FURTHER PRESENTATION BY THE LEGAL AID BOARD TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT REGARDING THE IMPLEMENTATION OF THE CHILD JUSTICE BILL
27 March 2008

1.	Introduction
The Legal Aid Board made submissions to the Portfolio Committee on 11 March 2008. A number of queries have been received from the Committee concerning the submissions and presentations already made by the Legal Aid Board.
These issues may be summarised as follows:-
1.1	How many children under the age of 10 did the Legal Aid Board represent between April 2007 and February 2008?

1.2	What were the charges against these children?

1.3	How many children between the ages of 10 and 12 did the Legal Aid Board represent between April 2007 and February 2008?

1.4	What were the charges against these children?

1.5	Further details concerning the two children found on the DCS database aged 8 years and 12 years respectively.

1.6	Whether the Legal Aid Board would be able to offer its services as early as the assessment/preliminary inquiry stage.

1.7	Reasons for the Legal Aid Board’s recommendations concerning clause 13.

1.8	To submit a document on implementation.

1.9	Issues of capacity of the Legal Aid Board.

1.10	Victims also have rights to be protected.

1.11	Existing rights and processes should not be lessened unless rational and logical reasons are given therefor.

We deal with these specific issues below.

2	No submissions on certain issues

Insofar as issue 1.11 above is concerned, the Legal Aid Board currently has no submissions to make, save that it agrees that existing rights and processes should not be lessened, save where this is justifiable. 

3	Implementation and Capacity Requirements

It must be recorded that the Legal Aid Board has already dealt with issues of implementation and capacity (Issue 1.8 and 1.9 above) in the previous submissions presented on 11 March 2008.

The Legal Aid Board submission made on 11 March 2008 was based on the statistics contained in the 2006/2007 Annual Report of the Department of Justice. The submission on the implementation and capacity requirements remain unchanged.

4	Information concerning LAB child justice clients

During the period April 2007 to February 2008, the LAB represented 222 children aged 7-10 years and 747 children aged 10-12 years. The information regarding the nature of the charges faced by the children falling into the two categories referred to above are set out in annexures “A”,”B”,“C” and “D” hereto. It must be recorded that the total number of charges (as opposed to children) is recorded in Annexures “B” and “D”, which have not been audited and may be subject to correction. Annexures “B” and “D” reflect higher numbers than those referred to for the simple reason that some children faced more than one charge.

5	Children in prison

Concerning the two children found on the DCS database, we have in fact found three records (one in Vryheid and one in Musina) as follows:-

VUNDLA PHUMLANI MSISI (208822241) is appearing in two separate courts in Vryheid on a number of cases. He is represented by the Vryheid Justice Centre. The court has been requested to release him into the custody of his parents, but they cannot be located. The court has instructed the investigating officer to trace them. The child was unable to give any contact details for his parents. He was living with his aunt at the time of arrest, but had no contact details for her either.

HLENGANI HUMBULANI (208384328).  This child was appearing in Musina Court. Prison records reflect tat on 7 February 2008 he was sent to Musina court, whereafter he did not return to prison. He was being held at Makhado prison.

The third child who went under the name MAKHADO MUSINA is clearly the same child, HLENGANI HUMBULANI. The date of birth (23 January 2000) is identical and as explained above the towns of Makhado and Musina did feature.

6	Representation at assessment/preliminary enquiry stage

As to whether the LAB will be able to represent children already at the assessment stage, there is in principle no objection, but in order to do this effectively there will have to be a sufficient number of social workers and other necessary personnel. These assessments should then be done at court as this is where the LAB staff are stationed. It would be difficult for the LAB to send its child justice practitioners to police stations (as has been suggested at ISCCJ).

Insofar as representation at the preliminary inquiry is concerned, it is felt that this should be done as a child may make prejudicial admissions at such stage and is also in unfamiliar surroundings. The LAB will therefore represent children in conflict with the law at this stage of the proceedings.

If the same prosecutor and magistrate who conduct trials are to be used also for preliminary inquiries, then there would be no capacity issues as the practitioner who appears in that court would appear also for the preliminary inquiries. 

If, however, separate magistrates and prosecutors are to be used, then additional LAB personnel would have to be employed and the necessary additional resources would be needed to match any additional judicial/prosecutorial capacity.

7	Clause 13

Concerning the LAB’s recommendations concerning clause 13, there were actually two recommendations, and is uncertain which one is being referred to.

The first one was that the social worker should fully motivate the age estimation (clause 13 (3)). The second one was that clause 13 (4) should have words added which make it clear that the evidence referred to may emerge at any time up to (and including) sentence.

In the first case, it is clear that social workers are not competent to make age assessments. The age can be vital. Thus there is a big difference between   ages 9 and 10 as the child of 9 years lacks criminal capacity. If a child is aged 13 years, he/she may not waive legal representation, whereas if he/she is 14 years, he/she may under certain circumstances waive legal representation. The age estimation is therefore vital and it is important therefore that it be carried out properly and be fully motivated. Miscarriages of justice may otherwise result.

As to the evidence to the contrary emerging at any stage up to (and including) sentence, it is clear that this must be so as even at that late stage evidence to the contrary may emerge. Once again, all such evidence must be taken into account at whichever stage it emerges and miscarriages of justice may otherwise result.

8	Victims’ rights

Concerning the rights of victims, it is clear that they do have rights, but this Bill is designed to protect the interests of children in conflict with the law. It is submitted that the Bill is not the appropriate place to address such rights. 

9	Conclusion

It is hoped that this short document will assist the committee in it’s deliberations.

LEGAL AID BOARD