Submission to the
Portfolio Committee on Justice and Constitutional Development: The Child
Justice Bill, 2007 version
By: Prof Julia Sloth-Nielsen
Senior Professor: Faculty of Law
University of the
1. Introduction.
I was appointed by
Minister Dullah Omar in 1996 to serve as a member of the South African Law
Commission Project Committee on Juvenile Justice. I thus played an essential
role in the conceptualisation and development of the Child Justice Bill
originally tabled in 2002. I completed a doctorate in juvenile justice in 2001,
teach a module on juvenile justice to final year LLB students (the first in the
country), undertake practical field work and research in juvenile justice and
publish this in national and international journals, have written a book on
juvenile justice in African context, and am an acknowledged international
expert in the field, having authored the UN Office for Drugs and Crime (UNODC)
“Juvenile Justice Toolkit” in 2006, and having undertaken many consultancies
internationally in the field, largely in Africa
(Mozambique, Somaliland, Zambia, etc).
I have been
contracted by the South African Department of Justice and Constitutional
development to train magistrates in every province in the juvenile justice
sphere in 2004, 2005 and 2006, and have worked with
I have in the past
launched and run my own diversion programme for juvenile offenders, which was
highly successful in reintegrating these township youth. I have intimate
hands-on knowledge of the workings of the South African criminal justice
system, including extensive experience in prisons (including serving as a
member of the National Council on Correctional Services from 1997- 2004). I am
currently preparing the UN manual on juvenile justice for the international
development of this sphere of activity.
I have been
involved in the drafting of the new Children’s Act 38 of 2005, many innovations
of which are not reflected at all in the 2007 draft Child Justice Bill. I have
also recently made a DVD on the Children’s Act (released on 25 January 2005).
I would like the opportunity to address the Portfolio Committee in
person. On 5 February 2008, classes commence at my University and I teach all
afternoon, hence my availability on that day is restricted to the morning.
This submission will address 5 specific themes: age and criminal capacity,
sentencing, legal representation of children, separation and joinder of
trials, and data collection. I am also available to brief the Committee on
the interface between the Children’s Act and this draft law, if this is
deemed desirable, and to screen the 20 minute DVD on the Act. |
2. Issues relating to age and criminal capacity
2.1 Background
At the time of
preparation of the South African Law Commission report on juvenile justice,
finalised in 2000, international law on criminal capacity and the minimum age
of criminal responsibility was uncertain and imprecise. The Convention on the
Rights of the Child had referred to the requirement that a minimum age be
established, which should not be too low, given children’s age and maturity.
However, the CRC Committee had in it’s concluding observations to States
Parties reports, repeatedly criticized countries whose minimum age was set at
lower than 10 years, and frequently commented that the minimum age should be no
lower than twelve years. Few, if any, comments had emerged at the international
level concerning the existence or retention of the rebuttable presumption that
South Africa inherited from Roman Dutch Law, and which prevailed in many former
British colonies, and indeed in the United Kingdom itself. The minimum age
issue, and the desirability of any rebuttable presumption of incapacity below a
certain age (meaning that the burden of proof to prove capacity would rest on the
prosecution), occupied our project committee intensively, to the extent that an
international seminar just on this topic was convened, and expert views also
sought from a wide variety of interested South Africans, from traditional
leaders to social anthropologists and magistrates themselves. The key
conclusions were:
ü That the
minimum age prevailing in South African law must be raised
ü That
proper expert evidence in proof of the capacity for younger children was a
pre-requisite to allowing any prosecution to proceed
ü That the
retention of the rebuttable presumption was only serve a useful purpose if
accompanied by such expert evidence presented in advance of the prosecution
case
ü That the
oft cited idea that ‘offenders are getting younger all the time’ or that ‘younger
children commit more and more serious offences’ had no basis in fact, but was
based on populist hype[1]
ü That
there were good reasons for setting a uniform minimum age for the sake of
consistency, but that a split age might accommodate the rural/urban divide (on
the basis that children in rural areas mature more gradually and are less
exposed to negative influence than those in urban areas.
It was
on this basis that the original Bill provided for a minimum age of 10, a
rebuttable presumption that a child lacks criminal capacity (until the age of
14), to be buttressed by formal proof, in every instance, should prosecution of
a child below 14 be instituted, and accompanied by a formal step in the
proceedings at which the child’s actual capacity to tell right from wrong and
act in accordance with that appreciation be established beyond reasonable
doubt.
Since
the 8 year period since the finalisation of the South African Law Commission
Report and draft Child Justice Bill, considerable developments have occurred in
international law and in domestic legal reform, including in
Based on
Concluding Observations and consideration of country reports over a much more
extended period than was the case when the South African Law Commission Project
Committee was conducting its research (the Convention on the Rights of the
Child has now celebrated it’s 18th birthday, and some countries have
undertaken their third reporting cycle), the CRC Committee issued General
Comment No. 10 in February 2007 (‘Children’s Rights in Juvenile Justice’), to
elaborate the nature of the State’s obligation.[2]
The
obligation is clearly stated, based on universal wisdom: the minimum age should
be set at 12 years and progressively raised from there where possible. Any age
below 12 is unacceptably low, and in contravention of the Children’s Rights
Convention. Further, a ‘spilt’ age such as is occasioned by the retention of
the rebuttable presumption for certain categories of children is discriminatory
(in contravention of Article 2 of the
CRC), it leads to children being treated differently according not just
to their age and maturity, but also according to the nature and quality of the
rebuttal evidence adduced by the prosecution.
Arguments
that the presumption serves as a form or protection for younger children in
conflict with the law, to ensure that proper inquiry is made into their
psycho-social make up, behaviour and cognitive understanding of the
consequences of their actions have been roundly dismissed, with good reason:
even in the UK it is now accepted that rebuttal of the presumption was not
taken seriously in the criminal justice system, and that it was simply a
formality, a pretence; this lead to it’s abolition in the 1990s.[3]
Since
the release of the draft Child Justice Bill in 2000, it is evident that cases
involving children younger than 12 years occur rarely. While there have been
several high profile cases involving young children, these are so exceptional
(estimated at less than 7 in as many years) as to warrant the conclusion that
stories that ‘offenders are getting younger all the time’ and ‘young children
commit more and more serious offences’ are just that: myth. Further, in those
cases where young children have been accused of serious offences, including 2
murder cases in the
One
motivation proffered in support of the minimum age of 10 proposed by the South
African law Commission was the need to ensure that children do not become prey
to unscrupulous adults, using the lack of legal responsibility as a pretext to
involve children in illicit activities. Of course, the concern remains that
children must be protected from being used by adults in the commission of
crime, such as where they are instrumentalised in drug trafficking, in
housebreaking and so forth. Indeed, ILO Convention 182 on the Worst Forms of
Child Labour, ratified by
This
provision reads:-
‘141.(1)No
person may –
(a)...
(b)...
(c)...
(d) use
procure or offer a child or attempt to do so for the commission of any offence
listed in Schedule 1 or Schedule 2 of the Criminal Procedure act (Act no. 51 of
1977)’
A
consequential amendment to the provision which creates the criminal offences
attached to the Act, section 305 of Act 38 of 2005 (the principal Children’s
Act) ensures that contravention of this section is explicitly proscribed. Hence
an adult can be independently prosecuted for this offence, in addition to any other offence he or she may be
liable to be charged with (eg conveyance of drugs, or housebreaking) as
perpetrator, accomplice or accessory.
It is therefore submitted that this
Portfolio Committee need not be concerned that any inducement to involve
children in the commission of offences will be created by the mere
establishment of a minimum age of criminal responsibility.
Also, the fact that the use of children in
offences has now been criminalised elsewhere, renders clause 94 (Involving
children in crime to be regarded as an aggravated circumstance) unnecessary and
vulnerable to constitutional attack as constituting an infringement of the
prohibition against double jeopardy – being liable to double punishment for the
same offence). It should be deleted.
2.2 The 2007 version of the Child Justice
Bill
2.2.1 Part 1
As is
clear from the discussion above, the portfolio committee should not legislate
in a manner contrary to international law and should provide that the Act
applies to all children between the ages of 12 years and 18 years. If the
rebuttable presumption is to be retained in any form at all, it should then
only apply to children above the minimum age of 12 years.
The
exception created by clause 4(2)(b) for persons between the ages of 18 and 21
years in specified instances to benefit from the provisions of the child
justice act is entirely consistent with the international trend, with the CRC
Committee specifically commending countries who allow for this in exceptional
circumstance in general Comment No 10.
The
provisions concerning which route is to be taken in the child justice system,
depending on the nature of the charges, and that, where multiple charges are
involved, the most serious of these dictates the course of action is
undermining of the individualisation of responses to the child, as required
by international law. Determination of
the processes and fora in which to address the child’s alleged offending should
be determined by assessment and, where necessary, exploration of the issue with
all stakeholders at a preliminary inquiry.
2.2.2 Part 2
(i)The
cross reference in clause 6(1) to ‘section 8’ is incorrect, and should refer to
section 7.
(ii)The
final part of clause 6(2) is missing. The section to which the reader is
referred must be added.
(iii) As
stated, the minimum age for criminal responsibility should be 12 years (and MACR (minimum age of criminal responsibility, not capacity), has now
become accepted in international law and practice as the way in which to refer
to this issue.
(iv)
Clause on 7(3)(a)(i) refers to clause 51, which in turn should be updated to
reflect the Children’s Act 2005, rather than the Child Care Act 74 of 1983,
which is to be repealed.
(v) Whilst being fully in agreement that any
referral of a child lacking criminal capacity (or rather legally below the
minimum age of criminal responsibility) should be predicated upon the child’s
need for services, rather than on requiring or assuming an acceptance of guilt,
the provision of clause 7(3)(b) is in my view inelegantly worded and likely to
fuel public perceptions that such children who are in conflict with the law are
‘getting away scot free’’ (though the use of the words ‘may not in any way
require a child to be held responsible’); a perception which the NGO sector do
not agree with and one with which the portfolio committee should be at pains to
avoid. It is also potentially factually incorrect, as children may very well be
held responsible in the loose sense of the word (eg through delictual claims
against their parents!)
A better formulation might be: ‘Any action
taken under paragraph (a) may not suggest or assume that the child is
criminally liable for the incident that led to the assessment.’
(vi) the
reference in clause 7(4)(a) to ‘an act committed with serious consequences’ is
most strange. Planning a murder, or attempted murder, constitutes a serious
event, but may not (as an incomplete act) have any consequences at all, let
alone serious ones. A seemingly minor incident maybe indicative of serious
emerging problems in a child life, as numerous studies have shown, without
their yet having serious consequences (eg inappropriate sexual contact at an
early age). Furthermore, the phrase is undefined, leaving scope for much
confusion about when a meeting needs to be convened, and when it does not.
These decisions are better left entirely to the probation officer, who can
assess the need for such a meeting on the basis of expertise rather than
linking it (in a roundabout way) to acts with serious consequences.
It is recommended that the phrase ‘who is
alleged to have committed an act with serious consequences’ in clause 7(4)(a)
be deleted.
(vii)
The insertion of a criminal justice role player – the magistrate – in a
non-judicial process (by requiring the submission of any decision of the
probation officer, including the decision to take no action in every petty
case, or the decision to arrange support services or go through the child’s
school) is unwarranted bureaucracy, and flies in the face of the exhortation in
article 40(4) of the CRC to deal with cases wherever possible without resorting
to judicial proceedings. If the decision is to be made an order of court, it is
by definition a judicial process, and not an alternative. Notably this
provision applies to every single instance of a child in conflict with the law
below the minimum age, not to high profile or serious cases only – the words
used are ‘must’.
It is
highly likely, too, that magistrates themselves will not want to be record
keepers and shepards of probation practice. The last question that arises is
what if the magistrate in his or her consideration of the plan disagrees with
it? Can he or she exercise a quasi- judicial function and quash it, alter it or
add to it? Or is the role merely to rubber stamp it (a role I do not think
magistrates would relish either!)
Clause 7 (7) is unnecessarily bureaucratic,
draws children below the age of criminal responsibility into justice processes
and undermines the functioning of the judiciary, and should be deleted in its
entirety.
2.2.3 Part 3 children aged 10 years or
older but below 14 years
The
central objection to the provisions in this part relate to the watered down
manner of proof of actual capacity of a child. As noted above, at the heart of
the recommendation of the South African Law Commission to retain the rebuttable
presumption at all (in the face of mounting pressure against the presumption,
including its ignominious demise in the very country whose colonial procedural
law South Africa inherited) was the belief (and, more to the point, concrete
proposals to this effect) that serious
and expert attention would be paid to the manner of rebuttal of the presumption
in each and every instance– so that it would serve as a ‘protective
mantle’. This is no longer the case, and there is consequently no support for
it’s retention at all; indeed it’s appearance in this guise on the statute book
is something of an embarrassment to those of us who have to confess that we
mooted the idea in the first place!.
How, and
on what basis, for instance, is the prosecutor supposed to decide whether to divert a child in terms of section 11(b)
whether criminal capacity is likely to be proven? Must he or she interview the
child? Au contraire, may he or she take this decision without speaking to the
child? Must anyone else – teacher, parent, neighbour – be consulted? Maybe the
prosecutor need only consult his or her law books?
Further
to this, the provision as it stands contemplates a judicial function for the prosecution,
since the ‘decision’ that criminal capacity is likely to be proven is,
unmasked, a quasi-finding of criminal liability, giving rise to the imposition
of compulsory measures (with consequences for non compliance) and with
deleterious long term effects (the child’s name potentially being held on the
diversion register for some years).
The
provisions of clause 10 are objectionable in numerous respects: notably, the
dilution of the requirement of
(a) a
compulsory evaluation of a child’s criminal capacity before prosecution of a
child in a child justice court
(b) at
state expense
(c) by a
suitably qualified person, which is not, it is submitted, a probation officer
as insinuated by the provisions of clause 10(2). The assessment report is, if
the matter is not to be diverted by the prosecution or at the preliminary
inquiry, simply not a suitable basis on which to base a judicial determination
as to a child’s cognitive, psychological and emotional development such as upon
which to premise a finding of guilt. The risk looms large that the suggestive
aspect of clause 10(2) will become the norm: seldom, if ever, will proper
evaluations be sought, and the rule will be to rely on the one or two line
recommendation of the assessment report (which does NOT have as it’s focus the
determination of criminal capacity at all, rather surveying the ecological
circumstances surrounding the commission of the offence in toto, of which the
child’s appreciation of wrongfulness is but one facet).
This
represents no advance on the present practical situation at all, and by
encoding it in legal provisions, it provides the stamp of approval of a
lacksadaisical attitude towards the real issue of children’s criminal capacity.
It is not in children’s best interest generally, or any specific child’s best
interests.
At
minimum, the provisions contemplated ion the 2002 version of the Bill should be
restored, to provide for compulsory evaluations of criminal capacity when matters
proceed to trial, in all instances where the rebuttable presumption applies.
However, there is evidence of an absence of will to ensure that proper
attention is paid to whether younger children are really bearers of criminal
capacity on a case by case basis, I urge the Portfolio Committee to raise the
minimum age of criminal responsibility to 12, as international law clearly
requires, and consider abandoning the mock protection of the rebuttable
presumption.[5]
3. Sentencing
I am aware that
other submissions from members of the Child Justice Alliance will address in a
comprehensive fashion the issue of sentencing, and therefore confine my
submission to certain key points.
3.1 Clause 78
This section no
longer meshes with the provisions of the minimum sentencing legislation
promulgated in 31 December 2007, and particularly clause 78(3) will need to be
substantially redrafted. Given that the Constitution provides that the
detention of children should be a matter of last resort and when imposed for the shortest period of time, the
imposition of minimum sentences upon children of 16 and 17 is in principle
objectionable, as the Supreme Court of Appeal found in the Brandt v S in
2005. It is recommended that the Portfolio Committee expressly exclude
children from the ambit of any minimum sentencing legislation, specifically the
Criminal Law (Sentencing) Amendment Act 2007, through an amendment effected by
the Child Justice Bill in schedule 6.
The possible
imposition of a sentence of imprisonment upon a child aged below 14 is also in
principle objectionable (see clause 78(4)(a)), and flies in the face of
accepted government policy that prisons are not suitable facilities for
children aged below 14 (see the 2005 White Paper on Correctional Services,
approved by Cabinet). As the law stands in present form, it would be possible to sentence a 10 year old to
imprisonment, which would make South African child justice law amongst the
most repressive in the world! There are in any event sufficient alternatives to
imprisonment to cater to the very few children below 14 who are convicted of
serious offences, and even then, recent experience has shown that children
below 14 years convicted of serious offences are successfully dealt with by
means of community based sentences (eg DPP v
P, 2006, in which the SCA confirmed a community based sentence with
appropriate conditions for premeditated murder.)
An express prohibition on the sentence of imprisonment for children aged
below 14 years should be drafted, as originally provided for by the South
African Law Reform Commission. [That a mirror provision prohibiting the
pre-trial detention in prison of children aged under 14 is a minimum
requirement goes without saying.]
The length of
sentences where the imprisonment of children is concerned (25 years according
to section 78(5)) is plainly absurd, this constituting the maximum period of
time that an adult would service before his or her case comes up for
consideration for release on parole (according to the Correctional Services Act,
and then in the case of a prisoner serving a sentence of life imprisonment),;
this is hardly a ‘discount’ for youthful immaturity and is arguably an explicit
contravention of the constitutional provision that detention of children should
be for the shortest period of time!
Moreover, experience and research since 1996 in the sentencing sphere
has shown that lifting the maximum tariff encourages more punitive sentencing
practices,[6]
so the mere suggestion that sentences are competent is likely to further their
use for child offenders!
It is therefore proposed that unless a realistic maximum (such as 10 or
15 years) can be agreed upon, no statement of any maximum sentence be included
in the Child Justice Bill.
The provisions of
clause 78(6) are, however, in accordance with good practice and in the best
interests of the child, and are welcomed.
4. Legal
representation (Chapter 10)
4.1 introduction
and background
The South African
Law Commission recognised, during the period in which the draft bill was being
formulated, that the delivery of legal aid services was undergoing radical
transformation, and predicated the proposals is put forward and ultimately
included in the tabled Bill of 2002 explicitly on this premise. At the time,
the justice centre model was in its infancy, and it was entirely unclear
whether, and to what extent, this new initiative would replace or be a
substitute for legal aid delivered under the judicare[7]
model prevailing at the time. In
addition, in the hangover days after transition from apartheid, many children
were still evidencing reluctance to utilise state sponsored legal aid, refusing
legal representation and preferring to conduct their own defence.
In the intervening
8 years, much has changed. The extent of development is detailed in a recently
completed report (December 2007) on the delivery of legal services to children,
commissioned by the African Child Policy Forum, a pan African organisation
aimed at furthering children’s rights and child policy on the continent, based
in Addis Ababa. The study is based on interviews with Legal Aid Board and
Justice centre staff, with staff at university legal aid clinics, and
practitioners in private practice, amongst others. Although not yet formally
released, data from the study[8]
is used with permission. It is argued that this information can assist the
portfolio committee to reformulate the provisions in the revised child justice
bill in order to match emerging practice.
4.2 Key findings of
the 2007 study on child legal representation
Unsurprisingly, the
study confirms that the main provider of legal services to children in the
justice system is the Legal Aid Board (LAB). However, new facts emerging concerns the extent of delivery of legal services to
children and the manner of such delivery. The study records that between April
and October 2007 – a 7 month period – 24,741 children were provided with legal
representation in criminal matters (see Table 1, reproduced from the study and
attached as an appendix). Moreover, these services were almost entirely
delivered by the LAB itself, through the establishment at each Justice Centre –
the study records that there are now 60 Justice Centre[9]
- of Children’s Units, staffed by professional attorneys with at least 5 years
experience, and furthered assisted by candidate attorneys. Specialist training
in child law is being provided, and it is recorded that improvements in access
and quality are fast diminishing children’s formerly negative perceptions of
legal representation.[10]
At the three one
stop child justice centres currently in existence[11]
- Mangaung,
An interesting
development showcased in the study is the extension of legal representation and
related services to arenas beyond the formal court room itself by LAB staff,
who have been undertaking ongoing monitoring of children in prison through
prison visits. They also have been conducting events at schools, and in
communities, to sensitise the public to the service offered to children and to
ensure that children are aware of their services.[14]
Part of the new direction is contained in the ‘LAB Business model: Children’s
Units’; it requires staff at these units not only to follow up cases involving
children in detention, ensure speedy conduct of bail proceedings, maintain
contact with IPVs (Independent Prison Visitors appointed by the office of the
Inspecting Judge of Prisons), ensure that investigating officers trace parents
or guardians, but further, to ensure that ALL
practitioners (ie including those in private practice) handling children’s
criminal matters are equipped to represent children and to provide them with
required support for their cases.[15]
As regards the
criteria for determining which children should qualify for legal aid at state
expense through the justice centre model, it is evident that the LAB has
adopted an expansive, rather than restrictive, approach to their constitutional
brief to provide representation to the indigent in order to avoid substantial
injustice. It is submitted that the
portfolio committee should be guided by the policy of the LAB, and not set
conditions for qualifying for legal representation at state expense that are
more limited than current (state) policy.
Although the 2002
Legal Aid Guide is silent as to whether different criteria to the ordinary
apply in respect of applications for legal aid submitted by child clients, the
criteria for the award of legal aid are assumed to be met of the case is to be
prosecuted in regional or high courts.[16]
In relation to district court trials, the Guide lays down requirements related
to which offences are likely to meet the requirements that the accused would,
if convicted, probably be sentenced to imprisonment, either with or without the
option of a fine, and, if granted the option of a fine, whether this is likely
to remain unpaid two weeks after the imposition of sentence (the elaboration in
practice of the substantial injustice test).[17]
The LAB will also provide legal representation in any case where it has been
ordered by a Court.
4.3 The provisions of the Child Justice Bill, 2007 version
4.3.1 Clause 81
Even in view of the
fact that private sector involvement in providing legal representation to
children is patently of less import than was previously the case, it is
submitted that it is entirely appropriate to bind legal representative to
child-friendly practice and standards. However, remedial sanctions consequent
upon practices which do not serve the best interests of the child (81(2)) can
be significantly strengthened by the addition of :-
·
A subclause requiring notification of the
head of the Justice Centre of malpractice, where the legal representative is
employed by such centre; and
·
A subclause providing for the possibility
of notification to the professional body concerning (the relevant Law Society)
in the case of private practitioner, in appropriate instances
Further
to this above, the formulation of the provisions contained in clause 84 are an
improvement over the version originally tabled.
4.3.2 Clause 82
The
international law requirement stipulates that legal representation should be
available/permitted from the commencement of the proceedings. This is evidence
not only from the provisions of article 40((2)((b)(ii) of the Convention on the
rights of the child, elaborated in par 49 and 50 of General Comment no 10
(Children’s Rights in juvenile justice) and article 14 (3)(b) of the
International Covenant on Civil and Political Rights (which
At the
time of the formulation of the draft Child Justice Bill, the South African Law
Commission were of the view that whilst legal representation at the preliminary
inquiry would have to be possible, in order to comply with constitutional
imperatives, waiting for legal aid decisions to be made might delay
proceedings, and prejudice children; further, the original provisions were
influenced by a prevalent concern that most lawyers, including the many briefed
by the LAB in the judicare model, would be ignorant of, or frustrate, access to
diversion – hence that their presence at a preliminary inquiry might actually
be undesirable.
This
situation no longer obtains for two reasons: first, knowledge of diversion
amongst juvenile justice practitioners is generally endemic, it having been
mainstreamed through training over a decade and a half;[18]
second, the bulk of legal representation to children is clearly being provided
for via the children’s units of the LAB, whose staff are fully appraised of
child justice developments, including the desirability of diversion. That
permanent staff will be allocated one stop child justice centres once these are
all established is testimony to the fact that the child’s legal representative
will be part of the one stop team, and should as a matter of course therefore
attend the preliminary inquiry.
Hence
the present formulation of clause 82 is too restrictive, requiring as it does
the permission of the inquiry magistrate for the child’s legal representative
to attend. There can be no doubt that the preliminary inquiry is a ‘proceeding’
within the ordinary meaning of the word, and that the child should be entitled
as of right to have his or her legal representative attend, without first
requiring permission.
In
addition, the current wording could be taken to mean that a state appointed
legal representative is not entitled to be present at all at a preliminary
inquiry, given that the ‘consent’ relates the
legal representative of his or her own choice, appointed at his or her
own expense. This could be taken to mean that no consent should be given to LAB
representatives (with the accepted principle of legal interpretation that
expressly stating one possibility is regarded as excluding the other). This is
surely neither desirable (given that the LAB is now the bulk service provider
in this sphere) nor constitutional, resulting as is does in discrimination
between children who can afford to hire their own lawyers and those who cannot.
At minimum, the last phrase in the clause
[consents thereto as contemplated in section 39(3)(d) or 45 (4)] should be
deleted. Further, the reference to ‘of
his or her own choice, at his or her own expense’ should be deleted to make it clear that any legal
representative as of right may attend the preliminary inquiry.
It is
arguable that an assessment is not strictly speaking a ‘proceeding’ and that
the considerations outlined above do not apply. Hence, I would suggest that the
consent requirement be maintained insofar as a legal representatives attendance
at assessment is concerned, as this accords with standard professional social
work practice regarding privacy and confidentiality of interviews.
4.3.3 Clause 83
This
clause is intended to spell out the criteria for meeting the substantial
injustice test for the award of legal aid. The current criteria, as detailed
above, were developed in 2002 by the Legal Aid Board subsequent to the preparation by the South African law Commission
of the draft child justice bill. There is now a disjuncture between the two
sets of criteria, which may in practice lead to considerable problems. In
particular, the present provision does not refer to the likelihood of a sentence of imprisonment at all (the cross reference
to section 77 in clause 83(1) entails a reform school sentence, which, as
mentioned above, must be altered to reflect the new wording of the Children’s
Act). There is also no reference to the possible imposition of a fine which, if
not paid, may result inadvertently in a child’s detention, which the LAB lists
as an existing criterion. It remains totally unclear why 16 and 17 year olds
who are in detention awaiting trial – presumably charged with serious offences
– should not warrant legal representation at state expense, which they
undoubtedly do under present legal aid policy. Existing policy, taken for
granted, that children (and indeed adults) appearing in regional and high
courts automatically qualify for legal representation should be spelt out: the
risk, otherwise is that this provision might be regarded as superceding prior
policy commitments, resulting in a much less favourable dispensation for
children in the future.
In
short, these provisions diminish current access that children have to legal
representation at state expense, and are hence constitutionally suspect as a
retrogressive measure. Moreover, they appear to entrench a pernicious form of
discrimination (notably clause 83(1)(b) which can easily argued to be unfair
terms of section 9 of the Constitution; nor is it rescued by the limitations
clause in section 36, should this be called into the equation, given that these
children are current beneficiaries of legal representation at state expense,
and that goal of the limitation is not reasonable and justifiable in an open
and democratic society.
It is recommended that the portfolio
committee reappraise these criteria in consultation with the LAB, and elaborate
them more precisely to match existing practice.
At minimum, a child facing a sentence
involving deprivation of liberty must be provided with legal representation at
state expense, as well as all children facing charges in regional and high
courts.
4.3.4 Clause 84
This
clause is, as noted above, of far less importance than it was at the time that
the South African Law Commission drafted the Child Justice Bill, for the simple
reason that the LAB is working hard, and with success, to ensure that suspicion
of their services amongst children diminishes, and that fewer children refuse
legal aid. However, the need for the section does remain. It is far more
truncated than the original version, leaving out entirely the actual role that
the replacement appointed to assist the Court will play. Until the Rules of
Court address this, it is not possible to offer further comment.
It is recommended that the Portfolio
Committee require the Rules Committee of the Courts to prepare draft rules (see
further section 89) such as to elaborate the role that the substitute legal
representative will play in child justice trials, and to permit public comment
on these provisions prior to their adoption.
4.3.5 Clauses related to legal
representation in the 2002 version not included in the 2007 version
The main
difference between the South African Law Commission’s vision and the Bill now
tabled relates to the accreditation of legal representatives to serve as
defence layers in children’s cases, and the minimum period of 12 months
experience for candidate attorneys to have served before being permitted to
represent child. These provisions were proposed for good reason: to counter
prevailing ignorance amongst practitioners about defending children; to act as
a stepping stone to the delivery of in service training and information
concerning child justice development; and to prevent juvenile courts, as they
so often are, becoming the teething ground for the most junior appointees.
While the notion of accreditation, a decade on, no longer seems feasible (from
the perspective of the legal profession and also because of the dramatically
changed nature of legal aid service delivery to children that has occurred, as
the Redpath and Sloth-Nielsen study shows), the legal profession are not in any
way exempt from the international law requirement of specialisation in child
justice matters, as set out eloquently in General Comment no 10 of the CRC
Committee.
It is suggested that section 95 (1) be
amended to as to include a provision empowering the Cabinet member responsible
for the administration of justice to gazette, every 5 years, a national policy
concerning training and specialisation in child justice, which policy should
include members of the legal profession.
5. Separation and joinder of trials (
adults co-accused with children or a child)
This is
a thorny issue insofar as it affect criminal justice practice in several ways –
eg if trials are separated where does
the docket go, and can adults not use the absence of a child co-accused to
escape with impunity? These and other considerations, such as the emerging good
practice of de facto separation of trials at one stop child justice centres did
occupy the minds of the South African Law Commission project committee, and
were debated at length with relevant stakeholders, such as the National
Prosecuting Authority.[19]
In order
to promote the maximum degree of integrity of a specialised and separate system
of justice for children, it was proposed that a presumption of separation
prevail, which can be overturned through a simple application by any party (see
section 57(1) of Bill 49 of 2002). The test for rebuttal was indeed hardly
onerous: it had only to be adduced to be in the interests of justice to permit
joinder. This arrangement has obvious benefits to children, some of whom may
have been used by those same adults in the commission of crime (CUBAC) and who
may then conceal this due to the presence of the adult at the trial. Further,
separation can promote the possibility of diversion during the course of
proceedings, which would be far less likely to occur whilst an adult co-accused
was still before the court. Morevoer, once a significant number of children are
accommodated in one stop child justice centres, geographically separate from
conventional criminal courts, separation will not only be the ideal, it is
virtually inevitable (unless the one stop child justice centres are to be
populated by adult offenders!)
It is
submitted that the present version of the Child Justice Bill is vague on the
question of separation of trials, more so in that it is mentioned only
obliquely in clause 63(2), insofar as that clause contemplates the possibility
of joint trials. Far more concrete direction should be given to the prosecution
services in this regard, and it is proposed
that clause 57(1) be reinserted as a guideline in this regard.
6. Data
I have
been working in the child justice sphere at an academic and practical level for
more than 15 years. As members of the portfolio committee would know full well,
the world has undergone a sustained, pervasive and world changing technological
revolution during this time. Indeed,
General
Comment No. 10 makes the point that data collection, research and impact
evaluation are crucial. The UNICEF indicators on juvenile justice (2006) count
‘number of children deprived of their liberty’ as one of the core indicators
(out of the fifteen).[20]
This includes children in police cells, in places of safety or secure care
facilities, in reform schools, in mental facilities, in child and youth care
centres (the new terminology of the Children’s Act, 38 of 2005), and in prisons
(in respect of which we do have excellent, quality and disaggregated
information for the Department of Correctional Services and have had all along.
The
requirement to collect decent data should not be left in the vague form they
are sort of provided for in clause 95, and left to regulation and should
contained in the principle Act. All concerned Departments should be required by
law to keep such statistics as are relevant to determining the number of children
who come into contact with the system, the length of time they spend in it,
the flow of cases (eg diverted out of the system), and on convictions and all
forms of sentence. The primary
responsibility for systems information, in the first instance, should rest with
the Department of Justice (as is
largely the case elsewhere: see for instance
[1] This was later born out in a study conducted amongst magistrates in 9 magisterial districts in the Western Cape, published as Sloth Nielsen, J and Mayer, V “Children and Criminal Accountability: Views from the Bench’ in Burman, S (ed) ‘’The Fate of the Child: Legal decisions about children” (Juta, Lansdown, 2004). The respondents said, in short, that they seldom if ever saw children aged below 14 in their courts, and that were such children to appear, it was because the prosecutor was unaware of diversionary possibilities or had failed to pick up on the true age of the child in time (ie before first appearance). They further indicated if a child younger than 14 did appear, they would stand the matter down to enable the prosecutor ‘to sort it out’ without resorting to judicial proceedings.
[2] This submission cannot address all the matters raised by general Comment no 10, such as the requirement that provision in law be made for review of all diversion decisions. It is recommended that the Justice Portfolio Committee researcher be requested to study this Comment and extract a full list of required legislative measures, and draw a comparison to the provisions of the 2007 draft.
[3] See Sloth-Nielsen, J. Chapter 5: Age and Capacity in ‘ The
influence of international law on
[4] See Children’s Rights Project and TECL ‘Children Used by Adults to Commit offences (CUBAC): Final report on Pilot Programme Implementation’, April 2007, available at www.communitylawceentre.org.za. See too Sloth-Nielsen, J ‘Report on the ILO/TECL project on children used by adults to commit offences as a Worst Form of Child Labour 2004-2007: Good practice and Lessons learnt” (impact evaluation submitted to ILO/TECL, copy on file with the author).
[5] Other developing countries, including those in Africa, who have raised their minimum age of criminal responsibility to 12 or higher include: Uganda, Ghana, Nigeria, Mozambique, and The Gambia, to name a few.
[6] Giffard C and Muntingh, L The effect of sentencing on the size of the prison population‘’ (2006) at www.osf.org.za.
[7] The Judicare model rests on outsourcing, on a case by case basis, the provision of legal representation to attorneys, and sometimes counsel, in private practice.
[8] Redpath J,. and Sloth-Nielsen, J ‘Realising children’s rights to
legal representation and to be heard in judicial proceedings: emerging good
practice,
[9] Each centre serving between 10 and 20 courts.
[10] Redpath and Sloth-Nielsen, p24.
[11] The further roll out of one stop child justice centres was halted by the Department of Justice due to the slow progress of the Child Justice Bill in parliament, and hence despite initial plans for far more such centres, developments have stultified.
[12] Redpath and Sloth-Nielsen, p 23.
[13] This figure includes salaries and related costs, such as additional administrative staff, office rental, telephones and sundries. See Redpath and Sloth-Nielsen p 29.
[14] Redpath and Sloth-Nielsen, p23.
[15] Redpath and Sloth Nielsen, p25.
[16] Redpath and Sloth-Nielsen, p 24.
[17] Redpath and Sloth Nielsen, p 24.
[18] See Sloth Nielsen, J ‘A short history of time: charting the contribution of social development service delivery to enhance child justice 1996- 2006’ 2007 vol 43(4) Social Work/Maatskaplike Werk 147 – 166.
[19][19] See the detailed discussion at
[20] See Sloth-Nielsen, J ‘New international law on juvenile justice’ presentation at the expert meeting on Harmonisation of child law in Eastern and Southern Africa, May 2007, available on the website of the African child policy forum <wwwafricachildforum.org> (last accessed 25 January 2008).
[21] It is a source of great concern - and some irritation- that many and varied demands are placed in the 2007 draft on the Departments of Social Development – eg concerning record keeping on diversion, for instance, whilst the Department of Justice ( and National Prosecuting Authority, even though they have recently been able to produce reasonable data) escape virtually completely unscathed, exempt even from the legal obligation to disaggregate the numbers of children tried in district courts from those tried in regional and high courts!