Jurisdiction of Regional Courts Amendment Bill: Further submissions & Child Justice Bill: Costing and briefing by Legal Aid Board

Meeting report

Jurisdiction of Regional Courts Amendment Bill
Judicial Officers Association of South Africa (JOASA): Submission
Ms Judy van Schalkwyk, President of JOASA, &Senior Magistrate, Kempton Park, introduced JOASA’s submission. Ms van Schalkwyk provided background information on JOASA, stating it was a voluntary organisation of judges and magistrates, including regional, division and senior magistrates. She stated that its objectives were to promote the interest of judicial officers, particularly in respect of benefits and appointments, but also to consider and comment on new legislation.  She emphatically stated that inadequate consultation had taken place on the Jurisdiction of Regional Courts Amendment Bill (the Bill), with only a one hour consultation on 12 February 2008 and a half-hour consultation on 11 March 2008.

Mr Tshifhiwa Maumela, Magistrate and former Head of JOASA, added that JOASA was in broad agreement with the purported objectives of the bill insofar as increasing access to justice and providing career pathing for magistrates were concerned. Increasing access was of greater import and should take precedence. However, he noted that there was an over-representation of white males in the regional courts and requested that matters of transformation and representivity, including of race and gender, be addressed simultaneously with the implementation of the Bill. He further noted that regional courts magistrates only heard criminal matters and that if civil jurisdiction were to be extended to them, there needed to be assurances given to litigants that their cases were incapable hands.

A document containing JOASA’ proposed amendments to the Bill was tabled and it was noted that some concerns had already been addressed.

The proposals in regard to Clause 3 were that the appointment of magistrates should be accordance with the Constitution. This was similar to the appointment process as applied by the Judicial Services Commission (JSC) in the appointment of judges and would be seen as a further step towards a single, unified judiciary. Clause 4 contained consequential amendments that flowed from the proposals for Clause 3.

Clause 5(d) set out requirements for appointment. The rationale was that the training of magistrates fell under the auspices of the Magistrates Commission (MC), which would stipulate training requirements including those for the divorce, criminal and civil spheres. Regional magistrates were appointed on the recommendation of the MC. The MC should thus determine who was appropriately qualified for civil adjudication during the transitional phase. It was proposed further, as a transitional phase, that the mechanism in place for accommodating distinct and regional magistrates for adjudicating civil matters should be formulated by means of a sunset clause. Until now, regional magistrates may have been reluctant to adjudicate in district courts to gain experience. There were many reasons for this, including the perception that to adjudicate in civil matters in district courts could be a “step down”. If district magistrates appointed to regional courts to adjudicate civil matters would allow for peer mentoring this would obviate any problems. He proposed that this be done by means of a sunset clause, and that after the final date all magistrates who were promoted to regional courts should have undergone a wide spectrum of training, not piecemeal training. This was the only way to attain the proper adjudication skills for higher courts.

The Chairperson interjected at this point to object to the lack of pagination in the submission.

The submission then moved to concerns in regard to implementation. JOASA had been given a mandate by the Divorce Court to make this next submission. It was stated that the implementation must go hand in hand with existing structures. There were several difficulties in extending jurisdiction. Regional courts consisted of a magistrate, a prosecutor and a clerk.  Divorce courts had different officers and this should be taken into account. The signature of the Registrar of the Divorce Court was recognised internationally, and this was an important aspect that needed to be considered, as the signatures of Regional Magistrates were not regarded in the same light.

JOASA further noted that there were inadequate filing systems in court and although the Amendment Bill was not about infrastructure, this point had to be kept in mind. There was always a possibility that files may be needed 30 years after divorce, for example, when pensions became an issue. Finally, clerks needed to be deployed and trained, that they would otherwise not be able to deal with matters thrust upon them.

Discussion
An ANC Committee member objected to the reference in the presentation to “novice” magistrates. He felt that was disrespect to the Bench and the language was intemperate. He pointed out that the Committee had an obligation to defend the Bench

Adv L Joubert (DA) asked whether JOASA looked at the judicial system in South Africa holistically and whether this was considered as a priority Bill for the Association.

Ms van Schalkwyk stated that was important to promote access to justice and insofar as the Bill failed to promote this, it did not warrant an important position in the list. Once the concerns around capacity, training and other factors had been looked at, it would be seen as of higher priority.

Mr Vincent Ratshibvumo, Magistrate, responded that this comment was not intending to be disrespectful, that “novice” was merely intended to refer to a new person in the field. He apologised for any offence caused to anyone in the profession.

Imam G Solomon (ANC) noted that JOASA was a voluntary organisation and thus not all judicial officers were members. He enquired as the level of division on the bench regarding this Bill

Ms van Schalkwyk replied that about 1300 out of 1823 magistrates were members of JOASA. She stated further that there was another organisation, Association of Regional Magistrates of South Africa (ARMSA) but that their mandate was quite different to JOASA, who wanted career pathing for all magistrates, not just a few.

Mr S Swart (ACDP) said he wondered if JOASA understood that the Amendment Bill would be incrementally introduced. He further inquired whether the increase in jurisdiction for the district courts impacted on their viewpoint. Lastly, he asked whether the impasse on the Amendment Bill had been resolved.

Mr Maumela responded, in regard to the impasse, that JOASA had only that morning become aware of some developments. The pending increase of civil jurisdiction would go some way towards resolving some concerns. Although it was clear that there was work in progress towards a single judiciary, he did not believe that this development would solve all problems.

An ANC Committee member enquired whether JOASA had seen the implementation plan of the Department, and if so, what was their comment on it.

Mr Maumela responded that he had not, and that if JOASA had been included and consulted, their attitudes would no doubt have been different. 

The Chairperson noticed that the document containing the proposed amendments by JOASA was prepared before that morning’s meeting with the Department. He enquired whether the Association wished a further opportunity to present new documents on outstanding issues.

A JOASA Member noted that the proposal was not at variance with what had emerged during that morning’s meeting.

Mr Maumela made a request that in future, there be meaningful consultation, noting that JOSAS represented a majority of magistrates.

Child Justice Bill: Legal Aid Board (LAB) report on the effect of the Bill on the operations of the Board
Mr Patrick Hundermark, Legal Development Executive, Legal Aid Board noted that his responsibilities included policy issues, researching and consideration of new legislation operating and costing implications for the LAB.

He asserted that the LAB welcomed the advent of the Bill. In anticipation of the Bill, R10 million was allocated for the establishment of specialised Child Justice Centres and legal representatives to focus purely on child offenders. Out of 59 legal aid centres, 17 had child justice centres and 14 had dedicated child justice practitioners. A target of 150 cases a year was set for the child justice practitioners. A detailed breakdown of the number of child offenders appearing before the courts and their ages was presented. It was noted that the majority of children before a Court were represented and of that number, 83% were represented by the Legal Aid Board. Training and development was provided for specialised child justice practitioners. The requirements for the specialised child justice practitioners were at least 5 years post-admission experience, as well as experience in representing children. The Child Law Centre provided additional support in representing and assisting children.

He noted that there was a question as to whether a candidate attorney should assist in child matters and said that candidate attorneys currently dealt with 47% of legal aid cases involving a minor accused. If candidate attorneys could no longer appear, an additional 150 legal practitioners would be required. He stated that LAB was of the view that more experienced practitioners should represent children. If this became a requirement, LAB would require considerably more funding.

Discussion
Mr Swart noted that there were substantial costing implications if candidate attorneys were no longer allowed to represent children. He enquired what their current role was, and enquired whether they would not still be permitted to appear in the less serious cases. He pointed out that many of the offences would be petty offences. He enquired as to diversion and sought information regarding criminal defence against a backdrop of restorative justice. Diversion would require a child to accept blame for the actions of which he was accused. A defence attorney would be trying to have the accused declared not guilty, whilst this was rather seeking to establish as a fact whether the child committed the act and accepted blame.

Mr Hundermark stated that when children appeared in the district court, they were represented by candidate attorneys, which is why the cost implications were provided. He noted that children needed the assistance of qualified practitioners. If the State’s case was weak, there would be difficulty in pleading guilty. However, there might well be a scenario where the child might consider the diversion route preferable to the trauma of a court process.

Mr Swart said that the role of the defence attorney was to advise the child to accept blame if the attorney was convinced that the child committed the offence, with no legal defences available.

Mr Hundermark noted that this was indeed the role of a defence attorney. However he reiterated that a young child might suffer enormous trauma through the normal criminal justice system.

Adv Joubert (DA) enquired as to what crimes children under 10 committed, and whether any were serious.

Mr J Jeffery (ANC) expanded on this question, wanting to know the type of cases involving children aged ten to twelve, in light of the debate on the age at which a child would be regarded as having criminal capacity.

Mr Hundermark did not have the data with him but said he could easily obtain this information from the LAB’s database.

The Chairperson also asked about the nature of the crimes committed by young children.

Mr Hundermark said that any answer he gave now would just be a guess, but said that his information could be obtained from his office.

Mr Jeffery noted that that the LAB, in order to represent 100% of accused children, would need R30 million or more. He wanted to know whether the LAB had taken into account that 8% of their posts were not filled, and asked whether these were subtracted from the 56 additional posts requested. Secondly, if the age of criminal capacity were to be raised to twelve, the figure of 56 could be over optimistic.

Mr Hundermark said it was not taken into account, as the posts had been filled for a period of time and LAB were in the process of recruiting for the vacancies. 

Mr Jeffery noted that outside the major centres, there would probably be few dedicated child justice practitioners, as most would be multi-purpose. He enquired whether LAB factored in vacancies in other specialised child justice posts and whether this would reduce the number needed. There was a need to be realistic about what was available and what was really required. Several practitioners would continue to be involved in child matters.

Mr Hundermark noted that the recruitment rate for general legal posts was above 90%. On Judicare, LAB would make use of more private practitioners where if did not have the capacity. LAB would have to engage with National Treasury (NT) when the Bill was finalised as to how this would finally be dealt with.

Mr Jeffery wanted to know what happened to the 8 323 children unrepresented in Court, where they had ended up, and why they were not represented.

Adv Shireen Said, Chief Director, Vulnerable Groups, Department of Justice, noted that there had been a request for budgets earlier. She noted that there had also been a request around the fast tracking One Stop Child justice centres. Much would depend on the case flow and number of cases. She warned that there might be some inconsistency in the statistics, as the child was not necessarily tracked all the way through the system.
 
Mr Jeffery stated that children with representation would be in the system. His fear was that the 8 323 children were those who might have had their charges withdrawn quickly, and thus this affected the amount of money to be requested.

An ANC Member asked a question on as to how strict LAB were in enforcing their policy of each child specialist practitioner would be dealing with 150 cases in a year. Each case was different and some would be more complex than others. He further asked about LAB’s retention strategy for specialist child practitioners.

Mr Hundermark responded that that it was a guideline rather than an absolute rule, and that LAB allowed for exceptions. The guideline was there for the sake of management, and would not be permitted to sacrifice quality. He further stated that practitioners who did not meet this target were not penalised. In regard to retention, he replied that the rate was generally the same as other positions, above 90%.

The Chairperson enquired whether the LAB currently used candidate attorneys.

Mr Hundermark said that that they handled minor cases and that a clause preventing candidate attorneys from appearing for a child had been removed. The question was up for discussion.

Adv C Johnson (ANC) wanted to know when an assessment would be done and whether this would apply to all children.

Mr Hundermark replied that it should be done as early as possible after alleged offence to assess criminal capacity as part of assessment to pick up any issues that may impact on issues such as mental development.

Mr Jeffery questioned the necessity of a legal representative appearing at an assessment. The assessment was supposed to be neutral. This would take place against a backdrop of a shortage of resources.

Mr Hundermark responded that the assessment should be done at the earliest possible stage, that the assessment should be independent, but that it would involve different people who had different roles to fulfil. The entire process and persons, such as the magistrate, could be intimidating for a child and someone would be needed to guide the child through the process.

The Chairperson asked about children that were referred to prison and why they were incarcerated. He expressed disbelief that the Department Of Correctional Services should volunteer this information but do nothing to correct this state of affairs.

Mr Swart noted that the concept of restorative justice could be problematic, and that with South Africa’s high crime rate, it could be seen as being too soft on crime.

Mr Jeffery requested further information on diversion, in the light of constitutional considerations.

Mr Swart stated that diversion would not be suitable for all children, as some would be a danger to society, but that each child should be considered.

The Chairperson asked whether anyone felt that all cases would be suitable for diversion.

Ms Jacqui Gallinetti, Community Law Centre, UWC, noted that if all children were allowed to have diversion, this could infringe on victims’ rights. However, she averred that assessment and preliminary enquiries were not just about diversion, and that there were other crucial decisions that needed to be made, such as where children should be detained, and an assessment of their age. If the decision was to limit certain children from diversion, they might still need an assessment and a preliminary enquiry to determine the kinds of questions she had suggested.

Mr Jeffery stated that Bill excluded certain categories from diversion, but that some submissions had argued that all children should be considered for diversion. This was very different from saying that all children should be diverted.

Mr Jeffery wanted to know whether the definition of persons who could assess children needed to be extended or whether it was sufficient.

Ms Gallinetti stated that the assessment was just a gathering of information at the first port of call. It might be that a child would need a more complex assessment and there was provision in the Bill for this. At this point the probation officer would be the most qualified person for that role. She enquired whether the Department of Social Development (DSD) possessed sufficient capacity.

Ms Constance Nxumalo, Chief Director, DSD, stated that there were sufficient probation officers to perform the initial screening.
 
Mr Jeffery asked about the skills that a probation officer would need.

Ms Nxumalo stated that all probation officers were qualified social workers who had then also completed a further training programme. There were 484 probation officers in 269 offices, and plans were under way to appoint a further 200.

Mr Jeffery sought clarification on whether the probation officers would be able to ensure that all arrested children would be able to be assessed.

Ms Nxumalo said that the DSD had the capacity. It had looked at the number of children arrested in each province and assigned officers based on that figure.

Ms Gallinetti stated that her concerns arose out of statements in 2002 that there was a lack of capacity. However, if there was now the capacity to implement the Bill, then she did not have a problem with the wording. 

The Chairperson enquired whether the Committee should take DSD at its word, without other supporting evidence. He emphasised that although he believed it had given these assurances in good faith the Committee perhaps needed to make some further enquiries to be realistic.

Mr Jeffery pointed out that thee may be problems in some rural areas, but if DSD were handling the major urban areas competently, then he could not foresee any significant capacity problems in implementing compulsory assessments. He requested that documents be supplied to back up the DSD statements.

The Chairperson suggested that the requirements could be more onerous.

Mr Jeffery raised the issue of geographical spread, and noted that a probation officer may experience a delay in going to a remote area. He asked whether any changes needed to be made.

Mr Jeffery enquired as to how many children alleged to have committed an offence were not arrested.

Ms Nxumalo replied that DSD were contacted immediately by police when a child was arrested.

Mr Jeffery noted that the general consensus seemed to be that all children suspected of committing an offence should be assessed. The question appeared to hinge around capacity. He therefore asked in terms if DSD had the capacity to do the assessments, and whether they could put this in writing.

Ms Nxumalo replied that DSD had the capacity to do so and would state so in writing.

Ms Gallinetti noted that DSD had made services available in anticipation of the Bill, but she had understood that this was done on the basis of the 2002 version of the Bill, not the 2007 version. She was unsure whether this made a difference. She further noted there had been a provision previously that allowed a police officer to be present, and that she did not see the point of such a person at a preliminary hearing.

Mr Jeffery responded that only the child, appropriate adult and any other person necessary or desirable was allowed to attend the preliminary hearing. The probation officer may exclude anyone if their presence would undermine the hearing. He asked whether this point was really necessary.

Ms Gallinetti stated that she was prepared to concede the point, but that it might be simpler if another person did not have to be considered.

Dr Lirette Louw, Researcher, Department of Justice, supported this, stating that this was the rationale for the new provision.

Mr Lawrence Bassett, Chief Director: Legislation, Department of Justice, noted that the majority of respondents had suggested that every child should be assessed. On a more technical note, an issue that was raised was that the Chapter dedicated to preliminary inquiries no longer stated the objectives.

The Chairperson stated it should be included as it provided clarification.

Ms Gallinetti said she supported the inclusion of this, as the section was rather complicated and this could help to prevent confusion. 

Mr Bassett stated that legal representatives should not be included, to keep matters informal and to prevent hold ups on technicalities.

Mr Jeffery claimed that he did not foresee large numbers of legal representatives attending preliminary enquiries. He noted that if it was specifically mentioned it could be interpreted by a magistrate as an imperative.

Adv Johnson disagreed, as child’s rights could be affected or even prejudiced by the process.

Mr Jeffery stated that in an ideal world a child would be legally represented at a preliminary enquiry, but that this might not be possible.

Dr Ann Skelton, Child Justice Alliance stated that she did not believe that it should be compulsory for a legal representative to be present, and in any case, she thought that only rarely would a legal representative be at a first hearing. She did not however, see any reason for the diversion service provider to be there and felt this should not be a requirement.

Imam G Solomon noted other sections allowed for legal representatives to be present and that he did not see the need to add a section.

Mr Jeffery noted that a diversion service provider had to be present and that the child’s parents or child’s probation officer did not need to be there, as the matter could proceed in their absence. However, nothing as said about whether it could continue if the diversion service provider was not present, and this needed to be stated more clearly.

Mr Bassett agreed.

Dr Skelton sought clarification on whether all children could be referred to a preliminary enquiry that it did not only concern diversion, but also one that determined if a child should be detained, and if so, where.

Mr Jeffery objected, saying that the purpose of a preliminary hearing was to give due consideration to diverting children away from the criminal justice system.

Dr Skelton said that since the clause had been drafted, a new understanding had arisen as to what it entailed. Diversion would be considered, but other decisions would have to be made.

Dr Louw noted that some children could not be diverted, and for that child, the preliminary enquiry would be his or her first court appearance.

The meeting was adjourned.