SUMMARY OF COMMENTS ON THE CHILD JUSTICE BILL, 2002
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Clause no./ Theme |
Commentator |
Comment |
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Assessment |
The
Centre for Child Law (Dr Skelton) CJB 6 Department
of Social Development (UCT) CJB 8 Child
Justice Alliance CBJ 13 Childline
CJB 3 CSIR CJB 7 Community Law Centre (UWC) CJB11 NICRO CJB 17 SAHRC CJB 19 RAPCAN CJB 9 |
1.1 Clause 35(b): It is nonsensical to say that children in
need of care may be assessed, because it is the very assessment process that
will determine whether the child is in need of care. 1.2 All children must be assessed within 48
hours of arrest. Assessment is a
necessary service that must be provided in order to assist officials to make
good decisions. This submission is
subject to clause 48(5) that allows for the possibility that assessment can
be dispensed with in cases where it is in the best interest of the child to
do so. 1.3 Agrees with other submissions that the
practical problem of an insufficient number of probation officers can be addressed
by allowing for other qualified persons to do assessments as well. 2.1 The Bill provides a narrow
definition and purpose of assessment. The
definition of “assessment” in the Probation Services Act, 1991, should be
adopted which states that assessment is “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 factor”. 2.2 Due to the shortage of social workers and
probation officers in 2.3 Clause 35 should be amended to provide that
all children can be assessed by a probation officer or “other suitably
qualified professionals” in order to ensure that no groups of children are
excluded, based simply on the immediate nature of the offence or age of the
child. 2.4 There is a danger in excluding certain
child offenders from assessment, based strictly on the chronological age of
the child. A child of 14 years may,
for instance, be functioning at a cognitive and psycho-social level of a 10
year old and it is this type of child which is often used by adults to commit
crimes. 2.5 Clauses 39 and 40 should be less prescriptive
about who may attend assessments.
Endorses CJA submission on this matter. 3.1 All children should have
access to assessment, preliminary inquiries and diversion. Being considered for diversion does not
mean that it will be appropriate in every instance. 4.1
An assessment should not only be conducted by a probation
officer. Broadening the scope of
persons who can undertake assessments will alleviate the pressure on the
Department of Social Development to make sufficient probation officers
available to undertake assessments. The definition of “assessment” should
also include ‘other suitably qualified persons as prescribed’. These could
include retired educators, persons with psychology (honours) qualifications,
etc. In addition, the definition should provide some insight into the
assessment process. The definition of “assessment” should read as follows: “assessment” means a process of
evaluation, by a probation officer or a suitably qualified person, of a
child; the child’s development and competencies; the child’s home or family
circumstances; the nature and circumstances surrounding the alleged
commission of an offence by the child and its impact upon the victim; the
intention of the child to acknowledge responsibility for the alleged offence,
and any other relevant circumstance or factors”. 4.2
In terms of the 2002 version of the Child Justice Bill all children would be assessed.
However, the 2007 version of the Bill excludes
certain children from being assessed, namely children 14 years and older who
are charged with offences contained in Part 1 of Schedule 3 and items 2, 5
and 6 of Part 2 of Schedule 3. The
effect of clause 35 of the 2007 Child Justice Bill is to exclude certain
children from the application of certain procedures and processes of the Bill,
based on the age of child and the nature of the offence with which the child
is charged or is alleged to have committed.
CJA submits that all children who are arrested, summonsed or warned by
police, should be assessed, irrespective of age or offence. 5.1 All
children, regardless of the crime committed and their age must be assessed by
a probation officer or suitably qualified professional. 5.2 The
assessment should take place in a place that facilitates privacy and
confidentiality, without compromising the safety of the person conducting the
assessment. 5.3
The
child should be able to make reasonable requests regarding the presence of
persons at the assessment, other than parents and caretakers. 6.1 As a member of CJA, the
CSIR supports the submission of the CJA and wishes to emphasise that one of
the guiding principles of the Bill must that all children must be assessed. 7.1 Whereas assessment applied to all children in terms of the
2002 version of the Child Justice Bill, it is great concern that assessment
services will not be available to all children, based on the category of offences
in terms of the 2007 version of the Bill.
Assessment procedures will assist in determining whether a child is a
victim (of an adult in the commission of an offence), as well as a
perpetrator. Assessment will also
assist to determine the best possible intervention for the child. Assessment
services should be available for all children accused of committing crime. 8.1 NICRO submits that all children who are
arrested, summonsed or warned by police should be assessed, irrespective of
age or offence. Assessment is a necessary process that if applied and used
appropriately will provide assistance to functionaries in the criminal
justice system in deciding the best way to deal with children. While NICRO is aware of the challenges
around resources, the problem should be addressed and not accommodated. 9.1 The best interests of the child requires an
individualised analysis of the child’s needs, which can only be achieved
through an assessment. The decision to
assess a child should not be based on the charge. Clause 9 should be modified so that all
children below the age of 14 years can be assessed. Persons who conduct assessments should not
be limited to probation officers but should include other suitably qualified
persons. 10.1 The Bill constitutes a step backwards from
current practices: Many aspects contained in the Bill
are already being applied in practice, eg the Probation Services Act, 1991,
makes provision for the assessment of all children, which is applied in
practice (not only arrested children).
The Bill now excludes certain children from assessment. The Department of Social Development has
developed minimum standards for diversion programmes and does not exclude any
child from the possibility of diversion, which the Bill now does. |
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Preliminary
inquiry |
The
Centre for Child Law (Dr Skelton) CJB 6 Community
Law Centre CLC (UWC) CJB 11 RAPCAN
CJB 9 Legal
Aid Board CJB 22 |
1.1 Every child must appear before a
preliminary inquiry. The preliminary
inquiry takes the place of a first appearance in court, and involves the same
role players who would usually be there (save for the probation officer, but
there is a provision allowing it to proceed in the absence of the probation
officer if to do so would prevent delays and be in the best interests of the
child – clause 45(3)(b)). The CLC
supports the CJA in arguing that other suitably qualified practitioners
should be allowed to do the work undertaken by probation officers - to address
resource problems. The preliminary
inquiry is a unique and different way of working at a first appearance,
rather than being seen as a completely new process with different role
players. 1.2 The CLC supports the inclusion of chapter 6
– prosecutor diversions. 2.1 The fact that certain children are excluded
from the preliminary inquiry based on their age and offence category in the
2007 version of the Bill is of great concern as adults use children to commit
crimes, regardless of their age and such use extends to all types of
offences. Therefore for the victims
of such exploitation to benefit from these interventions, restrictions on the
application of this procedure must be removed. 3.1The chapter of the Bill dealing
with the preliminary inquiry no longer sets out the objects of a preliminary
inquiry which the 2002 Bill did. The
Bill should re-instate these objects. 3.2 Clause 44 should be adapted to make
provision for a preliminary inquiry in respect of every child before plea. 4.1 Legal representatives should be included
amongst the list of persons entitled to attend. It is also stated that a legal
representative should be entitled (but not obliged) to attend an assessment
although it is further acknowledged by LAB that there may well be resource
implications in respect of an assessment.
4.2 Any evidence led or admissions made during
a preliminary inquiry should not be admissible in evidence at the main trial
and a proviso to this effect must be inserted. Also, it is important that a properly
formulated charge sheet should be represented at a preliminary inquiry so
that the child knows what he/she is supposed to acknowledge responsibility
for. |
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Diversion |
The
Centre for Child Law (Dr Skelton) CJB 6 Childline
CJB 3 Community
Law Centre (CLC) (UWC) CJB 11 NICRO
CJB 17 Legal
Aid Board CJB 22 SAHRC
CJB 19 RAPCAN
CJB 9 Child
Justice Alliance Driver Group CJB 13 |
1.1 Diversion should not be restricted in terms
of certain offences in the legislation, but it should be the prosecutor who
should decide on which cases to divert, subject to prosecutorial
guidelines. This submission is based
on the argument that the prosecutor currently decides which cases to divert
for both adults and children, based on prosecutorial guidelines. By excluding certain offences in the Bill
(not leaving it to the discretion of the prosecutor in terms of their
guidelines) it will result in a situation where children will not be able to
be diverted in cases where there is no legal bar to adults being diverted. 2.1 The exclusion of certain children from
diversion is both discriminatory and inappropriate, for example the exclusion
of children over the age of 14 years who have committed certain crimes such
as sexual crimes as provided for in certain of the schedules contained in the
Bill. Clause 11 (e) should be deleted
from the Bill as well as clause 16(2)(a)(ii), and (3)(c) and clause 57. Diversion should be considered for any
child, regardless of age and offence. 2.2 The
duration of the child’s attendance at a diversion programme should be
determined by the child’s need for assistance and rehabilitation. The prescribed period may be too brief for
a child with a persistent behavioural difficulty. 2.3 It is
recommended that the definition of “assessment” be expanded to include
“assessment means assessment of a child and his/her family and context by a
probation officer or suitably qualified person”. The words “as contemplated in Chapter 5”
should be removed to ensure that this definition applies wherever assessment
is mentioned. 3.1 The
Child Justice Bill seeks to limit the possibility of diversion, based on age
or offence category. Diversion should be possible for all children and the
prosecutor should make the decision whether diversion is appropriate for a
particular child, based on the child’s individual needs and the circumstances
of the case. 4.1 NICRO strongly objects to the exclusion of
children from the possibility of diversion,
based on age and the type of offence they are charged with. 4.2
NICRO further objects to the allocation of a maximum time period related to
diversion options. Children do not
respond the same to behavioural interventions, some will take longer than the
others. The Bill should rather be
providing the minimum period rather than the maximum. It is recommended that time period for a
level 1 option should not be less than 3 months and level two diversion
option should not be less than six months.
If the child does not respond the time may be increased through a
court order. 5.1 The LAB is concerned that the child must
acknowledge responsibility for the offence before diversion can occur. [The requirement that a child must
acknowledge responsibility as contemplated in clause 50(1)(a)] This may contravene the presumption of
innocence. The primary responsibility
should be on the legal representative who must ascertain this during
consultation. 6.1 Diversion should not be treated as a
criminal offence and used in future criminal matters during sentencing, in
particular where the child commits two different offences. The Bill should be modified to state
clearly that a child can be diverted more than once. This is in the best interests of the child. 7.1 Clause 50(1) excludes many children from
diversion, a backward step, since current practice allows all children to be
considered for diversion, an exclusion which does not apply in respect of
adults. This does not make sense,
particularly in the light of SA’s international obligations under the
Convention of the Rights of the Child and section 28 of the Constitution,
which promote the best interests of children and provide special protection
to children in trouble with the law.
This impacts negatively on crime prevention and is contrary to the
objects of the Bill, exposing children to the adverse effects of the formal
criminal justice system. 7.2 Clause 50(1) should be adapted to remove
the reference to clause 11(c), making it possible for all children to be
considered for diversion. 7. 3 Clause 57 should be deleted,
that is the diversion of certain sexual offences cases where the offender is
below 14 years. 8.1 The Child Justice |
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Bifurcation (age and
offence differentiation) |
The
Centre for Child Law (Dr Skelton) CJB 6 Child
Justice Alliance CJB 13 RAPCAN CJB 9 |
1.1 The system should not be bifurcated or
divided into streams on the basis of the offence category with which the
child has been charged or based on the age of the child. Although it makes sense to treat children
below 10 and children between 10 and 14 differently, there is no logic in
treating 14 and 15 year olds different to 16 and 17 year olds. CLC fully supports the submissions of CSPRI
and CJA. 2.1 The Bill displays a division or split approach
to children. The Bill excludes certain
children, based on their age or offence, from certain processes and
procedures. This was never the
intention of the SALRC or the SA Government when the Bill was originally
introduced into Parliament and marks a significant change in policy. 2.2 This bifurcation will frustrate the aims
and objectives of the Bill and is, in fact, discriminatory, based on age and
in certain respects unconstitutional.
3.1 Treatment of 16 and 17 year old children: This category of children do not
have access to many of the protection measures in the Bill to ensure that
their rights are upheld, eg access
to legal representation (clause 83(1)(c), appeals and reviews (clauses 85(1)
and 86(1)) and expungement of criminal records (clause 88). The targeting of this category of children
is without foundation and is irrational, especially in legislation which is
intended to promote and protect the rights of children and promote public
safety. |
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Age and
criminal capacity |
Prof Sloth-Nielsen (UWC) CJB 12 Childline CJB 3 NICRO CJB 17 SASPCAN CJB 25 Heidi Sauls CJB 2 SAHRC CJB 19 Southern African Catholic Bishop's Conference CJB 21 |
1.1 The original Bill provided for a minimum
age of 10 years, a rebuttable presumption that a child lacks criminal
capacity between 10 and 14 years, but since the finalisation of the SALRC’s
Report considerable developments have occurred in international law and in
domestic legal reform, including in 1.2 The Committee on the Rights of the Child
recommends that the minimum age should be set at 12 years and that the
“split” age such as is occasioned by the retention of the rebuttable
presumption for certain categories of children is discriminatory. It leads to children being treated
differently according not only to their age and maturity, but also according
to the nature and quality of the rebuttal evidence adduced by the
prosecution. 1.3 Since 2000, it is evident that cases
involving children younger than 12 years occur rarely and where they do occur
those matters are diverted with the full cooperation of the NPA. 1.4 The Bill should apply to all children
between the ages of 12 and 18 years and if the rebuttable presumption is to
be retained, it should then only apply to children above the minimum age of
12 years. 1.5 The
Bill should make reference to “minimum age of criminal responsibility” as
accepted in international law and not capacity. 2.1 The age in clause 6 should be increased
to at least 12 years, in line with recommendations of the United
Nations Committee on the Rights of the
Child, namely that a minimum age of criminal responsibility below the age of
12 is considered to be internationally unacceptable. 3.1 In support of recommendations made in other
submissions on the age of criminal capacity, NICRO submits that one of the
important factors to be taken into account in determining the age of criminal
capacity is brain development. Based
on scientific and medical research, brain development starts at the age of 12
years and stops at the age of 22 years. 4.1 SASPCAN is concerned that the age of
criminal capacity has been set too low.
The minimum age for criminal capacity should be set at 12 years, given
the injunctions from the international law (UNCRC, (Beijing Rules), the
evidence from research and other African countries (African Charter on the
Rights and welfare of the Child (ACRWC). 5.1 Based on the commentator's preliminary
research findings, as well as her observations and discussions with children, aged younger
than 14 years, many seem to have the ability
"to form criminal capacity" and "intent'". It is therefore idealistic to perceive that
children are not able to intentionally perpetrate a criminal or violent act. 6.1 The UN Committee on the Rights of a Child
has encouraged countries to set the minimum age of criminal capacity at 12
years as the absolute minimum age and to continue increasing it to higher age
level. SAHRC therefore recommends
using this Bill as an opportunity to follow the Committee’s recommendation in
advance of SA’s next report. SAHRC
would like to commend the inclusion of the 18 year to 20 year olds in Bill as
this is in line with the recommendations of the UN Committee on the Rights of
the Child. 6.2 Children
who are 10 years and older but below
14 years should rather be treated as children under 10 years of age until the
State proves criminal capacity. 7.1 Although the SACBF originally welcomed the
provision raising the age of criminal capacity for children from 7 to 10
years, it is now concerned about this age group (7-10 years) who may, due to
their perceived immunity from prosecution, be rendered vulnerable to
exploitation. Such children may be at risk and be used by adults to commit
crimes. |
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Preamble |
Catholic
Institute of Education CJB 18 CSIR
CJB 7 |
1.1 While the preamble raises the issue that
black children were particularly affected by Apartheid it seems to be
pointing a finger at this category of children as culprits of criminal
activity. This wording should be
amended. The following changes are
proposed: “Recognising that before
1994, 2.1 CSIR proposes that an additional paragraph be
inserted in the preamble: “…promotes a safe |
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Clause 1 |
Restorative
Justice Centre CJB 4 Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 SAHRC
CJB 19 Childline
CJB 3 Legal
Aid Board CJB 22 |
1.1 Definition of “restorative justice”: The definition in the Bill (which is the
same as in the Probation Services Act, 1991) is inadequate and should be
updated, in line with international thinking.
The Centre, however, acknowledges that there is no single definition
that has become universally accepted. It
recommends the following: “Restorative
justice is an approach to justice that seeks to involve, to the extent
possible, those who have an interest in a specific offence (particularly victims,
communities, the child offender and such child’s family members) and to
collectively identify and address harms, needs and obligations, in order to
heal and put things as rights as possible.
This involves encouraging the acceptance of responsibility, making
restitution, taking steps to prevent a recurrence of the incident and
promoting reconciliation”. 2.1 The definitions should be aligned to those
in the Children’s Act 38 of 2005. The
definition of a “child” is problematic as the Bill creates a number of
different categories of children.
These should be covered in the definition clause. 3.1 The definition of “an appropriate adult” is
very limited in scope and possibly excludes a worker at a street children’s
shelter or drop in facility from appearing for the child with the words “and
has a prior relationship of responsibility towards the child”, which in
itself is a very vague phrase. The reference to the phrase “and has a prior
relationship of responsibility towards the child” should be deleted. 3.2 The 4.1 The definitions of “children’s
court”, “detention”, ”place of safety”, “placement facility” ,“residential
facility” and “secure care facility” should be aligned to those in the
Children’s Act, 2005 or the Children’s Amendment Bill 2006; It is not clear what a “lock- up”
actually is and should be removed and replaced with “designated place”. 5.1 The term “lock
up” should be excluded from the definition “police cell or lock up” in both
the definitions section and clause 27 (a). The broadness of the use of this
term could result in children being detained in highly unsuitable
circumstances. 6.1
“Adult” it is not understood
here what the relevance of section 4(2)(b) is. 6.2 “An appropriate adult” it is suggested that
this read “an adult who is a member of the child’s family…” 6.3
“Child” should read “means any person above the age of 10 years but
below the age of 18 years”. |
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Clause 3 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 Clause (3)(d): This is a subjective clause and it is
difficult to determine cultural values.
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 established practice in the
community from which the child comes and that culture should not be abused in
the administration of justice. 1.2 Clause (3)(e): The words “as speedily as possible” may not
be appropriate, especially in the light of the current delays in the criminal
justice system. 2.1 The main differences which raise concern is
that Clause 3 of the 2002 version made it mandatory for courts to apply the
general principles listed while clause 3 of the 2007 Cabinet version make it
discretionary to apply the principles.
The 2007 Cabinet version has omitted to include clause 3(1)(e) of the
2002 version which deals with the child’s right to remain in contact with his
or her family and have access to social services. Section 28(1) (c) of the
Constitution guarantees social services for children. This law should not do
less. 2.2 The 2007 Cabinet version has omitted
certain aspects of clause 3(1)(g) of the 2002 version of the Bill, in dealing
with the issue of proportionality in clause 3(1)(a). More specifically, it
fails to provide that (in addition to the principle of proportionality) the interests
of society, the circumstances of the child and the principle that a child
should not be treated more severely than an adult in the same circumstances
must apply. It is submitted these are key considerations in addressing the
consequences arising from the commission of the offence. 2.3 Clause 3(2) of the 2002 version sets out
overarching principles which at the very outset indicate the approach of the
legislation to detention of children. Although the different sections of the
Bill deal with detention, because it is such a restriction on a child’s
liberty, it should guide the whole application of the legislation. CJA replaced “should “ with “must” and suggested the following changes: a)
All consequences arising from the commission of an offence
by a child must be proportionate to the circumstances of the child, nature of
the offence and the interests of society, and a child must not be treated
more severely than an adult would have been in the same circumstances. a new sub clause (h) and (2) :- (h) Every
child has the right to maintain contact with his or her family, and to have
access to social services. (2) Any police official, Director of Public Prosecutions,
prosecutor designated thereto by the Director, inquiry magistrate or officer
presiding in a child justice court must consider the following principles
when making any decision regarding the release of a child from detention: (a) Preference must be given to the release of a child into
the care of his or her parent or an appropriate adult, with or without the
imposition of any conditions; (b) if the release of the child into the care of his or her
parent or an appropriate adult is not feasible, the release of the child on
bail must be considered; (c) if the child must be detained as a measure of last
resort, the least restrictive form of detention appropriate to the child and
the offence must be selected. |
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Clause 5 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 The court should be guided by the best
interests of the child and not by the severity of the alleged offence since
it forces a judgment to be made on the way to proceed with the establishment
of any guilt on the part of the child. 2.1 The approach of determining the manner in
which a child should be dealt with according to the seriousness of the
offence is incorrect. The manner in
which a child should be treated should be determined by more than just having
regard to the offence allegedly committed, but should have regard to
the individual circumstances of the child as well as the nature of the
offence allegedly committed. The present formulation of the clause does not
take the best interest of the child principle into account as contained in
section 28 (2) of the Constitution nor does it take the requirement that the
individuality of the child be taken into account as required by Article 40
(1) of the CRC and Article 17(1) of the ACRWC. We therefore propose that
clause 5 should be removed. |
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Clause 6 |
Prof Sloth-Nielsen (UWC) CJB 12 Catholic
Institute of Education CJB 18 Legal
Aid Board CJB 22 |
1.1 The cross-reference in clause 6(1) should
be to “section 7” not “section 8”. 1.2 Complete section 6(2): The question is raised which sections are being
referred to. 2.1 In the Catholic tradition, the age of
reason is considered to be seven years.
The extension of this age may encourage criminals to exploit children
under the age of 10 years who are more physically able than seven year olds
to commit crimes. This extension of
age is strongly opposed. 3.1 Clause 6(2) amends the common law position
as it pertains to the criminal capacity of a child. The LAB suggests that the common law should
not be amended but repealed. 3.2 LAB suggests that clause 6(1) should read
“A child who is below the age of 10 years and who is alleged to have
committed an act which would otherwise constitute a criminal offence in
law…”. |
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Clause 7 |
Prof Sloth-Nielsen (UWC) CJB 12 Catholic
Institute of Education CJB 18 SAHRC Child Justice Alliance CJB 13 Childline CJB 3 Legal Aid Board CJB 22 |
1.1 Clause 7(3)(b) should be redrafted, with
specific reference to the words “may not in any way require a child to be
held responsible”. The clause must
avoid any perception that children under this age are getting away “scot
free”. Proposed redraft: “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”. 1.2 The phrase “who is alleged to have
committed an act with serious consequences” in clause 7(4)(a) should be
deleted. This term is undefined and
may cause confusion about when a meeting is to be convened. The decision in this regard should be left
entirely to the probation officer within his or her expertise. 1.3 Clause 7(7) is unnecessarily bureaucratic. It draws children below the age of criminal
responsibility into justice processes and undermines the functioning of the
judiciary. It should be deleted in its
entirety.
2.1 Clause 7(3)(a)(vi): “decide to take no action” –This should not
be an option since it might lead to probation officers using it, especially
when the determination of age is a function left in their care. 3.1The
title of clause 7 “Manner of dealing with child below 10 years of age”, is
misleading given that children aged 10 to 13 years who lack criminal capacity
can also be handled under this Part (clause 9 (1) (c ) (ii)). 4.1 Clause 7 (2) ,(3), (4), (6) and (7) should
read as including “a probation officer
or any other suitable person”. 5.1 It is argued that 48 hours is too long a
period for a child under the age of 10 years to await a placement in a child
and youth care centre or to be returned home. Childline suggests that the
sentence should read “must immediately take such child to the child’s home…
etc.” 6.1 The LAB raises the question why children
under ten should be sent for counselling or therapy if they did not in fact
commit the act in question and this is not somehow proven. |
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Clause 9 |
Child Justice Alliance CJB 13 Legal Aid Board CJB 22 SAHRC CJB 19 |
1.1 CJA supports that the Law Commission’s
proposal that the age of criminal capacity be raised to 10 years. The Law
Commissions’ proposal was based on a number of motivating factors including
the respondents to the consultative process agreeing to the change, as well
as the recognition that scientific evidence on child development. Clause 9 (1) (b) does not deal with
criminal capacity of a child but rather the prosecutor’s decision to
prosecute or divert. CJA propose
clause 9(1) (b) be separated from clause 9 (1) (a) and placed under a heading
which reads: Decision to divert or prosecute a child aged 10 or older but
under the age of 14 years. 2.1 LAB suggests that clause 9(1) should read
“A child who is 10 years of age or older and who is alleged to have committed
an act which constitutes a criminal offence in law…”. 3.1 Section 9(2) appears to combine the inquiry
as to whether the child has criminal capacity with the inquiry about whether
the case should be prosecuted. This
could be remedied by creating a new section within section 9(2)(b) with an
appropriate heading. |
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Clause 10 |
Prof Sloth-Nielsen (UWC) CJB 12 Child Justice Alliance CJB 13 Childline CJB 3 Legal Aid Board CJB 22 |
1.1 The provisions of this clause are objectionable,
based on the following reasons: (i) The dilution of the requirement of a compulsory evaluation
of a child’s criminal capacity before prosecution of a child in a child justice court, at State
expense, by a suitably qualified person, which is not, it is submitted, a probation officer as insinuated by clause
10(2); (ii) An assessment report does not focus on the determination
of criminal capacity, but rather on the ecological circumstances surrounding the commission of the offence in
toto, of which the child’s appreciation of wrongfulness
is but one fact. 1.2 The provisions contemplated in the 2002
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. In the
alternative, consideration should be given to doing away with the rebuttable
presumption entirely. 2.1 There have been longstanding problems with
the application of the common law presumption to establish criminal capacity,
only the first part of the test being applied and the practical application
of the test in court. CJA have serious
concerns regarding the content of clause 10 (2). The South African Law Reform
Commission proposals as well as clause 56 of the 2002 version of Bill 49 of
2002 provided that the prosecution or the child’s legal representative can
request that a child be evaluated by a suitably qualified person, at State
expense, to determine the question of criminal capacity. There is no reference to the evaluation
being done at the state expense in clause 10. CJA therefore submits that clause 10 (2)
– (5) be removed and replaced with clause 56 (2) – (5) of the 2002 version of
the Bill. CJA also submits that it is time that common law relating to criminal capacity be revised
and more stringent controls be introduced to ensure that the legal theory is
applied correctly and fairly. 3.1 The probation officer’s assessment should not be considered
adequate to decide on the criminal capacity of a child, rather this
assessment should be referred to a professional with a higher level of
expertise. 3.2 The word
“moral” should be inserted into the phrase “assessment of the cognitive,
emotional, psychological and social development of the child”. 4.1
It should be made clear that the relevant date for determining the age
of the child is the date on which the alleged offence was allegedly
committed. 4.2 The same comment made under clause 7
applies according to the LAB to clause 10(5), namely “no consequence if not
an offence”. |
|
Clause 11 |
The
Centre for Child Law (Dr Skelton) CJB 6 Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 Clause 11 should be
deleted. If all children are assessed,
all will go to a preliminary inquiry and all will be eligible for diversion,
subject to prosecutorial guidelines.
There is no need for this clause. 2.1 This
clause and other clauses need to be specific about the definition of
“child”. This arises out of earlier
problems raised
about definitions. 3.1 CJA supports the submission of
the Centre for Child Law regarding this clause and submits that clause 11 be
removed and all processes and procedures in the Bill are applicable to ALL
children who fall within the scope of the legislation (i.e. 10 years of age
or older) irrespective of age or offence category with which they are
charged. |
|
Clause 13 |
Legal
Aid Board CJB 22 |
1.1 Clause 13(3): It is important that the probation officer
should fully motivate the age estimation. 1.2 Clause 13(4): After the words “be recorded” the clause
should end with the words “should evidence to the contrary emerge at any
stage before sentence”. |
|
Clause 16 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 Clause 16(4)(c ) does not make
a distinction between children aged 10 to 14 years and is in contradiction
with the rules that govern this specific group. 2.1 A reading of clause 16 indicates the
complexity and illogical consequences that flow from treating children in a
particular manner based on their age and offence committed. The consequences
of excluding children from diversion and the preliminary inquiry are clearly
evident, for example, from clause 16 (2) (a) (ii). A child who has been found
suitable for a diversion programme and who may be complying with and benefiting from such order could now
be subject to that order being vacated and having to stand trial in court
purely because he is 14 years and not 13 years of age. 2.2 There is an error in clause 16(4) (c) as
the reference should be to children 14 years or older but below 18 years
(children older than 10 years but younger than 14 years were dealt with in
clause 16(4) (b)). 2.3 The |
|
Clause 17 |
Catholic
Institute of Education CJB 18 |
1.1 Clause 17(1)(a) does not apply to children
under the age of 10 years and this should be stated here in order to avoid
confusion and future legal challenges. |
|
Clause 18 |
SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 The right to parental care is
particularly critical for children involved in the justice system as an
important component of preventing recidivism.
The words “where circumstances permit” should be removed in clause
18(3)(d). Where police officials are
unable to locate or notify the parent, they should be required to provide the
court with a report, indicating what steps were taken to locate or notify the
parent. 2.1 Clause 18(1) (b) should be
removed as it is superfluous and clause 18(1) (a) should suffice – where an
offence is in the process of being committed, it is argued that this would
constitute compelling reasons justifying an arrest. 2.2 CJA
also submits that the phrase “where circumstances permit” in Clause
18(3)(d is too vague and will allow police to shirk responsibility to ensure
that parents or guardians are notified of a child’s arrest – something that
is of vital importance. We submit the clause should read: (d) notify the child's parent or an appropriate adult of the
arrest. |
|
Clause 19 |
Catholic
Institute of Education CJB 18 |
1.1 Clause 19(2)(b) should be removed since it
is open to abuse as the likelihood of finding the parents of children
involved in criminal activity may be slight and therefore this clause allows
for exceptions which could quickly become the norm. It is inappropriate to expect children to
understand a summons. |
|
Clause 26 |
Catholic
Institute of Education CJB 18 SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 Clause 26(1)(b) and (c) should only be
“done” when the child can be separated from adults and girls and boys can be
separated. It is submitted that this
is a non-negotiable and should not be something that is considered where
“reasonably possible” as provided for in these sub clauses. 2.1 There is no system of
monitoring regular visits in police cells.
The increase in the number of deaths in police custody is a cause of
concern. The prevailing 48 hour time limit should not be altered. 2.2 It is a
concern that detained children awaiting trial do not receive access to basic
education, which is a violation to their constitutional right in terms of
section 29. The Commission recommends
that a provision requiring access to basic education for children be added in
Chapter 4 Part 2. All children in
detention should be provided with adequate, age appropriate stimuli in line
with the recommendations of the CRC. 3.1 Clause 26(1)(b) is unclear as it does not
qualify the fact that placement in a police cell should only be prior to a
child’s first appearance in court. CJA submit the clause should read as
follows: (b) placement in a police cell until the first appearance in court by the child; or 3.2 A placement in prison is the most
restrictive placement that can be effected. CJA submits that prison is not
suitable for children below 14 years of age and in particular mandatory
placement in a prison before a first appearance is particularly
inappropriate. It is also highly
impractical to place any person in prison prior to his or her appearance in
court. It is never done, to our knowledge, with regard to adult offenders who
are held in police cells prior to their first appearance in court, and only
transferred to prison thereafter. The Department of Correctional Services in
its White Paper (2005) contends
that “children under the age of 14 have no place in correctional centres.
Diversion, alternative sentences, and alternative detention centres run by
the Department of Social Development and the Department of Education should
be utilised for the correction of such children”. While detention in prison has been shown to
be completely inappropriate for children given shockingly inhumane
conditions, it must also be noted that such children are awaiting trial, not
proven guilty, presumed innocent and therefore the constitutional principle
that detention should be a last resort is being flouted and detention in
prison is becoming a first resort for children aged 10, 11, 12 and 13 years
of age when they have not even been found guilty of an offence yet and may
even lack criminal capacity. |
|
Clause 27 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 This clause seems to place more emphasis on
the reasonable distance to the court rather than the best interests of the
child. Since a person is considered
innocent until proven guilty, a child should be in the custody of parents or
other appropriate adults before his or her first appearance and not in formal
facilities. 2.1 CJA
wishes to object to the mandatory placement of children charged with
Part 1 and Part 2 of Schedule 3 who haven’t been released in prison before
their first appearance in terms of clause 27(b). This again the most
restrictive approach being adopted and not complying with section 28(1) (g)
of the Constitution. There should be
no mandatory placement of children in prison prior to the first appearance in
court. CJA Submits that clause 27 be
amended to read: “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 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. “ |
|
Clauses 28 |
CSPRI
CJB 10 Childline
CJB 3 SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 The measures contained in clause 28
(protection of children detained in police custody) are welcomed, since these
measures are more protective than those contemplated in the 2002 Bill. 1.2 The protective mechanisms outlined in
clause 28 are by and large reactive and complaints-driven and while this is
important, it is argued that it has been demonstrated that proactive
announced and unannounced visits by independent bodies or persons to places
of detention is the most effective mechanism to prevent torture, cruel,
inhuman and degrading treatment. 1.3 A new clause 28(2)(d) is proposed: “(d)(i) Each police area
commissioner shall identify and designate from amongst those police stations
in his or her command area the police stations that are suitable to be used
for the detention of children as required by section 28(1). (ii) The identification and designation of
police stations as required by section 28(d)(1)(i) shall be done with a view
to centralise the detention of children in a police management area to
facilitate monitoring and ensuring conditions of detention suitable for
children. (iii)In the event that a child is
detained in a police station, the arresting officer shall without delay
inform the designated probation officer or other person designated by the
Department of Social Development of the detention of the child.”. 2.1
The provisions in clause 28 are inadequate. Childline has received
calls on the psycho-social neglect of children in police cells, failure to
take a child for medical assessment and treatment. It is critically important
that the care and protection of children in police cells is holistic. Childline suggests that the word
“healthcare” in clause 28(1)(d) be replaced by “health and psycho-social
care in the event of any illness, neglect or psycho-social distress”
and that clause 28(2)(a) and (b) read as follows: “(a) If any complaint is received from a
child or any other person during an arrest or while in detention in police custody relating to any injury, psycho-social
distress and/or neglect sustained by such child or if a police official observes that a child has
been injured, is experiencing psycho-social distress or neglected, that
complaint or observation
must, in the prescribed manner be recorded and reported to the station
commissioner, who must ensure
that the child receives immediate and appropriate (medical - omit) treatment
if the station commission is satisfied
that any of the following circumstances exist: (i) there is evidence of physical, psycho-social
distress and/or neglect; (ii) where the child appears to be in pain
or distressed as a result of an injury or neglect; (iii) where there is an allegation of sexual
abuse of any nature; or (iv) any other circumstances which warrant
medical or psycho-social treatment and/or intervention.”. Childline also suggests the addition of the another subclause
to read as follows: “Where
children are detained in police cells, there must be daily contact with the
child by a probation officer or suitably
qualified professional person.”. 3.1The provisions of clause 28 are
welcome. The clause, however, needs to
cover mental abuse and neglect, in line with section 28(1)(d) of the
Constitution. Wording of this nature
should be added to the clause. 4.1The placement of children in
prison prior to their first appearance in court is wholly inappropriate and a
retrogressive step from our present law.
In order to ensure further protection for children placed in police
custody they propose that clause 28 (1) (d) be amended as follows: (d) cared for in a manner
consistent with the special needs of children, including the provision of
immediate and appropriate healthcare in the event any illness and has the
right to adequate food and water; access to reading materials; adequate
clothing and sufficient blankets and bedding; and adequate exercise. 4.2 And clause 28 (2) (a) should be amended to
read: “If any complaint is received from a child
or any other person during….” |
|
Clause 30 |
CSPRI
CJB 10 Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 Community
Law Centre (UWC) CJB 11 |
1.1 As on 31 July 2007, only 286 children in
prison, out of a total of 2144 (or 14%) were younger than 16 years of
age. A very small percentage of child
offenders presents a significant risk to society and the administration of
justice and only a small percentage of children need intensive residential
services over a prolonged period of time.
Based on the undesirability of placing children in prison, the number
of children involved and the available resources in the form of secure care
facilities as alternatives to imprisonment, it is proposed that 16 years be
set as the minimum age for admission of a child to a prison, either as a
sentenced or unsentenced prisoner. 1.2 Proposal:
Clause 30(1): Insert a new
subclause (b): “the child is aged 16
years or older”. Clause 30(2): Delete this subclause. Insert a new clause 78(7): “A child sentenced to imprisonment who is
below the age of 16 years at the time of sentencing may not be admitted to
serve the sentence in a prison until he or she has turned 16 years of
age. Until the child reached the age
of 16 years, the sentence shall be served in a designated secure care
facility following which the child may be transferred to a prison to serve
the remainder of the sentence there.
The proportion of the sentence served in a secure care facility shall
be deemed as part of the sentence served for all further decisions”. 1.3 A child under the age of 16 years, who in
exceptional cases has committed a serious crime who should be sentenced to
imprisonment, should start serving the sentence in a secure care facility and
be transferred to a prison upon reaching 16 years to serve the remainder of
the sentence. 2.1 The commentator is opposed to
this clause in its entirety for the same reasons mentioned under clause
27. If clauses 30 and 27 are removed
clause 33 would become unnecessary. 3.1 No child under the age of 14 years may be
held in prison awaiting trial. All
children should have the option of being held awaiting trial in a residential
facility other than a prison irrespective of the offence committed. CJA therefore submits that clause 30 (2)
should be removed from the Bill and clause 30 (1) (e) be inserted: (e) the
child is 14 years or older. 4.1 It is of great concern that
the 2007 Bill allows the detention of children under the age of 14 years in
prison, either awaiting trial or as a sentence. This is in conflict with international and
constitutional principles. Clause
30(2) should be deleted and clause 30(1) should be amended to refer to a
child who is 14 years or older. |
|
Clause 31 |
Heidi
Sauls CJB 2 SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 The conditions in places of
safety are unfit, unhealthy and are not conducive for the development and
protection of a child. Schooling is
minimal. Children are exposed to
abuse among themselves. Often this is managed by moving children to another
“dormitory” which also creates other challenges such as uncertainity,
breakdown in relationships, etc. 2.1 Clause 31 should come before clause 30 to
promote the use of placement in prison as a last resort. 3.1 CJA
objects to the exclusion of children charged with Part 1 of Schedule 3
from the possibility of being held in a residential facility other than a
prison awaiting trial as contained in clause 31 (1). This too is a
retrogressive step from our present law which allows for the detention of
children charged with all offences in places of safety or secure care
facilities. Again, prison is the most restrictive detention option and to
exclude children who could be detained in other facilities from this option
is a generalising approach and an attempt to legislate in a manner that does
not allow for exceptional circumstances to be treated differently. It would
be far better to allow courts to have the discretion to place a child in a
residential facility other than a prison if it is in his best interests and
does not threaten public safety. To exclude this possibility implies that the
legislature has no confidence in the decision making abilities of presiding
officers and is in fact a contravention of section 28(1) (g) and 28(2) of the
Constitution. Therefore CJA submits
that the content of clause 31 should be placed before the content of clause
30 in the structure of the Bill (with the necessary amendments). Further that clause 31 (1) be amended to read: “A
presiding officer may order the detention of a child referred to in section
29 in a specified child and youth care centre”. CJA further submits that instead
of a sworn statement required in terms of clause 31 (30, an assessment report
should, if recommending placement in a residential facility other than a
prison contain information regarding the availability of space at a
residential facility on the day the recommendation is made. This should be inserted in sub clause
(3). Subclause (5) be amended to
include the words “subject to clause 31 (1) [as amended in this subsection” |
|
Clause 34 |
Catholic
Institute of Education CJB 18 Heidi
Sauls CJB 2 SAHRC
CJB 19 Southern
African Catholic Bishop's Conference CJB 21 Child
Justice Alliance CJB 13 |
1.1 Clause 34(2)(c) should be amended to
require that a child be transported separately from adults. The words “if
reasonably possible” must be deleted to ensure that appropriate funding is
allocated for this purpose so that children are not kept in the current
system because their rights (to be transported separately from adults) are
not reasonably possible. 2.1
Younger children are abused and robbed of their belongings
in the police vans on their way to court.
If possible, younger children should be transported separately from
adolescent children and there should be increased protection for younger
children in facilities. 3.1 While children are being transported they
are still in detention and should never be transported together with adults,
as required by section 28(1)(g)(i) of the Constitution. The words “if reasonably possible” should
be removed from clause 34(2)(c ). 4.1 Children must be separated from adult
accused persons at all times, including when transported to and from the
place of detention and the court and qualified statements such as “if at all
possible" could be interpreted subjectively and open-endedly. 5.1 CJA is of the opinion that the content of
clause 34 is not sufficiently protective of the rights of children to be
detained in a humane manner and in conditions that do not expose them to
harm. CJA therefore submits that
clause 32 (4) (a) be amended to include the word, “according to standards as
prescribed” at the end of the subclause, and subclause (c) be amended by
deleting the words “ if reasonable possible” |
|
Clause 35 |
The
Centre for Child Law (Dr Skelton) CJB 6 RAPCAN Child
Justice Alliance CJB 13 |
1. 1 Clause 35 should be replaced
by the following wording: “Every
child who is alleged to have committed an offence must be assessed by a
probation officer or other suitably
qualified person before the child is diverted by a prosecutor in terms of
chapter 6 or appears at a preliminary
inquiry.”. 2.1. Assessment is an information-gathering
process regarding the child in order to understand the child and make
decisions how to proceed further in the criminal justice process, right up to
sentencing, so as to prevent further offending by the child. The Bill excludes this possibility for many
children, purely on the basis of the offence committed and is in conflict
with section 4B of the Probation Services Act, 1991, in terms of which all
children are assessed, constituting a step backwards in terms of what is
happening in practice. Because of the
shortage of probation officers, it is suggested that provision be made for
other suitably qualified/trained persons to undertake assessments. The limitations created in clause 35
relating to assessment, should be removed to allow all children to be
assessed and clause 35 should also allow “other suitably qualified persons”
to undertake assessments. 3.1 Reference
to probation officer should be replaced with the phrase “probation officer or any
suitably qualified person as prescribed’. |
|
Clause 36 |
Child
Justice Alliance CJB 13 |
1.1 The decision making ability of the
presiding officer can be greatly enhanced by an assessment report on all
factors listed in clause 36, except criminal capacity. Therefore clause 36 (g) should be removed
and replaced by a new clause (g) “provide
any other relevant information regarding the child which the probation
officer may regard in the best interests of the child or which may further
any objective which this Act intends to promote or achieve”. |
|
Clause 39 |
Child
Justice Alliance CJB 13 Legal
Aid Board CJB 22 |
1.1 Rather than listing the persons who may
attend the assessment, the Bill should rather give the probation officer or
other suitably qualified person authority to allow any other appropriate
person whose presence is necessary or desirable, to attend. Clause 39
(3) should therefore be amended to read as follows: “Any other appropriate person
whose presence is necessary and desirable may be authorised by the probation
officer or other suitably qualified person to attend the assessment”. 1.2 The views of the child are of
paramount importance and so the structure of this section should reflect
this. Clause 39(6) should therefore follow clause 39(3) and become clause
39(4) with the remaining clauses being numbered accordingly. 2.1 Practical difficulties may be experienced
in getting all the role players together within the prescribed time limits. |
|
Clause 40 |
Catholic
Institute of Education CJB 18 |
1.1 Clause 40(5): The principle of the best
interests of the child needs to be highlighted and the terminology that the
action must not prejudice the child, is inappropriate. 1.2 Clause 40(6): This clause needs stronger wording since it
is argued that the probation officer cannot simply encourage child
participation. He or she needs to make
sure that the child is able to participate. |
|
Clause 41 |
SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 Clause 41 (2) is unnecessary. The magistrate may merely be advised by
the probation officer or the prosecutor. 2.1 As submitted in clause 10 and clause 36,
the Child Justice Alliance is of the opinion that the assessment is not a
suitable process to evaluate criminal capacity, nor is a probation officer
the appropriate professional to undertake such evaluation. Therefore clause
41(f) should be removed from the Bill. They therefore refer back to their
submission under clause 31 and propose that clause 41 (2) be amended to read
as follows: “A recommendation referred to in
subsection (1)(d) relating to placement of the child in a placement
facility must be supported by
information obtained by the probation officer or suitably qualified person from the functionary responsible for
the management of such facility on the
same date as the recommendation made in terms of subsection 1(d) containing
current information regarding –“ |
|
Clause 42 |
Child
Justice Alliance CJB 13 |
1.1 Clause 42(2) should be amended
to ensure that a prosecutor properly applies his or her mind to the need to
dispense with assessment. Therefore we propose this clause be amended by inserting the
following as follows: (2) “and the reasons for the dispensing
with the assessment must be recorded by the presiding officer at the
preliminary inquiry”. 1.2 Subclause (3) should be amended to read as
follows: “In order to formulate the most suitable response for the child, including the
consideration of further or alternative diversion programmes, the
prosecutor must have access to the register of children in respect of whom a
diversion order has been made contemplated in section
54(5)”. |
|
Clause 44 |
The
Centre for Child Law (Dr Skelton) CJB 6 SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 Clause 44 should be replaced with the
following: “44(1)(a). A preliminary inquiry must be held in
respect of every child who is alleged to have committed an offence and who has not been diverted
pursuant to chapter 6.”. 2.1 The clause does not clearly
describe what the preliminary inquiry is about. 3.1 The purpose of the preliminary inquiry is
no longer contained in the 2007 Bill, which may lead to an incorrect
application. The contents of clause 25
(3) of the 2002 Bill should be re-instated in clause 44 of the 2007 Bill. |
|
Clause 45 |
Child
Justice Alliance CJB 13 |
1.1 The requirement that a diversion service
provider attend the preliminary inquiry is too burdensome and will firstly,
place a strain on organisations straining to provide services and secondly,
cause undue delays. Clause 45 (5)
makes provision for a magistrate to subpoena any other person and clause 45
(1) should make provision for this.
CJA submits that clause 45 (1) (d) be amended to read “(d) “any other
person contemplated in section 45 (5). |
|
Clause 46 |
Child
Justice Alliance CJB 13 |
1.1 The contents of section 153(4) of the
Criminal Procedure Act, 1977 should apply to a preliminary inquiry. |
|
Clause 48 |
Catholic
Institute of Education CJB 18 |
1.1 Clause 48(8)(a): The principle of the best interests of the
child should prevail and not the least prejudice principle. |
|
Clause 49 |
SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 It is not clear what happens to a child
whose preliminary inquiry is postponed under clause 49 and not held within 96
hours. The Bill should be modified to
make it clear that such children still go to a preliminary inquiry and are
eligible for diversion at that time. 2.1 The 2002 version of the Bill
did not limit the request for a detailed assessment to the probation officer,
but also allowed for any other person (e.g. the child’s legal representative)
to request such an assessment. In addition, the grounds for such a
postponement appear more clearly from the 2002 version and are not as vague
as the present formulation of “exceptional circumstances warranting a further
assessment”. Therefore clause 49(4) be amended to read as follows: “49(4) (a) A probation officer may recommended in terms of section 41(1)(f) that a further and more detailed
assessment of the child is required, or a probation officer may make such a
recommendation during the course of the preliminary inquiry, or any person
may request the inquiry magistrate to postpone the proceedings of a preliminary inquiry for the purposes of
obtaining a detailed assessment of a child, (b) The inquiry magistrate may postpone the
proceedings of the preliminary inquiry a preliminary inquiry for the purposes
of obtaining a detailed assessment of a child for a period not exceeding 14
days if there are exceptional circumstances warranting a further assessment
of the child and if such circumstances relate to- (i) the possibility that the child may
be a danger to others or to himself or herself; (ii)the fact that the child has a history of
repeatedly committing offences or (iii) the social welfare history of the
child; (iv) the possible admission of the
child to a sexual offenders’ programme, (v) the possibility that the child may be a victim
of sexual or other abuse. (c) Any detailed assessment must be conducted in the
home of the child, unless assessment in the home is not in the best interests
of the child or impossible, in which case assessment may be conducted at any
residential facility”. |
|
Clause 50 |
Child
Justice Alliance CJB 13 |
1.1 The limitation on the prosecutor’s
discretion to divert a child who is appropriate for diversion runs contrary
to the objectives of the Bill, namely, to reinforce the child’s respect for
human rights and the fundamental freedoms of others; support reconciliation
by means of a restorative justice response and involve parents, families,
victims where appropriate and the community to encourage the reintegration of
children. The reference to section 11 (c) should be removed from clause 50(1)(d)
and the latter should be amended to
read as follows: (d) the
child and, if available, his or her parent, or an appropriate adult,
consent to diversion, and after consideration of all
relevant information presented at the preliminary inquiry, the inquiry
magistrate must ascertain from the prosecutor whether the matter can be
diverted. |
|
Clause 51 |
Child
Justice Alliance CJB 13 |
1.1 This clause should be amended
to refer to the relevant section of the Children’s Act 2005. |
|
Clauses 52
& 53 |
Child
Justice Alliance Driver Group CJB 13 |
1.1 Clause 52 should be amended to include the
contents of clause 44 of the 2002 Bill.
Diversion should not be considered as previous conviction. Clause 53
should be amended to include the following subclause (3): “A
divsersion shall not be considered as a previous conviction for the purposes
of criminal records and shall not be
regarded as an aggravating factor for purposes of sentencing.” |
|
Clause 54 |
Catholic
Institute of Education CJB 18 Department
of Social Development (UCT) CJB 8 SAHRC
CJB 19 Child
Justice Alliance Driver Group CJB 13 |
1.1 Clause 54(3): This is a very onerous provision and will
stop progress in the accreditation of diversion programmes since it would
extend to programmes where a court specifically designs one for the
case. It is unclear what will happen
once the programme is before Parliament.
The question is raised whether an Act would be passed. The accreditation should be left with the
relevant department but should be subjected to Parliamentary oversight in at
least two meetings a year between the Department and the Committee. 2.1 Clause 54(5): Only probation officers should have access
to the register due to privacy considerations. 3.1 The clause is very detailed and some
provisions could be placed in the regulations to simplify the drafting style
of the Bill. Sexual offences
diversion should not be singled out for special treatment. Diversion programmes require a high level
of expertise and it would be more appropriate for the accreditation to be
done by suitably qualified experts rather than parliamentarians. 4.1 The provisions of clause 54 are welcomed
but the details contained in clause 54(2) - (4) may be more appropriately
placed in the regulations. The time
period of two months allowed for applications for accreditation is too short. There is no need for police officials to be
given access to the register. Therefore, sucbclauses (2) – (4) should be removed and included in
the regulations and subclause (5) (b) should be amended to exclude reference
to police officials and to add at the end of paragraph (i) the
words “ in order to formulate a suitable response for the child and possible
referral to an appropriate intervention” |
|
Clause 55 |
Child
Justice Alliance Driver Group CJB 13 |
1.1 The requirement that diversion programmes
be based on the principle of proportionality is already provided for in clause 55(1)(a) and the inclusion of the
phrase in clause 55(1) is superfluous and should be removed. The reference to clause 57 is
limiting and calls for unnecessary attention to a specific group of child
offenders. |
|
Clause 57 |
The
Centre for Child Law (Dr Skelton) CJB 6 SAHRC
CJB 19 Child
Justice Alliance Driver Group CJB 13 |
1.1 This clause should be deleted in its
entirety. 2.1 There is concern about this clause as it
limits the prosecutor’s authority to pursue diversion for children who commit
sexual offences. Parliament cannot
interfere with the prosecutor’s role as dominus
litis and should not arbitrarily limit the prosecutorial
prerogative. South African law does
not prohibit diversion for adults in sexual offences. Excluding children from the possibility of
diversion amounts to unequal treatment.
The clause should be deleted or be made consistent with other
provisions in the Bill which allow for prosecutorial prerogative. 2.2 Clause 57(2)(b) states that
in diverting a child, only diversion options under clause 58(5) can be
considered but clause 58(7) states that a child can be sent to a family group
conference with any combination of options in clause 58(5). This creates confusion as to whether a
child under clause 57 can be sent to a family group conference or victim
–offender mediation. 3.1 The Child Justice |
|
Clause 58 |
Child
Justice Alliance CJB 13 |
1.1 The time periods set out in
clause 58 (4) – (6) have been set without regard to whether diversion service
providers can offer services for these periods and in addition, these time
periods were not costed in the original two costings of the Bill. The Bill
should provide a minimum time for which a child must be on a diversion
programme and leave it in the discretion of the court to extend that period
if need be, based on information obtained in the assessment and preliminary
inquiry. The Committee should consult with the Department of Social
development and service providers in setting the minimum period. 1.2 The phrase “imprisonment” in subclause (5) should
be replaced with “.. custodial sentence”. |
|
Restorative
justice (clauses 58(7), 61, 62 and 74(1)) |
Restorative
Justice Centre CJB 4 |
1.1 The restorative justice
options are welcomed. However, since
both the concept and application of restorative justice is still developing
the following is proposed:
|
|
Clause 61 |
Catholic
Institute of Education CJB 18 |
1.1 Clause 61(3)(b): This clause involves too many parties: “a large group of hostile individuals”
which would outnumber the child and his/her parents. A balance needs to be struck to ensure it
does not become a second hearing. |
|
Clause 63 |
Child
Justice Alliance Driver Group CJB 13 |
1.1 Clause
63(1) needs simplification. CJA
suggest the clause be redrafted as
follows: “63. (1) (a) Any child whose matter has
not been dispensed with at the preliminary inquiry and in respect of whom the
preliminary inquiry has been closed, must appear before a court having
jurisdiction over the matters. (b) A court contemplated in subsection (a)
must be regarded as a child justice court and must apply the provisions of this Act.”. 1.2 Clause 63(2) does not deal with joinder or
separation of trials as did clause 57 of the 2002 Bill, when it comes to
child and adult co-accuseds. This
means that the adult and child accuseds are tried together, unless an
application is made for their matters to be separated. Clause 57 of the 2002 Bill provided as a
matter of course that there would be separation of the trial, unless an
application, in the interests of the child, is made for them to be joined and
tried together. This is an important
protective measure which ensures that children are not intimidated by adults
and not exposed to the adult co-accused who may have used the child in the
commission of the offence. 1.3 Clause 63(5) should be amended to read as
follows: “No
person, other than the child accused, his or her legal representative, the
probation officer and parent or a person
in loco parentis or an appropriate adult, shall be present at the child
justice court, unless such person’s presence
is necessary in connection with such proceedings or is authorised by the
presiding officer.”. 1.4 A new clause 63(6) should be added to the
following effect: “Section
154 of the Criminal Procedure Act relating to the publication of information
that reveals or may reveal the
identity of a child accused or a witness under the age of 18 years applies
with the changes required by the context
to proceedings at a child justice court.”. |
|
Clause 64 |
Child
Justice Alliance CJB 13 |
1.1 The clause should be aligned to the
children’s Act, 2005. |
|
Clause 65 |
Catholic
Institute of Education CJB 18 |
1.1 Clause 65(2): The clause creates conflict between giving
effect to the best interests of the child or to the needs of the
administration of justice. This is
unconstitutional since the best interests of the child are paramount. 1.2 Clause 65(6): Clause 65(6) needs more clarity since it is
unclear who the independent observer is or where they come from when one
considers that clause 63(5) closes the proceedings to observers. |
|
Clause 66 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 Clause 66(1): The period of 30 days should be reduced to
14 days to encourage quicker processes.
2.1 There are great concerns regarding delays
in the criminal justice system, and particularly regarding children who are
detained whilst awaiting trial. The 2002 version of the Bill made provision
for children in residential facilities to be brought before court at least
every 60 days. This is missing from the Bill and needs to be reinserted. In
addition, these limits on the periods of postponement of a child’s matter
should not be limited to proceedings up to the commencement of the trial (as
contained in the 2007 version of the Bill), but should be applicable to his
or her entire time in detention and the reference to ‘prior to the
commencement of a trial’ should be removed.
Clause 66(1)(b) should be amended by inserting the following word at
the end on paragraph (ii) …”and if the child is in detention in a child and
youth care centre, a child justice court may not postpone proceedings for
longer than 60 days at a time, unless exceptional circumstances exist.”. |
|
Clause 67 |
Catholic
Institute of Education CJB 18 SAHRC
CJB 19 Child
Justice Alliance Driver Group CJB 13 |
1.1 Clause 67(2): The commentator is strongly opposed to this
subclause since children should not be allowed to be detained for such a long
period (2 years). 2,1 The two-year period provided in clause
67(2)(a) is unduly long. There is a
danger that the maximum period will be used as the norm and will inhibit
efforts to ensure that children are detained for the shortest appropriate
periods as prescribed in section 28(1)(g) of the Constitution. 3.1 Trials should be concluded in six months. 3.1 Clause 67(2) is very complicated and does
not facilitate easy access to the content of the Bill for persons who are not
trained in law (or even those who are!).
Trial starts expeditiously after plea, the child does not need to be
released if concluded within 6 months. The intention is to put pressure on
the police and prosecution to investigate and prepare the
matter as thoroughly as possible for plea and trial so that it can be
finalised as quickly as possible after plea.
Therefore clause 58(3) of the 2002 version of the Bill should be
reinstated and clause 67(2) be amended to read as follows: “67(2) Where a child remains in detention in a child and youth care
centre or prison and the trial of the child is not concluded within a period
of 6 months from the date upon which the child has pleaded to the charge, the
child must be released from detention unless charged with murder, rape or
armed robbery”. |
|
Clause 68 |
Child
Justice Alliance CJB 13 |
1.1 Due process rights of the child are being
severely prejudiced if the content of clause 68 (1)(c) is allowed to remain
since an acknowledgment of guilt is not necessarily an admission of guilt and
in any event, failure to comply with a diversion programme may not be due to
any fault of the child. Therefore clause 68(1)(c) should be amended to read
as follows: “(c) A child justice court that makes a diversion order must
postpone proceedings pending the child's compliance with the diversion order
in question.” |
|
Clause 70 |
CSPRI
CJB 10 Prof
Terblanche CJB 16 GSL
Youth Services CJB 15 RAPCAN
CJB 9 Child
Justice Alliance Driver Group CJB 13 |
1.1 The provisions in clause 70(3) will be
strengthened by a requirement compelling the sentencing court to reflect on
the potential of the contemplated custodial sentence to achieve the desired
results of assisting the child to lead a crime free life in future. This could be achieved by the addition of
the following paragraphs (f) and (g) to subclause (3): “(f)
the proximity of the designated
facility or prison to the child’s community, parent(s) or care giver(s); (g) the
prevailing conditions at the facility or prison and the availability,
appropriateness and effectiveness of existing
services and interventions at the designated residential facility or prison”. 2.1 The specific factors that courts should
take into account when deciding on the imposition of sentences such as
imprisonment in clause 70(3) are supported.
The “seriousness of the offence”, should be explained specifically by
including (1) the amount of harm done or risked through the offence; and (2)
the culpability of the offender in causing or risking the harm. These two factors are universally used to
determine the seriousness of the offence and are very useful guidelines in
determining the true severity of an offence.
3.1 The objectives of sentencing as set out in
clause 70(1)(a) - (e) are clearly stated.
It is, however, not very clear how these objectives are ensured and
supported by the different sentencing options. For instance, the Bill does not prescribe
that the child must receive some sort of specific intervention programme to
address the offending behaviour. The
outcomes of these intervention programmes should form part of the sentencing
process and there should be a report back mechanism to the court on how the
child has complied with this. 3.2 The Bill must allow the court to require
additional and more in-depth assessment of the child before sentencing to
determine the individual needs of the child with regard to the offending
behaviour. 3.3 The Bill should require a probation officer
to furnish proof to the court that the intended place of detention to serve
sentence has the intervention
programme required to address the offending behaviour in
question. 3.4 The Bill does not deal specifically with
addressing offending behaviour.
Programmes addressing the offending behaviour and the registration of
those programmes within residential facilities should follow the same process
as with diversion programmes in terms of clause 52. 4. 1 The objects set out in clause
70(1) are important and are to be welcomed, particularly the one stating that
imprisonment should be used as a measure of last resort. Clause 70(3), setting out what a court
should take into account before imposing a sentence of detention, should be
strengthened, providing that the court must also consider the potential of
the contemplated custodial sentence to achieve the desired result of
preventing the child from committing further offences. To this end the court must enquire from the
contemplated place of custody (prison or residential facility) what
intervention programmes are available, the shortest period the child should
be detained in order to benefit from the interventions that are available,
the proximity of the place of detention to the child’s parents and the
effectiveness of interventions in reducing the possibility of re-offending
(Recidivism). 5.1 The Criminal Law (Sentencing) Amendment
Act, 2007, is unconstitutional and violates |
|
Clause 71 |
CSPRI
CJB 10 Prof
Terblanche CJB 16 RAPCAN
CJB 9 Child
Justice Alliance Driver Group CJB 13 |
1.1 Clause 71 should be deleted from the
Bill. This should be done since the
use of victim impact statements may affect children adversely by deviating
from the principle of equality before the law since such statements are not
used in the case of adults and the use of such statements was rejected in the
Sexual Offences Bill. 2.1 Victim impact statements are
supported. It is noted that the
wording closely resembles that used in the SALRC’s Sentencing Framework Report. The responsibility for accepting victim
impact statements should be on the court rather than on the prosecutor as the
Bill does. Prosecutors could be
inexperienced and the role of determining all the factors that should play a
role in determining a sentence falls squarely on the sentencing court. 3.1 Clause 71, providing for
victim impact statements, should be deleted.
There is no such provision in respect of adults. The introduction of this for children may
have the effect of unequal treatment in respect of children. Restorative justice measures are more
suitable in this regard. 4.1 A similar clause was proposed in the Sexual
Offences Act, 2007, but was rejected by the Committee. It is inequitable that it be allowed in
this Bill. Clause 71 should be
removed. |
|
Clause 72 |
CSPRI
CJB 10 Catholic
Institute of Education CJB 18 SAHRC
CJB 19 Child
Justice Alliance Driver Group CJB 13 Department
of Social Development (UCT) CJB 8 Childline
CJB 3 |
1.1 Pre-sentence reports: The wording in clause 72(1)(a) “or other
suitably qualified person” is supported as this would increase the number of
people eligible to prepare pre-sentence reports. In order to strengthen the intentions of
this clause the following amendments to clause 72 are proposed: 1.2 Insert the following under paragraph
(a): “(i) The member of cabinet responsible for
social development must through regulations specify the requirements in respect of other suitably
qualified persons referred to in paragraph (a). (ii) The member of cabinet responsible for social development must through
regulations specify the format and
scope of a pre-sentence report with specific reference to the sources of
information to be consulted, persons to
be interviewed and drafting sentence recommendations. 1.3 Amend subclause (2) to read as
follows: “The
probation officer or other suitable person must complete the report as
soon as possible but no later than 20 working
days if the child is in custody or 30 working days if the child is not in
custody [one calendar month] following the date upon which
such report was requested.”. 1.4 Subclause (3): Insert the word “or prison” after
“residential facility”. Insert two
further criteria with reference to current information, namely “(ii) the
range and purpose of educational, developmental and therapeutic services
available; and (iii) the effectiveness of services referred to in paragraph
(3)(ii) in reducing re-offending”. 2.1 Clause 72(2) needs more
clarity since it is not clear who the “other person” is. 3.1 Pre-sentence reports should be made
available sooner where the child is in detention in order to give effect to
the provisions of section 28(1)( c) of the Constitution that children should
be detained only for the shortest appropriate period of time . 4.1 The provision on pre-sentence
reports is welcomed. However, the time
period must be adjusted, possibly to 6 weeks to alleviate pressure in the
Dept of Social Development. “Other
suitably qualified persons” should be allowed to perform the functions under
the legislation. 4.2 CJA proposed that
subclause (2) and (3) be amended as follows: “(2) The probation officer or other suitably qualified person
must complete the report as soon as possible but no later than 20 working
days in respect of a child in detention or 30 working days in respect of a
child who is not in detention following the date upon which such report was
requested. (3) Where a probation officer or suitably qualified person
recommends that a child be sentenced to compulsory residence in a residential
facility or prison, such recommendation must be supported by information obtained by the probation
officer or suitably qualified person from the person in charge of such
facility, regarding the availability or otherwise of accommodation for the
child in question and services and educational programmes current to the date
of submission of the report to the child justice court”. 5.1 The Bill should make provision for “other
suitable persons” to assist probation officers in writing pre-sentence
reports. 5.2 Clause 72(2): One calendar month (within which to
complete the report) is sufficient time in cases where children are in
detention or secure care, but provision should be made for up to 8 weeks in
all other cases. 6.1
Childline recommends the following amendments: (1)(a) Reports should be prepared by a probation officer
or any other suitably qualified person. (2) Certain assessments take more time than 4 weeks – a
period of 6 weeks is preferable. Child sex offender assessments require the
development of a trusting relationship in order to enable the child to
discuss intimate details of his/her behaviour with the assessing professional
and also to enable the gathering of collateral information. A further clause is recommended in this section: (5) The format, content and
sources of information for the pre-sentence report should be prescribed by
regulation |
|
Clause 73 |
Prof
Terblanche CJB 16 |
1.1 Clause 73(1)(a) is potentially
confusing. The reference to clause
56(2) should be deleted since all it does is refer to clause 58(3) and (5). 1.2 The reference in clause 73(1) to clause
58(5) is slightly problematic when it comes to sentencing, because the
introductory part of that clause reads “Level two diversion options apply to
children where a court upon conviction of the child for the offence in
question is likely to impose a
sentence of imprisonment…”. This is
acceptable in the case of diversion, but it is problematic when it comes to
sentencing. A court which is likely to
impose imprisonment is not going to switch to a community-based
sentence. The wording of clause 58(5)
should be reconsidered, or a different method of cross-reference should be
found for section 73(1). 1.3 Clause 58(5)(a): In the interests of clarity, the words
“performance without remuneration of some service for the benefit of the
community” should be replaced with “community service” (the latter is in the
definitions clause). 1.4 Clause 73(1)(b) should be deleted, since
clause 58(3) and (5) contains such wide provision for all kinds of
community-based sanctions already, that there is nothing else that could
reasonably be imposed. Clause73(1)(b)
should, on the face of it, have included correctional supervision, but this
is dealt with only later in the Bill. |
|
Clause 76 |
Prof
Terblanche CJB 16 |
1.1 Section 276(1)(i) of the Criminal Procedure
Act, 1977,does not deal with the imposition of correctional supervision, but
with imprisonment from which the Commissioner of Correctional Services may
release the prisoner on correctional supervision and a court has no role in
deciding whether such release on correctional supervision will actually take
place or not. Our courts have held
this sentence amounts to a sentence of imprisonment. Clause 76(b) should therefore be deleted,
as should the age limitation in clause 76(a).
Courts already have the authority to impose imprisonment in terms of
section 276(1)(i) under clause 78, which deals with the imposition of
imprisonment. |
|
Clause 77 |
Prof Sloth-Nielsen (UWC) CJB 12 Prof
Terblanche CJB 16 |
1.1 The wording of this section
should be brought in line with the Children’s Act, 2005. 2.1 In comparison to other
sentences, very little guidance is given to sentencers when to impose this
form of punishment. It would appear as
if education will be the focus of the residential facility, but there is no
indication as to the severity of this punishment, or if it is punishment at
all. Inexperienced sentencers might
have no idea when to impose this kind of sentence, and until an authoritative
judgment is given there will be differences of opinion as to when this option
will be appropriate. |
|
Clause 78 |
CSPRI
CJB 10 Prof Sloth-Nielsen (UWC) CJB 12 Prof
Terblanche CJB 16 Catholic
Institute of Education CJB 18 Community
Law Centre (CLC) CJB11 CSIR
CJB 7 GSL
Youth Services CJB 15 SAHRC
CJB 19 RAPCAN
CJB 9 |
1.1 See submission under bifurcated
arguments. 1.2 Clause 78(5): The maximum prison sentence will not be used
selectively and sparingly, but generally. 1.3 The sentencing of children should be left
to the discretion of the sentencing court. Clause 69 of the 2002 Bill should
be re-instated in the Bill. 1.4 Parole:
Prisoners convicted of an offence committed as a child should be
considered for parole when he/she has served one third of a determinate
sentence or after five years, whichever comes first (as opposed to the
current requirement of serving at least half of a sentence or in the case of
a minimum sentence four fifths or twenty-five years, which ever comes
first). This would have the following
advantages: Offenders will serve the
larger proportion of their sentences in the community under the supervision
of the Department of Correctional Services, with access to their programmes
as well as those offered by NGOs. It
would exclude offenders from section 73(6)(b)(v) of the Correctional Services
Act, 1998 (minimum sentences provision).
This could be achieved by inserting the following new clause
78(3): “Unless a shorter non-parole period is provided for or specified
by the sentencing court, a child sentenced to a determinate period of imprisonment shall be considered for release
on parole or correctional supervision after he or she has served at least one third or five years of
the term of imprisonment, whichever comes first.”. 1.5 Clause 78(3), with its
reference to the Criminal Law Amendment Act, is a thinly disguised attempt to
create mini-adults based on two variables, firstly age and secondly the type
of offence. There is no substantive
motivation for distinguishing between 16 year olds and 15 year olds, for
example. The pre-sentencing report
required in section 72(1)(b) before a child can receive a custodial sentence,
is significantly diluted by the ‘substantial and compelling’ requirement in
the minimum sentencing legislation.
Clause 78(3) should be omitted from the Bill, since the formulaic
approach (age/type of offence/type of sentence) to sentencing children cannot
be accepted as being in line with the requirements and spirit of the
Constitution, nor the objects of sentencing prescribed in the Bill itself. 2.1 This clause needs to be brought into line
with the Criminal Law (Sentencing) Amendment Act, 2007, especially clause
78(3). Children should be expressly
excluded from the ambit of any minimum sentencing legislation, specifically
the 2007 Amendment Act, through an amendment affected by this Bill in Schedule
6. 2.2 There should be an express prohibition on
the imprisonment of children aged below 14 years as a sentence, as was
provided for in the original SALRC draft Bill. Clause 78(4)(a) makes it possible to impose
a sentence of imprisonment upon a child aged below 14 years. A similar provision should also prohibit
the pre-trial detention of children aged under 14 years. Very few children under 14 years are
convicted of serious offences and even where this happens these children are
usually diverted to community based sentences. 2.3 Clause 78(5): Unless a realistic maximum (such as 10 or
15 years) can be agreed upon, no statement of any maximum sentence should be
included in the Bill. This clause is
arguably an explicit contravention of the constitutional provision that
detention should be for the shortest period of time. Clause 78(6) is welcomed. 3.1 Children who are 16 and 17 years old should
not be subjected to a minimum sentencing regime. Sentencing regimes that fail to take
account of the youth’s age, prior record, disabilities, co-defendants, role
in the offence and lesser culpability fail to deliver justice, account for
development and rehabilitation or provide greater public safety. 4.1 Clause 78(1) should also refer
to the requirement that imprisonment should be “for the shortest period
possible”. 4.2 Clause 78(2): Life imprisonment cannot be an acceptable
sentence in terms of our international obligations, especially with reference
to the Convention on the Rights of the Child and cannot be said to be
imprisonment for the shortest period possible. 4.3 Clause 78(3): This clause should be reconsidered because
as long as the minimum sentences legislation is in force, children would have
to be sentenced in terms of its provisions anyway. 4.4 Clause 78(4): This subclause is going to be very
difficult and time-consuming for judges and magistrates to sort out all the
fine details, as well as for prosecutors in order to inform the accused of
the punishment he or she faces if convicted.
This information must, in terms of our current law and in the
interests of a fair trial, be included in the charge sheet. 4.5 The phrase “substantial and compelling
circumstances” has, until now, been used as exception when minimum sentences
should not be applied and it does not follow that these same principles could
be used for the opposite, namely as an exception when more severe punishment
is to be used. 4.6 With reference to Part I of
Schedule 3, item 4(b)(i) and (ii), in our criminal law every rapist is a main
perpetrator, there are no accomplices or co-perpetrators and similarly in
(ii) neither common purpose nor conspiracy exists in our criminal law as far
as rape is concerned (S v Kimberley 2005 (2) SACR 663 (SCA)). 5.1 Clause 78(3) confuses matters.
Bringing children aged 16-18 years
into play confuses matters and prejudices the rights of children aged 14-18
years, by splitting the group. 6.1 The 2002 Bill provided that
imprisonment is not an appropriate
sentence for children under the age of 14 years. The 2007 Bill allows children under the age
of 14 years to be sentenced to imprisonment.
This is neither in the best interests of children under 14 years nor
does it uphold the principle that imprisonment is a measure of last resort. Children
under 14 years should not be sentenced to prison. 7.1 No child should be subjected
to a minimum sentence. 8.1 It seems as if clause 78(6)
creates a legal principle that time spent in prison should be deducted from
the sentence imposed. The provision
may open up debate about adult offenders and other children who have spent
time in facilities other than prison.
Consideration should also be given to reduction of time spent in
detention before sentence if the time spent was productive in achieving the
outcomes of intervention programmes set by court when imposing sentence,
which the Bill does not do. 9.1 Minimum sentencing legislation is contrary
to 9.2 The maximum period of 25 years provided in clause 78(5) is quite lengthy
for a child. The Bill should ensure
that the children in such cases come regularly before the parole board, as
recommended by the Committee on the Rights of the Child. 10.1 Despite the fact that the
Bill provides that imprisonment is a measure of last resort, clause 78(3)
does not give effect to this principle, by providing for the application of
the minimum sentencing legislation in the case of children 16 years and
older, meaning that these children will not have access to non-custodial
sentencing options and will be sentenced to imprisonment for periods from 10
years to life imprisonment, if no
substantial and compelling reasons exist to impose a lesser sentence. The minimum sentencing legislation should
not be applicable to children 16 years and older and clause 78(3) should be
deleted. 10.2 Children convicted of any offence must have
access to alternative sentencing options contemplated in clauses 73 to 77,
where appropriate. |
|
Clause 81 |
Prof Sloth-Nielsen (UWC) CJB 12 |
1.1 Clause 81(2) could be strengthened by the
addition of - (i) a subclause requiring notification of
the head of the Justice Centre of malpractice, where the legal representative is employed
by such centre; and (ii) a sub clause providing for the
possibility of notification to the professional body concerned in the case of
a private practitioner. |
|
Clause 82 |
Prof Sloth-Nielsen (UWC) CJB 12 Catholic
Institute of Education CJB 18 Legal Aid Board CJB 22 |
1.1 The SALRC decided to exclude legal
representatives at preliminary inquiries, because it was at the time reasoned
that waiting for legal aid decisions would delay proceedings and prejudice
children and at the time there was a concern that most lawyers were ignorant
of or would frustrate access to diversion.
1.2 This situation no longer
exists for two reasons: 1) knowledge
of diversion amongst juvenile justice practitioners is generally endemic; 2)
the bulk of legal representation to children is being provided now via the
children’s units of the Legal Aid Board whose staff are fully appraised with
child justice developments. 1.3 The last phrase in the clause “consents
thereto as contemplated in section 39(3)(d) or 45(4)” should be deleted. The child should not have to require
permission for a legal representative to attend. 1.4 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 not only privately appointed and paid representatives, may
attend. 1.5 The above arguments (1.1-1.4) only pertain
to a preliminary inquiry which is a “proceeding” within the ordinary meaning
of the word and not to “assessments” which cannot be viewed as a “proceeding”
and where the consent requirement should apply. 2.1
This clause is unfair to poor children who are unable to
afford legal representation and it is proposed that the conditions in clause
83 should be extended to poor children in clause 82. 3.1 The legal representative of the child
should be included in the list of persons entitled to attend the preliminary
inquiry. Any evidence led or
admissions made during the preliminary inquiry should not be admissible in
evidence at the trial and such a provision should be inserted in the Bill. |
|
Chapter 10
- legal representation (Clause 83) |
CSPRI
CJB 10 Prof Sloth-Nielsen (UWC) CJB 12 Campus Law Clinic CJB 5 Child
Justice Alliance Driver Group CJB 13 |
1.1 Clause 83 presents a number of features
placing it at risk of falling short of the requirements of section 35(2) of
the Constitution, namely:
1.2 A 17 year old could be sentenced to life
imprisonment without the assistance of a legal representative at State
expense. 1.3 Clause 83(1) refers only to a residential
facility but should also refer to clause 78 and the possibility of sentencing
a child to imprisonment. 1.4 Legal representation at State expense must
be offered when: the child is in detention; the child is under 14 years of
age; or the child is facing the possibility of a custodial sentence. To achieve this it is proposed that
paragraph (b) be deleted and replaced by the wording “the child is in
detention”. Also that in paragraph (c)
the words “or section 78” is inserted. 2.1 The policy of the Legal Aid Board should
guide the provisions in the Bill and conditions for qualifying for legal
representation at State expense should not be more limited than current
(State) policy, which was formulated after the drafting of the 2002 Bill. 2.2 In clause 83(1) no mention is made of
sentences to imprisonment and no mention is made of the possible imposition
of a fine which, if not paid, may result inadvertently in a child’s
detention, which the Legal Aid Board lists as an existing criterion. 2.3 Existing policy provides that children and
adults appearing in Regional and High Courts automatically qualify for legal
representation and this should be spelt out.
The risk otherwise is that this position could supercede existing
policy commitments, resulting in a less favourable dispensation for children. 3.1 Every child has right to legal
representation in terms of Article 12 of the Convention on the Rights of the
Child and section 35, read with section 28 of the Constitution. The exclusion of children aged 16 and 17
years is contrary to these provisions and is not in the best interests of the
child. 3.2 Legal representation is not defined in the Bill. The definition must include that a legal
representative must be admitted as an attorney or an advocate in terms of the
applicable law, to ensure that quality of service is provided to children. 4.1 Child Justice Alliance (like the Campus Law Clinic and CSPRI)
argues that the Bill tries to give its own interpretation of section 35(2)(c
) of the Constitution in respect of children accused of crime. The exclusion of children aged 16 or 17
years is contrary to this provision (section 35(2)) which treats all accused
persons (adult and children) alike.
Clause 75 of the 2002 Bill should be reinstated. Proposed clause 83: “83. (1)
Subject to the Legal Aid Act, 1969 (Act No. 22 of 1969), a child must
be provided with legal representation at State expense at the conclusion of
the preliminary inquiry if no legal representative was appointed by the
parent or appropriate adult and if- (a) the child is in detention pending
plea and trial in a child justice court; (b) the proceedings are postponed for
plea and trial in a child justice court and it is likely that a sentence
involving a residential requirement maybe imposed if the child is convicted
of the offence in question; or (c) the child is under the age of 14 years (2) The prosecutor must indicate to the child
justice court whether he or she is of the opinion that the matter is a matter
contemplated in subsection (1) (a) before the child is asked to plead and if
so, no plea may be taken until a legal representative has been appointed. (3) If a child qualifies for legal
representation at State expense a request for legal representation must be
made to the Legal Aid Officer concerned in the prescribed manner as soon as
is reasonably possible”. |
|
Clauses 85
& 86 |
CSPRI
CJB 10 Child
Justice Alliance Driver Group CJB 13 |
1.1 The current wording of clauses 85 and 86
places the emphasis on two issues, namely age and the sentence of
imprisonment. Imprisoning children
incorrectly or for longer than absolutely necessary would constitute a
substantial injustice. 1.2 The current wording of clause 85 does not
give effect to the more progressive wording of section 309 of the Criminal
Procedure Act as amended by the Criminal Law (Sentencing) Amendment Act,
2007. Even this amendment does not go
far enough and provision should be made for all children who have received a
custodial sentence of longer than 5 years (being the shortest minimum
sentence) to have a right to direct appeal. 1.3 The intentions of clause 86 are regressive,
since it is more restrictive than the provisions in section 302 of the
Criminal Procedure Act, 1977, as the latter places no restriction in respect
of age. 1.4 It is therefore proposed that: (i) custodial sentences imposed by a magistrate’s court on a
child who is younger than 14 years be placed on automatic review; (ii) custodial sentences longer than three months imposed by a
magistrate’s court on a child who is older than 14 years be placed on automatic review; (iii) all children sentenced to custodial sentence by a Regional
Court or High Court have access to direct appeal if they were unrepresented upon conviction; (iv) children sentenced to a custodial sentence of longer than five
years have access to direct appeal even if they
were represented upon
conviction. 2.1 There should be no distinction
between children below 16 years and children above 16 years. Children who are sentenced to long period
of imprisonment when represented by a legal representative should also be
protected in terms of this clause. 2.2 There should be a clause requiring the
court to consider releasing a child on bail pending review. 2.3 Subclause (b) and (c) of clause 85 should be
amended as follows: b) at least 14 years or older and was not assisted by a legal
representative at the time of conviction in a regional court or high court,
and has been sentenced to any form of a custodial sentence that was not
wholly suspended, or (c) at least 14 years or older and was
assisted by a legal representative at the time of conviction, and has been
sentenced to a custodial sentence of 5 years or more that was not wholly
suspended 2.4 Subclause (b) of clause 86 is amended by
adding at the beginning of the sentence the word “at least 14 years of age or
older and…”. |
|
Clause 88
- Expungement of Records |
RAPCAN
CJB 9 |
1.1 Clause 88(2) prohibits the
expungement of criminal records of children who have been convicted of a
Schedule 3 offence. Some of the
offences in Schedule 3 are not very serious, eg exposure of female breasts
and consensual sexual acts between certain children. Offences in Schedule 3 should also be
subject to expungement and clause 88(2) should be deleted and clause 88(3)
amended accordingly. |
|
Clause 94 |
Prof Sloth-Nielsen (UWC) CJB 12 Child Justice Alliance CJB 13 |
1.1 “Instrumentalisation”: The use of children by adults in illicit
activities. Clause 94 should be
deleted since it creates a situation vulnerable to constitutional attack as constituting
an infringement of the prohibition against double jeopardy (being liable to
double punishment for the same offence).
Section 141(1)(d) of the Children’s Amendment Bill, 2006 read together
with a consequential amendment to section 305 of Act 38 of 2005, already
creates a specific offence in this regard. 2.1 The children who are
used by adults commit crimes that range from shoplifting, to narcotic
offences, to housebreaking or murder. These are children who are victims of
exploitation and in need of interventions to assist them in being able to
prevent such use again. Therefore to exclude certain children based on age of
offence category from essential services such as assessment, preliminary
inquiry and diversion will prejudice not only all children in conflict with
the law but those who are not only offenders but victims as well. The
Children’s Amendment Bill 19F of 2006 has created an offence for a person to
use a child to commit crime. Therefore
the Child Justice Alliance once again re-iterates its submission that no
child should be excluded from processes contained in the Bill, such as
assessment, the preliminary inquiry or diversion based on age or offence
category. |
|
Clause 95 |
CSPRI
CJB 10 Prof Sloth-Nielsen (UWC) CJB 12 RAPCAN CJB 9 Child
Justice Alliance Driver Group CJB 13 |
1.1 The intentions of clause 95(2)(c) are
supported, but the clause should be amended in order to incorporate the
indicators stipulated in the UNODC & UNICEF (2007) Manual for the Measurement of Juvenile Justice Indicators. See
page 20 appendix 1 of submission CJB 10. 2.1 Clause 95(1) should be amended
so 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.
This submission is motivated by arguments that legal representatives
should have specialised training in child justice matters. 2.2 The requirement to collect
data should not be vague and left to be dealt with by regulation. They should be contained in the principal
Act. All departments should collect
data and the principle responsibility for systems information should rest
with Department of Justice and Constitutional Development. 3.1 Clause 95 is supported since
it will address current weaknesses in information systems. Data relating to the functioning and
outputs of the child justice system must be reported publicly, at least once
a year. Clause 95 should specifically
require the Justice Minister to report data collected in terms of clause
95(1)(a), (b) and (c), (2)(a), (c) and (d) to
the public at least once a year. 4.1Child Justice Alliance objects
to the exclusion of certain children from diversion and submits that clause
95(5) be amended to allow NPA to exercise its prosecutorial discretion to
divert in accordance with its own guidelines as it has been doing. Proposed clause (5) (a) (i) “the manner in which prosecutorial
discretion is applied to a decision to divert a child” |
|
Clause 63
[Separation or joinder of trials ] |
Prof Sloth-Nielsen (UWC) CJB 12 Community Law Centre (UWC) CJB 11 |
1.1
The 2002 Bill gave direction to the prosecution services
in this regard and that apart from the mention now in clause 63(2) (in as far
as it contemplates joint trials) no mentioning is made of this and therefore
it is proposed that clause 57(1) of the 2002 Bill which stated that where a
child and an adult are alleged to have committed the same offence, they are
to be tried separately be reinserted. 2.1 The argument is tied to the
issue of children used by adults to commit crime. Research has shown that children are often
scared or intimated and therefore do not reveal that they were used or
influenced to commit an offence.
Clause 57 (1) of the 2002 version of the Bill must be reinstated. |
|
Schedule 6 |
Prof
Terblanche CJB 16 |
1.1 The amendment of section 276A(2) of the
Criminal Procedure Act, 1977, is not supported, based on the arguments above
relating to clause 76 regarding the describing of imprisonment that is
referred to in section 276(1)(i) as correctional supervision 1.2 The Criminal Law Amendment Act, 1997,
brings the proposed amendments in line with the Criminal Law (Sentencing)
Amendment Act, 2007 (Act 38 of 2007).
The amendment to section 51(6) is supported particularly because the
reference to clause 78(1) will be useful to give greater clarity on the
Legislature’s acknowledgement that the imprisoning of children should be
approached in a different manner to imprisonment for adults. |
|
Quality of Infrastructure, service and conditions at
facilities for the detention of children |
GSL
Youth Services CJB 25 Heidi
Sauls CJB 2 SAHRC
CJB 19 |
1.1
GSL has conducted an independent audit on the quality of
the infra-structure, services and conditions on the facilities and found that
NONE of the facilities can be said to be in the best interests of
children. Most critical aspects are:
unsafe and dilapidated buildings, total lack of care, untrained and unmotivated
staff, etc. 1.2
One political head
should be appointed to deal with co-ordinating all services for children in
trouble with the law in order to ensure a non-fragmented service. It is further submitted that: (i) minimum standards for residential care should form part of
the Bill as with diversion programmes; (ii) regular audits or inspection of infrastructure and
services at the facilities be provided for in the Bill; and (iii) the role of independent agencies for such audits and
inspection be included in the Bill. 2.1 The role of a “place of safety” should be
redefined. As it stands, these
institutions take children away from their environment and place them in a
different “space and “culture”. 3.1 The Commission is concerned that detained
children awaiting trial do not have access to basic education. A provision requiring access to basic
education for children in detention should be added in Chapter 4. Children in detention, including those in
police cells, should be provided with adequate age-appropriate stimuli,
consistent with the recommendations of the UN Committee on the Rights of the
Child. |
|
Provisions
of the Bill relating to sexual offences with particular reference to the
different Schedules in the Bill |
RAPCAN
CJB 9 |
1.1 The provisions of the Bill dealing with
young sexual offenders do not take a long term preventative approach. Such an approach will facilitate
rehabilitation and break the cycle of violence by children who generally
respond well to appropriate individualised interventions, reducing
recidivism. The current criminal
justice and correctional systems, on the other hand, increase the risk of
young offenders (sexual or not) being exposed to sexual offences. The Bill should therefore focus more on the
treatment of young offenders on an individualised basis. Critical decisions relating to the
management of young sexual offenders should therefore be informed by
assessments which will assist regarding pre-trial decisions, eg. custodial or
other placement, diversion and bail. 1.2 Treatment programmes ensure that young
sexual offenders are held accountable.
They assist such children from engaging in further harmful behaviour
and they are not a soft option, but are rather an option which has the
interests of the victim and the community at their core. There are only a few treatment programmes
for young sexual offenders in SA at the moment. Creating an enabling legislative
environment, will encourage the development of further appropriate programmes
for this category of offender. 1.3 In regard to sexual offences particularly,
an attempt has been made to divide offences into various levels of
seriousness in the Schedules but they are then dealt with differently. For instance, less serious offences are
categorised with the more serious ones, eg Item 5 of Part I of Schedule 3 (a
child who shows pornography to another child) and Item 5 of Part II of
Schedule 3 (exposure of female breasts or genital organs to a child) are
included with the most serious sexual offences, eg gang rape, which is
harmful and counter-productive. In
order to determine the seriousness of sexual offences meaningfully, RAPCAN
suggests that the sexual offences contained in Schedule 2 to the Criminal Law
Amendment Act, 1997 (minimum sentence legislation) should be used as a
reference point. These are considered
to be the most serious sexual offences and should be listed in Schedule 3 to
the Child Justice Bill. Offences such
as flashing and showing pornography to children should not be in this list. 1.4 The structure of
the schedules and cross-referencing between sections of the Bill and the
various items within the schedules are unwieldy and will cause problems with
implementation. The treatment of
sexual offences in Schedule 2 and Part II of Schedule 3 should be consistent
across the different clauses in the Bill and could all be included in a
single schedule. 1.5 The offence of bestiality appears in
Schedules 1 and 2 and should be removed from Schedule 2. |
|
Schedules |
SAHRC
CJB 19 |
1.1 Fewer Schedules will simplify
the Bill. Certain offences appear in
both Schedules with no clear distinguishing feature, such as bestiality which
appears in Schedules 1 and 2. |
|
General Comments |
SAHRC CJB 19 RAPCAN
CJB 9 |
1.1 The
drafting style of the Bill is convoluted and makes it difficult to read and
understand. For instance- (i) many
definitions refer to clauses of the Bill and the definition is actually
contained in the section, such as “child” .. in
some instances means a person contemplated in section 4 (2) (a) or (b); (ii) many
clauses with “ or” do not expressly provide for the alternatives but rely on the context, such
as clause 67 (2)(a), it is not clear
what brings the two-year detention
period to a close, is it conviction or
sentencing? The positioning of clause 67(2)(b)(i) and
(ii) makes them seem to apply only to clause 67(2)(b) and not (a). If these subclauses
are to be kept, they should be re-numbered for clarity; (iii) clause
8 is complicated and not easy to understand. 1.2 The
Bill should be aligned with the Children’s Act, 2005 which repeals the Child
Care Act, 1983. 2.1 Complexity of Bill: The Bill is exceptionally complicated and is a
substantial departure from the 2002 Bill.
Much of the complexity can be ascribed to the fact that the Bill now
stratifies the treatment of children, based on the age of the child and the
offence the child is alleged to have committed. The multitude of different ways a child can
be dealt with in terms of the Bill gives rise to this complexity, which will
result in confusion for functionaries who are required to implement the
Bill. 2.2 Apart from the complexity of the Bill, the
stratification of children in terms of age and offence will deny children
basic services, eg the benefits of assessment and a preliminary inquiry which
are intended to provide vital information to decision-makers in the system,
thereby defeating some of the main objects of the Bill. 2.3 The above-mentioned stratification is
especially relevant in the case of sexual offences committed by children,
which are dealt with in different ways in the Bill, excluding many children
in this category from the benefits of assessment and the preliminary inquiry,
which could prevent further sexual offending by the child and ensure that the
best decisions are taken in relation to the safety of the community and the
victims of the offence, more particularly in the period before the trial. 2.4 Positive elements of the Bill: The diversion of certain children
from the formal criminal justice system, prosecutorial diversion, the
introduction of restorative justice principles, the introduction of the
preliminary inquiry in respect of certain children, the inclusion of persons
18 years and older but below 21 years in some aspects of the Bill and the requirement
that certain issues relating to children must be reported to Parliament. 2.5 Negative elements of the Bill: Its complexity and stratification,
the unwarranted harsh treatment of 16 and 17 year old children, the fact that
the Bill does not promote crime prevention for all children and particularly
in relation to sexual offenders, there is inconsistency with the principles
being applied in the Bill. 2.6 Promoting crime prevention in the Bill: The Bill must protect children in
conflict with the law, hold them accountable for their behaviour and prevent
repeat offending behaviour, meaning that resources should be targeted at
those at risk of offending again, particularly by means of interventions
which are directed at the promotion of crime prevention and the reduction of
child offenders. The Bill reduces
these opportunities because certain children are excluded from certain
procedures and services. |