Black Administration Act: adoption; Reform of Customary Law of Succession Bill: briefing; Child Justice Bill: deliberations

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Justice and Correctional Services

16 June 2008
Chairperson: Mr Y Carrim (ANC), Ms M Mahlawe (ANC), Mr J Jeffery (ANC)
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Meeting Summary

The Committee considered an amendment to the window period for the continuation of certain sections of the Black Administration Act, which was due to expire on 30 June 2008. This window period had been set to allow for the existing provisions to be incorporated into the Traditional Courts Bill, but since this Bill would not be passed by then, the Committee resolved unanimously to amend the Black Administration Act so that it remained in force until 30 December 2009.

The Committee received a briefing from the Department of Justice on the Reform of Customary Law of Succession and Regulation of Related Matters Bill. The Bill emanated from the recommendations of the South African Law Reform Commission (SALRC) and gave effect to the Constitutional Court judgment in the Bhe v Magistrate of Khayelitsha case. It aimed to abolish the primogeniture rules under customary law, and advantage those women and children who had in the past been marginalised. The Constitutional Court’s ruling on primogeniture were summarised. The Department highlighted the definitions, and the changes to the concepts. There was not a total abandonment of the principle that a male heir could take control of the assets of the deceased, and there were new principles for deciding on dissolution and disputes. The Master of the High Court would deal with disputes, and could refer them to a Magistrate to hold an enquiry. Property acquired by a Traditional Leader was excluded. Discarded spouses were to be dealt with. Consequential changes to other legislation were discussed. Members queried the implications of clause 2 and the position of ancillary unions was explained. There was a suggestion that perhaps other wording might be more appropriate. Members discussed why this report, dated 2004, had only come before the Committee now and agreed that the issue of under staffing at the Department should be raised in the Report.

The Women’s Legal Centre made a submission on the Bill, pointing out that the principles were welcomed but that there were some points that needed to be addressed. The debate between official and living customary law had been considered by the Constitutional Court. The Women’s Legal Centre believed that the participation of women must be introduced into customary law. The Bill had treated the notion of equality well, but had failed to take into account that development of equality must also look at substantial equality between women, which might require a different interpretation. The definitions of descendants should include biological children. The power to the Master to determine disputes was of concern and it was suggested that if this was retained, then the Promotion of Administrative Justice Act must apply. The Centre was concerned that women married prior to 1998 under customary unions were not sufficiently protected as some of the old Codes in Kwazulu Natal, Lesotho and Transkei still allowed for polygamous and civil marriages to exist side by side. The Department responded to some of these submissions. Members raised their concerns also with the capacity of the Master’s office to deal with these matters and asked the Department of Justice to submit a report on what the current situation was and how people were accessing the Master’s office

The Committee then proceeded to deliberate on the latest version of the Child Justice Bill. Many of the amendments were technical or stylistic in nature. The central feature of diversion was to be included in the long title. Comments were made on the preamble and the Department of Justice would prepare suggested wording. Capacity constraints were being specifically mentioned as a tool for interpretation and to make it clear that not everything would be achieved overnight. Many definitions had been copied across from the Children’s Act. Clause 5 would be amended to include a further reference to children between 10 and 14 who might be considered to have criminal capacity. A new subclause (b) would be inserted in the exceptions to sub clause 5(3). It was noted that clause 7 set out the minimum age for criminal capacity at 10 years. This was to be reviewed after five years, and the reasons for this were explained. Clause 9 contained a provision that a child under 10 could be referred to a place of safety if his or her own home was unsuitable. 

The issue of assessment to establish cognitive ability was discussed in Clause 10. If there was a positive response to a diversion programme then criminal capacity would not be a major factor. It was decided that ‘medical practitioner’ would be used in Clause 12 so as not to limit the scope of implementation.  A child would be treated as a child first until the age could be determined or a probation officer expressed an opinion on the age of the child.

Clause 16 was simplified to indicate how a child should be dealt with before a judicial review if there was no prejudice. Clause 17 was identified as the roadmap to secure the notice of the child. ‘Written warning’ was replaced with ‘written notice’ in Clause 18. Technical alterations were made to clause 19 by deletion of the word “thereof”. In clause 20 it was noted that there may be other circumstances or compelling reasons to justify arrest. There was a change of the cross referencing in Clause 21. It was noted, in relation to clause 22 that there would be emphasis on the release into the custody of parents. The heading to Clause 23 was amended to make it clearer.  Typographical errors had been corrected in Clauses 24 and 25.

Meeting report

Black Administration Act: Amendment of sunset clause for repeal of Act & Extension of enforcement of certain provisions in the Act
Mr J Jeffery (ANC) and Mr Y Carrim (ANC) acted as co-Chairpersons for this section of the meeting.

Mr Jeffery noted that this was a single amendment to change the date on which the Black Administration Act would be repealed in its entirety, from 30 June 2008 to 30 December 2009. The only remaining sections of this Act still in force related to the traditional courts, and it was intended that these were to be dealt with under the Traditional Courts Bill. Since this Bill would clearly not be finalised by 30 June, there was a necessity to extend the Black Administration Act to ensure that there was no hiatus in the functioning of the Courts.

The notification of the extension was published in the Government Gazette on 23 May, and interested parties had been asked to submit comments by 14 June. No representations were received. This would be noted in the report.

The Committee agreed to approve the amendment, and to adopt the Report, as amended.  

Reform of Customary Law of Succession and Regulation of Related Matters Bill (the Bill): Department of Justice (DOJ) briefing
Ms M Mahlawe (ANC) and Mr Y Carrim acted as co-Chairpersons for this section of the meeting.

Mr Carrim thanked Ms Gillian Nesbitt, Committee Researcher, for her excellent summary on the Bill.

Ms Theresa Ross, State Law Adviser, Department of Justice reported that this Bill emanated from the recommendations of the South African Law Reform Commission (SALRC) and gave effect to the Constitutional Court judgment in the Bhe v Magistrate of Khayelitsha case. It aimed to abolish the primogeniture rules under customary law. It would advantage women and children who were usually marginalised. The customary rule of primogeniture meant that succession was limited to the male line, specifically the eldest male son, therefore excluding daughters and younger sons. This rule also precluded women from inheriting from their husbands and extra marital children from inheriting from their fathers.

During the investigation, the SALRC noted the plight of all those who were precluded from inheriting under the customary law as intestate heirs. The Constitutional Court in the Bhe judgment had said that primogeniture could not be reconciled with notions of equality and human dignity, unfairly excluded women and extra-marital children, was incompatible with the Bill of Rights and could not survive constitutional scrutiny. The SALRC had noted in addition that amalgamation of customary law and Roman Dutch law was not possible. The recognition of Customary Marriages Act had placed certain issues on a par. Many African families were no longer following patrilineal relationships.

Ms Ross highlighted some of the definitions. A “descendant” would now include a person who was dependent on the deceased. The concept of dependence was wider in the customary law than in the common law. “House” would mean the family, property, rights and status attaching to the rights of the woman. A “spouse” would include a spouse recognised by the Recognition of Customary Marriages Act of 1998. The estates were previously dealt with under the repealed Black Administration Act (BLA). Clause 2 dealt with different supporting marital unions, some of which were entered into by or on behalf of males with women, in order to raise offspring of the deceased person. The children born out of this arrangement had not been regarded as descendants under the 1927 BLA Act, and were regarded as extra-marital children of their biological parents. Clause 2 of this Bill now dealt with this situation. A woman would now be regarded as a descendant for purposes of the application of this Act. A “spouse” would be regarded, for the purposes of intestate succession, would now include every spouse and every woman. The Bill also provided for calculation of a child's portion. Clause 4 provided for property accruing to the woman. If a woman died without a will her property would devolve according to the Intestate Succession Act of 1987, and any reference to a child must be interpreted to include any child born out of a customary union that was entered into for the purposes of raising children.

Ms Ross noted that under Customary Law, the family property was controlled by the head of the family, a male. When he died, his heir, normally also a male, would take control of these assets. The SALRC recommended that this rule not be entirely abolished, because traditional family homes did still exist. It was suggested that this arrangement could be left to continue, without necessarily sticking to the primogeniture principle. Clause 5 set out recommendations for dissolution and disagreements, vested interests of children and of spouses.

Disputes would be determined by the Master of the High Court, who could refer the matter to the Magistrate, who could in turn hold an enquiry and make recommendations. The Bill excluded succession to property acquired by a Traditional Leader from the application of this Bill. The Bill sought to ensure that the property remained subject to Customary law. The Bill also addressed the issue of discarded spouses, because before 2 December 1989 a man could enter into a civil marriage with another woman, thus dissolving the customary law marriage and leaving the customary law wife without rights. After that date the man who already had entered into a customary union would be precluded from entering into a civil marriage in this way. Clause 7 provided that if a man entered into a second marriage with another woman, then both the customary law wife and the widow must inherit on par.

The Bill contained a schedule in which other Acts of Parliament having an impact on succession were amended. The amendments  related to the Administration of Estates Act - to make provision for administration of estates where there was more than one spouse, preventing the Master from dealing with these if they were covered by customary law. The Intestate Succession Act was to be amended to include consideration of customary law when considering devolution and to recognise the rights of children. The Maintenance of Surviving Spouses Act would include a customary law wife whose marriage was dissolved by marriage to another woman

Discussion
Ms Mahlawe referred to clause 2(c), and asked for an explanation.

Ms Ross said that this was intended to address a solution in the Mujaje clan. The traditional leadership here was on the female line.

Ms Maureen Moloi, Researcher, SALRC, said that customary law in certain tribes recognised ancillary unions, which were entered into by two families. A woman could be married to another woman, for the purposes of raising children for the barren woman. This pertained in a few provinces and in Lesotho. Many of these marriages still existed. It was necessary to provide for protection as this was left out of the protection afforded by the Recognition of Customary Marriages Act.

Mr Carrim was worried about the principle, since it seemed to reduce women to being no more than child bearers and providers. South Africa was a progressive national democracy, and he wondered if the words used in the Bill were entirely appropriate. He accepted that there was a certain practice, but felt that there was a need to give a progressive interpretation to it.

Adv L Joubert (DA) was aware of the importance of this legislation. He noted that the report of the SALRC was dated April 2004. He asked why only now this was being discussed.

Ms Ross answered that the Department started working on this Bill after the SALRC had submitted its report. It was not involved in the consultation process of the SALRC, and thus the Department had entered into its own debate. The Bill went through its own consultation process in the Department.

Ms Gillian Nesbitt, Committee Researcher, said that she understood that there was supposed to be liaison between the SALRC and the Department and this was a point of some concern to her.

Mr Carrim agreed that the time frame seemed to be worrying. However, he was at pains to stress that the Department, especially Mr Bassett and his team, had been doing sterling work, but were hampered by being severely understaffed. The Parliamentary Legal Advisers were also inadequately staffed, so that the Committee had to depend on the Department. He noted that these issues must be addressed in the exit report of this Committee, which would note the need for more support to the Department. He suggested that if the time frame between the report of the SALRC and the Bill was too large, then perhaps the Bills should be gazetted and some level of public participation should be effected prior to presenting the Bills before Parliament.

Mr Deon Rudman, Deputy Director General, Department of Justice, added that there were numerous other priorities. The Department had provided an extended legislative programme, listing about 50 bills which still needed to be dealt with, including about 11 or 12 report of the SALRC. The Minister, Deputy Minister and Director General would determine the priorities, and some bills would fall through the cracks. On the basis of what was being said, then criticisms could be levied about every one of the Bills. However, Parliament could not deal with twenty bills a year. The Department was in the process of compiling a list of all reports received, how far it was with them and when it intended to introduce the legislation.

Mr L Landers (ANC) suggested that the fifty Bills should be examined, and that the Committee should give input as to what it felt was important.

Mr Carrim agreed that the Executive would decide, but Parliament, representing the people, should have the right to give input. This too should be included in the exit report.

Mr Landers suggested that the Portfolio Committee on Foreign Affairs had a double Committee, and it might be a good idea to do this also with this Committee; one Committee to deal with oversight, and the other to deal with legislation.

Mr Carrim agreed.

Mr J Sibanyone (ANC) asked if the Bill had any effect on the custom of ngena, which was to protect the family of the deceased.

Ms Maloi said that this would be covered. When drafting the legislation, the State Law Adviser did not mention ngena specifically; but they were referred to in the Bill as ancillary unions.

Mr Sibanyone said that this Bill would assist people, pointing out that under some customary law, the eldest son only would inherit, and if he had not male children then he would be disinherited and the assets would pass to the deceased’s brothers, parents and uncles, at the expense of the deceased’s own offspring. Biological children would thus be excluded. Ngena meant that if an older brother died, leaving children, the younger brother would marry the widow in order to protect the children. However, in more recent years such marriages were entered into not so much to give protection to the children as to ensure that the assets were protected within the family.

Mr Carrim said that it was necessary that the Bill be simple and comprehensible, and that there should not be any presumption that technical terms would be understood without being defined. He was pleased to see that there was a submission from the National House of Traditional Leaders, who had indicated broad agreement with the Bill. It was hoped that this Bill could be proceeded with swiftly. He asked the Women’s Legal Centre, who had made a detailed submission, to address the Committee.

Women’s Legal Centre (WLC): Submission
Ms Jennifer Williams, Director, Women's Legal Centre, tabled a submission prepared by Ms Nolothando Ntolokwana, who was unable to attend this meeting. She noted that the WLC had represented Ms Bhe in the Constitutional Court matter. Even that Court had struggled with what position to adopt. The Constitutional principles of equality and dignity must be balanced against the right to recognition of cultural rights. The clauses of the Constitution were quite specific that the importation of customary law would be subject to the other rights in the Bill of Rights, and the equality rule would "trump" the customary laws. The Court grappled with what to bring in, in place of the customs that deal with these matters. This then raised the debate between official customary law and living customary law.

The position of the WLC was that participation of women must be included in the development of customary law. It was possible to try to fit customary law into the Intestate Succession Act. The Western principles could be applied. This Bill did away with primogeniture and was doing a good job with equality. It did however fail to take into account that development of equality must also look at substantial equality between women. It was using the formal situation of a 50% share, or a child’s share, without taking into account the different position of wives. WLC was concerned about houses being sold from under a family to provide for other wives. The easy way was to use a child share, but there needed to be discretion to take into account the substantive equality that may require different interpretation.

Ms Williams commented that the definitions of descendants might be confusing. The Bill should include biological children specifically. As worded as present, a child not immediately or currently dependent on a deceased may otherwise be cut out, which was not the intention.

in respect of Clause 5, the WLC was concerned that the Master’s office had power to determine disputes. Normally the High Court would have that authority and it would not be a determination at administrative level. Clause 5(5) noted that there should be "due regard to the interests of the Promotion of Administrative Justice Act (PAJA)". This was too vague; either the PAJA should apply or should not, as it should not be merely one factor to be taken into account. The administrator would be deciding on vital issues. Clause 6, for instance was excluding property held in an official capacity. The Master would have complex disputes to resolve. If such decisions were to be taken by an administrative official then WLC would argue that PAJA must apply, and this should be written into the Bill.

Ms Williams noted, in relation to Clause 7 that the Supreme Court of Appeal had recently heard the Gasa matter, where the question of the applicability of law relating to customary marriages had been discussed. Under the dual system, there was recognition of polygamous marriages, but it was not possible to have both a civil marriage and a polygamous one. The civil marriages were regarded as primary. However, the way in which the Bill was worded did not take into account all women. For those married after 1998, the second marriage would be regarded as invalid. However, the Gaza matter noted that in Kwazulu Natal, Lesotho and Transkei the old Codes were still in place, and these did allow for polygamous and civil marriages to exist side by side. Here the polygamous marriage would trump the civil one. Therefore some women would be excluded. This was problematic. In practice, it was common for a man to take one wife by civil and one by customary law marriage  Under the current regime, the customary marriage may be invalidated. Portions of the BLA  definition sections had not been repealed. It was necessary to make clause 7 inclusive, and ensure that no woman was excluded from inheritance because her husband had chosen another marriage over which she had no control, particularly one entered into between 1998 and 2000.

Discussion
Ms Ross, Department of Justice, responded to the submission in respect of houses. The enquiry into the destination of family property would require the enquirer to have the best interests of the family in mind, as well as the equality of spouses. The SALRC made it clear that the notion of family property must be preserved, as there was some good in the concept. It was possible for the Department to look at the matter further to get greater clarity.

In response to the comment on the powers given to the Master, Ms Ross noted that the Master would always deal with matters of succession. If the Master could not come to a determination, then the matter would be referred to the Magistrate, who would conduct a fully-fledged enquiry to hear all parties.

In respect of invalidation of marriages, Ms Ross said that this was being addressed by the clauses dealing with discarded spouses. This category of women was protected by the BLA, which had been repealed insofar as these marriages were concerned. After 2 December 1998 a man who had concluded a customary marriage was not entitled to conduct another civil marriage with a woman other than his customary law wife. There might be a few cases where this had happened, but the law was clear that these marriages would not have been recognised.

Ms Maloi added that clause 7 was intended to protect women who were left out by the Recognition of Customary Marriages Act, from 1998 and previously, and Section 22(7) of the BLA was being retained in protection of these women. In relation to clause 7, dealing with the disposal of properties, she clarified that it was the status of traditional leaders and not the personal property that was being excluded.

Mr Landers supported the idea that the Master should not be in control. The Magistrate was easier to contact in the rural areas, and he wondered in addition if the Master’s office had the capacity to take on this work. 

Mr Carrim said that all the stakeholders would participate fully in discussions, and a representative from the WLC would be asked to attend the meetings in Phase 1 also to participate, as had been done with other Bills. The Department would respond to all submissions, and there could be further engagement on them The Bill would be dealt with by about the third week of August.

Mr Rudman noted that comments on clause 5 were not included in the written submission.

Ms Williams said that this was her personal input. She would be happy to work with the Committee and engage with the Department and she would submit a written comment on that clause.

Mr Jeffery asked why the Department had included clause 5(5) which was not in the SALRC draft.

Mr Alan Small, Senior State Law Adviser, Office of the Chief State Law Adviser, noted that PAJA was not reflected expressly and it was considered that this base should be covered. That inclusion had come from the State Law Advisers.

Mr Jeffery said that PAJA would apply whether or not it was reflected. Using that argument, he wondered why then the State Law Advisers had not also made reference to Chapter 3 of the Constitution. He did not think it was necessary to mention either, as it seemed to raise confusion.

Mr Herman Smuts, Principal State Law Adviser, Office of the Chief State Law Adviser, said that Mr Jeffery had a point. The principles of Plain Language were applied, to give a kind of “signpost” to remind people that PAJA must be taken into consideration. He agreed that there were also other laws which equally applied, but which were not mentioned. This was inserted as a reminder.

Ms Williams said that there was a concern with access to justice. The references to the Master and Magistrate were seemingly perpetuating the system where black and white estates were being dealt with in different ways. In white estates the Magistrate would not make a recommendation. All estates should be brought to the same level. The Master still had the final authority. There were some complicated disputes. The customary law could have traditions that were not commonly known, and the Master may well not be fully equipped to deal with these. Even the Constitutional Court had struggled to try to ensure that everyone was being treated fairly.

In relation to the comments on the personal property of Traditional Leaders, Ms Williams said that the WLC had found that the boundaries between personal property and property held for others and the community was not always clear. There could be situations where women married to traditional leaders (who were predominantly male) would lose out. It was not so much the principle, but the drafting was problematic.

Mr Jeffery also raised the question of the High Court resolving disputes. He said that not many rural people would have access to the High Court. He suggested that the Department give some indication of how the Master's process would work and how it was currently working with black estates that were previously under the magistrates. In theory there should be accessibility, but in practice this was not the case, at least in some areas. He therefore would like to get a written report on the issue of how people were accessing the Master’s Office.

Child Justice Bill (the Bill): Version dated 12 June: Deliberations
Mr J Jeffery and Mr Y Carrim acted as co-Chairpersons for this section of the meeting.
 
Mr Carrim noted that the Committee had asked the public to comment on the new version of the Bill. The Child Justice Alliance and Rapcan had made some further submissions, which were tabled.

Mr Jeffery said that the Committee was hoping to finalise this Bill on Thursday and vote on the Bill on Thursday or Friday. The Committee would proceed through the Bill clause by clause. The typographical issues would be raised. There were also some policy issues that the sub-Committee had not resolved and others to be decided upon by the full Committee.

Long Title
Mr Jeffery indicated that this was an attempt to summarise what was in the Bill.

Mr Carrim asked, in line 12, about the provision or holding of a preliminary inquiry. The central feature was diversion, and he suggested that the words "incorporate, as a central feature, diversion.." should be included, as this was included under Clause 3.

It was agreed that this would be done.

Mr Carrim suggested that future legislation should possibly have a more specific wording around offences involving children, but he thought that this should not be included in this Bill.

Preamble
Ms S Said, Chief Director, Promotion of Rights of Vulnerable Groups, DOJ, had a general comment on the Preamble. The Equality Act Preamble and the Sexual Offences Act had some useful wording, which she read out. She suggested that perhaps similar wording should be included in this Bill, as it would highlight the systemic issues that children had faced in the country. This Bill was introducing a new regime change.

Mr Jeffery said that he was concerned about the time. This Preamble had been through the sub-committee, on which Ms Said had served. The difficulty with including conceptual issues was that there could be considerable debate on how these should be phrased and he would not like to delay the process further.

Mr Carrim asked that a formal proposal should be given, if it would not change any interpretation.

It was agreed that Ms Said should place a proposal before the Committee.

Mr Joubert asked if there should be any reference to colour in the preamble.

Mr Jeffery noted that the law had in the past treated certain sectors of society differently, and this Bill was seeking to redress that.

Mr Carrim agreed that it sat rather uncomfortably, but it must remembered that this Bill was essentially sitting in a transitional phase. There was a legacy of why black people were disproportionately offenders in the system. People reading this Bill, including African policemen, had certain racial stereotypes, and it was to deal with those issues that the phrase was used.

Mr Jeffery noted that most of the changes involved "plain language" edits, except that a new paragraph had been added in to recognise capacity constraints.

Mr Joubert asked if it was normal to put something like this in a Bill.

Mr Jeffery responded that it was a tool for interpretation. There was a feeling that there needed to be some kind of reference to it. Everyone agreed with what was being said, but the problem could be the capacity to implement. This phrase was inserted to make it clear that everything could not be done overnight.

Mr Carrim thought that more Bills should include this type of wording, to indicate that there should be incremental application.

Ms Christine Silkstone, Committee Researcher, suggested that "recidivism" be changed to "offending and re-offending" in the third bullet point.

Mr Lawrence Bassett, Chief Director: Legislation, DOJ, added that the word "to" must be in square brackets.

Mr Carrim suggested, under the second bullet, that the wording in relation to accountability be changed to "while ensuring their responsibility and accountability for crimes committed..""

Ms Said asked if, under bullet point 5, fourth sub-paragraph, whether the word should be "rigid" or "adversarial".

The general feeling of the Committee was that "rigid" was the more appropriate word.

Ms Said suggested that instead of saying "try" matters there should be reference to "adjudicate" matters. This was agreed to.

Mr Jeffery asked, whether there should be reference to "The Parliament". Chapter 4 of the Constitution referred simply to "Parliament". He suggested that the word "The" be deleted.

Table of Contents
Mr Bassett noted that this was aligned to the Cabinet version of the Bill. Any mistakes that had been found had been fixed, but it might be necessary to deal with it again. The heading to Chapter 3 must be changed.

Clause 1: Definitions
Mr Jeffery noted that cross-referencing to the Children's Act had been added in. Many of the changes were technical.

Mr Carrim referred to the definition of "appropriate adult", in which the wording "of a child" seemed to have been repeated.

The Committee agreed with his comment.

Mr Carrim asked the Committee Secretary Mr Vhonani  Ramaano to check on the wording and references to other legislation.

Mr Carrim asked whether the definition of "detention" was correct, because no age limits were being mentioned.

Mr Carrim noted that the Report must state that "independent observers" would have to be listed and that all Magistrates would have to be notified of their duty to do this.

Mr Bassett noted that the Correctional Services Act was about to be changed, but the sub-committee had decided to use the current definitions and the word “prison”. 

Mr Carrim wondered if "suitable person" would need to be defined. This appeared in clause 57(1) and some other sections.

Ms Said responded that it was widely included under "caregiver" in the Children's Act.

Mr Jeffery said that the “suitable person” would be monitored by the Magistrate, and would vary according to the circumstances. It would be useful if that could be checked through the Bill, but he did not think that its non-definition would pose any problem, for the purposes of Clause 57.
 
Mr Jeffery noted the new definition of "restorative justice" that would bring this concept in line with more substantive wording being developed at the moment". 

Clause 2
Mr Jeffery noted that a new subclause (c) had been inserted, and (e) was stressing government acting internally, and government and civil society acting together.

Mr Bassett said that Dr Ann Skelton, Child Justice Alliance, had recommended that there be some changes to the wording. The Committee felt that it would not really alter the meaning.

Mr Carrim wondered if (e) should not read "foster cooperation" and whether the words "on the one hand" and "on the other"  and "with a view"  should not be left out. He would also suggest altering the remainder of the sentence to "to ensure an integrated and holistic approach in implementing the Act".

Ms Said noted that the remainder of the clause was already contained in the objects.

The Committee agreed with these changes.

Clause 3
Mr Jeffery noted that subclauses (b) and (h) were inserted. Sub-clause (i) made reference to international treaties.

Mr Joubert asked if there should not be insertion of another word "treated" in sub-clause (b).

The Committee did not think that this was material; it was a matter of stylistic preference.

Mr Carrim asked why, in sub-clause (h) there was wording reading "effort should be made to ensure". He thought that this should read "every effort must be made".

Mr Jeffery noted that the remainder of the guiding principles were worded as "should be"

Adv Said noted that the wording of (d) and (e) followed the wording of the international instruments.

Mr Jeffery said that in this case it would be more consistent to keep everything as "should be" to conform to the international instruments. 

Mr Carrim was not convinced by this argument, but would not pursue the point.

Mr Bassett noted that the sub-Committee had decided that, in sub-clause (h) the first reference would be changed to "must" and the second would be left as currently worded.

The Committee agreed not to amend the “should be”.

Clause 4
Mr Jeffery referred to purely stylistic changes that had been made.

Clause 5
Mr Jeffery noted that "road-maps" of how chapters would apply had been inserted throughout the Bill. Therefore clauses 5(1) to 4) set out how children would be dealt with.

Mr Bassett noted that there were two incorrect cross-references; the reference to Section 42(2) should read “Section 41(3)” and the reference to 48(5) should be to “Section 47(5)”

Mr Carrim asked if it was clear whether a child aged between 10 and 14 would be taken to a Preliminary Inquiry (PI). He asked if there should not be a cross reference to a section.

Mr Jeffery explained the policy. A child between 10 and 14 was presumed not to have criminal capacity. The Magistrate would determine the issue, but the Probation Officer and the Prosecutor would have to indicate whether there was a likelihood that criminal capacity did exist. If the Prosecutor felt that it would not be possible to prove criminal capacity, then the child would not be taken to a PI.

Mr Bassett agreed that only those children required to appear would go to PI stage. If the Committee felt that another step must be inserted, then it could be built in to the clause.

Mr Carrim suggested that perhaps the clause should be amended further.

Mr Carrim noted that when a child was under 14, the prosecutor would decide whether the child had criminal capacity, and this was a subjective decision. He asked if that was correct.

Mr Jeffery said that under Clause 10(1) the prosecutor would be required to take certain matters into account.

Mr Carrim said that since this framework was generic, many aspects of the Bill still rested on the integrity of the justice officials

Mr Jeffery said that the prosecutor always made a subjective decision on whether a case should be prosecuted. The Magistrate must make the final decision on whether there was capacity.

Ms Said agreed that it would be useful to cross reference to the relevant clauses. She was asked by Mr Jeffery to come up with the wording.

Mr Bassett noted that the cross referencing would be effected under sub-clause (3), by inserting a new (b) under the exceptions, and moving the existing (b) to become (c). 

Ms Jacqui Gallinetti, Senior Researcher, Community Law Centre, UWC, noted that clause 5(2) was about assessment. All children over 10 should be assessed, unless this was to be dispensed with.

Mr Jeffery said that all those going to the PI must be assessed. If a child was picked up by the police, and the police then released the child, there would not have to be an assessment. Therefore, the phrase "who is required to appear at a preliminary inquiry" was inserted to make a distinction between a child who was released, and one who would go to the preliminary inquiry.

Clause 6
Mr Jeffery noted that this spoke to the offences, and was straightforward.

Clause 7
Mr Jeffery noted that the minimum age was set out. Under Clause 8 there was a statutory requirement to review this age after five years. Suggestions had been made that the age be raised to 12. The age of 10 was a compromise, and the Committee would like all parties to agree  on this Bill.

Mr Carrim asked whether in 7(2) the wording should not rather read that the "State proves that he or she has criminal capacity".

This was agreed to.

Clause 10
Mr Bassett noted that the word "Minister" should be replaced with “the Cabinet member responsible for the administration of justice”.

Ms Gallinetti said that the cross referencing should refer to both sections 96(4) and (5), as one set out the principle, and the other set out the deadline.

Mr Jeffery noted that Adv Johnson had raised the issue of the timing of the review. The sub-Committee wanted Parliament to look at this at the start rather than at the end of its term. Three years should pass in order to establish trends. That was why the five-year period had been chosen. It was also noted that the Minister would have until April 2010 to implement the Act. The Committee might feel that this was too far ahead. However, the sub committee had noted the capacity issues, had considered that the departments should be given a year from the date of the Bill being passed, and had then taken into consideration that it would be easier for government to implement from the start of the financial year. The date reflected the start of the financial year of the Departments.

Clause 9
Mr Jeffery noted that it was not desirable that the child should automatically be handed over to the parent, as the parent or home might be unsuitable. Therefore an option had been added that the child could be handed to a child and youth care centre, if this would be in the best interests of the child. Enforcement was also added under subclause (7).

Mr Landers asked if there were indeed enough centres.

Mr Carrim noted that 71% of the spaces generally were being used, but if all spaces in one province were taken up, a child could be moved to another province. There would be a major roll out of child and youth care centres by the Department of Correctional Services. He agreed, however, that this was a challenge.

Ms Silkstone pointed out that this clause was dealing with children under the age of 10.

Ms Gallinetti asked if "suitable" was not the key. A child and youth care centre was designated for specific purposes. This clause was likely rather to be referring to children's homes.

Mr Jeffery said that the child and youth care centres did have different designations. He suggested that the Committee Report should make mention of the fact that the centres must be monitored both on their existence and functioning. He agreed that this clause was concerned with young children. The principle was that, wherever possible, a child under ten should be returned home. If this was discovered not to be a suitable place, the police would need to take the child to a child and youth care centre, and the Children's Court enquiry would proceed.

Mr Landers noted that he had visited Durban-Westville prison, where he found a young boy of 14, who had been held in the prison already for two years. The warders said that this was not necessarily unusual, and had complained that they were being expected to do jobs that other institutions were more qualified to do. He suggested that monitoring was not enough. It was necessary to take more proactive steps.

Mr Carrim noted that the statistics of the Departments of Correctional Services (DCS) and Social Development (DSD) were reasonably consistent. Both had indicated their roll out plan. Mr Carrim was not convinced that the spaces were secure enough, and he would recommend tightening of the provisions. The problem was not the space.
 
Ms Said reported that generically there was a range of issues. She noted that there was a similar debate by the Portfolio Committee on Correctional Services. Sometimes the children were badly placed. Some of the facilities may not be as secure as others. There would be a country-wide roll out for secure care facilities over the next year. The Department of Justice had noted that the DSD was running part of the Durban-Westville Prison. In different parts of the country, where there were not secure care facilities, placements would be done elsewhere, including home based supervision. Some of the reform schools were being used. The DCS was assisting DSD to convert some facilities in the meantime. The DOJ acknowledged that a number of placements had been incorrect, and it was having certain Orders converted.

Mr Jeffery said that there was not a great deal more that could be done on the wording of the Bill. However, the issues could be raised quite specifically in the Report.

Ms Silkstone said that in clause 9(1)(b) there should be insertion of "appropriate" before the word "adult".

Ms Gallinetti suggested that in 9(3)(b) there should be substitution of "may" with "does". The subclause was referring to past actions.

Mr Jeffery did not agree, as he felt that the use of “may” was clarifying the tense. He felt that the word "does" was in the past tense and "may" could be past and future.

It was suggested that the parties discuss this further.

The ANC Researcher suggested deletion of one of the appearances of the word "which" in 9(3)(a)(v). This was agreed to.

Mr Bassett noted that the reference in clause 9(3)(a)(i) should be to "section 50".

Mr Carrim noted that certain sections of Chapter 5 were not applicable. He asked whether 9(3)(iii) should not refer to a "diversion" programme.

Mr Jeffery explained that the child had no capacity and therefore there should not be a diversion programme.

After a break, the meeting was resumed and Mr Carrim asked how one would assess cognitive ability.

Ms Gallinetti said it was very difficult to assess. The probation officer would do the assessment report  and hand it to the prosecutor before the preliminary enquiry. The assessment established a view of criminal capacity to inform the prosecutor about these particular aspects.

Mr Y Carrim asked about the knowledge a prosecutor had to establish a view on criminal capacity.

Ms Said responded that the test was normally done in an arbitrary manner with questions about the differences between right and wrong, to ensure that children did not fall through the cracks.

Mr Jeffery stated that basically the magistrate determined capacity, as a guide to the prosecutor about whether criminal capacity was likely to be proved.

Adv Joubert said that the magistrates asked very basic questions.

Mr Bassett noted a cross-reference to Clause 11.

Ms Gallinetti expressed uncertainty as to the appropriateness of diversion in Clause 10(1)(g) and how this would impact on whether or not the prosecutor could make a determination to prosecute.

Mr Jeffery said that in a border line case, if it seemed that there would be a positive response to a diversion programme, then it would not be a factor for consideration.

Ms Gallinetti said that diversion was an alternative to going through the criminal justice system, to assess whether the child had criminal capacity.

Mr Jeffery added that the community view should be considered, and if the offence was very serious more attention had to be given as to whether criminal capacity existed or not.

Mr Carrim noted that this issue should be flagged.

Mr Jeffery indicated that other factors, such as the interest of the communities and nature and seriousness of the offence, should be considered. He added that there was uncertainty about whether capacity allowed for the case to be diverted.

Mr Jeffery stated that the clause should remain until there had been outside engagement regarding maintaining the clause.

Clause 11
Mr Bassett indicated a cross reference to sub- clause (2), and said that the reference to  Clause 41 should be a reference to Clause 40.

Clause 12
Mr Bassett noted that the reference to Section 28 should be to Section 27.

Ms Gallinetti asked whether the probation officer expressed an opinion first, before a referral to the magistrate. 

Mr Jeffery said that the child should always be treated as a child, until such time as a determination of age had been made, or a probation officer expressed an opinion on the matter.

Adv Joubert asked whether it would be necessary to define a medical officer or practitioner.

Mr Jeffery responded that the term “medical practitioner” should be used so as not to limit the process.

Mr Bassett suggested that as the term “medical practitioner” appeared in the Children’s Act, this term could be ‘borrowed’ from there.

Clause 16
Mr Jeffery noted that this clause had been simplified to indicate that a child should be dealt with as a child, and the matter could be submitted for review if there was no prejudice. If there was no prejudice and if the age was found to be older than originally estimated then the matter would be subject to Clause 16(1).

Ms Christine Silkstone, Committee Researcher, asked if was necessary still to include sub clause (3).

Mr Jeffery responded that no harm was done in retaining it, as the ‘written warning’ had been done away with in favour of a ‘written notice’. 

Clause 17
Mr Jeffery noted that this clause was the road map to secure the notice of the child.  He highlighted a comment from an outside source that stated that the prosecutor decided whether to prosecute, and not a police official. The alternatives were that a child should be made to attend a preliminary enquiry, or guidance could be obtained from the Director of Public Prosecutions. He suggested that the reference to “the instituting of a prosecution” should be deleted and replaced by “the child should attend a preliminary enquiry”.

Mr Carrim asked under what circumstances there would be a written notice, as a summons was a formal document.

Mr Bassett stated that a written notice was used at the scene of the crime, and if a child was not at the scene of crime, then a summons would be used.

Clause 18
Mr Jeffery noted that ‘written warnings’ as stated in the old Section 20 had been replaced, as the clause had to be structured with specific reference to children.

At this point some Committee Members left the meeting to vote in the House.

Ms Gallinetti noted that “place”, “date” and “time”’ were not repeated in Clauses 19(3)(a) and (b).

Mr Carrim said that “place”, “date” and “time” should be used throughout the Bill.

Ms Silkstone asked if, in respect of Clause 18(1), the words “in respect of children” could be deleted.

Mr Jeffery indicated that he was uncertain whether the Criminal Procedure Act could be altered with regard to children.

Mr T Botshabosheha (ANC researcher) expressed concern about  whether Sub-clause 3(a) and (b) would carry the same force in terms of the requirement to sign. He asked if the word ‘must’ was implied, as in Clause 19.

Mr Bassett stated that an attempt was made to align the wording by implication.

Mr Jeffery said that each person must acknowledge receipt of the document.

Clause 19
Mr Jeffery noted that the date, time and place had been amended.

Mr Jeffery noted that in sub-clause 2(b) the word “thereof” would be taken out, and “acknowledge service by way of sign or mark” would remain.

Clause 20
Mr Jeffery noted that the words “written warning” were taken out.

Mr Jeffery indicated that Sub-clause (1) had been expanded to include conditions for the police to arrest under Schedule 1.

Adv Joubert said that different courts had different jurisdictions, and this matter had to be  considered.

Mr Jeffery noted that there may be other circumstances and compelling reasons to justify arrest. He said some of the circumstances needed to be spelled out, including what happened if a child’s parents were not notified.

Mr Bassett indicated that the clause was in line with what the South African Police Services ISAPS) required.

Mr Hennie Potgieter, Legal Consultant to the Department of Justice, asked if the various ways available for getting people to come to court were actually being used. He asked further if this Schedule was a different to the current situation.

Mr Bassett stated that the police could release a child on bail and on warning. Offences in Schedule 1 coincided with the existing powers that were given to the SAPS.

Mr Jeffery asked if copies could be obtained now of matters relating to the Schedule.

Clause 21
Mr Bassett indicated that the reference to Section 25 in sub-clause 2(b) should be changed to Section 24.

Mr Jeffery explained that sub-clause 2(a) referred to police bail or release for the purposes of Schedule 1, but that this was an option. If the Schedule 1 child was still in custody during the preliminary enquiry, the preliminary enquiry could effect a release.

Ms Gallinetti asked whether the reference to Section 18, should not rather be a reference to Section 22, which talked about the release of a child.

Mr Bassett responded that Sections 22 and 23 must be read together.

Mr Jeffery said that Section 18 should be read with Section 22.

Ms Gallinetti stated that Part 2 should just be referring to detention and placement,  and Part 1 should just be referring to release.

Mr Jeffery said that it was the one or the other, either release or detention.

Clause 22
Mr Jeffery  indicated that the “warning” and “police bail” had been done away with. Currently those charged with certain schedule offences could be released on bail. Because of the specific position in regard to children, the emphasis was on release into the parents’ custody, and bail was only to be considered later, once the prosecutor became involved.

Clause 23
This clause had been reduced in wording as certain of the words were a repeat.

Mr Vhonani Ramaano, Committee Secretary, asked if the heading to the clause should not be re-worded, as there would be difficulties in understanding what it was trying to convey.

Mr Bassett suggested, and the Committee accepted, that the heading be amended to read “releasing into custody of the parent”

Clause 24
Mr Bassett read out the typographical errors which had been corrected.

Ms Gallinetti asked if, in sub-clause (7) (c) it should be said that the Court may order the release of a child under any other conditions, and if the order was being amended.

Mr Jeffery responded that the procedure needed to be followed, and then the release could be ordered  on the same condition,  and any other condition.  The condition would be set out in the Order. 

Clause 25
Mr Jeffery noted that the cross referencing in subclause (2) had been altered to read Section 21(3)(c) instead of Section 22(3)(c).
 
Mr Jeffery asked for the amendments to Chapter 9 to be in italics

The meeting was adjourned.

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