Child Justice Bill: NCOP amendments, Regulation of Interception of Communications & Provision of Communication-Related Information Amendment Bill: NCOP Amendments & adoption, Judicial officers remuneration; Legal Aid Guide

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Justice and Correctional Services

21 October 2008
Chairperson: Mr Y Carrim (ANC), Mr J Jeffery (ANC) and Mr J Sibanyoni (ANC)
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Meeting Summary

The Department of Justice briefed the Committee on the amendments proposed by the NCOP to the Child Justice Bill. These included amendments to the definition of “appropriate adult”, insertion of a separate definition for “guardian”, an amendment to correct the incorrect use of the term “recognisances”, amendments to Clause 29, relating to detention of children, and amendments to Clause 80, which had been substituted with a new Clause. The Committee noted that comments had been received from the Child Justice Centre around Clause 80, and felt that there was a need to engage further on some of the reasons for amendment, before adopting the amendments. 

The Committee received a briefing on the changes that the NCOP had proposed to the Regulation and Interception of Communications and Provision of Communication-Related Amendment Bill, which had related to issues around registration and storage of roaming information, registration of handsets and the registration period. It was noted that there had been extensive discussions with stakeholders around the issues. The Committee resolved to approve the amendments made by the NCOP.

The Committee approved and adopted the determination of salaries and allowances of Magistrates but noted its concern at its inability to make any amendments, considering some of the problems that had arisen in these instances, and its concern about the delay of the Department in recognising the problems. The Committee also approved and adopted the determination of the total remuneration structure of Constitutional Court Judges and other Judges.

The Committee received a briefing from the Legal Aid Board around the 2008 Legal Aid Guide, which set out the policy decisions and the requirements in respect of when legal aid could be granted, the means test and the synopsis of the procedures involved in legal aid and related administrative practices and structures. The delivery systems for Legal Aid, including the Judicare system and the Justice Centre, Satellite Offices and Cooperation Agreements, were outlined. It was noted that the Legal Aid Board was shortly to propose amendments to the Legal Aid Act of 1969, which was outdated and required better procedures. Members again expressed its concern that the Committee had a limited function under that Act, and could only either ratify the Guide, or reject it, but could not propose any amendments, and this was seen as unduly restrictive. These issues would be raised in the Committee’s report. Members did, however, agree to ratify the Guide.

Meeting report

Child Justice Bill [B49B-2002]: Briefing on NCOP amendments by the Department of Justice (DOJ)
Mr Lawrence Bassett, Chief Director, Legal Drafting, Department of Justice, presented the amendments made by the National Council of Provinces (NCOP) to the Committee. He indicated that there were quite a number, but his briefing would highlight the major changes.

In the version of the Bill approved by the National Assembly (NA), the phrase ‘appropriate adult’ had been used. Included in the definition of ‘appropriate adult’ had been the term ‘guardian’. The NCOP felt, however, that although they understood that term ‘guardian’ had been defined they had decided that guardianship had to be a stand alone concept, and had therefore requested that a definition for ‘guardian’ be inserted in the Bill, and that this term be deleted from the definition of appropriate adult. Consequentially, in every place where reference had been made of to “an appropriate adult”, there now also had to be a reference to “or a guardian”. Most of the amendments listed in the document were around this issue.

The next issue concerned a child being released on “his or her own recognisances” This term was queried, and when checked it was discovered that the correct term was the singular “recognisance”, and this had been amended throughout.

Clause 28 related to detention conditions for young children. The NCOP had suggested that the provision should state that children who were detained or were in police custody had to be held in conditions that took into account their particular vulnerability and reduced the risk of harm that could come to them. The NCOP had suggested, also in the same clause, that a child who was in detention or policy custody had to be permitted visits by parents, appropriate adults, legal representatives, social workers, probation officers, health workers, religious counsellors and any other person who was entitled in terms of any other law to visit. It suggested that after probation officers the words ‘assistant probation officer’ be included.

The NCOP had rejected Clause 80 and suggested that it must be substituted with a new clause. There were certain requirements with which that a legal representative representing a child had to comply, and five requirements had been suggested by the Select Committee under (a) to (e) of the new clause. The new clause also prescribed the way in which a presiding officer should deal with the situation where a legal representative acted contrary to the provisions of the new clause, and this was to be found in the new sub-clauses (2) and (3)(a) and (b). Concerns had been raised over the original subclause 80(2)(a), as it was felt that it would be difficult to implement in practice and possibly unfair to legal representatives. It had been felt that the issue of receiving instructions from children should not be the basis of remedial action as contemplated under 3(a) and (b). Consequently paragraph (a) had now been included in subclause (1) and a new subclause (2) had been created. Only four of the requirements that a legal representative must comply with were now subject to sanctions.

There had been two insertions. Where the Bill approved by the National Assembly had originally referred to “Commissioner of Correctional Services” this had been corrected to “National Commissioner of Correctional Services”.

Schedule 4 contained some consequential amendments.

Discussion
Mr J Jeffery (ANC) indicated that the major issue appeared to be the definition of “appropriate adult” and the concept of “guardian” in Clause 28. The definition of “appropriate adult” already included “guardian”, and he did not understand the rationale behind the changes made by the Select Committee in that regard.

Mr Bassett responded that the Department of Justice had pointed out during the deliberations that it was not necessary because “guardian” was already included in the definition of “appropriate adult”. It seemed that the Select Committee felt that the definition of “guardian” should be a stand-alone provision and had to be emphasised separately.

Mr Jeffery suggested that the Committee should first understand why the NCOP had desired this change, before a decision could be made on whether the change was to be adopted or not. He asked Members to note the issue and then come back to it later on.

Mr Jeffery noted that the amendments made by the Select Committee of the NCOP, in relation to Clause 80, had been responded to by Dr Ann Skelton, Director of the Centre for Child Law at the University of Pretoria, who had raised concerns about the exclusion of 80(1)(a) from the penalty or sanction provisions. He suggested that the Committee should engage with the NCOP on these aspects.

Mr Patrick Hundermark, Legal Development Executive, Legal Aid Board, indicated that the Legal Aid Board (LAB) had not been provided with the Dr Skelton’s submission and would require time to go over it before giving a response. However in general, it was felt that the type of conduct referred to in Clause 80 was covered by a legal representative’s general ethical obligations, as required by the respective Law Society and the Attorneys’ Act. He believed that adding additional sanctions or criminalisation would be problematic. There were mechanisms that existed for dealing with unethical conduct, including the proposals made under the Legal Practice Bill, where this could be covered by the Regulatory Authority.

Mr Jeffery pointed out that there was no criminal sanction under Clause 80 but that there was a requirement for the presiding officer to record and then report to the relevant regulatory body. Although in theory this would fall under unethical conduct, the intention had been to make the provisions tighter.

He noted that the Committee would therefore need to decide whether to accept or reject the amendments, so that the Bill could be finalised in November.

Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill [B9B-2006] (RICA): Department of Justice briefing on NCOP amendments
Mr Bassett submitted that three issues had been raised when the Bill had been tabled before the Select Committee. These issues were the registration of the handset, the registration of “roamers” and the registration period. There had been considerable argument, and eventually there had been meetings conducted between various functionaries, which had resulted in an agreement to delete the requirements to register roamers and to register handsets. Notwithstanding the decision to delete the roaming provisions, it had been suggested by South African Police Service (SAPS) that there had to be provision or a requirement for Service Providers to keep certain roaming information on record for a period of five years.

At about the same time that these agreements were made, there had been meetings of the Ministers, and the Bill had been sent back to the Select Committee, which had then decided that all the provisions around roaming information must also be deleted. The major issues with which the Select Committee had dealt were highlighted to the Committee.

The Chairperson put the changes as made by the NCOP to the Committee, which decided to vote in favour of all the amendments.

The Bill was therefore adopted, as amended by the NCOP. It was noted that the Minister of Justice had to look at these changes and report back to Parliament on whether there would be any need for further changes, within the next two years.

Salaries and Allowances of Magistrates: Approval
Mr Jeffery explained the process leading to the determination by the President that Magistrates were entitled to a total remuneration structure as recommended by the Independent Commission for the Remuneration of the Public Office Bearers.

The Department of Justice indicated that it had certain concerns about the inclusion of the President of the Divorce Court on the same pay level as a Regional Court Magistrate and a Special Grade Chief Magistrate. The Department of Justice submitted that the problem was that this post would be abolished, and it was not on the same salary grade as the other posts on that remuneration structure.

Mr Jeffery pointed out that the only this could be corrected would be if the Committee rejected the determination and sent it back to the President, and that this would result in a delay in the increments until November.

Several Members of the Committee expressed their disappointment with the Department for failing to identify this problem in good time before it had become too late.

Co-Chairperson Mr Carrim asked the Committee to take note of the difficulties that resulted because of its limited mandate in dealing with these matters, and proposed that the Committee should, in its Report, if appropriate, express the need for a wider mandate that would empower them to deal with the problems that could arise such as in the present case.

It was agreed that the Committee Report would note that the Committee was sufficiently satisfied with the Commission’s recommendations as contained in the Proclamation, insofar as they referred to Judges and Magistrates.

The Committee resolved unanimously to adopt the determination of Salaries and Allowances of Magistrates and resolved that any problems raised would be addressed by the responsible Minister in the National Assembly.

Approval of the Determination of Total Remuneration Structure of Constitutional Court Judges and Judges
The Committee noted the tabling of a document setting out the total remuneration structure of Constitutional Court Judges and other Judges (see attached document). It unanimously approved the determination of the total remuneration structure.

Legal Aid Board (LAB) Briefing on the proposed 2008 Legal Aid Guide (the Guide)
Ms Vidhu Vedalankar, Chief Executive Officer, Legal Aid Board, presented the policy changes contained in the proposed 2008 Legal Aid Guide. She outlined the broad objectives of the Guide as well as its value to South African residents and citizens, and the background of the consultations leading to its development. She pointed out that the guide had moved away from the use of “legalese” to simpler language. The guide was meant to be ratified by Parliament on an annual basis, but this was under review in terms of contemplated changes to the Legal Aid Act of 1969, that were in the process of preparation and that would be tabled shortly to Parliament.

Mr Patrick Hundermark, Legal Executive, LAB, then took the Committee through the 2008 Legal Aid in a detailed power-point presentation. His presentation focused on Legal Aid Policy, stating which were the matters for which legal aid could be provided, and the criteria by which a person could qualify to receive legal aid. The presentation also provided a synopsis of the procedures involved in legal aid and related administrative practices and structures. He briefed the Committee on the considerations involved in the granting and authorisation of legal aid, setting out that the guiding principles included equality before the law and a means test, according to which legal aid could not be granted if the applicant had sufficient disposable capital or assets to raise finance to pay for the required legal assistance.

Mr Hundermark also informed the Committee about the delivery systems for legal aid which included the Judicare system, a system of salaried legal practitioners employed by the Legal Aid Board, and direct service delivery through Justice Centres, Satellite Offices and Co-operation Agreements with other persons and bodies to jointly render legal services to the public.

Discussion
The Chairperson for this session, Mr Carrim, submitted that there were a number of issues that the Parliamentary researcher had uncovered about the 2008 Legal Aid Guide. However, as a result of the rules and procedures set out by the Legal Aid Act, the Committee was called upon either to ratify the guide or to reject it. This was really problematic and there was a need for the greater involvement of Parliament, otherwise the exercise became meaningless and unnecessarily took up the time of the Committee.

Mr Hundermark reiterated that the Legal Aid Act was under review and would soon be amended.

Ms Vedalankar proposed that a solution would be to separate policy issues from procedural matters, so that Parliament could deal with policy issues alone. This could be reflected in the review of the Legal Aid Act.

The Chairperson suggested that the Committee should, in its draft report, state that the Committee would have preferred to have more time to apply its mind on the Guide. The Committee report would also underline the need for a complete overhaul of the Legal Aid Act, and recommend that work on the draft Bill be accelerated and that a report on its progress be provided to Parliament.

The report would also include the concern by the Legal Aid Board that the provision of legal aid in civil cases was restricted to South African citizens only.

Furthermore, the Committee would note that the restriction either to ratify or reject the guide, in terms of the Legal Aid Act of 1969, was inappropriate and inconsistent with the role of Parliament in a democratic society as set out in the 1994 Constitution. The Committee believed that it had to have a role also to amend the guide.

Members agreed to these suggestions. The Committee then adopted and ratified the 2008 Legal Aid Guide.

The meeting was adjourned. 

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