IMPLEMENTATION OF THE CHILD JUSTICE BILL WITHIN THE SOUTH AFRICAN POLICE SERVICE
1.INTRODUCTION
The South African Police Service (hereinafter referred to as "the Service") welcomes the introduction of the new Child Justice Bill insofar as it provides for a separate and comprehensive framework within which children, who are in conflict with the law, are to be dealt with. The Bill establishes a legal framework for diversion and the expansion of restorative justice, principles which are fully supported by the Service. As already indicated, the Service forms part of the InterSectoral Committee for Child Justice and have thus had the opportunity to work closely together with the other relevant departments within the Cluster for Justice, Crime Prevention and Security.
2. BRIEF DISCUSSION ON THE CHAPTERS OF THE BILL THAT WILL IMPACT ON THE SOUTH AFRICAN POLICE SERVICE
Chapter 1 sets out the objects and general principles of the Bill. Clause 3(3) entrenches the constitutional requirements regarding the rights of persons in the custody of the Service and the international principle that children be detained separately from adults and boys separately from girls. Clause 3 further determines that children must be detained in conditions which will reduce the risk of harm to that child, including the risk of harm caused by other children.
Chapter 2 of the Bill sets out the application of the Bill and amends the common law pertaining to the criminal capacity of children.
Chapter 3 of the Bill encompasses the obligations of members of the Service. This Chapter sets out the different methods of securing the attendance of a child at a preliminary inquiry, namely arrest, summons or a written warning. The Bill encourages the release of children into the care of their parents and entrenches the constitutional principle that imprisonment should be a measure of last resort for a child (clause 11). The Bill therefore introduces a range of alternatives not currently available, such as taking the child home and issuing a written warning for the child to appear at the preliminary inquiry. It also empowers a police official to remove a child from his or her parents and have the child admitted to a place of safety if the child is below the age of 10 and has committed an offence and is found to be in need of care.
Chapter 4 deals with the assessment of a child envisages that whenever a child is arrested, served with a summons or issued with a written notice, a member must notify a probation officer thereof and such child must be transported to a place, to be identified by the probation officer, for an assessment. (Clauses 19 & 20).
The implications of clause 22 of the Bill, which deal with the powers and duties of probation officers before assessment, are that the notice, to appear at the assessment, must be delivered by a member and that the probation officer may further request a member to:
- obtain any documentation required for the completion of the assessment of a child;
- locate a child's parent or an appropriate adult; and
- provide transport to a child and his or her parent or appropriate adult to the assessment of that child.
Chapter 5 deals with the Preliminary Inquiry and determines that a preliminary inquiry must be held in respect of every child prior to the child pleading in court A child's appearance at a preliminary inquiry must be regarded as his or her first appearance in a court as contemplated in section 50 of the Criminal Procedure Act, 1977. Where a child has thus not been released as contemplated in clauses
6(1)(b), 6(1)(c), 13 or 14, the Service will be responsible to transport such a child to the preliminary inquiry.
Chapter 7 inter alia deals, with the establishment of Child Justice Courts and One-Stop Child Justice Centres. Clause 55 of the Bill once again reiterates the principle that a child detained in a cell in or at the child justice court must be kept separately from adults (girls separately from boys) and be kept in conditions which take account of his or her age. This clause also determines that where a child is transported to or from a child justice court, such child must, if reasonably possible, be transported separately from adults.
3. BRIEF DISCUSSION ON THE ROLE OF THE SERVICE IN TERMS OF THE BILL
3.1 Detention facilities
In terms of the Constitution, 1996 (Act No.108 of 1996) children must, while in detention, be kept separately from detained persons over the age of 18 years. Furthermore, boys must be detained separately from girls and female adult persons must be detained separately from male adult persons. These constitutional requirements are also confirmed in the Bill.
The Service experiences difficulties to fully comply with the aforementioned constitutional obligations. Although adult male and female persons are at present already detained separately at police stations it is unfortunately not always possible to detain men and boys separately and women and girls separately. To comply with these obligations, every police station must have at least 4 police cells (men, women, boys and girls). Several police stations, especially in rural areas, do not have 4 police cells.
The Service launched a project to upgrade detention facilities in order to enable it to comply with its constitutional obligations. In terms of this project, Project Five Star, existing detention facilities are being upgraded. A total amount of R162 million will be spent during the current MTEF cycle. The amounts that will be spent during the current cycle, are as follows:
2002/2003 2003/2004 2004/2005
R74 737 686-00 R51 975 954-00 R36 056 812-00
Although it is envisaged that the above-mentioned project will, to a large extent, assist the Service to comply with its constitutional obligations regarding detention facilities, it needs to be mentioned that, in many instances, the size of the premises on which a police station is situated is sometimes too small to accommodate a large cell block or allow for the renovation of existing cell blocks to an acceptable standard. In order to overcome these difficulties, the cost of procuring new premises and building complete new facilities on those premises, are prohibitively high.
Furthermore, the frequence with which persons, including children, are being detained at some police stations, does not justify the construction of the required number of police cells at those police stations. The Service accordingly does not foresee that every one of the 1106 police stations within the country will eventually be provided with at least 4 police cells.
In order to comply with our constitutional obligations, it is envisaged that a police station that does not have adequate detention facilities, will utilize the facilities of neighbouring police stations. Furthermore, where this is possible, children may also be detained at detention facilities of Correctional Services. In very few instances, it may also be possible to detain children at secure care facilities or places of safety.
The Service will ensure that national instructions guide the optimal utilization of existing detention facilities to ensure compliance with its constitutional obligation insofar as may be practically possible. It is in any event foreseen that the implementation of this Bill will bring about a decrease in the number of children that will have to be detained in police detention facilities.
With regard to detention facilities, clause 55(3) of the Bill requires the National Commissioner to issue a National Instruction on the treatment on the "treatment and conditions of children while in detention at child justice court". In this regard note should be taken of the fact that the responsibility for detention facilities at court resorts under the Department of Justice. Any alterations or construction work that may be required in respect of such facilities are therefore the responsibility of the Department of Justice. The National Instruction by the National Commissioner can, accordingly, only deal with the conduct of members guarding children at such facilities. It is not clear what is expected of the National Commissioner in this regard.
3.2 Transport
The Service is in general responsible to transport a person from the place of his or her arrest to a police detention facility and, if necessary, from there to court. Furthermore, the Service is responsible to transport a child in need of care to a place of safety in the event that the child is removed from his or her parents in terms of the Child Care Act, 1983 (Act No.74 of 1983). Despite the severe strain that this places on available human and other resources of the Service, the Service discharges this responsibility at present.
The aforementioned position also applies to children. However, in terms of this Bill, additional responsibilities to provide transport and to have police officials available to perform certain functions, are placed on the Service. These include-
(i) the transportation of an arrested child to the place where the assessment of such a child will be conducted;
(ii) the transportation of an arrested child to the preliminary inquiry;
(iii) the transportation of a parent of an arrested child or an appropriate adult to the place where the assessment will be conducted;
(iv) obtaining documentation required for the completion of the assessment of a child at the request of a probation officer;
(v) locating the child's parent or an appropriate adult at the request of the probation officer;
(vi) the transportation of a child to a place of safety (if the child cannot be released into the care of a parent, an appropriate adult or on bail) and from such place of safety to an assessment and, later on, preliminary inquiry; and
(vii) transporting a child separately from adults, to and from court, if reasonably possible.
The aforementioned additional responsibilities will increase the strain on available human and other resources of the Service.
In addition to the above, there are several clauses within the Bill which can be interpreted to place even further obligations on the Service regarding transportation, namely -
(i) the introduction of the alternatives to arrest: In terms of the Bill a member may not arrest a child unless there are compelling reasons to do so. The alternatives to arrest provided by the Bill are to issue a written warning to the child's parent or appropriate adult or, if applicable, a copy of a summons to the child's parent or appropriate adult. In practice this clause would require taking the child home and issuing the written warning or summons to the child's parent or appropriate adult in person;
(ii) insofar as the assessment of a child is concerned, the Bill can be interpreted in a way that suggests that the Service must not only provide transport for arrested children (thus children in the custody of the Service) but also for children not in our custody (thus children who have been released into the care of their parents or appropriate adults). The same applies to the transport of the parent or appropriate adult of such children.
The Service is currently in a process of substantially modernizing its vehicle fleet (moving towards a situation where more boarded vehicles will be replaced annually). During 2003/04 the Service will be spending approximately R 535 million on the purchase of new vehicles. This amount will be substantially increased in future. The MTEF figure for 2003/2004 is R 565 million. This should result in the Service having more vehicles that are operational (i.e. less vehicles will be at garages undergoing repairs). In itself, this will assist in alleviating the strain on the vehicle fleet of the Service. It is not envisaged that the Service will ever be in a position to have a sufficient number of vehicles at its disposal to fulfil all its obligations. This means that the Service will inevitably have to continuously prioritise in order to ensure the optimal utilization of its vehicle fleet. This is already done and it is envisaged that the same would apply with regard to any transportation obligations imposed upon the Service in terms of this Bill. To ensure that this takes place in a responsible manner, national instructions will be issued to guide members in this regard.
An important aspect that must be taken into account in this regard is the opportunity costs. A vehicle of the Service that is used to transport pers9ns, to obtain documentation which the probation officer may require for purposes of the assessment or locating a parent or appropriate adult, is not available to perform other operational functions. If such transportation does not form part of the core functions of the Service, the Service cannot support the utilization of its vehicles for that purpose. It is accordingly requested that serious consideration should be given to provide in the Bill for alternative forms of transport in such cases.
The transportation of persons not only requires the availability of a vehicle with which this can be undertaken, but also requires the availability of a member to perform this function. The Service already experiences severe personnel shortages and any obligations with regard to transportation will put further strain on the available personnel.
It has already been stated that some of the clauses of this Bill are open to an interpretation that places additional obligations regarding transportation on members of the Service. In view of what has been stated above, the Service recommends that those clauses be reworded to remove these obligations from the Service.
In order to address personnel shortages the Service has embarked on a recruitment drive which will result in more than 20 000 new members being appointed over the next 3 years. Although the new appointments will alleviate the difficulties set out above, one has to bear in mind that these new recruits will necessarily place further burdens on the available vehicle fleet of the Service and will not necessarily improve the situation as far as the availability of vehicles for transportation purposes are concerned.
The above exposition is based on the assumption that probation officers will be available within a reasonable distance from every police station. Presently, there are not nearly enough probation officers available to perform their functions in terms of existing legislation. The Department of Social Development presented plans to increase the number of probation officers in each province. These plans also envisage that the appointment of probation officers will be phased in according to the availability of resources.
The successful implementation of the Bill depends on the availability of probation officers. If no probation officer is available within a reasonable distance from a particular police station, the strain that will be placed on the human and other resources of the Service will make it impossible for the Service to comply with all of its obligations in terms of the Bill at that police station.
Furthermore, although the Service supports the idea of children being assessed before the holding of preliminary inquiries, the transportation of such children, and if so requested, of their parents or appropriate adults, to any place which may be identified by the probation officer, will place an unreasonable burden on the Service. In this regard it is suggested that such assessments be required to take place at a room at the magistrate's court (central for both Police and probation officers) or at the police station.
3.3 National Instructions
Clauses 7(3)(b), 14(2), and 55(3) provides that the National Commissioner must issue National Instructions in certain instances to direct members on the procedures that must be followed to ensure compliance with the provisions of the Bill.
Such instructions will be developed and will be issued to members. The drafting and finalisation of these instructions and their integration into the existing regulatory framework of the Service will take time. It is envisaged that a period of at least 5 months after the adoption of this Bill should be allowed for that process to be finalized.
3.4 Training
This Bill envisages a criminal justice process for child offenders which differs to a great extent from the existing criminal justice system. Police officials have been trained on their role and functions in terms of the existing criminal justice system. Unless police officials are properly trained to fulfil their obligations in terms of the new system, the implementation of this Bill will not be effectively implemented.
Once this Bill has been promulgated and the National Instructions have been issued by the National Commissioner, the Service will have to embark upon an extensive training programme to ensure that its members are able to fulfil their obligations in terms thereof. In this regard, one has to take into consideration that the Service has approximately 80 000 members that perform operational functions. These members are spread across the country and render a 24-hour service to the public. To train all operational members will take careful planning and will necessarily take time to complete. Although the planning of such a training programme may take place while the National Instructions are being drafted, the programme itself cannot commence before the National Instructions have been finalized and proper training material, based on the Bill and the National Instructions, have been developed. It is envisaged that the drafting of training material will take at least one month to complete.
The training programme itself cannot be completed in less than 6 months.
In view of the above, the Service recommends that this Bill should only be put into operation one year after its promulgation.
3.5 Development and implementation of a Communication Strategy
A communication strategy will have to be developed and implemented to ensure that the key elements of the Act are communicated to members, as well as their duties in terms of the Act. Information will also be published on the Website of the Service to communicate, externally, what the obligations of the Service are.
4. CONCLUSION
As you would have gathered, the Child Justice Bill relies heavily upon the cooperation between the different service providers within the Cluster for Justice, Crime Prevention and Security and would require a co-ordinated implementation process. The Service looks forward to play our part in developing and sustaining co-operation between the various service providers to ensure that the objectives of the Bill, namely to protect our children and promote ubuntu in the child justice system, are achieved.
The Service therefore fully supports the principles embodied in the Bill.
The South African Police Service, however, requests that the practical implications of the current provisions of this Bill be carefully considered taking into account the core functions of the Service. The Service recommends that the additional obligations that are imposed on the Service in the Bill be carefully considered to determine whether they should actually be made responsibilities of the Service and if not, that the Bill be amended to ensure that our burden is alleviated.