South African Police Services
CRIMINAL PROCEDURE AMENDMENT BILL
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: Insertion of section 71A in Act 51 of 1977

1. The following section is hereby inserted in the Criminal Procedure Act, 1977, after section 71:
"Detention of unconvicted young persons
71A. (1) If an unconvicted person
(a) under the age of 16 years; or
(b) who is 16 years of age or older but under the age of 18 years;
is in custody in respect of any offence, such person must, subject to subsection (3), as soon as possible be placed in a place of safety as defined in section 1 of the Child Care Act, 1983 (Act 74 of 1983), or be placed in the care of his or her parent or guardian or any other suitable person.

(2) Notwithstanding anything to the contrary contained in section 72(1), a police official who or court which places any person referred to in subsection (1) in the care of his or her parent or guardian or other suitable person, must warn such parent, guardian or other suitable Person as set out in section 72(1)a)) and the provisions of section 72(2)0,), (3) and (4) are applicable as if the person was released in terms of section 72(1)b).

[(1) Notwithstanding anything to the contrary contained in any law and without derogating from section 50(4),(5) (6), 71 and 72(1)(b) -
(a) but subject to subsection (2), an unconvicted person under the age of 16 years;
(b) but subject to subsection (2) and (5), an unconvicted person who is 16 years of age or older but under the age of 18 years, shall not be detained in a prison or a police cell or lock-up.

(2)](3) A person referred to in subsection (1) may only detained in a police cell or lock-up for a period not exceeding 48 hours as contemplated in section 50(1). pending such person's first appearance in court after arrest if-
(a) such detention is necessary and in the interests of justice; [and]or
(b) the person concerned cannot be placed in the care of his or her parent or guardian, any other suitable person or any institution or place of safety as defined in section 1 of the Child Care Act, 1983 (Act No.74 of 1983), for the period in question.
(c) the person concerned has been arrested in terms of the Aliens Control Act, 1991 (Act no. 96 of 1991) or has absconded from a place of safety as defined in section 28 of the Child Care Act, 1983 (Act No.74 of 1983).

(4) Where a person is detained in a police cell or lock-up as contemplated in subsection (3) the police official or the peace officer responsible for ordering such detention shall-
(a) provide the court before which the person first appears with a written report setting out the reasons for the detention and an explanation as to why it was necessary to detain the person concerned in a police cell or lock-up and to keep him or her there until his or her first appearance before the court; or
(b) if the person is released before he or she appears in court, provide the magistrate of the magisterial district in which the detention took place with a written report setting out the reasons for the detention and an explanation as to why it was necessary to detain the person concerned in a police cell or lock-up.

(5) The report referred to in subsection (4)(b) shall be submitted to the magistrate referred to in the said subsection not later than one court day after the person concerned has been released from detention.

(6) (a) A person referred to in subsection (1)[(b)] who is accused of having committed an offence referred to in Schedule 8 may, after his or her first appearance in court and before his or her conviction and sentence, and subject to paragraph (b), be detained in a prison but not in a police cell or a lock-up: Provided that the court shall enter its reasons for ordering the detention of such a person on the record of the proceedings,
(b) A person referred to in paragraph (a) shall only be so detained in a prison if
(i) his or her detention is a measure of last resort as contemplated in section 28(1)(g)of the Constitution;
(ii) such detention is necessary in the interest of the administration of justice and the protection of the public or such person;
(iii) there is a substantial likelihood that the person, on conviction for the offence which he or she is alleged to have committed, could be sentenced to imprisonment exceeding two years; [and]
(iv) no suitable secure place of safety mentioned in section 28 of the Child Care Act, 1983 (Act No.74 of 1983), is available, within a reasonable distance from the court, for such person's detention; and
(v) in the case of a person referred to in subsection (1)(a), such has previously been convicted of a Schedule 8 offence.
(c) A person detained in terms of this subsection shall be brought before the court that made the detention order, every 14 days after such order has been made to enable such court to reconsider the order and the court shall enter its reasons for ordering the further detention of such a person the record of the proceedings.
(d) In the absence of the presiding officer any other presiding officer of that court may, after considering the evidence recorded and in the absence of the said person, make such order as the presiding officer who is absent could lawfully have made in the proceedings in question.

(7) In order to enable a court to determine whether the interests of the administration of justice and the safety and protection of the public or the person in question necessitate the detention or further detention of a person referred to in subsection 66 in a prison, appropriate oral evidence shall be placed before the court by the State, including evidence, where applicable, in respect of-
(a) the risk of the person absconding from a place of safety mentioned in section 28 of the Child Care Act, 1983 (Act No.74 of 1983);
(b) the risk of the person causing harm to other persons in a place of safety;
(c) the period for which the person has already been in custody since his or her arrest;
(d) the probable period of detention until the conclusion of the trial;
(e) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the person in question or his or her legal representative or the State with regard to such delay;
(f) any impediment to the preparation of the person's defence or any delay in obtaining legal representation which may be brought about by the detention of the person;
(g) the State of health of the person; or
(h) the disposition of the person to commit serious offences, particularly those mentioned in Schedule 8.

(8) A person detained in terms of subsection a) shall, as soon as possible after his or her arrest, be afforded the opportunity to obtain legal representation as contemplated in section 35 of the Constitution and section 3 of the Legal Aid Act, 1969 (Act No.22 of 1969).

(9) The highest priority shall be given to the most expeditious processing of the trial of a person detained in terms of subsection (6).

[(9) For the purposes of this section, "unconvicted person means a person who has not been convicted & sentenced]"

(10) A person referred to in subsection (3) or (6) who is detained in a prison or a police cell or lock-up or who being moved in custody to or from a court or who, while in custody, attends a court or a preparatory examination, shall be kept separate from any over the age of 18 years who is in custody: Provided that he or she may be permitted to have contact with such a person in custody who has been or is to be charged jointly with him or her, if the correctional official in charge of the prison or the police official in charge of the police cell or lock-up in which he or she is detained, is of the opinion that such contact will not be detrimental to him or her.

(11) When a girl child under the age of 18 years is detained or in custody as aforesaid, she shall be under the care of a woman.

Addition of Schedule S to Act 51 of 1977
2. The following Schedule is hereby added to the Criminal Procedure Act, 1977 after Schedule 7:

SCHEDULED 8
(Section 71A)
Murder
Rape
Robbery where the wielding of a fire-arm or any other dangerous weapon or the infliction of grievous bodily harm or the taking of a motor vehicle is involved.
Assault with intent to commit grievous bodily harm, or where a dangerous wound is inflicted
Assault of a sexual nature
Kidnapping
Any offence under any law relating to the illicit conveyance or supply of dependence-producing drugs
unlawful possession of or dealing in firearms or explosives
terrorism
any conspiracy. incitement or attempt to commit arty offence referred to in this Schedule."

Repeal of laws
3. section 29(1), (2), (3), (4), (5), (5A), (6), (7) and (8) of, and schedule 2 to the Correctional Services Act, 1959 (Act No.8 of 1959), are hereby repealed.

Transitional Arrangements
4. (1) Within 48 hours after the commencement of this Act-
(a) every unconvicted person under the age of 18 years who is in detention in a police cell or lock-up:
(b) every unconvicted person under the age of 16 years who is in detention in a prison; and
(c) every unconvicted person under the age of 18 years who is in detention in a prison and who is not alleged to have committed an offence mentioned in Schedule 8 to the Criminal Procedure Act, 1977 (Act No.51 of 1977),
must be brought before court in order to be dealt with in terms of section 71A of the Criminal Procedure Act, 1977.

(2) Within 14 days after the commencement of this Act every unconvicted person between the ages of 16 and 18 years who is in detention in a prison and who is alleged to have committed an offence mentioned in Schedule 8 to the Criminal Procedure Act, 1977, must be brought before court in order to be dealt with in terms of section 71A of the Criminal Procedure Act, 1977.

[(3) For the purpose of this section "unconvicted persons" has the meaning
given to it in section 71A of the Criminal Procedure Act, 1977.)

Short title and commencement
5. This is the Criminal Procedure Amendment Act, 1998, which takes effect on a date fixed by the President by notice in the Gazette.