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