Justice NA Committee: Proposed amendments: 07/09/98
BILL

To amend the Criminal Procedure Act, 1977, so as to further regulate the detention of unconvicted young persons accused of having committed offences; and to provide for matters connected therewith.

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:

"Custody and detention of unconvicted young persons
71A. (1) Notwithstanding anything to the contrary contained in any law and without derogating from sections 50(4), (5) and (6), 71 and 72(1)(b) but subject to subsection (2) and (5)-

(a) [but subject to subsection (2),] an unconvicted person under the age of 16 years;
(b) [but subject to subsections (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) A person referred to in subsection (1) may be 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 [but not after such first appearance] [if-]
(a) if
(i) such detention is necessary and in the interests of justice; and
(ii) the person concerned cannot be placed in the care of his or her parent or guardian, any adult person who is prepared to assist the child in relation to his or her attendance at court and who has a prior relationship of responsibility towards the child or who is prepared to enter into a relationship of responsibility towards the child 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; [or
(b) if the person concerned has -
(i) been arrested in terms of the Aliens Control Act, 1991 (Act No. 96of 1991); or
(ii) absconded from a place of safety as defined in section 28 of the Child Care Act, 1983 (Act No.74 of 1983)].

(3) Where a person is detained in a police cell or lock-up as contemplated in subsection (2) the member of the South African Police Service 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, and of the steps taken to notify the parents or guardian and a probation officer as contemplated in section 50(5) of the arrest of the person: or

(b) if the person is released before he or she appears in a 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.

(4) The report referred to in subsection (3)(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.

(5) (a) A person referred to in subsection (1)[(b)] who is accused of having committed an offence referred to in Schedule 8 may, having regard to the law in respect of bail 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 as a measure of last resort, particularly if-

(i) such detention is necessary in the interests of the administration of justice and the protection of the public or such person;
(ii) there is a substantial likelihood that the person, on conviction for the offence for which he or she is alleged to have committed, could be sentenced to imprisonment [exceeding two years] without the option of a fine; [and]
(iii) the person concerned cannot be placed in a place of safety mentioned in section 28 of the Child Care Act, 1983 (Act No.74 of 1983), within a reasonable distance from the court: [and
(iv) in the case of a person referred to in subsection (1)(a). such person has previously been convicted of an offence referred to in Schedule 8].

(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 on the record of the proceedings] A person detained in prison in terms of this section after his or her first court appearance must be brought back to court every 14 days to enable the detention order to be reconsidered and the court shall enter its reasons for ordering the further detention of such person on 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: Provided that a Director of Pubic Prosecutions or a prosecutor authorised thereto by him or her. where that court, due to exceptional circumstances, is not available, whether in general or in any particular case direct that the matter be dealt with in accordance with this section by any other available lower court within the area of jurisdiction of the Director of Public Prosecutions] Whenever the detention order of a person is to be reconsidered as contemplated in paragraph (c), and the presiding officer that made the order is not available for any reason, the order shall be reconsidered by a presiding officer of any available lower court within the jurisdiction of the regional court in which the person is appearing and after considering the evidence recorded and in the presence of the said person the last-mentioned presiding officer shall make such detention order as he or she deems fit in accordance with the provisions of this section.

(6) 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 (5) in a prison is necessary, the court shall hear appropriate [oral] evidence [shall be] placed before the court by the State, or, where appropriate, by any other person having an interest in the matter, 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 disposal or 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:

[Provided that evidence other than oral evidence may suffice for purposes of this subsection if the obtaining of oral evidence would not be in the best interests of the person concerned or if it is not possible or practicable to obtain oral evidence in respect of any relevant issue.]

(7) A person detained in terms of subsection (5) 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] provided for in section 3 of the Legal Aid Act, 1969, (Act No.22 of 1969).

(8) The highest priority shall be given to the most expeditious processing of the trial of a person detained in terms of subsection (5).

(9) A person referred to in subsection (2) or (5) who is detained in a prison or a police cell or lock-up or who is being moved in custody to or from a court or who, while in custody, attends a court or a preparatory examination, shall be kept separately from any person over the age of 18 years who is in custody and treated in a manner, and kept in conditions, that take account of the child's age: Provided that he or she may be permitted to have [contact] communication 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.

(10) When a female under the age of 18 years is detained or in custody, she shall be under the care of a woman.

(11) (a) [The Minister of Justice may make rules prescribing steps to be taken for the purposes of implementing and monitoring the provisions of this section] The Minister of Justice may/shall, after consultation with the Ministers for Welfare and population development, Correctional Service and Safety and Security, establish a committee, consisting of representatives of the departments of Justice, Welfare and Correctional Services and the South African Police Service and of representatives of such other organisations as may be determined.
(b) The object of the committee referred to in paragraph (a) shall be to ensure that the provisions of this section are carried out in the best interests of children and for purposes hereof it shall be competent to gather any relevant in formation from the courts.
(c) The Minister of justice may after consultation with the Ministers referred to in paragraph (a) issue directives relating to the functioning of the committee.

(12) For the purposes of this section, 'unconvicted person' means a person who [has not been [convicted or] sentenced] is awaiting trial or sentence in respect of the offence for which he or she is before the court".

Addition of Schedule 8 to Act 51 of 1977
2. The following Schedule is hereby added to the Criminal Procedure Act, 1977, after Schedule 7:

"SCHEDULE 8
(Section 71A)
Murder
Rape
Robbery where the wielding of a fire-arm or any 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'
Any conspiracy, incitement or attempt to commit any offence referred to in this
Schedule.".

Repeal of laws
3. Section 29(1), (2), (3), (4), (5), (5A), (5B). (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 71 A of the Criminal Procedure Act, 1977.

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

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