GENERAL EXPLANATORY NOTE:
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Words in bold type in square brackets indicate omissions from existing
enactments.
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Words underlined with a solid line indicate insertions in existing
enactments.
BILL
To amend the Probation Services Act, 1991, so as to insert
certain definitions and amend others; to make further provision for programmes
aimed at the prevention and combating of crime; to extend the powers and duties
of probation officers; to provide for the mandatory assessment of arrested
children; to provide for the establishment of a probation advisory committee;
and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South
Africa as follows:-
Amendment of section 1 of Act 116 of 1991
1. Section 1 of the
Probation Services Act, 1991 (hereinafter referred to as the principal Act), is
hereby amended -
(a) by
the insertion before the definition of "authorized probation officer"
of the following definitions:
" 'assessment' means a process of developmental
assessment or evaluation
of a person, the family
circumstances of the person, the nature and circumstances surrounding the
alleged commission of an offence, its impact on the victim, the attitude of the
alleged offender in relation to the offence and any other relevant factors;
'assistant probation officer' means a person who is appointed
under section 2 and who assists and works under the supervision of a
probation officer:":
(b) by the substitution for the definition of
"authorized probation officer" of the following definition:
" 'authorized probation
officer' means a
probation officer authorized or directed by the Minister to perform any
function entrusted to an authorized probation officer under this Act and,
except in sections 9(1) and 15A, includes an authorized assistant probation
officer:";
(c) by the insertion after the definition
of "authorized probation officer" of the
following definition:
"child means any person under the age of I
8 years:":
(d) by the insertion after the
definition of "Director-general" of the following definitions:
'diversion'
means the referral of cases of persons alleged to have committed
offences away
from the
formal court procedure with or without conditions;
" 'diversion programme' means
a programme within the context of the family and
community-
(a) in respect of a person who is alleged
to have committed an offence;
(b) which is aimed at keeping that person
away from the formal court procedure; and
(c)
which promotes the development, accountability and effective integration
of that
person within society;
'early
intervention' means
the provision of services and programmes aimed at preventing the
need for a
person who is alleged to have committed an offence, to be dealt with in terms
of the
formal
court procedure;
'family
finder' means a volunteer appointed under section 9;
'family
group conferencing' means a gathering convened by a probation officer as a
diversion
or sentencing option to devise a restorative justice response to the
person's offence;
'family member' means a person who is related to
another person biologically, by law or
according to customary
law:":
(e) by the insertion after the definition of "Minister" of the following definition:
"
'person' means a natural person and includes a child;";
(f) by the
substitution for the definition of "probation officer" of the
following definition:
" 'probation officer' means a person who complies with the
prescribed requirements, and who
has been appointed under section 2 and
includes an assistant probation officer: "; and
(g) the
insertion after the definition of "regulation" of the following
definition:
" 'restorative justice' means the promotion of
reconciliation, restitution and responsibility
through the involvement of a child, the
child's parents, family members, victims and
communities:"
Amendment of section 3 of Act 116 of 1991
2. Section 3 of the
principal Act is hereby amended-
(a) by
the substitution for the words preceding paragraph (a) of the following words:
"The Minister may, in respect
of different categories of persons, establish or cause to be established
programmes or services which are aimed at-";
(b) by
the substitution for paragraph (a) of the following paragraph:
"(a) the prevention and
combatin2 of crime;
(c) by
the substitution for paragraph (d) of the following paragraph:
"(d) the assessment care, [and] treatment,
support, referral for and provision of mediation in respect of
the victims of crime;"; and
(d) by
the deletion at the end of paragraph (i) of the word "and" and the addition after
paragraph (j) of the following paragraphs:
"(k) early intervention,
including family group conferencing;
(l) restorative justice as part of appropriate sentencing and
diversion options.".
Amendment of section 4 of Act 116 of 1991
3. Section
4 of the principal Act is hereby amended by the addition to subsection (1) of
the following paragraphs:
(i) the reception, assessment and referral of an accused
person and the rendering of early intervention services and programmes,
including mediation and family group conferencing;
(j) the
investigation of the circumstances of an accused person and the provision of a
pre-trial report recommending the desirability or otherwise of prosecution;
(k) the investigation of the circumstances
of a convicted person, the compiling of a pre-sentencing report, the
recommendation of an appropriate sentence and the giving of evidence before the
court;
(l) the mandatory assessment of a child as contemplated in
section 4A.".
Insertion of section 4A in Act 116 of 1991
4. The
following section is hereby inserted in the principal Act after section 4:
"Mandatory assessment of
arrested children
4A. Every child who is alleged to have
committed an offence shall as soon as possible but not later than 48 hours
after his or her arrest be assessed by a probation officer.".
Insertion of section 8A in Act 116 of 1991
5. The following
section is hereby inserted in the principal Act after section 8:
"Establishment of a probation
advisory committee
8A. The Minister may, in the prescribed
manner, establish and maintain a probation advisory committee to advise him or
her on matters regarding probation services in the country.".
Insertion of section 15A in Act 116 of 1991
6. The following
section is hereby inserted in the principal Act after section 15:
"Family finders
15A. Whenever a child is brought
before the court and the child's parents or guardians are not present at court,
an authorized probation officer may as a last resort designate a family finder
to trace the parents or guardian and to bring them to court in order to assist
the child in the case.".
Short title and commencement
7. This Act is
called the Probation Services Amendment Act, 2002.
MEMORANDUM ON THE
OBJECTS OF THE PROBATION SERVICES AMENDMENT BILL, 2002
OBJECTS
This Bill seeks to serve as an
interim measure to facilitate the transformation of the child and youth care
system and the proposed Child Justice Bill by amending the Probation Services
Act, 1991 (Act No. 16 of 1991),
hereinafter referred to as "the Act," by-
(a)
amending
the definitions of "probation officer" and "authorized probation
officer", so as to extend
the meaning thereof to include an
"assistant probation officer" and an "authorized assistant
probation officer" who will assist probation officers in the performance
of their duties;
(b)
inserting
the definition of "family finder" whose main function would be to
trace the parents or
guardian of a child who is being
prosecuted, so as to make them available to assist the child in court;
(c) introducing assessment, support,
referral and mediation services in respect of victims of crime;
(d) introducing crime prevention
strategies through the provision of early intervention programmes
including diversion services and
family group conferencing;
(e) providing for the establishment of
restorative justice programmes and services as part of appropriate sentencing
and diversion options;
(f) providing
for the reception, assessment and referral of an accused person and the
rendering of early intervention services and programmes, the investigation of
the circumstances of an accused person and the provision of a pre-trial report
on the desirability or otherwise of prosecution and the investigation of the
circumstances of convicted persons;
(g) providing
for the competency of a probation officer to recommend an appropriate sentence
or other options to the court and for the mandatory assessment of every
arrested child within 48 hours of his or her arrest; and
(h) providing
for the establishment of a probation advisory committee to advise the Minister
on matters with regard to probation services.
CONSULTATION
The Drafting Committees of the SA Law Commission for Child
Justice Legislation and the Review of the Child Care Act were requested to send
representatives to a consultative meeting with representatives from the
national Department of Social Development and from the Interministerial
Committee for Children at Risk. This
meeting was held in Cape Town in November 1998. Thereafter, a group of drafters
from the aforesaid group worked together to prepare a draft Bill, which was
presented to the Minister for Social Development on 18 December 1998. The MECs responsible for social development
in the provinces were also consulted.
Cabinet approved the introduction of the Probation Services
Amendment Bill in Parliament during January 1999 and the Bill was certified by
the State Law Advisors in February 1999. On 3 March 1999 the Portfolio
Committee on Social Development adopted the Bill. However, following an
intervention from the Ministry of Justice, the Bill was withheld on 17 March
1999. The Department of Justice proposed a single amendment which was agreed to
by the Department of Social Development and the State Law Advisors on 23 March
1999 (too late to be finalised during that session of Parliament).
During October 1999 the Department of Social Development was
informed that the Bill needed to be resubmitted to Cabinet for approval.
Further amendments to the Bill were then proposed and approved by roleplayers
and the national and provincial departments of Social Development.
The provisions of the Bill were also discussed and approved
at various probation advocacy group meetings attended by policy-makers in the
field of probation services and by provincial probation officers during March
2001. Provincial Departments of Social Development were also consulted at various
meetings during 2001 and approved of the Bill. During March and May 2001
further discussions were held with officials from the Department of Justice who
approved the Bill.
The provisions of this Bill were also discussed with
officials from the Department of Justice in order to ascertain the relationship
between this Bill and the proposed Child Justice Bill. It was found that there
are no conflicting areas between the two Bills. It is also important to note
that the Probation Services Act applies to children and adults while the Child
Justice Bill will apply to children only.
FINANCIAL IMPLICATIONS FOR THE STATE
The Department of Social Development has considered any
financial implications arising from the proposed Bill and the necessary
budgetary provision has been factored into the Medium-term Expenditure
Framework.
Provinces have been allocated funding through the One Stop
Early Intervention Business Plan during and for the period 2000/2001 in order
to employ assistant probation officers.
The provinces have already employed 33 assistant probation officers at a
cost of R990 000,00 per annum. It is foreseen that by the year 2004 at least 10
assistant probation officers will have been employed per province which amounts
to a total of 90 assistant probation officers at a total cost of R2 700 000,00
per annum.
PARLIAMENTARY PROCEDURE
The State Law Advisers and the Department of Social
Development are of the opinion that this Bill must be dealt with in accordance
with the procedure established by section 76 of the Constitution.