SUBMISSION ON THE CHILD JUSTICE BILL 2007 IN TERMS OF
GOVERNMENT
GAZETTE NO 23728 of 2002.
Introduction:
The Catholic
Institute of Education welcomes this opportunity to comment on the Child
Justice Bill
B49-2002 (January 2008 adapted version). This submission will provide some
general
comments and a table of technical and substantive amendments that we would
propose.
General
Comments on the Bill:
We welcome the
introduction of this Bill and are in agreement with the objectives set out in
the Bill.
However, the content of the Bill in many places does not seem to be in line
with the
stated
intention in the objectives. This Bill places a lot of power and responsibility
in the
hands of the
probation officer, which starts from the assessment all the way through
proceedings and
even sentencing. This is concerning as the focusing of responsibility into
one person is
likely to make them targets of corruption.
A probation
officer may conduct an assessment and decide on whether further actions will
take place.
These actions will increase the amount of work of the probation officer from
further
assessment; providing further reports on sentencing, conducting the sentence
and
regular
reporting to the court. If the probation officer simply pretends the child is
under 10, he
or she may in
terms of s7 (3) (a) (vi) in the Bill proceed to do nothing. The Probation
officers
may be further
incentivised to do this through bribes, which, when considering the onerous
tasks placed on
them by the bill, we would not be surprised if they took the opportunity to
turn a blind
eye.
The
terminology the ‘member of cabinet responsible for’ needs to be changed to the
Minister
of wherever
this appears in the bill. The duties and obligations imposed by this bill are
specific to
different departments and their Ministers and not to cabinet. Although cabinet
may
from time to
time discuss these issues, the inclusion of the term member of cabinet, exposes
the whole of
cabinet to legal challenges if something does not happen. An action can be
brought against
the whole of cabinet if delivery is not met.
We are
concerned with the large number of documents that need to be sent to
Parliament,
as there is no
remedy if these gazettes are held up in Parliamentary processes.
1. Comments on
the Preamble
We are
immediately concerned with the preamble which, while raising the issue that
black
children were
particularly affected by Apartheid seems to be pointing a finger at this
category
of children as
culprits of criminal activity. The wording is unfortunate and must be rectified
to
avoid this
impression.
We would there
propose that the sentence is changed to read
RECOGNISING
that before 1994,
of its children
the opportunity to live and act like children. Some children have
turned to crime
because of their circumstances.
2. Comments on
definitions
2.1 Child Care
Act and Childrens Act
The Child
Justice Bill refers to the Child Care Act 74 of 1983. This is problematic as
that Act
is about to be
repealed by the passing of the Childrens’ Act which has gone through
Parliament and
is waiting on the signature of the President. This affects the definitions of
“childrens court”, “placement facility”, “places of safety”
and “secure care facility”.
2.2 Definition
of Child
This is
problematic as the bill creates four variations of children. There is a
category of
children under
10, children 10-14, children 14-18 and two other categories of children 18-21
and those
16-18. The definitions of children used in the Bill are therefore not
sufficiently
covered in the
definitions section and cause confusion later on in deciphering which category
applies.
3. Comments on
Guiding Principles
We are
concerned with clause 3(d) which asks for cultural sensitivity. This is a
subjective
clause and is
difficult to determine the cultural values. It creates a situation where
different
rules will
apply dependent on the subjective choice of the authority in question. The
principle
needs to be
stated more clearly that the cultural values and beliefs of the child must be
respected,
where such values and beliefs are considered established practice amongst the
community the
child comes from. Culture should not be abused in the administration of
justice.
Clause 3(e)
calls for the procedures in this act to be conducted as speedily as possible.
This
is a valuable
guideline but allows for inefficiency by stating ‘as possible’. The general
principle
should be that procedures are conducted speedily in the best interests of the
child.
With the
current slowness of processing in the criminal justice system, the term
speedily as
possible may
not be good enough.
4. Comments on
Bill.
Clause 5 is
concerning as it does not work in the best interest of the child. While
procedures
for the more
serious offences need to be duly processed and appropriate to the alleged
crime, the
child is prejudiced in terms of the other charges. The courts should be guided
by
the best
interest of the child in all matters affecting the child and not by the
severity of alleged
offences. This
is especially concerning as it forces a judgment to be made on the way to
proceed without
the establishment of any guilt on the part of the child.
Clause 6,
which extends the age of criminal incapacity to ten (10), is problematic. In
the
Catholic
tradition, the age of reason is considered to be seven (7) years of age. The
extension of
this age may encourage criminals to exploit children under the age of ten (10)
who are more physically
able than seven (7) year olds to commit crimes. While we
encourage
leniency towards children up to the age of 10 the introduction of this increase
in
the age range
may not achieve the ends that are desired and could increase the vulnerability
of children. We
therefore strongly oppose this extension.
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Clause 7(3)
(a) (vi) is not an option that should be made
available. As stated above, this
would encourage
probation officers to escape from work, especially when the determination
of age is a
function that is left in their care.
Clause 11 and
other clauses need to be specific about the definition of the child. This
arises
out of the
earlier problem raised around definitions.
Clause 13(2)
(a) This is a problem as it refers to the soon to be
repealed Child Care Act.
Clause 16(4)
(c), this clause does not make a distinction between children aged 10-14 and is
in
contradiction with the rules that govern this specific group.
Clause 17(1)
(a) does not apply to children under the age of 10 in terms of this bill. This
should be
stated here to avoid confusion and future legal challenges.
Clause 19(2)
(b) should be removed. It is open to abuse, as the likelihood of finding the
parents of
children involved in criminal activity may be slight. This clause allows for
exceptions,
which can very quickly become the norm. It is simply not acceptable and against
the principle
of justice for children. It would be unjust to expect children to understand a
summons.
Clause 26(1)
(b) and (c) should only be done when the child can be separated from adults
and girls and
boy can be separated. This is a non-negotiable and should not be something
that is
considered where reasonably possible. It is not in the best interest of
children to be
kept with adult
alleged criminals and the clauses need to be specific about this.
We are opposed
to clause 27 in its entirety, as it seems to be guided by the reasonable
distance to the
court as opposed to the best interest of the child principle or the interests
of
justice. In our
law, a person is considered innocent until proven guilty and
while these
offences
require that the child is detained, a prison, police lock up cell and any other
long
term secure
facility is not acceptable. A child before their first appearance should be in
the
custody of
parents or other appropriate adults and not formal facilities.
We are opposed
to clause 30 in its entirety for reasons stated above in opposition to clause
27. The
placing of children into prison is contrary to the stated objectives of this
bill.
Clause 33
would be removed if clause 27 and 30 were scrapped, as it would become
unnecessary.
Clause 34(2)
(c) should be amended to require that a child is transported separately to
adults. The ‘if
reasonable possible’ statement must be deleted to ensure that appropriate
funding is
allocated to these services and that children are not kept in the current
system
because their
rights are not reasonably possible.
Clause 40(2)
(5) needs to highlight the best interest of the child principle and the
terminology
that the action
must not prejudice the child is inappropriate.
Clause 40(2)
(6) needs stronger wording. The probation officer cannot simply encourage
child
participation; they need to make sure that the child is able to participate.
Clause 48(8)
(a) the best interest of the children must be viewed and not the least
prejudice
principle.
Clause 51 is a
reference to the Child Care Act, which needs to be changed.
Clause 54(3)
is very onerous and will stop progress in the accreditation of diversion
programmes.
This would extend to programmes where a court specifically designs one for
the case. It is
also unclear what happens once the programme is before Parliament, would
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this require
that Parliament pass an Act for each programme it accredits. The function to
accredit
programmes should be left with the relevant department but should be subjected
to
Parliamentary
oversight in at least two meetings each year between the department and the
portfolio
committee.
Clause 61(3)
(b) involves too many parties that can become a problem. It seems that a large
group of
hostile individuals outnumbers the child and his /her parents. A balance needs
to be
struck to
ensure that the family conference approach works and does not become a second
hearing.
We strongly
support Clause 63(5)
Clause 64(i)
needs to refer to the Childrens Act
Clause 65(2)
creates a situation where a conflict is created between applying best interest
of
the child or
the applying the needs for the administration of justice. This is
unconstitutional as
the best
interest in paramount.
Clause 65(6)
needs more clarity. It is unclear who the independent observer is or where they
came from when
one considers that Clause 63(5) closes the proceedings to observers.
We recommend
that the period of 30 days be reduced in Clause 66(b) (ii) to 14 days to
encourage the
quicker processes.
We are
strongly opposed to Clause 67(2) as the detention of children for this long should
never be
allowed to happen. This is contrary to the intention of the Bill and would most
likely
be
unconstitutional.
Clause 72(2)
needs more clarity in terms of the “other person”. It is not clear in the Bill
who
the other
person is.
Clause 78(3)
confuses matters. The different categories of children could be reduced to
three
if this clause
where deleted. We would have laws applying to children under 10, children
between 10-14
and then children between 14-21. The additional category of children 16-18
prejudices
rights to children 14-18 by splitting the group.
Clause 82 is
unfair to poor children who are unable to afford legal representation as such
as
crucial part of
the processing of justice. The conditions in clause 83 should be extended to
poor child in
clause 82.
We are in full
support of Clause 94. Clause 96(2) needs to refer to the Childrens Act.
Recommendations
Clause Child
Justice Bill version Recommendation
Definition of
"children’s court" means the court
contemplated in
section 5 of the
Child Care
Act, 1983 (Act No. 74 of
1983);
"children’s court" means the court
contemplated in
section (insert) of the
Childrens Act
38 of 2005
Definition of
Placement
facility
“placement facility” means a facility
used for the
temporary placement of
children in
conflict with the law, who
have not been
sentenced and
includes a
place of safety and a
secure care
facility as defined in
section 1 of
the Child Care Act, 1983
(Act No. 74 of
1983), but does not
“placement facility” means a facility
used for the
temporary placement of
children in
conflict with the law, who have
not been
sentenced and includes a place
of safety and a
secure care facility as
defined in
section (insert) of the Childrens
Act 38 of 2005,
but does not include a
police cell,
lock-up or prison;
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include a
police cell, lock-up or
prison;
Clause Child
Justice Bill version Recommendation
Definition of
child
must be clearer
Various
references to children That the relevant categories
are
established and
then used in the wording
of the bill. Eg. Child under 10, child 10 -14
and child
14-18.
Definition of
Places of
Safety
"place of safety" means a place of
safety as
defined in section 1 of the
Child Care
Act, 1983 (Act No. 74 of
1983);
"place of safety" means a place of safety
as defined in
section (insert) of the
Childrens Act
38 of 2005
Definition of
Secure Care
facility
"secure care facility" means a
secure care
facility as defined in
section 1 of
the Child Care Act, 1983
(Act No. 74 of
1983);
"secure care facility" means a secure
care facility
as defined in section (insert)
of the
Childrens Act 38 of 2005
Preamble
RECOGNISING that before 1994,
given many of
its children the
opportunity to
live and act like
children,
particularly black children,
and that some
children, as a result of
circumstances
in which they find
themselves,
have turned to crime;
RECOGNISING
that before 1994, South
its children
the opportunity to live and act
like children.
Some children have turned
to crime
because of their circumstances
3 (d) Every child should be treated in a
manner which
takes into account his
or her cultural
values and beliefs.
Every child
should be treated in a manner
which takes
into account his or her
established
cultural values and beliefs.
3 (e) All
procedures in terms of this Act
should be
conducted and completed
as speedily as
possible
All procedures
in terms of this Act should
be conducted
and completed speedily in
the best
interest of the child
5 (1) In the
case of a child being charged
with more than
one offence which are
dealt with in
the same criminal
proceedings,
the most serious
offence in question
must guide the
manner in which
the child must be
dealt with in
terms of this Act.
The best
interests of the child must guide
the manner in
which the child must be
dealt with in
terms of this Act.
6 (1) A child
who commits an
offence while
below the age of 10
years does not
have criminal
capacity and
cannot be prosecuted
for that
offence, but must be dealt
with in terms
of section 8.
(2) The common
law pertaining
to the criminal
capacity of children
below 10 years
is hereby amended to
the extent set
out in this section and
section .
(1) A child
who commits an offence
while below the
age of 7 years does not
have criminal
capacity and cannot be
prosecuted for
that offence, but must be
dealt with in
terms of section 8. The
courts are instructed
to apply leniency in
cases of child
between the ages of 7 and
10.
(2) The common
law pertaining to
the criminal
capacity of children below 10
years is hereby
amended to the extent
set out in this
section and section .
7 (3)(vi) (vi) decide to take no action delete
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Clause Child
Justice Bill version Recommendation
13 (2)(a) A previous determination of age by a
magistrate
under this Act or under
the Criminal
Procedure Act or an
estimation of
age in terms of the
Child Care
Act, 1983 (Act No. 74 of
1983);
Child Care Act
reference must be
changed.
19(2)(b) In exceptional circumstances, where
it is not
possible to serve a summons
on a child in
the presence of his or
her parent or
an appropriate adult,
the summons must
be served on the
child and a
copy of the summons
must, as soon
as circumstances
permit, be
served on the parent or
appropriate
adult, each
acknowledging
service thereof by
way of
signature.
Delete clause
this should not be an option
26(1)(b) and (c) (b) placement in a police cell; or
(c) placement in a prison,
Insert (d)
this section must be read in
conjuction with
s 28(1)(a)
27 If, at any
stage before a child's first
appearance at a
preliminary inquiry
or a child
justice court, such child has
not been
released from detention in
police custody
and is charged(a) with an offence referred to in
Schedule 1 or
2, the relevant police
official must
give consideration to the
detention of
such child in a suitable
placement
facility, if such facility is
available
within a reasonable
distance from
the place where the
child has to
appear for a preliminary
inquiry and
there is a vacancy, or if
such facility
or vacancy is not
available, in a
police cell or lock-up;
or
(b) with an offence referred to in
Part I or II
of Schedule 3, pending
the child's
first appearance at a
preliminary
inquiry or child justice
court, the
station commissioner must
make
arrangements, in the
prescribed
manner, for the
placement of
the child in a prison
within a
reasonable distance from
the place where
the child has to
appear at or
before a preliminary
inquiry or
child justice court.
This clause
must be removed as it is not
in the best
interest of the child but the
convenience of
the location of inquiry
30 Subject to
section 31(5), a presiding
officer may
only order the detention
of a child
referred to in section 29 in
a specified
prison, if.
Delete clause
– Children should not be
kept in prison
under any circumstances
while waiting
for their inquiry or trial.
33 Where a
child, in terms of Parts 1 Delete clause if 27 and 30 are deleted
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and 2 of this
Chapter, has been or is
to be detained
and placed in a prison
or a placement
facility, the presiding
officer at a
preliminary inquiry or child
justice court,
as the case may be,
must at every
subsequent
appearance of
the child or at any
time
thereafter—
Clause Child
Justice Bill version Recommendation
34 (2)(c) Where a child is transported to or
from a
preliminary inquiry or child
justice court
the child must, if
reasonably
possible, be transported
separate from
adults.
Where a child
is transported to or from a
preliminary
inquiry or child justice court
the child must
be transported separate
from adults.
40 (2)(5) Where a child is accused with
another child
or other children, the
probation
officer may conduct the
assessment of
such children
simultaneously
if to do so would not
be to the
prejudice of any child.
Where a child
is accused with another
child or other children,
the probation
officer may
conduct the assessment of
such children
simultaneously if to do so
would be in the
best interest of any child.
40 (2)(6) The probation officer must encourage
the
participation of the child during
the assessment
process.
The probation
officer must ensure the
participation
of the child during the
assessment
process.
48 (8)(a) If the child in respect of whom the
holding of a
preliminary inquiry is
contemplated,
is a co-accused with
one or more
other children, a joint
preliminary
inquiry may be held if the
inquiry
magistrate is satisfied that
there will be
no prejudice to any of
the children
concerned.
If the child
in respect of whom the holding
of a
preliminary inquiry is contemplated,
is a co-accused
with one or more other
children, a
joint preliminary inquiry may
be held if the
inquiry magistrate is
satisfied that
this is in the best interest of
any of the
children concerned.
51 If it
appears to the inquiry magistrate
during the
course of a preliminary
inquiry that –
(i) a child is a child referred to in
section 14(4)
of the Child
Care Act, 1983
(Act No. 74
of 1983), and
it is desirable
to deal with
the child in terms
of sections 13,
14 and 15 of
the Child Care
Act, 1983; or
Reference to
Childrens Act 38 of 2005
54 (3) Before any diversion programme
contemplated in
section 57 may be
accredited by
the Department of
Social
Development, such
programme,
including all relevant
details, such
as the duration and
content
thereof, must be tabled in
Parliament for
approval prior to the
accreditation
thereof.
Diversion
programmes in terms of section
57 are subject
to review by Parliament bi
annually.
61 (3)(b) A family group conference may be
attended by the
following persons:
(i) The child
and his or her
parent or an
appropriate
adult;
There are too
many parties involved.
A family group
conference must be
constituted at
the discretion of the
probation
officer to ensure that relevant
Page 7 of 10
(ii) any person requested by the
child;
(iii) the probation officer, if he or
she is not the
family group
conference
facilitator;
(iv) the prosecutor;
(v) any police official;
(vi) the victim of the alleged
offence and any
other
support person
of the victim's
choice;
(vii) a member of the community
in which the
child normally
resides; and
(viii) any person authorised by the
family group
conference
facilitator to
attend the
conference.
parties are
invited to achieve the
outcomes of the
conference. The
probation
officer must ensure that there is
equal
representation of parties and take
consideration
of the safety of the parties.
Clause Child
Justice Bill version Recommendation
63 (5) At any sitting of a child justice court,
no person may
be present unless his
or her presence
is necessary in
connection with
the proceedings of
the child
justice court or unless the
presiding
officer has granted him or
her permission
to be present.
We strongly
support this clause
64 (i) a child
is a child referred to in section
14(4) of the
Child Care Act, 1983
(Act No. 74 of
1983), and it is
desirable to
deal with the child in
terms of
sections 13, 14 and 15 of
the Child Care
Act, 1983; or
Childrens Act
38 of 2005
65 (2) If a
parent or an appropriate adult
cannot be
traced after reasonable
efforts and any
further delay would
be prejudicial
to the best interests of
the child or to
the administration of
justice, the
child justice court may
dispense with
the obligation that the
child must be
assisted by a parent or
an appropriate
adult.
If a parent or
an appropriate adult cannot
be traced after
reasonable efforts and
any further
delay would be prejudicial to
the best
interests of the child, the child
justice court
may dispense with the
obligation that
the child must be assisted
by a parent or
an appropriate adult.
65 (6) Where a
child is not assisted by a
parent or an
appropriate adult and
such child
requests assistance, an
independent
observer may, in
exceptional
circumstances, be
appointed by
the presiding officer in
the prescribed
manner, to assist the
child.
Clarity is
needed on who this independent
observer is.
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Clause Child
Justice Bill version Recommendation
66 (b)(ii) and the child is in detention in prison,
a child justice
court may, prior to the
commencement of
a trial, not
postpone the
proceedings for a
period longer
than 30 days at a time,
unless
exceptional circumstances
exist.
and the child
is in detention in prison, a
child justice
court may, prior to the
commencement of
a trial, not postpone
the proceedings
for a period longer than
14 days at a
time.
67 (2) Where a
child remains in detention in
a prison –
(a) for a period of two years from
the date upon
which the child
was placed in
detention in a
prison; or
Delete
72 (2) The probation officer or other person
must complete
the report as soon as
possible but no
later than one
calendar month
following the date
upon which such
report was
requested.
The probation
officer or other authorised
persons must complete
the report as
soon as
possible but no later than one
calendar month
following the date upon
which such
report was requested.
78 (3) Notwithstanding any provision in this
or any other
law, a child who was 16
years of age or
older at the time of
the commission
of an offence
referred to in
Schedule 2 to the
Criminal Law
Amendment Act, 1997
(Act No. 105
of 1997) must, upon
conviction, be
dealt with in
accordance with
the provisions of
section 51 of
that Act.
Delete
82 Nothing in
this Act precludes a child
from being
represented by a legal
representative
of his or her own
choice, at his
or her own expense, at
an assessment
or a preliminary
inquiry if the
probation officer, in the
case of an
assessment, or the inquiry
magistrate, in the
case of a
preliminary
inquiry, consents thereto
as contemplated
in section 39(3)(d)
or 45(4),
respectively.
Nothing in
this Act precludes a child from
being
represented by a legal
representative
of his or her own choice, at
an assessment
or a preliminary inquiry if
the probation
officer, in the case of an
assessment, or
the inquiry magistrate, in
the case of a
preliminary inquiry,
consents
thereto as contemplated in
section
39(3)(d) or 45(4), respectively.
94 Any court
convicting a person who is
18 years or
older of inciting,
conspiring with
or being an
accomplice of a
child in the
commission of
an offence, must
regard the fact
of the child's
involvement as
an aggravating factor
in sentencing
that person.
We strongly
support this clause
96 (2) All
reform schools as defined in the
Child Care
Act, 1983 (Act No. 74 of
1983),
existing at the
commencement of
this Act, are
Reference to
Childrens Act 38 of 2005
Page 9 of 10
deemed to be
residential facilities for
purposes of
this Act.
Clause Child
Justice Bill version Recommendation
Definition of
residential
facility, 54
(2)(a), 54 (2)(b),
54 (4)(a),
77(4)(a),
88(4)(b), 88(5),
89(1), 90(1),
90
(2), 90 (5),
91,
92, 95(1),
95(4),
95(4)(b),
95(7)(a),
97(2)(a),
References to member of cabinet. Change to the Minister of....
Conclusion
We would like
to thank the committee for this opportunity to make comments to the Bill and
hope that you
find our recommendations both useful and acceptable.
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