BY: THE CHILD JUSTICE ALLIANCE[1]
Driver group: Children’s Rights Project, Community Law Centre, UWC
NICRO
Institute for Criminology, UCT
Restorative Justice Centre
Lawyers for Human Rights
IDASA
PLEASE NOTE THAT THE CHILD JUSTICE ALLIANCE WISHES TO ADDRESS THE PORTFOLIO COMMITTEE AT ANY PUBLIC HEARINGS THAT MAY OCCUR AND ACCORDINGLY REQUESTS AN OPPORTUNITY TO DO SO.
This submission consists of a comment on the background and general aspects of the Bill and then specific submissions and recommendations on particular sections contained in the Bill.
The South African Constitution[2], in section 28, provides specific rights for children in addition to the range of general rights that they enjoy under the provisions of the Bill of Rights.
In particular section 28(2) provides that, “ A child’s best interests are of paramount importance in every matter concerning the child.” This provision naturally includes children who come into conflict with the law.
In addition, section 28(1)(g) deals specifically with children accused of committing an offence and, apart from confirming the application of sections 12 and 35 of the Constitution, the section lays down the principle that children should only be detained as a measure of last resort and for the shortest possible period of time. Furthermore, the section also ensures that children who are detained, must be held separately from persons over the age of 18 years and must be treated in a manner and kept in conditions that take account of the child’s age.
Therefore the Constitution clearly intends to afford special protections for children who come into contact with the criminal justice system.
In addition to the applicable Constitutional provisions, South Africa has ratified both the United Nations Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child. Both documents have specific articles dealing with child justice – articles 37 and 40 of the CRC and article 17 of the Charter. The latter provision is, however, not as extensive as the provisions found in the CRC. South Africa has, therefore, assumed an obligation to ensure that its domestic laws are compliant with the provisions contained in the international and regional treaties.
These are the three main sources that have informed the process around ensuring that South Africa develops a separate child justice system. There are other international documents that have particular relevance such as the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Riyadh Rules)[3] and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)[4]. The advent of the Child Justice Bill goes a long way to provide for a criminal justice process specific to the needs and situation of children who are in conflict with the law so as to avoid their being treated and dealt with inappropriate to their age.
The Bill, while retaining most features of our present criminal justice process, introduces a number of new concepts and procedures, some of which are used presently in practice but are not provided for in legislation. On account of the fact that practice in the child justice system at present is not mirrored by legislation, uncertainty and inconsistency are constant dangers that need to be addressed by clear legislative norms.
The submission will now proceed to comment on certain aspects of the Bill in general:
It is submitted that the objectives set out herein 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. It must be borne in mind 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. Consequently, the concept of restorative justice is explicitly included as an objective. The Child Justice Alliance supports these objectives and principles in which the Bill must interpreted.
Of particular importance is 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. It is necessary that a holistic approach be fostered and 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.
The general principles of the Bill include the important concepts of non-discrimination, participation and proportionality. In addition, 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 application of the Bill to persons accused of committing crimes under the age of 18 years is consistent with our present criminal justice system, the Constitution, the CRC and the Charter.
Section 5(1) of the Bill raises the age of criminal capacity to 10 years of age and therefore repeals the common law age of 7 years. The difficulty in setting a minimum age of criminal capacity is that neither the CRC nor the Beijing Rules specify a particular minimum age of criminal capacity. However, 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.[5] The Law Commission’s proposals[6] 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[7] as well as the recognition that scientific evidence on child development advocated the age being raised.[8] The Child Justice Alliance supports that the age of criminal capacity be raised to 10 years.
The Bill also retains the common law presumption, by making it a statutory provision, relating to criminal capacity for children aged between 10 and 14, namely that such a child is rebuttably presumed not to have had the capacity to appreciate the difference between right and wrong and to act in accordance with that appreciation. This ensures there is flexibility and protection for children aged between 10 and 13 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,[9] such as only the first part of the test being applied and the practical application of the test in court, the Bill, in section 5(3), provides that a certificate of intention to prosecute must be issued by the Director of Public Prosecutions. In addition, 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.
It can be argued that these provisions will make it more difficult to prosecute certain children and that many children will be exempt from prosecution because of the shift from 7 to 10 years for the minimum age of criminal capacity. However, a study of the attitudes and perception of magistrates in 8 of the Western Cape Peninsula area was undertaken during 1995 to 1999 and the question of criminal capacity was addressed.[10] The study found that where an accused is below the age of 14 years a great effort is made to try arrange diversion and where there was any doubt as to the child’s criminal capacity, the magistrates saw this as an opportunity for charges to be withdrawn.[11] However, where criminal capacity was an issue, it again became apparent that the test for criminal capacity was being incorrectly applied, as the establishment of knowledge of the difference between right and wrong seemed to suffice for capacity to be proven.[12]
In light of the above, it is submitted that the time is ripe for the common law relating to criminal capacity of children to be revised and that more stringent controls be introduced in order to ensure that the legal theory, that is so important especially when dealing with children in this instance, is applied correctly and fairly. The Child Justice Alliance is therefore in support of this idea.
At the outset, it must be noted that the Law Commission’s draft Bill had entitled this chapter “Police powers and duties” and “ Detention of children and release from detention”. It is submitted that the current title is more fitting as it ties the actual police powers and duties up with the preliminary inquiry, which is the central feature of the Bill and which ensures the proper management of the child offender.
This chapter sees the introduction of a section the content of which is echoed throughout the Bill. This is section 7(3)(a), which requires that the child must be informed of his or her rights and the immediate procedures to be followed. It is submitted that while this may be an obvious step to be followed, it is important that the child be appraised of what is happening at all stages of the criminal justice process on account of the intimidating and formal nature of proceedings. Ignorance of what is occurring can only lead to more traumatisation and brutalisation of the child.
Section 7(5)(a) 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.[13]
Section 11 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. It provides for mandatory release, with certain exceptions, for schedule 1 offences prior to the preliminary inquiry. Despite the emphasis on release, the Bill’s consideration of the safety and security of the community is evident from section 15, which prohibits the release of a child, charged with a schedule 3 offence, prior to the preliminary inquiry.
It is submitted that the content of this chapter goes a far way to ensure that there is proper management, by the police, of young persons accused of committing a crime. The chapter sets out what is required of the police and the prosecution in relation to detention and release in such a way that all role-players are privy to the procedures and responsibilities that come into play when a child is first alleged to have committed a crime. The Child Justice Alliance supports this section as it clearly spells out the duties and powers of police officials and the way in which children who come into conflict with the law should be treated.
It has been noted that although section 50(5) of the Criminal Procedure Act[14] 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.[15]
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 necessary (albeit not compulsory) procedure is supported by the Child Justice Alliance. Furthermore, it will complement the provisions of the Probation Services Act[16], which provides for various functions to be fulfilled by probation officers in the criminal justice system.
Although probation services and assessment are, in practice, already a part of the child justice system at present, it is of the utmost importance that structured legislation be enacted to ensure that there is consistency of practice and that the responsibilities and powers of probation officers in the assessment process are evident to all role-players in the system.
A problem with the chapter is the exclusion of provisions relating to children below the age of 10, but this will be dealt with more fully in Part 2 hereunder.
The preliminary inquiry procedure is a wholly new addition to the criminal procedure system under which we operate at present. It is innovative and complies with the obligation set by the CRC in Article 40(3) which states:
“ States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law..”
It is submitted that the chapter, as a whole, creates a distinct, appropriate and expeditious manner in which the management of an accused child can be dealt with and the inclusion of the preliminary inquiry as a compulsory procedure is supported by the Child Justice Alliance.
It regulates the release or detention of the child, whether the child should be diverted, whether the child is in need of care and the matter should be converted to a children’s inquiry and other issues such as age determination – all at the outset of the matter so that within a few days of arrest a plan is available for each individual child.
The inquiry serves many needs:
Again, because of many delays that occur in our criminal justice system at present, the chapter provides for stringent time periods to be followed in order to try ensure the speedy processing of cases to meet the constitutional requirement contained in section 35(3)(d) of the Constitution. To this end, in addition to the provision that the child must appear before a preliminary inquiry within 48 hours, section 37(1) provides that the magistrate presiding over the inquiry can postpone the inquiry for a number of reasons, but only for 48 hours. After which, section 37(3) provides for one final postponement of 48 hours, but only if this can facilitate diversion. If the preliminary inquiry has not been finalised by this time, the inquiry must be closed and the matter proceed in the normal course.
These provisions might seem onerous. However this idea is supported by the Child Justice Alliance in that it is submitted that they are necessary to ensure that matters are dealt with expeditiously and this is achieved by means of the strict timetable.
There is, however, the possibility of 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.
Diversion is closely linked to the concept of restorative justice, which involves offenders taking charge of making amends for what they have done and initiating a healing process for themselves, their families, the victims and the community at large. The goal of restorative justice is that offenders will rejoin the law-abiding community and thereby prevent re-offending. Diversion involves giving communities a bigger stake in justice and the guidance of families and communities, supported by professionals and specific interventions, can sufficiently make children understand the impact of their crimes on others and ensure that they put the wrong right.[17] Diversion is not a soft option, but usually, in more serious matters, involves an appropriate intervention in order to bring about a change in the behaviour of the child.
The practice of diversion – referral of a child away from formal court procedures- has been developing in South Africa over the past decade. It is now a feature of our child justice system, but as with assessment there is no legislative framework in place to regulate it. This lack of a framework has led to certain problems, for instance, as was evidenced in M v The Senior Public Prosecutor, Randburg[18]. In this case, two girls were charged with theft in the same matter. The one pleaded guilty and was convicted and the other was diverted. The case challenged the exercise of prosecutorial discretion in deciding to prosecute the one accused. The court inferred, in the absence of evidence to the contrary, that the prosecutor did not consider diversion and this implied an improper exercise of discretion and that the prosecutor did not apply himself properly and fully to the content of what was before him. Another problem with no legislative provisions for diversion is that an inconsistent practice of diverting children in South Africa has arisen. It has been noted that just over 100 of our 500 courts actually practice diversion and in small towns only the predominantly “white” areas practice diversion.[19]
Therefore to ensure good governance, consistency, certainty and just administrative action, it is imperative that provisions relating to diversion, such as are included in the Bill, are enacted. This will ensure that there is guidance on the range of diversion practices that can be used, which diversion programmes are suitable for certain types of offences, minimum standards applicable to diversion of children and diversion programmes themselves and what should happen if there is non compliance with a diversion order. 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.
Again, this chapter ensures compliance with the CRC’s Article 40(3), which states:
“ States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law.”
This does not imply the Department of Justice must build 500 new courts, merely that a specific court in every magisterial district be designated a child justice court to protect the dignity and privacy of children.
There are some important provisions included in this chapter that facilitate the prevention of delay in children’s matters. These include the provision that matters must be finalised within 6 months of a plea, failing which any child in detention must be released (except for rape, murder and armed robbery) and that up to the close of the prosecution’s case a child can still be diverted. The latter provision is important as it means that diversion is still an option even though a preliminary inquiry might have been closed because it could not be finalised within the stipulated time period. Therefore, diversion is not lost to a child but at the same time he or she is protected from possible delays. The Child Justice Alliance is in support of this.
One central feature of the chapter is the provisions for the establishment of one-stop-child-justice centres. These centres will facilitate the whole process from arrest to the formal court process and will ensure a much child-friendlier approach to children in trouble with the law and their families. The idea of one-stop-child-justice centres is supported by the Child Justice Alliance as this would mean that parents and children can have access to the necessary personnel and services at one place without having to travel to many different locations and venues.
The sentencing chapter has important consequences for the management of convicted children, in addition, it emphasises the purposes of sentencing, namely, the creation of an individualised response to a particular child, instilling a sense of accountability in the child and promoting reintegration.
Our courts have noted problems with the sentencing of children without probation officer reports and have consistently held that probation officer reports are necessary for sentencing purposes[20]. It is therefore noteworthy that the Bill emphasises the provision of pre-sentence reports and the Child Justice Alliance is in support of the idea that a pre-sentence report must be available before a sentence is imposed on a child.
In line with international law, the Bill provides that life-imprisonment is prohibited for children and that imprisonment is inappropriate for children under 14 years and is therefore prohibited. It is submitted that these provisions again are in line with the last resort and shortest time period principles and need to be included in any child justice legislation enacted. The Child Justice Alliance supports this.
Apart from the normal range of sentences available in terms of our present law, the Bill innovatively provides that all the diversion options are also available as sentencing options. This allows for a restorative justice element in the sentencing process, ensures that appropriate interventions occur for convicted children and allow for communities and families to take part in the healing process with a view to reintegration.
The proposals in relation to sentencing provide a fitting addition to the present criminal justice system pertaining to children and the Child Justice Alliance supports these proposals.
This chapter provides adequate protection for children requiring legal representation and at the same time respects the child’s choice whether to waive representation or not.
Importantly the chapter provides for the accreditation of legal representatives and it is of great importance that specific standards for these representatives be established in order to promote child specialised lawyering in South Africa. The Child Justice Alliance supports this section.
These provisions are an important addition to the present system as they provide a light at the end of the tunnel to allow children, except those convicted of very serious offences, to get on with their lives and not be forever stigmatised by actions committed as a child. The Child Justice Alliance supports this section.
The exclusion of children convicted of schedule 3 offences from these provisions again indicates the balance between the needs of the child and the needs of society that the Bill is sensitive to.
In this section, various provisions of the Bill will be discussed and submissions made regarding changes thereto.
The original draft of the Bill which was introduced into Cabinet (hereinafter referred to as “Cabinet version”) has been reworked in this chapter. The principles placed by the Cabinet version in their chapter relating to detention of children and release from detention, have now been placed in chapter one of the Bill under sections 3(2) and (3). This makes sense especially in light of the fact that the Cabinet version’s chapter on police powers and duties and detention and release from detention have been reworked into the present chapter on methods of securing the attendance of the child at the preliminary inquiry.
However, in so far as these principles become general principles now covering the whole Bill, it is submitted that the qualification of “police custody” contained in section 3(3) should be removed and that these principles extend to the custody of a child at any institution – prison, police cells, lock-up, place of safety or secure care facility.
In addition, there seems to be a glaring omission in section 3(3) of the present Bill in that section 20(2) of the Cabinet version’s draft has now been seemingly arbitrarily placed in section 17. This section read:
“ 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 take the child to a medical practitioner for examination as soon as is reasonably possible and must include the report of such medical practitioner in the appropriate police docket.”
As stated in the general comment above, the provisions regarding minimum age of criminal capacity are both desirable and in order. However, there are specifics relating to the drafting of section 5 that need to be highlighted. In this regard, it is submitted that this Bill affects a range of stakeholders that are not necessarily legally trained and it is important that the Bill be clear and understandable to persons not used to reading formally written legislation.
“ the appropriateness of diversion of the child alleged to have committed an offence.”
Section 5(5)(a) only 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. In addition, diversion should not be seen in a vacuum, but in relation to an individual child accused. Therefore it is submitted that the original wording in the Cabinet’s version of this section should replace section 5(5)(a).
In the Cabinet’s version of the Bill the provisions relating to age estimation and age determination were contained in the same chapter as criminal capacity. It is submitted that this was a logical approach as both issues deal with the age of a child and questions on age usually arise at the outset of a particular matter and so a section at the beginning of the Bill on this, would make sense. In addition, there was a clear grouping of all the responsibilities and powers of the various role-players that created a holistic and easy to follow picture of how age should be estimated and determined.
However, the present Bill has moved the sections dealing with age estimation and age determination to various parts of the Bill and so it is now quite difficult to read these sections without having to move from place to place:
In addition, section 10 of the present Bill differs from the original Cabinet’s version.
Section 7(1) of the Cabinet’s version read:
“ 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 the provisions of this Act, the official must take such person to a probation officer for estimation of age as soon as is reasonably possible.”
Section 10 of the present Bill reads:
“ 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 a person as a child for the purposes of this Chapter, subject to the estimation of that person’s age at the preliminary inquiry.”
Section 10, it is submitted, is problematic. 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. Although the child will be taken to a probation officer for assessment in any event, 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. This will go a long way to create certainty about the duties of police officials in these circumstances and without the explicit provision, these duties would have to be implied and that does not lend itself to clarity.
Therefore it is submitted that section 7(1) and (2) of the Cabinet’s version should be reinstated in the Bill in this chapter.
Furthermore, there are certain differences between the drafts. Section 24(1) of the present Bill uses the word “child” whereas in the Cabinet’s version, section 8(1) mentions the word “person”. It is submitted that the latter provision is more correct as the individual whose age is being estimated might potentially not be a child and may be older than 18. Until that person’s age has been established, to call him or her a child could be problematic and have consequences, for instance, in relation to detention where children under 18 must be separated from persons above 18.
Therefore it is submitted that the word “person” should be used instead of “child”.
Likewise, section 24(2)(b) refers to “ a statement made by the child himself or herself”. In the equivalent Cabinet’s version, section 8(3)(b) refers to “ a statement made by the child or person who alleges that he or she is a child”. Again for the same reasons as set out above, it is submitted that this wording is preferable. It is noted that the word “child” is also used in this context, but this seems to cover the situation where an age determination is necessary around the ages of 10 or 14 years where one is definitely dealing with a child.
Therefore it is submitted that the wording of sections 24(1) and (2)(b) of the present Bill be replaced with the wording of sections 8(1) and 8(3)(b) of the Cabinet’s version and that the entire section 24 be placed in the present chapter of the Bill, which is under discussion.
Section 31(2)(a)(i) of the present Bill only refers to “any person” as opposed to the Cabinet’s section (9)(2), which also refers to “body or institution”. It is submitted that these words should be included in the present Bill’s provision for the sake of completeness.
Section 31 has two section 31(2)(a)(ii)s and the last one should then read section 31(2)(a)(iii). Once this numbering change has been effected, section 31(2)(a)(iii) should repeat the provisions of section 24(2), instead of merely incorporating them by reference, in order to make the reading of the Bill clearer and more understandable to those not legally trained. However, if as proposed, all these sections are grouped together as happened originally, then perhaps a reference to the previous section could be expedient without causing confusion.
Section 82 of the present Bill dealing with age assessment of a person claiming to be a child, it is submitted is headed wrongly. As stated above, there are instances where in the child justice court, a person will claim to be a child and the Cabinet version’s provisions should be incorporated to reflect these situations. Section 82, in so far as it is intended to be the equivalent of the Cabinet’s version in section 10, should be headed age assessment and determination by an officer presiding in a criminal court as this is precisely the situation these provisions are meant to cover.
Section 82 (5)(b) has incorporated the wording of section 10(5) into its contents in such a way that the necessity for section 10(5) is no longer necessary.
However, section 82 has excluded an important section from the Cabinet’s version, 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 trail 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.
As stated before, this chapter incorporates provisions from the Cabinet version’s chapters on police powers and duties and detention and release from detention in a way to link this to the preliminary inquiry. This is a positive development.
However, changes effected to the sections themselves are more problematic. Again a comparison is being made to the Cabinet’s version of the Bill.
The exclusion of sections 11(2) and (3) of the Cabinet’s version on use of force may be justifiable as these provisions are adequately set out in the Criminal Procedure Act. However, from the perspective of the attempt to create a holistic piece of legislation dealing with the management of young children in trouble with the law, the omission of a section dealing with an issue that has serious consequences for the child’s right to dignity and to safety and security of the person is questionable. It is submitted that it would still be expedient to include the section as this would emphasise the police’s responsibilities in these circumstances – particularly in respect of children.
Furthermore, section 11(6) of the Cabinet’s version has been excluded. This section stated:
“ A child who is alleged to have committed an offence and who was below the age of ten years at the time of the commission of such offence, may be taken to a probation officer for assessment and further action in terms of the provisions of section 46.”
This section is important for the management of children who, although falling outside the scope of the Act, should be managed in the context of child justice. It is clear that there is no obligation on the police to do so, by use of the word ”may”. There is concern that with the raise in the minimum age of criminal capacity that some children might fall through the cracks and this provision, coupled with others, will help in ensuring that young children still receive an intervention where necessary.
It is submitted that the shift of the Cabinet version’s provisions relating to release from detention at the preliminary inquiry, which were contained in the chapter on detention and release from detention, to the chapter on the preliminary inquiry in the present Bill is logical and a positive development as it makes more sense to be dealt with in that context.
Section 38 of the Cabinet’s version of the Bill included the purposes of assessment. There is no such equivalent provision in the present Bill. The purposes of assessment can however be implied from the recommendations that a probation officer must make. However, it is submitted that the inclusion of a section setting out the purposes will go a far way in establishing clarity and a user-friendly Bill.
Section 19 of the present Bill has its equivalent in section 42(1) of the Cabinet’s version. However, the present Bill does not provide for the contents of section 42(3) of the Cabinet’s 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.
Section 21(5)
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’s 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 section 21(5) allows for the attendance to be prescribed by regulation, such a safeguard is a necessary inclusion in the legislation itself.
Section 22(5)
This section deals with the powers of the probation officer to get a police official to perform certain functions. However, the section only relates to police and should be extended to provide probation officers with the power to require “persons” as well to perform these functions. This omission limits the probation officers powers quite drastically and this can affect the effectiveness of the recommendations at the end of the day.
This issue was dealt with by in section 46 of the Cabinet’s version, which provided clear procedures to intervene in these circumstances, if necessary, although such children are beyond the scope of the Bill. Although section 46 powers cannot be mandatory, it is submitted that such a section 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.
At the outset, it is submitted that, save for the section regarding age determination in this chapter, the present Bill’s chapter on the preliminary inquiry flows better than that of the Cabinet version’s chapter, particularly since the issue of detention and release from detention at the preliminary inquiry has now been included herein. Nevertheless there are some specifics that need to be addressed.
Section 25(3)
Unlike the Cabinet’s version, one of the objectives that is not contained herein is the establishment of whether the child has been assessed by a probation officer and if not, whether compelling reasons exist for not making such an assessment. The assessment procedure is an integral part of the preliminary inquiry for most matters and therefore the determination of whether there has been one concluded should be the first objective of the preliminary inquiry.
Section 25(4)
Section 56(5), which is the equivalent South African Law Commission (SALC) version’s section, requires the preliminary inquiry to be conducted in a place other than a court unless no other suitable place is available. Section 25(4) does not proceed from the premise that a court should not be used unless there is no other venue available. It is submitted that the preliminary inquiry, although an important court procedure for the determination of the management of the matter, should not be conducted along the same lines as most criminal matters are. The desire is that most matters will be diverted from the preliminary inquiry and if one of the objects of diversion is to prevent children from being brutilised by the court process, making the preliminary inquiry take place in a court would negate that goal. It is submitted that the section be changed to include the Cabinet’s version.
Section 29(5)
It is noted that the original SALC draft Bill had a chapter on monitoring which has now essentially been excluded from the present Bill. This aspect will be dealt with later on in this submission. However, section 60(8) of the SALC draft, which is the equivalent section to this one, provides that where the inquiry magistrate determines that an arrest or detention in a police cell was unnecessary, the relevant monitoring body must be notified. It will be submitted that the monitoring provisions be reinstated in this Bill and therefore that this section incorporate the wording of the SALC draft section 60(8). However, if the monitoring chapter is not reinstated, it is submitted that the section should nonetheless read:
“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.”
There are certain subsections in the Cabinet’s version dealing with the decision to divert that have not been included in the present Bill, namely sections 61(5), 62(3) and 62(4).
The inclusion of these sections may seem superfluous, but it submitted their inclusion will make the reading of the Bill simpler for people with non-legal training. Again it should be borne in mind that this Bill affects a range of stakeholders that are not necessarily in the legal field and that sometimes the inclusion of a provision that might seem obvious to a legally trained person is not so obvious to a person with no training in interpretation of statutes.
Therefore it is submitted that the following provisions be added to section 39 of the present Bill:
“ 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.”
For completeness and clarity it is submitted that section 70(5) of the Cabinet’s version be included in the present section as a further subsection, namely:
“ 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.”
The SALC’s version in section 71(5) stated:
“ 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.”
Although the chapter on general provisions in the present Bill makes provision for regulations to be drafted on the personnel to staff a child justice court, it is submitted that this section should be included in the present Bill in order to serve as a guiding principle that there should be specialist child ”lawyering” staff in the child justice courts.
In relation to conduct of court proceedings an equivalent section, namely section 77(1)(d), of the Cabinet’s version states:
“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.”
Despite the fact that, for such a child to be appearing in court, a certificate from the DPP must have been issued and such child must have legal representation, this procedure is sufficiently important that the inquiry magistrate should satisfy himself if the child’s understanding over and above these safeguards. Therefore it is submitted that this provision be included in section 53.
It is submitted that the words “ on good cause shown” should be added to the end of section 60(1).
Section 65(5)(b)
It is submitted that the words “ or summons” be added after the words “warrant of arrest” and any reference thereto.
Section 68
Section 91(3) of the SALC’s version had a reference to the fact that any residential sentence may not be extended by administrative action. It is submitted that a similar section be added to the present Bill. This should not be seen to be in conflict with section 68(3), which allows the child to remain at a residential facility as this provision does not entail the extension of the child’s sentence.
Section 70(3)
It is submitted that section 93(3)(j) of the Cabinet’s version be included in the present section, which reads:
“ 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.”
It is submitted that this provision allows for innovative and individualised responses to children’s behaviour and is in keeping with the objectives and principles of the Bill.
Chapter 9: Legal Representation
Section 74(2)(b)
It is submitted that a legal representative such as is envisaged by this section should also be required to have accreditation. The reason for this is that there is a move in law reform at present[21]to ensure that all legal representatives acting for children should be specialised in that type of representation on account of the particular status and nature of a child client and that certain skills and knowledge is necessary in representing them, such as the skill of explaining concepts, taking instructions and having a knowledge of child development issues. Therefore, it would be in the child’s best interests to be represented by a representative who has acquired such accreditation. It is submitted that quality criminal representatives will take the effort to acquire such accreditation.
It is therefore submitted that this provision be deleted and that section 101 of the present Bill be amended to include all legal representatives.
Means of securing legal representation at State expense
This issue is dealt with by section 99 of the Cabinet’s version. It is submitted that such a section is necessary to facilitate the attainment of legal aid and the prevention of delays.
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 section 99 of the Cabinet’s version is designed to overcome this, it is desirable that the provision be included in the present Bill.
The original SALC draft Bill had extensive provisions regulating the monitoring of the Bill. These are now relegated to the regulations. It is submitted that the monitoring provisions should be reinstated in the Bill. On account of the various number of government departments that have responsibilities under this piece of legislation, the real possibility for violation and infringement of children’s rights that can occur in the system and the critical scrutiny of the general public towards the criminal justice system as a whole, it is desirable that proper monitoring systems be in place immediately and that they are included in the primary legislation to ensure the highest form of accountability.
[1] The Child Justice Alliance is a voluntary organisation of over 460 members and friends who consist of organisations, NGOs, CBOs and individuals
[2] Act 108 of 1996
[3] General Assembly Resolution 45/113 of 14 December 1990
[4] U.N. Doc. A/40/53
[5] Sloth-Nielsen, J. The Role of International Law in Juvenile Justice in South Africa, unpublished doctoral thesis, UWC, 2001, p. 122
[6] Project 106, July 2000
[7] Report par 3.16
[8] Report par 3.29-30
[9] Sloth-Nielsen, op cit, p. 131 - 134
[10] Sloth-Nielsen, J. and Mayer, V. Children and criminal accountability: An analysis of judicial perceptions 1999
[11] ibid, p. 13
[12] ibid, p. 14
[13] Section 35(1)(d)
[14] Act 51 of 1977
[15] Sloth-Nielsen, op cit, p. 218
[16] Act 116 of 1991
[17] Skelton, A. “ Setting Standards for Diversion”, Article 40, Vol.3, No.1, March 2001, p.8
[18] Unreported decision, case no: 3284/00(W)
[19] Mukwevho, H. “ The Role of Prosecutors in Enabling Diversion”, Article 40, Vol.3, No.3, September 2001, p. 2
[20] S v S 2001 (2) SACR 321 TPD; S v Van Rooyen ( unreported Cape High Court decision, 5413/01); R v B (unreported Cape High Court decision, 0982/02)
[21] The Review of the Child Care Act process also advocates for accredited legal representatives