DEPARTMENT’S RESPONSE TO COMMENTS ON THE CHILD JUSTICE BILL, 2002
|
Clause no./ Theme |
Commentator |
Response |
|
Assessment |
The
Centre for Child Law (Dr Skelton) CJB 6 Department
of Social Development (UCT) CJB 8 CJB14 Child
Justice Alliance CJB13 Childline
CJB3 CSIR
CJB7 Community
Law Centre (UWC) CJB11 NICRO
CJB17 SAHRC
CJB19 RAPCAN
CJB9 |
1.1 From an analysis of the sections in the
Children’s Act, 2005 read together with the clauses in the Children’s
Amendment Bill, 2006 the approach proposed in clause 35(b) is in line with
the established practice in these pieces of legislation.
1.2 The Bill is primarily about children in
conflict with the law. It is not
discounted that prevention is very important and necessary of child offending
but the Child Justice Bill addresses the plight of children within the
criminal justice system. The
Children’s Act, 2005, and other related statutes address socio-economic
issues. Traditionally the justice
system for lack of other services, continues to be the only resort as opposed
to the last resort in dealing with conflict.
This Bill can therefore only incorporate programmes at the tertiary
level. The current structure of the
Bill in terms of which not all children are assessed, not all children go to
preliminary inquiries and not all children qualify for diversion is the
result of deliberations of the Committee.
The provisions of the 2007 Bill giving effect to this have been
drafted at the request of the Committee.
When the Committee came to the conclusion it did in this regard, it
argued that the principles of proportionality require this. The Committee was also of the view, after
hearing the views of roleplayers during the public hearings and roleplaying
Departments particularly, that there simply was not the capacity at that
stage to give effect to the Bill as it was introduced into Parliament. 1.3 None of the presenters could clearly identify
whom they had in mind to assist probation officers – i.e. who will be “other
suitably qualified persons”? It might
be inappropriate to provide for such a vague provision in a Bill if it is not
possible to give practical effect thereto.
2.1 Consideration could be given to
incorporating the definition in Probation Services Act, in order to align the
two statutes and add “as contemplated in Chapter 5” to cover what may not be
covered by the definition in the Probation Services Act. 2.2 Again, it is not clear from discussions in
the Committee precisely who would be well placed to assist. No specific proposals in this regard were
tabled. Probation services is a
specialised field, requiring certain expertise. Probation officers are appointed in terms
of the Probation Services Act, 1991, as officers of the court, tasked with
conducting assessments, compiling assessment reports and presenting the
reports in court. It will not serve the best interests of children to
increase the pool with people lacking the required expertise. 2.3 See paragraph 1.2
above. 2.4 Whether to assess a child or not is based
largely on the type of offence committed and not on age. Age is particularly relevant in the case of
children under 10 years or in the case of children between 10 and 14
years. 2.5 Comments on clauses 39 and 40 are unclear
since the words “must”, which is prescriptive, is only used in reference to
the child and his/her parents. For the rest it refers to “may”. It must also be noted that legal
representation is not prohibited during assessment, if the probation officer
agrees. (refer to response on legal representation) 3.1 See paragraph 1.2 above. 4.1 See paragraphs 2.1 and 2.2. There should not be a multitude of
definitions. 4.2 See paragraphs 1.2 and 2.4 5.1 See paragraphs 1.2 and 2.2 5.2 See clause 38 which already encourages what the
commentator is suggesting and these issues must, in terms of clause 38, in
any event, be prescribed by regulation. 5.3 This is covered by clause 39(3)(d). 6.1 See paragraph 1.2 7.1 See paragraph 1.2 8.1 See paragraph 1.2 9.1 See paragraphs 1.2, 2.2 and 2.4 10.1 See paragraph 1.2 |
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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
According to the structure of the Bill preliminary
inquiries will only apply to certain types of offences. This is in line with the approach adopted
in respect of assessments. Children
who are not assessed do not go to a preliminary inquiry but proceed directly
to trial. See paragraph 1.2 under
assessment. The primary purpose of the
preliminary inquiry is to test suitability for diversion. This is an example of the restorative
justice system; hence the concept of
acknowledging responsibility. 1.2 Noted 2.1 It must also be noted that one of the
purposes of the preliminary inquiry is to consider diversion. Children who committed serious and violent
offences may not be diverted. It will serve no purpose then to allow that
child to go through a preliminary inquiry.
See paragraph 1.2 under assessment. 3.1 Consideration could be given to stating the
objects of a preliminary inquiry as in the 2002 Bill, although some of the
original objects can be found in clauses 48 and 50 of the 2007 Bill. 3.2 See paragraph 1.1 4.1 Refer to response under clause 82 (paragraph
1.1). 4.2 See clause 50(4)(b). |
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Diversion |
The
Centre for Child Law (Dr Skelton) CJB 6 Childline
CJB 3 Community
Law Centre(UWC) CJB 11 NICRO
CJB 17 Legal
Aid Board CJB 22 SAHRC
CJB 19 RAPCAN
CJB 9 Child
Justice Alliance Driver CJB 13 |
1.1 According to the structure of the Bill
diversion can only be considered in respect of certain less serious
offences. This is in line with the
approach adopted in respect of assessments and preliminary inquiries. Children who are not assessed do not go to
a preliminary inquiry and cannot be considered for diversion, but proceed
directly to trial. See paragraph 1.2
under assessment. The Bill is in line with
international instruments regarding diversion: (a) Rule 11 of the United Nations Standards Minimum Rules for
the Administration of Juvenile Justice (The Beijing Rules) provides that “consideration shall be given, where appropriate, to dealing with juvenile offenders without resorting to formal trial by a
competent authority. This is an
indication that even international bodies acknowledge
that there will be instances where diversion will be inappropriate. The seriousness of the offence is used as a determining factor to determine
the appropriateness of diversion. (b) It is noted that the Committee on the Rights of a Child in
its General Comment No 10 (2007) pointed out clearly (para 13) that it is left to the discretion of the State
Parties to decide on the exact nature and content of measures for dealing with children in
conflict with the law without resorting to judicial proceedings, and to take the necessary legislative and
other measures for their implementation.
In paragraph 12 the Committee states that
it is the Committee‘s opinion that the
obligation of States parties to promote measures for dealing with children in conflict with the law without
resorting to judicial proceedings applies with respect to children who committed minor offences, although
not limited to that. 2.1 See paragraph 1.1 and response in respect
of clause 57 2.2 The view is held that
reasonable maximum periods have been set, namely 12 and 24 months: see clause 58(4)(a) and (b)) Clause 58(4)(c) moreover allows diversion
options of a longer period. This is
for level 1 diversion options. Clause
58(6) determines even longer periods for level 2 diversions options. 2.3 See paragraph 2.1 and 2.2 under assessment. 3.1 See paragraph 1.1 4.1 See paragraph 1.1 4.2 See paragraph 2.2 5.1 Regarding the concern about the child acknowledging
responsibility for the offence before diversion, it is argued that it would
make no sense to refer the child who
has not acknowledged responsibility to a diversion programme as this will not
benefit the child who does not acknowledge any wrongdoing. It is also in line with General Comment No
10 (2007) which stipulates in paragraph 13 that “ Diversion should be used
only when there is convincing evidence that the child committed the alleged
offence, that she/he freely and voluntarily acknowledges responsibility and
that no intimidation or pressure has been used to get that acknowledgement,
and that the acknowledgement will not be used
in any subsequent legal proceeding”.
This Bill contains almost similar provisions in clause 50. Reference is also made to the definition of
“acknowledges responsibility” in clause 1 of the Bill which means
acknowledging responsibility for the offence without a formal admission of
guilt. 6.1 The Department agrees that diversion should
not be used or seen as a criminal record, but it is crucial to consider
previous diversions when diversion is considered in order to identify the
effect (success or failure) of the previous, if any diversion programme and make an informed
decision. It must also be noted that the
NPA’s Prosecuting Policy provides that offenders
(including child offenders) with a criminal record and persons to whom the
opportunity (of diversion) has been granted previously should only be
included (in diversion) in exceptional circumstances. 7.1 and 7.2 See paragraph 1.1 7.3 See response under clause 57 8.1 The Department agrees that the power to
institute and conduct criminal proceedings and to carry out any necessary
function incidental to instituting and conducting criminal proceedings lies
with the prosecuting authority (section 179(2) of the Constitution). It must also be noted that the NPA
Prosecuting Policy provides in Part 7
paragraph 3 that diversion is inappropriate where the charge is one of
murder, robbery with aggravating circumstances, rape or any similar
offences. These are some of the
offences listed in Part 1 of Schedule 3, which are not divertible. It must also be noted that NPA’s
Prosecuting Policy is done in consultation with the Minister of Justice and
Constitutional Development. |
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Bifurcation (age and
offence differentiation) |
The
Centre for Child Law (Dr Skelton) CJB 6 Child
Justice Alliance RAPCAN
CJB 9 |
1.1 The manner in which different children must
be dealt with in terms of the Bill, giving rise to the so-called bifurcation,
is in line with the Committee’s previous deliberations in terms of which
children who commit serious offences do not qualify for diversion and
therefore are not assessed and do not go to a preliminary inquiry, but go
straight to trial. This is a policy
matter. From CSPRI statistics it is
clear that most of the sentenced children fall in the age category of 16 and
17 year olds and these are associated with more violent crimes. It therefore follows to differentiate
between these categories. See also response under clause 78. 2.1 and 2.2 This was a specific policy decision taken
by both the Executive and Parliament – refer to the arguments under clause
78. See paragraph 1.1 as well. 3.1 This age group is actually included in all
clauses referred to, for instance: Clause 83(1)(c) – does not exclude
16 -17 year olds. Clause 85(1)- the Criminal Law (Sentencing)
Amendment Act, 2007 – section 6 –
amended section 309 of the Criminal Procedure Ac, 1977 and 14 years amended to 16 years and 16 years – amended – 18 years (covering the 16 year old and the 17 year
old.) Clause 86- as above Clause 88- expungement depends on
the offence and not the age- this does not exclude the 16 and 17 year olds. See also paragraph 1.1 |
|
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 Bishops’ Conference
CJB 21 |
1.1 The minimum age of 10
years was the recommendation of the SALRC after extensive research and
consultations. In arriving at the recommendation the Commission took into
consideration the diverse nature of South African society, differences in
upbringing, maturity and development.
The Commission also took into consideration other factors that play a
role in shaping the development of a child, such as culture, rural and urban
environment and socio-economic and educational factors. The Commission indicated in its Report that,
during its research and consultation, there was significant support for
setting the minimum age of criminal responsibility at 12 years but, on
considering all the above factors, the Commission was convinced that the
minimum age be set at 10 years. The UN
Committee on the Rights of the Child can merely make recommendations. The opinion is held that we are not “in
contravention of the CRC”, as indicated since the CRC does not prescribe what
each States Party’s domestic law must be in this regard. The Committee on the Rights of the Child
merely encourages States Parties “to increase their low MACR to the age of 12
years as the absolute minimum age and to continue to increase it to a higher
age level”. The Committee on the
Rights of the Child makes concluding observations in considering a state
report. These are not binding and it
is up to the State Party to determine its national policies in this regard. Raising the age to 12 years will increase
the risk of children being used by adults to commit crimes. Children will be more susceptible to being
used by adults if the age is raised.
The Departments are putting in place indicators to identify children
who are used by adults to commit crimes. 1.2 It is noted that the UN Committee on the
Rights of a Child, in its concluding
observations in 2007, noted that SA has, through its draft legislation (2002
Bill) increased the age of criminal responsibility from 7 to 10 years, but
recommended that South Africa should consider increasing the age of criminal
responsibility from 10 years. It
must be noted that these are recommendations made by an international body. See also paragraph 1.1. 1.3 See paragraph 1.1 1.4 See paragraph 1.1 1.5 The term “criminal capacity” has been used
to date, even in the 2002 Bill.
Consideration could be given to adapting the Bill, if the Committee
agrees. 2.1, 3.1,
4.1, 5.1, 6.1 and 7.1 See paragraph
1.1 6.2 Children under 10 years do not get arrested
and are not brought to court. The
proposal of the SAHRC that children between 10 and 14 years be treated as
children under 10 years would be difficult to implement in practice. See also paragraph 1.1 |
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Preamble |
Catholic
Institute of Education CJB 18 CSIR CJB 6 |
1.1 The proposal possibly has merit . 2.1 The elements in the proposed addition to
the Preamble are already addressed in the Preamble |
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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”: In the deliberations of the Committee
during the public hearings on this submission it was pointed that the
definition in the Bill is wide enough, covering the elements in the proposal
of the Restorative Justice Centre. Since
there are no definitions in legislation in other countries to refer to, it is
suggested that the definition in the Bill be retained, especially in the light
of the clause 58(7), which envisages a wide range of restorative justice
options. The proposed definition is
too long and is not appropriate as a definition in legislation. In the alternative: WE can amend the definition to read
“restorative justice” means the promotion of reconciliation, restitution and
responsibility through the involvement of all interested parties”. 2.1 The
definitions will be aligned to the Children’s Act. The definition of “child” in clause 1
refers to clause 4, which, in turn, includes all the categories of children
referred to by the Catholic Institute of Education, except the category of
children aged between 16 and 18 years.
It is not necessary to refer to this category specifically here. It is covered in the category of children
between 14 and 18 years. 3.1 The Committee may consider deleting the
phrase “and has a prior relationship of responsibility towards the child”. 3.2 See paragraph 1.1 4.1 See paragraph 2.1. The term “lock-up” is used elsewhere in
legislation, eg Correctional Services Act, 1998, but is not defined. Definition
of police cell in clause 1 spells out what a lock-up is. 5.1 The term “lock-up” is used elsewhere
in legislation, eg Correctional Services Act, 1998, but is not defined. Definition of police cell in clause 1
spells out what a lock-up is. 6.1 The Legal Aid Board does not seem to
understand that children between the ages of 18 and 21 could be dealt with
differently by the Bill. The SALRC in its
Report (on page 26) explained the exception with regard to the application of
the Bill to 21 year olds as follows:
“The Commission proposes limited exceptions to the general rule (that
the Bill only apply to children below 18 years of age), and details three
instances…The most significant of these are instances where, in the
discretion of the Director of Public Prosecutions, a person’s individual
circumstances are such that such person would benefit from the protections
contained in this Bill, and where several persons are co-accused of the same
offence while the majority of them are below the age of 18 years. The exceptions apply only if the accused
person in respect of whom the extended jurisdiction is sought is below the
age of 21 years. The provisions have
been included in order to provide more flexibility to the prosecution. There may well be occasions where a person
who has just attained the age of 18 years, is still attending school, and
could benefit from the diversionary procedures spelt out in the Bill. Similarly, where a group of children is
alleged to have committed the same offence, it may be artificial to separate
the cases of one or two who are slightly older from those of their
contemporaries”. This response also
covers the Legal Aid Board’s concerns regarding the definition of “child”. Furthermore the UN Committee on the Rights
of the Child in its general comments No 10 (2007) in paragraph 21, states as
follows: “The
Committee notes with appreciation that some States Parties allow the
application of the rules and regulations
of juvenile justice to persons aged 18 and older.”. 6.2 This is a definition for “appropriate
adult” not just person, but maybe the word “adult” could be inserted in the
definition although it is self explanatory. 6.3 Refer to the response under paragraph 6.1
- if this definition is used as
suggested by the Legal Aid Board then it will exclude the under 10 year olds
who even though they do not have criminal capacity in terms of the Bill will
be dealt with under the Bill. |
|
Clause 3 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 The proposal seems to introduce the notion
of “respect “ for cultural values and beliefs”. Determination of cultural values is a
question of evidence and the discretion of the court. 1.2 Consideration could be given to the
following wording, which is similar to the wording in section 35(3)(d) of the
Constitution: “All procedures in terms
of this Act should be conducted and concluded without unreasonable delay”. 2.1 Guiding principles are there to guide
persons responsible for the application of the law. By their nature they should not be
mandatory. They are guiding
principles; not directives. Clause 3(f) of the 2007 Bill presupposes
contact with family members. The Bill
is primarily about children in trouble with the law. Notwithstanding this there are clauses
later in the Bill which deal with the social needs of children, eg clauses 51
and 64 2.2 &2.3 Clause 3(a) of the 2007 Bill deals with
proportionality. Consideration could
be given to including the concept that children may not be treated more
severely than an adult in the same circumstances. Clause 3(2) of the 2002 Bill deals with a
specific aspect of the Bill. The
guiding principles should deal with overarching aspects. Clause 21 of the 2007 Bill, in any event,
deals with sets out the approach to be followed when considering release or
detention. |
|
Clause 5 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 The
best interests of the child is an integral part of the Bill. One of the objects of the Bill as provided
for in clause 2(a) of the Bill is to protect the rights of children as
contemplated in the Constitution (section 28). Section 28 (2) provides that the best interests of the
child are paramount. It is noted that
the commentator based his argument on Article 3 item 1 of CRC – which provides that in all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration. It must also be noted that the UN Committee
on the Rights of a Child noted in its General Comment No.10 (2007) [para 10,
page 6 – Interventions] that it is necessary to develop and implement a wide
range of effective measures to ensure that children are dealt with in a
manner appropriate to their well-being and proportionate both to their
circumstances and the offence. Again,
in paragraph 25 the Committee emphasised the proportion not only to the
circumstances and the gravity of the offence, but also to the age, lesser culpability,
circumstances and needs of the child, as well as various, and in particular,
long term needs of society/public safety. It should also be borne in mind that
another object of the Bill, as set out in clause 2(b)(ii), is to promote the
spirit of ubuntu in the child justice system through reinforcing children’s
respect for human rights and the fundamental freedoms of others by holding
children accountable for their actions and safe-guarding the interests of the
victims and the community. Furthermore,
clause 3(a), one of the guiding principles provides that all consequences
arising from the commission of an offence by a child should be proportionate
to the nature of the offence. 2.1 The approach adopted in clause 5 is related
directly to the overall scheme of the Bill in terms of which children who
have committed serious crimes go directly to court for trial. This is what the Portfolio Committee
decided. |
|
Clause 6 |
Prof Sloth-Nielsen (UWC) CJB 12 Catholic Institute of Education CJB 18 Legal Aid Board CJB 22 |
1.1
Noted 1.2
Clause 9 should be
inserted in clause 6(2) 2.1 Noted.
3.1 Clause 6(2) is not repealing but amending
the common law to the extent that it changes the age of criminal capacity
from 7 to 10 years. The reference in
clause 6(2) to “children below 10 years” should be to “children below seven
years”. Clause 6(2) should also refer
to clause 9. 3.2 Clause 6(1): The fact that the child committed an
offence is not the issue in question.
What is of importance is the fact that because the child is below the
age of criminal capacity he or she will not be prosecuted for the offence. The opinion is held that clause 6(1) should
remain unchanged. It seems incorrect
to follow the approach in terms of which the act which constitutes the offence
will be referred to as “an act which would otherwise constitute a criminal
offence in law”. |
|
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 CBJ 22 |
1.1 The proposal regarding the
amendment of clause 7(3)(b) should be considered. 1.2 The meeting envisaged in this
provision was specifically aimed at a child in this age category that has committed
an act with serious consequences and to limit such meetings to these
instances. This meeting is to be
arranged at the instigation of the probation officer and it would be up to
him or her to decide if the circumstances call for such a meeting. 1.3 It is important for the court to play an
oversight role. The could be
instances, for example, where the court might not agree with the decision of
the probation officer or where the probation officer decides to take no
action. 2.1 This should be an option
available to probation officer, depending on the findings of the assessment. The requirement that the decision of the
probation officer must be made an order of court as contemplated in clause
7(7) will address any failure by a probation officer to carry out his or her
duties properly. 3.1 The
heading is not misleading: the bulk of
the clause deals with what is provided in the heading. There are many instances in other statutes
where this is the case. 4.1 See paragraph 2.2 under assessment. The Committee has already heard evidence to
the effect that the Department of Social Development is not planning to use
“other suitable persons”. 5.1 Clause 7(1) already requires a police
official to take the child home immediately after arrest. The 48 hours extension is there to provide
flexibility for practicalities which undoubtedly exist. 6.1 The actions prescribed under clause 7(3)(a)
should be read within the context of paragraph (b) which makes it clear that
any actions under paragraph (a) may not require a child to be held
responsible in any way for the incident that led to the assessment. An assessment is not a trial and the
consequences thereof are to help the child and not to punish the child. The Committee might also remember Prof
Terblanche’s submission in which he indicated that even if children do not
have criminal capacity, they often need assistance in some form or another to
address the delinquent behaviour. |
|
Clause 9 |
Child Justice Alliance CJB 13 Legal Aid Board CJB 22 SAHRC CJB 19 |
1.1 The 2.1 See paragraph 3.2 under clause 6. 3.1 SAHRC would seem to be raising the same
concern expressed by the Child Justice Alliance under paragraph 1.1. Clause 9(2) does not deal with an inquiry
about criminal capacity. |
|
Clause 10 |
Prof Sloth-Nielsen (UWC) CJB 12 Child Justice Alliance CJB 13 Childline CJB 3 Legal Aid Board CJB 22 |
1.1 & 1.2 Clause 10(2) does not only provide that the assessment report of the probation officer
should be taken into account to determine criminal capacity. It also states “and all evidence placed
before it prior to diversion or conviction, as the case may be, which
evidence may include a report of evaluation referred to in subsection
(3)”. The 2002 Bill, clause 5 read
with clause 56 does not seem to provide for compulsory evaluations, as
alleged. It would seem as if the 2007
Bill broadly retains the principles of the 2002 Bill in this regard. Resource constraints must always be borne
in mind. 2.1 See paragraphs 1.1 and 1.2. Clause 95(4) requires the Minister for
Justice and Constitutional Development to make regulations determining the
persons who are competent to do the evaluation of criminal capacity of
children contemplated in clause 10(3) and to determine allowances and
remuneration of such persons. If the court
orders such an
evaluation as set out in clause 10(3), the State must pay. 3.1 See paragraphs 1.1 and 1.2 3.2 The proposal could be considered. 4.1 The proposal Could be considered. 4.2 See paragraph 6.1 under clause 7 |
|
Clause 11 |
The
Centre for Child Law (Dr Skelton) CJB 6 Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1. The manner in which different
children must be dealt with in terms of the Bill, which is spelt out in
clause 11, is in line with the Committee’s previous deliberations in terms of
which children who commit serious offences do not qualify for diversion and
therefore are not assessed and do not go to a preliminary inquiry, but go
straight to trial. 2.1 See comments under paragraph 2.1 in respect
of clause 1. 3.1 See paragraph 1.1 |
|
Clause 13 |
Legal
Aid Board CJB 22 |
1.1 This is already covered by clause 13(3) in which
provision is made for any relevant documentation to be submitted together
with the age estimation to serve as motivation for making a determination on
the latter. The proposal could be
considered. 1.2 This could be considered. |
|
Clause 16 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 Paragraph (c) should probably
refer to 14-18 year olds (10-14 year olds already covered by (4)(iii) above). 2.1 There are some provisions in the Bill which
have consequences as far as age is concerned.
The example the 2.2 We agree with the comment. 2.3 Noted.
|
|
Clause 17 |
Catholic
Institute of Education CJB 18 |
1. 1 This is not necessary since
clause 4 makes it clear that only Part 2 of Chapter 2 applies to children under the age of 10
years. In terms of clause 6 a child
below the age of 10 years may not be prosecuted, therefore may not be
arrested. |
|
Clause 18 |
SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 There are enough safeguards
built into the Bill to ensure police officials comply with the Bill. Clause 95, for instance, requires the
National Commissioner of SAPS to issue national instructions regarding clause
18. Failure by police officials to
comply with National Instructions is subject to sanction. Consideration could, however, be given to
this proposal of the SAHRC. 2.1 The opinion is held that it is useful to
have paragraph (b). It does no
harm. There could very well be other
compelling reasons justifying the arrest. 2.2 The phrase is necessary to allow for
practicalities. Consideration could,
however, be given to requiring a police official to submit a report to court
if he or she does not notify the parents, as is done in the case of informing
the probation officer as contemplated in clause 18(4)b). |
|
Clause 19 |
Catholic
Institute of Education CJB 18 |
1.1
The clause clearly provides that serving a summons on a
child alone must be used as a measure of last resort, in exceptional
circumstances. It also provides that
“a copy of the summons must, as soon as circumstances permit, be served on the
parent or appropriate adult, each acknowledging service thereof by way of
signature”. Police officials are also
required to explain the process to the child.
The South African Police Service also seem to have a problem with
service on a person under the age of 16 years. |
|
Clause 26 |
Catholic
Institute of Education CJB 18 SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 Clause 26 does not deal with the issues
raised by the Catholic Institute of Education. Clause 34(2)(b) and (c) deal
with the transportation of children, requiring them to be transported
separately from adults, “if reasonably possible”. This provision is based on resource and
feasibility constraints in practice.
In the 2.1 It is not clear how clauses 26
and 28 alter the 48 hours time limit established by current law. The Bill does not change this. Clause 95(1) envisages regulations
relating, among others, to intersectoral structures to monitor and assess the
proper application of and compliance with the Bill. Matters that will be monitored include
issues such as the provision of
services to children in detention awaiting trial. Information/data is also required to be
kept on children awaiting trial. These
provisions could be used to address the concerns of the SAHRC in this regard,
possibly by expanding on the enabling provisions in clause 95, if necessary. It is suggested that the roleplaying
Departments respond to this comment. 2.2 See paragraph 2.1. It is suggested that the roleplaying
Departments respond to this comment. 3.1 This could be considered. 3.2 Regarding the |
|
Clause 27 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 Part I (clauses 21 – 26) of Chapter 4 deals
with release of children and provides a number of options to release a child
before first appearance. Clause 24 (3)
in particular states that the presiding officer must consider the best interests
of the child. This is in line with
commentator’s submission that the child should be in the custody of the
parents or appropriate adult before his or her first appearance. It is only after all the options provided
in clauses 21 – 26 have proved unsuccessful that clause 27 will apply. Clause 27 also takes into account the best
interests of the child by trying to ensure that the child is detained in a
facility close to the court, which will in most cases, be close to the
child’s parents. 2.1 Regarding the |
|
Clause 28 |
CSPRI
CJB 10 Childline
CJB 3 SAHRC CJB 19 Child
Justice Alliance CJB 13 |
1.1 Noted 1.2 Clause 95(1) envisages regulations
relating, among others, to intersectoral structures to monitor and assess the
proper application of and compliance with the Bill. Matters that will be monitored include
issues such as the provision of services to children in detention awaiting
trial. Information/data is also
required to be kept on children awaiting trial. These provisions could be used to address
the concerns of the SAHRC in this regard, possibly by expanding on the
enabling provisions in clause 95, if necessary. 1.3 With regard to proposed clause
28(2)(d)(i) and (ii), concern is expressed about the practical effect of such
an arrangement.. Such an arrangement could mean that a child will be kept at
a police cell which is much further from his/her parents or family. In terms of clause 28(3) and (4) the
station commissioner must already keep a register that may be examined by
such persons as may be prescribed and this measure will, to some extent,
address what the Child Justice Alliance is attempting to do. See also paragraph 1.2 above. 2.1
This is a matter for a policy decision and could have significant
resource implications. 3.1 See paragraph 2.1 4.1 Clause 28 does not deal with placement of
children in prisons. Clause 27
does. Clause 27 allows for detention
in prison in the case of Schedule 3 offences.
This was done on the basis of calls in the past for children to be
kept out of police cells as far as possible.
The CJA’s proposal regarding the amendment of clause 28(1)(d) should
be dealt with by SAPS. It could be
argued that clause 28(1)(d), with the words, “cared for in a manner
consistent with the special needs of children” already takes care of what CJA
is concerned about. Clause 95(6)(a)(vI)
also provides that the National Commissioner of SAPS must issue national
instructions regulating all aspects relating to the treatment and conditions of children while
in detention. 4.2 This could be considered. |
|
Clause 30 |
CSPRI
CJB 10 Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 Community
Law Centre (UWC) CJB 11 |
1.1, 1.2, 1.3, 2.1, 3.1 and
4.1: Section 29 of the Correctional
Services Act, 1959, only applies to unconvicted young persons and in this
regard provides that an unconvicted person under the age of 14 years may
not be detained in a prison or police
cell or lock-up, unless he or she is brought before a court within a period
not exceeding 24 hours or if the child is between 14 and 18 years he or she
may only be detained for up to 48 hours and only if such detention is
necessary and in the interests of justice and the person cannot be placed in
the care of his/her parent or guardian or any other suitable person or any
place of safety as defined in section 1 of the Child Care Act.
|
|
Clause 31 |
Heidi
Sauls CJB 2 SAHRC CJB 19 Child
Justice Alliance CJB 13 |
1.1 The Department of Social
Development is best placed to respond to this. 2.1 This could be considered. 3.1 As stated
above under clause 27, where the |
|
Clause 34 |
Catholic
Institute of Education CJB 18 Heidi
Sauls CJB 2 SAHRC
CJB 19 Southern
African Catholic Bishops’ Conference CJB 21 Child
Justice Alliance CJB 13 |
1.1, 2.1, 3.1, 4.1 & 5.1: This provision is based on resource and
feasibility constraints in practice.
In the |
|
Clause 35 |
The
Centre for Child Law (Dr Skelton) CJB 6 RAPCAN
CJB 9 |
1.1 & 2.1 & 3.1: This
issue is addressed earlier under assessment. According to the structure of
the Bill diversion can only be considered in respect of certain less serious
offences. This is in line with the
approach adopted in respect of assessments and preliminary inquiries. Children who are not assessed do not go to
a preliminary inquiry and cannot be considered for diversion, but proceed
directly to trial. See also paragraph
2.1 under assessment. |
|
Clause 36 |
Child
Justice Alliance CJB 13 |
1.1 Clause 36(g) is important and should not be
deleted. The probation officer can
assist in examining the factors referred to in clause 9(1)(b). The Bill also makes provision for a further
evaluation by an expert, if necessary.
Paragraph (g) of clause 36, as proposed by the |
|
Clause 39 |
Child
Justice Alliance CJB 13 Legal
Aid Board CJB 22 |
1.1 It is not clear how clause 39 could be
prescriptive. It determines that the
probation officer may allow any other person to attend. Clause 39(1)(d)
covers the concern raised by the commentator.
1.2 This could be considered. 2.1 This is an implementation issue |
|
Clause 40 |
Catholic
Institute of Education CJB 18 |
1.1 Clause 40(5): Noted – (Article 3 of CRC – the best
interests of the child are paramount). This is a matter the Committee could
consider. 1.2 Clause 40(6): The opinion is held that the wording is
adequate: “must encourage” |
|
Clause 41 |
SAHRC CJB 19 Child
Justice Alliance CJB 13 |
1.1 Clause 41 (2) - The provision is aimed at preventing
children from being kept in custody for long periods because of
unavailability of space/accommodation in a facility and the level of security
to enable the presiding officer to make an informed decision. There was strong support for this provision
in the Committee. Court officials need
confirmation in writing and under oath on which to make informed
decisions. This is also a method to
hold functionaries accountable. 2.1 See paragraph 1.1 under clause 36. The Committee felt strongly that a sworn
affidavit by the person responsible for the management of the facility is
necessary to ensure availability of accommodation. |
|
Clause 42 |
Child
Justice Alliance CJB 13 |
1.1 This could be considered but should be
reworded as follows: “and the reasons for the
dispensing with the assessment must be recorded by the magistrate when the
matter is referred to him or her in
terms of section 43.”. 1.2 The issue is about whether to divert or
not. We suggest that the provision
remain the same. |
|
Clause 44 |
The
Centre for Child Law (Dr Skelton) CJB 6 SAHRC
CJB 19 Child
Justice Alliance CJB 13 |
1.1 This issue is addressed
earlier under preliminary inquiries.
According to the structure of the Bill diversion can only be
considered in respect of certain less serious offences. This is in line with the approach adopted
in respect of assessments and preliminary inquiries. Children who are not assessed do not go to
a preliminary inquiry and cannot be considered for diversion, but proceed
directly to trial. 2.1 & 3.1: Consideration could be given to stating
the objects of a preliminary inquiry as in the 2002 Bill, although some of
the original objects can be found in clauses 48 and 50 of the 2007 Bill. |
|
Clause 45 |
Child
Justice Alliance CJB 13 |
1.1 This was discussed in the Portfolio
Committee on 11 March 2007 and the drafters were requested to revisit the
provision, along the lines suggested by the |
|
Clause 46 |
Child
Justice Alliance CJB 13 |
1.1 Section 153(4) of the Criminal Procedure
Act, 1977, provides for in camera proceedings where the accused person is
below 18 years. It is being repealed
by the Bill. Clause 45 of the Bill,
dealing with persons who may attend the preliminary inquiry, in effect, makes
provision for in camera proceedings in the case of a preliminary inquiry. |
|
Clause 48 |
Catholic
Institute of Education CJB 18 |
1.1 Refer to clause 40 above. This is a matter the Committee could
consider. |
|
Clause 49 |
SAHRC CJB 19 Child
Justice Alliance CJB 13 |
1.1 Clause 49(2) makes it clear that if the matter is not concluded
after two 48 hours postponements the matter is set down for trial, unless the
postponement is for a confession or admission, or for a further assessment,
in which case a further postponement may not exceed 14 days. Diversion may still be considered during
the trial stage in terms of clause 68, depending on the offence. 2.1 Opening up the provision to
allow any person to request a detailed report could lead to abuse and slow
the process down. The probation
officer is best placed to make the recommendation. Setting out the grounds for such a
postponement, as suggested by the |
|
Clause 50 |
Child
Justice Alliance CJB 13 |
1.1 The reference to clause 11(c)
is in line with the present structure of the Bill in terms of which only
certain crimes can be diverted. The
proposal of the |
|
Clause 51 |
Child
Justice Alliance CJB 13 |
1.1 Noted. |
|
Clauses 52
& 53 |
Child
Justice Alliance Driver Group CJB 13 |
1.1 The contents of clause 44 of the 2002 Bill
are to be found in clause 50(1) of the 2007 Bill. There is nothing in clause 53 which treats
diversion as a previous conviction. |
|
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 The comments of the Institute were dealt
with at the time of the public hearings.
It was explained that all diversion programmes contemplated in clause
57, that is diversion programmes for children under 14 years who are diverted
for certain less serious sexual offences, must be tabled in Parliament for
approval, before they are accredited by the Department of Social
Development. Tabling is not the same
as introducing a Bill in Parliament.
The diversion programme is merely tabled for Parliament to consider,
approve, amend or reject. It is not
the same as introducing a Bill in Parliament.
It is important for Parliament to play a role as suggested in the Bill
to ensure that all these particular diversion programmes are meaningful and
comply with the minimum standards set out in the Bill. Parliamentarians represent the people and
should ensure that these diversion programmes are appropriate, adequate and
comply with the relevant requirements. 2.1 It is imperative that other role players
listed in clause 54(2)(b)(i) should have access to the register in order to
enable them to make informed decisions.
Access to the register will be determined in the regulations at a
later stage. 3.1 Diversion programmes in terms of the Bill
will be drafted by experts in the field and will then be submitted to
Parliament. Engagement between
Parliament and the authors of the planned diversion programme can occur
should this be necessary. The
Committee felt strongly that the details contained in the clause are
necessary if diversion is to be successful;
hence the detail. The Committee
also felt strongly that Parliament should have particular oversight in respect
of diversion programmes for sexual offenders. 4.1 It is important to have the
details contained in clause 54(2) to (4) in primary legislation rather than
in secondary legislation. These
provisions establish a broad legislative framework for the provision and
accreditation of diversion programmes.
Clause 54 does defer some matters to be dealt with in the
regulations. Two months should be
sufficient time for applications to be submitted. The input of the Department of Social
Development in this regard might indicate otherwise. On access to the register of children who
have been diverted, see paragraph 2.1 |
|
Clause 55 |
Child
Justice Alliance Driver Group CJB 13 |
1.1 There might be duplication, as indicated by
the Alliance but it does not do any harm.
As already indicated above, the Committee felt strongly that diversion
programmes contemplated in clause 57 need to be dealt with very specifically,
in this case, to ensure that the principle of proportionality is considered
properly. The best interests of the
child also play a role in this test of proportionality. |
|
Clause 57 |
The
Centre for Child Law (Dr Skelton) CJB 6 SAHRC
CJB 19 Child
Justice Alliance Driver Group CJB 13 |
1.1 The Committee created clause 57, as an
exception, because it felt that provision should be made for young children
who commit certain serious sexual offences.
The Committee, however, felt strongly that this exception must be
properly managed and monitored to ensure that children who diverted in these
cases, undergo adequate corrections and are subject to meaningful diversion
programmes, which are appropriate and comply with the minimum norms and
standards; hence the Committee’s
proposal that only Level 2 diversion programmes contemplated in section 58(5)
which Parliament has approved may be used in these cases. In similar vein, the Committee proposed
that the NDPP must issue directives setting out the circumstances in which
such matter might be diverted. 2.1 Regarding the argument that this clause
limits the discretion of the prosecutor as dominus litis to decide whether a case can be diverted or not,
the following: (i) Reference is made in this regard to the judgment of the
Constitutional Court of Dodo vs The State.
Although this case revolved around sentences and role of the judiciary,
the legislature and the executive, and the issue under discussion revolves
around diversion and the role between the legislature and the executive, the
following extracts of the Dodo judgment might be reflected on: “There
is under our Constitution no absolute separation of power between the
judicial function, on the one hand, and
the legislative and executive on the other.
When the nature and process of punishment is considered in its totality, it is apparent that all three
branches of the state play a functional role and must necessarily do so. … It is pre-eminently the function of the legislature to
determine what conduct should be criminalised and punished. Both
the legislature and executive share an interest in the punishment to be
imposed by courts, both in regard to its
nature and its severity. They have a
general interest in sentencing policy, penology and the extent to which correctional institutions are used to
further the various objectives of punishment. The
executive and legislative branches of state have a very real interest in the
severity of sentences. The executive has a general obligation to
ensure that law-abiding persons are protected, if needs be through the criminal laws, from persons who are bent
on breaking the law. This obligation
weighs particularly heavily in regard
to crimes of violence against bodily integrity and increases with the
severity of the crime. In
order to discharge this obligation, which is an integral part of
constitutionalism, the executive and legislative branches must have the power under the Constitution to carry
out these obligations. They must have
the power, through legislative means,
of ensuring that sufficiently severe penalties are imposed on dangerous
criminals in order to protect
society.”. (ii) It should also be noted that the NPA’s prosecution policy
and directives are issued by the NDPP with the concurrence of the Cabinet
member responsible for the administration of justice. These directives already state that the
diversion of certain serious offences is inappropriate. (iii) The international
instruments are also relevant. Article 40(3)(b) of the Convention on the Rights of
the Child provides as follows: “States
Parties shall seek to promote the establishment of laws, procedures,
authorities and institutions specifically
applicable to children alleged as, accused of, or recognised as having
infringed the penal law, and, in particular: (b) Whenever appropriate and desirable, measures for
dealing with such children without resorting to judicial proceedings, providing that human rights and
legal safeguards are fully respected.”. Rule 11 of the United Nations
Standards Minimum Rules for the Administration of Juvenile Justice (The
Beijing Rules) moreover provides that “consideration shall be given, where
appropriate, to dealing with juvenile offenders without resorting to formal trial
by a competent authority. This is an
indication that even international bodies acknowledge that there will be
instances where diversion will be inappropriate. The seriousness of the offence in the Bill
is used as a determining factor to determine the appropriateness of
diversion. It provides further that a national law of a State Party must
contain provisions indicating in which cases is diversion possible. It is also noted that the
Committee on the Rights of a Child, in its General Comment No 10 (2007),
pointed out clearly (para 13) that it is left to the discretion of the State
Parties to decide on the exact nature and content of measures for
dealing with children in conflict with the law without resorting to judicial
proceedings, and to take the necessary legislative and other measures for
their implementation. In paragraph 12
the Committee states that it is the Committee‘s opinion that the obligation
of States parties to promote measures for dealing with children in conflict with the law
without resorting to judicial proceedings applies with respect to children
who committed minor offences, although not limited to that. (iv) Since it “is pre-eminently the
function of the legislature to determine what conduct should be criminalised
and punished”, the Bill, although not
dealing in this particular case strictly with crimes and punishment, in line
with the international
instruments, states “up front” what cases must follow the normal channels and
proceed to trial, that is serious
and violent offences. Those cases
which the legislature singles out for the possibility of diversion, follow
another route
and in those cases it is the prosecutor who has the final decision whether to
prosecute or not. (v) Proportionality also plays an important role in the way
the Bill is structured in this regard. 2.2 The provisions in question may need to
adapted. It is doubted whether it was
the intention to send a child contemplated in clause 57 to a family group
conference or a victim-offender mediation. 3.1 See paragraph 2.1 |
|
Clause 58 |
Child
Justice Alliance CJB 13 |
1.1 The view is held that reasonable maximum
periods have been set, namely 12 and 24 months: see clause 58(4)(a) and (b)) Clause 58(4)(c) moreover allows diversion
options of a longer period. This is
for level 1 diversion options. Clause
58(6) determines even longer periods for level 2 diversions options. The
Committee already considered this submission on 12 March 2008 and rejected
it. 1.2 Could be considered. |
|
Restorative
justice (clauses 58(7), 61, 62 and 74(1)) |
Restorative
Justice Centre CJB 4 |
1.1 During the public hearings and
when interacting with the members of the Committee on this submission, it was
apparent that the Restorative Justice Centre did not object to the wording in
sections 61 and 62. Its concern was
merely that these provisions might stunt the development of further restorative
justice options. The Committee indicated
that it might be necessary to ensure that the wording in these provisions
make it clear that these are not the only options available. The Bill, however, already does this in
clauses 58(7) and 74(1), which envisage further possible restorative justice
options. |
|
Clause 61 |
Catholic
Institute of Education CJB 18 |
1.1
It is the nature of
the process. The parties listed all
have an interest and a role to play in the process. The clause is not prescriptive and it uses
the term “may”. |
|
Clause 63 |
Child
Justice Alliance Driver Group CJB 13 |
1.1 The current wording of clause 63(1) is in
line with the structure of the Bill as set out in clause 11 of the Bill. The amendment proposed by the Alliance
assumes that every matter landing up in the child justice court will be after
a preliminary inquiry, which is not the intention of the Bill. The words
“plea or trial” do not preclude a case from being withdrawn, the prosecution
being halted or the matter being referred to a children’s court as alleged by
the Alliance. 1.2 If you separate the trials then is it
proper from a criminal procedure point of view since the accused has to be
present at his/her trial and then that same accused will have to give the
same evidence in the other trial. The same applies to witnesses who will have
to attend both trials. This will lead
to delays and secondary victimisation for the victim to appear at both
trials. Therefore as the Bill is
currently drafted clause 63(2) provides that even though the trials will not
be separated the provisions of this Bill will apply to children and the
provisions of the Criminal Procedure Act in respect of the person other than
the child. We believe this will give
additional protection to the child in the circumstances. The NPA raised specific concerns in this
regard. 1.3 Clause 63(5) in the Bill has the same
effect as what the Alliance is suggesting. 1.4 It is not necessary to add a new clause
63(6). Section 154 of the Criminal
Procedure Act already applies to child justice court proceedings. Section 154 is not being repealed by this
Bill. |
|
Clause 64 |
Child
Justice Alliance CJB 13 |
1.1 Noted. |
|
Clause 65 |
Catholic
Institute of Education CJB 18 |
1.1 It must be noted that although the best
interests of the child are paramount, this must not be looked at in
isolation. Article 40(2)(b)(iii) of
the Convention on the Rights of the Child provides as follows: “To this end, and
having regard to the relevant provisions of international instruments, States
Parties shall, in particular, ensure that: Every
child alleged as or accused of having infringed the penal law has at least
the following guarantees: To have the matter
determined without delay by a competent, independent and impartial authority
or judicial body in a fair hearing according to law, in the presence of legal
or other appropriate assistance and, unless it is considered not to be in the
best interest of the child, in particular, taking into account his or her age
or situation, his or her parents or legal guardians;”. A delay which is prejudicial to
the administration of justice would also be prejudicial to the best interests
of the child and would fly in the face of the above Article 40(2)(b)(iii),
which requires matters against children to be determined without delay. 1.2 The details of the appointment of an
independent observer will be addressed later in the regulations. Clause 63(5) does not necessarily close
proceedings to independent observers, as alleged. The discretion who may attend the in camera
proceedings lies with the presiding officer. |
|
Clause 66 |
Catholic
Institute of Education CJB 18 Child
Justice Alliance CJB 13 |
1.1 The period of 30 days is the maximum
period. The court is at liberty to set
a shorter period. The circumstance of
the case will determine the period.
Experience has shown in the past that such short periods can be
counterproductive. Section 29(5) of
the Correctional Services Act, 1959, which deals with the detention of
unconvicted young persons, requires a child in detention must be brought back
to court every 14 days to enable the court to reconsider the detention. 2.1 First
issue: With regard to making
reference in clause 66 to “residential facility”: It must be noted that the Bill makes
provision for placement in a placement facility in clause 31 and these do not
include a residential facility. A
residential facility in terms of the Bill is only used once a child is
sentenced. Therefore we cannot include
reference to “residential facility” in clause 66. Consideration could however be given to
include a reference to “placement facility” in clause 66 after the word
“prison”. {maybe also consider doing
the same in clause 67(2) where reference is also only made to prison} Second
issue: Clause 66 deals with time limits prior to
the commencement of a trial and clause 67 deals with time limits during the
duration of the trial. We therefore
reject the proposal to delete the words “prior to the commencement of a
trial” from clause 66. Third
issue: If the Committee agrees with our
proposal to the first issue to include placement facilities in clause 66 then
CJA’s proposal to inset wording in paragraph (ii) is covered and will be for
a period of 30 days not 60 days as they propose. |
|
Clause 67 |
Catholic
Institute of Education CJB 18 SAHRC
CJB 19 Child
Justice Alliance Driver Group CJB 13 |
1.1, 2.1 and 3.1: This is a matter for consideration by the
Committee and the inputs received from relevant roleplayers, eg the National
Prosecuting Authority. 3.1 This is not a realistic time period and
cannot be included in the Bill.
Currently trials are on average finalised within 9 months, but there
are always exceptions for which various reasons could exist in practice and
by providing for a period of 2 years the exceptional circumstances will be
covered. 3.2 Refer to the response under 3.1 Trials take on average 9 months and this
proposed clause of CJA will mean that children will be released in droves and
for offences which various checks and balances are provided for in the Bill
and therefore if they are in detention during the trial good reasons will
exist to support this position. |
|
Clause 68 |
Child
Justice Alliance CJB 13 |
1.1 In clause 60(4) it is clearly stated that
this procedure only kicks in “if it is
found that failure is due to fault on the part of the child”. There is no chance of this procedure
applying to a child who defaulted on a diversion order and it is not due to
his or her own fault. |
|
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 aim of the proposed new clause 70(3)(f)
is already addressed in clause 70(1)(c) and the aim of the proposed new
clause 70(3)(g) is already addressed in clause 70(1)(d). 2.1 There is no objection to this proposal. 3.1 In the case of non-custodial
sentences, provision is already made for specific intervention programmes and
report backs. (See clauses 73, 74, 75
and 80.) In the case of custodial
sentences in residential facilities and prisons, the inputs of the relevant
Departments would be helpful. The
Departments of Social Development, Education and Correctional Services have
their own prescripts. The question is
raised whether the Bill can give effect to what GSL Youth Services is
suggesting in this regard. 3.2 The Bill provides for a pre-sentence report
by a probation officer or any other suitable person. A custodial sentence may not be imposed
without such a report. It is unclear
what is meant by a more in-depth report, as suggested by GSL Youth Services. 3.3 & 3.4 See paragraph 3.1
4.1 See paragraph 3.1 5.1 The Criminal Law Amendment
Act, 1997 (discretionary minimum sentencing legislation), has been in
operation for more than ten years. Its
constitutionality has been challenges a number of times and it has not been
found to be unconstitutional. The
amendments to this Act, which came into effect on 31 December 2007, do not in
any substantive manner alter the provisions that applied to children before they
came into effect. If anything the provisions
of the Amendment Act are more lenient in that they provide for the suspension
of up to half a sentence imposed on a child under the legislation. Parliament at the end of 2007 endorsed the
minimum sentence legislation as being applicable to children. See also comments under clause 78 in this
regard where the minimum sentencing legislation is discussed. The judgments referred to by the Alliance
did not find the legislation to be unconstitutional. |
|
Clause 71 |
CSPRI CJB 10 Prof Terblanche CJB 16 RAPCAN
CJB 9 Child
Justice Alliance Driver Group CJB 13 |
1.1 .
Victim impact statements were never envisaged in the Sexual Offences
Bill. The issue of victim impact statements
was raised in a submission made to the Commission. It is further not correct to say that
victim impact statements have no role to play in the Sexual Offences Bill,
since it is clear from section 66 of the Act that “information
on the impact of the sexual offence on the complainant” must be placed before
the prosecutor, which section, among others, deals with the manner in which
prosecutors, under the direction of the National Director of Public
Prosecutions, must approach the prosecution of sexual offence cases. Provision was made for victim impact
statements at the suggestion of the Committee and the Department was
instructed to include a provision to this effect and to ensure that this is
not a mandatory process but the option should be available to the presiding
officer. 2.1 The prosecutor furnishes the victim impact
statement to the court and the court has the discretion whether to accept it
or not. 3.1 & 4.1 See paragraph 1.1 |
|
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 & 1.2 The Minister of Social Development already
has the power to make such regulations under the Probation Services Act,
1991, dealing with the format of pre-sentence reports. The proposal that regulations should
specify the requirements for “other suitably qualified persons” is supported. 1.3 The period of 30 days is the maximum period
set. Nothing precludes the probation
officer submitting it earlier at the request of the court. The 30 day period is thought to be
realistic, particularly if it is borne in mind that there are capacity
constraints at present in this regard. 1.4 Prisons differ from residential facilities
in that they accept all who are sentenced by a court to imprisonment. It is suggested that the Department of
Correctional Services provide an input in this regard. The Departments of Education, Social
Development and Correctional Services would be best placed to respond to the
proposal that the probation officer must obtain information regarding
educational, developmental and therapeutic services available and the
effectiveness of services which are intended to reduce recidivism. 2.1 The provision should be amended as
suggested by the commentator. 3.1 See paragraph 1.3 4.1 See paragraph 1.3 4.2 In respect of the amendment of clause
72(2), proposed by the CJA, see paragraph 1.3 above. Under paragraph 4.1 in the summary of
comments, the CJA argued that the period should be 6 weeks to alleviate
pressure on DSD. Under this provision
the CJA is arguing that the period should be 20 and 30 days. In respect of the amendment of
clause 72(3), proposed by the CJA, it must be mentioned that the requirement
for the probation officer to obtain a sworn affidavit from the person in
charge of the residential facility, was suggested by the Portfolio Committee
which felt strongly that there should be a recommendation by the probation
officer, supported by a sworn statement from the person in charge of the
facility, in order to avoid the situation where a child is supposed to be
placed in such a facility but then can never be released from a prison
because in practice there is no space in the facility. Regarding the proposal that information
should also be made available on educational programmes and services
available to children, the opinion of the Departments in question should be
obtained. 5.1 The Bill provides that “other suitable
persons” should assist in the drafting of pre-sentence reports. 5.2 See paragraph 1.3 6.1 The insertion of the word “qualified” could
be considered. On the time period
within which pre-sentence reports must be submitted, see paragraph 1.3 above. With regard to Childline’s
proposed new subclause (5), it must be noted that pre-sentence reports are
being done at the moment in terms of the Probation Services Act and if
regulations are required they should be made in terms of that Act by the
Minister of Social Development. |
|
Clause 73 |
Prof
Terblanche CJB 16 |
1.1 The provision could be amended as
suggested. 1.2 Clause 58(5) is clear that level two
options only apply where the court would have imposed a sentence and this
should not be confusing. Consideration
could, however, be given to amending clause 58(5) to the following effect: “Level
two diversion options apply to children where a court upon conviction of the
child for the offence in question
[is likely to] would in the normal course impose a sentence of
imprisonment ….” 1.3. The provisions could be
amended as suggested. 1.4 This provision does not harm and allows for
other possibilities. Correctional
supervision is dealt with separately under clause 76. It is suggested that this remain unchanged.
|
|
Clause 76 |
Prof
Terblanche CJB 16 |
1.1 Prof Terblanche’s comments seem to be
correct and the provision needs revisiting. |
|
Clause 77 |
Prof Sloth-Nielsen (UWC) CJB 12 Prof
Terblanche CJB 16 |
1.1 Noted 2.1 The Portfolio Committee requested Prof
Terblanche to submit a proposal in this regard. |
|
Clause 78 |
CSPRI
CJB 10 Prof Sloth-Nielsen (UWC) CJB 12 US Submission CJB 14 Prof
Terblanche CJB 16 Catholic
Institute of Education CJB 18 Community
Law Centre CJB 11 CSIR CJB 7 GSL
Youth Services CJB 15 SAHRC
CJB 19 RAPCAN
CJB 9 |
1.1 See arguments under bifurcation. 1.2 Clause 78(5): This is an opinion being expressed. 1.3 The following extracts of the
Constitutional Court judgment in S v
Dodo are relevant: “While our Constitution recognises a separation of
powers between the different branches of the state and a system of appropriate checks and
balances on the exercise of the respective functions and powers of these branches, such separation does not confer on
the courts the sole authority to determine the nature and severity of sentences to be imposed on
convicted persons. Both the
legislature and the executive have a
legitimate interest, role and
duty, in regard to the imposition and subsequent administration of penal sentences. There
is under our Constitution no absolute separation of power between the
judicial function, on the one hand, and
the legislative and executive on the other.
When the nature and process of punishment is considered in its totality, it is apparent that all three
branches of the state play a functional role and must necessarily do so. … It is pre-eminently the function of the legislature to
determine what conduct should be criminalised and punished. Both
the legislature and executive share an interest in the punishment to be
imposed by courts, both in regard to its
nature and its severity. They have a
general interest in sentencing policy, penology and the extent to which correctional institutions are used to
further the various objectives of punishment. The
executive and legislative branches of state have a very real interest in the
severity of sentences. The executive has a general obligation to
ensure that law-abiding persons are protected, if needs be through the criminal laws, from persons who are bent
on breaking the law. This obligation
weighs particularly heavily in regard
to crimes of violence against bodily integrity and increases with the
severity of the crime. In
order to discharge this obligation, which is an integral part of
constitutionalism, the executive and legislative branches must have the power under the Constitution to carry
out these obligations. They must have
the power, through legislative means,
of ensuring that sufficiently severe penalties are imposed on dangerous
criminals in order to protect
society.”. To revert to clause 69
of the 2002 Bill, as suggested by CSPRI, would mean that children who are 14 years and
younger may not be sentenced to imprisonment at all. The possibility of a sentence of imprisonment,
even for children under 14 years, needs to be included in the Bill in order
to allow for exceptional circumstances, as indicated in the case of DPP,
KwaZulu-Natal vs P, in which a 12 year old girl brutally murdered her
grandmother. The following extracts of
the judgment of the Supreme Court of Appeal in this case are relevant: “The accused, in my
view, and in spite of her age and background, acted like an ‘ordinary’
criminal and should have been
treated as such. It must be remembered
that the Constitution and the international instruments do not forbid
incarceration of children in
certain circumstances. The accused arranged
for the brutal murder of her grandmother at the hands of two strangers who
now languish in prison, each serving
sentences of imprisonment of 25 years.
The killing was particularly gruesome:
the deceased had her
throat cut in her bedroom and was slaughtered like an animal. The accused provided the killers with knives. She stood watching while the killers
carried out her evil command even callously allowed her six-year old brother to enter the room
when her sordid mission had been accomplished
…. The murder was premeditated. One would expect a person of that age to
have been remorseful. Not the
accused. While the killers were still in the house after the
murder she telephoned her boyfriend – a 20 year old – to try and fabricate an alibi. As if that was not bad enough she rewarded
the killers with a number of household goods belonging to the deceased, as indicated earlier in the
judgment. One can go on and on. Every chapter of this sordid tale reveals the evil-mindedness of the
accused. One of the more worrying
aspects of the case is that no motive was
given for the killing, which makes it imperative for this Court to consider a
serntence that would to some extent
ensure that those who come into contact with her are protected. If I had been a Judge
of first instance I would have seriously considered imposing a sentence of
imprisonment.”. It should furthermore be mentioned that numerous other jurisdictions
allow for the imprisonment of young children in exceptional circumstances. 1.4 Parole:
This is an aspect which should be considered within the context of the
Correctional Services Amendment Bill, B32B of 2007 (which is currently before
the NCOP). A whole new system of
parole is envisaged in terms of this Bill.
If such a proposal is to be considered it would have to be structured
in terms of the various types of offences.
A blanket clause such as that which is proposed will mean that a child
convicted of a very serious offence will be eligible for parole after having
served a mere five years, while the minimum sentencing legislation provides
that up to half a minimum sentence imposed on a child may be suspended and
the sentencing court has the discretion to direct after how many years a
child could be considered for parole.
It must also be noted that in practice the minimum sentencing
provisions have not been implemented in reference to parole, since as the
Inspecting Judge’s own findings have shown DCS in most instances do not know
that an offender was sentenced in terms of this legislation and this might be
the reason that it is now being deleted from the amendment bill and it is not
clear what procedure the Sentencing Council will put in place. 1.5 The age of 16 years, at which
minimum sentences become applicable to children, was chosen specifically
since statistics indicate that children of 16 and 17 years commit more
serious and violent crimes. In other
words, both the age as well as the type of crime motivated this. The second reading debate on the Criminal
Law Amendment Act, 1997, confirms
this. This decision was not arrived at
lightly, without any motivation, as is alleged. It should also be borne in mind that this
Committee amended the minimum sentences legislation at the end of 2007 to
provide for the suspension of up to half the sentence imposed on a child
between 16 and
18 years, giving effect to the constitutional requirement of detention for
the “shortest possible period”. CSPRI
also argues that all factors can be ignored when a child is 16 years of age
and only the age of the child and the type of offence comes into play. This is not correct; the Criminal Law Amendment Act, 1997, provides
for a system of discretionary and not mandatory minimum sentences and the
presiding officer can take any other factor into account in determining
whether substantial and compelling circumstances exist which justify the
imposition of a lesser sentence. The
argument of CSPRI that pre-sentencing reports are diluted by the “substantial
and compelling” requirement is also not correct, since the contents thereof
can be considered by the court to constitute substantial and compelling
circumstances. Finally, it must be
noted that the minimum sentencing legislation has been in place for ten years
and has been found to be constitutional.
Deleting clause 78(3), as suggested, will not affect the application
of the minimum sentencing provisions on children 16 years and older. 2.1 See paragraphs 1.3 and 1.5 2.2 See paragraph 1.3 2.3 See paragraphs 1.3 and 1.5 3.1 It must be pointed out that these factors
listed here in the US submission are exactly those that can be taken into
account as substantial and compelling circumstances we do not have a system
of MANDATORY sentences but of discretionary minimum sentences. See also paragraphs 1.3 and 1.5 4.1 This proposal could be considered. 4.2 The Convention on the Rights of the Child
only prohibits life imprisonment without
the option of parole (Article 37(b)).
No mention is made of life imprisonment with the option of parole or
early release and if we look at sentencing legislation for children in other
signatory countries such as Canada (which has a Constitution similar to our
own) and the UK it is clear that they provide for sentences of life
imprisonment with the option of early release or parole for children. 4.3 See paragraphs 1.3 and 1.5 4.4 Noted.
4.5 The wording “substantial and compelling circumstances” originates
from clause 92 “Referral
to a prison” of the SALRC’s Report, which read as follows: “92. (1) A sentence of imprisonment may not be
imposed unless - (a) … (b) substantial and compelling reasons exist for
imposing a sentence of imprisonment because the child has been convicted of an offence which is
serious or violent or because the child has previously failed to respond to alternative sentences, including
available sentences with a residential element other than imprisonment”. On page 206 of the SALRC’s report the Commission
explains this choice of words as follows:
“Further, in view of the support received for the inclusion of
international principles, the Commission has provided
that imprisonment may only be imposed if substantial and compelling reasons
exist because the child has been
convicted of an offence which is serious and violent, or because the child
has previously failed to respond
to alternative sentences, including available sentences other than
imprisonment”. 4.6 The
same arguments in reference to the Kimberley case were made during the public
hearings on the Criminal Law (Sentencing) Amendment Act, 2007 last year. These were rejected by the Committee the
legislature’s intention was not to create new offences but to provide for
specific sentences in instances where a victim was raped more than once. 5.1
See paragraphs 1.3 and 1.5 6.1
See paragraphs 1.3 and 1.5 7.1
See paragraphs 1.3 and 1.5 8.1
The minimum sentence legislation allows for the court to
take into account the time spent in prison awaiting trial until sentence,
that is in respect of children and adults.
This is a special protection
measure for children. 9.1
See paragraphs 1.3 and 1.5. The Department of Correctional Services
could assist regarding the input that cases of children who are sentenced to
prison should come before the parole board on a regular basis. 10.1 & 10.2 See paragraphs 1.3 and 1.5 |
|
Clause 81 |
Prof Sloth-Nielsen (UWC) CJB 12 |
1.1 This should be regulated in the Legal Aid
Act, 1969, and the Attorneys Act, 1979, and the Schedule 6 to this Bill could
be amended accordingly should the Committee agree. |
|
Clause 82 |
Prof Sloth-Nielsen (UWC) CJB 12 Legal Aid Board CJB 22 |
1.1 It must be noted that the during the
research and consultation SALRC fully recognised the value of legal
representation for children as part of due process rights. However, in the Discussion document and the
Report, the SALRC recommended that legal representation should not be a prerequisite
for assessment, diversion or preliminary inquiry, although a child who
exercises his or her right to legal representation may obviously choose to
have legal representation at any of the procedures. It was argued that legal representation at
these procedures may dilute and formalise an otherwise informal
system/procedure making it ineffective. 1.3 A probation officer must consent to the
attendance by a legal representative during an assessment, it is not the
child that must request permission from the legal representative to attend. 1.4 No mention is made of resources it would
appear that this is a matter that would need to be clarified with the LAB as
to their capacity to assist in all these matters. [this also applies to 2.1] 3.1 This issue is already addressed by clause
50(4)(b) of the Bill. |
|
Chapter 10
- legal representation (Clause 83) |
CSPRI
CJB 10 Campus Law Clinic CJB 5 Child
Justice Alliance Driver Group CJB 13 |
1.1 Factors listed by the commentator as to what
could constitute substantial injustice are: the complexity of the case; the severity of
the potential sentence; the ignorance or indigence of the accused. It is submitted by DOJ that these factors
would therefore apply to children not specifically mentioned here and it
would therefore follow that substantial injustice would not occur if a 16 or
17 year old faces for instance a Schedule 1 offence and all the other checks
and balances are in place to protect the rights of the child. 1.2 The way that clause 83 reads it is clear
that it prescribes to the court which instances must be referred to the LAB
for consideration of legal aid at state expense, but this clause does not affect
the ordinary power of courts in each case to consider whether legal aid
should be granted to children (or adults) in terms of section 3B of the Legal
Aid Act, 1969, and therefore it should be clear that other children who are
not specifically stipulated here will still be considered in the ordinary
course and within the parameters stipulated by the Constitution. It could therefore never follow that a 17
year old can be sentenced to life imprisonment without the assistance of a
legal representative as submitted by the commentator. 1.3 Consider inserting a reference
to clause 78. 3.1 It must also be noted that the Committee on the Rights of a Child
in its General Comment No 10 (para 23)
indicated that assistance to the child does not have be legal at all
times but it must be appropriate and that other appropriate assistance include
paralegals and social workers. 4.1 See paragraph 1.2. Also it might not be necessary to have
clause 83 at all since matters involving children are adequately addressed by
the Legal Aid Act and the Legal Aid Guide and could continue in that
way. All this Bill actually does is
saying that in these categories legal aid must be considered but it does not affect
the application of the Legal Aid Act which would apply in any event to any
matter referred to it for consideration.
|
|
Clauses 85 & 86 |
CSPRI
CJB 10 Child
Justice Alliance Driver Group CJB 13 |
1.2 DOJ will effect the consequential
amendments to clause 85, which came about as a result of the amendments to
section 309 of the CPA. (Criminal Law (Sentencing) Amendment Act, 2007) 1.4 It must also be noted that
clause 85 deals with the right to automatic appeal, normal procedures in
terms of appeals under the Criminal Procedure Act will still apply in all
other cases. If these broad provisions
suggested by the CSPRI were accommodated then almost every case would go on
automatic appeal or automatic review. 2.1 In case of a child who is
legal represented, the legal representative must advise the child and take
appropriate action where necessary. 2.2 Clause 87 provides that clause 25 must
apply when dealing with the release of children on bail, pending any review
or appeal. 2.3 See paragraph 1.4 Children in the categories suggested by
CSPRI who do not qualify to appeal without first applying for leave to
appeal, can still follow the normal appeal procedures. 2.4 These ages in clauses 85 and 86, that 14
and 16 years, will be brought in line with the amendments to the minimum
sentence legislation in 2007 in terms of which section 309 of the Criminal
Procedure Act, 1977, was amended to give greater protection to children in
respect of automatic appeals by increasing the ages of 14 to 16 years and 16
to 18 years, respectively. |
|
Clause 88
- Expungement of Records |
RAPCAN
CJB 9 |
1.1 This was a policy decision, that records of
serious offences may not be expunged. |
|
Clause 94 |
Prof
Sloth-Nielsen (UWC) CJB 12 Child
Justice Alliance CJB 13 |
1.1 Our Bill deals with aggravating
circumstances in sentencing and does not create an offence. The Children’s Act creates an offence. There is thus no chance of double
jeopardy. 2.1 Dealt with under assessment, preliminary
inquires and diversion above. |
|
Clause 95 |
CSPRI
CJB 10 Prof Sloth-Nielsen (UWC) CJB 12 RAPCAN CJB 9 Child
Justice Alliance Driver Group CJB 13 |
1.1 It is submitted that the indicators
stipulated in the Manual are covered broadly in the Bill and the details may
be covered in the regulations. 2.1 There is no need to legislate on the issue,
Justice College and other organisation are already engaging on such training. 2.2 The interdepartmental Committee (ISCCJ) is
already working on such a system. 3.1 The publication of the report is a policy
decision. 4.1 Refer to the responses under clause
57. |
|
Separation
or joinder of trials |
Prof Sloth-Nielsen (UWC) CJB 12 Community Law Centre (UWC) CJB 11 |
See paragraph 1.2 under clause 63.
|
|
Schedule 6 |
Prof
Terblanche CJB 16 |
1.1
See paragraph 1.1 under clause 76. 1.2 The Department has already indicated that
it still needs to revisit all the consequential amendments contained in
Schedule 6. |
|
Quality of Infrastructure, service and conditions at
the facilities |
GSL
Youth Services CJB 25 Heidi
Sauls CJB 2 SAHRC
CJB 19 |
1.1 & 1.2 It has already been suggested in the
deliberations on the Bill that consideration should be given to the creation
of a statutory body on which all Departments are represented and which is
chaired by the Justice Department to ensure compliance with the legislation
and to monitor relevant issues. A
similar structure has been created in the Sexual Offences Bill. 2.1 Places of safety are being removed by the Children’s
Act, 2005, and are being replaced by new institutions, child and youth care
centres. 3.1 It has already been suggested
in the deliberations on the Bill that consideration should be given to the creation
of a statutory body on which all Departments are represented and which is
chaired by the Justice Department to ensure compliance with the legislation
and to monitor relevant issues. A
similar structure has been created in the Sexual Offences Bill. |
|
Provisions
of the Bill relating to sexual offences with particular reference to the
different Schedules in the Bill |
RAPCAN
CJB 9 |
1.1 & 1.2 See the
discussion under clause 57. 1.3, 1.4 & 1.5 Any sexual offence is serious and should be
treated as such because of the current sexual offence problem and violence
against women. Bestiality does
appear in both schedules which must be corrected. |
|
Schedules |
SAHRC
CJB 19 |
1.2 The Schedules follow the structure of the
Bill. |
|
General Comments |
SAHRC CJB 19 RAPCAN
CJB 9 |
1.1 Cross
referencing and definition by reference to the Bill is part of drafting and
is not unique to this Bill, although it
may be minimised where possible. 1.2 Noted 2.1 to 2.4 Noted
|