The South African Police Service made a submission that endorsed the work of the Committee on the Child Justice Bill. They did request some changes to the provisions in order for the SAPS to be able to enforce the legislation correctly. These matters were:
- the definition of the term ‘appropriate adult’ in Clause 1
- the manner of dealing with a child below 10 years of age in Clause 7
- exceptional circumstances when a child can be arrested in Clause 26
- the roadmap for placement of a child to be placement facility as first option then prison, and then police cell.
Other requests dealt with Clause 28(3): Detention Register, Clause 95: National Instructions and Clause 95: Notice from Social Development.
Thereafter the Committee continued discussion on public submissions on Clause 34 to 36 of the Child Justice Bill.
Dr Tertius Geldenhuys (Acting Divisional Commissioner: Legal Services: SAPS) said that SAPS supported the formulation of the Child Justice Bill. He also commended the Committee on the work they had done thus far. However, he explained that there were certain provisions in the Bill that SAPS felt needed a change to make it easier for SAPS to enforce.
Clause 1: Definitions
Dr Geldenhuys pointed out that there was a problem with the definition of the term ‘appropriate adult’. He said that according to the Bill this denotes among other things “...a person who is prepared to assist a child and who has prior a relationship of responsibility towards the child”. He said that the term ‘relationship’ might pose a challenge to SAPS when it comes to enforcing this provision. It would be difficult for the Department to explain to their officials what circumstances qualified as ‘a prior relationship’. He suggested that the wording of the provision be amended to read, “...a suitable person who is prepared to assist the child and who has a prior relationship with the child or a probation officer.”
Dr Geldenhuys gave the example that if a child was found to have committed an offence and such child was found to be under the age of ten; the Bill proposed that the child should be handed over to their parent or guardian and if there was none of the above, then to a person as described in the previous paragraph. The problem then arose in determining the suitable candidate to which the child must be handed over. He asked whether a neighbour or a teacher would be considered as an appropriate candidate.
Dr Geldenhuys said that it would facilitate enforcement if the additional candidate were added, this being the Probation Officer.
Adv Shireen Said, Chief Director: Promotion of the Rights of Vulnerable Groups, DoJ, added that there were many cases where the person who has been responsible for the child was also the person who lured them to commit crime. She gave the example of children who are used by “pimps” as sex workers. She said that in such a case this would not be a suitable person to be endowed with the responsibility of taking care of the child. She added that this would be in line with certain provisions of the Children’s Act. She suggested that perhaps they should use the term ‘social worker’ instead of Probation Officer.
The Chairperson highlighted that the responsibilities of a guardian/parent differ too much from those of a Probation Officer, therefore this would not be beneficial to the child. He asked whether the change was advisable because it would result in some children being released into the care of Probation Officers.
Commissioner Geldenhuys gave the example that if a child was caught shoplifting at a grocery store, then the police were called in. To whom were they to release the child? He asked whether the friend’s family with whom he had come to the shops, could be considered as “appropriate adults”. He explained that in some cases it might be difficult to establish a prior relationship of responsibility.
Mr B Maqwanishe (ANC) explained that in the rural areas it was custom that children belong to the community. As such, it might be difficult in such instances to determine the most appropriate adult to care for the accused child.
Mr S Swart (DA) explained that the qualification “suitable” makes the definition narrower than the use of the word “appropriate”.
Imam Solomons explained that the safety of the child was paramount and that it was important to be able to monitor the whereabouts of the accused child as they might be required to appear in court. Therefore he said it was important to regulate to whom such a child was released to.
Ms Jacqui Gallinetti, Coordinator, Children’s Rights Project, agreed that the term “suitable” did narrow the ambit of the provision. She said that if the police read into the term “appropriate” they would be able to infer that there must have been a positive relationship between the child and the adult, therefore pimps would not qualify. She said that the use of a Probation Officer was not feasible because it was not possible for the Probation Officer to attend all the hearings for the children placed in his/her care.
Advocate Said accepted that the use of a Probation Officer might cause capacity problems.
Commissioner Geldenhuys pointed out that the inclusion of a Probation Officer did not mean that all children would be released to a Probation Officer but that when there was no other appropriate adult available, then the police could turn to the Probation Officer. He explained that the Police had the discretion to decide who was suitable to care for the child.
The Co-Chairperson, Adv Carol Johnson, accepted that they would remove the term ‘prior relationship’ and would insert the term care-giver as well as guardian. She then closed the discussion on Clause 1.
Clause 7: Manner of dealing with a child below 10 years of age
Commissioner Geldenhuys explained that Clause 7 was too prescriptive because it stated that a child suspected of committing an offence and under the age of 10 must be taken home or to a placement facility. He proposed that the provision be amended to read that police “should hand over such child to his or her parents or an appropriate adult”.
Mr Swart questioned whether the Commissioner meant that the whole provision should be replaced by those words.
Commissioner Geldenhuys explained that taking the child home might be too much work and might also be embarrassing to the child.
Mr Swart asked what the position would be if they could not find an appropriate adult. He asked whether they would then take the child to a placement facility.
The Chairperson stated that only the term “must take home” should be removed and the option of the placement facility should still remain.
Commissioner Geldenhuys explained that the inclusion of the Probation Officer meant that when the child was taken to the Probation Officer then he could decide if it was necessary to place the child in a placement facility.
Advocate Said pointed out that the problem was that a lot of kids ended up staying at SAPS offices. The SAPS was not equipped to care for young children and as such children should not be detained at SAPS offices.
Ms Conny Nxumalo, Chief Director: Families and Social Crime Prevention, Department of Social Development, asked whether this meant that there would be a Probation Officer at every SAPS facility. She did point out however, that she agreed with the proposed change as she also did not feel that SAPS was equipped to detain children.
Commissioner Geldenhuys explained that there were no Probation Officers at police cells. The problem was that when a child under ten was suspected of committing a crime, the police could not arrest them but neither could they just leave the child like that. Thus it was necessary to ensure that they were handed over to a suitable adult and where there was none, to a Probation Officer. He explained that although there were no Probation Officers on site at police cells, the Children’s Act did provide for the appointment of Probation Officers to children.
Advocate Said conceded that police cells were not appropriate for detaining children under the age of ten. She asked whether the use of a Probation Officer would avert sending the child to a placement facility.
Dr Lirette Louw, Legal Advisor, DoJ questioned whether the children would then be kept at a SAPS facility while they await the Probation Officer.
Ms Jacqui Gallinetti emphasised that they must keep the placement option.
Advocate Said pointed out that the Committee was arguing as if the Probation Officer was the only option yet there were three options: the parent/guardian, the Probation Officer and the placement facility.
Imam Solomons asked how the handover would take place.
Commissioner Geldenhuys explained that the handover was not an issue for the Act but would be regulated in the regulations.
Ms Nxumalo, DSD, conceded that the option of the placement facility should be kept.
The Chairperson closed the discussion by saying that the clause would be amended such that a child could either be released to their parent/guardian or to a Probation Officer and then to a placement facility.
Clause 18: Arrest
Commissioner Geldenhuys suggested that the provision should be amended to provide that a police official might arrest if the “police official has reason to believe that the child does not have a fixed residential address, would continue to commit offences unless he or she was arrested and if the child poses a danger to any person among other things.”
Dr Anne Skelton, Centre for Child Law, University of Pretoria, asked if this meant that street children would always be arrested.
Commissioner Geldenhuys explained that some street children actually live in shelters and this was considered to be their abode. The reason for this proposed amendment was that if such a child was left to roam, then what would be their fate?
Adv Said explained that not all social issues might be resolved on this fact.
The Chair accepted that it was better for street children to be arrested as they had nowhere else to go.
Ms Louw pointed out that this amendment might lead to discrimination as it gave the Police the discretion to decide which child should be arrested and which should not.
Commissioner Geldenhuys highlighted that the clause was an exclusionary clause and was therefore already restricted. In addition, the police already had the discretion to decide who got arrested and who did not. He explained that they would still take into consideration all the factors that had been considered in the past.
Adv Johnson (ANC) noted that the Committee seemed to have a reached a consensus that the provision should be amended.
Adv Said stated that the addition of the word “and” might serve to reduce the prescriptive nature of the provision.
Dr Skelton noted that the section was already limited so she accepted the proposed amendment. However, the amendment should explain that physical address included “shelters”.
Imam Solomons said that the notion of having a fixed address should be removed totally.
Commissioner Geldenhuys explained that the purpose of the proposed amendment was to ensure that the child was placed where they could be accessed easily for hearings and such.
Mr Swart added that the goal of arrest was to secure attendance at a trial therefore he appreciated the Commissioner’s fear that the child might disappear.
Adv Johnson agreed with the Commissioner.
Imam Solomons stated that alternative measures should be found to secure attendance.
Ms Lirrette Louw, Legal advisor: DoJ, explained that the proposed amendment would be phrased in such a way that it still left arrest as the last resort.
Dr Skelton agreed with Imam Solomons that the section could still be perceived as unconstitutional as it could be interpreted as discriminatory.
Ms Nxumalo pointed out that a child with no physical address might be found to be in need of care. Therefore a Probation Officer should be required to assess such a child first before arrest.
Mr Maqwanishe noted that the procedure at the moment was that within 24hours of arrest a Probation Officer must be informed that he was required to assess the child. He asked what the role of the Probation Officer was after that.
Ms Nxumalo explained that if a child was not assessed then an inquiry was held.
Adv Said proposed that monitoring of this procedure fell outside the scope of the SAPS mandate.
Mr Maqwanishe conceded that the amendment should go ahead.
The Chairperson closed the discussion on Clause 18 on this note.
Clause 26: Consideration of placement of child
Commissioner Geldenhuys proposed that clause 26 be amended to order the roadmap for placement of a child such that placement in a placement facility was first option then placement in a prison and thereafter placement in a police cell.
The Chairperson pointed out that placement facilities were the only ones that offer the child basic necessities such as education. He noted that last year they had been told that children awaiting trial at Pollsmoor Prison had no access to such necessities.
Dr Skelton said that although prison cells were not suitable for children, they might be the better solution during the first 48 hours of arrest. She pointed out that even adults were not sent to prison before they had been detained in holding cells. She explained that section 29 regulated detention of children awaiting trial. She asked Commissioner Geldenhuys to explain whether he was suggesting that children should be held in prison before their first appearance.
Commissioner Geldenhuys explained that SAPS did not want children in their facilities because they were not equipped to care for them. He said that prison facilities were in a better position to provide services such as counselling and education.
Adv Said explained that this issue was under review and they were still waiting for comment on this.
Ms Louw highlighted that SAPS was saying that they could not accommodate children in their facilities because they could not provide them with the services they require.
The Chairperson noted that SAPS was not being asked to provide psychological counselling. It was understood that children suspected of committing a crime and detained might be traumatised by the whole experience. As such SAPS would only be required to assure them that they could have access to hospital treatment where they could get the requisite counselling.
Mr Lawrence Bassett, Chief Director: Legislation, DoJ, explained that if anything happened to the child while they were in a prison cell then they were to be assessed. However, the addition of psychological treatment as an option, would have huge cost implications.
Adv Said accepted that access to psychological treatment should be added in the protocol.
The Chairperson denied this, saying that this was not how the legislative framework operated. He said that such regulatory functions should not be delegated to the Ministry as they might be indisposed to the value of this proposal.
Ms Louw emphasised that there was a need to provide psychological treatment to children in detention especially considering the outrageous stories that were being published in newspapers articles of the fate of children in detention.
The Chairperson ruled that the amendment would be executed but added that regard must be had to provision of (access to) psychological treatment. He said that the wording would be the responsibility of Adv Johnson, Mr Bassett and Adv Said.
Imam Solomons conceded that prison facilities were better than police cells.
Adv concluded that the roadmap would be placement facility, then police cell then prison after the first 48 hours. She explained that the prison cell was closer to the community and so family might be able to visit their child. She also noted that the Police would not be required to have all these services on hand at their facilities but would be required to ensure children had access to psychological treatment.
Clause 28(3): Detention Register
Commissioner Geldenhuys proposed that this section be amended such that it provided that entries in the Detention Register about the detention of children should be distinguishable from entries about the detention of adults. He explained that the process to have the register computerized is ongoing and so it would be difficult to require that the information of children be kept separately from that of adults.
Adv Said pointed out that the Committee had agreed on this wording last week.
Clause 95: National Instructions
Commissioner Geldenhuys suggested that the clause should read the National Commissioner must act “after consultation” with other Directors General as opposed to “in consultation with”. He explained that while the National Commissioner was accountable, the other Directors General were not.
Adv Said stated that this provision had been changed accordingly.
The Chairperson pointed out that he did not agree with the amendment. The Commissioner was not the umbrella for all children’s issues and as such s/he should work in consultation with other Directors General.
Adv Said explained that the purpose of the amendment was to avoid a dependency problem between Directors General.
Clause 95: Notice from Social Development
Commissioner Geldenhuys recommended that a new sub-clause be inserted that read: “ The Director-General of Social Development must provide the National Commissioner of the SAPS, within 30 days from the coming into operation of this Act, with a list of all Probation Officers that might be contacted for purposes contemplated in this Act, with their contact particulars and must update the list on a six-monthly basis”.
Ms Nxumalo said that the Social Development Department agreed with this amendment.
Adv Said explained that software was being made compatible to facilitate this process.
Continued Discussion on public submissions on the Child Justice Bill
Mr Bassett pointed out that clause 41 should be read in light of the provisions in clause 33.
The Chairperson asked the Department to explain the definition of the term “remedial order”.
Ms Louw explained that a remedial order was an interim order and was one that must be executed.
Dr Skelton added that this was an order by the Court that the Department must do something.
The Chairperson asked what the conditions of detention were according to clause 34.
Ms Bassett explained that no leg irons may be used and no hand-cuffs either unless there were exceptional circumstances. In addition children must be transported separately from adults.
Ms Gallinetti stated that according to the prescribed standards, girl-children should be transported under the supervision of an adult woman official not just any woman.
The Chairperson asked her to verify where those exact words were stated.
Mr Bassett said that he was oblivious to this and did not know where this was stated.
Ms Louw explained that there was no need to add these words as they could be read in.
The Chairperson emphasised that he did not think that the responsibility for regulation of such provisions should be the duty of the Ministry alone. In many provinces such as the Northern Cape, there were issues of distance where prisoners were transported over long distances. In such cases it might not be feasible to transport children separately from adults. He suggested that the provision should be made less prescriptive and should allow for exceptions. He suggested that the provision should read “where reasonably possible”.
Ms Gallinetti explained that there were many incidents where children held with adults were abused. This suggestion might only be heeded if the Committee could agree that a police official must be in the vicinity where a child was held among adults. This provision could not be restricted merely because of a lack of resources and capacity.
The Chairperson asked whether it was possible for an official to sit with the prisoners in the van.
Commissioner Geldenhuys explained that if the official was in the van with prisoners, he could not be armed as a security measure. However he agreed that an official must be in the vicinity to monitor the child.
The Chairperson conceded that where there were exceptional circumstances, a child might be transported with adults.
Commissioner Geldenhuys stated that it was redundant to say if there were exceptional circumstances, because the Department already knew that there were.
Adv Said agreed that they had pinpointed where the challenges lie.
Mr Maqwanishe advised that they must not treat this matter as an operational one as it was a policy issue. He agreed with the inclusion of the term “in exceptional circumstances” because the Constitution required that children must be protected especially in detention.
Imam Solomons noted that all children should be treated exceptionally. He asked whether the problem was capacity.
The Chairperson pointed out that the problems arose where they had to travel for long distances. As such he accepted that the inclusion of the term “exceptional circumstances” might not be necessary since they already knew that they existed.
Mr Basset noted that they had dealt with procedure in the road-mapping clause.
The Chairperson commented that the assessment of all children was already taking place. The notion that assessment was to determine diversion was wrong as assessment sought to determine many things such as criminal capacity and history of child abuse.
Ms Nxumalo explained that although the police might be dealing with this already there was still a need for the Committee to be provided with evidence of this.
Mr Bassett explained that the clause referred to the Children’s Act and the Children’s Amendment Bill in terms of how to determine that a child was in need of care. Only children who did not fall in this category would not be assessed.
Afternoon session: The Chairperson declared that the meeting was closed to the public.
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