ATC191121: Report of the Select Committee on Security and Justice on the Child Justice Amendment Bill [B 32B – 2018] (National Assembly – sec 75), dated 20 November 2019:

NCOP Security and Justice

Report of the Select Committee on Security and Justice on the Child Justice Amendment Bill [B 32B – 2018] (National Assembly – sec 75), dated 20 November 2019:
 

The Select Committee on Security and Justice, having deliberated on and considered the subject of the Child Justice Amendment Bill [B 32B – 2018] (National Assembly – sec 75), referred to it on 27 November 2018 and classified by the JTM as a section 75 Bill, reports that it has agreed to the Bill without proposed amendments.

 

Background

The Child Justice Amendment Bill’s (the Bill) primary objective is to amend the Child Justice Act, 2008 (Act No. 75 of 2008), in order to increase the minimum age of criminal capacity of a child, to remove the requirement to prove criminal capacity for purposes of diversion and preliminary inquiries and to provide for consequential amendments.

 

• The Bill is tagged as a Bill to be dealt with in terms of Section 75 of the Constitution (a bill not affecting provinces).
• The Bill was referred to the 5th Parliament Select Committee on Security and Justice on 27 November 2018.
• The 5th Parliament Select Committee advertised the Bill for public comment.
• The 6th Parliament National Council of Provinces passed a resolution, on 17 October 2019, reviving the Bill and further, that the proceedings on these Bills should resume at the stage at which they were at the end of the term; and that where Committees have commenced with the processing of the Bills, work be accepted as having being done by Committees.

 

1. Public participation process on the Child Justice Amendment Bill [B 32B – 2018] (National Assembly – sec 75)

 

The 5th Parliament Select Committee on Security and Justice advertised the Bill on the electronic platforms of Parliament on 4 February 2019 with a deadline for written submissions of 1 March 2019.

 

1. Summary of Submissions (See Annexure A):

 

Two submissions were received from the Centre for Child Law and Mr Marius Redelinghuys. The majority of the comments have already been incorporated into the Bill during the PC on Justice and Correctional Services deliberations.

 

1. Committee consideration of the Child Justice Amendment Bill [B 32B – 2018] (National Assembly – sec 75)

 

The Select Committee received a briefing on the Bill on 9 October 2019 and a briefing from the Department of Justice and Constitutional Development on 6 November 2019 on the written submissions.

 

The Department noted that the Centre for Child Law submission was largely catered for by the Portfolio Committee on Justice and Correctional Services’ amendments made to the Bill and adopted by the National Assembly.

The Department replied to Mr. Redelinghuys’ submission and indicated that Clause 10 of the Bill deals with the responsibilities of the prosecutors, but prosecutors are not qualified to determine cognitive ability and for this reason the determination was removed from Clause 10.

 

1. Proposed Amendments agreed

The Committee did not propose further amendments to the Bill.

 

 

1. Consensus on the Bill

 

1. Support for the adoption of the Bill was unanimous.

 

Report to be considered.

 

 

 

 

 

 

 

 

 

 

 

ANNEXURE A: Summary of Public Submissions on Child Justice Amendment Bill.

 

CHILD JUSTICE AMENDMENT BILL, 2018 [B32-2018]

PROVISION IN QUESTION	NAME OF COMMENTATOR	SUBMISSION/RECOMMENDATION	RESPONSE
Clause 7	Centre for Child Law	While the Centre appreciates the efforts made to raise the minimum age of criminal capacity from the current level of 10 years, the Centre is of the view that the minimum age of criminal capacity should be raised to 14 years. The United Nations Committee on the Rights of a Child notes that the minimum age of 14 years will contribute “to a system which deals with children in conflict with the law without resorting to judicial proceedings, providing that the child’s human rights and legal safeguards are fully respected. The Centre submits further that setting the minimum age of criminal capacity at 14 years would make the use of the rebuttable presumption that the child lacks criminal capacity, unnecessary.    The United Nations Committee on the Rights of the Child is of the view that the use of two ages is confusing, and leaves much to the discretion of the court and could cause discriminatory practices. The retention of the presumption means that the evaluation of criminal capacity would still have to be done, and this is an expensive and time consuming process, and use of scarce skills for purposes of “checking” if a child is of normal development.	Department responded as follows during the PC deliberations on this aspect:   As indicated in the Report the Department is fully aware of the United Nations Committee on the Rights of a Child and African Commission on Human and People’s Rights and Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa, but despite this the Report recommended that  the age be capped, at this stage, at 12 years and not higher because it may be too big a leap to raise the minimum age from 10 to 14 years without tangible evidence of the effectiveness, availability and adequacy of the support and programmes offered currently to the under 10 year olds in conflict with the law in terms of section 9 of the Act. In addition, the Bill provides for a further review of the minimum age of criminal capacity after 5 years in order to ensure that criminal capacity is raised progressively to cater for the development of the relevant programmes.
Clause 15	Centre for Child Law	The Centre supports clause 15 of the Bill as it removes the requirement to prove criminal capacity and states that the prosecutor must consider whether the child will benefit from diversion.  The Centre proposes an additional provision here to allow more protection for the child, along the following lines: “Where the prosecutor is of the view that the child is unlikely to benefit from diversion, or is diversion is for any other reason not appropriate, he or she may refer to the child to a probation officer to be dealt with as a child who lacks criminal capacity, in terms of section 9 of the Act.”.	Amendment was effected in PC Justice amendments to the bill.
Clause 20	Centre for Child Law	Same proposal as in clause 15	Amendment was effected in PC Justice amendments to the bill.
Clause 7   Section 10(1)(a)	Marius Redelinghuys	I am broadly supportive of the above-mentioned A/B, but oppose and accordingly request that the committee reconsider the deletion of “cognitive ability” from section 10(1)(a) from the principal Act.	“cognitive ability” was deleted from the Bill during the PC Justice deliberations.