SUMMARY OF COMMENT: CHILD JUSTICE BILL [B 49 – 2002]
CLAUSE 1: DEFINITIONS
Appropriate adult:
"an appropriate adult" means any member of a child’s family or a custodian or guardian of a child but excludes a parent or a primary care-giver as defined in section 1 of the Social Assistance Act, 1992 (Act No. 59 of 1992);
CJ 7(a): RAPCAN
RAPCAN is of the view that this definition does not make sense in the light of the fact that a primary care-giver (who is excluded by the definition) necessarily is a factual custodian and is, in most instances, also a member of the child’s family. (The same point is made in CJ 19 (SAYStOP).)
CJ 8(a): (NICRO)
The appropriate adult can be and often is the primary care-giver. Examples in point are grandparents and other relatives, who would be included in as ‘members of a child’s family’ but then excluded on the grounds that they are primary care-givers. It is unclear that a primary care-giver should be specifically excluded in this definition. Further, a person who cannot prove that he or she is “appropriate” should be excluded. A proviso could be added that an appropriate adult should be ‘any adult who knows the child and can supply the assessment team with relevant information concerning the child’.
Assessment:
"assessment" means assessment of a child by a probation officer as contemplated in Chapter 4;
CJ 8(a): (NICRO)
The definition adds nothing and is somewhat tautologous. The description should indicate that assessment is a process of evaluation of the child’s background circumstances and the circumstances surrounding the commission of the offence.
Diversion:
"diversion" means diversion of a child away from the formal court procedures to the informal procedures established by Chapter 5;
CJ 7(a): (RAPCAN)
The definition is potentially confusing, and the terminology “to the informal procedures established by Chapter 5” exacerbates this confusion as it refers to the preliminary inquiry. It is suggested that the wording be changed to “to the informal options established in Chapter 6 by means of the procedures established in Chapter 5. (The same point is made in CJ 19 (SAYStOP).)
Family Group Conference:
"family group conference" means a conference contemplated in section 48;
CJ 8(a): (NICRO)
The wording in the Law Commission’s original draft should be followed, where a family group conference is described as “a gathering convened by a probation officer as a diversion or sentencing option to devise a restorative justice response to the child’s offending.”
Residential facility:
"residential facility" means any residential facility established by the Cabinet member responsible for education or the Cabinet member responsible for social development and designated to receive sentenced children;
CJ 8(a): (NICRO)
The definition will confuse magistrates and prosecutors as it stands, and they will be unable to use the relevant sentencing provisions which permit referrals to such places. The definition should ideally include a direct reference to reformatories and industrial schools, which are familiar to magistrates in most provinces. It must be clear from the definition that a residential facility does not include a prison, which is not the case at the moment.
Residential requirement:
"residential requirement" means compulsory residence in a residential facility or a place other than the child’s home;
CJ 8(a): (NICRO)
The definition only refers internally to facilities. This would mean facilities established by the Department of Social Development or Education, according to the Bill, and would therefore exclude residence at wilderness camps, outdoor adventure therapy settings and the like. The definition is too narrow, bearing in mind the diversion provisions set out in the Bill, and the sentencing provisions set out in clause 67.
CLAUSE 2: OBJECTS OF ACT
The objects of this Act are to—
(a) protect the rights of children as contemplated in section 28(1)(g) of the Constitution;
(b) promote ubuntu in the child justice system through—
(i) fostering children's sense of dignity and worth;
(ii) 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 victims and the community;
(iii) supporting reconciliation by means of a restorative justice response; and
(iv) involving parents, families, victims and communities in child justice processes in order to encourage the reintegration of children; and
(c) promote co-operation between all government departments and other organisations and agencies involved in implementing an effective child justice system.
CJ 12 (Child Justice Alliance)
The Alliance submitted supports the objectives set out in clause 2, and contends that they serve an important function in that they provide the context in which the Bill as a whole must be read and interpreted. A balance is created between protecting the accused child’s rights as a child and an individual on one hand, and ensuring that the human rights and fundamental freedoms of the community are respected by children in trouble with the law on the other. The Alliance makes the point that the Bill does not merely confer rights on accused and convicted children, but it also aims to hold them accountable for their actions to the victims, the families of the child and victims and the community as a whole. The concept of restorative justice is explicitly included as an objective, and the alliance supports this.
The Alliance stresses the importance of the reference to co-operation between all government departments and other organisations and agencies. It is submitted that, until now, there has been little inter-departmental co-operation around issues of child justice. The various role-players perform their tasks and functions in isolation and also without much interaction with outside organisations and agencies. The inclusion of objective (2)(c) is supported because it will help to ensure that officials from the various departments and outside organisations start to regard all participants in the child justice process as colleagues, instead of just those in their own field or sphere of operation.
CJ 6, 9 and 9a: (CSIR Crime Prevention Centre)
There is no indication of how communities will be involved. This is an opportunity to define clear and practical roles for the community, rather than falling into the common trap of demanding support and not providing guidance in terms of what support means.
CLAUSE 3: GENERAL PRINCIPLES
(1) Any court or person performing any function in terms of this Act must be guided by the following principles:
(a) Every child must as far as possible be given an opportunity to respond before any decision affecting him or her is taken.
(b) Every child should be addressed in a manner appropriate to his or her age and intellectual development and should be spoken to and be allowed to speak in his or her language of choice, through an interpreter if necessary.
(c) Every child must be treated in a manner which takes into account his or her cultural values and beliefs.
(d) All procedures in terms of this Act must be conducted and completed speedily.
(e) Every child has the right to maintain contact with his or her family, and to have access to social services.
(f) Parents and families have the right to assist their child in proceedings under this Act and, wherever possible, to participate in decisions affecting them.
(g) All consequences arising from the commission of an offence by a child must be proportionate to the circumstances of the child, the nature of the offence and the interests of society, and a child must not be treated more severely than an adult would have been in the same circumstances.
(h) A child lacking in family support, or educational or employment opportunities must have equal access to available services and every effort must be made to ensure that children receive equal treatment when having committed similar offences.
(2) Any police official, the Director of Public Prosecutions, any prosecutor designated thereto by the Director, any inquiry magistrate or any officer presiding in a child justice court must consider the following principles when making any decision regarding the release of a child in detention:
(a) Preference must be given to the release of a child into the care of his or her parent or an appropriate adult, with or without the imposition of any conditions;
(b) if the release of the child into the care of his or her parent or an appropriate adult is not feasible, the release of the child on bail must be considered;
(c) if the child must be detained as a measure of last resort, the least restrictive form of detention appropriate to the child and the offence must be selected.
(3) A child who is in detention in police custody—
(a) must be detained separately from adults, and boys must be held separately from girls;
(b) must be detained in conditions which will reduce the risk of harm to that child, including the risk of harm caused by other children;
(c) has the right—
(i) to adequate food and water;
(ii) to medical treatment;
(iii) to reasonable visits by parents, guardians, legal representatives, registered social workers, probation officers, health workers and religious counsellors;
(iv) of access to reading material;
(v) to adequate exercise; and
(vi) to adequate clothing and sufficient blankets and bedding.
The Alliance is broadly in support of the general principles. They particularly applaud Clause 3(2) through which the constitutional guarantees contained in section 28(1)(g) are given prominence and are concretised into guidelines to ensure that children are only detained as a measure of last resort – the first step is to see if the child can be released, if not then bail must be considered and if the child is to be detained it has to be as a measure of last resort and in the least restrictive form of detention appropriate to the child and the nature of the offence. The Alliance further submits that the qualification of “police custody” contained in section 3(3) should be removed and that these principles should extend to the custody of a child at any institution – prison, police cells, lock-up, place of safety or secure care facility.
CJ 6, 9 and 9a: (CSIR Crime Prevention Centre)
It is suggested that the following words be added: “access to adequate sanitation and hygiene”. It is known that street children for instance are often dirty. It is impossible to claim that their sense of dignity and worth, or their access to services, will be equal in the absence of an opportunity to be clean.
CJ 8(a): (NICRO)
The formulation begs the question who should ensure fulfilment of these rights? The agency responsible for fulfilment should be explicitly identified.
CLAUSE 4: APPLICATION OF ACT
Clause 4(4):
(4) The circumstances contemplated in subsection (3) include those where—
(a) there are several co-accused and the majority of them are under the age of 18 years; or
(b) a person commits a further offence while serving a residential sentence imposed in terms of this Act and after having reached the age of 18 years.
CJ 8(a): (NICRO)
NICRO supports the upper age as 18, but submits that the “exceptional circumstances” listed in clause 4(4)(a) and (b) should be extended to permit persons over 18 but under 21 to be considered for diversion in a slightly broader range of circumstances. This is based on ground level experience throughout the country relating to persons who are presently frequently referred to NICRO programmes. Either include all persons below 21 who have committed Schedule 1 offences (individually or in a group); or persons above 18 but below 21 who is still attending school and charged with the commission of a minor offence; or persons above 18 but below 21 charged with shoplifting or possession of dagga where the value is less than R300. Further, the inclusion of non-national children in the provisions of the Bill may cause practical problems, as such non-nationals are often deported without appearing in a criminal court at all.
CLAUSE 5: CRIMINAL CAPACITY
(1) A child who commits an offence while under the age of 10 years cannot be prosecuted for that offence.
(2) A child who commits an offence while under the age of 14 years is presumed not to have had the capacity to appreciate the difference between right and wrong and to act in accordance with that appreciation, unless the criminal capacity of the child is proved in accordance with section 56.
(3) If the Director of Public Prosecutions intends charging a child contemplated in subsection (2) with an offence, the Director or his or her delegate must issue a certificate confirming an intention to prosecute.
(4) If the certificate contemplated in subsection (3) is not issued within 14 days after the preliminary inquiry, the Director of Public Prosecutions must be regarded as having declined to institute prosecution.
(5) In issuing a certificate contemplated in subsection (3) the Director of Public Prosecutions may have regard to any relevant information, but must have regard to—
(a) the appropriateness of diversion;
(b) the educational level, cognitive ability, domestic and environmental circumstances, age and maturity of such child;
(c) the nature and gravity of the alleged offence;
(d) the impact of the alleged offence upon any victim of such offence; and
(e) a probation officer’s assessment report.
(6) The common law pertaining to the criminal capacity of children is hereby amended to the extent set out in this section.
CJ 5: (Child Rights Project, Pietermaritzburg)
The minimum age of criminal capacity and the presumption relating to children between the ages of 10 and 14 are supported.
CJ 8(a): (NICRO)
There is unanimous support within NICRO for the minimum age of criminal capacity at 10 years. South Africa would be failing to honour commitments incurred at international law if the minimum age was not to be raised.
CJ 11 and 11(a) : (Prof Julia Sloth-Nielsen)
The retention of the rebuttable presumption on incapacity of children aged between 10 and 14 is a useful mechanism in ensuring that children do benefit from this protection which existed at common law. Frequently, diversion programme presenters, probation officers and other role-players report that young children appearing in court or at diversion programmes are of borderline intellectual ability. It is asserted that retention of the rebuttable presumption will assist to sift such children from those who indeed have the requisite capacity. Further, the requirement that capacity must actually be proved beyond reasonable doubt will prevent unnecessary trials in criminal courts where children lack both capacity as regards the commission of the original offence as well as the capacity to participate properly in criminal proceedings.
With regard to the issue of “scientific evidence” to support the raising of the minimum age of criminal responsibility from 7 to 10, Prof. Sloth-Nielsen reports that the broad consensus amongst child development experts is that children only develop the capacity to foresee and shape their behaviour according to an understanding of what consequences might occur around the age of 11 (just pre-puberty). This is also articulated in the ‘second leg’ of the current test for criminal capacity.
Adding further support for the raising of the minimum age, Prof. Sloth-Nielsen points out that many countries/territories/states undertaking law reform in the last decade in this area (at least 25) have chosen a fixed minimum age (eg 12). Children mature at different rates in different settings and cultures, and under different parenting, family and social systems. This has led most states to opt for a fixed minimum age, which applies as a rule of law (irrespective of the actual developmental status of an individual child). Although the doli incapax presumption has been abolished in some jurisdictions recently, retention of this rebuttable presumption does allow for a more flexible approach which accommodates differences in maturation rates.
With regard to the issue of children below the minimum age of criminal responsibility Professor Sloth-Nielsen criticises article 7(7) (which requires a police official when confronted by a child below the minimum age of criminal responsibility to ‘inform the relevant probation officer of such particulars of the child as may be prescribed’) as being vague and weak. She is of the view that it will, in practice, have no effect at all. The police official should be permitted/required to accompany the child to the probation officer. Furthermore, Professor Sloth-Nielsen refers to Committee to the SALC Report on Juvenile Justice and the draft Bill attached thereto. That draft Bill contained concrete provisions which include opening a children’s court inquiry, arranging a family conference and organising therapeutic services for the child and his or her family.
CJ 15 (Open Society Foundation)
Noting that South Africa is one of a few countries with such a low minimum age of criminal capacity, the raising of the minimum age from 7 to 10 years is supported. This will lift some of the prosecutorial burden and secondly there will be a strengthening of the family preservation approach to intervention with very young children. However, a concern is raised about the fact that the Bill does not include provisions about what should happen when a child below the age of 10 commits and offence, and it is submitted that a section should be included outlining the role of the Children’s Court in these circumstances.
CJ 12: (Child Justice Alliance)
The Child Justice Alliance supports that the age of criminal capacity be raised to 10 years. They acknowledge the fact that neither the CRC nor the Beijing Rules specify a particular minimum age of criminal capacity. However, they observe that the UN Committee on the Rights of the Child has constantly criticized countries that have fixed their minimum age of criminal capacity at less than 10 years of age. The Law Commission’s proposals that the age be raised to 10 was based on a number of motivating factors, which included the respondents to the consultative process agreeing to the change as well as the recognition that scientific evidence on child development advocated the age being raised.
The Alliance is further of the view that the retention of the rebuttable presumption for children from 10 and 13 ensures there is flexibility and protection for children aged from 10 to 13, and they are supportive of this on account of the fact that children differ according to maturity and emotional and intellectual understanding during those developmental years.
In addition, because of problems associated with the application of the common law presumption, such as only the first part of the test being applied and the practical application of the test in court, the Alliance is wholly supportive of clause 5(3), which provides that a certificate of intention to prosecute must be issued by the Director of Public Prosecutions. Furthermore, the Alliance observes that section 56(2) provides that the prosecution or the child’s legal representative can request that a child be evaluated by a suitably qualified person, at State expense, to determine the question of criminal capacity. The Child Justice Alliance supports this idea in that it is submitted that these are important provisions as they ensure that the prosecution properly applies its mind to the prosecution of children between 10 and 13 years and thereby avoids indiscriminate prosecution as well as ensuring that the question of criminal capacity can be determined with appropriate evaluation of the child where necessary.
The Child Justice alliance makes the following submissions regarding the re-wording of certain clauses:
It is submitted that it would be more conducive and make for easier reading if clause 5(2) were to read “unless it is subsequently proved, beyond reasonable doubt, that such a child at the time of the alleged commission of the offence had such capacity” instead of merely referring the reader of the Bill to another section.
Clause 5(3) does not on a cursory reading indicate when the certificate must be issued. It is only if read in conjunction with clause5(4) that it appears that the certificate must be issued after a preliminary inquiry. It is submitted that clause 5(3) should read “…must issue a certificate confirming an intention to prosecute after the preliminary inquiry”.
Section 5(4) seems to intend to create the situation, correctly so, that where a certificate has not been issued within 14 days after the preliminary inquiry, then the prosecution is estopped from proceeding with a prosecution. Therefore it is submitted that the word “regarded” in section 5(4) should be changed to “deemed” in order to make this clearer.
Clause 5(5)(a) refers to “the appropriateness of diversion”. It is submitted that this is not sufficient as, if one only looks at diversion in general, it might be inappropriate but if one looks at diversion in relation to a particular individual child, it might be appropriate. It is submitted that section 5(5)(a) should read as follows: “ the appropriateness of diversion of the child alleged to have committed an offence.”
CJ 8(a): (NICRO)
With regard to clauses 5(3) and (4) The DPP’s certificate must be issued within 14 days. It is submitted that for a Schedule 3 offence a 30 day period should be allowed. However, there should also be no delays in this certification procedure which might cause children to remain in prison.
CHAPTER 3: METHODS OF SECURING ATTENDANCE OF CHILD AT PRELIMINARY INQUIRY
CJ 12 (Child Justice Alliance)
The Alliance points out that this chapter incorporates provisions which spread out over several chapters in the Cabinet version of the Bill, and they are of the view that the way in which these matters are grouped in the Bill currently before Parliament is an improvement on the Cabinet version. However, they point out the omission of certain matters that were included in the Cabinet version, and they are of the view that these matters should be included.
The first issue that has been omitted is the use of force by police during arrest. The Alliance acknowledges that this would be covered by the Criminal Procedure Act, but nevertheless feel that it is important to highlight police responsibilities in these circumstances, especially in respect of children.
Secondly the Alliance raises the fact that in the Cabinet version of the Bill there were provisions (at Clause 11(6) of that version of the Bill). The Alliance is of the view that such a clause is important for the management of children who, although below the age of criminal responsibility, should be managed in the context of child justice.
CLAUSE 7: ARREST
Clause 7(1):
(1) Unless there are compelling reasons justifying an arrest, a child may not be arrested for an offence contemplated in Schedule 1.
CJ 8(a): (NICRO)
The high value set for Schedule 1 offences is questioned and suggested that it be lowered from R500 to R300. It is proposed that the quantity and weight of drugs should also be specified (R500’s worth of dagga ‘stoppe’ can amount to 500 ‘stoppe’, which tends to indicate dealing). It is further proposed that the following common petty offences should also be included in Schedule 1:
· loitering with the intention of committing prostitution
· possession of suspected stolen goods to the value of R500 (a statutory offence)
· possession of housebreaking implements (a statutory offence)
· possession of car-breaking implements (a statutory offence)
Moreover, NICRO is concerned about the absence of provisions on citizens’ arrests (eg a security guard at a shopping centre). The question is asked whether legislation should not detail those standards expected of private citizens in relation to children, as there have been notable instances of abuse of children at the hands of people using the citizens’ arrest provisions.
Clause 7(3)(a)(iv):
(3) (a) The police official effecting the arrest of a child must—
(i) inform the child of the nature of the allegation against him or her;
(ii) inform the child of his or her rights in the prescribed manner; and
(iii) explain to the child the immediate procedures to be followed in terms of this Act; and
(iv) notify the child's parent or an appropriate adult of the arrest.
(b) The National Commissioner of the South African Police Service must issue a national instruction with regard to the procedure to be followed when notifying a child's parent or an appropriate adult of the arrest.
CJ 6, 9 and 9a: (CSIR Crime Prevention Centre)
There should be an adult available to every child, and an appropriate adult should be appointed by the State. Failing this the child who has no such adult will be disadvantaged. This must be borne in mind in respect of all references to an appropriate adult in the Bill.
The Legal Aid Board observes that the requirement of clause 7(3)(a)(iv) that a parent or appropriate adult must be notified may be difficult to implement in relation to street children. It is therefore proposed that in all instances the Legal Aid Board should also be notified.
Clause 7(4):
(4) A police official, or where possible the police official who has arrested a child, must not later than 24 hours after the arrest, inform the probation officer in whose area of jurisdiction the child was arrested of such arrest in the prescribed manner.
CJ 8(a): (NICRO)
Notification within 24 hours could be difficult to implement in rural areas. NICRO strongly advocates for an after hours probation service where possible.
Clause 7(5):
(5) (a) Any child who has been arrested must, whether an assessment of the child has been effected or not, be taken by a police official to appear at a preliminary inquiry within 48 hours after arrest or, if the 48 hours expired outside court hours or on a day which is not a court day, no later than the end of the first court day after the expiry of the 48 hours.
(b) If a police official is unable to inform a probation officer of the arrest, the police official must submit a written report to the inquiry magistrate at the preliminary inquiry furnishing reasons for the non-compliance.
CJ 12 (Child Justice Alliance)
Clause 7(5)(a) (children must be taken to appear at a preliminary inquiry with 48 hours) is central to the attempt by the Bill to ensure that criminal proceedings in relation to children are conducted as speedily as possible. It also complies with the constitutional requirement that everyone who is arrested must be brought to court, generally not later than 48 hours after the arrest. The provision is thus supported.
Clause 7(7):
(7) A police official may not arrest a child under the age of 10 years alleged to have committed an offence, but—
(a) must inform the relevant probation officer of such particulars regarding the child as may be prescribed; and
(b) may remove the child to a place of safety in terms of section 12 of the Child Care Act, 1983 (Act No. 74 of 1983), if the police official has reason to believe that the child is a child referred to in section 14(4) of that Act.
CJ 8(a): (NICRO)
The Law Commission proposed that the probation officer would have certain powers, namely to open a children’s court inquiry, to refer the child or the child’s family for counselling or therapy, to arrange for state or private support services for the child, or to arrange a conference with the child, his or her parent or appropriate adult, the police official and possibly the victim, to devise a written plan appropriate to the child and relevant to the circumstances. Also, the police would have been granted the power to take a child to a probation officer where the child was below the age of 10, in a manner equivalent to the present Form 4 procedure used in the Child Care Act by the police to remove children pending an enquiry into the circumstances. It is submitted that the omission of these provisions weakens the Bill considerably, and requests that attention be given to re-incorporating non-punitive provisions.
If a police official is uncertain about the age of a person suspected of having committed an offence but has reason to believe that the age would render that person subject to this Act, the official must treat such person as a child for the purposes of this Chapter, subject to the estimation of that person's age at the preliminary inquiry.
CJ 12 (Child Justice Alliance)
The alliance identifies several problems relating to Clause 10. Firstly, it is submitted that a child cannot be treated as falling under the provisions of the Act where there is uncertainty and where there is no requirement relating to the appropriateness or sufficiency of the reason for the belief of the police official. This would not be in the best interests of the child and does not comply with the requirements of freedom and security of the person and freedom from arbitrary arrest. Secondly, the estimation of age does not take place at the preliminary inquiry, but by a probation officer prior to the preliminary inquiry. Thirdly, if the age estimation is to be undertaken by a probation officer prior to the preliminary inquiry, there is no provision ensuring that the police official specifically takes the child to the probation officer for an age estimation. It is submitted that it should still be made clear that the police official should take the child there specifically for the age estimation as well Therefore it is submitted that clauses 7(1) and (2) of the Cabinet version of Bill should be reinstated in the Bill in this chapter.
CLAUSE 11: RELEASE OF CHILD INTO CARE OF PARENT OR APPROPRIATE ADULT BEFORE PRELIMINARY INQUIRY
(1) A police official must release a child who is in detention in police custody and who is accused of an offence referred to in Schedule 1 into the care of the child’s parent or an appropriate adult before the child appears at the preliminary inquiry, unless—
(a) exceptional circumstances as prescribed in this Act warrant detention;
(b) the child’s parent or an appropriate adult cannot be located or is not available and all reasonable efforts have been made to locate such parent or appropriate adult; or
(c) there is a substantial risk that the child may be a danger to any other person or to himself or herself.
(2) (a) A police official may, in consultation with the Director of Public Prosecutions or a designated prosecutor, release a child who—
(i) is in detention in police custody and who is accused of an offence referred to in Schedule 2; or
(ii) is accused of an offence referred to in Schedule 1 but has not been released in terms of subsection (1),
into the care of such child’s parent or an appropriate adult on any one or more of the conditions referred to in paragraph (b).
(b) A child may be released in terms of paragraph (a) on condition that the child—
(i) appears at a specified place and time for assessment;
(ii) does not to interfere with a witness, tamper with evidence or associate with a person or group of specified people; and
(iii) resides at a particular address.
CJ 6, 9 and 9a: (CSIR Crime Prevention Centre)
The constant mention of the “child’s parent or an appropriate adult” is potentially problematic in the case of street children. It is submitted that alternative provision should be made to address the special circumstances of these children.
CJ 12 (Child Justice Alliance)
Clause11 of the Bill reinforces the general principle contained in chapter 1, whereby the release of a child from police custody is seen as the first guiding principle in order to ensure that detention of children is only a measure of last resort and for the shortest possible period of time. The clause is strongly supported.
(1) (a) Where a child in detention in police custody complains of an injury sustained during arrest or whilst in detention, the police official to whom such complaint is made must report the complaint to the station commissioner who must delegate a police official to take the child to a medical practitioner for examination as soon as is reasonably possible.
(b) The report by the medical practitioner must be included in the appropriate police docket.
(2) The police official responsible for a case must ensure that the child concerned is assessed before the commencement of the preliminary inquiry and may use police transport for that purpose.
CJ 12 (Child Justice Alliance)
(1) The station commissioner of each police station must keep a register in which prescribed details regarding the detention in police cells of all children must be distinctively recorded.
(2) The register may be examined by such persons as may be prescribed.
The Bill provides for a register of children in custody, which may be inspected by persons to be prescribed in regulations. It is submitted that the Legal Aid Board should be included in the list of persons to be prescribed for this purpose.
CHAPTER 4: ASSESSMENT OF CHILD
CJ 7(a): RAPCAN
It is submitted that clause 38 of the Law Commission’s original draft on the purposes of assessment, which have been excluded from the present Bill, should be included in order to make the Bill and assessment have greater clarity and put the provisions in context for probation officers and social workers. These provisions serve as useful general principles and guidelines for assessment. (The same point is echoed in CJ 19 (SAYStOP).)
CJ 8(a): (NICRO)
The same point about the purposes of assessment is made, with reference to S v J 2000 (2) SACR 310 (C). The relevant part of the judgement reads: “From the above-mentioned recommendations of both the IMC and the South African Law Commission Project Committee on Juvenile Justice, it appears that the purpose of an assessment report in respect of a juvenile offender is, inter alia, to establish the prospects of the child in question being diverted away from and dealt with outside the criminal justice system (thereby avoiding a criminal conviction), and to assist the prosecutor and other relevant officials in determining whether or not to continue with the prosecution of the child … To my mind, this highlights the importance of legislation clarifying the approach to the assessment of young people in conflict with the law …”
Law Commission’s draft:
Purposes of assessment
38. The purposes of assessment are to -
(a) estimate the probable age of the child if the age is uncertain;
(b) establish the prospects for diversion of the case;
(c) determine whether a child is in need of care as contemplated in section 70(2);
(d) formulate recommendations regarding release of the child into the care of a parent or an appropriate adult, or placement in a residential facility; and
(e) in the case of children below the age of ten years, establish what measures, if any, need to be taken.
CJ 12 (Child Justice Alliance)
The Child Justice Alliance notes that although section 50(5) of the Criminal Procedure Act requires an arresting officer to inform a probation officer after the arrest of a person under 18 years, this has not consistently occurred in practice and the purpose of notification and then what the probation officer is supposed to do is also not stated. Accordingly, a chapter dedicated to assessment, setting out the responsibilities and powers of probation officers is welcome and necessary and the inclusion of this process as a necessary (albeit not compulsory) procedure is supported by the Child Justice Alliance.
A probation officer who receives a notification from a police official that a child has been arrested, served with a summons or issued with a written notice must assess the child before the child appears at the preliminary inquiry.
CJ 12 (Child Justice Alliance)
Clause 19 of the Bill before Parliament has its equivalent in clause 42(1) of the Cabinet version of the Bill. However, the present Bill does not provide for the contents of clause 42(3) of the Cabinet version, which requires the Minister of Social Development to provide probation services to give effect to this provision. It is imperative that a section along these lines be included in the Bill. Probation services are a fundamental part of the delivery required under the provisions of the Bill and for the purposes of effective implementation there has to be some accountability on the part of the Department of Social Development to provide their services in an appropriate and proper way.
CLAUSE 21: PERSONS TO ATTEND ASSESSMENT
Clause 21(3):
(3) The following persons may attend the assessment of a child:
(a) The prosecutor in whose magisterial district the assessment is being conducted;
(b) the legal representative of the child;
(c) any police official;
(d) any person whose presence is necessary or desirable for the assessment; and
(e) any other person permitted by the probation officer to attend, including a researcher.
CJ 6, 9 and 9a: (CSIR Crime Prevention Centre)
It is submitted that provision should be made to include for example the shelter caretaker of the child or person, or a representative from a diversion programme in the case of street children.
CJ 8(a): (NICRO)
It is suggested that par (d) be expanded by adding the words “including a diversion programme presenter such as a NICRO staff member”. It is further proposed that the presence of the police official should only be permitted where it is necessary to ensure the personal safety of the probation officer or to prevent the child from absconding.
Clause 21(5)
(5) A probation officer may in the prescribed manner request a police official to be present at an assessment.
CJ 12 (Child Justice Alliance)
This provision relates to the probation officer allowing a police official to attend the assessment in the prescribed manner. The equivalent provision of the Cabinet version stipulated that such attendance should only be for the possibility of the child escaping or endangering the safety of the probation officer. It is submitted that this qualification is necessary and that a police official should not be generally allowed to attend the assessment. Although clause 21(5) allows for the attendance to be prescribed by regulation, such a safeguard is a necessary inclusion in the legislation itself.
CLAUSE 22: POWERS AND DUTIES OF PROBATION OFFICER BEFORE ASSESSMENT
Clause 22:
(1) A probation officer may at any time before the assessment of a child issue a notice in the prescribed manner to a parent of the child or an appropriate adult to appear at the assessment or, where the interests of justice so require, the probation officer may orally request the parent or appropriate adult to appear at the assessment.
(2) A notice contemplated in subsection (1) must be delivered by a police official upon the request of the probation officer in the prescribed manner.
(3) A person who has been notified in terms of subsection (1) may apply to the probation officer not to attend the assessment, and if the probation officer exempts the person from attending the exemption must be in writing.
(4) A person notified in terms of subsection (1) and not exempted in terms of subsection (3) who fails to attend the assessment, is guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding three months.
(5) A probation officer may request the a police official in the prescribed manner to—
(a) obtain any documentation required for the completion of assessment of a child;
(b) locate a child’s parent or an appropriate adult; and
(c) provide transport in order to secure the attendance at the assessment of a child, and his or her parent child or an appropriate adult.
(6) (a) The probation officer must make every effort to locate a parent or an appropriate adult for the purposes of concluding the assessment of a child.
(b) If all reasonable efforts to locate the parent or an appropriate adult have failed, the probation officer may conclude the assessment in the absence of such person.
CJ 12 (Child Justice Alliance)
The Cabinet version of the Bill (at clause 46) set out clear powers of probation officers with regard to children under the age of 10 years, and it is submitted that such a clause is integral to the functioning of a proper child justice system. Children below 10 years who come into conflict with the law may need a particular intervention and to fail to deal with these children would be a gaping omission and allow them to potentially fall through the cracks. The suggestion that the police merely refer the children to the welfare system might not be appropriate for that child and an assessment by a probation officer could be the best starting point to determine a plan of action for the child. The Alliance submits that clause 46 of the Cabinet version of the Bill be reinstated.
The SAPS submission points out that following changes by the State Law Advisor, the version of clause 22 in the Bill before the portfolio committee is susceptible to an interpretation that the Service must transport children who are not in the custody of the Service and even children who have been released into the care of their parents. Should this interpretation be correct SAPS doubts that they will have sufficient resources. The Service therefore recommends that the Bill must clearly state the cases in which the Service must provide transport.
CJ 6, 9 and 9a: (CSIR Crime Prevention Centre)
The wording of clause 22 (6)(b) should read: “If all reasonable efforts to locate a parent or an appropriate adult have failed, the probation officer must appoint an appropriate adult to attend the assessment in support of the child”.
(1) If the age of a child who must be assessed is uncertain, the probation officer must make an estimation of the child’s age and must complete the prescribed form.
(2) In making the estimation, the probation officer must consider any available information in the following order of cogency, subject to subsection (3):
(a) A previous determination of age by a magistrate under this Act or under the Criminal Procedure Act or an estimation of age in terms of the Child Care Act, 1983 (Act No. 74 of 1983);
(b) statements made by a parent, the legal guardian or any other person likely to have direct knowledge of the age of the child or a statement made by the child himself or herself;
(c) a baptismal certificate, school registration form or school report, or other information of a similar nature; or
(d) an estimation of age made by a medical practitioner.
(3) If the probation officer is unable to make an estimation by virtue of information contemplated in subsection (2)(a), (b) or (c), the probation officer must refer the child in the prescribed manner to a medical practitioner for an estimation of the child's age.
(4) The probation officer must submit the estimation on the prescribed form together with any relevant documentation to the inquiry magistrate before the child's appearance at a preliminary inquiry.
With regard to age estimation and determination SAYStOP are of the view that the Cabinet version of the Bill followed a much more logical approach to the issue of age estimation and determination than the Bill currently before the legislature. The first point is that in the Cabinet version all the provisions relating to age estimation and determination were contained in the same chapter as criminal capacity. This was logical because both issues deal with the age of a child and questions on age usually arise at the outset of a particular matter. Secondly, in the Cabinet version there was a clear grouping of all the responsibilities and powers of various role-players and an easy picture to follow about what should be done by whom. However, the Bill currently before the legislature contains provisions spread out in various parts of the Bill, which makes it difficult to read.
Wheras originally all the provisions relating to age estimation and determination were in Clauses 8 and 9 of the Cabinet version, the provisions in the version of the Bill currently before parliament are spread out across clauses 24, 31 and 82.
CJ 12: (Child Justice Alliance)
Clause 8 of the Cabinet version of the Bill deals with the age estimation by a probation officer and this has been relocated to clause 24 of the present Bill under the chapter of assessment. It is noted that age estimation is one of the purposes of assessment, but it is submitted that logic demands that all issues relating to age estimation and determination should be located in one area in the Bill so that this process is clear.
CLAUSE 25: NATURE AND OBJECTIVES OF PRELIMINARY INQUIRY
Clause 25(3)
(3) The objectives of a preliminary inquiry are to—
(a) establish whether the matter can be diverted before plea;
(b) identify a suitable diversion option, where applicable;
(c) establish whether the matter should be transferred to a children’s court in terms of the Child Care Act, 1983 (Act No. 74 of 1983);
(d) provide an opportunity for the prosecutor to assess whether there are sufficient grounds for the matter to proceed to trial;
(e) ensure that all available information relevant to the child, his or her circumstances and the offence is considered in order to make a decision on diversion and placement of the child;
(f) ensure that the views of all persons present are considered before a decision is taken;
(g) encourage the participation of the child and his or her parent or an appropriate adult in decisions concerning the child; and
(h) determine the release or placement of the child pending—
(i) conclusion of the preliminary inquiry;
(ii) appearance of the child in a court; or
(iii) transfer of the matter to the children’s court.
CJ 12 (Child Justice Alliance)
Clause 25(3): another objective should be added, namely to establish whether or not the child has been assessed and if not, to determine whether compelling circumstances exist for not making such an assessment.
Clause 25(4):
(4) A preliminary inquiry may be held in a court or any other suitable place.
CJ 8(a): (NICRO)
NICRO is firmly of the opinion that the inquiry should not take place in a court, although it may take place in another venue in the court building (eg an office). It is proposed that the wording be adapted to reflect that a court room should only be used where no other alternative is available. (CJ 12 (Child Justice Alliance) makes the point).
CLAUSE 27: PERSONS TO ATTEND PRELIMINARY INQUIRY
Clause 27(5):
(5) The following persons may attend the preliminary inquiry:
(a) The child’s legal representative;
(b) any police official;
(c) any researcher, with the approval of the inquiry magistrate; and
(d) any person contemplated in section 29(1)(b).
CJ 8(a): (NICRO)
It is recommended that the diversion service provider should be included in the list of persons entitled to be present at the preliminary inquiry. NICRO has the right and responsibility not to accept an unsuitable candidate in its programmes, and there should be a procedure for referral back to the preliminary inquiry when an inappropriate option has been selected. Diversion service providers should be given the role of making an alternative recommendation for the child, where a referral has been deemed unsuitable.
CLAUSE 28: PROCEDURE RELATING TO HOLDING OF PRELIMINARY INQUIRY
Clause 28(2):
(2) Information regarding a previous diversion or previous conviction of the child concerned may be submitted at a preliminary inquiry by any person attending the inquiry.
CJ 8(a): (NICRO)
The role-players should have access to a full history of the child during the preliminary inquiry, including any previous convictions and diversions.
Clause 29(5)
(5) The inquiry magistrate must consider the reports regarding the arrest of the child and detention in police custody provided by the arresting police official.
CJ 12 (Child Justice Alliance)
Clause 29(5): the following additional wording is recommended:
“The inquiry magistrate must consider the reports regarding arrest of the child and detention in police custody provided by the arresting police official and if the inquiry magistrate considers that an arrest or detention in a police cell was unnecessary, the Independent Complaints Directorate must be notified.”
CLAUSE 35: RELEASE OF CHILD ON BAIL BY INQUIRY MAGISTRATE
Clause 35(2):
(2) If bail has been granted previously for a child appearing at a preliminary inquiry by a police official in terms of section 14(1) or by the Director of Public Prosecutions or a prosecutor designated thereto by the Director in terms of section 14(3), the inquiry magistrate may extend the bail on the same conditions, amended conditions or additional conditions and may increase or reduce the amount of bail.
CJ 11: (Prof Julia Sloth-Nielsen)
If a child has already been released on bail by the DPP, the power accorded the inquiry magistrate to increase the amount set could result in the child being reconfined to custody. This is clearly a violation of the constitutional provision that requires detention to be a last resort, and it is recommended that the magistrate should not have the power to increase bail amounts. The Bill as it stands gives judicial officers carte blanche to set bail amounts, which runs counter to present moves not to incarcerate prisoners who cannot afford bail. Urgent attention must be given to limiting the possibility of presiding officers using bail, and this option, if available, should only be used where it is clearly and demonstrably the only option available to ensure that deprivation of liberty is a last resort.
CLAUSE 36: FURTHER DETENTION OF CHILD AFTER FIRST APPEARANCE
Clause 36:
(1) (a) An inquiry magistrate may order the further detention of a child in a place of safety or a secure care facility if such place or facility is available within a reasonable distance from the place where the preliminary inquiry is held, if—
(i) the proceedings of a preliminary inquiry are postponed in terms of section 37 or 38; and
(ii) the release of a child on his or her own recognisance, into the care of a parent or an appropriate adult or on bail is for any reason not possible.
(b) If a place of safety or secure care facility is not available or if there is no vacancy the child may be detained in a police cell as long as the detention facilities at the police station—
(i) are suitable for the detention of children; and
(ii) provide for children to be detained separately from adults.
(2) An inquiry magistrate may order the further detention of a child in a place of safety or a secure care facility or, subject to subsection (4), a prison, if—
(i) the child is to appear for plea and trial as contemplated in section 42(1); and
(ii) the release of a child on his or her own recognisance, into the care of a parent or an appropriate adult or on bail is for any reason not possible.
(3) The inquiry magistrate must have regard to the recommendations of the probation officer when deciding on the placement of the child as contemplated in subsection (1) or (2).
(4) (a) A child of 14 years or older charged with an offence referred to in Schedule 3 may be detained in prison if—
(i) there is no place of safety or secure care facility within a reasonable distance of the preliminary inquiry at which the child is appearing;
(ii) there is no vacancy in the place of safety or secure care facility; or
(iii) there is a substantial risk that the child will cause harm to other children in the place of safety or secure care facility.
(b) An inquiry magistrate who makes an order that a child be detained in prison must record the reasons for making such an order.
(5) (a) If an inquiry magistrate orders the further detention of a child in terms of subsections (2), the child must appear before the magistrate at least every 60 days if detained in a place of safety or secure care facility and at least every 30 days if detained in a prison.
(b) When the child appears before the inquiry magistrate, the magistrate must—
(i) determine whether or not the detention remains necessary;
(ii) if ordering further detention of the child, record the reasons for the detention;
(iii) consider a reduction of the amount of bail, if applicable;
(iv) inquire whether or not the child is being properly treated and kept under suitable conditions; and
(v) if not satisfied that the child is being properly treated and kept under suitable conditions, inspect and investigate the treatment and conditions and may make an appropriate remedial order.
CJ 4: (Law Society of the Cape of Good Hope)
The Bill declares, as unacceptable, detention in ordinary police and/or prison cells and dictates the establishment of special detention facilities. It is anticipated that this aspect of the Bill may lead to the longest delay in implementation if all facilities for its implementation have to be available to give meaning and effect to it.
CJ 11 and 11A: (Prof Julia Sloth-Nielsen)
Clause 36(1)(b) must give rise to serious concern. It appears to allow the matter to be remanded awaiting trial in police cells for an indefinite period, without any controls being in place whatsoever – including any limitation related to the seriousness of the offence, the age of the child, or a return date in order to ensure the continued necessity of the child in detention - as provided by clause 36(5) where a child is remanded to a (much safer) place of safety or secure care facility or prison.
It is submitted that the Law Commission Report version of the Bill provided proper protection for children awaiting trial. Clause 36(1)(b) as it appears in the Bill currently before Parliament leaves a gaping hole in the provisions which are supposed to ensure detention of children as a last resort. Further, pre-trial detention in police cells after the initial period of 48 hours has been banned for 7 years now, and the question arises why the legislature would want to reintroduce this possibility in the light of the fact that no less than 7 children met their deaths in police cells in 2001.
Detention as a last resort covers any form of detention from which the child is not free to leave, and thus obviously includes detention in police custody. With no restrictions whatsoever proposed, and indeterminate detention for petty offences possible, for children from the age of 10 years, it must be doubted whether this provision can be seen to give effect to section 28(1)(g) of the Constitution. Moreover, it is totally illogical to attempt to curtail lengthy periods of pre-trial detention in one form of custody (see clause 35(5) and clause 58 relating to time limits for trials), but fail to apply these to detention in police custody.
Since no age categories are specified in clause 36(1)(b), it must be pointed out that permitting children below the age of 14 to be detained in police custody without restriction must constitute, as mentioned above, a clear breach of international obligations.
In any event, the criteria specified in clause 36(1)(b)(i) are utterly subjective and will, in practice, prove no impediment to the detention of children. Who is to determine suitability of the police cells? And according to which standards? Can children’s rights lobby groups challenge detention decisions by leading expert evidence of the unsuitability of an environment for children where there is no reading material, no leisure activity, no access to education, no access to exercise, constant threats of violence and inadequate warmth and nutrition?
The provision must be vigorously opposed, and no detention in police custody permitted beyond the conclusion of the preliminary inquiry procedure at all.
Further, the Bill gives the distinct impression that places of safety and secure care facilities are interchangeable. In fact, both in conception and in practice, there is a vast difference between a place of safety and a secure care facility. The latter were intended eventually to replace prisons as remand institutions for young people in trouble with the law. Admission was to be only after assessment, which should relate to the risk of serious harm to the community, to other children, or to the child him or herself, and are not intended for run of the mill situations where specialised staff, high degree of security, and so forth, are not required. Using the two terms interchangeably may well result in secure care being inappropriately used for children who are not at all in need of this level of facility, and cause the system to become totally overburdened.
The Portfolio Committee should appraise itself of the dangers of equating secure care with a place of safety, and take steps to ensure that the legislation reflects that only cases warranting secure care are referred there. One option would be to limit referrals to a secure care facility only to children charged with the more serious offences, such as some of those contained in Schedule 2, and those contained in Schedule 3. Another route would be to establish guiding criteria, as the legislation does in regard to release of children from detention in clause 33(2). It is not sufficient that the magistrate must have regard to a recommendation of a probation officer (clause 36(3)), as once regard has been had to such recommendation, it may be ignored.
The Committee is referred to the SALC report and draft Bill which in the Professor’s was more user-friendly with regard to its wording of these provisions.
(1) The inquiry magistrate may postpone the proceedings of a preliminary inquiry for a period not exceeding 48 hours for the purposes of—
(a) securing the attendance of a person necessary for the conclusion of the inquiry;
(b) obtaining information necessary for the conclusion of the inquiry;
(c) establishing the attitude of the victim regarding diversion;
(d) the planning of a diversion option;
(e) finding alternatives to pre-trial residential detention; or
(f) assessing the child, where no assessment has previously been undertaken and it is found that assessment may not be dispensed with.
(2) If the proceedings of a preliminary inquiry is postponed for the purpose of noting a confession, an admission or a pointing-out, or the holding of an identity parade, the inquiry magistrate must inform the child of the right to have a parent, an appropriate adult or legal representative present during such proceedings.
(3) The proceedings of a preliminary inquiry may be postponed for a further period not exceeding 48 hours if the postponement is likely to increase the prospects of diversion, after which the preliminary inquiry, if it has not been concluded and subject to section 38, must be closed and the prosecutor must set the matter down for plea and trial in a court.
CJ 12: (Child Justice Alliance)
The Alliance supports the time frames set in terms of clause 37(1) (postponement of preliminary inquiry for 48 hours), and 37(3) (a further postponement for 48 hours for specific reasons). These provisions might seem onerous, but the Alliance submits that they are necessary to ensure that matters are dealt with expeditiously and this is achieved by means of the strict timetable.
CLAUSE 38: POSTPONEMENT OF PRELIMINARY INQUIRY FOR DETAILED ASSESSMENT
(1) Any person may request the inquiry magistrate to postpone the proceedings of a preliminary inquiry for the purposes of obtaining a detailed assessment of a child.
(2) The inquiry magistrate may postpone the proceedings of the preliminary inquiry for a period not exceeding 14 days if there are exceptional circumstances warranting a further assessment of the child and if such circumstances relate to—
(a) the possibility that the child may be a danger to others or to himself or herself;
(b) the fact that the child has a history of repeatedly committing offences or abscondment;
(c) the social welfare history of the child;
(d) the possible admission of the child to a sexual offenders’ programme, substance abuse programme or other intensive treatment programme; or
(e) the possibility that the child may be a victim of sexual or other abuse.
(3) Any detailed assessment must be conducted in the home of the child, unless assessment in the home is not in the best interests of the child or impossible, in which case assessment may be conducted at any residential facility.
CJ 8(a): (NICRO)
It is not clear from the wording if the child should be released until the assessment is finished. It is also suggested that the Law Commission’s proposal which clarifies that diversion is still possible after a detailed assessment (“Upon consideration of the probation officer’s report following a detailed assessment of the child as contemplated in this section, any decision referred to in section 61 may be made, after which the preliminary inquiry must be closed.”) should be included in the Bill. This is not necessarily evident from the Bill as it now stands.
CJ 12 (Child Justice Alliance)
The Alliance supports clause 38 which provides for a longer postponement of 14 days where a more detailed assessment of the child is necessary, for instance where the child has a history of offending or is being assessed for a young sex offenders diversion programme. This provision therefore covers the situation where the strict time periods would not serve the best interests of the child and a more intensive assessment is justified over the desire to prevent of delays.
The provision that allows for a preliminary inquiry to be postponed for a detailed assessment in certain circumstances including the possible admission of a child to a sex offender’s programme is supported by SAYStOP.
(1) The inquiry magistrate must ascertain from the prosecutor whether the matter can be diverted after consideration of—
(a) the assessment report, unless assessment has been dispensed with in section 29(2);
(b) the views of all the persons present at the preliminary inquiry and any information provided by any such person;
(c) any information requested in terms of section 29(1)(c); and
(d) the willingness of the child to acknowledge responsibility for the offence.
(2) If the prosecutor indicates that the matter may be diverted, the inquiry magistrate must make an order for diversion in respect of the child concerned.
(3) In addition to the diversion options set out in section 47, the inquiry magistrate may, after consultation with the persons present at the preliminary inquiry, develop an individual diversion option which meets the purposes of and standards applicable to diversion set out in sections 45 and 46.
CJ 12: (Child Justice Alliance)
The Alliance proposes the following provisions to be added to clause 39:
“Where it is decided that the matter must be diverted, the prosecutor must withdraw the charges against the child conditionally or unconditionally, and the preliminary inquiry must be closed.”
“Where the prosecutor decides to proceed with the prosecution of the child, the matter may be set down for plea and trial in a court.”
“Where the matter is to be set down for plea and trial in a court or is to be transferred to the children’s court, the preliminary inquiry must be closed.”
CLAUSE 41: REFERRAL OF CHILD TO CHILDREN’S COURT
(1) If it appears during proceedings at a preliminary inquiry that a child is a child as referred to in section 14(4) of the Child Care Act, 1983 (Act 74 of 1983), and that it is desirable to deal with the child in terms of that Act, the inquiry magistrate may stop the proceedings and order that the matter be referred to a children's court.
(2) Referral of a matter to the children’s court must be considered by an inquiry magistrate if a child—
(a) has previously been assessed on more than one occasion with regard to minor offences committed to meet the child’s basic need for food and warmth and in the preliminary inquiry in question it is again alleged that the child has committed such an offence;
(b) is the subject of a current order of the children’s court;
(c) is allegedly abusing dependence-producing substances; or
(d) does not live at his or her family home or in appropriate substitute care, and is alleged to have committed a minor offence the purpose of which was to meet the child’s basic need for food and warmth; or
(e) is a child as described in section 14 of the Child Care Act, 1983 (Act 74 of 1983).
CJ 12: (Child Justice Alliance)
The following addition to clause 41 is proposed:
“In the event of the referral of a matter to a children’s court inquiry after conviction of the child, any finding of guilt must be considered not to have been made.”
CJ 12: (Child Justice Alliance)
The Child Justice Alliance supports the idea of diversion and welcomes the inclusion of diversion in the Bill so that it can operate within a legislative framework that will provide good governance, consistency, certainty and just administrative action. The alliance cites an unreported case, M v The Senior Public Prosecutor, Randburg, unreported decision case no. 3284/00 (W), in order to illustrate the need for a legislative framework in place to regulate diversion.
CJ 13: (Community Law Centre)
CLC specifically supports the move not to exclude certain categories of crime for the purposes of diversion. The circumstances of the accused and the offence are individually dynamic and it would therefore be counterproductive to focus on the general nature of the offence and not the offender and specific details of the crime by excluding certain offences from diversion. The approach currently taken, of assessing each matter as it occurs, is the correct one.
CJ 19: (SAYStOP)
SAYStOP observes that there are various types of young sex offenders and the motives for committing the offences differ drastically. They therefore support the idea that diversion should not exclude certain categories of offences.
CLAUSE 45: MINIMUM STANDARDS APPLICABLE TO DIVERSION AND DIVERSION OPTIONS
Clause 45(4)(d):
(4) Diversion options must, where reasonably possible—
(a) …
(b) …
(c) …
(d) be presented in a location reasonably accessible to the child, and a child who cannot afford transport in order to attend a selected diversion programme should, as far as is reasonably possible, be provided with the means to do so.
CJ 8(a): (NICRO)
It must be clearly stated that the State must pay the transport costs, as NGOs do not have the resources to pay for these expenses. NICRO also questions whether families who can afford to pay for diversion services should be obliged to do so, in the same way as families can pay for private lawyers.
CLAUSE 47: DIVERSION OPTIONS
Clause 47(1):
(1) For the purposes of this section—
(a) diversion options are set out in three levels with level one comprising the least onerous and level three the most onerous options;
(b) "a compulsory school attendance order" means an order requiring a child to attend school every day for a specified period of time, which attendance is to be monitored by a specified person;
(c) "a family time order" means an order requiring a child to spend a specified number of hours with his or her family;
(d) "a good behaviour order" means an order requiring a child to abide by an agreement made between the child and his or her family to comply with certain standards of behaviour;
(e) "a positive peer association order" means an order requiring a child to associate with persons who can contribute to the child’s positive behaviour;
(f) "a reporting order" means an order requiring a child to report to a specified person at a time or at times specified in such order so as to enable such person to monitor the child’s behaviour; and
(g) "a supervision and guidance order" means an order placing a child under the supervision and guidance of a mentor or peer in order to monitor and guide the child’s behaviour.
CJ 8(a): (NICRO)
The positive peer association order may infringe on the child’s rights to choose whatever friends he or she may like. The concern may be eliminated if the child was at the same time assigned a mentor, who could fulfil the role of contributing to the child’s positive behaviour. It is proposed that the paragraph be reworded to clarify that a mentor may be appointed for the child for a certain period. NICRO voices another concern that it is unclear as to who should monitor the orders set out in subclause (1).
Clause 47(4)(e) and (f) and (g):
(4) Level two diversion options include—
(a) …
(b) …
(c) …
(d) …
(e) payment of compensation to a maximum of R500 to a specified person, persons, group or institution where the child or his or her family is able to afford this;
(f) where there is no identifiable person or persons to whom restitution or compensation could be made, provision of some service or benefit or payment of compensation to a community organisation, charity or welfare organisation;
(g) referral to appear at a family group conference or a victim-offender mediation at a specified place and time; and
CJ 8(a): (NICRO)
There is some concern regarding who bears the responsibility to compensate the victim. There is also a query about whether there might not be an overlap with section 300 of the Criminal Procedure Act, 1977, which provides for a form of compensation. Isolated instances have occurred in the past where the ‘victim’ seems to have used system to acquire compensation twice, and care must be taken not to allow fraud or dishonesty. As a general rule it is submitted that compensation or restitution in monetary terms should be excluded as children do not have the means to pay victims, and further, parents should not be held accountable for their children’s offending by being punished with financial sanctions. Rather, community service could be rendered to the victim as a form of symbolic restitution.
CJ 10: (Restorative Justice Centre)
The phrase “or other restorative justice process” has been removed from the original Bill as proposed by the Law Commission. Two dangers are foreseen: on the one hand, practices could develop that are not in line with the principles of restorative justice, and on the other, that by being too prescriptive local expressions of the concept will be excluded. It is recommended that the formulation of the Bill not be restricted to family group conferences and victim offender mediation programmes only. It should include a phrase that is wide enough to allow other initiatives within the country, particularly rural areas that are within the restorative paradigm but exclusive enough to eliminate abuse.
CJ 16: (CSVR)
The CSVR support the restorative justice aspects of the Bill, but submit that clauses 47(4) (g) and 65 be changed so as to refer to a family group conference, victim offender mediation or other restorative justice process.
CLAUSE 47(5):
(5) Level three diversion options apply to children over the age of 14 years in cases where a court upon conviction of the child for the offence in question is likely to impose a sentence of imprisonment for a period not exceeding six months, and include—
(a) referral to a programme which does not exceed six months and which has a residential element that does not exceed 35 days in total and 21 consecutive days during the operation of the programme;
(b) performance without remuneration of some service for the benefit of the community under the supervision and control of an organisation or institution, or a specified person or group, identified by the probation officer and for a period not exceeding 250 hours which must be completed within 12 months of the commencement of the service;
(c) where a child is over the age of compulsory school attendance as contemplated in the South African Schools Act, 1996 (Act No. 84 of 1996), and is not attending formal schooling, compulsory attendance at a specified centre or place for a specified vocational or educational purpose for a period not exceeding six months and no more than 35 hours per week; and
(d) referral to counseling or therapeutic intervention in conjunction with any of the options listed in this subsection.
CJ 15: (Open Society Foundation)
It is submitted that the wording of clause 47(5) be tightened. “Referral to a programme…which has a residential element” is a nebulous term which should be more clearly articulated. This should be clarified, and it is particularly important to indicate that the term “residential element” does not include a prison. Also, a number of diversion interventions make use of the outdoors as a tool for intervention and it is not clear if this would be considered to have “residential element”.
CLAUSE 48: FAMILY GROUP CONFERENCE
Clause 48(1):
(1) If a child has been referred to appear at a family group conference, a probation officer appointed by the inquiry magistrate must within 14 days, but not later than 21 days, after such referral convene the conference by—
(a) setting the time and place of the conference; and
(b) taking steps to ensure that all persons who may attend the conference are timeously notified of the time and place of the conference.
CJ 8(a): (NICRO)
The wording seems to imply that only probation officers will be able to convene such conferences. It should be altered to reflect that while probation officers may be responsible for contacting service providers and reporting back to the inquiry magistrate or the court, the conferences themselves may well be convened by non-state actors. In practice the greatest amount of experience in holding family group conferences rests with NGOs rather than the State. Further, it should be clarified that the family group conference should not take place in a court. Provisions or guidelines regarding the time when the victim should be contacted (assessment stage or after the decision to divert?); participation by victims in family group conferences and the level of support provided to victims should be considered. It is also contended that the 21 day period is too short, and that 30 days or longer is a more realistic interval.
CHAPTER 7: CHILD JUSTICE COURTS
CJ 11(a): (Prof. J. Sloth-Nielsen)
The Professor points out that there is no provision in the Bill as tabled for converting a matter to a children’s court inquiry after the preliminary inquiry stage. This means that the opportunity to use a section like section 254 of the present criminal procedure act will not be available to the judicial officer at any stage during the trial or sentencing process. This is unfortunate, as research shows that such conversions are in fact as frequent at sentencing stage as they are in practice early on in the proceedings It is therefore proposed that the section 254 provision be re-inserted into the Chapter 7 of the Bill (note that the Bill provides that the present section 254 will be repealed: see section 86 of the Child Justice Bill).
CLAUSE 50: CERTAIN COURTS REGARDED AS CHILD JUSTICE COURTS
(1) (a) Any court to which proceedings against a child is postponed for plea and trial in terms of section 42 must be regarded as a child justice court.
(b) Preference must be given to a court contemplated in section 89(1) of the Magistrates' Court Act, 1944 (Act No. 32 of 1944), when deciding to which court proceedings must be postponed in terms of section 42.
(2) The head of each administrative region as defined in section 1 of the Magistrates' Court Act, 1944 (Act No. 32 of 1944), must as far as is reasonably practicable provide a court room for a child justice court that is conducive to—
(a) privacy and the dignity and well-being of children; and
(b) informality and participation by all persons involved in the proceedings.
CJ 12: (Child Justice Alliance)
The Alliance recommends a reinsertion of clause 71(5) the Cabinet approved version of the Bill, which reads as follows:
“The child justice court and the officer presiding in such court must be designated by the Chief Magistrate of each magisterial district and such court must, as far as is possible, be staffed by specially selected and trained personnel.”
(1) The Cabinet member responsible for the administration of justice, in consultation with the Cabinet members responsible for social development, safety and security and correctional services, may establish centralised services for child justice to be known as One-Stop Child Justice Centres which may be situated at a place other than the local magistrate’s court or police station.
(2) Every One-Stop Child Justice Centre must have—
(a) offices for use by members of the South African Police Service;
(b) offices for use by probation officers;
(c) facilities to accommodate children temporarily pending the conclusion of a preliminary inquiry; and
(d) a child justice court which has the same jurisdiction in respect of offences as a court as contemplated in section 89(1) of the Magistrates' Court Act, 1944 (Act No. 32 of 1944).
(3) A One-Stop Child Justice Centre may have—
(a) offices for use by a child's legal representative;
(b) offices for use by persons who are able to provide diversion and prevention services;
(c) offices for use by persons authorised to trace the families of a child;
(d) offices for use by persons who are able to provide correctional supervision;
(e) a children’s court; and
(f) a child justice court which has the same jurisdiction in respect of offences as a court of a regional division as contemplated in section 89(2) of the Magistrates' Court Act, 1944 (Act No. 32 of 1944).
CJ 52: (Legal Aid Board)
Clause 51 (2) sets out facilities that must exist at a One-Stop Child Justice Centre while Clause 51(3) sets out facilities that may exist at such a centre. Offices for use by the Legal Aid Board are included in the latter list, and the Legal Aid Board strongly contends, on the basis of the constitutional right to legal representation, that the offices for use be a child’s legal representative should be moved to clause 51(2) as part of the list of what a One-Stop Child Justice must have.
(1) At the start of proceedings in a child justice court, the presiding officer must in the prescribed manner—
(a) inform the child of the nature of the allegations against him or her;
(b) inform the child of his or her rights; and
(c) explain to the child the further procedures to be followed in terms of this Act and the Criminal Procedure Act.
(2) Notwithstanding section 93ter of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), the presiding officer in a child justice court may not summon assessors to assist him or her.
(3) The child justice court may participate in eliciting evidence from any person involved in the proceedings if it would be in the best interests of the child.
(4) The proceedings of the child justice court must, with due regard to the child’s procedural rights, be conducted in an informal manner to encourage maximum participation by the child and his or her parent or an appropriate adult.
(5) The child justice court must protect a child from hostile cross-examination where the cross-examination is prejudicial to the well-being of the child or the fairness of the proceedings.
CJ 12: (Child Justice Alliance)
The Alliance recommends the addition of the following words to clause 53:
“In the case of a child who is at least 10 years of age but not yet 14 years, question the child to ascertain that the child has the capacity to understand the plea proceedings in terms of section 77 of the Criminal Procedure Act, 1977.”
CLAUSE 57: SEPARATION AND JOINDER OF TRIALS INVOLVING CHILDREN AND ADULTS
Clause 57:
(1) Where a child and a person other than a child are alleged to have committed the same offence, they are to be tried separately unless it is in the interest of justice to join the trials.
(2) An application for such joinder must be directed to the child justice court in which the child is to appear after notice to the child, such person and their legal representatives.
(3) If the child justice court grants an application for joinder of trials, the matter must be transferred to the court in which such person is to appear.
(4) The court to which the matter has been transferred must afford the child concerned all such benefits conferred upon such child by this Act.
CJ 7(a): RAPCAN
No indication is given as to any regulations regarding the joinder. Such regulations are needed to guide decisions to grant a joinder, so as to ensure that there is consistency and protection of the child’s rights and their best interests. One must consider that a child processed through an adult court as a witness undergoes stress and trauma, and that this has necessitated a change in our judicial system. It can be recognised that a child already in trouble with the law is more likely to be traumatised and distressed if processed through an adult court, and with their co-accused. In the United Kingdom, Anderson raises that where a ‘youth is jointly accused with an adult, then proceedings are initiated in the adult court, however the case may be remitted to the juvenile court where possible for hearing and if not possible, then for sentencing.’ The Bill does not state whether a child appearing in an adult court in a joinder case will be remitted to a child justice court for sentencing, or will be sentenced under adult conditions. It is proposed that the Bill include a provision that the case can be referred back to the child justice court, at least for sentencing.
CJ 8(a): (NICRO)
NICRO avers that the “interest of justice” standard does not give enough protection to children, and can be too easily used to effect joinder of trials because it is expedient for prosecutors and magistrates. Separation of children from the adult criminal justice system should be the priority, over and above operational expediency. The standard of “substantial and compelling” reasons should be introduced.
CJ 11(a): (Prof. J. Sloth-Nielsen)
In the quest to create a separate child justice system, it is obviously preferable that wherever possible children should be tried separately from adults. This goes to the very essence of the century of history that has lead to separate juvenile justice systems for children, and constitutes international best practice. However, it is conceded that there are practical problems sometimes, including the question of duplicate dockets and the role of the defence counsel for any adult co-accused. Nevertheless, there are many systems where complete separation is maintained, eg Canada. The role players (eg the prosecution) have become accustomed to running two trials on occasion, and do not experience difficulty. In the SALC Draft Bill, the above principles are far more clearly stated than in Bill 49/2002. Clause 80(1) says that trials are to be separated unless compelling reasons for joinder exist. By comparison, Bill 49/2002 provides that separation should occur unless it is in the interests of justice to join the trials –a far weaker criterion in the view of the Professor. It is proposed that the test for allowing joinder of trials be defined more strictly, so as to preserve the essential goal of separation of children from adults wherever possible. It is not, however, submitted that separation be a blanket and inflexible rule.
CJ 15: (Open Society Foundation)
The OSF supports the view that section 57(1) should permit joinder of trials only where there are substantial and compelling reasons to do so.
CLAUSE 58:TIME LIMITS RELATING TO CONCLUSION OF TRIALS
(1) A child justice court must conclude all trials of accused children as speedily as possible and must ensure that postponements are limited in number and in duration.
(2) Sections 33, 34, 35 and 36 apply with the changes required by the context to a child justice court where a child appearing in the child justice court for the first time is in detention.
(3) Where a child remains in detention in a place of safety, secure care facility or prison and the trial of the child is not concluded within a period of six months from the date upon which the child has pleaded to the charge, the child must be released from detention, unless charged with an offence listed under item 1, 2 or 3 of Schedule 3.
The submission expresses concern about the safety of children in prison, and supports the provisions in the Bill aimed at ensuring that children are afforded a speedy judicial process, which should reduce the number of children in prison awaiting trial.
CJ 13: (Community Law Centre)
Clause 58(3) provides for the release of a child in detention where the trial of the child is not concluded within 6 months of plea. It is submitted this is a reasonable and necessary section. It adheres to the principles that detention of a child must be as a last resort and for the shortest possible period of time as contained in the Constitution in section 28(1)(g) and the UN CRC. Furthermore, the release of a child can still be conditional for example on the child being subject to a house arrest project and such release does not extend to children charged with very serious offences under schedule 3 of the Bill.
CLAUSE 59: CHILD JUSTICE COURT MAY DIVERT MATTER
Clause 59(2)(a):
(2) (a) The child justice court must, upon receipt of a report from the probation officer that the child has successfully complied with the diversion conditions, acquit the child on all charges in question.
CJ 8(a): (NICRO)
There is some concern about the implications of the Court being required to acquit the child, where there might indeed already have been overwhelming evidence proving the child’s guilt. An acquittal in the face of overwhelming evidence could render the magistrate liable to being criticised by a review judge. The deeming provision in section 254 of the Criminal Procedure Act, 1977, appears to be more useful as a device, and it is proposed that similar wording be investigated. However, NICRO fully supports the concept that diversion after plea has commenced is intended to avoid the child getting a criminal record, and that this is what the wording of clause 59 should achieve.
It is further argued that there is a gap in that no reference is made to the possibility of transfer of the matter to a court constituted in terms of the relevant drug legislation where the child is in need of rehabilitation from drug addiction.
CLAUSE 69: REFERRAL TO PRISON
Clause 69(1):
(1) A sentence of imprisonment may not be imposed unless—
(a) the child was over the age of 14 years of age at the time of commission of the offence; and
(b) substantial and compelling reasons exist for imposing a sentence of imprisonment, which may include conviction of a serious offence or a previous failure to respond to alternative sentences, including sentences with a residential element.
CJ 8(a): (NICRO)
Judicial officers setting sentences should require that a programme component be included in any prison sentence. Such additional clause would place a duty on the Department of Correctional Services to ensure that children in prison receive proper educational services, vocational training and reintegration services whilst serving any sentence of imprisonment. In addition, courts faced with the imposition of minimum sentences have not found the phrase “substantial and compelling reasons” easy to interpret; however, NICRO supports clear limitations on the use of imprisonment, and any chosen alternative wording must reflect this.
CJ 11 and CJ 11(a): (Prof Julia Sloth-Nielsen)
No child under the age of 14 years should be sentence to imprisonment. The Department of Correctional Services has indicated on numerous occasions that they do not have the facilities to accommodate youngsters aged below 14 years, and cannot provide them with basic human rights such as education while in detention in prison. Nor can they guarantee separation of thee children from older youths who may be aged up to 17 years. The age for admission to one of the 7 Youth development centres in the country is 16-21 years. Further, any step to now lower the age of 14 years as the minimum age of admission to prison would be a retrogressive step, and it can be argued that this would offend South Africa’s commitments to children’s rights advancement under both the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.
The Professor points out, referring to statistics on sentenced children under the age of 14 years which she has provided to the committee, that it is clear that the numbers of children really requiring a residential alternative are few enough to be accommodated in existing reform schools and similar institutions, including secure care facilities.
More broadly, with regard to the need to limit imprisonment as an option for the majority of child offenders the Professor stresses the constitutional principle that detention should always be a matter of last resort, and then only for the shortest appropriate period of time applies far more broadly than simply to detention in a prison. It applies to any situation where a child is deprived of liberty. This is especially relevant in the child justice system, where children can be and are deprived of liberty in a range of alternative institutions - places of safety, secure care facilities, reform school youth centres and other residential centres. This has long been recognised by the Criminal Procedure Act, which provides for automatic high court review of any reform school sentence, as which limits the period of time for which a sentence to a reform school may be imposed.
The restrictions on the imposition of residential sentences in the Bill follow the constitutional principle, as also three decades of research here and abroad which illustrate the overwhelmingly negative long term effects of institutionalisation upon developing youth. The committee is cautioned against proceeding from the stance that sentencing be linked to facilities – the danger exists that we will always find children needed to fill available institutions, whereas the trend here and internationally is towards community based sentencing for both youth and adults.
CJ 15: (Open Society Foundation)
The OSF strongly endorses the provision that no child under the age of 14 should be imprisoned and that no child should be sentenced to life imprisonment. Both of these provisions are in line with international instruments and trends, and provide South Africa with an opportunity to confirm, in national legislation, its ratification of the UN Convention on the Rights of the Child.
CJ 13: (Community Law Centre)
CLC strongly endorse clause 69(1) , which recognises the vulnerability of young children and prevents imprisonment as a sentence for children under 14 years of age. They support this view by pointing out that children are not often sentenced to imprisonment in our current system.
|
Year in which sentenced |
Total number of children (under 18 years) sentenced to imprisonment |
Number of children aged 7-13 sentenced to imprisonment |
|
1997 |
1361 |
14 |
|
1998 |
1222 |
14 |
|
1999 |
1641 |
11 |
|
2000 |
1719 |
5 |
According to CLC children under 14 years who commit serious offences need a suitable yet serious intervention in order to impact on their behaviour and make a real attempt at rehabilitation. It is submitted that a South African Prison is not the place to achieve this.
CLC also contends that minimum sentences provided for in the Criminal Procedure Act should not apply to children. (Currently minimum sentences apply to a limited extent to 16 and 17 year olds). CLC points out that the High Court is creating precedents that deal with sentencing of offenders below the age of 18 years in the light of Constitutional obligations and the obligations created by the ratification of the UN CRC. In S v Nkosi 2002 SACR (1) 135 (W) the court held on appeal that a sentencing court is not obliged to impose minimum sentences for children in the same way it would for adults. The court drew on a number of previous judgements that proposed that due to constitutional and international obligations the best interests of the child dictate that imprisonment should be imposed on a child offender for the shortest possible period of time and as a measure of last resort.
CLAUSE 70: POSTPONEMENT OR SUSPENSION OF PASSING OF SENTENCE
Clause 70(3):
(3) The conditions contemplated in subsections (1) and (2) may be any condition appropriate to the circumstances of the child which is in keeping with the objects of this Act and which promotes the child’s reintegration into society and may include—
(a) restitution, compensation or symbolic restitution;
(b) an apology;
(c) the obligation not to commit a further offence of a similar nature;
(d) good behaviour;
(e) regular school attendance for a specified period;
(f) attendance at a specified time and place of a family group conference or for victim-offender mediation;
(g) placement under the supervision of a probation officer or correctional official as defined in section 1 of the Correctional Services Act, 1998 (Act No. 111 of 1998);
(h) a requirement that the child or any other person designated by the child justice court must again appear before that child justice court on a date or dates to be determined by such child justice court for a periodic progress report; and
(i) referral to any diversion option referred to in section 47(3)(d), (e), (f), (g), (h), (i), (j) or (k).
CJ 7(a): (RAPCAN)
Add a new paragraph (j), which appeared in the Law Commission’s original draft, to be worded as follows: “any other condition appropriate to the circumstances of the child and in keeping with the principles of this Act, which promotes the child’s reintegration into society”. CJ 19: (The same point is made in CJ 12: Child Justice Alliance, and in CJ 19: SAYStOP).
CLAUSE 71: PENALTY IN LIEU OF FINE OR IMPRISONMENT
Clause 71:
Notwithstanding any other law, a child justice court convicting a child of an offence for which a fine or imprisonment is prescribed as penalty may impose any one of the following penalties in place of that fine or imprisonment:
(a) Symbolic restitution to a specified person, group of persons or institution;
(b payment of compensation not exceeding R500 to a specified person, group of persons or institution where the child or his or her family is able to afford this;
(c) an obligation on the child to provide some service or benefit or to pay compensation to a community charity or welfare organisation identified by the child concerned or by the child justice court if there is no identifiable person to whom restitution or compensation could be made; or
(d) any other competent sentence prescribed in this Act, but not imprisonment.
CJ 8(a): (NICRO)
The clause is not clear and does not properly prohibit fines altogether: it refers only to offences for which the prescribed penalty is a fine or imprisonment. It therefore omits a fine that may not be prescribed, but may be imposed mero motu for a common law offence. Payment of any monetary value as a sentence should be scrapped, because children lack independent financial resources.
CJ 11A: (Prof J Sloth-Nielsen)
The Bill should expressly prohibit the imposition of a fine as a sentence. The provisions of section 71, which may appear to provide alternatives to fines, in fact only govern those instances where a fine is the prescribed penalty. It therefore opens the way for a judicial officer to consider imposing a fine for common law offences (for example) where there is no prescribed penalty. This runs counter to the intention to prohibit monetary penalties which children cannot pay. The Professor refers the Committee to the discussion of this point in the SALC report and Draft Bill.
CLAUSE 72: PROHIBITION OF CERTAIN FORMS OF PUNISHMENT
Clause 72(1):
(1) No sentence of life imprisonment may be imposed on a child.
CJ 8(a): (NICRO)
The proposal that life imprisonment as a sentence for children should be excluded is fully supported. NICRO proposes that a maximum sentence of imprisonment that may be imposed on a child who has committed an offence while under the age of 18 should be established by law.
CJ 11: (Prof Julia Sloth-Nielsen)
International law (the Convention on the Rights of the Child, and the Beijing Rules for the Administration of Juvenile Justice, inter alia) support the introduction of a prohibition on life imprisonment. This is linked to the principle of detention for the shortest appropriate period of time, which is necessarily offended by a sentence which is by it’s definition indeterminate (even in South Africa, a life prisoner who is released on parole remains on parole for the rest of his or her natural life, and can, upon any infringement whatsoever, be recalled to serve for the rest of his or her life.)
This important principle was clearly recognised by the Transvaal High Court in S v Nkosi (2001), where the court overturned a life sentence imposed on a juvenile for an offence committed whilst under the age of 18 years. Although the court did not declare the sentence of life imprisonment to be in direct conflict with the constitution in so many words, the court did say that life imprisonment as a sentence would only be an option to consider only where there was no prospect – at the time of sentence – of eventual rehabilitation. Since children are by definition relatively immature, more easily influenced, and likely to experience personality changes (as recognised by courts which have developed youth sentencing policy throughout this century), it must be obvious that such prediction can never be made. This in turn means that, according to the jurisprudence articulated by Cachalia J and the concurring judges in S v Nkosi, a life sentence for a juvenile would never be appropriate.
The tabled Bill provides, further, that a sentence of imprisonment may be imposed only upon an offender who, at the time of commission of the offence, was aged over 14 years. This restriction is both practical and necessary. It is also logical, as the Bill also prevents the pre-trial detention of young children below the age of 14 in prisons.
CLAUSE 73: REQUIREMENTS TO BE COMPLIED WITH BY LEGAL REPRESENTATIVES
Clause 73(1) and (2):
(1) A legal representative representing a child must—
(a) allow the child, as far as is reasonably possible, to give independent instructions concerning the case;
(b explain the child’s rights and duties in relation to any proceedings under this Act in a manner appropriate to the age and intellectual development of the child;
(c) promote diversion where appropriate, but may not unduly influence the child to acknowledge responsibility; and
(d) ensure that the trial is concluded without delay.
(2) A legal representative representing a child in terms of this Act must be admitted as an attorney or an advocate.
CJ 8(a): (NICRO)
NICRO is concerned about privately appointed lawyers, as there is then no check and balance to ensure that the best interest of the child is served. In practice, it is NICRO’s experience that lawyers try to take over the case in a way that does not encourage diversion. These lawyers influence how the children plead, delay matters or attempt to take them to trial in an attempt to earn a higher fee, and give wrong information on diversion to children and their parents. It is conceded that the provisions of clause 73 setting standards for all legal representatives do go some way towards addressing these issues, but further consideration should be given to the standards and principles that should bind all child legal representatives.
(1) A child has the right to give instructions to a legal representative in the language of his or her choice, with the assistance of an interpreter where necessary.
(2) (a) The parent of a child or an appropriate adult may appoint a legal representative of his or her own choice, in which case the payment of the fees for the legal representation rests with that parent or appropriate adult, as the case may be.
(b) A legal representative appointed in terms of paragraph (a) does not have to be accredited under section 77.
Clause 74(1) provides for a child to have the right to instruct any legal representative in a language of his or her choice. The Legal Aid Board points out that sometimes it is necessary to use the court interpreter in order to enable the child to give instruction to the legal representative in his/her own language. The Board submits that if this practice is permitted to continue then they will be able to actualise this right.
CJ 12: (Child Justice Alliance)
The Alliance supports the idea of accreditation for legal representatives on the ground that specialisation in the skills and knowledge required for representing children effectively is desirable. The Alliance goes further and suggests that even legal representatives in private practice should be required to have such accreditation.
CHILD TO BE PROVIDED WITH LEGAL REPRESENTATION AT STATE EXPENSE IN CERTAIN INSTANCES
(1) Subject to the Legal Aid Act, 1969 (Act No. 22 of 1969), a child must be provided with legal representation at State expense at the conclusion of the preliminary inquiry if no legal representative was appointed by the parent or appropriate adult and if—
(a) the child is in detention pending plea and trial in a child justice court;
(b) the proceedings is postponed for plea and trial in a child justice court and it is likely that a sentence involving a residential requirement may be imposed if the child is convicted of the offence in question; or
(c) the child is under the age of 14 years of age and a certificate contemplated in section 5(3) has been issued in respect of such child.
CJ 52: (Legal Aid Board)
Clause 75 provides for the legal representation of children by the Legal Aid Board. The Board points out that the criteria which the child is obliged to meet are less stringent that those currently set out in the Legal Aid Guide in respect of adult accused. The Board does not object to being more generous in respect of children, but it wishes to bring to the attention of the legislature the fact that adult applicants:
The Legal Aid Board contends a policy decision by the legislature to deal more generously with children is a distinction that will be constitutionally defensible.
CJ 12: (Child Justice Alliance)
There should be an obligation on child justice personnel to facilitate access to legal representation at State expense and because of the seriousness of this issue, Legal Aid Board officials should be bound by this section. Obtaining Legal Aid representation can often lead to numerous delays within the present criminal justice system and in so far as clause 99 of the Cabinet version of the Bill was designed to overcome this, it is desirable that the provision be included in the Bill currently before Parliament.
CLAUSE 75(5):
(5) If the parent or guardian of a child who is granted legal representation at State expense under this Act would otherwise have be ineligible to receive legal representation at State expense due to the fact that the parent or guardian’s income exceeds the means test applied by the Legal Aid Board, the Legal Aid Board may recover the costs of the legal representation from such parent or guardian.
Clause 75(5) makes provision for the Legal Aid Board to recover the cost of legal representation from parents who exceed the means test of the Legal Aid Board. Whilst the Board is not opposed to this idea it notes that it will be difficult to give effect to as there is no infrastructure to follow up on such matters. The Board therefore submits that the practical effect could better be given to the intention behind this if the court enquired into the financial ability of the parents to have privately provided legal representation for their child at the finalisatino of the matter. The court should also be empowered to make a repayment order that would have the effect of a civil judgement against the parents.
CLAUSE 78: AUTOMATIC REVIEW IN CERTAIN CASES
Clause 78:
Any sentence by a magistrate's court, as defined in the Criminal Procedure Act and sitting as a child justice court, involving correctional supervision imposed in terms of section 66 and any sentence with a residential requirement imposed in terms of section 67, whether wholly or partially suspended, are subject to review in terms of section 302 of the Criminal Procedure Act.
CJ 5: (Child Rights Project, Pietermaritzburg)
Automatic review plays an important role in monitoring the sentencing of offenders. This is an automatic review and the High Court would have to deal with this provision speedily if it is to be of use to protect children.
CLAUSE 80: MONITORING OF CHILD JUSTICE
Clause 80:
(1) The Cabinet member responsible for the administration of justice must make regulations regarding procedures to be put in place to monitor and assess the proper application of and compliance with this Act.
(2) The regulations contemplated in subsection (1) must—
(a) direct that this Act be monitored by the Director-General of the Department of Justice and Constitutional Development, in conjunction with any other relevant department, annually or at such other interval as may be prescribed, with the object of assessing the implications, effectiveness and proper application of and compliance with this Act; and
(b) be made after consultation with the Cabinet members responsible for social development, for safety and security and for correctional services.
CJ 6, 9 and 9a: (CSIR Crime Prevention Centre)
There will be a need to establish a communication and support forum for magistrates to be able to share information, experience, co-ordinate approaches and diversion options. It is proposed that a “Child Justice Committee at district level” or a monitoring structure be established once the Bill is passed.
CJ 7(a): RAPCAN
The extensive provisions on monitoring contained in the Law Commission’s original draft Bill should be reinstated in the present Bill.
CJ 8(a): (NICRO)
The Law Commission Report on Juvenile Justice contained detailed provisions on monitoring, and NICRO is of the view that the body of provisions on monitoring should be included in the primary legislation itself, otherwise there is a risk that the Bill may be implemented without adequate monitoring structures being in place. It is also suggested that NGO participation in the monitoring structures should be provided for.
CJ 14: (Child Justice Forum)
The Forum is a monitoring body and as such it supports the idea that the Child Justice Bill should be monitored. The Forum submits that the details regarding monitoring structures and procedures should be included in the Act and not in regulations. The structures necessary for monitoring at district, provincial and national levels should be established by law. The inclusion of these matters in the primary legislation will provide an appropriate legal obligation. The delays inherent in drafting regulations will also be obviated.
The Alliance observes that detailed monitoring provisions were originally included in the South African Law Commission version of the Bill. The submission contends that the detail should be reinstated, in the interests of ensuring the highest form of accountability.
CLAUSE 81: EXPUNGEMENT OF RECORDS
Clause 81(2):
(2) In respect of offences other than those referred to in Schedule 3, the presiding officer in a child justice court must make an order regarding the expungement of the record of the child’s conviction and sentence and must note the reasons for the decision as to whether such record may be expunged or not when he or she imposes the sentence after consideration of any relevant factor, including—
(a) the nature and circumstances of the offence; and
(b) the child’s personal circumstances.
CJ 8(a): (NICRO)
Schedule 3 offences should not be totally excluded from consideration for expungement, especially as some Schedule 3 offences can be of varied seriousness in reality (eg possession of firearms and kidnapping). The possibility should exist for Schedule 3 offences to be expunged after 10 years, if the magistrate makes an order to this effect at the time of sentence taking into consideration the seriousness of the offence.
Clause 81(4):
(4) If an order has been made in terms of subsection (2) that the record of the conviction and sentence of a child may be expunged, the presiding officer must set a date upon which the record of conviction and sentence must be expunged, which date may not exceed five years from the date of the imposition of the sentence.
CJ 8(a): (NICRO)
It would be preferable to indicate clearly to sentencing officers that a lesser period than five years may be set. In petty cases especially, a far shorter period should ordinarily be imposed. In addition, there should be a record after each case is finalised to indicate if an order was made, and who will ‘hold’ the information, so as to ensure that the expungement system does in fact become operational. The legislation should make provision for some entity to maintain a data of expungement orders.
CJ 15 (Open Society Foundation)
The provisions for expungement of records in certain circumstances is supported, because a criminal record gained as a result of actions during childhood is detrimental to the development and progress of the child, and is of negligible positive benefit to the community. The OSF is however in favour of the exclusion of offences mentioned in parts 1, 2 and 3 of schedule 3 from the operation of expungement. In the view of the OSF this provision reflects the interests of victims and the community as a whole.
CLAUSE 82: AGE ASSESSMENT OF PERSON CLAIMING TO BE CHILD
(1) If a person who is charged with an offence in a court at any time before the imposition of sentence alleges that he or she was under the age of 18 years at the time of the alleged commission of the offence, the presiding officer must refer the person to a probation officer in the prescribed manner.
(2) The presiding officer of a court contemplated in subsection (1) may at any before the imposition of sentence of his or her own accord refer a person charged with an offence in that court to a probation officer if it appears to the presiding officer that the person is under the age of 18 years.
(3) The probation officer must make an estimation of the age of the person in accordance with section 24 and submit the prescribed form and any relevant documentation contemplated in that section to the presiding officer concerned.
(4) The presiding officer must determine the age of the person, and for that purpose section 31 applies with the changes required by the context.
(5) If the age of the person is determined to be under the age of 18 years and the trial has—
(a) not yet commenced, the presiding officer must transfer the matter to an inquiry magistrate having jurisdiction; or
(b) already commenced, the proceedings must continue before the presiding officer, but the remainder of the proceedings must be conducted in terms of this Act and the court must be regarded as a child justice court.
Clause 82 should have the heading “age assessment and determination by an officer presiding in a criminal court” as this is precisely the situation these provisions are meant to cover.
Clause 82 has excluded an important section from the Cabinet version of the Bill, namely section 10 (6), which reads as follows:
“Where proceedings have started in terms of the provisions of this Act in respect of a person who is alleged to have been below the age of 18 years at the time of the alleged commission of the offence with which such person is being charged, and evidence is produced proving that such person was 18 years of age or older at such time, the inquiry magistrate or court must-
(a) if such person is appearing at a preliminary inquiry, close the inquiry and refer the matter to the prosecutor for arrangements to be made for that person to be tried as an adult;
(b) if a trial has not yet commenced, refer the matter to the prosecutor for arrangements to be made for that person to be tried as an adult; or
(c) if a trial has commenced, terminate the trial and if such person has been convicted, transfer the matter to an appropriate court for that person to be sentenced as an adult.”
It is submitted that this section should be reinstated in the present Bill.
CLAUSE 83: LIABILITY FOR PATRIMONIAL LOSS ARISING FROM PERFORMANCE OF COMMUNITY SERVICE
(1) If patrimonial loss may be recovered from a child on the ground of a delict committed by him or her in the performance of community service in terms of Chapter 6 or 8, that loss may, subject to subsection (3), be recovered from the State.
(2) Subsection (1) may not be construed as precluding the State from obtaining indemnification against its liability in terms of subsection (1) by means of insurance or otherwise.
(3) The patrimonial loss which may be recovered from the State in terms of subsection (1) must be reduced by the amount from any other source to which the injured person is entitled.
(4) In so far as the State has made a payment by virtue of a right of recovery in terms of subsection (1), all the relevant rights and legal remedies of the injured person against the child concerned must pass to the State.
(5) If any person as a result of the performance of community service in terms of Chapter 6 or 8 has suffered patrimonial loss which cannot be recovered from the State in terms of subsection (1), the Director-General of Justice may, with the concurrence of the National Treasury, as an act of grace pay such amount as he or she may deem reasonable to that person.
CJ 15: (Open Society Foundation)
It is submitted that there is an omission in clause 83(1) in that no provision is made for the situation where a delict is committed by a community service placement agency many of which are not run by the State. In the view of the OSF this omission leaves the state open to legal action should a child be injured or suffer a loss during the performance of mandatory community service.
CLAUSE 84: OFFENCES AND PENALTIES
Clause 84(3):
(3) Any court convicting an adult of inciting, conspiring with or being the accomplice of a child in the commission of a crime or an offence must regard the fact of the child's involvement as an aggravating factor in sentencing the adult concerned.
CJ 8(a): (NICRO)
The wording does not reflect the need to charge an adult who uses children to commit a crime with a separate offence. The legal provisions concerning incitement, conspiracy and being an accomplice have been on the statute book for decades, yet no one consulted by NICRO (even prosecutors) can recall an instance where an adult using youngsters as criminal agents has ever been charged or convicted of these offences alone. There is no reason to believe that any charges would materialise in future, which means that the aggravated sentence concept embodied in the clause might as well not be written. It is proposed that there should be a clearly defined, independent offence to deter adults from using children as their instruments of crime.
GENERAL
CJ 4: (Law Society of the Cape of Good Hope)
It is essential to have all structures properly established, trained and running before meaningful effect can be given to the Bill. However, the Bill is supported and it is hoped that it can soon be introduced as a working model, with all the independent structures in place and the training requirements implemented.
CJ 6, 9 and 9a: (CSIR Crime Prevention Centre)
The general principles of the Bill, which originated to establish a criminal justice process for children accused of committing offences that would protect their rights in accordance with the Constitution and international instruments, are supported. It is submitted that extensive attention be given to the communication of the principles of the Bill, both to service providers and to communities. Those South Africans who are angry and often badly affected by crime will need to understand the notion of restorative justice if they are to support these principles, the benefits of which are not always immediately apparent.
CJ 8(a): (NICRO)
NICRO staff fully support the enactment of legislation establishing a separate child justice system, laying a legal framework for diversion and the expansion of restorative justice, and giving effect in domestic law to the principles contained in international instruments and the Constitution.
CJ 52: (Legal Aid Board)
The Legal Aid Board notes that the Bill provides for the child to advised of his/her rights at various stages. (Clauses 7(3)(a)(ii) – Arrest, Clause 8(3) –Summons, Clause 23(1)(b) –Assessment, Section 28(1)(b) (iii)-Preliminary Inquiry, Clause 53(1)(b)- Trial). The Legal Aid Board submits that the legislation should make express provisions for the child to be informed of his/her rights to:
The Legal Aid Board observes that cases under the Child Justice Bill will be more time consuming where it is necessary for legal practitioners to attend –
The Legal Aid further observes, however, that diversion (chapter 6) and plea bargaining in terms of the Criminal Procedure Act are likely to result in professional time being saved.
CJ 23(a): South African Police Service
Clauses 7(3)(b), 14(2) and 55(3) provides that the National Commissioner must issue National Instructions. These will take 5 months to develop. In addition there will need to be training of approximately 80 000 members, and this will take seven months, including the finalisation of training materials. SAPS therefore recommends that the Bill only be put into operation one year after its promulgation.
STRUCTURE OF THE BILL
CJ 7(a): RAPCAN
In the Law Commission’s original draft Bill, the provisions relating to age estimation and age determination were contained in the same chapter as criminal capacity. In the present Bill the sections have been moved to various parts of the Bill (clauses 24, 31 and 82). It is submitted that it would be more appropriate that these provisions be grouped together in one area of the Bill for consistency and ease of reference.
CJ 8(a): (NICRO)
The concept of an independent observer to witness identity parades, confessions and so forth where the child’s parent or an appropriate adult is not available is welcomed. However, it should be made clear to the police much earlier in the Bill (currently clause 54) that evidence taken without such a person’s presence will be inadmissible. Also, a set of criteria needs to be established for limiting police discretion in appointing independent observers, especially where they are broadly conceived as community members. It is further suggested that the regulations should provide for a list of accredited persons to be available at each police station.
With regard to age estimation and determination, the Child Justice Alliance is critical of the fact that the provisions have been spread throughout the Bill (clauses 10, 24, 31 and 82). The Alliance preferred the approach taken in the Cabinet version of the Bill, which grouped the procedures together under clauses 7, 8, 9 and 10 of that Bill.