TO: THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
PLEASE NOTE THAT THE CHILDREN’S RIGHTS PROJECT AT THE COMMUNITY LAW CENTRE WISHES TO ADDRESS THE PORTFOLIO COMMITTEE AT ANY PUBLIC HEARINGS THAT MAY OCCUR AND ACCORDINGLY REQUESTS AN OPPORTUNITY TO DO SO.
The Child Justice Bill has sought to address the problems encountered in the field of child justice as it exists within the framework of current legislation. The Bill is aimed at protecting the rights of children accused of committing crimes as well as regulating the system whereby a child is dealt with and ensuring that the roles and responsibilities of all those involved in the process are clearly defined in order to provide effective implementation. The effect of the Bill being adopted as legislation will be to revolutionise the criminal justice system in South Africa in so far as it affects children in conflict with the law.
This legislation is of paramount importance for a number of reasons. Firstly, once enacted, the Bill will ensure that South Africa is complying with it’s international, regional and constitutional obligations that it has undertaken to meet under the Constitution and by ratifying the United Nations Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child. Secondly, the Bill provides a comprehensive and cohesive system for the management of young offenders. This systematic approach, it is submitted, will streamline the criminal justice system and provide a framework for inter-departmental co-operation on issues that require departmental officials to work in conjunction with each other rather than in isolation. Thirdly, the Bill ensures that children in trouble with the law are afforded protections that are guaranteed to them in law as well as creating a balance with the needs of the community so as to ensure that the safety and security of society is prioritised.
It must be stressed that the enactment of this Bill should not be seen as “being soft on crime”. While combating crime is a dire need in South Africa today, these efforts must be directed and co-ordinated in such a way that, in the case of children, the rights of the accused are protected and steps be taken by the State to manage the offender in a way that will impact on and change behaviour patterns to prevent reoffending. It is submitted that an overall punitive approach, especially towards child offenders, is not desirable except in necessary cases, and that restorative justice and the systems that will facilitate this should be prioritised.
On the Content of the Bill, we submit that the Bill that was introduced into Parliament in August 2002 differs from the Cabinet version of the Bill, however the changes made to the Bill are not so much substantive as cosmetic. Certain sections have been moved to other places in the Bill and some wording has been altered. There are problems with the alterations in that, it is arguable, they detract from the coherency and user-friendliness of the original Bill. The final draft is now quite technical and legalistic and this runs counter to the attempt to produce a Bill that was clear, logical and understandable to the many role-players that will have to implement it that are not legally trained.
Nevertheless, it is encouraging to note that the core, essential elements of the Bill remain intact and unaltered, namely the assessment process, diversion, the preliminary inquiry, child justice courts and alternative sentencing, to name a few.
It is generally thought that the criminal justice system is fraught with delays. This rums contrary to the constitutional obligation to ensure that an accused’s trial is speedy and fair. In addition, for a child passing through the system, the process can be intimidating and confusing in itself without delays prolonging the experience. Therefore the Bill has set out specific time periods in relation to assessment, the preliminary inquiry and the finalisation of proceedings and it is submitted that these time periods are urgent and necessary in order to ensure due process and a fair trial.
Section 7 (4) provides that a probation officer must be informed of an arrest of a child within 24 hours, section 7(5) provides that a child must appear at a preliminary inquiry within 48 hours of arrest, section 19 places a duty on a probation officer to assess a child before a preliminary inquiry is conducted, section 37(1) and (3) provide that the preliminary inquiry may be postponed twice for a period of 48hours at a time for specific purposes and section 38(2) provides for a 14 day postponement of the preliminary inquiry for a detailed assessment of the child in specific circumstances.
These sections create a time framework that is designed to see that the management of a child’s case is handled expeditiously and that where a child can be diverted out of the system, this occurs as soon as possible.
These provisions, it is submitted do not create any further onus on the State than there is a present. Section 50(5) of the Criminal Procedure Act 51 of 1977, provides that a police official must inform a probation officer or correctional official of the arrest of a child as soon as possible thereafter. Section 35(1)(d) of the Constitution requires that an arrested person appear in court within 48 hours of arrest and so there is a clear basis for the initial 48 hour period. If the assessment has not yet been completed, there is the possibility for a postponement of 48 hours to complete it. The final 48-hour postponement is only to finalise issues around diversion. If at the end of this period the preliminary inquiry is not completed, it must be closed and the matter proceeds in the normal course. This does not mean that the child cannot be diverted at a later stage. Therefore the time periods are necessary to ensure a tight and structured handling of each child’s matter.
Furthermore, the Bill recognises that in certain instances an assessment will not be completed within 48 hours and so an extended period of 14 days is provided for.
It is anticipated that there may be concerns regarding the implementation of these provisions and this is something that we are not able to answer to. However, we submit that the State has a primary responsibility to ensure that a child’s constitutional rights are protected and that poor planning and provisioning by a particular government department cannot be an excuse to deny a child his or her constitutional right to a speedy trial. Legislation such as this must be in place to ensure that the State remains accountable to its citizens in the manner envisaged by the Constitution.
Finally, section 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.
It is submitted that the procedure introduced through the preliminary inquiry is innovative, practical reasonable and achievable and we support the proposals in the Bill in this regard. The preliminary inquiry is the central and defining feature of the new child justice system, and it is integral to the management of child offenders.
We support the provision that the presiding officer be a magistrate as this will ensure a power balance between the State and the child accused. In addition, the prosecution remains dominus litis and can still decide to proceed with a prosecution as is its right. This introduction of an inquisitorial type procedure in our criminal justice system is not without precedent as something similar has been affected with the plea bargaining procedure.
One concern, however, is that the prosecution seems to have final say in relation to the question of whether a child should be referred to the children’s court if it is determined that he or she is in need of care. Section 254 of the Criminal Procedure Act 51 of 1977 provides that a child can be referred to a children’s court if the presiding officer in the criminal matter believes that the child is a child in need of care an should be dealt with under the Child Care Act 74 of 1983. This provision appears to leave the decision wholly within the discretion of the presiding officer and there is no question that the prosecution can intervene in such a decision. We therefore submit that the prosecution can remain dominus litis in respect of all the decision made at the preliminary inquiry with the exception of a decision relating to the referral of a child to the children’s court.
We wholeheartedly support the provisions contained herein. We submit a move towards restorative justice by means of diversion will be of great benefit to our criminal justice system. As restorative justice looks at repairing harm done by dialogue and negotiation, diversion is an intervention to allow the young offender recognise his or her behaviour as wrong and inappropriate and at the same time attempts to sensitise the young offender to the victim’s situation.
We specifically support the move not to exclude certain categories of crimes for the purposes of diversion. We submit that there are various types of young offenders and the motives for committing the various types of offences differ drastically from case to case. In addition 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 taken, of assessing each matter as it occurs, it is submitted, is the correct one.
We submit that the sentencing framework as set out in the Bill is the correct approach to take in relation to children convicted of crimes. We support the provisions in principle, especially the provision for alternative sentences in section 70 for reasons that will appear hereunder.
A particular area of concern appears to be young violent offenders. These are a particular
group of young offenders, yet at the same time should not be grouped together in a general manner as there are individual dynamics in relation to each matter and particularly when dealing with very young offenders.
In relation to serious and violent juvenile offenders, the Office of Juvenile Justice and Delinquency Prevention’s Study Group on Serious and Violent Juvenile Offenders has reached certain conclusions and key findings in expanding its knowledge about such offenders and determining which types of interventions can reduce their level of offending[1]. These include[2]:
In addition, in relation to young sex offenders, it is noted that there is a range of types of children who display sexually deviant behaviour. Friedrich explains:
“ Some children who are called sexually aggressive may not even be intrusive with other children but are simply reacting to their own victimisation in a compulsive, self-stimulating manner. Other sexually aggressive children may engage in very extensive but largely mutual interaction with other children, typically other sexually abused children. Finally, there are sexually aggressive children who truly are intrusive and coercive, but they are quite different from children who are simply reactive to their sexual abuse.”[3]
It is therefore important not to simply generalise when speaking of young sex offenders, but to realise there are varying degrees and classes of offending of this nature.
It is therefore of paramount importance that we have a wide range of sentencing options available that can affectively address a particular child’s needs as this will ultimately benefit society in general if a proper intervention is made use of. There are such programmes available, for example, Childline KZN, SAYStOP ( both for young sex offenders) the wilderness programmes offered by various organisations and the NICRO Journey programme.
However, there are two sections of important significance that we support and feel need to be elaborated on more extensively. These are section 69(1)(a), which prohibits imprisonment for children under 14 years of age and section 72(1), which prohibits the imposition of a sentence of life-imprisonment for a child.
Section 69(1)(a) recognises the vulnerability of young children and that imprisonment is not an appropriate sentence for children below 14 years. Recent developments in the media and the Jali Commission of Inquiry have highlighted serious and deep rooted problems in our correctional system and although this is not a principled reason to not imprison children under 14, it must be of important consideration. In addition, the fact of the matter is that children under 14 are generally not sentenced to imprisonment even under our present system. The annual Juvenile Justice Review for 1999-2000 indicates the following statistics:[4]
Furthermore, a study was undertaken during the period 1995-1999 to analyse the perceptions amongst criminal magistrates regarding juvenile offending in the context of developments in law and practice and this had some interesting observations in relation to children under 14 years of age, sentencing generally and imprisonment.[5] These observations included:
· Children under the age of 14 rarely appear in criminal courts and the courts employ various procedures and strategies to keep them out of the criminal justice system
· Matters where a prosecution of a child aged below 14 occurs are extremely rare and were described as “ hard cases”, “exceptions” or unavoidable matters”
· The general approach of magistrates appears to be to try keep juveniles out of prison
· All magistrates complained that their options were limited with regard to the sentencing of juveniles
· Some magistrates were of the opinion that imprisonment for juveniles (in general and not necessarily for children under 14 years) was only appropriate for a “sociopath” or in cases of “extreme violence” or “very serious offences”.
It is submitted that having regard to the above, including the discussion on young violent offenders, imprisonment is not appropriate for children under 14 years. These children need a suitable, yet serious, intervention in order to impact on their behaviour and make a real attempt at rehabilitation with a view to reintegration into society. A South African prison is not the place to achieve this.
Section 72(1) conforms with Article 37(a) of the CRC, which provides that no child under 18 years shall be sentenced to life imprisonment without the possibility of release.
It seems that the High Court of South Africa, in the absence of legislation to deal with child offenders, are creating precedents that deal with sentencing in light of constitutional obligations and the obligations created by the Convention on the Rights of the Child. In S v Nkosi 2002 SACR (1) 135 (W) the court, on appeal, held that a sentencing court is not obliged to impose mandatory sentences for children in the same way it would for adults in the context of the minimum sentences legislation. This was possible due to a number of previous judgments 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. In addition it has been noted that although the Constitutional Court has not yet given a definitive judgment on life imprisonment and the chances that when it does, life imprisonment will in all likely events be found to be constitutional as the ultimate penalty for a very serious crime, “the constitutionality of life imprisonment for children in its current specific South African form will be open to challenge on the grounds that it cannot be applied with sufficient flexibility to guarantee that the constitutional interests of the child are appropriately considered.”[6]
[1] Loeber, R. and Farrington, D.P. (eds.), Serious and Violent Juvenile Offenders: Risk Factors and Successful Interventions, Sage Publications, 1998
[3] Friedrich, W.N. in Araji, S.K. Sexually Aggressive Children: Coming to Understand Them, Sage Publications, 1997, p. xiv
[4] Sloth-Nielsen, J and Muntingh, L. Juvenile Justice Review, 1999-2000, p. 12
[5] Sloth-Nielsen, J and Mayer, V. Children and criminal accountability: An analysis of judicial perceptions, 2001
[6] Van Zyl Smit, D. “ Sentencing children convicted of serious crimes”, Article 40, Vol.3, No.4, November 2001, p. 5