Submission to the portfolio Committee on Justice and Constitutional Development:

The Child Justice Bill 49/2002

1. Introduction

This submission focusses on five specific points that the author wishes to highlight with reference to the tabled Bill. The author would appreciate an opportunity to address the portfolio Committee orally when hearings on this Bill are held, with reference to these, and any other, points upon which the Committee seeks clarification.

2. The minimum age of criminal capacity, and the provisions concerning proof of capacity of children aged below 14 years

South Africa incurred an obligation when ratifying the Convention on the Rights of the Child in 1995 to review the minimum age of capacity, and if it was found to be set too low bearing in mind children’s growth and development, to raise that age upwards. By proposing a minimum age of 10 years, the country will join a large number of countries that have, since ratification of the Convention, raised the minimum age of criminal liability (All states and territories in Australia, Kenya, Ghana, Uganda, Hong Kong, to name but a few). Even by setting the new age at 10, though,South africa will still have one of the lowest minimum age thresholds in the world, and will be criticised in the international sphere for not having set an age more attuned to children actual rates of maturity and development., Cogent evidence exists that children’s cognitive ability to understand the consequences of moral choices only really develops around the age of 11-12, although they might be able to understand the difference between right and wrong from a younger age. The true test of criminal capacity (as developed by our law) has always focussed not merely on that ability, but also on the child’s ability to act in accordance with the understanding and with an appreciation of the consequences of criminal acts.

The Portfolio Committee is urged to support the age of 10 – as the absolute minimum - as provided for in Clause 5 (1), and not to be swayed by arguments – unproven, untested and anecdotal – that as a general proposition children committing offences are getting younger every day. The system has in the past dealt with very young children who commit offences through the medium of the children’s court process, as such children fall clearly within the criteria set out in section 14(4)(A of that Act which enables them to be found to be children in need of care. This possibility will continue to exist, and indeed the provisions of the Bill would be further strengthened if provisions similar to those contained in the SA Law Commission’s draft legislation were re-inserted in this Bill. Specifically, I refer here to the powers of probation officer to take specific (non-punitive and development and service oriented) steps where criminal cases involving very young children are brought to their attention, which powers have been omitted from the Bill as tabled.

The retention of the rebuttable presumption of incapacity of children aged between 10 and 14 years (presently operative as regards children aged between 7 and 14 years) is a useful mechanism in ensuring that children do benefit from this protection which existed at common law. It is especially apposite in a country such as South Africa, where children from different cultures and traditions, and from a wide array of rural, deep rural and urban areas, experience childhood very differently. We also have to be aware of a large number of children with intellectual disabilities, who do not mature to full capacity at the same rate as children of normal abilities. Frequently, diversion programme presenters, probation officers and other role players report that young children appearing in court or at diversion programme 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 court where children lack both capacity as regards the commission of the original offence as well as the capacity to participate properly in criminal proceedings.

A field study I conducted with magistrates presiding in juvenile courts in 1999 in the Cape Peninsula indicated that judicial officers see no place for children aged under 14 in the criminal court. Respondents stated categorically that children belwo 14 appeared before them very rarely, and when they did, they as magistrates would ensure that matters did not proceed to plea and trial. The study will shortly be published in a book by Juta and Co, Kenwyn, and can be made available to any interested Parliamentarian.

3. The minimum age for admission to prison to await trial, and release and detention provisions generally

Clause 35(2): 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. Indeed, the whole conceptualistion of bail in the framework of the Bill does not reinforce the position clearly adopted by NGO’s throughout the 1990’s that monetary bail should be a last resort for children, as setting money bail tends to ensure children’s incarceration, rather than their release. Children do not have access to independent financial means and, moreover, it is stated government policy that children should not work. Previous drafts of this legislation have even expressly excluded bail as a possible means of securing children’s release, after considerable evidence showed that setting bail for children meant sending them to prison all too often.

Present policy has seen projects ( inter alia through the Office of the Inspecting Judge of Prisons) to return awaiting trial prisoners to court for a reassessment of the bail amounts set where these are less than R1000 (in Johannesburg this is the amount that has been agreed). 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(4)(a) clarifies that children may await trial in prison only if they are aged over 14 years, and only for schedule 3 offences. This provision is to be welcomed - although the articulation between this principle and the situation where a child is set bail for a non-schedule 3 offence which cannot be paid appears somewhat murky!

Section 29 of the Correctional Services Act 59 of 1959 introduced for the first time in 1995 a prohibition on detaining children aged below 14 pending trial. Although many aspects of section 29 (as amended), have caused problems over the past six- seven years, it must be pointed out that there does appear to be virtually complete compliance with this provision throughout the country. Indeed, monitoring efforts seldom – if ever these days - show the existence of children aged under 14 held in prison awaiting trial, which illustrates that compliance with this principle is feasible and possible. 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. Maintaining a minimum age of 14 years for admission to prison to await trial is therefore fully supported.

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.

Clause 36(1)(b) must give rise to serious concern. It appear 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.

The above provision constitutes 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 whatosever 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 35(1) (b)(i) is utterly subjective and will, in practice, prove no impediment to the detention of children. Who is to determine suitablity 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.

4. Detention in places of safety and secure care facilities

The Bill gives the distinct impression that these institutional names 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.

5. The use of imprisonment as a sentence for children

Case law is not clear that children may not be sentenced to imprisonment without a pre-sentence report. The Supreme Court of Appeal, in S v Petersen (2001) followed a long line of provincial decisions in holding that despite assertions that probation officers were not available, and even in a case where a form of prison sentence was a foregone conclusion due to the heinousness of the offence, a probation officer’s report had to be obtained. Recently a decision of the Cape High court insisted on a probation officers report even in respect of a juvenile who at the time of imposition of sentence was already serving a short term prison sentence. The conclusion is inescapable that, whatever the circumstances, higher courts will overturn sentences of imprisonment imposed upon person aged under 18 years where not probation officer report was provided. Hence the provisions of clause 62 confirm existing case law and are therefore fully supported.

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.

A primary reason why the restriction on sentences of imprisonment is required is to give effect to the constitutional principle of detention as a matter of last resort. There are other residential options available for persons aged below 14, and indeed for many years children convicted of very serious offences have been sentenced to reform schools and industrial schools in lieu of prison. Field work conducted to examine reform school records in the period 1995-1998 indicated as a benchmark that approximately 30- 40% of all children admitted to these institutions were referred there for extremely serious offences such as rape and murder.

I have studied statistics on children serving prison since 1995, and published an Annual Juvenile Justice Review in an accredited South African Journal detailing trends in juvenile sentencing. One constant has been the very low numbers of children aged under 14 years actually serving prison sentences, consistently at around 8- 12 children in the entire country at any one time. The vast majority of these few children are serving

short term sentences of 6 months – 12 months, and recently provincial initiatives have seen those kind of sentences being taken on review and overturned. This constant must also be seen against a backdrop of rising imprisonment rates generally, and, in addition, a measurable increase in the youth population of our country over the seven year period. The last figures available to me show that at the end of 2001 there were 12 children of this age cohort serving a prison sentence, no different from figures of 1999 and 1997. This tends to provide statistical confirmation that, contrary to possible public perceptions about youth and crime, we do not need provisions permitting prison sentences for children of this tender age.

As a member of the National Council on Correctional Services, and having served successive terms since appointment in 1997, I would also like to point out that that the Department has absolutely no facilities able to adequately accommodate children aged below 14 years. Indeed, Departmental policy is that specialised youth facilities such as the one at Baviaanspoort that was launched a while ago, are to be used only for the admission of prisoners aged over 16 years. I have no doubt that the Department of Correctional Services fully support a prohibition such as the one contained in clause 69(1)(a).

Thank You

Professor Julia Sloth-Nielsen

Law Faculty, University of the Western Cape

Member: National Council On Correctional Services, appointed in terms of Act 111 of 1998

Tel: 021-9592419 (o)

021- 5863477 (h) or 083-258 6230 (cell)