The Committee discussed the final amendments and refinements to the Child Justice Bill. The Committee considered some linguistic refinements and amendments and also several other more substantial changes to the Bill’s content.
There was a long discussion on the issue of whether, when sentencing, different considerations should apply to a child who committed an offence and was sentenced while still under 14, as opposed to a child who was 14 at the time of commission of the offence but over 14 at the time of sentencing. Several members took the view that logically and morally, the time of the commission of the offence was the relevant time. Others suggested that perhaps a clause could be added directing the Court to consider the time of commission of the offence. Finally the Committee decided to leave the clause as presently worded, with the time of sentencing applying, but flag it for the attention of the NCOP.
The Committee also discussed clause 4 of the Bill, and clarified that children under 10 would not be dealt with in the criminal justice system, that those between 10 and 18 would be dealt with under the Bill and that a youth of between 18 and 21 could, with the consent of the Director of Public Prosecutions, if he or she had committed an offence while under 18, be dealt with in terms of this Bill.
The Committee amended the definitions of “appropriate adult”, “suitable person” and “diversion option”. Under Clause 13, there was a discussion whether the age of estimation by a probation officer “may” or “must” be altered if other evidence came to light, but it was decided to leave the wording as “may” because it could involve non-conclusive evidence. The Committee in several places amended the phrase “for the purposes of” to “in order to”. Clause 87(5)(b) was amended to read:“The head of the Criminal Record Centre of the South African Police Service must, on the written request of the applicant, in writing, confirm that the criminal record of the child has been expunged”. Clauses 97 and 98 were then discussed. In clause 97 a new sub clause (10) was added, noting that Parliament should, within six months of regulations, directives or national instructions being tabled in Parliament, approve them, failing which they would be deemed to be approved. Clause 98 was to provide that the initial regulations under 97 should be tabled by no later than 1 December 2009, and approved before the commencement of the Act, failing which they would be deemed to have been approved. The Committee then discussed the Preamble, which reflected the acknowledgment that many children, particularly black children, had fallen into conflict with the law because of their circumstances resulting from the past. A DA Member feared that this might be read as an excuse for children born after 1994 to commit crime. The Committee decided that the principle should still remain, as even those children were affected still by the legacies of apartheid and violence, but that the sentence would be qualified by adding the word “also”. The Committee would note in its report that the reference to “black children” would have to be reviewed from time to time.
The Committee unanimously decided to adopt the Bill. The Report would be tabled and voted on the following day. Special thanks were expressed by the Chairperson to the drafters and those who had participated in the sub-Committee, and he thought that they could be proud of the Bill that had resulted from their efforts.
Child Justice Bill (the Bill): Version of 22 June: Deliberations
The Chairperson opened the meeting to discuss the final amendments to the Child Justice Bill. He began by saying that he personally would have liked the Level 2 diversions to have been stronger, but that he would accede to the wishes of other Committee members.
On the issue of sentencing, the Chairperson summarised that only those children under 14 years of age at the time that they were being sentenced would be excluded from the possibility of imprisonment. As the Bill currently read, a child who might have been 12 or 13 at the time of commission of the offence, but who was being charged and sentenced only at the age of 15, would be treated as a 15-year old. Mr J Jeffery (ANC) had noted that if the State had been tardy in bringing the case, then this point of the unfair discrimination that resulted could be raised by the defence lawyer as a factor to be taken into account during sentencing. He had suggested that the point be explicitly covered in the Bill. Mr Jeffery felt that the point was obvious and did not need to be incorporated. He asked the views of others.
Advocate Bronwyn Pithey, Deputy Director of Public Prosecutions, National Prosecuting Authority, said she did not think it was obvious at all, and had expressed her views in a written document. Her position was that sentencing should be done in relation to the time at which the offence was committed. She said that if this were to be stated in the Bill, then it would not be necessary to say anything about showing that the delay was due to the fault of the State. Prof S Terblanche had also expressed the view that culpability and sentencing must be considered as at the time of commission of the offence. If this policy was not adopted, then there would be a whole range of arbitrary consequences.
Adv Pithey gave the example of two 13-year old children who might have committed the same offence at the same age. One who was sentenced before he turned 14 could not be given a prison sentence. The other, who might have turned 15 by the time he was sentenced, for the same offence, would be sentenced to a term in prison. Adv Pithey said she believed the results of this were unequal and arbitrary.
She noted that Mr Jeffery had taken the view that the rationale of the legislation was to keep under 14-year olds out of prison. On this basis he had argued that no matter what the age of the child on commission of the offence, the under-14 principle could not apply to a child who was now 15.
The Chairperson said he thought the Committee should leave the matter open, so that the time of sentencing would be the relevant time. However, he suggested that a proviso be added that if the child’s lawyer could show the Court that the fact that there had been a delay which resulted in the child being over 14 at the time of sentencing (despite his age when the offence was committed) was due to the fault of the State, then the court should treat the child as though he was under 14.
Adv C Johnson (ANC) pointed out that although it was not automatic, any good lawyer would apply for the State’s delay to be taken into account and even for the matter to be withdrawn from the roll, but that did not mean the Court would grant such an application. There was also the risk that inexperienced lawyers could be representing children.
Mr G Magwanishe (ANC) with Adv Johnson. The Committee, in his view, should not abrogate its rights to express itself on the matter, by assuming that the Courts would make a decision. He said that it should be quite clear from the Bill itself that a child who was over 14 at the time of sentencing, but had been under 14 when he committed the offence, should be treated for sentencing purposes as though he was under 14. This should not, in his view, be left to the lawyers to argue before the Court.
Mr Lawrence Bassett, Chief Director: Legislation, Department of Justice, said that in most cases if a lawyer had to prove that the State’s negligence had resulted in the delay, this would then cause further delays in the process.
Adv Pithey said that the insertion of a provision to this effect would effectively say that a lawyer had the right to challenge the legality of the section and that would not make sense.
Adv L Joubert (DA) said that it was a sound legal principle that the age of the commission of the offence was the relevant age. The fact that the child was two years older when facing sentence should not change things.
Ms Jacqui Gallinetti, Senior Researcher, UWC Community Law Centre, suggested that it be made mandatory for a court to take into account, when sentencing a child over 14, whether the child was under 14 when he had committed the offence.
Ms Christine Silkstone, Parliamentary Researcher, agreed that a court should have to take cognisance of the fact that the child was under 14 when he or she committed the crime.
Adv Johnson asked whether the Committee should not flag this question for consideration by the NCOP.
The Committee agreed to do that.
Application of the Bill
With regard to the application of the Bill, the Chairperson then said that, as he understood the position, the Bill removed children under 10 from the Criminal Justice System.
The Bill would then apply to children who had committed offences when they were between the ages of 10 and 18.
It could also apply to a person who, whilst being under 18 at the time of commission of an offence, was between the ages of 18 and 21 when the State instituted proceedings. In this case the accused had a right to be treated as if he / she was under 18.
Mr Bassett noted that the latter situation would apply with the consent of the Director of Public Prosecutions (DPP). However, he agreed that the Chairperson’s summary was a reflection of what was in the Bill.
Clause by clause deliberations: amended clauses
The Committee dealt briefly with certain amendments relating to wording and punctuation in the Definitions section of the Bill.
An “appropriate adult” was changed to include a sibling who was 16 years of age or older.
The definition of a “suitable person” was changed to mean “any person with standing in the community who has a special relationship with the child, identified by the probation officer to act in the best interests of the child”.
“Diversion option” was amended to reflect that it was an option referred to in Section 53, and included a programme referred to in Section 56.
The Chairperson referred to Clause 13(4), dealing with age estimation by a probation officer.
He noted that the clause currently read “Should evidence to the contrary emerge at any stage before sentence, the estimation of age by a probation officer in terms of this section may be altered and a different estimation of age may be recorded”.
The Chairperson asked whether the words “may” in this section ought not to be changed to “must”.
Advocate Johnson agreed with the Chairperson that the word “must” was preferable in the context.
Other Members disagreed, believing that the matter was still one of discretion.
The Committee elected to keep the word “may” because evidence to the contrary was not necessarily conclusive and the probation officer should retain his discretion in this regard.
Plain language alterations
In several sections, in keeping with its commitment to simplify legal language, the Committee changed “for the purposes of…” to “in order to…”.
After a brief discussion, the Committee decided to amend Clause 87(5)(b), relating to expungement of records of certain convictions and diversion orders, to read: “The head of the Criminal Record Centre of the South African Police Service must, on the written request of the applicant, in writing, confirm that the criminal record of the child has been expunged”.
The Committee then engaged in some discussion about Chapter 14, in particular the time periods referred to in Clause 97 (Regulations, directives, national instructions and register) and Clause 98 (Transitional arrangements).
After debating whether to make the period for approval four or six months, the Committee decided to add a new clause 97(10), which would read: “If Parliament is required in terms of any provision of this Act to approve any regulations, directives or national instructions, Parliament must do so within six months of those being tabled in Parliament, failing which they will be deemed to have been approved by Parliament”.
The Committee added the word “initial” to clause 98(3), so that it now read: “The initial regulations referred to in Section 97 (1) must be tabled in Parliament for approval by no later than 1 December 2009, and must be approved before the commencement of the Act, failing which they will be deemed to have been approved by Parliament.”
The Committee discussed the Preamble to the Bill. This referred to the fact that “before 1994, South Africa, as a country, had not given many of its children, particularly black children, the opportunity to live and act like children and that some children, as a result of circumstances in which they find themselves, have come into conflict with the law”.
Adv Joubert expressed his appreciation to the Chairperson for the manner in which he and his Co-Chairperson Mr Jeffery had conducted the Committee’s hearings and had endeavoured to accommodate the views of all parties. However, although he and his party would broadly support the Bill, he was worried about this preamble. The Bill would come into force on 1 April 2010. The preamble could be seen as an excuse for children today to commit crimes, although the preamble was clearly for those children who had grown up pre-1994 (who would be in their late teens by now)
The Chairperson acknowledged this concern but pointed out that the Preamble did not seek to imply that children who were committing crimes today had been born during apartheid, but merely that many of today’s children had been born with the legacy of apartheid. He felt that they would have to agree to disagree. However, he would not object to altering the Preamble.
The Committee then agreed to change the Preamble slightly by adding the word “also” after the words “act like children and..”
Mr D Bloem (ANC, Chairperson of Portfolio Committee on Correctional Services) said he felt there was a great need for the Preamble. Children in places such as Gugulethu and Mitchell’s Plain had grown up in conditions where violence was an everyday occurrence and this had forced many of them into becoming criminals.
The Chairperson said that the Committee would note in its written report to Parliament that the reference to “black children” in the preamble would need to be reviewed from time to time.
The Chairperson then read out the Motion of Desirability, which was accepted.
The Chairperson tabled the Bill. The Committee unanimously the Bill, as amended.
It was noted that the Committee’s report would be written up and voted on the following day.
The Chairperson thanked all the Members of the Committee. He also expressed special thanks to the drafters and the Members of the Sub-Committee, singling out Mr Bassett, Advocate Said, Ms Silkstone, Co-Chairperson Mr Jeffery, Ms Anne Skelton (for her submissions to the Committee), Mr Steve Swart and Advocate Bronwyn Pithey. He felt that the Committee had produced “a highly civilised” Bill of which they could be proud.
The meeting was adjourned.
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