Inter-departmental annual reports on implementation of the Child Justice Act

Meeting report

Mr R Dyantyi (ANC) informed the Committee that he had been elected Acting Chairperson at a previous meeting as the regular chairperson was not available. The Committee would receive a briefing on the Child Justice Act. He greeted all the Departments that participated in compiling the inter-departmental reports on the Child Justice Act. The Committee appreciated that all of the stakeholders were present in the meeting. He asked for the Department of Justice to lead the presentation.
Inter-departmental annual reports on the implementation of the Child Justice Act

Dr Charmain Badenhorst, Director: Child Justice and Family Law, Department of Justice and Constitutional Development, briefed the Committee on the inter-departmental implementation of the Child Justice Act. The presentation reported on progress in the implementation of the Act by government stakeholders and focused on the 2020/21 departmental annual reports. It highlighted achievements and challenges as well future actions to address challenges.

The Committee was told that the COVID-19 restrictions had impacted the usual patterns of crimes nationwide. The country had recorded a significant reduction in crime figures in general, and this was also evident from the data on children in conflict with the law. Section 94 of the Act had established an Intersectoral Committee for Child Justice with the responsibility to monitor the implementation of the Act and the Child Justice National Policy Framework. The stakeholders included the Department of Justice and Constitutional Development, the Department of Social Development, the Department of Health, the Department of Basic Education, the Department of Correctional Services, the SA Police Service, the National Prosecuting Authority and Legal Aid SA. There were 12 key areas of reporting. These included capacity building; methods of securing attendance of children at preliminary inquiries;  assessment of children; trials; sentencing; resources; and public education.

Number of charges against children

In 2020/2021, 23 263 charges had been laid against children. Since the implementation of the Act there had been a significant decrease in the number of charges against children recorded by the SA Police Service (SAPS). The reasons for this drop still needed to be investigated. Research however showed that there was an international decline in child offending.

Ages of children in preliminary inquiries

Only 44 children aged 10 and 11 years had appeared in preliminary inquiries during the reporting period, and this represented 0.5 percent of the total number of preliminary inquiries registered. Children aged 17 appeared in 39 percent of the preliminary inquiries.

Top ten crimes allegedly committed during the past two reporting periods

The Committee was presented with a breakdown of the top ten crime categories involving children. (See slide 17). It heard that there had been a substantial increase of 55 percent in the number of rape charges against the children who appeared in preliminary inquiries compared to the previous reporting period. The significant drop of 51 percent in charges for possession or use of drugs between 2019/20 and 2020/21 was attributed to a court case involving the Director of Public Prosecutions, South Gauteng, the Minister of Justice and Correctional Services and the Centre for Child Law. The case concerned the constitutionality of criminalising the possession of cannabis by children. 

Trials

The majority of children that appeared in child justice courts during the reporting period were aged 16 and 17 years. Only one 10-year-old child and nine 11-year-old children appeared in child justice courts. A decline in the number of new preliminary inquiries registered resulted in a 35 percent decrease in the number of cases referred to the child justice courts and this also impacted the number of outcomes. Fewer outcomes for diversion were successfully recorded and this might be due to the fact that diversion programmes could not proceed as usual due to COVID19-related restrictions.

Convictions

During this reporting period, no children below the age of 13 were convicted of any crime in the child justice courts. The top charges that children were convicted of were housebreaking with intent to steal and theft. Although rape was the top charge against children awaiting trial, only 12 of the 1 024 children charged with rape were convicted of this crime. This low conviction rate might be linked to the challenges at SAPS laboratories and the delays in releasing DNA reports.

Sentencing

The majority of children sentenced to imprisonment were aged 17. Two children aged 14 were sentenced to imprisonment.  Eighty of the 125 imposed sentences were community-based sentences that did not involve detention, in line with the Constitution that required detention of children to be used only as a measure of last resort. The top three crimes where imprisonment sentences were imposed on children were housebreaking with the intent to steal, theft, rape and murder. The average number of sentenced children in prison decreased from 187 in 2015/16 to 40 in 2020/21. This represented a decrease of more than 21.4 percent.

Discussion

Adv G Breytenbach (DA) asked if there was a record of recidivism amongst child offenders. If so, what was the percentage? What percentage of children who had had their charges withdrawn on condition that they did not re-offend, did re-offend? How many of those children came back into the system? She wanted more information on the time it took from an arrest and notification of a child in custody to a social worker arriving to assess the child. What was that timeframe?

She wanted more information about the children convicted of rape or acquitted of rape and about those charged but not convicted. The suggestion was that it might be a result of the delay in DNA analysis from the police. It might or might not be. What was the position? Was it a result of the DNA delay? Was it a result of the analysis not being done? Was that information not available? If that was the case then something needed to be done about it. It was totally unacceptable.

She found it extremely worrying that the Committee was looking at a graph about children under the age of 17 and some of them as young as 14 being caught up in assault with intent to do grievous bodily harm, murder and rape. How did South Africa as a society get to the stage where children under the age of 17 were busying themselves with this kind of activity? Different solutions needed to be looked at. The solution was not putting them all in jail. There needed to be a solution to prevent children from landing up in jail in the first place. She wanted to hear some views on those matters.

The Acting Chairperson said that he hoped all the departments were taking notes on all the issues raised because the Committee wanted responses on all of them.

Mr W Horn (DA) said that the presentation had mentioned an amendment to the national policy framework in 2018 to clearly indicate the responsibilities of all the partner departments. The researchers had advised that the policy framework on the website was still the one of May 2010. He advised the Department to update it. Given the fact that it was not a published policy framework, to what extent was there a public advocacy programme to enable those who had to receive services on the back of this policy framework? What were they entitled to and what could they expect?

The Committee had been advised that it was an absolute duty that children who were taken into custody must be subjected to a process of preliminary assessment. The Committee acknowledged the impact of Covid. It seemed that in 2019/20 only 60 percent of children who were apprehended were assessed and then the following year it dropped to 26 percent. Could that really be ascribed only to the COVID-19 pandemic? By then the lockdown levels should have allowed the Department of Social Development service providers and officials to perform their duties and tasks. What was the way forward to correct this? Were there any additional measures to assist those children who did not go through the assessment? What was the knock-on effect of those assessments not taking place?

Concerning amendments to the Child Justice Act, the amended regulations had been tabled by the Minister the previous day. That had to do with amendment legislation around the age of criminal capacity that the Committee had also dealt with. He wanted to hear, from all the departments, what process had in the meantime unfolded. He assumed the Departments had been heavily involved with the drafting of the amended regulations. What other processes had in the meantime ensued to position them for immediate implementation once these regulations were approved by Parliament? 

Ms N Maseko-Jele (ANC) directed a question to all the departments. The Committee had been informed that the technical team would be represented by officials at a senior level. She wanted to know how senior. Was it going to be a director, was it a supervisor or was it the managers?

She referred to the families of the children. Was there information about the set-up of the families of the children involved? Were they single-parent families? Did the children have both parents? Were some children orphans? Were they child-headed families?

She discussed the challenges and limitations that were presented. The Committee would need to monitor the answers it received from the departments. There was a new tendency of not answering the Members’ questions. She wanted the Chairperson to note that. The departments were going to meet in the technical committee. How was the Department of Justice going to manage that group? The Department needed to monitor all of the issues raised by the Committee. The Department needed to make sure that when it came back to present that the Committee’s concerns were responded to. The Committee should not be asking the same questions every time. Was it possible for the Committee to receive the turnaround times on the corrective measures that the departments were taking in addressing the challenges?

Ms W Newhoudt-Druchen (ANC) referred to the one-stop child justice centres. She had seen only three or four that were reported on. How many were there and where were they situated? When children were sentenced or were awaiting trial, where were they kept? Were they kept within correctional service centres or in juvenile detention centres or in their homes? If the information could not be provided now she would appreciate a written response. Where in South Africa were these children kept and in which types of centres?

She noted that children who were committing crimes were getting younger and younger. What kind of families did the children come from? What were the families doing when the child was committing a crime? Were the parents not available to supervise? Was that when the crimes were committed? How did a social worker decide to release a child into the guardians' care? How did the social worker know that the child would be under supervision? In other countries, parents were arrested for their children committing crimes. How were the different departments assisting the families and what kind of support was given, especially when the child was put under guardian supervision?

There was no mention of the number of children incarcerated and the incarceration sentences that they had received. She wanted the Department to provide that information. She was concerned that the children were not in formal education when they were sentenced. It was important that children went to school. Parliament had heard about adult prisoners achieving degrees and matric certificates. How come the children were not receiving that kind of opportunity? It needed to be ensured that children were receiving education.

An alarmingly high number of children were committing rape. Was there investigation or research into why children were driven to commit rape? Were the victims provided with support in these cases? What was being done to monitor the supervision that the parents or guardians were giving these children?

Concerning the overall number of children who had been incarcerated or charged with crimes, the numbers that were presented for the different reporting periods did not mention the number of children with disabilities. She wanted that information to be provided. 

Ms A Ramolobeng (ANC) asked whether child offenders who had been detained or taken to centres and prisons were being encouraged to go back to school. If they were, what numbers were currently receiving formal education? Did the Department of Correctional Services have a system for ensuring that when child offenders were in centres, they were taken back to school? What happened to the child offenders? There could not be a situation where the children were not going back to school and doing nothing. When the children were reintegrated into their community there was a huge chance of them doing the very same deed, if not more.

Concerning the top ten crimes registered in the statistics, was it possible for the Committee to receive the age ranges of those offenders? The Committee needed to have a clear comparison of which age groups had committed those crimes. What had caused the delays in finalising the pending cases and pending matters? She wanted clarity on that matter.

There was a matter regarding training and capacity building for SAPS members to make them understand the Child Justice Act. When there was a matter that involved children then it should be treated differently by SAPS members. Had the training and capacity building for SAPS members started? If not, when would it take place? She wanted the timeframes for that. It was important because that is where matters started before they went through the justice system. What had happened within the SAPS framework, especially in the HR system that dealt with capacity building?

She discussed the referral of remand detainees. Had the process of identifying those alternative placements started? If not, what was the remedial action for the delay? She was also interested in the matter of the centres. In which places were the children being placed? 

Responses

Dr Badenhorst responded to Adv Breytenbach’s question about whether the Department kept records of recidivism rates. She said this was linked to the percentage of children who were diverted and what percentage of them re-offended. Unfortunately, the Department did not have that information. The Department had not done a study to ascertain this. That was something that the Department should be focusing on going forward, taking into account that the system had been in operation for 11 years now. The Department should be looking at why children came back into the system and whether the support and interventions provided in terms of the Act were adequate.

She responded to the question about children being acquitted because of delays in DNA analysis. The presentation had indicated that the delay in the finalisation of the cases was linked to the delay in getting DNA results. The presentation had not depicted that children were acquitted because of the lack of DNA results. It contributed to the delay in the finalisation of the cases.

 On the comments about serious crimes that children committed, she said there was a link between delinquency and criminal behaviour. There was also abuse of children by their parents. The abuse might be physical, emotional or sexual. There was a goal for early identification of abused and neglected children. There needed to be careful handling of these cases to avoid early criminal justice interventions that could become the first spiral of sanctions.

There was a gender-based violence strategy that highlighted children as a target for interventions to ensure that they had healthy relationships and did not perpetrate gender-based violence. Exposure to violence from early childhood had been identified by the National Strategic Plan on Gender-Based Violence and Femicide as one of the core drivers of gender-based violence. This included boys being exposed to bullying. Key activities included the adoption and rollout of school-based gender violence prevention programmes and parenting and early childhood development programmes. There was a definite way to act and to prevent children from committing violent crimes. It could be seen from the top crimes that six of the eight did have an element of violence. Society needed to urgently focus on that.

Dr Badenhorst responded to Mr Horn’s comment about the policy framework. The National Child Justice Policy framework had been amended. It had been tabled and also published in the Government Gazette for comment. Thereafter, it had been finalised and implemented. It had been distributed. The Department had done training sessions at the nine Child Justice Provincial Forums to inform the stakeholders of the changes, what was expected in terms of the collecting of data and the various responsibilities of the stakeholders. The Department would ensure that the correct version was placed on the website and would embark on more public education to inform all relevant parties of the changes that had been made to the 2010 national policy framework.

On the amendments to the Child Justice Act and the regulations tabled in Parliament, she outlined the processes that had unfolded. The Department had developed the regulations in consultation with the various stakeholders and had gone through all the consultation processes. The police had an obligation to amend their national instructions on children in conflict with the law and the National Prosecuting Authority (NPA) had certain directives. The police and the NPA would inform the Committee of their progress in that regard.

The representation at the National Technical Intersectoral Committee for Child Justice consisted of senior representatives. Directors, and in some instances chief directors, attended those meetings.

Responding to Ms Newhoudt-Druchen, Dr Badenhorst said there were currently three one-stop child justice centres operational in the country. These were in Bloemfontein, Gqebera and Klerksdorp. In response to the question about where children were kept while awaiting trial, she noted that the presentation did detail where children were kept while awaiting trial as well as the ages. Of the children awaiting trial, 71 percent were released into the care of their parents or guardians. Seventeen percent were detained in child and youth care centres which were managed by the Department of Social Development (DSD). The majority of those children were 16- and 17-year-olds. Forty-one children were released on bail; 341 were released on warning; 40 were in police lockups; and 49 were detained in correctional facilities as awaiting trial detainees. The ages of the children committing the top 10 crimes were not available currently, but she would extract that information and provide it to the Committee.

Regarding the delay in the finalisation of cases, the Department of Justice had included a key performance indicator in the annual performance plans which focussed on the percentage of child justice preliminary inquiries finalised within 90 days after the date of first appearance. The aim was to ensure that cases were finalised as soon as possible and that there were no undue delays. The Department monitored the finalisation of preliminary inquiries. In the 2020/21 reporting period,  94 percent of the preliminary inquiries were finalised within 90 days. If the Department detected delays in the finalisation of the cases then it brought it to the National Technical Intersectoral Committee where all the stakeholders were involved because it might be due to delays in police investigations, it might be due to delays at the NPA, or with Legal Aid or the DSD. The Department was able to pinpoint where the delays occurred and then address those delays. 

Adv Vuyo Ketelo, Senior State Advocate: Sexual Offences and Community Affairs Unit, NPA, responded to the question by Mr Horn about the amendments of the policy directives of the NPA based on the amendment of the Child Justice Act. The directives had been amended and had been consulted with all the relevant stakeholders. The NPA was in the process of sending them to the Minister so that they could be tabled to Parliament.

Ms Siza Magangoe, Deputy Director-General: Social Services, DSD, responded to the questions about the assessment of child offenders. The Child Justice Act prescribed that assessment by probation officers must be conducted within 48 hours. The Department had probation officers in all nine provinces to conduct those assessments. This was to ensure that the Department complied with the timeframe as prescribed by the Act.

On the question of children who were not assessed, she said the Department relied on notifications from the SAPS. If the Department did not receive a notification, it would not know if the child had been arrested or had committed a crime. There was a system issue that needed to be resolved as soon as possible. The Department was working with the SAPS on a system that would ensure that it received the notifications on time so that all children who were arrested were assessed on time.

Referring to the Department’s work with child offenders’ families, she said once the Department had done a comprehensive assessment of a child admitted to its facilities, it drew up an individual development plan (IDP). That IDP spoke about all the needs of the child and how the Department was going to turn around his or her life. A child was not an island but came from a family. As part of the IDP, the Department assessed the state of the family and what its needs were. Although the Department might not intervene comprehensively with the family, that assessment helped. The Department referred matters for further intervention to the local social workers. The social workers were able to look at the families’ needs and put them through reintegration and aftercare services.  Not all families cooperated, but the Department tried its best.

Ms Magangoe outlined the programmes for children who were in the Department’s facilities. There was a category for education. There were also spiritual and accredited vocational and skills development programmes. The Department ensured that once offenders left its facilities they knew a trade and were artisans. Quite a lot of time and energy was put into those interventions.

Ms Vuyi Mlomo-Ndlovu, Acting Chief Deputy Commissioner: Remand Detention, Department of Correctional Services (DCS), responded to Mr Horn about the amendments of the Child Justice Act and the regulations relating to criminal capacity. The DCS did not have any role with regard to the matter of criminal capacity, though it had participated in the processes. When it read the amendments in the Act and the regulations, it did not have any role.

On the question of where the children were kept in DCS facilities when they were sentenced, a written response would be submitted by the Department. The annual report had highlighted the facilities where the children were detained on 31 March 2021. From time to time the Department analysed where the children were. The number of children was reducing. Some of the facilities that used to detain children no longer had them because the numbers were going down. Information on both remand detainees and sentenced children were included in the annual report. On the number of children sentenced and the length of sentences, she requested that the Department be allowed to submit a written response because it needed to pull information from the database.

Ms Mlomo-Ndlovu responded to the question about children participating in formal education. The Department had analysed the children who were remand detainees and discovered that when they entered into DCS facilities they were not involved in formal education. The Department needed to commit to doing an analysis this year to check on what the causes were. The information would be available in the next report on the Child Justice Act. It was too late for this year because the year was ending, and the analysis had not been done. The Department would look at the centres that had the highest number of sentenced children and then do the analysis. The personnel usually interviewed the children and checked their files. The Department would be able to say why these children were not participating in education. The children were encouraged to participate and there were opportunities for them.

On the question about recidivism, she said the department did not have a system for identifying recidivism. The only way the Department would be able to determine recidivism was from a person’s SAP69 form. The Department had not checked whether children currently in its facilities had a previous criminal record.

 She responded to the question about referral for alternative placement. There had been a lot of lone children in several facilities. The Department had been advised to look at how it managed lone children. The number of lone children had reduced drastically because the number of children had reduced. There were a few facilities where there was only one child, especially in the case of remand detainees. These children were going to court every 14 days, so they did not stay for a long time. She mentioned the facilities where there were lone children. The remand detention population was moving very fast since they went to court every 14 days, so their cases were attended to.

Mr Likho Bottoman, Deputy Director: Social Mobilisation and Support Services, Department of Basic Education (DBE), responded to the issue that had been raised about learning programmes for children. He said the DSD had touched on the different categories of programmes that were offered. Previously there had been a misunderstanding about the Department's inclusive education policy. It had been understood to be a policy that looked at learners with special education needs or learners living with disabilities. The Department had advocated for a clearer understanding of what the policy provisions were so that the provincial education departments understood that the inclusive education policy looked at inclusion beyond disability. It also covered learners or children who were in conflict with the law. The Department had ensured that a curriculum framework was provided at the childcare centres for children who were in conflict with the law. If the children were able to come back into society, the Department would advise provincial education departments to look at a focused and deliberate reintegration process, especially if the children were still of school-going age.

Another misconception that that Department had found concerned the policy about compulsory education for children younger than 16. The Department had managed to dispel some misconceptions. There was a lot more uptake of educational programming in childcare centres. In some instances, the Department had been able to fund the educational programmes directly, which it was not supposed to do in terms of its policy. It did this because it understood that the inalienable right to basic education superseded all other provisions. The Department tried to assist as far as possible, but not in all cases. The majority were dealt with by the DSD. The DBE’s purpose was to provide curriculum support. Where the DBE knew there was slow or no uptake whatsoever of education programming, it did make a commitment. It was just a makeshift arrangement. The responsibility ultimately lay with the DSD. The departments collaborated on the educational programmes at these centres.

Adv Praise Kambula, Chief Director: Promotion of the Rights of Vulnerable Groups, Department of Justice and Constitutional Development, said that this was an inter-departmental report that was being presented, so it was not the responsibility of the Department of Justice to respond to all the questions. She thanked the Committee for giving the departments enough time to present the report.

The Chairperson asked the members if they had any urgent follow-up questions.

Ms Maseko-Jele said that she did not hear the answers to her questions. She had three questions. She requested the Department to inform the Committee about the level of seniority of the people who were handling these issues. The Committee was not here to boxes. The Committee wanted to see things happening on the ground. She noted that there might be individuals at a level where they were not taken seriously. Who was sitting on the committee? She said she had also asked a question about the families. Did the DSD have data on the families of these children and the type of families? The problem could not be dealt with if the departments did not know who was handling these children at home. The third question had been directed at the Department of Justice. Did they have a plan to make sure that the coordination between the different departments provided good results?

Ms Magangoe said that the DSD did have data on the type of families that were being dealt with. The majority of them were parent-headed families and also vulnerable groups where homes were granny-headed or child-headed.

Adv Doctor Mashabane, Director-General, Department of Justice and Constitutional Development, responded to the question about the seniority of officials that were dealing with these matters. Adv Praise Kambula was a chief director. That was the most senior professional rank in public service. She was responsible for a programme called Promotion of the Rights of Vulnerable Groups (PRVG). Underneath her was a director, Dr Charmain Badenhorst. These were the colleagues who had been presenting on these issues. The Director-General of the Department of Justice and Constitutional Development chaired the Intersectoral Committee, which included the other director generals who were present. That was the level at which these matters were being dealt with. These were all senior managers within the system.

The Chairperson noted that the Departments would have to send written detailed responses on certain issues. He noted with concern that the country had a serious situation on its hands. Children committing crimes were getting younger. Was this about the family unit being broken down? This was becoming more of a societal issue. No number of arrests or convictions would solve this problem. The Committee shared the shock of Adv Breytenbach and the uneasiness about these issues. The Committee appreciated the serious work done by all the stakeholders to confront this problem. More efforts were going to be needed around the issue of prevention. That went beyond just the Department of Justice. Awareness needed to be created and the major causal issues needed to be attended to.

The Chairperson referred to Ms Maseko-Jele’s question. It was important that the Committee be provided with information about the children and their families. What was the driving force? Was it correct to assume that this could be a result of broken families? The Committee would need to be given that information so that it could make its own assessment on what needed to be done. When the Committee received the next annual report it would then not need to harp on the same issues. The Committee needed to see progress. Progress was not just the resources put in and the symptoms that were managed. The Committee needed to see a real change. Some of the slides and information presented were beginning to show that there was a decline in the number of children who were in this space. That was positive. Charges against children had drastically declined over the years. The major issue was how the government could be better at being preventative. The community in general played a key role in addressing social ills that affected children. He thanked everyone for their participation in the meeting.

The meeting was adjourned.