Probation Services Amendment Bill: finalisation; Annual Report: adoption

These minutes were prepared by the Committee Secretary, Ms Zarina Adhikari

MINUTES OF THE PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT
19 August 2002
PROBATION SERVICES AMENDMENT BILL: FINALISATION; ANNUAL REPORT: ADOPTION

PRESENT
Tsheole, Ms N M (Chairperson)

AFRICAN NATIONAL CONGRESS
Bhengu, Mr F
Chalmers Ms J
Kasienyane, Miss O R *
Mabena, Mr D C
Makasi, Mrs X C
Masutha, Mr M T
Ramotsamai, Ms C M P
Solo, Mr B M *
Tshivhase, Mrs T J

NEW NATIONAL PARTY
Van Jaarsveld, Mr A Z A

UNITED DEMOCRATIC MOVEMENT
Mbadi, Prof L M

APOLOGIES
Jassat, Dr E E *
Saloojee, Mr E
Kalyan, Ms S V
Mars, Ms I
Southgate, Mrs R M
Rajbally, Ms S

OFFICIALS
Mr Ashley Theron - Department of Social Development
Mr Pierre Du Preez - Department of Social Development
Mr Coenie Du Toit - Department of Social Development
Dr De Smidt - Department of Social Development
Mr Johan de Lange - Department of Justice and Constitutional Development
Mr Herman Smuts - State Law Adviser

AGENDA
Finalisation of Probation Services Amendment Bill [B18B - 2002].
Adoption of Annual Report.

SUMMARY
The committee finalised the discussion on the amendments proposed by the NCOP and adopted revised amendments. The Committee adopted the annual report of the Committee.

DISCUSSION
The Chairperson apologised for the late start to the meeting and introduced the officials. She explained that Mr Saloojee had suffered bereavement in his family and she wished them strength with dealing with the death. She requested that Mr Smuts explain the position with regard to the amendments.

Mr Smuts referred to the letter that he wrote to the Department dated 7 August 2002 (attached) where he suggested that they leave processes and procedure to the Criminal Procedure Act. He said that the CJB would take care of the details.

Adv De Lange spoke to his proposal. (attached)
Prof Mbadi spoke to the UDM proposal (attached) and explained that they were concerned about the removal of the 48-hour requirement as they felt that a lack of timeframes would be detrimental to the child.

Ms Ramotsamai addressed the submission from the ANC and said that they had looked at various options in drafting their proposal. It was felt that they should concentrate on children that have not been released. Even though they have not stated the 48-hour stipulation, it is contained in the Constitution and the Criminal Procedure Act.

Ms Chalmers added that there must be greater restrictions on the time factor in the future. The child should be assessed before coming to court.

The Chairperson reiterated the position that they were concentrating on children who had not been released.

Mr de Lange said that the ANC proposal seemed to cover all the concerns raised. He was concerned that assessments may be restricted to children not released.

Mr Smuts agreed with Mr de Lange and asked whether it would stop any other processes.

Mr du Preez said that the Department supported the ANC proposal.

Prof Mbadi raised a concern about children that are released and asked whether they would be assessed.

Mr Du Toit said that once a child is released into the custody of his/her parents, the court case would continue and the magistrate would ask for an assessment. In this was clause 4B could be implemented.

The Chairperson read through all the amendments being proposed by the ANC.

Mr du Preez pointed out that there no definition for 'caregiver' and suggested that it be changed to 'primary caregiver'.

Ms Ramotsamai said that 'primary caregiver' was understood in terms of grants but they were hoping to incorporate children in institutions.

Mr Smuts suggested the term 'guardian' covered the concept but felt that there was some repetition in the clause.

Mr van Jaarsveld disagreed saying that in Afrikaans, 'caregiver' and 'guardian' had two different meanings.

Mr Smuts suggested that 'caregiver' could be replaced with 'or any other person'.

Ms Ramotsamai felt that 'or any other person' was too wide and did not cover the possibility of institutions.

Mr du Preez suggested 'or any authorised person' so that the magistrate could decide.

Prof Mbadi said that since the person is legally appointed it could read ' legally appointed person'.

Mr van Jaarsveld added that they should replace 'person' with 'party' in order to cover institutions.

Dr De Smidt explained that institutions don't feature as it is home-based supervision and that they need to be careful about where the child is placed. It must be a legal authorised placement. In response to the Chairperson's query about homeless children and placing them in shelter, Dr de Smidt said that a shelter is a legally appointed person.

Mr Masutha agreed that 'caregiver' was a new term and proposed the term 'custodian' which would incorporate institutions and would be more specific than guardian.

Mr Theron said that he supported the change pointed out that it led to a situation where the word 'custody' is repeated. If a child is placed in foster care or an institution then the child should be kept there.

Dr De Smidt said that in practice a magistrate could determine where a child can be placed. During that period the child goes home or to any other place decided on by the magistrate.

Mr Theron suggested the addition of 'supervised in the care of'

Mr Masutha proposed the following formulation, which was generally agreed to:
" 'Home-based supervision' means the process where an arrested, accused, convicted or sentenced child is supervised by an assistant probation officer while in the care of his or her parents, guardian
or custodian;"

After further discussion, it was decided to amend this proposal to include 'in whose custody the child is.'

The meeting then proceeded to address the proposed amendments of the NCOP and adopted the amendments as follows:
CLAUSE 1
1. On page 2, in line 13, to omit ''2'' and to substitute ''4A''.
2. On page 4, from line 12, to omit the definition of ''house arrest'' and to
substitute:
'' 'home-based supervision' means supervision under certain condi-tions
where an arrested, accused, convicted or sentenced child in the
care of his or her parents or guardian or in the custody of any other
person, is monitored by an assistant probation officer;''; and
3. On page 4, after line 19, to add:
(e) by the substitution for the definition of ''supervision'' of the
following definition:
'' 'supervision' means supervision of [a] an accused,
convicted or sentenced person by a probation officer [by
virtue] in terms of the provisions of any law;''.
CLAUSE 3
1. On page 4, in line 48, to omit paragraph (l).
CLAUSE 4
Clause rejected.
NEW CLAUSE
1. That the following be a new Clause:
Insertion of sections 4A and 4B in Act 116 of 1991
4. The following sections are hereby inserted in the principal Act
after section 4:
'' Appointment and duties of assistant probation officers
4A. (1) The Minister may appoint as many suitable persons as
he or she may deem necessary as assistant probation officers to
perform the duties imposed by or under this Act or any other law
on an assistant probation officer.
(2) The duties of an assistant probation officer shall include—
(a) the monitoring of a child subject to home-based super-vision;
(b) the monitoring of persons subject to supervision;
(c) family finding;
(d) the gathering of information for assessment by the proba-tion
officer; and
(e) assisting a probation officer with his or her duties.
Assessment of arrested child
4B. Any arrested child who has not been released shall be
assessed by a probation officer as soon as reasonably possible,
but before his or her first appearance in court in terms of section
50(1)(c) of the Criminal Procedure Act, 1977 (Act No. 51 of
1977): Provided that if the child has not yet been assessed when
brought before the court, the court may authorise the extension
of the period within which the assessment must take place by
periods not exceeding seven days at a time following his or her
first court appearance.'' .

After some discussion about when the legislation would come into effect, it was decided that the department should implement a communication strategy that would inform all the role players of the changes before hand so that they are prepared for operationalisation. It was decided that the report of the Committee should include a recommendation in this regard. The report of the Committee reads as follows:

"1. Report of the Portfolio Committee on Social Development on the Probation Services Amendment Bill [B 18B - 2002] (National Assembly - sec 75), dated 19 August 2002:

The Portfolio Committee on Social Development, having considered the Probation Services Amendment Bill [B 18B - 2002] (National Assembly - sec 75) and proposed amendments of the National Council of Provinces (Announcements, Tablings and Committee Reports, 11 June 2002, p 686), referred to the Committee, reports the Bill with amendments [B 18C - 2002].

The Committee further recommends that the Department of Social Development, before this Bill comes into operation, communicate the implications thereof to other role-players in the criminal justice system that will be co-responsible for its implementation.

Report to be considered."

After the Chairperson read the report, Mr Masutha moved that it be accepted and Prof Mbadi seconded the motion. The members agreed to the report.

The Chairperson concluded the meeting by noting the second item on the agenda and said that it was assumed that the annual report had been read. She asked if there were any amendments.

Mr Masutha moved that the report be accepted and Prof Mbadi seconded the motion. The report was accepted by the members.

The meeting ended at 12: 55.