SUBMISSION TO THE JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE ON THE CHILD JUSTICE BILL
SUBMITTED BY : CHILDREN’S RIGHTS PROJECT, COMMUNITY LAW CENTRE, UWC
This submission follows a number of questions posed by the Chairperson of the Committee during the Public hearings held in the week of 24 February 2003.
1. Are diversion practices constitutional, particularly in light of Section 34 of the Constitution, which states:
“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
This section guarantees three rights for a person involved in a dispute:
· right of access to a court or another tribunal or forum;
· tribunals or forums other than courts must be independent and impartial when involved in the resolution of disputes;
· dispute must be decided in a fair and public hearing.
It was held in S v Pennington 1997 (10) BCLR 1413 (CC) that criminal proceedings are not ordinarily referred to as disputes. In the case the court held “The words ‘any dispute’ may be wide enough to include criminal proceedings, but it is not the way such proceedings are ordinarily referred to. That Section 34 has no application to criminal proceedings seems to me to follow not only from the language used but also from the fact that Section 35 of the Constitution deals specifically with the manner in which criminal proceedings must be conducted”.
We submit therefore that this section of the Constitution does not affect the constitutionality of diversion and it cannot be argued that diversion is a violation of section 34 of the Constitution.
In any event it would appear that section 34 relates primarily to access to court, in that it seeks to ensure citizens a right to due process of law in the context of civil proceedings. An analysis of constitutional case law seems to indicate that this section seeks to ensure that people have unimpeded access to courts to enforce their rights.
In any event, when looking at all types of offences, the availability of admission of guilt fines can be likened to diversion as the offender can avoid formal court in trivial matters just as certain minor offences can be diverted from court. In this instance a mechanism in section 57 of the CPA exists, which allows for disputes not being determined in an ordinary court of law.
The Constitution does not specifically ensure victims rights, however, section 12(1)(c) of the Constitution provides that “everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources.”
This does not afford victims or survivors of crimes any specific rights. The section merely grants all citizens the right to be free from violence. However, it has been argued that the effect of section 7(2) of the Constitution read with section 12(1)(c) is to impose clear duties on the State to “respect, promote, protect and fulfill” the right to freedom from violence, and this implies protection against the punishment of rape . Some have therefore argued that the State has a positive obligation to prosecute rape cases. However, it is submitted that while it is desirable to protect victims from crime and ensure that offenders be punished, the latter issue is not a direct obligation in the Constitution.
Despite this, the Carmichele case emphasises a victim’s right to life, human dignity and freedom and security of the person. In this case, the Constitutional Court found that:
“There is a duty imposed on the State and all its organs not to perform any act that infringes these rights. In some circumstances there would also be a positive component which obliges the State and its organs to provide appropriate protection to everyone through laws and structures designed to afford such protection .”
However, this does not mean that victim’s rights trump the interests of the criminal justice system, the administration of justice – including issues of equity and fairness - and society as a whole.
This is borne out by section 179 (2) of the Constitution, which states that:
“ The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.”
Section 179 has established a single prosecuting authority that is now regulated by the National Prosecuting Authority Act 32 of 1998. It has been stated that “ it is the duty of the national director of public prosecutions to see to it that prosecutions are instituted without fear, favour or prejudice, that is correctly and with just cause.”
Section 20(1) of Act 32 of 1998 sets out the powers, duties and functions of the prosecuting authority and states:
“ The power as contemplated in section 179(2) and all other relevant sections of the Constitution, to-
(a) institute and conduct criminal proceedings on behalf of the State;
(b) carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and
(c) discontinue criminal proceedings,
vests in the prosecuting authority and shall, for all purposes, be exercised on behalf of the Republic.”
Therefore the national prosecuting authority has a clear discretion and power to direct criminal proceedings and this extends to the decision to either conduct criminal proceedings or discontinue them. This always includes any sexual assault case as evidenced by the recent decision of the Deputy Director of Public Prosecutions to decline to prosecute Vinnie Jones on sexual assault charges. No victim has the right to insist on a prosecution proceeding.
The discretion to prosecute was examined in Gillingham v Attorney-General and others 1909 572 in the context of section 6 of Ordinance 1903. In this case the court held:
“ Now our system of the administration of justice in criminal cases is based upon this- that the duty and responsibility of prosecuting on behalf of the Crown is vested absolutely in the Attorney General. The responsibility is his, and he discharges the duty of prosecuting all offences on behalf of the Crown..”
“ ..the Attorney General has absolute control over the proceedings from the very commencement and can discontinue them at any time.”
It has been noted that the powers of the prosecuting authority are extensive and therefore have to be exercised with care and the highest degree of objectivity and it is only in exceptional cases that a court will interfere. An example of this occurred in S v F 1989 (1) SA 460 (ZH) A where a 10 year old boy was charged with indecent assault of a 8 year old girl. The review court found that the element of wrongfulness had not been decided on by the Court and the State had failed to prove its case. In forming this decision, Greenland J held:
” Though mindful of the Attorney-General’s prerogative in regard to prosecutions, I am compelled to hold it is wrong, unjust and prejudicial to the interests of the accused and society to prosecute a child where the evidence is that such child will not understand or appreciate the proceedings.”
It is submitted that the discretion granted to the prosecuting authority by the Constitution envisages that the prosecution must act in the best interests of the State and this entails weighing up the circumstances of the crime, the victim and the accused in making a decision to prosecute. It is further submitted that the prosecution has the discretion to discontinue proceedings in appropriate matters. In light of this it is submitted that any victims rights could be reasonably and justifiably limited by a prosecutorial decision to divert in appropriate circumstances.
In addition, it is submitted that there exists checks and balances in the Child Justice Bill to ensure that only appropriate cases are diverted. It is further submitted that instead of excluding certain categories of crime from diversion, there can be further checks and balances introduced to ensure that victims rights are properly catered for and that decisions to divert are made with every parties’ interests in mind. To this end the following is suggested:
· It has been proposed that complainants in rape cases be entitled to participate as an ancillary prosecutor in the case against the accused and this means the complainant becomes a party to the criminal trial and has the right to, inter alia, inspect the State docket, address the court at any stage of the criminal proceedings and participate in the conduct of proceedings . It is submitted that such an option, should it be available to complainants, would provide a further protection against an arbitrary or unbalanced decision to divert.
· It has further been argued that a victim impact statement be considered by courts in rape matters. This takes the form of an affidavit or evidence given by a person who is a victim of the rape. In this context the victim is defined as the actual person who suffered harm as a result of the rape. Where such person is dead, ill or otherwise incapable of making a statement then it can extend to a spouse or relative of the person, the legal custodian or caregiver or any dependent of that person, and finally a witness to a rape. Whereas our current law allows victim participation for sentencing purposes, it is submitted that this type of victim participation at the preliminary enquiry stage for all sexual assaults and serious offences like homicide will provide a further balance to the decision to divert.
Therefore, it is submitted that there is no constitutional bar to allowing all types of crimes to be diverted. If the Child Justice Bill contains enough conditions regulating the decision to divert both the interests of the victim of the crime and the child can be balanced and catered for.
It must first be noted that the 6-month time limit only operates from plea. This allows the police and prosecution to co-ordinate their efforts to ensure that all preparatory work is done before putting the charge to the accused for plea purposes and thereby ensuring that a trial can reasonably occur within a six month time period.
It is submitted that in certain instances the interests of justice might require a child offender to be held for longer than 6 months. Provision is already made for this in that the crimes of murder, rape and robbery with aggravating circumstances are excluded from the time period. It is acknowledged that items 6 (b) and 7(a) of schedule 3 are of also such a serious nature that the 6 month time period might not justifiably apply. However it is submitted that the remaining items in schedule 3 are not worthy of excluding the time limit and therefore the time period limit should still apply.
As far as limiting section 58(3) on account of fault on the part of the accused is concerned, it is submitted that this is in order only in so far as circumstances where the child accused might have escaped or refused to attend court. This would clearly be willful default on the part of the accused. However, in so far as delays on the part of the child’s legal representative are concerned, this would only be a possible exception to the time limit if the child offender refused to instruct the attorney properly and should not be an exception if the delay was occasioned by fault of the legal representative himself or herself. Therefore a condition to the time limitation might be deliberate delaying tactics solely attributable to the child accused.
It is still our submission that there should be a blanket prohibition on both of these forms of imprisonment. In the course of the public hearings questions were raised regarding comparable jurisdictions. We have attempted to find comparable jurisdictions on both these issues and have had some difficulties. What follows below is an overview of sentencing practices in various countries that indicate that life imprisonment is not applied and in fact a maximum capped sentence is often applied to children found guilty of offences. In addition in countries where the minimum age of criminal capacity is above 14 this automatically means that there is no imprisonment for children below that age. Where the age of criminal capacity is younger than 14, most of the jurisdictions examined provide for alternative residential care other than imprisonment.
The minimum age for criminal capacity is 14 years while the upper age is 19 years. This means that no child under the age of 14 years can be prosecuted.
In addition, for children under the age of 16 years, sentences that can be imposed on them range between periods of 1 – 10 years. Where children are older than 16 years of age, sentences that are imposed on them range between 1- 15 years. There is therefore no life imprisonment for persons under the age of 19 years.
The minimum age is 14. For children between the ages of 14 and 18, the youth court law allows for youth imprisonment. A minimum period for youth imprisonment is 6 months while the maximum is five years. If the crime involved in terms of the criminal code carries a sentence of more than 10 years, then only ten years may be imposed on a juvenile/child. There are initiatives to reform their current system and one proposal is to increase the maximum sentence to 15 years. Even in light of this proposal, it is clear that no juvenile/child can be sentenced to life imprisonment.
A juvenile is defined as a person of 14 years of age but not yet 18 years. The longest term of imprisonment for a person over the age of 16 years, in similar cases that could involve life imprisonment for adults, is 15 years. In cases where imprisonment for adults is longer than 10 years, the longest term of imprisonment for a person over the age of 16 years in a similar case is 10 years.
A juvenile younger than 16 years (but older than 14 years) can get the maximum of 10 years for a crime involving life imprisonment for adults.
The minimum age for criminal capacity is 14 years while the upper age is 18 years.
Children between the ages of 14 and 18 can be given a custodial sentence but the period of such a sentence is reduced to two-thirds of the sentence imposed on an adult offender for the same crime.
Children under the age of 14 years are not held responsible for their actions and are automatically acquitted. However, special security measures or mechanisms are in place where such children are considered to be socially dangerous (i.e. where they are deemed likely to commit further crimes even if judged not to be responsible). For example, such children can be committed to a judicial reformatory.
Similarly, in South Africa, the idea is that where children under the age of 14 years are considered to be a danger to society, they can likewise be committed to a reformatory or some other institution instead of a prison.
The minimum age for criminal capacity is 12 years while the upper age is 18 years. With regard to youth detention, sentences of unconditional juvenile detention can be imposed in cases of serious offences. These sentences can be imposed for a minimum period of one day to a maximum period of 2 years.
Where a serious crime is committed by a minor and such minor is considered a danger to others and also requires treatment, detention of such a minor can be imposed for a maximum period of 6 years.
The minimum age for criminal capacity is 14 years. A juvenile may not be incarcerated for more than 10 years and there is no life imprisonment for juveniles under the age of 18 years.
The minimum age for criminal capacity is 8 years. However, an advisory group on youth crime has recommended that this age be raised to 12 years.
In the children’s hearings system, the majority of children are under the age of 16 but children can be kept in the system until they reach the age of 18. Generally, children between the ages of 8 and 16 are dealt with in terms of the children’s hearing system.
The most drastic disposals (sentences) for children under 16 are referrals to secure care facilities. For children between the ages of 16 and 18, there are specialist disposals (sentences) such as intensive probation schemes and specialist drug and alcohol programs.
The minimum age for criminal capacity is 14 years while the upper age is 20 years. There is neither capital punishment nor life imprisonment for juveniles under the age of 18 years. Provision is made for minimum and maximum time periods for imprisonment of children over the age of 14 years.
The minimum age for criminal capacity is 12 years while the upper age is 18 years. Where a person is under the age of 16 years, the Family and Children’s Court can make an order for the detention of such person in a detention center for a period not exceeding 3 months. Where a person is over the age of 16 years, such detention should not exceed a period of 12 months. If a person over the age of 16 years commits an offence punishable by death, then the detention order should not exceed a period of 3 years.
The minimum age for criminal capacity is 10 years.
For children under the age of 15 years, the Youth Court can impose a sentence of detention known as a “secure training order”. Persons eligible for this order are offenders between the ages of 12 and 14 years who have been convicted of three or more imprisonable offences and who have re-offended or been in breach of a supervision order. The minimum period for sentence is 6 months and the maximum period is 2 years. Half of the sentence will be spent in custody and the other half on supervision.
The above indicates that even children who are repeat offenders, are not incarcerated in prison but are detained in a secure training center instead. In addition, children under the age of 15 years can only be detained in this center for a maximum period of 2 years.
For children over the age of 15 years but under the age of 21 years, the Youth Court can order that the offender be detained in a young offender institution. For persons aged between 15 and 17 years, the minimum term of detention is 2 months and the maximum term is 2 years.
However, where a child over the age of 10 years has been convicted in the Crown Court of an offence with a maximum term of imprisonment for adults of 14 years or more, then the court may sentence the offender to a term not exceeding the maximum that an adult would receive for that offence. However, such sentence will be served either in a young offender’s institution, youth treatment center or in a local authority secure accommodation.
Throughout Australia, there are provisions for incarcerating young persons in an institution separate from adult offenders. These institutions are known as youth training centres, detention centres or juvenile justice centres. In addition, these provisions prescribe the maximum period for sentences of detention.
For example, in Queensland, the legislation has specific provisions for young people convicted of a serious offence (defined as an offence for which an adult would be liable to imprisonment of fourteen years or more). If a young person is convicted for a serious offence, the young offender can receive a sentence of detention for up to 10 years. Where the offence carries a life sentence for adults (such as for murder or rape), the court can impose a sentence of detention for up to 14 years.
In addressing concerns that delictual liability might affect the proper exercise of duties by public servants, the Constitutional Court noted that:
“Liability in this case must thus be determined on the basis of the law and its application to the facts of the case, and not because of an immunity against such claims granted to the respondents .”
With regard to the role of prosecutors the Court stated that they “have always owed a duty to carry out their public functions independently and in the interests of the public” . The Court however cautioned that “care should be taken not to use hindsight as a basis for unfair criticism” . The Court emphasised the role of prosecutors as set out in the United Nations Guidelines on the Role of Prosecutors which has been incorporated in the National Prosecuting Authority Act 32 of 1998 and in terms of which prosecutors shall, in the performance of their duties:
“Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect .”
Subsequent to Carmichele, the extent of State liability in cases with similar facts, was examined. In the Supreme Court of Appeal case of Ghia van Eeden v Minister of Safety and Security (case no. 176/2001, judgment delivered on 27 September 2002), the Court emphasised that an open-ended, flexible approach was used in determining whether a particular omission or act should be held unlawful . The case concerned a woman who was sexually assaulted and raped by a serial rapist who had escaped from police custody. In addressing the respondent’s concern about the danger of “limitless liability on public authorities” the Court in this case noted that “[i]n deciding that question the requirements for establishing negligence and causation provide sufficient practical scope for limiting liability” .
This point was also emphasised in the Supreme Court of Appeal case of Minister of Safety and Security v Dirk van Duivenboden (Case no 209/2001, judgment delivered on 22 August 2002) where the Appellate Court stated that “the requirements for establishing negligence and a legally causative link, provide considerable practical scope for harnessing liability within acceptable bounds” .
In terms of all the above cases therefore, public servants can be held liable where their negligence or misconduct infringes the rights of victims. Liability would then be present, as in the Carmichele case, where the prosecutor failed to bring previous similar convictions to the attention of the presiding officer in a bail application, and the accused committed an offence on release from bail.
It is submitted that liability does not extend to cases where subsequent offences were committed, either after diversion, a suspended sentence, withdrawal of charges or parole, except where evidence indicates that the prosecutors, police or judicial officers neglected their duties, did not apply their minds to the facts of the case and did not pay due consideration to factors which would indicate the likelihood of further offences.
Various checks and balances are applied before a case is diverted from the criminal justice system. Firstly, a probation officer will make an assessment of the child and his or her circumstances and whether the case should be diverted in the circumstances and with due consideration of the impact on victims and the community. Secondly, a probation officer in charge of the diversion programme to which a child might potentially be referred, will make an assessment of the appropriateness of the referral after interviewing the child and considering all surrounding circumstances. Finally the prosecutor will apply his or her mind to the matter of whether diversion is a suitable option. The prosecutor should take the views of the victim into consideration when deciding whether to make a recommendation for diversion. If all the above parties, after applying their minds and finding diversion the most suitable manner of dealing with the offence, and the child commits a subsequent offence, it is submitted that the State cannot be held liable.
Another option to consider when looking at State liability in relation to diversion is the provisions of section 297 A of the CPA. These state that:
“(1) If patrimonial loss may be recovered from an accused on the ground of a delict committed by him in the performance of community services in terms of section 297, that loss may, subject to subsection (3), be recovered from the State.
(2) Subsection (1) shall not be construed as precluding the State from obtaining indemnification against the 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) shall be reduced by the amount from any other source to which the injured person is entitled by reason of the patrimonial loss suffered by him.
(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 accused shall pass to the State.
(5) If any person as a result of the performance of community service in terms of section 297 has suffered patrimonial loss which cannot be recovered from the State in terms of subsection (1), the Director General: Justice may, with the concurrence of the Treasury, as an act of grace pay such amount as he may deem reasonable to that person.”
It is submitted that these provisions can also be made applicable to instances of diversion. In addition it is submitted that, in any event, it might be expedient for it to be mandatory that the relevant State departments indemnify themselves through insurance, against potential delicts suffered by persons on account of actions by an accused undertaking a diversion programme and any injuries that the accused him or herself might suffer.
Cunneen C and White R Juvenile Justice: An Australian Perspective Oxford University Press, 1996
Davis D, Cheadle H, Haysom N, Fundamental Rights in the Constitution,
Commentary and Cases, Juta and Co. Ltd., 1997
Devenish, Prof G, A Commentary on the South African Bill of Rights, Butterworths, 1999
De Waal J, Currie I, Erasmus G, The Bill of Rights Handbook, Fourth Edition, Juta and Co. Ltd., 2001
Du Toit, E., De Jager, F., Paizes, A., Skeen, A., Van Der Merwe, S. Commentary on the Criminal Procedure Act, Juta & Co, 2002
Legal Aspects of Rape in South Africa Discussion Document prepared by Rape Crisis (Cape Town), Women and Human Rights Project, Community Law Centre, UWC, Institute of Criminology, UCT, 1999
South African Law Commission Discussion Paper 79, Project 106 Juvenile Justice, 1999
Uglow S Criminal Justice Sweet and Maxwell, 1995
Winterdyk, J (ed) Juvenile Justice System: International Perspectives Toronto Canadian Scholars Press, 2002
Constitution of the Republic of South Africa, Act 108 of 1996
Criminal Procedure Act 51 of 1977
Child Justice Bill (B49-2002)
 At 1426 G-H
 Bounds v Smith 430 US 817 (1977) – Right of access to court requires prison authorities to assist inmates in the preparation of filing legal papers (with reference to the similar right contained in the Constitution of the United States); Bangindawo v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western Tembuland Regional Authority (1998) 3 BCLR 314 (Tk) – where it was held that the corresponding section to Section 34 in the interim Constitution, namely, Section 22 by implication includes a right to assistance of professional legal representation in a fair trial procedure guaranteed by Section 25(3) of the Interim Constitution.
 Legal Aspects of Rape in South Africa, Discussion Document prepared by Rape Crisis (Cape Town), Women and Human Rights Project, Community Law Centre, UWC, Institute of Criminology, UCT, 1999, page 9.
 Legal Aspects of Rape, page 9
 Du Toit, E., De Jager, F., Paizes, A., Skeen, A., Van Der Merwe, S. Commentary on the Criminal Procedure Act, Juta & Co, 2002, 1-4
 at 573-574
 at 575
 Du Toit et al, p. 1-4M
 at 462 A-B
 It is also submitted that the best interests of the child principle enshrined in section 28(2) of the Constitution also supports the argument that diversion is constitutional as the prosecutor must have regard not only to the effect of the crime on the victim but the best interests of the child offender when making a decision to institute or discontinue proceedings.
 Legal Aspects of Rape in South Africa, page 46.
 Legal Aspects of Rape in South Africa and Chapter 9 of the Sexual Offences Report, Project 107, December 2002.
 Uglow, S Criminal Justice Sweet and Maxwell, 1995, pages 326-327
 Uglow, S, op cit, page 327
 Uglow, S, op cit, page 328
 Cunneen C and White R Juvenile Justice: An Australian perspective Oxford University Press 1996, page 229.
 Cunneen C and White R, op cit, page 232.