Floor Crossing legislation: Department briefing on Constitution 14th Law Amendment Bill & Adoption of Constitution 15th & General Laws Amendment Bills; Child Justice Bill: briefing by Department of Justice

Meeting report

The Chairperson expressed condolences on the passing away of Mr J Masilela, Secretary of Defence, on behalf of the Committee.

He read out the invitations that the Committee had received.

Floor Crossing legislation: Constitution 14th and 15th Amendment and General Laws Amendment Bill
The Chairperson noted that the Committee would only need to brief the provinces on the Constitution 14^th Amendment Bill, but not the Constitution 15^th Amendment Bill.

Mr Johan Labuschagne, Director, Department of Justice, reminded Members of his previous briefing. The Constitution 14th Amendment Bill sought to abolish floor crossing in the National Assembly and Provincial legislatures by repealing schedule  6A to the Constitution and effecting amendments to other sections of the Constitution. Because it affected provinces, it must be approved by the NCOP and the NA, so it would be necessary for this Committee to get mandates from the provinces. The Constitution 15th Amendment Bill sought to abolish floor crossing in municipal councils and made consequential amendments to other sections of the Constitution - for instance clauses 1 to 3 were purely consequential, deleting references to floor crossing, and section158 would be amended to provide for filling of vacancies in municipal councils. The General Laws Amendment Bill would amend five different Acts, with all amendments emanating from the provisions of the Constitution Amendment Bills, in order to revert to the position prior to 2002 when floor crossing was first permitted. Amendments would also be made to the Public Funding Act by this General Laws Amendment Bill, but these did not relate to floor crossing, but they could be regarded as issues that had been identified as problematic. For instance, Clause 2(a) sought to amend Section 6 of the Funding Act to make political parties accountable for moneys received. Clause 2(b) was purely technical, deleting a reference to an obsolete Act. Clause 2(c) would relate to auditing of documents where the Electoral Commission was not satisfied with statements, or where these had not been submitted at all. He noted that this was a section 75 Bill. The next period for local government floor crossing would be in September 2009, so the three Bills would need to be passed and implemented before then to ensure that the floor crossing could not take place. He pointed out that certain regulations under the Public Funding Act would also be required, and these would be made by the President, on recommendation of a Joint Standing Committee of the NA and NCOP. Draft amendments had been submitted to the Chairperson and the Speaker to put before the Joint Committee. Those regulations were purely consequential, again to revert back to he position prior to 2002. The Memorandums on the Objects of all three Bills were quite specific, and could be used by the members to brief their provinces.

Discussion
The Chairperson said that there had been an informal briefing already on all the clauses. Members would now proceed to brief their provinces.

Mr D Worth (DA, Free State) asked if the mandate from Provinces would be limited to the Constitution 14th Amendment Bill. He also enquired as to the dates.

The Chairperson noted that the mandate would relate only to the Constitution 14th Amendment Bill.

Mr Labuschagne noted that the Constitution 14th Amendment Bill must be passed by both houses. There would have to be public debate on the Constitution 15th Amendment Bill and that was announced.

Mr Labuschagne noted that the legislation would have to be implemented before 1 September 2009, but hopefully the legislation could still be passed this year.

Mr N Vanara, Parliamentary Legal Adviser, agreed that the Committee would not have to refer a Section 75 Bill to provinces.

Dr F van Heerden (FF+) confirmed that yesterday he had posed a question, in his personal capacity, whether a member of one party could not be permitted to move mid-term to form a new party. He quipped that he had understood the concerns of the ANC and the DA, who were in support of floor crossing, as they did not have the same faith in the loyalty of their Members as did the Freedom Front. He said, however, that he would not take his proposal further. He had discussed the pension implications for a person who might wish to resign from his party before the end of the term, and it seemed that this would imply only a small portion of the contributions. There could be other implications, but they were not that serious. He noted that his party had, from the outset, been opposed to floor crossing legislation, and remained so.

Mr A Moseki (ANC, North West) reminded Dr van Heerden that the idea of floor crossing had not emanated from the ANC. He took up a side remark by Dr van Heerden and noted that there were certainly no suggestion that the ANC and DA were “acting in coalition”. The ANC would remain a democratic liberation movement that would not abandon its principles.

The Chairperson suggested that the Committee should pass the Constitution 15th Amendment Bill and the General Laws Amendment Bill now. He read out the Motion of Desirability for each Bill and noted that the Committee had already been through the clauses of each of the Bills. Each of those two Bills was adopted.

The Chairperson noted that a date would be set soon for the Members to brief their provinces on the Constitution 14^th Amendment Bill.

Child Justice Bill (the Bill) Briefing by Department of Justice (DOJ)
Mr Lawrence Bassett, Chief Director: Legislation, Department of Justice, noted that there were a number of colleagues with him, who would deal with the contents of the Bill and then with its implementation. Members of the Department of Social Development, (DSD), and the National Prosecuting Authority (NPA) were also present.

Adv Shireen Said, Chief Director: Vulnerable Groups, Department of Justice (DOJ) noted that although it had been intended that the South African Police Force (SAPS) and Department of Correctional Services (DCS) had intended to be present, as they were also involved in implementation issues, but had not been able to attend today because of the change of dates, that then encroached upon other commitments.

Mr Bassett noted that he had not prepared a clause by clause briefing, but would give an overview at this stage. One or two errors had been picked up and therefore the Department would like to table some amendments, which were contained in the Schedules to the Bill, which were of a minor nature.

He asked that Members ask questions where matters were not clear, instead of waiting for a formal question session.

Part 1
Mr Bassett highlighted some definitions, as contained in Clause 1. He noted the definition of "appropriate adult", which was used consistently where a parent or guardian was not available, and particularly where there was a child-headed household.  A "child and youth care centre" was a term taken out of the Children's Act, and was basically a place of safety and youth care centre. A "Child Justice Court" was not a separately established court, but could be a court at district, regional or high court level, that would simply be constituted for the purposes of that sitting as a child justice court. A "Preliminary Inquiry" was the first appearance of a child in Court. It was an informal enquiry where role players would try to deal with various issues.

Mr Z Ntuli (ANC, Kwazulu Natal) intervened to note that there were children held in some prisons, where the parents had indicated that they were not prepared to take care of the children. He asked, in that situation, who an "appropriate adult" would be.

Adv Said responded that it must be recognised that there was a great deal of dysfunctionality in the system. Often children were in the social or criminal justice system because their parents could not provide supervision. Parenting was a major challenge, and the numbers of single parents, under-supervised households and child-headed households were increasing. This Bill referred to the parental care that should be given in our society. Children should not simply be criminalised in this system. In the past children had been processed through the criminal justice system because there were no other options. The new strategy aimed to achieve a strong preventative element, that would recognise and be able to cope with challenges. There were cases where parents would come to court and say that they had no control over their children. The Children's Act had included a provision for an "appropriate adult", who was simply an adult, usually from the community, but not necessarily a relative, who was prepared to and able to take responsibility for that child in the matter in hand. In this Bill there was also recognition of the number of children being used to commit crime, and if a relative was inciting a child in this way, the appropriate adult would clearly be not the relative, but another adult in the community. 

Ms Thandazile Skhosana, Senior State Law Adviser, Department of Justice, noted that this Bill emanated from the report of the South African Law Reform Commission (SALRC) and was requested by the late Minister Omar in 1997. It required State parties to promote institutions and a criminal justice system specifically for children, having regard to Section 28 of the Constitution. A person under 18 was regarded as a child. The Constitution said that children should be detained only as a last resort, and for the shortest applicable period. A child had the right to be detained separately from adults, to be treated in a manner appropriate to the child’s age, and to have a legal representative assigned to him or her, at State expense. The Bill introduced in 2002 was adapted considerably by the Portfolio Committee in 2003, to take into account concerns relating to implementation of the Bill and in particular the readiness of government departments to take on tasks assigned to them – such as assessment of children or holding of preliminary enquiries. During the latest round of deliberations by the current Portfolio Committee it was apparent that departments were now in a better position to implement.

Ms Skhosana said that this Bill intended to establish a criminal justice system for children in conflict with the law, and would amend the common law in regard to criminal capacity. It would provide for a mechanism to deal with children lacking formal criminal capacity outside the formal system. It also made provision for assessment of children committing crimes, for holding of a preliminary enquiry, the possibility of diverting matters away from the formal criminal justice system, and made provision for a Child Justice Court to hear trials of all children. It extended the sentencing options, and entrenched the notion of restorative justice into the justice system. This was all indicated in the Long title and Preamble. Clause 2 set out the objects and guiding principles.

Chapter 2
Ms Skhosana noted that Chapter 2 covered the application of the Bill, the criminal capacity of children and other matters of age. She explained that the minimum age of criminal capacity was covered in clauses 7 and 9. Clause 4 noted that the Act would apply to a child under the age of 10 years, who would not have criminal capacity. It would also apply to a child of between 10 and 18, who could have criminal capacity. Furthermore it could apply to a person who, although under 18 at the time of committing a crime, was over 18 at the time when arrested or called upon to appear at an enquiry in terms of a written notice. This was an exception to the general rule.

Mr Bassett clarified that Clause 4 was one of the "road-map" provisions. It applied in only limited ways to children under 10, as they were dealt with differently from those over 10. They would not be arrested and charged, if they had committed an offence, but would be referred directly to suitable programmes. Children between 10 and 18 would fall under the Bill completely. It could apply to those between the ages of 18 and 21 in the limited circumstances described by Ms Skhosana, when the offence had been committed whilst the accused was still a child.

The Chairperson noted that comments had previously been made that different ages were used in different pieces of legislation – such as the Choice on Termination of Pregnancy, the Sexual Offences Act, the Children’s Act and this Bill.

Ms Skhosana explained that Clause 5 was another "road-map" clause. If the child was under 10, he must be referred to a probation officer and dealt with in terms of clause 9. This child would not have criminal capacity. All children between 10 and 18 must be assessed by a probation officer before their first appearance before a preliminary enquiry. Such enquiry was held for every child who had allegedly committed an offence, except in certain defined circumstances. At a preliminary enquiry, diversion under Chapter 8 could be considered. If a matter was not diverted or withdrawn, it would be referred to the Child Justice Court in terms of Chapter 9 for plea or trial, and diversion could also be considered at that stage.

The Bill contained several Schedules. Clause 6 set out the seriousness of the three categories. Schedule 1 contained the "least serious" offences, including petty theft. Schedule 2 listed more serious offences, such as serious theft, robbery without aggravating circumstances, less serious assault and the like. Schedule 3 included treason, murder, rape and other sexual offences, robbery and car hijacks. The Bill regulated how children in conflict with the law should be deal with. It must be read in conjunction with the Criminal Procedure Act (CPA), which would apply except where this Bill made specific provisions for children or amended what was in the CPA. Schedule 5 explained the interface between this Bill and the CPA.

Dr van Heerden pointed to Schedule 5 and noted that in some of the columns there were blank spaces. He asked if this indicated that there would be no effect, and, if so, why it was necessary to include the references.

Ms Skhosana said that Schedule 5 was a guide to the implementers. Where there were blank spaces, it would indicate that the CPA was not affected by the Bill.

Ms Skhosana then detailed for the Committee the issues around criminal capacity. The minimum age of criminal capacity in the Bill was now set at ten years of age. A child under that age had no criminal capacity and could never be prosecuted for an offence. When a child was between 10 and 14, the child was presumed to lack criminal capacity, unless the State proved beyond reasonable doubt that the child did have criminal capacity. If it failed to do so, the child would be regarded as having no criminal capacity and would be dealt with in the same way as a child under 10.

The Chairperson asked why it was necessary to complicate the issue by inserting different categories.
 
Mr Bassett gave some background. He noted that when the SALRC had carried out its investigations it was suggested that the minimum age of criminal capacity should be 12 or 14 years of age. Some suggestions also were that there should be one age mentioned only, with the “intermediate” process. The current Bill in a sense reflected a compromise position. The minimum age of 10 would be reviewed in five years time.

Adv Said explained that the decision to keep the rebuttable presumption took into account the different levels of maturity of different children, and whether children, while knowing what they were physically doing, were able to comprehend whether their actions were acceptable or not.  The United Nations standard was 12 years of age. However, it was pointed out that there were a number of children in South Africa under 12 who were already committing offences, with the highest number in the 14 to 17 age categories. A compromise in this Bill was to fix the age of criminal capacity at 10. The onerous aspects of assessment and capacity to manage the process were also brought under consideration. All those committing an offence when under 10 years of age would be processed through the social assessment process. It was noted that a child who was really in need of care would not benefit from incarceration but must be dealt with to avoid him becoming recidivist.

Ms Conny Nxumalo, Chief Director, Department of Social Development, said that the presumption clause would also take into account a child with developmental or mental capacity problems.

Ms Skhosana noted that this rebuttable presumption was already in the law, although the ages now differed.

Mr N Mack (ANC, Western Cape) asked how capacity was to be determined. A child might enter a shop and take something to eat, because of hunger. He was worried when a child might develop a capacity for more serious crime. He believed that proving intent was problematic and enquired who would make that determination.

The Chairperson said that this would also depend on the judicial officers.

Ms Skhosana said that a clause in the Bill dealt with the establishing of criminal capacity. Where this was in issue, the presiding officer could call upon a medical practitioner to give advice. She added that it would also be addressed during the assessment, which would examine the motive of the child for committing the offence, and it would identify and then make arrangements for a child in need of care. 

Mr Bassett added that a probation officer must assess a child, but in addition Clause 11 required the State to prove beyond reasonable doubt the child's ability to appreciate the difference between right and wrong, and act in accordance with that. The enquiry magistrate must consider the assessment report and evidence placed before the Court, which may include a report or evaluation referred to in sub section (3). If the criminal capacity was at stake the Court may order an evaluation of the criminal capacity by a suitably qualified person, which would include cognitive, moral and psychological and social evaluation.

Ms Said noted that the criminal justice system had not in the past been child-friendly. The regulations would dealt with social context training and there would be distinction between children in need of care who had entered the criminal justice system from need, and others who did not fall within this category. The different personnel would have different training on child development, so that children were treated more humanely, as opposed to processing them through the courts. This in fact was already applied in existing protocols, although they were not as yet contained in legislation.

Dr van Heerden commented that Clause 41 in Chapter 6 was excellent, and answered many of the questions. This dealt with the responsibility of the prosecutor.

Adv Said referred to comments by Members earlier, and made a distinction between parole and probation officers. This Bill determined the process through the system. A child entering the system would have to be assessed by a skilled probation officer, and Chapter 9 set out what must be considered. Before the child reached the prosecutor the entire Social Development stage of the process would have been completed. The prosecutor could divert the child under Chapter 6. If this was not appropriate then the Child Justice Court would deal with the matter. It would still refer to whatever had been brought up before.

Mr Bassett noted that clauses 50 and 64 allowed that at a preliminary enquiry, the enquiry magistrate could stop the proceedings if it appeared that the child was in need of care (defined in the Bill as including one who might steal for food or warmth) and ask that the child be dealt with in terms of the Children's Act, to determine whether he was in need of care of protection.

Ms Skhosana then continued to take the Committee through the Bill. She noted that if a police officer suspected a child to be under 14, then the child must be dealt with as if he was under 10, until such time as the age of the child was established at a preliminary enquiry. Clauses 13 to 15 were devoted to how the age must be estimated or dealt with, and clause 15 set out the procedure if a mistake had been made. If there was any proof of prejudice the High Court could review the matter and set any prejudice aside.

The Chairperson noted that many of children in prison had been there for a number of years awaiting trial. However, the circumstances could vary; some might have committed horrific offences, some might be there because of lack of fast-tracking and some might have been arrested when they were below 14.

Adv Said noted that the Social Development Portfolio Committee had recently visited a facility where it was informed that a child of under 18 had been held for five years. This was found to be untrue; the person was over 18, and was being held for committing several offences. There was an inter-sectoral committee to find out the numbers of children in detention and fast-track them through the process. This had resulted in a drop in the numbers of awaiting-trial children and the system further allowed for the Legal Aid Board to track the child and find out why he was in detention. There could be gaps in such a large system, but where details were provided there would be responses from the Committee.

Mr Bassett noted that clause 16, which dealt with errors as to age, would be of limited application to the situation sketched by the Chairperson as the response would come from the inter-sectoral Committee.

Mr Moseki said that there might be many people who would be victimised, and he queried who would assist the victims. He also asked how “community interest” was gauged, as he feared it could be open to abuse.

Mr Bassett said that the Objects of the Bill included that the spirit of ubuntu was promoted through reinforcing the rights of others and safeguarding the interests of victims and the community. There were various clauses in which the community interest was taken into account – for instance under detention, sentencing, releasing a child on warning – and these would be detailed as they appeared in the Bill.

Adv Said noted that this Bill recognised the concept of restorative justice, the current realities of crime and the need to proactively focus on rehabilitation and prevention. Accountability and the needs of the community were also now included. South Africa’s legal literacy levels were low, in both rural and urban areas, and attempts would be made to make people more aware of their rights, in order to protect them, and to understand the laws better. 

Mr Moseki noted that most of the children in these centres were from poor backgrounds. He was concerned that in the Free State prosecutors and magistrates would respond very quickly if children from some sectors were arrested, but would ignore others.

Ms F Nyanda (ANC, Mpumalanga) noted that when Members visited a youth centre, they met a ten-year old, and were concerned that this child was being held at the same youth centre as other, much older, boys and could be influenced by them.

Ms Nxumalo assumed that this was a Social Development youth centre. Currently the age of criminal capacity was seven, and so a child of ten would currently qualify to be held at a secure care facility. However, programmes were categorised by age, and the child would not have been involved in programmes with older children.

The Chairperson indicated that this was at Eureka Youth Centre.

Mr Bassett said that there was no indication whether this child was awaiting trial, or detained after trial. In future, the Bill would prevent detention of children under 14, so that this situation would not occur where a ten year old could be influenced by 16 and 17 year olds.

Mr Kombisa Mbakaza, Senior State Advocate, Sexual Offences and Community Affairs, NPA, explained for the Committee what "beyond reasonable doubt" meant, clarifying in particular that actual intention had to be proved as one of the elements of the offence. Only if all elements were proven to the satisfaction of the Court, could the Court find that person guilty. Where there was a doubt there would not be a conviction.

Chapter 3
Ms Skhosana noted that Chapter 3 provided for securing the attendance of the child at a preliminary enquiry. The written notice in respect of a Schedule 1 offence was the same as that referred to in the CPA, and was issued by a police officer at the scene of the crime. She then described the summons under clause 19, noting that Section 54 of the CPA could also be used, where it was not necessary to arrest the child. She described the requirements. The last method was an arrest. However, a police officer could not arrest a child committing an offence under Schedule 1, except if “compelling reasons” existed. Again, she described the requirements.

Mr Ntuli asked who would call in the probation officer, where a child had been arrested.

Ms Nxumalo noted that South African Police Services (SAPS) would do so.

Ms Skhosana noted that the police official must, within 24 hours, inform the probation officer of the arrest or written notice.

The Chairperson asked how the probation officer was contacted.

Ms Nxumalo noted that lists were distributed by DSD to all police stations, with the necessary contact details. She admitted that there were some challenges, and some children could go through the system without being assessed. DSD would only know of the arrest if informed of it. Some probation officers were stationed at courts and police stations, where there was office accommodation. If a police station was far from the offices of DSD, then they would drive to the police station as soon as possible. Most Courts did have probation officers in their premises, but more were needed.

Mr Mbakaza noted that if a child had not been assessed, then this would be picked up by the NPA, who would call the DSD to become involved. 

Mr Bassett noted that the remarks and queries by Members conveyed some concerns that certain systems were not working. He noted that this Bill sought also to ensure that functionaries would carry out their duties, as there were provisions for sanctioning those who did not. However, he also indicated that legislation could only go so far.

Adv Said added that during the drafting, different departments and civil society had been extensively involved, and there was much deliberation as to what was or was not objectively possible. The inter-sectoral committee, at the level of Directors-General, would look at policy, and must report on an annual basis. The Bill also contained extensive monitoring and evaluation procedures. There would be many challenges, but information systems would now cross-track and the incremental approach would be able to show how many children were moving through the system, and where they would be.

Dr D van der Merwe (DA) said this was an excellent Bill, but he wondered if there had been discussion on whether it was possible to implement.

Mr Bassett said that this was discussed in great depth. There were 40 hours of deliberations with government departments at the Portfolio Committee level, with much questioning of statistics. The report presented to Parliament recognised some of the challenges, and the Preamble also acknowledged the need for staggered implementation. Trends, rather than specific statistics, were analysed.

Dr van Heerden enquired how a police officer must deal with a child, if he was uncertain about the age of the child, until an opinion on age could be obtained.

Ms Skhosana said that the police officer in these circumstances should treat a child as under 10 until proven otherwise, so that no arrest should be made. One who clearly appeared to be more than 10 should be treated as a 10-year old until the opinion of the medical practitioner was obtained.

Chapter 4
Ms Skhosana noted that Chapter 4 of the Bill dealt with release and placement of a child, if detained. Each part was introduced by another "road-map" clause. The conditions of detention were detailed, and she noted that children could not be put in leg irons or handcuffs, must be separated from adults, segregated by sex, and must also be transported separately from adults, unless this was not possible. The clauses dealt with the treatment of children on arrest, before the court, and the release of a child. She explained the provisions around release of a child, by a police officer, into the custody of a parent or “appropriate adult”, and the circumstances in which this would be done. She also briefly set out the bail provisions. In terms of clause 22, a child who had been accused of a Schedule 3 office may be released into the care of an adult, but where this was not done, this must be reported in writing to the Preliminary Enquiry, with an explanation of why the child was not released.

Clause 24 dealt with release after a Preliminary inquiry and set out certain factors to be taken into account, which Ms Skhosana set out in detail, including what would happen if the child failed to appear. The Bill relied almost entirely on the CPA regarding release on bail, which would require considerations into the interests of justice, the parents' ability to pay the amount set for bail, or other conditions.

The Chairperson noted that a child might come from a rural area, where there were no street names or proper addresses. There might also be some cases where the parent would not accept responsibility for the child. He asked what would happen in those cases.

Mr M Mzizi (IFP, Gauteng) referred to clause 24(1)(b). He did not think that releasing a child on “own recognisance” was practicable, as he pointed out that the Bill was dealing with children, and a child would not have any responsibility to appear.

Mr Bassett noted that this was dealt with in Clause 22. A police official had quite limited discretion around release. A child committing a schedule 1 offence would be released into the care of a parent or appropriate adult, unless he was not available, or unless there was a risk that the child may be of danger to himself or any other person. In this case a child could be kept in detention in a police cell for the first 48 hours. Clause 22 tried to ensure that children were released where at all possible. A policeman not releasing a child must give a full report stating why the child was not released. This attempted to ensure that mechanisms were put into place.

Adv Said acknowledged that many children did not have identity documents. Where this was so, there were provisions into clause 90, to note that the child should be registered. The system, as it found children without identity documents, would attempt to register them.

Ms Nxumalo noted that during assessment the probation officer would try to estimate the age and locate the parents - and if that failed an “appropriate adult” (as discussed earlier) would be found, who had a relationship with that child. If all else failed, then the option would be to send the child to a youth care centre.

Mr Bassett summarised that clause 24 was based on the CPA Act. The presiding officer would release a child into the care of an appropriate adult. The release on "own recognisance" must be shown to be in the interests of justice, and was only for Schedule 1 and 2 offences. The Court must be satisfied that it was in the interests of justice to do so. He would think that this clause would be used sparingly in practice. The interests of justice would include the interests and safety of the community and the seriousness of the offence.

Ms Patricia Whittle, Parliamentary Researcher, asked when it might be necessary to transport  children with adults, and what precautions would be taken.

Adv Said answered that perhaps this could be answered in detail by the SAPS.

Mr Bassett noted that this might occur if, for instance, a child had to be transported every 14 days, where the distances were enormous, and where, on the day of his appearance, there was also an adult needing to be taken to court, but only one vehicle. The clause specified that there must only be allowed in exceptional circumstances, and the Court must received a report explaining why this was happening.

Adv Said noted there were 31 secure care facilities, and more might still be designated. In order to minimise transportation problems, the preliminary inquiry should ideally be located in such facilities, by proclaiming a seat of the Court in the facility, to minimise travelling and trauma to the children.

Ms Skhosana described clause 26. She noted that a child of between 10 and 14 must be detained in a child and youth care centre, unless this was impossible. For a schedule 3 offence committed by a child over 14, where this was not an option, the child should be kept in police cells.

Clause 28 provided for children in police custody. They must be treated in a manner suitable for their needs, including the provision of medical care. Each police station was required to report the details of a child in detention, clearly distinguishable from adults.

Clause 29 set out the factors to be taken into consideration when placing in a child and youth care centre, including the age, he appropriateness, and the security. A child could only be placed in prison if over 14 years of age, and for a Schedule 3 offence.

The Chairperson asked why children were committing violent crimes.

Ms Nxumalo said that there were various reasons. These included lack of parental care and supervision and family disintegration. Children might abuse substances and engage in violent crime. Those who were victims of poverty might commit economic crimes. A child heading households could struggle for survival and engage in unlawful activities, either seeking refuge from the worries, or be driven to prostitution or theft. 

Adv Said responded that there had been no State-supported research. The question why anyone committed crime at any level was still open to debate. She added that poverty, lack of employment and lack of educational opportunities were also factors. Many children were dropping out of school and becoming involved with drugs and alcoholism,. Lack of positive role models, the high levels of single parent households, often with inadequate supervision, the gang environments and increasing numbers of adults using children to commit crime were further possibilities. The apartheid system had traumatised everyone. In 1992 a number of children had access to arms as part of the struggle, but used these weapons to commit other crimes, leading them to a cycle of criminal violence. Many other countries, including the USA, had tremendously institutionalised and serious gangs. The way children saw the State responding to violence, or depictions in films and the media, were also important.

Ms Skhosana described the provisions of clause 30, noting that a child could only be placed in prison if the Director of Public Prosecutions (DPP) issued a certificate confirming that there was sufficient evidence to institute a prosecution against the child. This would only relate to an offence referred to in Schedule 3. A list of factors needing to be considered by the presiding officer was included. Clause 31 set out that where an error had been made regarding placement of a child, the person who recognised the error must refer the child back to the presiding officer no later than the next court day for the error to be corrected.

Chapter 5
Ms Skhosana noted that chapter 5 dealt with the assessment of the child. Every child alleged to have committed an offence must be assessed by a probation officer, unless dispensed with under clause 41. This assessment must take place by a probation officer within seven days of the notification from the police official that a child had been handed a written notice. Where the child was under the age of 10, a probation officer must assess the child within 7 days of the notification from the police official.

The purposes of assessment were set out in clause 35, and clause 36 dealt with the confidentiality. Further details as to where it must be conducted, who must attend, and the powers and duties of the officer were also contained in this Chapter. The requirements around the report were set out in clause 40. If a child was to be detained the assessment report must contain a recommendation as to where the child should be detained, based on whatever would be in the best interests of the child.

Discussion
The Chairperson posed a question relating to Clause 36 that set out the confidentiality of the assessment. He noted that in terms the Sexual Offences Act, a list was published with the names of people that committed sexual offences. He questioned what would happen if a child was to be named on the list, and how this would relate to clause 36, which set out that information obtained at an assessment was confidential, and that such information was inadmissible as evidence during any bail application, plea, trial, or sentencing proceedings.

Ms Skhosana replied that clause 36 dealt with the information that surfaced in relation to the assessment, and that the discussion between the probation officer and the child was seen to be confidential. The information in the register of sexual offences was information that already existed in the public domain, because the offender would have been convicted of an offence in open court, and therefore was not covered by the provisions of clause 36. She said that the information was allowed at the stage of the preliminary enquiry, as it related to the nature of the proceedings. This was supposed to be more informal and in the nature of a round table discussion, and not as adversarial a process as would be conducted during a trial.

Adv Said noted that this Bill brought about an inquisitorial and informal system, as opposed to the adversarial system of the past.

The Chairperson then referred the Department to clause 33, which stated that no child could be placed in leg irons. He was concerned what would happen in a case where a child was very violent, very dangerous and a flight risk. He questioned who determined what restraints should be used.

Ms Skhosana replied that that the provision also provided for exceptional circumstances where the police officer would determine if leg irons were to be used.

Mr Bassett noted that leg irons were totally prohibited, and stated it would be better if the police official used handcuffs only.

Adv Shireen Said, Chief Director: Vulnerable Groups, DOJ, drew the Committee’s attention to the Preamble of the Bill that stated South Africa’s obligations to the international and regional instruments relating to children, paying particular reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. These protected children from torture degrading and inhumane treatment or punishment. She said that the historical legacy of the criminal justice system was one that demeaned an accused and denied rights to him or her. The Constitution, through the Bill of Rights, now enshrined the right to dignity. This Bill was aimed at redressing past violations to the dignity of children, as it was important to ensure that children be treated with due regard and respect in order for them to become productive citizens of the country, and not get caught up in the cycle of recidivism.

The Chairperson asked for further clarity on the clause relating to the seven day period for assessment.

Mr N Mack (ANC Western Cape) questioned the accommodation of homosexual and lesbian children, and asked if provision was made for lesbians, gays and transgender children.

Adv Said noted that the Constitution protected the right of people to choose their sexual orientation, and there were many categories of protection under the Equality Act, so there was a need to bear all the different categories in mind. Mentally disabled children were another particularly vulnerable category. A person would be born with either male organs or female organs, and that was referred to as sex, not gender. Gender was a social construct. Yet another component of the lesbian, gay, bisexual, transsexual and inter-sexed people (lgbti) group were those children born with both set of genitals. The Department of Home Affairs would register a person according to what sexual organs that person had. When dealing with the transporting of children a range of factors would have to be considered, but usually boys were transported with other boys, and girls with girls. There was a need to sensitise the country to the issues faced by the lbgti group, but it must be borne in mind that the Constitution protected all people. She found some of the comments a cause for concern..

Mr Mack enquired if preference was given to what was best of the child or whether the preference was what was in the best interest of justice.

Mr M Mzizi (IFP Gauteng) questioned Clause 36 and asked for clarity why the information obtained in an assessment was inadmissible as evidence. He questioned the purpose of assessment if such information may not be used.

Ms Nxumalo replied that her understanding of Clause 36 was that information was confidential and may not be used outside of the process of the Court for other purposes against the child or the family itself.

Mr Kombisa Mbakaza, Senior State Advocate, National Prosecuting Authority, stated that the purpose of assessment was to assist the prosecution when a child was in conflict with the law. He noted that during the assessment a child was expected only to take responsibility, and not to make any admissions on the evidence. The taking of responsibility was not an admission in law and this was the reason why the court could not use this information for other purposes

Mr Bassett further stated that Clause 36 set out the nature and purpose of an assessment. It was not a court process, but it was trying to encourage the child to open up at the assessment. The purpose of the preliminary inquiry was to try to get the child to talk, so that the root cause of the problem could be discovered, in order that the relevant parties could make the proper decisions when you getting to court. That was another reason why this information was inadmissible as evidence during bail applications, plea or trial.

Ms F Nyanda (ANC Mpumalanga) Asked for clarity on Clause 36, as regard the time restraint of 3 months, and how this related to a Schedule 3 offence.

Ms Skhosana replied that the 3 month time restraint related to the person contravening the confidentiality of the clause, and not to the type of offence committed.

Chapter 6
Ms Skhosana continued with her briefing, speaking to Chapter 6 of the Bill as it related to the diversion by the prosecution. In the case of a Schedule 1 offence and there was a prima facie case, the prosecutor may only divert matter to a magistrate in chambers who then conferred and make the diversion a court order. She said that if it appeared that the child was in need of care and protection under the Children’s Act, the matter should not be diverted, but referred to a preliminary inquiry, for consideration whether the matter should be referred to a children’s court. The prosecutor could take into account whether there were records of previous diversions. If the prosecutor decided not to divert the matter, then he or she must immediately make arrangements for the child to appear at a preliminary inquiry referred to in Chapter 7.
 
The Chairperson intervened to state that this was a welcome clause. He related the story of children in Tzaneen who stole mangos and avocados and were subsequently put in prison for theft. He stated that it would have better for this matter to have been diverted, as imprisonment for such a minor offence was excessive.

Chapter 7
Ms Skhosana then continued with Chapter 7, noting that it dealt with the Preliminary Inquiry requirements. She described the preliminary inquiry as an informal pre-trial procedure, regarded as the child’s first appearance in court. She spoke to the objectives of the preliminary inquiry. This included the consideration of the assessment report of the probation officer to establish if the matter could be diverted before plea and to encourage the participation of the child and his parent. It also dealt with the persons who attend the preliminary inquiry and the consequences related to appearance at the preliminary inquiry.

Clause 47 set out the procedure relating to holding of the preliminary inquiry. The inquiry magistrate must conduct the inquiry in an informal manner and the purpose and inquisitorial nature of the preliminary inquiry must be explained to the child, as well as what immediate procedures would be followed. The information that needed to be presented before the inquiry magistrate was set out.

 Clause 48 dealt with the postponement of the preliminary inquiry and stated that it could not be postponed for a period exceeding 48 hours in a case where a child was in detention. Clause 49 set out the orders that could be made at the preliminary inquiry and Clause 50 related to the referral of the children in need of care and protection to the Children’s court.

Discussion
Mr Mack questioned what would happen if the child, after being placed in the care of the parents , was taken out of the country. He wanted to know it the Chapter covered extradition of the child.

Ms Skhosana replied that the normal rules relating to the Criminal Procedure Act would apply in that instance .

She also replied to the relationship between assessment and the preliminary inquiry. The assessment was meant to bring more information to the preliminary inquiry

The Chairperson asked a question about Clause 44, referring in particular to the term of “an appropriate adult” who could stand in if the parent was absent. He disliked this term, and asked for consideration of a better term.

Dr F Van Heerden (FF+, Free State) questioned who would determine whether it was in the best interest of the child to have legal representation.

Adv Said replied that that there was a clause in this Bill that prescribed for all children to have legal representation at all times, even if child indicated that she or he did not want the representation. Furthermore she mentioned that the “ best interest” was a debatable and dynamic concept that required further deliberation at a later stage.

The Chairperson requested that it was imperative that SAPS and Department of Correctional Services be present at the following day’s deliberations

Mr D Worth (DA, Free State) raised a question as to what would happen in the case where parents laid a criminal charge against their own child. He related the incident of a child who took his parents’ car for a joyride and then overturned the car. The insurance company had stated that no payment would be made, because the child did not have a driver’s licence, unless the parents considered instituting a criminal charge against the child. He asked if the Bill would speak to such an instance.

Adv Said stated that this needed to be taken up with the insurance company, but if they were to insist on a criminal charge, she would advise that there should be conferring with the presiding officer at all times explaining the background to and merits of the case. She hoped that the matter could be dealt with individually, as it clearly differed to matters where significant criminal intent was shown.

Chapter 8
Ms Skhosana continued with Chapter 8, noting that this chapter set out the objectives of diversion, when a child could be considered for diversion, the diversion options and further details around programme Clause 51 set out the objectives of diversion, which were basically to deal with a child outside the formal criminal justice system, whilst encouraging the child to be accountable for harm, promote reintegration, promote reconciliation, encourage victim recompense in some symbolic way, reduce the potential for re-offending and prevent the child having a criminal record. |

Clause 52 read that before diversion could be considered, the child had to acknowledge responsibility for the offence; there must be a prima facie case against the child; the child and his parent must consent to the diversion; and the prosecutor must approve that diversion take place. The victim must also be given the opportunity to comment, and there should be consultation also with the police official responsible for investigating the matter.

Clause 53 of Chapter 8 set out numerous diversion options, which were divided into two levels. Level 1 diversion options were used in cases of a Schedule 1 offence and level 2 diversion options were used for a Schedule 2 or 3 offence. There were also time periods regarding the duration of the diversion option. In the case of a Schedule 3 offence the Director of Public Prosecution (DPP) may, in writing, indicate that the matter be diverted if exceptional circumstances exist, as would be determined by the National Director of Public Prosecutions in the national directives. She explained that the DPP may only indicate that a matter be diverted after he had afforded the victim an opportunity to express a view on whether the matter be diverted or not, where it was reasonable to do so. The DPP must also consult with the police official responsible for the investigation of the matter. The DPP could not delegate his power. If he indicated that the matter may be diverted; the presiding officer must make an order of court for the diversion to take place.

Clause 54 also set out how the selection of the diversion option would occur and what factors were taken into account. These factors included the child’s cultural, religious and linguistic background, the education level of the child; the proportionality of the option recommended to the circumstances of the child, the nature of the offence, and the interests of society. The child’s age and developmental needs were also taken into account.

Ms Skhosana further stated that the diversion option may be used in combination. In the case of a Schedule 1 offence, level 1 diversion options as set out in clauses 53(3) would apply. These could be used in combination. In the case of a Schedule 2 or 3 offence, level 2 diversion options as set out in clause 53(4) were applicable, and may also be used in combination. In addition, the presiding officer may also develop an individual diversion option which may be more suitable for the child.

Clause 55 set out comprehensive minimum standards applicable to diversion, where diversion options could be structured in such a way so as to strike a balance between the circumstances of the child and the nature of the offence and the interests of society. Diversion programmes must where reasonably possible impart useful skills, include a restorative justice element; include an element that sought to ensure that the child would understand the impact of his behaviour; and measuring of its effectiveness.

Clause 56 set out the provision and accreditation of diversion programmes and diversion service providers. It also provided that the Cabinet member responsible for social development create policy frameworks to develop capacity within all levels of government to establish, maintain and develop programmes for diversion. A system for accreditation must be maintained. There must be availability of resources to implement diversion programmes. It also set out that the accreditation system must contain a number of mechanisms and criteria as listed in the clause. An accreditation certificate would be valid for four years, a quality assurance process must be conducted, and the particulars of each diversion programme must be published in the Government Gazette. This was to show that diversion was not a soft option.

Clause 57 also set out the monitoring of compliance with the diversion order. A magistrate must identify a probation officer to monitor the child’s compliance with the diversion order. If a child failed to comply, the probation officer had to report back to court in writing. If the probation officer had failed to monitor the child’s compliance, the magistrate must bring the finding to the attention of the appropriate authority, in order to take the necessary action and conduct an inquiry into such failure. The probation officer must, when a child had successfully complied with a diversion order, submit a prescribed report to court.

Clause 58 set out that if the child failed to comply with the diversion order, the magistrate may issue a warrant for the arrest of the child, or summons the child to appear in court. The magistrate then had to inquire into the reasons for the child’s failure to comply with the diversion order and make a determination as to whether or not this failure was due to the fault of the child. If the child was not at fault, the court could continue with the same diversion or apply another diversion option. If it was the child’s fault, the prosecutor could decide to proceed with the prosecution, or decide on a different and more onerous diversion option.

Clause 59 set out the legal consequences to diversion. If a matter was diverted and the diversion order complied with to completion, then a prosecution may not be instituted on the same facts. It also set out that a diversion order did not constitute a previous conviction as referred to in the Criminal Procedure Act (CPA). No private prosecution could be instituted into this matter.
 
Clause 60 set out that the Director General of Social Development was required to establish and maintain a register of children in respect of whom a diversion order had been made. The purpose of the register was to keep a record of particulars of the children for the access of probation officers, police officials, presiding officers or other court officials.

Clause 61 and 62 dealt with two specific diversion options; the first being the family group conference, which sought together the child and victim and their families, to develop a plan as to how the child could redress the effects of the offence. The second was victim-offender mediation, to be convened by a probation officer or a diversion service provider.

Discussion
The Chairperson asked for clarity regarding the DPP, who could not delegate powers. He was concerned that the matter might stand over or not be dealt with at all.

Ms Skhosana replied that the DPP could not delegate the power downwards, below him to an official and if a DPP was not available there should be another official acting as a DPP who would be able to exercise that power.

Mr Bassett stated that this question deserved further explanation. He said that clauses 41 and 42 were among the most crucial provisions of the Bill dealing with the issue of diversion. He explained that there were two levels at which the decision could be made. If a child had committed one of the less serious offences in Schedule 1 and 2, the prosecutor at that particular level could make a decision as to whether to divert the matter or not. The DPP would only become involved where the child had committee a Schedule 3 offence as the decision to divert a serious matter must be taken at a higher level, and only under exceptional circumstances. Because the offence and the decision were of such a serious nature there was a specific provision made that the DPP may not delegate his powers to a person below him. Clause 48 (4), dealing with the postponement of preliminary inquiry for a period not exceeding 14 days, could also have a bearing on the decision of the DPP.

The Chairperson further questioned the use of some of the terminology, especially with regard to the diversion options of family group conferences and victim-offender mediation. He asked for reasons why such terminology was used.

Mr Bassett addressed the Chairperson’s question as to who might attend preliminary inquiry and noted that Clause 44(1) said that the child, the child’s parent and the magistrate might attend the preliminary inquiry. Under subclause (3 ) the inquiry magistrate could exclude the parents, for instance in circumstances where the parents might be involved in the crime as well.

Mr Bassett also addressed the terminology of family group conference and victim-offender mediation. He stated that these terms were being used elsewhere in the world, particularly in Australia and that South Africa had just adopted them. These clauses were understood internationally.

The Chairperson asked about the legal consequences of diversion, in clause 59, asking in particular if the record of diversion had the same result as a criminal record, that it applied for all time, and if this was likely to affect the child’s chances of employment and the like in future.

Mr Bassett noted that clause 60 required a register of diversions to be kept. If the diversion order was completed successfully, the diversion order did not qualify as a previous conviction. However, if a child committed a further offence after successfully completing a diversion, this register could be used as one factor impacting on the decision not to grant a second diversion order.

Mr Mzizi asked if a preliminary inquiry was similar to the preparatory examination. He also noted that courts were conducted along an adversarial format and did not use the inquisitorial system. He wondered if the system would allow for the options suggested in the Bill.

Mr Bassett stated that this Bill could be seen as the starting stage of a more inquisitorial system to be placed into South African law, as everything would be more informal and the presiding officer would ask more questions, and round table conferences were held. He also explained that the preliminary inquiry was not equivalent to a preparatory exam.

The Chairperson asked if, during inspection visits, a probation officer would enter the family home, and was worried about this being an invasion of privacy and family time.

Ms Nxumalo replied that the probation officer tasks would be set out in the Order, and this would include how often the visits must take place. She further explained that it was considered best practice to drop by unannounced, in order to ascertain a true reflection of the circumstances.

The Chairperson reiterated that this could be an invasion of privacy during family time

Ms Nxumalo reiterated that this was an Order of Court, which had to be complied with.

Adv Said emphasised that it was important to note that an assessment process would have taken place that would have included the background of the child. It might be that the entire family network was dysfunctional. She further stated that probation officers were specialists, they were social workers working specifically in this area and they were very well versed in how not to invade privacy unduly whilst carrying out their duties in terms of the Order of Court.

The Chairperson interjected that he was not sure who was being monitored  - the child or the parents.

Adv Said replied that the child was being monitored but that it was important to remember that monitoring must be done in a reasonable time within acceptable time periods. It was also important to note that an offence had been committed and that this was an Order of Court that had to be carried out.

Ms Nxumalo stated that there might be a connotation of invasion because this probation officer had to report back to court. However, she reiterated that these types of visits must be conducted. 

Mr Bassett reminded the Committee that Clause 52 stated that the parent and the child must consent to the diversion. Therefore, the most appropriate diversion action would have been discussed. The parent and child would consent to that particular form of diversion.

Mr B Ntuli (ANC, Kwazulu Natal) expressed his concern regarding the numbers of the probation officers, fearing that might not be enough time, resources and people to manage all these offences.

Ms Nxumalo stated that probation officers were qualified social workers; and social work had been declared a scarce skill in South Africa as many social workers were being lost to overseas, and therefore there were not enough professionals. There were 484 probation officers who were working only with children, and not doing other work in other fields. She also explained that there was another category of Assistant Probation Officers (APOs) who would assist probation officers in terms of making follow ups and other administrative tasks. They would also conduct visits and monitor families so that probation officers could concentrate on the statutory obligations of making sure that Bills were implemented. The Department of Social Development was still in a recruitment drive to obtain more probation officers if this Bill was to be promulgated. The Department had made a request to National Treasury for more funding in 2009 and 2010 to take more students on board. The Department still needed a further 441 probation officers and 772 assistant probation officers. It also wanted to appoint 255 supervisors to support the probation officer, on a ratio of one supervisor to five probation officers, which was considered suitable in terms of quality, supervision and support.

The meeting was adjourned.