Reform of Customary Law of Succession Bill: briefing & Child Justice Bill: deliberations

Meeting report

Reform of Customary Law of Succession and Regulation of Related Matters Bill (the Bill): Department of Justice (DOJ) briefing
Ms Theresa Ross, State Law Adviser, Department of Justice, said that the Bill emanated from two sources; firstly the report of the South African Law Reform Commission (SALRC) and secondly the judgment of the Constitutional Court in the matter of Bhe v Magistrate of Khayelitsha, which established that the customary principle of primogeniture (where succession was based on the male line) was unconstitutional. Under most of the customary law regimes, only male persons related to the deceased had qualified as intestate heirs. This disadvantaged all girls and women in the family, as well as male children who were not the first born, and any children born outside the marriage. SALRC, noting the plight of these categories of people, recognised the need for statutory reform to provide for a fairer distribution of property. It noted that the current customary law rules were in many cases unconstitutional, that it was not feasible to amalgamate customary law marriages under the Intestate Succession Act, as it did not cater for that situation, but that it was necessary to recognise spouses under customary law marriages as being in the same position as those entering civil unions. It also noted that in the modern environment, many African families did not base their lifestyles on the patrilineal succession rules and principles.

With regard to the contents of the Bill, Ms Ross highlighted a few definitions. She noted in particular the definitions of "dependent", “house” in relation to property, and “spouse” in clause 1.

Clause 2 extended the Intestate Succession Act (ISA) to customary law estates. Ms Ross explained that previously the estates of customary law marriages fell under the Black Administration Act, most of which had now been repealed. Clause 2(2) dealt with unions entered into with the aim of providing children, who were in a special position as they were not the biological children of their fathers or mothers. She explained that there were 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 former legislation, being regarded as extra-marital children of their biological parents. Clause 2 of this Bill now dealt with this situation. A woman entering in to a union with another woman or man, for the purpose of providing children, would now be regarded as a descendant for the purposes of the ISA.

Clause 3 provided guidelines on interpretation. For instance, reference to a “spouse” would include every spouse and every woman in a supporting union. The method of calculating a child's portion would also be included.

Clause 4 provided for the property firstly to devolve according to a will, but if there was no will, then the property of a woman would devolve under the ISA. A reference in the will of a woman to a child would include a child born to any supporting union.

Clause 5 dealt with the devolution of family property. Under customary law the house would generally devolve to the eldest male. The SALRC recommended that these rules should not be entirely abolished, as some traditional family homes did still exist. They could be allowed to continue, but without adhering only to the primogeniture principle. Therefore a mechanism was provided for resolving disputes and uncertainties. In resolving a dispute the main focus of the inquiry would be the interest of the family and the equality of the spouses in customary and civil marriages. The Master of the High Court would determine disputes, and could also refer the dispute to a magistrate with jurisdiction, who would hold an inquiry and make recommendations to the Master.

Clause 6 dealt with succession to property held by a traditional leader on behalf of his community. This would remain subject to customary law, which meant that if a traditional leader died without leaving a will his personal property would devolve according to the ISA, but the community property would devolve according to Customary Law.

Clause 7 dealt with a woman whose spouse might enter into a civil union after their customary law marriage. Before December 1988 a man married under customary law could then enter into a civil union, thereby dissolving the customary law marriage and leaving the customary law spouse and children born of that marriage destitute. Clause 7 was aimed at addressing the mischief, and protecting the "discarded widows" so that they could still inherit on an equal basis with the civil marriage widow and her children.

Clause 8 referred to a Schedule of other Acts being consequentially amended.

Clause 9 contained the short title.

Discussion
Dr F van Heerden (FF+, Free State) asked if this Bill applied only to those in a customary union, or whether it would also apply to those simply cohabiting, without a formal union. Secondly, he asked what the position was in relation to maintenance, and what would be the position in relation to pension rights.

Ms Maureen Moloi, Researcher, South African Law Reform Commission, said that the term “customary union” was no longer used; instead these were recognised as “marriages” and had the same status and consequences as any other type of marriage under the Marriage Act or the Civil Union Act. She noted that domestic partnerships were as yet only dealt with in a Bill, and were still being worked upon. Because customary law marriages were marriages, children were entitled to be maintained. The customary law spouse would also be in exactly the same position as one married under the Marriage Act insofar as pension rights were concerned.

Ms Ross added that this Bill proposed to amend the Maintenance of Surviving Spouses Act, so that a customary law spouse was specifically included in the definition of a spouse under that Act.

Adv Shireen Said, Chief Director: Vulnerable Groups, Department of Justice, noted that the Pension Funds Act comprised not only the legislation, but also the rules and schemes, which were defined by whatever that group or company would decide. If there was a dispute, the matter would be referred to the Pension Funds Adjudicator. There was no general extension of the principles mentioned, because pension funds were largely tied into contractual arrangements, but previous cases had decided upon principles of customary law.

Mr A Manyosi (ANC, Eastern Cape) said that African customary law stated that the eldest male, to whom the estate devolved, had a duty to look after the rest of the offspring of the deceased. He did not see that this was being dealt with in the Bill.

Ms Moloi explained that this Bill was only intended to apply where no wills had been made, so it was up to the parties to decide in advance how they wanted to distribute their estate and place responsibilities, by making a will, but if they failed to do so, then this Bill would govern the intestate succession.

Mr Manyosi asked to what extent would African communities support this Bill.

Ms Moloi said that the SALRC had consulted extensively with communities in all provinces, when doing its research and making the recommendations.

Mr A Moseki (ANC, North West) asked about the definition of "extra-marital", which was not specified in the Bill, and asked if it was defined elsewhere.

Mr Z Ntuli (ANC, Kwazulu Natal) asked if there was still such as concept as an illegitimate child".

Ms Ross said that the Bill did not define what an “extra marital” child was in terms, but this was generally understood to mean a child born outside a recognised marriage. Although such children were previously called “illegitimate” this term was no longer used.

Adv Said added that the Children’s Act defined children in a very generic way, making no distinction between those born in or out of a recognised marriage. The definition of “extra marital” was first used in around the 1980s and this term was then incorporated into other legislation. During the Lawrie Fraser case, the Court had made a number of pronouncements on the terms.

Mr Moseki said that a Bill such as this ran the danger of creating the impression that it was only in African societies that there were extra-marital arrangements, but the reality was very different. He asked why this Bill was focusing only on the African culture, and whether it was intended to legislate for other groups also. He said that there was a necessity to legislate in a sustainable manner, preferably by ensuring that there was all-encompassing legislation.

Mr N Mack (ANC, Western Cape) agreed with these remarks, and added that there were new customs developing, such as "trial marriages", which did not appear to be catered for.

Mr Lawrence Bassett, Chief Director: Legislation, explained that this Bill was trying to address a particular rule of customary law, that related only to customary law marriages, concerned with primogeniture. To that extent it was therefore operating in a limited context. It would not apply to “extra marital” children where the parents were not involved in a customary law relationship, as other legislation would apply.

Mr Hermann Smuts, Principal State Law Adviser, Office of the Chief State Law Adviser, confirmed this, saying that the Constitution required that customary law must be applied wherever applicable. This Bill related only to the customary law situation. The Court would have to determine whether any relationship was subject to customary law, and if it was not, then this Bill would not apply.

Ms Moloi added that no groups had been discriminated against, as they fell under the Intestate Succession Act. This Bill was in fact intending to take out the discrimination that had formerly applied, by bringing customary law of succession in line with the Constitution.

Mr Ntuli asked whether children of same sex marriages were being catered for in this Bill.

The Chairperson also asked what would be the position with the biological children of a person who then later entered into a same-sex marriage.

Ms Moloi explained that all children, other than those in customary law marriages, or Islamic or Hindu marriages, were covered by the Intestate Succession Act. The SALRC had recently investigated Islamic marriages and there was legislation pending before Parliament in respect of these. This Bill was intended to deal with the rights of children of customary unions who had not been covered by the Intestate Succession Act. Any children adopted by same sex couples were recognised as being able to inherit from their deceased parents. The biological children would always have been able to inherit from their biological parents under the Intestate Succession Act.

Mr Mack expressed his thanks for a clear briefing, and asked that any notes on the clauses of the Act be made available to Members for their assistance.

Mr Mack asked for clarity on clause 2(c), which related to a woman married to another woman under customary law. He asked in which customary law that applied.

Ms Ross explained that this rule was intended to cater for the Mujaje tribe, where traditional leadership ran through the female line. These traditional leaders would be married to a woman who was chosen to provide children for the continuation of the line.

Ms F Nyanda (ANC, Mpumalanga) asked about the position of the unborn child.

Ms Ross said that the definition of "descendants" included a person who was dependent on the deceased immediately before the death of the deceased. However, the use of the word “included” indicated that the definition was not entirely closed, and if the mother of the unborn child could prove the dependence then the child, once born, would be allowed to inherit from the estate of the deceased father.

Ms T Xhanti, Provincial Legislature, Eastern Cape, asked for a clearer definition of intestate succession.

Ms Ross explained that where the deceased left a will, this would dictate who would receive what. Where there was no will, the Intestate Succession Act would come into play, and this determined factors such as how many portions an estate would be divided into, the minimum portion to go to the spouse, and who was entitled to inherit under the various degrees of relationships.

Ms T Xhanti, Provincial Legislature, Eastern Cape, asked about awareness education.

Ms Ross responded that the Department of Justice (DOJ) had included this Bill as part of the Communications strategy, for purposes of awareness-raising, and that the public education branch of the DOJ would ensure that communities became aware of it.

The Chairperson noted that in many situations the family living with the deceased may not know of the existence of any other children outside the marriage.

Ms Ross referred again to the definition of "descendent", and said this would apply to any child who was dependent upon the deceased immediately before his death, whether or not the child was known to the spouse and other children of the deceased.

The Chairperson noted that a man could be tricked and a child could result from a liaison. Under the customary law, a man in this situation would be permitted to pay damages, which would effectively relieve him of any further obligations towards either the woman or the child, and this would be regarded as the end of the matter. He asked if this arrangement would be affected by this Bill.

Ms Ross noted that any arrangement such as that referred to by the Chairperson would relate to the customary law action for damages. The inheritance covered by this Bill related to the child’s rights. If the child should still wish to benefit from the estate of his father, he should not be precluded from doing so.

Ms Moloi added that a child would be entitled to inherit if the paternity could be proven. If a child became aware of the death, he could register a claim and be included in those who could inherit.

Mr van Heerden said that if the minor child then died, his assets (including the portion from his father) would revert back up to his mother.

Mr Manyosi noted that the customary law was perhaps not fully taken into account in this Bill. He pointed out that the position of “children” was not in fact limited to biological children only, but could include nephews and nieces for whom a man had assumed responsibility. He thought that the definition of “descendant” was too narrow and said that in the customary law a person was regarded as a descendant not only of his father but all other ancestors.

Mr Bassett noted this point and said that the Department would be working further on the Bill.

The Chairperson suggested that some further responses be given on the following Thursday, when the Bill would be discussed again.

Child Justice Bill (the Bill): Further deliberations
Mr Bassett noted that the Department had undertaken to get some further definitions for the Committee.

Ms Thandazile Skhosana, Senior State Law Adviser, Department of Justice, noted that the crime of compounding was where there was an agreement not to report or prosecute a crime in exchange for something. It overlapped with the crime of being an accomplice. She further explained that in Schedule 2 the crime of exposing would involve unbundling an infant in circumstances where this would lead to its death through exposure to the elements.
 
Adv Said noted that questions had been asked at the previous session on guardianship and guardians. She explained that the term “guardian” as used in the Children’s Act meant someone appointed as a legal guardian in terms of that Act, following a procedure in the High Court. Often a person taking care of a child without a formal appointment might act as a guardian or caregiver, but without formal rights.

Mr Steven Maselesele, Director, Department of Social Development, noted that his Department had been asked to respond as to why junior officials had allegedly been sent to meetings such as the Cluster Meeting in Limpopo. He noted that on making enquiries, he had discovered that a Director had been attending, but that there had been other departments who had sent junior officials unable to take the necessary decisions. Some provincial structures operated differently, and did not distinguish who was to be sent. Some provinces were clustered so that one person was responsible for three widely varying programmes, and that was a structural problem. Departments in the provinces were trying to align with national standards.

Adv Said added that the level of staff being sent to meetings had sometimes posed a challenge, and this point had been raised at the Director- Generals' cluster. In the interim, all departments, particularly on Child Justice issues, had been asked to deal with any problems where it became apparent that the levels of representation were not considered to be appropriate.

The Chairperson asked about the relationship between probation officers and South African Police Services (SAPS) under this Bill. He noted that over the weekend there had been reports about a girl who was arrested, held with male offenders, and gang-raped. There was no excuse for this, and he wondered if the right people were being deployed in these matters. He said that probation officers would only become involved after the fact of arrest, and there could be much damage done before the probation officers were called.

Mr Maselesele said that the list of all probation officers had been distributed to the SAPS. The Child Justice Bill and Probation Services Act provided that a probation officer must act within 48 hours. When SAPS officials arrested a child, they must inform the probation officers, who would then come to do the assessment. He noted that the incident referred to should have fallen within the same prescripts. He could not comment on this particular case. As a general principle, failure on the part of probation officers would be regulated by the Social Services Professions Act, and sanctions would be imposed.

Ms Susan Pienaar, Head: Crime Prevention, SAPS, said that she would need to investigate this specific incident to determine whether the police officers were guilty of misconduct. The orders were clear that no girl child could be detained with males. The first thing that should happen on arrest of a child was that SAPS should inform the parents and the probation officer of the arrest. No child should be detained for any longer than absolutely necessary.

She added that there was generally a good relationship with DSD on the ground, but there were only 424 probation officers trying to cover over 1 000 police stations, so their response was not always ideal, through no fault of their own. Sometimes there were problems. However, provincial committees had been established and one of the useful outcomes of working together was being able to address specific problems in specific areas. The arrangements with Assistant Probation Officers were helping.

Mr Bassett added that clause 28 of the Bill made the responsibilities quite clear. Reference had also been made to clause 97, in terms of which the National Director of Public Prosecutions and the National Commissioner of SAPS must issue national instructions regulating all aspects of children, including protection of children detained. These directives further must ensure that adequate steps were taken against any functionary who failed to comply with these provisions.
 
The Chairperson raised again the question of a child who would not be prosecuted if deemed not able to take responsibility for an offence. He thought that there could be cases where, for instance, a fourteen year old child would pretend that he did not understand what was happening. He understood that the mental capacity of the child could be checked, but wondered if the right balance was being struck between protecting a vulnerable child and protecting society.

Mr Bassett added that a child between 10 and 14 years old did not have to be diverted automatically. He could be prosecuted, and the prosecutor would look at a number of factors. The 10 to 14 year old category must be proven to have criminal capacity, beyond reasonable doubt. At the preliminary enquiry, there would be an assessment report, and throughout all the proceedings it should become clear whether the child was being truthful. If the prosecutor thought that a child was being devious, then it was unlikely that this child would be diverted, but would go straight to trial. Legislation could not really deal with the one-off circumstances. The inquiry magistrate must consider the assessment report, and in addition an evaluation report could be requested specifically in relation to a child's criminal capacity. If the mental capacity of a child came into question, that child could be referred to a panel of psychiatrists, in terms of clause 70, to assess whether the child had mental capacity when committing the offence.

The Chairperson raised again the question again of the family time order, which was intended to ensure that a child spend quality time with his parents. He asked who would accept the responsibility and burden of this, as essentially the order was against the child, but the parents were also being placed under obligations, so that such an order was a double-edged sword. He asked what would happen if a parent, having tried everything in the past, was simply not prepared to engage in family time, and what would happen if the parents, having ostensibly agreed to do so, did not play their part.

Mr Ntuli added that when the Committee had paid oversight visits to the prisons and police cells, they had discovered that many parents had effectively disowned a child, and did not want the child back at home. He noted that the idea of quality family time would clearly not apply if the parents displayed no interest.

Mr Maselesele said that it was difficult if the parents had done all that they could. The Bill did require monitoring by probation officers in a prescribed manner, followed by a report to the Court. The monitoring was not sporadic or spontaneous, and days would be agreed upon with the family. Anything else that might be happening in the family situation may impact upon the assessment whether quality time was in fact being spent, and this might affect whether the diversion might need to be reviewed, or if there was an error of placement. It might be that the child should rather be moved to a child and youth care centre.

Mr Bassett said that regard must be had to the objectives of a preliminary enquiry, which were to identify a suitable option. The preliminary enquiry was essentially a round-table conference to decide what would be a suitable option if the matter were diverted. Clause 52 said that the child and parent must consent to the diversion order. The presiding officers would be unlikely to make an Order for family time if the parents were not cooperative. This Order would be used in circumstances where there was the full cooperation of the parent, rather than being imposed upon unwilling participants. At both the preliminary enquiry and assessment, there were other diversion options in terms of which the parents’ wishes could be taken into account. Some options did not require the child even to stay with the parents, as level 2 options included compulsory residence at a centre.

Adv Said added that there could be combinations of diversion options. If the family was dysfunctional, or the child might be affected by gangs or alcohol abuse or something similar, then the family option would not be suitable. Clause 56(2)(c) said that there must be provision for the different options to be tabled before Parliament. This would help to satisfy Members what criteria must be considered. There would be an assessment not only of the child, but the context that the child lived in.

Adv Said noted that there had been references to visit to the Durban-Westville prison, which had the highest prison population of children in the country. However, it must be noted that the DSD managed the facility and their rules would apply to children. Some of those children could not have been placed elsewhere. Even though they were physically housed within the Correctional Services building, the rules of Social Development would apply. There had been some challenges, and the inter-sectoral committees would intervene to assist. The intersectoral committee for child justice was now being entrenched formally through this Bill, so the relationships were systemic, and committees could be set up in particular areas as needed. 

The Chairperson also asked how one would deal with a child who did not have any stable family member, or any permanent home, who could clearly not pay bail, or where his or her parents were irresponsible.. He referred to clauses 18 and 19 in this regard.

Adv Said responded that it was recognised that sometimes the personnel in the criminal justice system did not have quite the right sensibility when dealing with children, but this would be addressed through training, as directed by clause 97. They would also be trained to look at social issues. As a general principle, as set out in clauses 17 to 20, a police official, when arresting a child, must explain the rights, and determine whether that child was capable of understanding what was being said. A probation officer and another “appropriate” adult would also be told of the circumstances. One of the advantages of a the caseflow management system was that it would be able to disclose any areas where a disproportionate number of written warnings were being issued, indicating that the system needed to be examined.

Ms Miche Sepeng, Deputy Director, Department of Social Development (DSD), noted that the spirit of ubuntu would be promoted. Even if a child was heading up a family, he or she would still have relatives or other adults who offered some support, and would be entitled both to equal access to family services and legal assistance. If SAPS were to inform DSD that no appropriate adult could be found for a child, then DSD’s Assistant Probation Officers would try to source an adult who could take responsibility.

The Chairperson asked how many child care centres were available.

Ms Sepeng replied that there were 31 secure care centres in the whole country, but not all children would be referred there. More would be built, and these were intended to be one-stop centres, providing not only secure accommodation, but other types of services, such as offices for the Department of health, SAPS and the courts. Some centres already operated as one-stop centres.

Mr Ntuli asked who was responsible for reform schools.

Mr Maselesele responded that these presently fell under the Department of Education, but the Children's Amendment Act of 2007 made provision for transitional arrangements, so that by 2010 all child and youth care centres, which would include the reform schools, should fall under DSD. He thought that there were only six reform schools, based only in Western Cape and Mpumalanga.

Ms Nyanda asked how many of the child care centres were in Mpumalanga.

Mr Maselesele responded that there was one facility, capable of taking 60 children. Two more were to be built, each with a capacity of 60.

Mr J le Roux (DA, Eastern Cape) said that he could not quite get to grips with capacity. He asked if it was worthwhile passing the Bill if it could not be implemented.

Dr van Heerden said that it would probably take at least one year for this Bill to be fully operative after implementation, because national instructions had to be issued, and training courses held, and a policy framework tabled in Parliament.

The Chairperson reminded him that the intention was that this would only be implemented in fact after two years.

Ms Pienaar noted that the training in SAPS had already been started, because a different set of principles was to apply. The first module covered the child justice system, and would include this Bill, once passed. This training had been piloted already in February 2008 and some trainers had been trained. Other modules would include development of young people, the context in which they lived, and trauma and violence.

Adv Said noted that many of the child centres, as indeed the fragmented child justice system, had been inherited, and were therefore based in the historically most important urban centres. The Children's Act, whose definition was incorporated into this Bill, included a reform school and secure care facility under a child and youth care centre. Reform schools were now being aligned not only in the Children's Act, but also in this Bill. The ethos of this Bill, however, was not necessarily to build more and more centres, but to try to get children out of these centres and reintegrated into society so that they could become productive citizens. The awaiting trial statistics had already, since 2002, been reduced by 50% because there were more options available outside the formal system. Where the children were in need of care, different options were also available.

In regard to general implementation, Adv Said noted that under the current Probation Services Act, children must be assessed within a certain period. Already in 2002, in anticipation of the Bill being passed, budgets were obtained and although there were challenges some of the systems were already in place. For instance, there was a range of different service providers for diversion. There might need to be more experts available to determine age. The sentencing options were certain better under this Bill.

The Chairperson asked what would happen to a child who had exposed him/herself indecently in public as the Bill noted that a child could not be sent to prison.

Mr Bassett said that public indecency was a separate offence and that it would be dealt with in terms of the specifics provided and that these children would not fall through the cracks, but would be assisted by referring the matter to the Children's Court, therapy or an accredited programme.

Mr Mack said he needed more clarity on the Regulations. This Committee had a problem with regulations being drawn up after the parliamentary process, and the Committees thus not being able to discuss them. He was happy to see that the Regulations had been included and asked whether the Committee would be allowed to discuss the Regulations.

Mr Bassett replied that the Regulations were required and drafted by the Minister, but had to be tabled before Parliament for approval and adoption. It was very important that all the various stakeholders in the Bill had to engage on the development of regulations.

Mr Manyosi asked what the position of the Courts would be if a child under 7 years in fact did have criminal capacity and knew what he/she was doing, regardless of what the Bill said.

Mr Bassett replied that the Common Law had been blunt as it stated that a child of younger than seven could not be prosecuted. The DOJ had proposed that the age be increased to 10 years old. This did not mean that the child would not be helped, as there were various other alternatives available to assist the child.

Mr Manyosi asked how “restorative justice” would be entrenched.

Adv Said answered that the way in which the Child Justice Bill had gone through the parliamentary process had been unprecedented. The DOJ, in dealing with this Bill, had engaged with civil society on how best to implement diversion policies. She added that the Diversion Framework would be tabled in Parliament as well as a discussion on the age of criminal capacity.

Adv Said added that until now restorative justice as a concept had not been legislated for and that it had to be compatible with the Constitution. A process would be implemented that would look at how awareness could be emphasised within communities. The current judicial system recognised accused, victim and courts. Restorative justice would seek to address the matter outside of those confines. It was important to know how the DoJ managed the processes, as they could lead to abuse. Time was of the essence, but a lot of processes had already been implemented to address the blockages and how best to align the Bill so that it could form part of the broader Administration of Justice framework.

The Chairperson asked who would determine that the action taken would be in the best interest of the child in terms of Clause 44. He added that this clause obliged parents to attend the preliminary inquiry, but it failed to take into account whether the parent/s would actually attend, as they could be tired of the child's continuous misbehaviour.

Mr Ntuli stated that maybe the rationale behind this clause had been to force parents to take responsibility for their children.

Mr Bassett noted that was essential for a parent to be at the preliminary inquiry, but the Bill did provide for an “escape clause”. If the parent was just as bad as the child, it would not be in the interest of the child to have the parent there. Parents could also apply for an exemption not to attend. He said that this matter was considered as being very important as parents could face a fine or possible imprisonment if they did not attend this inquiry.

Ms Skhosana added that the Court was the upper guardian of minor children and would look at all the facts to make a just decision that reflected the interests of both the minor child and the community.

Adv Said added that the child's best interest must always be the paramount provision. Existing legislation had been based on the principle of “one size fits all”. Now this Bill was introducing different levels of diversion that depended on the gravity of the offence. In many instances the children came from dysfunctional backgrounds and this would be considered when deciding what was appropriate.

She added that the issue of parental rights had to be addressed by the High Court, and that Chapter 3 outlined what parental rights and responsibilities were. It was important that the presiding officer would have to be knowledgeable about various issues during an assessment, to make sure that everything had been addressed and thoroughly checked. This Bill had a strong preventative component, as it prescribed what had to be done to prevent children from re offending. That was also in line with the Children’s Act, as these two pieces of legislation would complement one another.

The Chairperson asked how the DOJ would monitor the Compulsory School Attendance Order (CSAO), especially if the child lived in a dysfunctional domestic environment. He questioned how many diversion options had been made available.

Adv Said replied that the schools’ records or attendance register would reflect the school attendance, and the he teacher would also have to be approached to ascertain whether the child had been to school. If schooling was a problem, the school environment would be reviewed. This also pertained to any social groups such as a sports club in which the child might be involved. The Bill provided several different stages or phases of diversion and there was also an option to go through the Courts, which could themselves also decide whether diversion was a suitable option.
 
Mr Bassett added that the decision of the prosecutor whether diversion would be appropriate could only take place once the prosecution had closed its case. This highlighted the important role played by prosecutors.

The Chairperson was not satisfied with the responses given, as it seemed that there would be no real monitoring of the CSAO.

Ms Daksha Kassan (Children’s Rights Project, UWC) said that clause 57 allowed for diversion orders to be supervised by other suitable people of good standing within a community.

Adv Said noted that Clause 57(5) was very specific as it dealt with the presiding officer requesting information from a service provider. It was important that the services provided by the service providers were of good quality, and she also said that the accreditation process was very important, in terms of what kind of diversion options could be devised. Research and practice worldwide had shown that restorative justice and diversion had been better administered by civil society, as the power balance between civil society and government was completely different.

The Chairperson said he was now satisfied with the provisions made. He asked what the Department of Social Development had done so far to ensure that institutions were accredited as diversion service providers.

Mr Maselesele said that DSD had been working in close partnership with civil society to ensure that the process was conducted in a professional manner. Probation officers were required by law to have a degree in social work and be registered as probation officers in addition to that. DSD had engaged on the various diversion options, and the accreditation systems that would be put in place to determine suitable service providers would regulate that sector before funding was given. DSD must ensure that financial resources were available to service providers.

Adv Said added that Clause 56(2) obliged the Minister of Social Development and other government departments to work on the policy framework for diversion. Restorative justice pertained to a particular mindset, and similar processes elsewhere had shown that it was difficult for the accused to face his/her victims. This should serve as an indication that the accused would not commit such an offence again.

The Chairperson said that he had a problem with the term “restorative justice conference”.

Mr Bassett noted that the Constitutional Law Review Commission had indicated that it would be best to find a suitable name and drop the current terminology, as it was not “truly” South African. 

Dr F van Heerden (FF+, Free State) asked how the DoJ would ensure that Clause 70 would be balanced out, as people sometimes laid frivolous or fictitious complaints. He asked whether any safeguards had been put in place to prevent this.
 
Adv Said replied that the impact of the offence would have to be reviewed in terms of where it was placed in Clause 70(3). The rules of evidence would apply as in any formal court proceeding.  Both sides would have to give their versions. The new Bill gave clear guidelines on how the victim’s statement should be taken and that this was one of the safeguards.

Mr Bassett added that the prosecutor had the final say on whether any statement or evidence would be admissible and would see to it that it was not inflated.

The Chairperson said that a lot of emphasis had been placed on the perpetrator in the Bill. He asked how the victim would be looked after in this Bill.

Mr Bassett replied that the broad principles contained in the Objectives and the Preamble of the Bill made reference to the victims specifically. Furthermore, the interests of victims had been fully covered in Clauses 2 and 3. The victim’s views were taken into consideration during the diversion process, with stronger provisions in Clause 53(3).

The Chairperson asked to what extent the Legal Aid Board was concerned with the Bill.

Ms Skhosana replied that Clause 81 covered the role of the Legal Aid Board.

Dr van Heerden asked to whom the Board would be answerable.

The Chairperson said that during an NCOP visit to Kwazulu-Natal he had been informed that the lawyers of the Legal Aid Board had instructed their clients to plead guilty to offences. This was surely not in their interests. He asked the rationale for Clause 83, which dealt with the waiver of the right to legal representation.

Adv Said replied that even if an advocate was not a member of the Bar Council, he or she still had to be registered on the Roll, and could be struck off for any improper conduct.

She added that the Bill aimed to protect both society and children, and this was very serious as children did not understand the law. That was why the DOJ made a concerted effort to highlight the importance of legal representation. It wanted to achieve the best possible protection for children. Many legal aid lawyers were young and inexperienced.

The Chairperson asked again for the rationale behind this.

Adv Said replied that the rationale behind Clause 81 had been to provide the policy directives if such a scenario should occur.

Mr Manyosi said that he had hoped that the DOJ would expand on this allegation that the Board had instructed their clients to plead guilty, and said that he knew of one case where this advice had been given because of overwhelming evidence that seemed to suggest the case was a lost cause. 

Adv Said explained that in many instances where there was overwhelming evidence pointing to a guilty conviction, magistrates and judges would be more likely to impose a more lenient sentence where a guilty pleas was put in.

The Chairperson asked why Chapter 13 prescribed different sentences for the different Schedules. He also asked how the expungement processes would work.

Mr Bassett replied that in terms of the Criminal Procedure Act certain convictions would be expunged or be deemed to fall away, providing that the person did not commit the same offence within the specified period. This was different from the Presidential pardons, where a person actually had to approach the Presidency for a pardon.

He added that Schedule 1 set out less serious offenses, whereas Schedule 2 dealt with more serious offenses. He assured the Committee that no records of dangerous criminals would be expunged, and that these crimes were normally Schedule 3 offences.

The Chairperson said that children formed part of “vulnerable groups” that had to be assisted to better their socio-economic circumstances. In light of this, he asked whether children in conflict with the law would still receive or qualify for social grants.

Mr Maselesele replied that every child was vulnerable, and that social grants depended on the vulnerability of a family and whether that family had passed the means test of DSD. If the social worker determined that the child was in need of care that child could be placed in foster care.

The Chairperson asked the DOJ to have another look at Clause 87(1)(b), as many people did not know what those provisions entailed.

Adv Said replied that Clause 87 was already subject to the Promotion of Administrative Justice Act (PAJA) and that the Director-General still had to give written permission.

The Chairperson asked what the South African Police Service (SAPS) thought about restorative justice and diversion,  and whether they had been consulted by the DOJ during the drafting of the Bill.

Ms Susan Pienaar said that she did not have a specific answer as different arrangements had been implemented for the various provinces. In the Eastern Cape SAPS had been involved in the “family conference”, but this was as far as it went. This was problematic for SAPS as the Bill made provision for SAPS involvement in the drafting of the policy framework. SAPS was of the opinion that more engagement was necessary with the DOJ and other stakeholders, as its role had not yet been defined in relation to restorative justice.

The Chairperson said the reason why he asked this question was because of the continuous rise in vigilante attacks in South African communities whenever a perpetrator had been released. He said that these vigilante groups had no knowledge of restorative justice and diversion programmes and that he was aware of instances where the SAPS and the DOJ had butted heads over this issue.

Ms Skhosana replied that SAPS had been consulted on restorative justice and diversion and their involvement had been highlighted in clause 52(3)(b).

The meeting was adjourned.