The Committee heard the submissions from Professor Terblanche, NICRO, the South African Human Rights Commission and the researcher, Heidi Sauls.
Professor Terblanche focused on the issue of blameworthiness and the fact that children were less blameworthy than adults. NICRO attributed this to the brain development of the child. The Human Rights Commission called on South Africa to meet its obligations to children in terms of their International Agreements. Ms Sauls felt that intentionality was an integral element of criminal capacity, which should also be included in the Bill.
Professor S Terblanche’s submission
Prof Terblanche (Department of Criminal and Procedural Law: University of South Africa) referred members to his submission document, explaining that due to time constraints his oral submission would focus on additional comments not in his written submission.
Prof Terblanche said that legislation had a very important educative function. Perhaps parliamentarians might not even understand the extent to which the courts referred to the basic message set out in the legislation.
Prof Terblanche said that he had a problem with the accessibility of the Child Justice Bill, saying that it was even difficult for him as a lawyer to understand.
The Chair agreed, saying that the Bill was difficult to understand.
Prof Terblanche continued that the stated purpose of the German Child Justice legislation was to prevent children from committing further crime. This was simple and easy to understand.
With regard to the separation of powers regarding sentencing, he referred to the Legislature’s role as providing a list of possible sentences. The courts would decide on the sentence to be imposed given the facts of the case. The Legislature should be involved in the overall sentencing principles and not in the detail.
The basis of this child justice legislation was that children should be treated differently to adults. Thus children should have diminished criminal responsibility and should not be treated the same as adults in that regard. If a life sentence was the heaviest sentence a person could receive in this country, one could not say that children were being treated differently to adults if one then imposed life sentences on children as well.
Imprisonment of children should be used as a last resort and for the shortest time possible. These terms have however been eroded by constant use and should therefore be given greater context by including their meanings in the Bill. He referred to Clause 9(1)(b) and said that this provision referred to the use of factors such as educational level and cognitive ability of the child, that assisted the prosecutor to determine criminal capacity. This was for the purpose of deciding whether the child was a candidate for diversion. He argued that this could also be useful in the sentencing process. According to Section 17(2) of the German Child Justice Act, the Judge would impose a prison sentence where diversion was not sufficient or if one took into account the extent of the child’s blameworthiness (which would be less than that of an adult, thus the punishment should be less than that of an adult).
The Bill contained many guidelines on when community based or restorative justice should be used. It however did not specify when residential facilities would be used. At present reform schools were being used for this purpose. There was a need for more detail on how severe this type of sentencing was as opposed to community-based sentencing on the one hand, and imprisonment on the other. This should be expressed in the legislation.
Adv L Joubert (DA) wanted more detail on the age of blameworthiness.
Prof Terblanche pointed out that blameworthiness in the context of sentencing was different as opposed to its use in the determination of criminal responsibility. In the latter instance, one would ask if the child could be blamed for what s/he had done. In the former case, it referred to sentence-grading, which means that if the child could be blamed, one should then determine the extent to which s/he could be blamed. This could be expressed in percentages. An adult would be 100% blameworthy, but factors like severe stress could decrease this. In the same way the child too would be less blameworthy than an adult.
Adv Joubert asked if age was therefore just another factor being taken into account in the determination of blameworthiness.
Prof Terblanche replied that while age was an indicator, one would have to conduct individual testing in order to assess specific blameworthiness.
The Chair, referring to the various age categories mentioned in the Bill, asked how in law, individual testing would be used to determine criminal capacity.
Prof Terblanche said that the Legislature could not provide more than a broad canvas for this process. Specific application would have to take place in court, based on particular facts, problems or exceptions.
The Chair asked for Prof Terblanche’s view of the proposal by stakeholders that the age for criminal capacity should be increased from ten to twelve.
Prof Terblanche answered that the age at which a child was said to have criminal capacity was as high as eighteen in some countries. He could not understand what made a South African child less worthy of protection than children of exactly the same age elsewhere. This was however a question of pragmatism as there were not many children of that age who actually appeared in criminal court. He suggested that the age should be raised to fourteen. This did not mean that no measures would be in place to deal with offenders who were younger than that age. It just meant that these children would not have to appear in court and risk going to prison.
Dr J Delport (DA) asked at what age a child was said to be incapable of committing a crime at all. This age had always been seven. This question had to be considered by also taking into account the interests of the community and victims.
Prof Terblanche replied that this question had to be determined by the courts. However it did not mean that if a child did not go to court, his/her actions did not constitute a crime. Additional measures were needed in the Bill to deal with this, for example, where a ten year old committed a murder, s/he would more likely be in need of care. In fact, it was most likely that the child who was in need of care, would be involved in crime.
Mr Lawrence Bassett (Deputy Chief State Law Advisor: Department of Justice) added that guidelines for residential facilities were needed. This had to be linked with education of children and how this tied in with the question of punishment. Residential facilities were supposed to be between prisons on the one hand and community based punishment on the other. He was unsure of the approach the Department of Education would follow in this regard. This should definitely be addressed in this Bill.
The Chair suggested that the Department should draft something which would address this issue.
The Chair concluded the discussion, saying that it was promising to see that there was a man making a submission to Parliament on children’s issues, which has until now been predominantly the domain of females.
NICRO submission on the Child Justice Bill
Ms Arina Smit (National Programme Specialist of Diversion: NICRO) introduced NICRO as a prisoners’ friend organization that worked with offenders and their families. The submission provided the background of the organization.
The submission argued that the removal of diversion as an option either because of the nature of the crime or the age of the child, was unacceptable. She explianed that in order to understand why a child was different to an adult, one would have to take into account their brain development. The brain structure of a child was different to that of an adult irrespective of the environment in which the child was raised or even the fact that some children matured faster than others. Thus, a child was less blameworthy than an adult. This was because of the fact that if an adult brain was injured, this would be used as a mitigating factor in court. In accordance with science and medicine, it was generally accepted that most of a person’s brain development would take place in early childhood. New research however indicated that there was a growth spurt in a child’s brain during adolescence. The affected area was the prefrontal cortex, which was responsible for logic, analysis and reasoning. It determined the way in which one reacted to one’s feelings. This growth spurt during adolescence however resulted in the pruning of excess brain cells. The environment of the child would influence this process, during which the child would make use of the limbic system. This part of the brain was responsible for actions governed by instinct and emotion. The corpus colosum, which links the two hemispheres of the brain, continues to develop throughout adolescence. This is responsible for creativity and problem-solving.
Brain development stops at age 22. The cut-off age for physical development of the brain is twelve, when the child can start to put higher functions into practice with guidance and support.
Ms Smit continued that it was wrong to deny child offenders the right to be assessed, as children required support and could not be left to their own devices. Diversion had to remain an option regardless of the nature of the crime or the age of the child.
With regard to the length of sentencing, she argued that instead of limiting the time frame of diversion, one should instead lower the limit, for example:
-for level one, the period of diversion should be no less than three months.
-for level two, the period of the diversion should be no less than six months, etcetera. The reason for this proposal was that one could not achieve behavioural outcomes in less than three months.
A member suggested that children today matured faster because they were exposed to different experiences than in the past.
The Chair referred to the fact that child-headed households made South Africa unique, as children had to mature faster.
Ms Smit argued that one could not assume that a high level of responsibility would affect the child’s brain development. Exposure to experiences affected the way one would think, feel and then react. Children were faced with experiences, which resulted in certain feelings. They often did not have the ability to understand the reason for their feelings. In a resourced environment there was easy access to support, which assisted children to understand their feelings. This was not the case in under-resourced areas like South Africa, where there was a lack of guidance, accessibility to resources and protection to enable children to make sense of what was happening to them.
Ms N Mahlawe (ANC), while temporarily acting as Chairperson, asked if there were tests to measure brain development accurately.
Ms Smit replied that various tests were used to determine brain development, for example the MRT scan. However this scan was perhaps not always appropriate to determine the brain development of a child offender. Years of research had already shown the brain development of the child took place in the manner mentioned earlier, irrespective of outside factors. In the brain development of a child, the brain would follow certain developmental patterns with regard to the neurons and connectors. This had been illustrated by different psychological tests conducted over the years. Brain development could however be stunted by outside factors like malnutrition, for example.
Mr J Sibonyane (ANC) referred to the age before which a child could not commit a crime. This used to be seven years in terms of common law. Before this age the child was deemed not to be capable of appreciating the consequences of his/her actions. He asked what this meant with regard to brain development, given the fact that children can ‘appreciate’ more, since they were exposed to more in today’s reality.
Ms Smit said that it was widely accepted that physically, children were maturing earlier than before. However, a physically mature child did not necessarily indicate that such child had a mature brain. In other words, an abundance of hormones did not mean that the brain could automatically make these connections. One should not confuse cognitive and physical maturity.
Mr J Jeffrey (ANC) referred to Ms Smit’s proposal that children should be assessed by a suitably qualified person. Since there was already a shortage of probation officers, he asked who the presenter suggested should perform this function.
Ms Smit said that if one used resources as a reason not to do things, one would merely be fitting the system around the problem, while maintaining the problem. The people doing these jobs had to have the appropriate qualification, or receive training for the performance of this function.
Human Rights Commission Submission
Ms Judith Cohen (Head of Programmes - Parliamentary Liaison: SA Human Rights Commission) highlighted the main areas of concern for the Commission. Among these were:
- the minimum age of criminal responsibility
- parents’ involvement in the criminal justice process
- conditions of detention
- diversion and
Ms Cohen commented that the inaccessibility of the Bill to ordinary persons was due to the fact that it was difficult to understand (even for lawyers). This was very problematic as it impacted directly on the right to public participation.
Minimum age of criminal responsibility
Ms Cohen referred to the minimum age for criminal responsibility and said that SA should be guided by International Law. Based on International Law, as well as the recommendations from the Convention on the Rights of the Child, this age should not be lower than twelve. It was important for SA to display their commitment to their international obligations and heed the rights of children. With regard to the issue of criminal responsibility, one should not confuse the issue of criminal capacity with the decision whether or not to prosecute the child. The Commission wished to commend the drafters for treating some eighteen to twenty year olds as children in terms of clause 4 (2) (b) of the Bill. This was in keeping with SA’s international obligations.
Informing parents of the child’s involvement in criminal activities
S28(1)(b) of the Constitution guarantees children the right to parental care. It was therefore in accordance with this provision that the Commission argued for the child’s right to have their parents informed of their arrest. The clause as it stood allowed police to inform parents where circumstances permitted. They felt that the words “where circumstances permit” should be omitted. In addition, where police were unable to notify the parent, the police would have to complete a report to the court indicating the steps taken to inform the parent of the child’s arrest. This would serve to encourage the police to find the parents and inform them.
Conditions of Detention
The Commission expressed concern that the provisions around the issue of detention allowed children to be detained for longer than 48 hours. There was no system of regular monitoring of police cells, which was problematic, given the fact that 698 people died in police custody in 2006/07. It was important for SA to ratify the Optional Protocol of the Convention against Torture and establish a National Preventative Measure in terms of this Protocol.
Ms Cohen said that the word ‘lock-up’ had to be removed from the Bill, as it could lead to police detaining children in unsuitable places. The word should be replaced by ‘a designated place’. Places which would be included in the definition of a ‘designated place’ could be included in regulations.
When transporting children to court from prison, they were still in detention and would (in terms of the Bill) not be transported in the same vans as adults ‘if reasonably possible’. The Commission felt that the words ‘if reasonably possible’ should be removed, since it could be dangerous for children to be with adults at the back of the van where no one could see if any abuse was occurring.
The Commission was concerned about the fact that awaiting trial children were denied access to education, which was not only a basic right, but also a right which was not subject to progressive realisation. This could be because these children were falling between the cracks of the different Departments. When these children were released or found ‘not guilty’ it became difficult to reintegrate them into the education system. Thus there was a need for the right to education for awaiting-trial children to be included in the Bill.
Ms Cohen also proposed that awaiting-trial children be provided with age-appropriate stimuli to keep them occupied. In addition the time periods for which children were held while awaiting trial were far too long. The Commission was however reluctant to impose maximum time periods, as these would most likely then simply become the norm in practice. There had to be specified time limits between the commission of the offence, the police investigation, the decision to prosecute and the final adjudication processes.
The Commission was opposed to the fact that a child who had previously been diverted was not allowed to enter such a programme again. They were also concerned that diversion could not be considered in sexual offence cases where the child was older than fourteen. Ms Cohen used the example of two fifteen year olds kissing not being considered for diversion, while a child who burned down a house would be. The provision was therefore clearly irrational. This was an arbitrary provision which limited the authority granted to the prosecutor by the Constitution. In addition, children were only able to appreciate the nature of sexual offences later in life.
The decision whether or not to grant diversion should not be linked to the gravity of the offence. If diversion was appropriate for adults, there was no reason for children to be denied this right.
The Commission did not support legislation relating to the minimum sentences for children. Deprivation of liberty should be used as a last resort and for the shortest time possible. Also, the Commission proposed that the maximum sentence for children should be reduced from 25 years. In cases where it could be appropriate to impose such lengthy sentences, the Commission recommended that the child appear before the parole board regularly in order to review this.
Mr Jeffrey asked if the Commissioners had all seen the submission document before it came to Parliament.
Ms Cohen answered that submissions were drafted in the engine room of the Parliamentary Programmes office. It was then submitted to senior managers and to the Commissioners. The subject matter of the submission would determine who exactly was involved.
Mr Jeffrey referred to the example on page 3 of the submission, which described two fifteen year olds kissing as a crime. He criticised the Commission, saying that this was misinformation and that it was unacceptable for a Chapter 9 institution not to know the law.
Ms Cohen replied that as the provision was currently worded, it would make such a child ineligible for diversion.
Mr Jeffrey insisted that it was not an offence for a fifteen-year-old girl to kiss a fifteen-year-old boy in public (as suggested in the submission document). It would have been understandable for a member of the public to make such a mistake, but it was completely unacceptable for a Chapter 9 body to do so.
Ms Cohen said that irrespective of the interpretation of the controversial ‘kissing law’; the provision would still make children over the age of fourteen, who were charged with sexual offences, ineligible for diversion.
The Chair said that it was not the duty of the Commission to respond to the comments in the media arising from this law. Parliament had acknowledged that it was not a crime, but the Department had to respond on this issue.
Mr L Landers (ANC) said that Parliament had been silent during the drafting process and therefore now had to address the misconceptions. However the problem was that this statement was being made by the Human Rights Commission.
Mr Jeffreys said that he understood the point the Commission had been trying to make. He was however objecting to the use of a factually incorrect example to support this point.
The Chair requested that clarity be provided by the Department in writing.
A Department official said that the Department had responded to all the comments made in the media (including to those made by the Commission).
The Chair said that the Commission had the duty to check what the correct position was before including it in their submission. However the Committee should not shift their focus from the issues at hand.
Mr Jeffrey asked what the Commission felt would constitute age-appropriate stimuli for children in detention.
Ms Cohen responded that it would include reading material, an organized exercise regime, learning new skills and playing sport. This would result in developing team spirit, building confidence and acquisition of skills for the purpose of preparing them for when they would leave the prison environment.
Mr Jeffrey asked if the Bill expressly excluded children older than fourteen (arrested for sexual offences) from diversion.
Ms Cohen said that, according to their interpretation of the provisions, it did in fact exclude these children.
Mr Bassett said that this had in fact been the intention of the drafters.
Submission by Heidi Sauls
Ms Heidi Sauls (PhD Researcher: Amsterdam School for Social Sciences Research, University of Amsterdam) emphasized that the comments expressed in her submission were her own (based on her findings) and not those of the Amsterdam School for Social Sciences Research or the University of Amsterdam. She read through her submission document:
Rethinking the concept of criminal capacity
Ms Sauls raised the question of whether criminal capacity could be measured and how this would be done. In attempting to do so, it would be necessary to take into account relationships the child had with the assessors, the child’s perceptions of ‘good’ or ‘bad’, the history of the child’s criminal behaviour and the image of the child. She argued that in order to determine if a child had criminal capacity, one would have to look at the issue of intentionality to commit the crime.
Places of Safety
Ms Sauls said that the role of Places of Safety did not meet the objective of the Bill, which was to create the possibility of the child’s return to the community. She described such Places of Safety as being unfit and unhealthy for the incarceration of children, and not conducive to the development and protection of these children.
Among the problems she raised were:
- small spaces in which children were held
- limited schooling while in these facilities
- reluctance or inability of care workers to engage with children in order to keep them occupied
- poor working conditions of care workers
- younger boys being held together with older boys, resulting in abuse
- the length of the child’s stay at the Place of Safety
- errors of placement, which resulted in high levels of abuse and violence being inflicted on the affected children
Mr Jeffrey asked if it was necessary to include the question of intentionality in the test for criminal capacity, given the fact that intention already had to be established in order to prove the guilt of the child.
Ms Sauls responded that she felt that intention to commit a crime was a necessary element of criminal capacity.
Concluding remarks by the Chair
Mr Carrim described the present meeting as the first phase in an ongoing exchange. In broad terms, all the parties agreed to the goals and values of the Bill. One however had to determine what was attainable at present. He had doubts whether it would be possible to achieve everything which had been set out in both this and the previous drafts of this Bill, because of the fact that less could be done when a Bill was too far-reaching and divorced of capacity issues. The gap between civil society and Parliament was not too great on this issue - it was merely a question of what could be done now. It also did not mean that Departments could simply say they were unable to do certain things because of lack of capacity. Thus it would perhaps be a good idea for Departments (for example the Department of Social Development) to appear before the Committee to show exactly why they would be unable to implement certain provisions.
The Chair adjourned the meeting.
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