the previous Portfolio Committee had debated this issue at length and was in favour of 10 years. He confirmed also that he could provide a list of who had been consulted by SALRC.
Ms Bower noted the report of the SALRC, but respectfully disagreed with it.
The Chairperson asked that SASPCAN, collaborating with other colleagues if it wished, should critique the SALRC report within the next two weeks, submitting its comments and executive summary by 26 February.
The Chairperson wondered if there was not a contradiction in the submissions. On the one hand there was a recognition that socio economic circumstances and cultural backgrounds might affect the age of capacity. In some countries that had low violence levels, there was little crime. However, South Africa, being one of the most violent societies, was possibly a case for exception. Matters that were relevant to one country might not be relevant to South Africa.
Ms Bower agreed that South Africa was a very violent country, but pointed out that at the moment nothing was being done to address the situation. There were a number of related pieces of legislation dealing with children. South Africa had to find new and better ways to teach children how to deal with conflict. The diversity in society was both a strength and a problem. Violent responses were currently being proffered to every problem, and SASPCAN was concerned about the extent to which South Africa was blaming children for what was wrong in society. There were high levels of sexual violence, and inter-personal violence, but there was no sense in countering these with more violence and punishment. There was room to try a more humane approach recognising that children had the capacity to grow and develop. She noted that issues of cost were raised. Prevention was expensive, but far less expensive than doing nothing. Early intervention studies had shown that failure to take preventative measures, in relation to adult criminality, in the end cost at least 19 times more than the prevention would have done, and resulted in inability to cope with adult life and sustain oneself. In Australia it was estimated that the cost of failure to prevent abuse and neglect would be R680 billion a year. Dealing with issues in a more restorative way would address this as an integral part of intervention.
The Chairperson said that it could be argued that because of high levels of violence, it was important to raise the limit for criminal capacity. On the other hand, the reality was that children were committing crimes, for whatever objective reasons beyond their control, so it was necessary to control them. The question must also be asked whether there was any difference between the position in 2002 and 2008. He wondered if there was perhaps the possibility of a short term and long term approach, whereby, in order to manage the current situation, the age of criminal capacity could be set at 10 years for the next five years, thereafter to be raised as the levels of violence dropped. This might create a correlation with a practical approach.
Ms Bower did not agree that there was little room for an idealistic and long-term view, pointing out that there was nothing short-term about the process of law reform. The same arguments could have been made about the death penalty. It was the role of parliament to set a standard. She was not sure that there was the time and manpower to come back again to this issue, and SASPCAN was therefore seeking to reach an acceptable solution now. The legislative framework provided a hook on which to hang policies, frameworks and the change of ethos. She did not believe that one could assume that the matter would be addressed again in five years.
The Chairperson said that he was not suggesting that the Bill should come back in five years, but perhaps it was possible in this Bill, as in others, to make provision that the Minister should have an obligation to reconsider matters after a certain number of years.
Mr Joubert said it would be helpful to have statistics on serious crimes committed by children.
Imam Solomon said that there were two main issues - assessment and criminal capacity. He felt that the Committee must be realistic and take decisions in context. This Bill was geared to the best interests of the children, but empathy should not be permitted to distort the reality of child criminality. Children were heading households, which meant their emotional and intellectual capacity must be quite high, and he agreed that different ways must be found to deal with the specific South African situation.
Ms Bower said that SAPSCAN was challenging how this was being dealt with. The Department of Correctional Services stated that there were, last year, two children in prison for committing economic offences, and one for committing a sexual offence. The age of commission of sexual offences was dropping. She believed strongly that it was necessary to take a preventative approach to sexual offences committed by young people. She stressed that the current Bill allowed for welfare interventions for children under 10. The children were not getting off “scot-free”. They were being dealt with through having to take some responsibility, with a response geared to guidance, correction and restitution, rather than punishment. If that minimum age was raised to 12, offenders under 12 would be dealt with in exactly the same way as was applicable to those under 10 as the Bill stood. The method of dealing with the matters would remain the same and they would be dealt with appropriately.
Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) Submission
Ms Cheryl Frank, Executive Director, RAPCAN, described the organisation’s formation and activities. Primarily, RAPCAN devoted its services to child victims of crime, especially victims of sexual offences. As a result, her submission focused specifically on how the Child Justice Bill would promote crime prevention and safety in South Africa for all citizens, and particularly, for victims of crime. Additionally, she scrutinised certain provisions in the Bill dealing with sexual offences.
Ms Frank argued that given the high levels of crime and victimisation in the country, and the consequently high levels of fear of crime, no criminal justice legislation or policy could afford to ignore the need to promote crime prevention, community safety and the rights and needs of victims. It was envisaged that the Bill would therefore not only create a system for managing children when they came into conflict with the law, but it would also set in place principles for the broader social project of crime management in the country.
Ms Frank underlined that offenders in the criminal justice system were important targets for crime prevention efforts because they were not amongst the undefined masses in the community and were easily accessible. Also, evidence from both developed and developing countries indicated that a relatively small percentage of offenders were responsible for a high proportion of crime. She submitted that the Bill in its current form did not take advantage of the significant opportunities available for the promotion of crime prevention and reduction amongst child offenders. In fact, some provisions excluded certain children from particular procedures and services.
Ms Frank proposed that no child be excluded from any of the assessment, preliminary inquiry and diversion procedures and services. Also, she encouraged adherence to the Constitutional principle of “detention as a measure of last resort” during the sentencing stage.
Ms Samantha Waterhouse, Advocacy Manager, RAPCAN, addressed the provisions of the Bill dealing with the management of young sexual offenders. She voiced concern that the current responses to young sexual offenders did not take a long-term preventative view. In fact, she asserted that some provisions of the Bill perpetuated a way of treating young sex offenders in a manner that promoted recidivism.
Ms Waterhouse revealed that the country’s information systems regarding crime were weak. Consequently, there was no accurate picture of the nature and scope of sexual offending by children in the country. Studies indicated that between 20% and 30% of sexual offences were committed by adolescents. While these figures were disturbing, it was nevertheless encouraging that this portion of the sexual offending population, responded favourably to treatment interventions.
Moreover, Ms Waterhouse claimed that sex offender treatment programmes could be used as a diversion option, or as part of a sentence, or as an alternative sentencing option. She was heartened that such programmes were working and indicated that there was a significant decline in the levels of recidivism for those who participated in these programmes.
Finally, Ms Waterhouse observed that the Bill created a complicated system, stratified in terms of age and offence, to determine which pathway a child would follow through the criminal justice process. The attempt to divide offences into the various levels of seriousness in the Schedules and then deal with them differently was problematic because less serious offences were categorised with more serious ones.
Mr Swart commented that his reading of the Bill differed with that of the presenters on the issue of diversion. Furthermore, he stated that the Committee should review the Sexual Offences Act to clarify that at no stage parliament meant to legislate against kissing.
The Chairperson asked the Department of Justice to clarify whether diversion would be accessible for all young offenders.
Mr Lawrence Bassett, Chief Director: Legislation, DOJ, requested time to absorb the presentation and promised to respond appropriately at a later date.
The Chairperson discerned from the submission that certain departments refused to cooperate with the organisation and supply them with essential data. He condemned this sort of practice. He admitted that the Executive was entitled to keep certain information confidential. However, he asserted that wherever possible, the appropriate legislation should be invoked to source any information from a particular department.
Ms Frank revealed that non-governmental organisations were often frustrated by this refusal to impart information.
The Chairperson asked the Department to address two issues. Firstly, he asked whether the statistics and figures provided by the organisation were consistent with those of the Department’s. Secondly, he sought to understand the relationship between this Bill and the legislation pertaining both to minimum sentencing Act and sexual offences.
Mr Bassett appealed for time to apply his mind to these questions.
University of Cape Town (UCT) Department of Social Development Submission
Mr Thulane Gxubane, Lecturer: Probation and Correctional Practice, UCT Department of Social Development, summarised the Faculty’s particular interest and contribution to matters relating to good probation practice.
He remarked that the Bill provided a narrow definition and purpose of assessment, which was a fundamental practice when working with troubled children. He therefore suggested that this be broadened and that the definition as stipulated in the Probation Services Act be adopted. In light of the current shortages of social workers and probation officers, it was recommended that “other suitably qualified persons as prescribed” be considered for conducting initial assessments. Similar to the previous submission, Mr Gxubane insisted that all children must be subjected to an assessment.
Lastly, he noted that the Bill made provision for a register to be kept in respect of all children diverted, as well as for access to this register by probation officers, police officers and court officials. He contended that apart from privacy considerations, this register should be limited to probation officers only.
Mr Swart appreciated the broad thrust of the presenter’s submission. However, he attacked Mr Gxubane’s final point and maintained that court officials should have access to the register.
Adv L Joubert (DA) queried whether graduates in law, criminology and psychology could be used as probation officers.
Mr Gxubane replied in the affirmative. He announced that social workers were currently overwhelmed. Accordingly, it would be beneficial for the Department to appoint assistant probation officers, to whom certain duties could be delegated.
Mr J Jeffery (ANC) asked for a more detailed submission on what other suitably qualified person could act as a probation officer. Such a study should include the number of suitably qualified people that currently existed. In addition, he asked the presenter to expand on why he believed that the assessment clause was too narrow and what changes he would make. Mr Jeffery reasoned that there was “no point putting something in law that could not be achieved”. This implied that there was no point in legislating that all children must be assessed when the capacity did not exist for this to take place.
Mr Gxubane stated that the purpose was not captured very well in the Bill.
The Chairperson cautioned against enacting an over-ambitious Bill. He informed all the presenters that the Committee wanted evidence to support its claim that assessment could be done on all children despite the National Department of Social Services’ contrary view.
Mr Bassett speculated on two issues. Firstly, he wondered whether probation officers had the competence and aptitude to stand up in a court of law. Secondly, he pondered what would occur if children complained that they had been assigned a second-rate probation officer.
Mr Gxubane countered that some of the probation officers were more capable than most qualified social workers and would therefore have no problem appearing in court.
The Chairperson reiterated that the Committee wanted concrete proposals for amendments to the purpose of the Bill.
Professor Julia Sloth- Neilson Submission
Professor Julia Sloth-Nielsen, Professor in the Law Faculty, University of the Western Cape, professed that the Bill lacked the safeguards she had envisaged regarding the irrebuttable presumption of incapacity. Based on universal wisdom, the minimum age for criminal capacity should be set at 12 years and progressively raised where possible. Any age below 12 was unacceptably low, and in contravention of the UN Convention on Children’s Rights. Furthermore, a split in age as occasioned by the retention of the rebuttable presumption for certain categories of children was discriminatory.
Prof Sloth-Neilson argued that the role of the magistrate as stipulated in the Bill was overly bureaucratic, as all preliminary processes were non-judicial and fell within the jurisdiction of the probation officer. She emphasised that prison was “no place” for children under the age of 14 and that alternative types of sentences should be pursued. Given that the Constitution provided that the detention of children should be a matter of last resort, and even when imposed, it should be for the shortest period of time, the imposition of minimum sentences upon children of 16 and 17 was in principle objectionable.
With regards to legal representation, Prof Neilson referred to research that showed that children were generally receptive to having legal representation. She was therefore disappointed that the Bill adopted a regressive and less generous approach on this matter. In principle, the Bill should be guided by the policy of the Legal Aid Board.
Prof Sloth-Nielson rebuked the Bill’s proposal that legal representatives should only be permitted to attend the preliminary proceedings, and argued that they should be present at all proceedings.
Mr D Bloem, Chairperson of the Portfolio Committee on Correctional Services, disputed the Professor’s figures regarding the amount of children who had obtained legal representation. He alleged that in many instances, children did not know who was their legal representative was.
Prof Sloth-Neilson responded that she had obtained the statistics from the Legal Aid Board. She conceded that Mr Bloem was highlighting the need for quality representation, which demanded further specialisation and on-going training.
Adv Joubert praised the presenter for a well-prepared and thorough presentation. He sought to determine what effect an increase in the age of criminal incapacity would have on civil liability.
Prof Sloth-Nielson replied that there would be no impact at all.
Imam Solomon asked why Prof Sloth-Nielson wanted to limit the role of the magistrate.
Prof Sloth-Nielson responded that she did not see the need for magistrates to be involved when a child was under the age of 10, because they were not part of the criminal justice system and therefore were the responsibility of the social worker/probation officer.
Children’s Rights Project of Community Law Centre, UWC Submission
Ms Daksha Kassan, Researcher, Children Rights Project, Community Law Centre, UWC, outlined that the two main issues in her submission were the detention and sentencing of children under the age of 14 years, and the use of children by adults to commit crimes. She mentioned that the latest version of the Bill allowed for the detention of children under 14 years awaiting trial in prison for scheduled offences. Equally, the Bill did not restrict the imposition of imprisonment on such children as a sentence. Ms Kassan criticised this approach, which she claimed was inconsistent with international law.
Ms Jacqueline Gallinetti, Senior Researcher, Children’s Rights Project, Community Law Centre, UWC and Coordinator: Child Justice Alliance, discussed the use of children by adults to commit a crime. She confirmed that such children were not simply perpetrators. They were also victims of exploitation, and therefore entitled to specific interventions. She explained the proposed interventions: namely, separation and joinder of trials, assessment, preliminary inquiry and diversion in the last portion of her presentation.
It was noted that Mrs Gallinetti would present the following submission; therefore no questions were raised at this juncture.
Child Justice Alliance (CJA) Submission
Ms Gallinetti thanked the Committee for resurrecting the Child Justice Bill, which recognised the need to create a separate criminal justice system for children. She said that her presentation would be brief, but that the Alliance’s written submission delved into the issues in greater detail.
The Alliance had two overarching concerns about the Bill. The first related to the manner in which it was drafted. The language was cumbersome, confusing and too legalistic. The second related to the exclusion of certain services and interventions to certain children. The Bill now excluded certain children, based on their age or offence category, from those processes that had discernable outcomes not only on benefiting the children but society as well.
Mr Swart applauded the Alliance for an incredibly good submission.
Mr Jeffrey interrogated how an aggressively violent 13-year-old child should hypothetically be handled in the criminal justice system.
Ms Gallinetti believed that the needs of extremely violent children surpassed whatever prison could offer them, and there were no appropriate programmes in prison to deal with these types of children. She said that this Bill needed to be protective, instead of punitive.
Southern African Catholic Bishops Conference (SACBC) Submission
Mr Mike Pothier, Research Coordinator, SACBC, welcomed the reintroduction of the Bill and the opportunity to engage with the Committee. He jibed that this Bill was in the system for several years, whereas the legislation dealing with the Scorpions was expected to be finalised within 6 months.
Similar to previous presentations, he was perturbed by the restrictive application of diversion in the Bill. By the same token, he expressed concern about the legality of an admission of responsibility, which was regarded as a section 224 admission, obtained at a Preliminary Inquiry. He was convinced that this could not stand as a formal admission, because it was an informal inquisitorial admission by a child, without legal representation, before a magistrate. Taking this and other factors into account, he appealed for greater flexibility in the Bill. Finally, he urged the Committee to process the Bill as soon as possible.
Mr Swart sought to establish whether the necessary capacity existed to conduct assessments on all children.
Mr Pothier conceded that this was a constant challenge. He cited that there were delays with the assessments. Even when these were completed, the reports were often superficial. This was due to the huge work-load of probation officers. Mr Pothier feared that the Bill would only increase the burden on them.
Mr Jeffrey asked Mr Pothier his opinion on the appropriate age of criminal capacity.
Mr Pothier responded that the common law presumptions of 7 and 14 years were “questionable”. He added that he did not have any specialist knowledge in psychology and would defer to the views of the experts on this matter.
A Member of the ANC reprimanded the presenter for his remarks on the Scorpions.
The Chairperson came to the presenter’s defence and said that his comment was actually fair and accurate.
Catholic Institute of Education (CIE) Submission
Mr Kevin Roussel, Education Advocacy Officer, CIE, believed that the Bill was intended to be a Criminal Procedure Act (CPA) for children, thus inferring that it was subordinate legislation.
He was particularly concerned that the Bill placed too much power and responsibility in the hands of the probation officer. This meant that the system could be easily undermined and corrupted. He specified that the Bill created five categories of children, namely, children under 10, between 10 and 14, between 14 and 18, between 16 and 18 and between 18 and 21 years old. The definitions of children used in the Bill were therefore not sufficiently covered and caused confusion later on in deciphering when which category applied.
The Chairperson asked the Department to comment on whether the Bill was subordinate to the Criminal Procedure Act No 51 of 1977 (CPA)
Mr Bassett clarified that this was not the case, and explained that the two pieces of legislation should be read together.
Mr Solomon commented that children would be used in the commission of a crime if the age of capacity was increased.
Mr Jeffery observed that the presenter wished to change all references to the terminology “Member of Cabinet responsible for” to the “Minister of”. He explained that the latter term was more appropriate because it was consistent with other legislation.
The Chairperson said that the Bill was far more complex and difficult than he imagined, both in the policy issue, and in the manner in which it was written. He admitted that the Committee might only finalise the Bill in the latter half of the year, but vowed that it would be a better quality Bill.
The meeting was adjourned.
- Catholic Institute of Education (CIE) Submission
- Southern African Catholic Bishops Conference (SACBC) Submission
- RAPCAN: Schedules
- RAPCAN Presentation
- Resources aimed at the Prevention of Child Abuse and Neglect (RAPCAN) Submission
- Child Justice Alliance Presentation
- Child Justice Alliance Submission
- UCT Department of Social Development Submission
- UCT Department of Social Development Presentation
- Community Law Centre Oral Presentation
- Community Law Centre Submission
- Prof Julia Sloth Nielsen, UWC submission
- Legal Aid Board written submission on Child Justice Bill
- South African Society for the Prevention of Child Abuse and Neglect submission on Child Justice Bill
- C Silkstone, Committee Researcher, written opinion on B48-2007
- CH Spence written submission on B 48-2007
- S P Khuduge, Saulspoort written submission on B48-2007
- Jacques du Preez written submission on B48-2007
- Law Society of South Africa submission on B48-2007
- Association of Regional Magistrates presentation
- Department of Justice presentation on the Jurisdiction of Regional Courts Amendment Bill B48-2007
- Association of Regional Magistrates submission on B48-2007
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