PRESENTATION BY ADV VP PIKOLI, DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON THE CHILD JUSTICE BILL
20 FEBRUARY 2003

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(Govt logo)

Introduction: Although the Department of Justice and Constitutional Development is leading this presentation, I wish to stress that we have embarked on an Inter-sectoral approach in dealing in general with issues relating to children and in particular regarding this Bill. Representatives from the various Departments are therefore also here today to present their Departments’ views and state of readiness to deal with the Bill. I wish to express my sincere appreciation to the Inter-sectoral Committee on Child Justice, led by Mr Pieter du Rand from the Department, for the work done by the Committee as well as to the UNDP Child Justice Project, the SIDA Children and Justice Project and other donor support, I express my thanks also to all the representatives from the various departments for their support and commitment to improve the situation of children in the criminal justice system.

Let me also say that normally I do not give presentations on Bills, but I am here today because this matter is very close to my heart.

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(Picture of boy)

In line with our Constitutional and international obligations towards children, my Department has placed specific emphasis on children in the criminal justice system in the past two years. In 2000 we established a Directorate on Children and Youth Affairs, and that Directorate has played a leading role in inter-sectoral work, within the Cluster on Justice, Crime Prevention and Security, to improve existing systems whilst preparing for effective implementation of the proposed Child Justice Bill. Simultaneously, we have also started to grapple with how to develop and implement measures that reflect a balanced approach to victims and offenders. The Child Justice Bill therefore also gives a clear indication of the Department’s commitment to restorative justice. The involvement of families and communities will be an important factor for the success of legislation of this nature. Consequently we have begun a consultation process with civil society partners, including Traditional Leaders. As was mentioned by the President in his address at the opening of Parliament, the "conditions are ripe for us to forge a people’s contract for a safer and better South Africa".

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The following departments are directly involved in the administration of Child Justice:

• Justice and Constitutional Development, including the NPA
• Social Development
• Correctional Services
• Education
• SAPS

This is in line with another point made by the President in his speech on 14 February 2003, namely that we must "adopt a multi-sector approach" in dealing with crime, particularly when dealing with marginalised groups.

The current legal provisions regulating children who commit crimes are fragmented, with unco-ordinated sections spread over four different statutes.

Nevertheless, in recent years efforts have been made to provide some protection for these children, in a number of areas, namely

• Children awaiting trial (perhaps I need to pause here for a minute and deal with this aspect: The South African Constitution, at section 28(1)(g) gives every child the right not to be detained except as a measure of last resort, in which case, he or she may be detained only for the shortest period of time. Despite this provision and numerous ad hoc efforts on the part of the legislature to limit pre-trial detention of children, the problem of too many children being detained in prison has continued.

On the last day of September 1996 there were 698 children awaiting trial, 12 months later this had increased to 1173 and by September 1998, it was 1276. From October 1998 to November 1999, the number of children awaiting trial in prisons increased even further (by 60%) to 2306. By March 2000 the highest ever number was recorded at 2828.

By September 2000 the figure had gone down to 1862 as a result of Inter-sectoral intervention by Government. Despite ongoing efforts, the number has risen since then, and as on 31 December 2002, there were 2371 unsentenced (KwaZulu/Natal the highest - 696, followed by Western Cape - 457, Eastern Cape – 432 and Gauteng 426).

Children in custody are very vulnerable to abuse. The violent scene in the video was a re-enactment, not an actual incident. But the fact is that this kind of thing has happened. In South Africa we have, tragically, experienced deaths of children in prison and in social development facilities as well as in police cells. All departments are unequivocally committed to preventing any more tragedies of this nature. We all strive to make such incidents a thing of the past.

• Diversion is another area to provide some protection for these children, and so is
• One stop child justice centres

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What is indicated by all these developments is that committed criminal justice officials, working across sectors and in partnership with civil society, have already provided a strong base on which to build the new system. Legislation is urgently needed however, to ensure that children get equal access to services. Efforts have thus far been carried out on an ad hoc basis, depending on the energy and enthusiasm of individuals. This means that some children are missing out. The pockets of excellence that do exist can help to show the way, but an empowering and regulatory framework is undoubtedly required. The department is therefore looking forward to the parliamentary debates on the Child Justice Bill, and to its finalisation.

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The Bill seeks to:

• promote crime prevention by dealing appropriately with children when they first come into the criminal justice system
• protect children charged with less serious offences from the brutalising effects of courts and prisons
• promote moral regeneration by bringing families and communities back to the centre of managing the behaviour of children
• involve victims and communities through an emphasis on ubuntu and restorative justice
• promote the use of programmes that hold children accountable for their actions in ways that they understand
• speed up the criminal justice process regarding children by reducing the number of trials
• ensure that imprisonment of children is a measure of last resort (as is currently required by the Constitution) , thereby reducing the number of children in prison ensure the safety of the community by retaining a channel for the prosecution, conviction and where necessary, the imprisonment of children committing serious or violent offences (this points illustrates again that this Bill is not soft on children committing serious crimes)
• provide for inter-sectoral monitoring that will allow an active, responsive approach to the management of the child justice system by government.

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A notable aspect of the Child Justice Bill is its emphasis on inter-sectoral collaboration. This is essential because as the child moves through the system envisaged by the proposed legislation, he or she is dealt with by officials from a number of different departments. The Bill in fact sets out the duties and powers of many of these different officials, and this will help to ensure the smooth transition of the child from one stage to another.

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The first criminal justice official that the child will encounter is the police official who is called to the scene of a crime or is acting on a warrant. A number of alternatives to arrest are provided (such as taking a child home and giving a written notice to appear at a subsequent proceeding) and the police official is enjoined to use one of the alternatives to arrest in all petty offences unless particular reasons exist for not doing so. Police are empowered, in some cases, to release children into the care of the parent or other suitable adult.

The next step is that a probation officer will undertake an assessment of the child. Probation officers are employed by the Department of Social Development. They are important role players in the proposed new child justice system. The primary purposes of the assessment are to establish the prospects of diversion of the case, and to formulate recommendations regarding release of the child into the care of his or her family or placement of the child into an appropriate residential facility.

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The next step in the process is a new procedure called the preliminary inquiry. The preliminary inquiry must take place within 48 hours of the child being apprehended, and it therefore takes the place of the first court appearance. The inquiry is chaired by a magistrate but is very much a "round table" conference, with everyone, including the child, being encouraged to participate. The main objective of the preliminary inquiry is to establish whether the matter can be diverted. The inquiry maximises truth telling. After considering the views of all persons present a decision relating to diversion will be made, with the prosecutor having the final decision-making power in this regard. Other decisions regarding release or placement of the child are also dealt with at the preliminary inquiry, and it is believed that this will help to provide a solution to the current problems relating to children awaiting trial in custody.

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Diversion is a central feature of the new system, and chapter 6 of the Bill sets out a range of diversion options, listed in three levels depending on the intensiveness of the programme. Any case may be considered for diversion, as long as the child acknowledges responsibility for the offence and there is sufficient evidence to prosecute. The inquiry magistrate may make certain orders that the child must comply with. Other diversion options include referral to programmes that are made available by the Department of Social Development, often in partnership with NGOs and CBOs. One of the diversion options proposed by the Bill is a family group conference. This is a meeting co-ordinated by the probation officer that is attended by the child, his or her family and the victim and the victim’s family. The purpose of a family group conference is to find a way for the offender to put right the wrong that has been done, in ways that are acceptable to the victim as well. This is an example of restorative justice.

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Those children who are not diverted (either because they indicate that they intend to plead not guilty to the charge, or because the particular circumstances surrounding the child or the case make diversion inappropriate) will proceed to plea and trial in the Child Justice Court. The envisaged Child Justice Court is not a completely specialised or separate court. The Bill provides that any court where a child being tried for a crime appears, is a Child Justice Court. In urban areas, where there are sufficient cases to warrant it, full time Child Justice Courts with specially selected and trained personnel will be set aside, in the manner of the current juvenile courts. In rural areas, the court will simply "constitute" itself as a child justice court, following the procedures set out in the legislation. Preference will be given to trying cases at the district court level, but cases involving murder and rape, or other exceptional circumstances, may be referred to the Regional Court or even the High Court. However, it must be stressed that even when this occurs the child is not to be tried as an adult.

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The Bill includes a wide range of sentencing options, including

• non residential or community based sentences,
• sentencing involving restorative justice concepts such as restitution and compensation to the victim, and finally,
• sentences involving a residential element.

I wish to pause here and reflect on reform schools. In the current system, children may be sentenced to Reform Schools (managed by the Department of Education) which are compulsory residential facilities offering academic and technical education. In 1996, when there was a Cabinet requested investigation into the availability and suitability of such facilities there were nine Reform Schools in South Africa, seven for boys and two for girls. Since then however, the Western Cape facilities have been "rationalised" and a reform school in Kwa Zulu Natal has been closed.

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Here you can see a flow chart of the entire system proposed by the Child Justice Bill.

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Other matters that the Bill provides for are, firstly, legal representation which will be provided for at state expense where a child is deprived of his or her liberty or where the alleged offence is such that he or she is likely to get a sentence involving loss of liberty.

With regard to legal representation, it is clear that children have a right to legal assistance in South Africa in cases where a substantial injustice would otherwise occur, and where a child or his or her family cannot afford to pay for the services of a lawyer, State funded legal representation can be obtained through the Legal Aid Board. Although the percentage of children being legally represented has increased in recent years, it is still estimated to be below 50% of all cases appearing in court (Inter-sectoral Committee on Child Justice 2002 ). A large number of children who are offered state funded legal aid decline these services, which indicates a need for education of children who have come into contact with the criminal justice system. There has previously been little or no specialisation amongst lawyers regarding legal representation of children.

We have started to address this situation. In May 2001 the Department of Justice and Constitutional Development embarked on a process in partnership with the Legal Aid Board of training legal representatives employed at Justice Centres around the country in the legal representation of children.

The Child Justice Bill also provides for access to state funded legal representation when the child is remanded in detention, when there is a likelihood that a sentence involving a residential requirement is to be imposed, and when the child is at least 10 years old but not yet 14 and the matter is to be tried in court. The children in these categories may not waive legal representation.

The idea of non-waiver may appear to be a provision that will cause a large increase in the number of cases that will have to be taken on by the Legal Aid Board. The Legal Aid Board agrees, however, that these categories correspond with the constitutional test of where a substantial injustice would otherwise occur. It is also likely that the Child Justice Bill, with its focus on diversion of cases, will result in fewer cases going to trial overall, although the number of serious cases going to trial will probably remain much the same. These serious cases tend to be the ones in which children do have legal representation in the current system.

Planning for legal representation will be done primarily through making the Legal Aid officers as well as (Legal Aid) Justice Centre managers and staff aware of the requirements of the Bill, and through training of relevant Justice Centre staff and support for efforts to provide some specialization in legal representation of children. Discussions with the LAB has been already started in this regard.

Secondly, the expungement of criminal records for children is provided for in a unique system whereby the magistrate in the child justice court, must at the time of determining the sentence, also make a decision whether or not the criminal record should be expunged, and if he or she so decides, to set the date on which the record will fall away. Certain very serious offences, such as murder and rape are, however, excluded from the possibility of expungement.

Finally, the Bill provides for an inter-sectoral monitoring structure to oversee the efficient running of the new system.

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Although the Bill is largely procedural it does contain some important substantive law provisions. The most notable of these is the issue of the minimum age of criminal capacity. The current law is based on the old Roman Law concept of doli incapax, and rests on two legal rules. Children below the age of seven years are irrebuttably presumed to lack criminal capacity. Children who have attained the age of seven years but have not yet turned 14 years of age are also presumed to lack criminal capacity, but this presumption can be rebutted – if the state can prove that the child appreciates the difference between right and wrong, and can act in accordance with that knowledge. This law has been found not to be an effective protection for children, the presumption being far too easy to rebut.

It is proposed that the minimum age should be raised from 7 to 10 years of age. The presumption of lack of criminal capacity of a child who has attained the age of 10 years but has not yet reached the age of 14 years should remain in place, with increased protection for this group of children. There the Bill proposes a requirement of proof, beyond a reasonable doubt, that the child understood the difference between right and wrong at the time of the commission of the alleged offence. Evidence may be called for of the intellectual, emotional, psychological and social development of the child in the form of a report from a person qualified in child development or child psychology, and this is to be undertaken at state expense where necessary.

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I am moving on now to the implementation planning and budgeting processes that have been carried out by the various affected departments, working together. When the Bill was placed before Cabinet it was accompanied by an implementation strategy framework. This planning process has now gone a step further. Following a meeting of CFOs, the relevant departments, assisted by an economist, have completed a detailed implementation strategy and budget for the Child Justice Bill, linked to the Medium Term Expenditure Framework. This has been signed off by the relevant departments and is in your folder. I will request the various Departments present to deal with specific implementation issues but I wish to indicate that from the work done inter-sectorally, I believe that this Bill is implementable and that all departments are prepared to set aside the resources required.

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In conclusion I wish to state that the Department of Justice and Constitutional Development considers this legislation to be a priority. In addition to the many commitments that have been made here in South Africa to prioritise issues relating to children, there are also some international expectations in this regard.

Having signed the United Nations Convention on the Rights of the Child on 29 January 1993 and ratified it on 16 June 1995, South Africa is required to report on a regular basis to the UN Committee on the Rights of the Child (hereafter referred to as the UN Committee) in Geneva. South Africa’s first country report was delivered in January 2000. Whilst the UN Committee welcomed South Africa’s efforts to make improvements in the area of juvenile justice, it expressed some concerns and recommended that South Africa take additional steps to implement a juvenile justice system in conformity with the UN Convention and other UN instruments. South Africa is soon to report again to the UN Committee in Geneva (2003).

We look forward to the parliamentary debates on the Child Justice Bill within the near future. We undertake that the final legislation produced and passed by the legislature will be acted upon by government without delay so that we can deliver on policy promises to the children in our courts and prisons, who have waited a long time for this transformation.