Jurisdiction of Regional Courts Amendment Bill & Child Justice Bill: Deliberations

Meeting report

Jurisdiction of Regional Courts Amendment Bill (the Bill): Deliberations
Mr JB Skosana, Director: Policy, Department of Justice, brought the Committee up to date with the meeting that the Department of Justice (DoJ) held with the Judicial Officers Association of South Africa (JOASA), which was a voluntary organisation representing the interests of magistrates and judges. He emphasised that during the discussion most of the concerns had been addressed, leaving only two issues outstanding. The first issue related to the LLB requirement for appointment, and the second to the training process. It was decided that the former issue should remain a topic of discussion in the broader context of transformation of the judiciary and should not delay the implementation of the Bill. The second issue related to training. Most of those making submissions had supported an integrated training programme under the aegis of the Magistrates Commission.

Mr Johan de Lange, Principal Law Advisor, DOJ, interjected to illustrate the contentiousness of the LLB degree, by referring to a report on the need to assess whether there should not be a new LLB degree. There had been some concerns as to whether the current degree sufficiently equipped judges, and whether it was not undergoing erosion.

Mr Skosana noted a representation made by Mr J Claasen, President of the Southern Divorce Court. His presentation was largely focused on status, and on how the Bill in its present form would affect him. Mr Skosana noted again that the regional court structure was not being phased out or abolished, but instead that the divorce courts were to be integrated into mainstream court procedure. The integration process would not put presiding officers in the divorce court in a worse position then they currently occupied.

Mr de Lange noticed that Mr Claasen seemed to be at odds on the question of whether he should be regarded as regional court magistrate or regional court President.  He was presently regarded as the former.

Mr Jeffery stated that Mr Claasen’s letter was not concerned with the Bill itself, so much as with his grading and status, and he had blamed the DoJ for this. Mr Jeffery explained that the regime for grading and remuneration was in fact the decisions of the Moseneke Commission, and this was implemented by the President with the concurrence of Parliament. He suggested that the Moseneke report for October 2007 be obtained to see what salary increase was approved.

It was agreed to obtain the report.

Mr J Jeffery (ANC) wanted to know the difference between the new LLB degree and the old B.Proc degree. Mr Jeffery noted that the LLB used to take five years to complete, as it was regarded as a postgraduate degree after a BA or B Comm, but could now be completed in four years.  He thought the reason for the 4-year LLB was to allow for greater equity, so that everyone had a standardised qualification, and the LLB was not limited to those who could afford to go to university for five years.

Mr G Magwanishe (ANC) noted that some critics referred to the new LLB as inferior compared to the old, simply because of the four-year length. He noted that in most developed countries, a law degree took four years, and this was fairly standard in most countries in Africa. In Britain it took three years. He did not know of anyone objecting to the length of the English LLB and questioned how the length made it inferior.

Mr Skosana gave an extensive explanation on the LLB programme, noting that previously there were separate degrees for separate legal arenas, but that the LLB was now intended as the starting point to enter any branch of the legal profession.

Imam G Solomon (ANC) noted that the divorce courts ran smoothly, and there was no reason to interfere with what had been proven to be a success. He asked if there was any guarantee that the same levels of service would be maintained.

Mr Skosana emphatically stated that the divorce court would come to an end, but that its work would continue through the same programmes. He said that the Bill was not removing maintenance issues, and that only divorce matters would receive an incremental increase in jurisdiction by being incorporated into the Regional Courts.
 
Mr Jeffery, referring to the issue of consultation, noted that the Department of Justice had engaged in specific or direct consultation with JOASA and Association of Regional Magistrates of South Africa (ARMSA) only through the Magistrates’ Commission. He likened this to having a meeting where there were three or four ANC members present, and then claiming that the ANC had been consulted. This clearly would not be the case.

The Chairperson pointed out this was extensively covered whilst Mr Jeffery was away.

Mr De Lange listed two minor amendments made to the Bill, by way of correction of two typographical errors on Clause 29(1) and Clause 13(1).

Mr de Lange noted that there had been concerns from many parties that the Department would be shooting itself in the foot by extending jurisdiction to courts that were already overburdened. He responded that civil jurisdiction would be extended on an incremental approach as capacity developed.

It was agreed the Bill would be taken to study group next week, where it would be finalised. It would only go to the House towards the end of May.

Child Justice Bill (the Bill): Continuation of deliberations
The Chairperson noted that the Committee would continue to discuss objections received on the Bill and to hear the Department’s responses to those objections. The Committee last discussed the Bill on 14 March 2008, where it had considered clauses 1 to 10, as well as the preamble.

The Chairperson opened by summarising the current position of the Committee in relation to the primary issues of the Bill.

He said that Department of Social Development (DSD) could provide necessary evidence as to its capacity to implement the Bill and that serious consideration should be given to assessment for all children. If the Department disagreed, then there would be an onus on that Department to provide evidence to the contrary. Conclusive proof, and not merely the say-so, should be given.

The Chairperson noted that the preliminary view of the Committee was that all children should be considered for diversion, but that certain categories of crime or age would preclude certain children from such an order. One option would be to leave prosecutorial guidelines to the National Prosecuting Authority (NPA). The second option would be to set out provisions relating to prosecutorial guidelines provisions. The Committee was not in a position to state a minimum age for criminal capacity at this point. Serious consideration would still need to be given to this issue. The matter of assessment for all children would have to be balanced against State capacity.

The Committee then continued on its clause by clause deliberations.

Clause 11
Mr Lawrence Bassett, Chief Director: Legislation, DOJ, stated that Clause 11 was one of the fundamental provisions of the Bill, as it established the streams available for a minor offender. There were five streams, which he summarised as follows:
- if the child was below ten years the child would not be considered as possessing criminal capacity, and would be referred to a probation officer.
-if the child was over 10 years and was accused of committing an offence listed in Schedule 1, than the matter could go directly to the prosecutor, for consideration for diversion, and need not go to a preliminary enquiry.
-if the child committed a Schedule 1 offence, but the prosecutor did not divert the matter, or if the child had committed a Schedule 2 offence, or an offence under Part II of Schedule 3, then the matter must be referred to a preliminary enquiry for consideration for diversion.
-if a person was older than 18 but under 21, and had committed a Schedule 1 or 2 offence, the matter was referred to the prosecutor for consideration for diversion.
-if a child committed an offence under Part II of Schedule 3 or sections 2, 5, or 6, or was not diverted, then the child would proceed to trial in terms of Chapter 8.

The Chairperson said that it seemed that this established a more punitive system for children, as diversion was also available to adults, but without any statutory restrictions. He further enquired as to the constitutionality of this.

Mr Bassett replied that it was the first piece of legislation to provide a framework for diversion; there was no regulation for diversion currently in place.

The Chairperson then asked if it was the intention of the Department to draft rules for diversion for adults.

Mr Bassett conceded that it was not discussed in that light, but that to negate the possibility of constitutional litigation, the Department should consider drafting legislation governing diversion for adult offenders. However, diversion for child offenders did take place within a special framework for child offenders. He would consult further and seek a legal opinion on the matter.

Ms Jacqui Gallinetti, Coordinator, Children’s Rights Project, submitted that Clause 11 should be deleted in its entirety. The reasoning was that if all were assessed, all children would go to a preliminary enquiry and all would be eligible for diversion, subject to prosecution guidelines, so therefore there would be no need for this clause. This clause did not appear in the 2002 Bill.

The Chairperson noted an objection from Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) over the fact that the Bill precluded children over 14 who had committed consenting sexual acts from diversion.

The Chairperson suggested that the subtext was that sexual offences were regarded as being more serious than other crimes.

Ms Gallinetti agreed that sexual offences were being regarded in a more serious light. However, she was of the opinion that there should be no differentiation between children of different ages in this context, as a child sex offender was still a child sex offender no matter what the age. She also referred to an incongruity with the Sexual Offences Act.

The proposed amendments were rejected.

Clause 12
Mr Bassett said that Clause 12 revolved around the responsibility of a police official where the child’s age was uncertain. Where the age was unknown but an official had reason to believe that the person was a child, he or she should be treated as a child and released from detention until an age estimation at a preliminary enquiry had been made.

He read out a comment from the South African Police Service (SAPS) who had commented that they would like to do an assessment of a child’s age prior to the preliminary enquiry, to avoid the situation where children might be incorrectly detained with adults.

Ms Gallinetti said that this would strengthen the argument for all children to be assessed.

It was agreed to incorporate an amendment to this effect.

Clause 13
Ms Thandazile Skhosana, State Law Advisor, noted that Clause 13 empowered a probation officer to make an estimation of a child’s age when the child’s age was unknown. The probation officer could make use of any available evidence, including a previous determination of age made under the Act, the age provided by the parent, guardian or custodian, the statement by the child and baptismal certificates and school reports. If further evidence emerged, the age estimated may be altered at a later date.

The Chairperson noted that a proposal was received from the Legal Aid Board (LAB) which stated that the probation officer should fully motivate the age estimation and that the words “should evidence to the contrary emerge at any stage before sentence” be inserted after the words” be recorded”. He further noted that the DoJ had responded that this had already been covered.

Mr Bassett responded by saying that the DoJ did not have a problem with these proposed amendments.

Mr Jeffery said that the probation officer had to do the age estimation on a prescribed form, which allowed for reasons to be stated. He regarded the LAB position as being overly cautious. However, he did agree with the insertion of the words in relation to evidence to the contrary, as it provided greater clarity.

It was resolved to reject the first part of the LAB proposal in regard to motivation of the age, but to insert the second part of the proposal in relation to evidence to the contrary.
 
Clauses 14 & 15
Ms Skhosana continued onto Clause 14, which provided that during preliminary proceedings, the probation officer may determine the age. The clause allowed that officer to receive relevant information or refer to a medical practitioner if necessary.

As a point of order, Mr Jeffery inquired whether it was necessary to go through each clause, if there were no amendments.

The Chairperson said that it was necessary for the Committee to satisfy themselves as to each provision of the Bill.

Mr Bassett pointed out that Clause 15 essentially said the same thing, but it related specifically to cases where there might be uncertainty as to whether a person was below or over 18.

The Chairperson asked under what circumstances, if any, would a child end up in a Magistrate’s Court.

Mr Bassett replied this could happen when the co-accused were adults.

The Chairperson asked if the same magistrate would handle both the preliminary enquiry and the case itself.

Mr Bassett replied that Clause 54(a) covered this, but his understanding was that this could happen.

Dr Anne Skelton, speaking on behalf of the Child Justice Alliance, stated that to her knowledge, this could happen provided that no incriminating disclosures were made to the magistrate at the preliminary inquiry.

Members agreed that these clauses were acceptable.

Clause 16
Mr Bassett explained that if at any stage of the proceedings, the presiding officer was satisfied  that the age on the record was incorrect, the age must be altered in accordance with Clause 14, and the child must then be dealt with in terms of the rest of Clause 16. Sub-clause (2) stated what must be done if an error as to age occurred in a diversion scenario. Sub-clause (3) was concerned with errors where a person had not pleaded to a charge. Sub-clause (4) stated what was to occur when errors as to age occurred after pleading to a charge. Sub-clause (5) was a catch-all clause, to deal with exceptional cases. Sub-Clause (6) indemnified a person who estimated a child’s age.

The Catholic Institute of Education (CIE) had commented on clause 16(4)(c), stating that it did not make a distinction between children aged 10 to14 and was in contradiction with the rules that governed this specific group.

The Committee was in agreement with the CIE.

Ms Gallinetti, on behalf of the Child Justice Alliance (CJA), stated that that the application of Clause 16 could result in illogical consequences. She gave the example that a child might have been found suitable for a diversion programme, and who might already be complying with and benefiting from such a programme. If that person was then subsequently found to be 14 instead of 13, the child could find him or herself having the order rescinded and standing trial. The CJA stated that it believed that such lengthy and complicated procedures could be avoided by allowing all children access to the processes and procedures of the Bill, and not excluding them based on age or offence committed,

Typographical errors on Clause 16(2)(a)(ii) and (6) were also pointed out, as well as an error in 16(4)(c) as the reference should be to “children 14 years or older but below 18”.

Mr Bassett stated that there were some provisions in the Bill with consequences as far as age was concerned. He noted that a child one day after his 18^th birthday would most likely lose the protective measures of the Bill, but that this would be unavoidable.

Ms Gallinetti responded that CJA fully accepted that a child would lose the protection of the Bill once he or she turned 18, but that Bill was regarding some children as being “less of children” than others.

Mr Jeffery said that a clause was needed dealing with errors as to age. The issue would then relate to whether there should be a differential process according to age or offence. This was a matter for a policy decision. Depending which way that policy decision went, then the wording of this clause would either fall away completely or stand.

Further discussion on this point was deferred until the policy issues were decided upon at a later date.

Clause 17
Ms Skhosana summarised clause 17, which discussed the methods of securing the attendance of a child at a preliminary inquiry or child justice court.

The Chairperson enquired about the distinction between a written notice and a written warning. He also sought to understand the meaning of a summons and an indictment.

Mr Bassett explained that an indictment and a written notice were defined in terms of the Criminal Procedure Act (CPA). The former was a formal process to secure the attendance of an accused in a High Court. He added that the issuing of a traffic fine was an example of the latter process.

Dr Lirette Louw, Researcher, DoJ, clarified that a written notice was used for less serious offences, whereas a written warning was for more serious offences.

Dr Skelton indicated that a written warning would provide the police with a practical alternative, and would most likely be used on the spot. Also, she observed that the 2002 version of the Bill did not provide for a written notice and an indictment.

Imam Solomon suggested that the Department restructure the clause so that the most severe method of securing an attendance was listed last.

The Chairperson concurred with this suggestion. He added that the Department needed to convince the Committee why it was necessary to retain the concept “written notice” in the current version of the Bill.

Clause18
Ms Skhosana described the contents of the clause.

Ms Gallinetti argued that the phrase “where circumstances permit” in clause 18(3)(d) was too vague and would allow police to shirk their responsibility to ensure that parents or guardians were notified of a child’s arrest. Consequently, she proposed that the phrase be omitted.

The Chairperson wondered whether the phrase could be retained but put at the end of the clause. He pointed out that it might be necessary for situations where the police could not find any parent
.
Ms Gallinetti maintained that it should be removed altogether.

Dr Skelton contended that the phrase “appropriate adult” was adequate, because it catered for situations where the parent or guardian could not be notified. She added that this happened in extremely rare cases.

Mr Bassett countered that this clause provided a measure of flexibility to respond to the exceptional cases where a parent or guardian could not be notified.

Imam Solomon concurred with the sentiment that the police should inform the parent or if not possible, an appropriate adult when a child was arrested.

The Chairperson expressed the Committee’s current position on the matter, stating that it was inclined to drop the phrase altogether. However, he recognized that there were two additional options; to retain the clause as it existed or to move the phrase to the end of the sentence.

Ms Gallinetti argued that clause 18(1)(b) should be removed because it was superfluous. She reasoned that clause 18(1)(a) already encompassed the provision because it constituted compelling reasons justifying an arrest.

Mr Bassett replied that the clause was not harmful, and that there could be other reasons justifying an arrest.

Dr Skelton believed that clause 18(1)(b) compelled the police to arrest a child even for a petty offence.

Dr Louw indicated that the police had wanted clause 18(1)(a) be revised so that they could also arrest a child if they believed that the child did not have a fixed address.

Dr Skelton rejected this suggestion, and stated that street children would be targeted by such a provision.

The Chairperson instructed the Department and the NGOs to meet, and sort out this technical issue.

Clauses 19, 20 and 21
Ms Skhosana read out the provisions of the different clauses.

Members were satisfied with their content and proposed no amendments to any of the clauses.

Clause 22
Ms Skhosana provided an overview of the clause.

Dr Skelton mentioned that the clause, which differed from the 2002 version of the Bill, was limited to children who committed an offence referred to in Schedule 1.
 
Mr Bassett indicated that this was a decision taken by the previous Committee.

Adv C Johnson (ANC) stated that the Committee should flag the issue, and revisit the clause when it discussed the schedules.

Clause 23, 24 and 25
Ms Skhosana provided a summary of all three clauses.

The Committee accepted clause 23 without reservation.

It was decided that clause 24 would be flagged, and that the Committee would revisit it at a later stage.

After effecting a minor technical amendment, Members endorsed clause 25.

Clauses 26 and 27
Ms Skhosana described the provision.

Mr Bassett mentioned that the South African Human Rights Commission (SAHRC) had expressed concern that detained children awaiting trial did not have access to basic education, and believed that this should be addressed in this particular clause. In reply to this, Mr Bassett stated that the role-playing Departments would be best placed to respond to this concern.

Dr Skelton added that it would not be necessary to include such a measure in this clause because children were not expected to be in police detention for a long period of time. However, she suggested that this be catered for in the monitoring.

It was decided that this issue would be dealt with in greater detail when the Committee met with the various departments who had a role to play.

Ms Gallinetti opposed clause 26(1)(b). She asserted that mandatory placement in prison for children before a first appearance in court was inappropriate. She claimed that adults were not subjected to the same treatment; they were held in police cells prior to their first appearance in court, and only transferred to prison thereafter.

Mr Bassett recalled that this provision emanated form the previous Committee.

Adv Johnson advised Members to flag the issue for discussion in the study groups.

Imam Solomon rejected any provision that had the effect of placing children in a worse situation than adults.

The Chairperson clarified that he would be satisfied if children were placed in a placement facility or police cell before their first appearance in court. However, he too found it problematic for children to be placed in prison during this period, and suggested that the Committee would not agree to such a stipulation unless the Department convinced Members otherwise.

It was noted that clause 27 would be impacted by the outcome of discussions regarding clause 26.

Clause 28
Ms Skhosana articulated the contents of the clause.

Ms Gallinetti explained that Childline was in favour of broadening the term “healthcare”, to include psycho-social distress and neglect. It was reasoned that children did not only suffer physical injury but also mental distress.

The Chairperson agreed with the submission and preferred the insertion of a simpler word than the proposed term “psycho-social”.

Mr Bassett stated that he agreed with the principle, but also warned that the proposal would have resource implications for the State.

Dr Skelton disputed this claim and stated that an ordinary medical doctor would be able to make an immediate psychological evaluation of a child. She also recommended that the term “psychological distress” replace the term “psycho-social distress”.

The Chairperson maintained that he supported Childline’s submission, and would only deviate from this position if the Department produced overwhelming evidence that this would be impractical and too costly for the State.

Ms Gallinetti declared that there were minimum norms and standards in international law and the Correctional Services Act (CSA), which stipulated the conditions for the detention of children. Accordingly, she believed that clause 28(1)(d) fell short of such requirements because it did not allow for the provision of food, water, reading material, adequate clothing, blankets and exercise to children who were in police custody.

Mr Bassett surmised that the question of adequate resources featured strongly behind the exclusion of those services. Moreover, he mentioned that the police would be able to respond to the submission.

The Chairperson stated that it would be onerous on the State if the Committee agreed to all the proposed services. He advised that the Committee exclude “adequate clothing” and retain the remainder of the NGO’s submission.

Clause 29
Ms Skhosana explained the provision.

It was noted that no submissions were received regarding this clause. Likewise, the Committee did not find anything unsatisfactory in the clause and accordingly accepted it.

Clause 30
Mr Bassett guided Members through the provisions in the clause.

Referring to clause 30 (d), The Chairperson wondered what the likelihood was that a child would be placed in prison.

Mr Bassett answered that this would be determined by the seriousness of the offence.

Mr Jeffery requested the Department to compile a comparison of the schedules contained in the Bill and those in the CPA.

Referring to clause 30 (2), Ms Gallinetti contended that no child under the age of 14 should be in held in prison awaiting trial. All children should have the option of being held, while awaiting trial, in a residential facility rather than a prison, irrespective of the offence committed. In line with this thinking, she asked for the clause to be removed and for clause 30 (1)(e) to read: “the child was 14 years or older”. Currently, the Department of Social Services had a programme called Home-based Supervision, which was an alternative to detention awaiting trial for children. Finally, she pointed out that such children were already accommodated at present and could not comprehend why this had to change.

Mr Jeffery sought to understand the existing law for the detention of child offenders under the age of 14.

Mr Bassett quoted Section 29 of the Correctional Services Act (CSA) of 1959, which stipulated that an un-convicted child, under the age of 14, may not be detained in a prison or police cell or lock-up, unless he or she was brought before a court within a period not exceeding 24 hours.

Dr Skelton added that section 29(5) of the CSA specified that a child below the age of 14 could not be detained in prison longer than the initial 24 hours.

Mr Jeffery queried why the Department wanted to make the situation worse.

Mr Bassett clarified that this was a position taken by the previous Committee. It was then felt that the Bill should cater for the possibility of extreme cases involving children under the age of 14.

Dr Skelton explained that in 1994, it was an absolute that no child could be held in prison awaiting trial, and this created a crisis. A special committee was established, which developed secure care facilities. However, the law was amended again, to continue protecting children under the age of 14 but to allow for detention awaiting trial for those children between the ages of 14 and 18. Since that time, the concept of secure care facilities had developed enormously, and was available in all the provinces. She claimed that there was a disproportionate number of children awaiting trial, compared to adults awaiting trial. Children awaiting trial were over-represented, and if this was allowed for children below 14 as proposed in the Bill, this figure would increase.

Mr Jeffery emphasised that the Parliament should only reduce rights based on tangible reasons, and not in terms of theory. He proposed that the Committee repeal clause 29 of the CSA but retain the section dealing with un-convicted children. He added that section 30(2) of the Bill be applied to children between the ages of 14 to 16 years. Lastly, he perceived that the current law was working well and he saw no reason to change it.

The Chairperson agreed with this proposal and said that Committee should follow this direction.

Imam Solomon advised the Committee to be mindful of the cases where children under the age of 14 committed serious crimes.

Ms Gallinetti was adamant that secure care facilities were a better environment than prisons for young children.

Adv Johnson stated that she rejected any retrogressive step that diminished the rights of children; and supported the existing law, which provided for greater protection to them.

The Chairperson proposed that Members of the ANC take the Bill to caucus before the Committee voted on it. He recommended that all the policy issues be thrashed out at that forum and that a decision be taken by a majority vote. In addition, he expressed scepticism about the capacity, competence and credibility of the Department of Social Development and other government departments to deliver the necessary services to children in the secure care facilities.

Clause 31
Ms Skhosana recited the provision to the Committee.

It was decided that clause 31 would appear before clause 30 so as to promote the use of placement in prison as a last resort.

Ms Gallinetti objected to the exclusion of children who were charged with an offence under Part I of Schedule 3, from the possibility of being held in a residential facility rather than a prison while they were awaiting trial, as contained in clause 31 (1). This was a retrogressive step from the present law, which allowed for the detention of children charged with all offences to be held in places of safety or secure care facilities.

Dr Skelton indicated that the current law was stronger because section 29(5) only placed a child in a prison if there was no secure care facility available within a reasonable distance from the court.

Dr Louw indicated that this construction came from the previous Committee’s deliberations on the Bill.

The Chairperson requested that the Committee be provided with relevant sections of the CSA. He re-iterated that the ANC would discuss this in the caucus and vote on the matter.

The Chairperson posed two questions. Firstly, he asked for a distinction between a secure care facility and a place of safety. Secondly, he asked what children would be placed in a place of safety.

Dr Skelton explained that secure care facilities had perimeter fencing and greater numbers of staff than in places of safety. She added that a young child who would not pose any threat would be placed in a place of safety.

Ms Gallinetti further submitted that instead of a sworn statement required in terms of clause 31, there should rather be provision made for an assessment report. It this was recommending placement in a residential facility other than a prison, it should contain information regarding the availability of space at a residential facility on the day the recommendation was made.

Dr Louw believed that clause 31(4) responded to the concern raised by the NGO.

Dr Skelton indicated that currently no sworn statement was used, and that the probation officer was able to establish whether there was available space telephonically.

Mr Bassett stated that a sworn statement was introduced to facilitate accountability.

The Chairperson stated that he was not entirely comfortable with both positions and sought a compromise.

Dr Skelton suggested that the Committee place, in the regulations, that the providers of care facilities must inform the courts on a monthly basis regarding the amount of space they had.

The Chairperson expressed ambivalence on this matter. He believed that there should be a sworn affidavit and at the same time he agreed with the proposal provided by Dr Skelton. Finally, he repeated that Members would take the Bill to their respective party structures.

Clause 32
Mr Bassett read out the provision of the clause, which the Committee accepted without reservation.

The meeting was adjourned.