Child Justice Act section 97 regulations: briefing

Meeting report

Opening Remarks 

The Chairperson wished everyone a very good year although the year had been running for some time. He remarked that everyone looked well and on a lighter note wished everyone a happy Valentine’s Day. He said he did not believe in Valentine’s Day as he was very conservative.

Briefing on Amendments to the Regulations relationg to Child Justice Act

Mr Lawrence Basset, Chief Director: Legislative Development, Department of Justice and Constitutional Development (DoJ&CD), said the Department would talk about the  Regulations proposed in terms of Section 97 of the Act and added that the Regulations were very technical in nature.

Ms Thandazile Skhosana, Senior State Law Adviser, DoJ&CD, explained that the Child Justice Act, 2008 established a justice system for children in conflict with the law. The Act commenced in April 2010. Section 97(1) of the Act empowers the Minister to make regulations in consultation with other relevant Cabinet members. Section 97(2) required the Minister to table the regulations in Parliament for approval.

Certain sections of the Act, including sections 11, 28, 43, 56, 75, 77, 85 and 97 were amended by the Judicial Matters Amendments Act, 2013(Act No.42 of 2013) and Judicial Matters Amendment Act No. 2014 (Act No. 14 of 2014). Section 28 was amended in response to an observation by the Select Committee regarding the reporting lines within the South African Police Services. Sections 56 was amended at the request of the Minister of Social Development to allow the Minster to delegate her powers in relation to the accreditation diversion service providers to the MEC’s. Section 97 was amended to align it with the amendments to section 11 and to empower the Minister to determine different categories of persons to evaluate.

The amendments to these sections necessitate amendments to the regulations made in terms of these sections to align the regulations with the amendments. Regulation 13 is amended to align it with amendments to section 11 of the Act. Regulation 13 prescribes a form (FORM 2) for the evaluation of the criminal capacity of a child. Form 2 is essentially an order of the court directing the competent person to evaluate the child and report to court on the evaluation. Form 2 is amended to list all five elements of the development of a child which the presiding officer must consider in terms of the amendments to section 11(2). Regulation 21 regulates the content of the report of a complaint referred to in section 28 of the Act that is a complaint that a child has suffered an injury while in police custody. Regulation 21 is amended to align it with amendments to section 28, which now (after the amendment) requires the station commissioner to submit the report to the relevant Provincial Commissioner and a copy to the National Commissioner.  At present the report only goes to the National Commissioner. Regulation 31 is amended to align it with amendments to section 56 of the Act. Regulation 31 prescribes forms (Form 7 and Form 8) to be used as accreditation certificates for the accreditation of diversion programs and diversion service providers. Since the Minister of Social Development is to delegate the power to grant accreditation to MEC’s, the Forms are amended and the certificate is to be issued and signed by the relevant MEC in line with the Minister’s delegation.

The draft Amendments to the Regulations were published in the Gazette for public consultation in February 2016. A common concern received related to the assessment of the different aspects of the development of a child and the draft regulations were revised to address this concern. The Minister sent letters of consultation to the Ministers of Police, Social Development and Health in February 2016, as required by section 97(1) of the Act. The Ministers supported the amendments to the Regulations.

The draft Amendments to the Regulations were tabled in Parliament for approval in terms of section 97(2).

Discussion

The Chairperson asked if any of the Children Rights organisations were consulted when the Regulations were finalised.

Ms Skhosana replied that the Regulations were published for public consultations in February 2016 and the Department received two submissions from organisations that dealt with Children’s Rights.

Ms C Pilane-Majake (ANC) said the criminal capacity age of the Child was an issue that was debated upon in the previous session.

The Chairperson asked Ms Pilane-Majake for her recollection of what came out of that session.

Ms Pilane-Majake replied that that session looked at the age in terms of the provision in the current legislation. Recommendations were made by the Committee. Perhaps Mr Basset would want to talk about it.

Mr Basset said Section 11 stated that the State must prove beyond doubt the capacity of a Child above 10 years and under the age of 14 to appreciate the difference between right and wrong. The Department had a briefing with the Committee around October last year. The Department’s recommendation to the Committee is that the age limit should be brought down to 12 years. There was a query whether this aspect had been taken up with traditional Leadership. The Department was in the process of making a briefing to the National House of Traditional Leaders.

 The Chairperson said the issue was a contentious one and it was about whether the age of capacity could be lowered or not. The Committee was now dealing with arguments which seemed to suggest that an agreement had been reached. Could there be a talk about the regulations to implement the law before there could be an agreement on the substance of the law?

Mr Basset said the Regulations did not impact on the outcome of the eventual recommendation on the age of capacity as they were two separate issues.

The Chairperson asked what then informed the age 10 if there was no impact.

Ms Skhosana replied that the amendment to the Regulation dealt with the element of the criminal capacity that was required to be proved. If the age of criminal capacity was amended or reviewed to be 10-12 years, there would still be need to be proof of criminal capacity for a child under the age of 14.

The Chairperson remarked that in the presentation the Department had talked about international Law and the UN Law. What was the situation in Africa as well as the SADC region? This was an African Nation and this issue should be viewed in an African context. What was the situation in the African Continent?

Mr Basset replied that the Department will make a presentation to the Portfolio Committee after consultations with the Traditional Leaders and in that presentation it would also deal with this question.

The Chairperson said the Department wanted to consult with the House of Traditional Leaders. However, the Queens were the ones who brought up children and there was need to also involve the Queens.

Mr Basset replied that he could not reply to that now but would get back to the Committee later on that question.

Mr Paseka Njobe, Director School Safety, Department of Basic Education, said in terms of consultation with other cabinet Ministers, the Minister of Basic Education was omitted. It could be critical in terms of the records.

Ms Skhosana replied that in terms of Regulation 31 which was amended to align with amendments to section 56 of the Act, the amendment had implications only on the Department of Social Development, Police as well as Department of Health. That was the reason only those Departments were consulted.

The Chairperson said the DBE dealt with Children everyday and should be a voice. The DBE should be included.

 Mr Njobe said in section 97, DBE was specifically listed as the ages discussed were school going ages

The Chairperson said it should be agreed that DBE should be included.

Ms G Breytenbach (DA) said as regards amendment of regulation 21, bullet 1b(4)(c)  “ file a copy of the report and its attachments in the docket”. She asked which portion of the docket was it required to be filed. This information should be made available.

Ms Marga Van Rooyen, Brigadier, Legal and Policy Services, SAPS, replied that as far as she knew, it was filed in the ‘A’ part of the docket.

Ms Breytenbach said she wanted more certainty than “as far as I know”

Ms Van Rooyen replied that there were internal Directors that regulated medical treatment of Children and Adults. It was a matter that concerned the internal Directors. The wording of the amendment would be confirmed and she would report back to the Committee.

Mr W Horn (DA) said forms 7 and 8 only allow the Members of the Executive to sign the accreditation. The Minister of Social Development was no longer allowed to direct the accreditation as that power was delegated to the MECs. This can not be in line with the way the Act was meant to be structured. He proposed that both the Minister and the MEC’s should have the power to grant accreditation

The Chairperson asked if there was any opposition to the proposal

Ms Connie Nxumalo, DDG, Welfare Services, Department of Social Development, replied that DSD was in favour of what Mr Horn had proposed. This was exactly what the Department had requested.

Mr B Bongo (ANC) said he was concerned about the issue of consultation and the role that could be played by Children Rights Organisation. What was the role of NICRO and other groupings around the role of child justice? MECs were Politicians. There was need for technical persons. The consultations had to be increased. The Judicial Amendment Act was not yet in operation because the Regulations were being awaited. What were the implications of those issues that should have been implemented long ago in terms of the Act? These were contentious issues that related to the subject matter.

Ms M Mothapo (ANC) said in terms of consultations, the relevant section of the Department of Justice and Constitutional Development had not done a thorough job. It was a concern that DBE had not been consulted and should therefore be included because it had primary guidance as far as children were concerned

The Chairperson said in the 80’s an organisation called National Children Rights Committee was instituted. It was structured at the township and community levels. There were investigations about violence against women and children in the communities. The Nelson Mandela Children Foundation was born out of it. The question of the child was not a Police or Social Development matter. It was a parenting matter. The development of children had left much to be desired. The approach should be more developmental than looking at which of the children should be punished. There should be an audit of all the Children Rights Organisations. There should be a day workshop. The problem that was faced could not be tackled through criminal legislation. It was a societal matter. It should not be rushed. The Committee was not ready to approve regulations. All relevant stakeholders should be consulted. The Law said the House of Traditional Leaders as well as the Queens should be consulted. There was a need to see the audit of all the organizations consulted.

Ms Pilane-Makaje said she was in support of the Chairperson’s sentiments. If the question of the age of criminal capacity had not been resolved, how would the Regulations be concluded? The Portfolio Committee had earlier submitted that the age limit should be brought down.

Mr Njobe said DBE would delve deeper into diversion programmes and was also classifying this chapter under inclusive education. Learners were of special needs not because of the incapacity of the body but the environment which they found themselves. The DBE was doing a lot of curriculum repackaging. A workshop might assist to understand the environment.

The Chairperson said the root problem should be addressed. There was a need to get an audit of all Children Rights Organisation. Which other Departments should be included. All concerned Departments would be directed to prepare their inputs on all questions including questions on criminal capacity. It should not be too technical. Simple accessible language should be used so that parents and children could be taken along. A situation where children were awaiting trial while still in school should be avoided. There would be a workshop and Community Radio Stations and papers would be invited

Mr Basset said the Department was in agreement to that and it sounded good. He would accept that the workshop was organised by the Parliament

The Chairperson said the Committee Secretary will consult with the relevant Departments to find the best suitable time that accommodated everyone. He thanked every participant for their time, preparations as well as contributions. This meeting had just helped the Committee to be part of the process that would be in the best interest of the children of South Africa

The meeting was adjourned.