DEPARTMENT: JUSTICE AND CONSTITUTIONAL DEVELOPMENT
BUSINESS UNIT: COURT SERVICES
CHIEF DIRECTORATE: COURT MANAGEMENT
REPORT TO THE JOINT MONITORING COMMITTEE ON THE IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN: RESOURCES FOR IMPLEMENTING ACTS AND PROGRAMMES
4 April 2003

SUBMISSION TO THE JOINT MONITORING COMMITTEE ON THE IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN
RESOURCES FOR IMPLEMENTING ACTS AND PROGRAMMES:

1. INTRODUCTION: THE IMPLEMENTING OF ACTS AND PROGRAMMES IN ORDER TO IMPROVE THE QUALITY OF LIFE AND STATUS OF WOMEN AND CHILDREN:

In order to improve the quality of life and status of Women and Children, and to make the rights contained in the Bill of Rights, Chapter 2 of the Constitution of the Republic of South Africa, 1996, a reality for our women and children, the Department of Justice and Constitutional Development has embarked on various initiatives to protect vulnerable women and children, and to restructure child and family courts, so that our children and families are given the priority attention they deserve.

2. PROTECTION OF VULNERABLE WOMEN AND CHILDREN:
There are plans in place to improve the protection of women and children involved in the court process, which will be funded by additional allocations received from National Treasury for the protection of vulnerable groups, such as women and children (R40m), improving court performance (R80m) and improving infrastructure (R35m).

COURT SERVICES: BUDGETARY ASPECTS

Budget per sub-programme

(i) There will be tariff increases for expert/professional witnesses and intermediaries in sexual offences cases, as well as tariff increases for assessors, to the amount of R16 million.
(ii) The improvement of Language Interpretation Services, has received R2 700 000,00.
(iii) The appointment of Lay Assessors, excluding tariff increases, has been allocated R2 073 000,00.
(iv) The rollout of the five Family Court Pilot projects and the implementation of the Family Court Blueprint, which incorporates interim policy and an implementation plan to better the service delivery of the existing five Family Courts as well as to rollout the concept to women and children who need family court services in rural areas, has been approved. An amount of R17 632 700,00 has been allocated.
(v) The implementation and establishment of Equality Courts will also assist vulnerable women and children. R9 600 000,00 has been allocated for this project during this financial year.
(vi) The Case flow Management Project in order to improve the turn-around time of cases, has received R2 374 000.
(vii) The appointment of Court Managers in order to assist with the administrative duties at court level and to let the judiciary and prosecution focus on their core functions, and in order to bring service delivery closer to the people, has received R3 144 000.
(viii) The creation of 35 additional Regional Court Magistrates’ posts (which includes posts for interpreters and stenographers), which will also assist in the backlog in dedicated Sexual Offences Courts, for example, of which there are 29 at the moment, has received R20 000 000.
(ix) The Family Advocates’ Services will be strengthened and rolled out to the nine Provinces, for which R9 694 000,00 has been allocated.
(x) Training for and further resources for the implementation of the Domestic Violence Act, 1998, has received R2 068 000,00.
(xi) Saturday Courts and Additional Courts to deal with the backlog of cases have been allocated extra funds to the tune of R12 000 000.
(x) The implementation of the Child Justice Bill, No. B 49 of 2002, will also assist in the protection of vulnerable children who are in trouble with the law for subsistence theft. These children will be diverted from the mainstream Justice system. The establishment of One Stop Child Justice Centres will assist in this regard, because this will mean that there is one centre where a child will receive all the necessary assistance: be diverted or tried, with social workers at the place to help him (R10m).
(xi) The Department of Justice and Constitutional Development has also started with the appointment of 55 Assistants to Maintenance Officers, to assist with maintenance investigations on a 6-months contract basis with effect from 1 April 2003, while the permanent appointments of maintenance investigators will also be funded during this financial year 2003/04 (R10m). 55 Maintenance Prosecutors and 9 Senior Maintenance Prosecutors have already been appointed by the National Director of Public Prosecutions during 2002.

3. Restructuring of Child and Family Courts:
Currently, all South African Courts deal with family related issues in a disintegrated manner. For example, divorce matters are dealt with separately from maintenance, domestic violence and the children’s court. Service providers handling these matters are also appointed and regulated in terms of different pieces of legislation, i.e. magistrates, divorce court presiding officers, family advocates, commissioners of child welfare (magistrates in children’s courts), etc.

A move to integrate services for family related matters started in 1997 when a Family Court Task Team was established by the Minister for Justice and Constitutional Development, to develop a vision for family courts in South Africa. As a result, five pilot family courts were established in Durban, Johannesburg, Cape Town, Port Elizabeth and Lebowakgomo respectively. The rationale for family courts in South Africa rests on recognition that families in dispute and children are in need of specialized and dedicated legal assistance and protection. Services that are rendered in Family Courts are: divorce, maintenance, domestic violence, and the children’s court. Although the idea was to integrate all these services under one roof, even in pilot centers service providers are still regulated by different pieces of legislation.

A policy framework for South African family courts has just been finalised to ensure a desired model for South African Family Courts. The existing pilot centers are being strengthened to comply with the envisaged model. After the strengthening process, the model will be rolled out to all parts of South Africa and family related matters and service providers will be regulated by one piece of legislation dealing with family court matters.

The National Family Court policy framework known as the Family Court Blueprint is based on the department’s vision and nine interim policy principles adopted by the National Family Court Task Team. It is recognised that service delivery in family law has been fragmented, unco-ordinated and has been characterised by a lack of substantive access to justice. This has resulted in stress and trauma for both court user and service providers. In order to implement the vision of a holistic and therapeutic approach to Family Law Services, it was resolved that:

The pilot courts should deal exclusively with comprehensive service delivery in the areas of maintenance, domestic violence, children’s courts and divorce.
The pilot courts should provide services in an integrated manner.

The pilot courts should provide users with relevant substantive rights education services.
The pilot courts should provide users with substantive legal advice and assisted form completion.
The pilot courts should, where appropriate, embrace the use of alternative dispute resolution and build this service directly into workflows.
The pilot courts should be staffed and supported by appropriately skilled people who will receive specifically developed training in order to enable them to perform their functions.
The pilot courts should operate in terms of their own specific designated budget and will move towards performance-based budgeting.
The pilot courts should operate within clear management and reporting lines.
The pilot courts should be subject to on-going monitoring and evaluation that is uniform in nature.

Certain strategic priorities as identified by the policy principles forms the basis for practical projects to be implemented which would further form the basis and give fruition to the future of family courts in South Africa. These projects are laid in five broad areas for implementation:
The establishment of a management foundation at both National and Pilot level;
Establishment of a Human Resources foundation;
Establishment of a service delivery foundation;
Full pilot site implementation; and
Legislation development.

I am happy to report that certain strategic priorities have already been effected, such as the advertisement for the post of a National Project Manager who, once on board, will be responsible for full National implementation and help give effect to all the other identified projects. Shortly, a post for a researcher will be advertised. This person will be responsible for all areas affecting family law and help with the research and development of over-arching legislation which affects the areas of service at the family courts. Our contention here is that research and legislation development should run on par with the strengthening process, which would also help to inform a model for roll-out. However it cannot be stressed enough that the family courts should from the outset be subjected to a monitoring and evaluation process as the information gleaned from this aspect would also contribute to informed future decision-making with regards to roll-out.

Lastly, in this regard I wish to stress the Department’s commitment to the strengthening of the family courts, both in terms of funding by allocating R17 632 700,00 million for the project during this financial year and its commitment to making Family Courts a reality to the South African Family.

The Family Court Task Team will continue as an advisory body with more representivity from the Law Society, University research units like CALS, Wits, ADR (mediation) experts etc. The Family Court Task Team meets monthly on a strategic level.

4 UPDATE ON IMPLEMENTATION OF MAINTENANCE ACT, 1998 (ACT NO. 99 OF 1998):

The Maintenance Act, 1998 (Act No. 99 of 1998) was implemented on 1 November 1999, with the exception of the sections dealing with the appointment of maintenance investigators. The Department has, in the mean time, appointed 55 assistants to maintenance officers at courts throughout the country.

These Assistants to maintenance officers were appointed from 1 April 2003 for a period of six months specifically to assist with maintenance investigations at the maintenance courts where maintenance prosecutors have already been appointed by the SOCA Unit of the NDPP. These contract appointments and the work that these officials will carry out, fall within the broader initiative of the restructuring of the maintenance courts, and the complete reform of the family court system.

Induction programmes will be held for the appointees, where after they will be placed at the maintenance courts. Furthermore, a three-day training course will be offered during May 2003 with the assistance of Justice College.

Since most appointees have a legal background, or some experience at the maintenance courts as volunteers, we believe that an almost immediate impact will be felt in terms of providing a better service to

women who approach our courts for assistance with obtaining maintenance.

The duties of assistants to maintenance officers are as follows:

tracing persons liable to pay maintenance;
tracing maintenance defaulters;
gathering and securing information relating to maintenance enquiries;
testifying in court, under the supervision of maintenance prosecutors; and
any other assistance to maintenance officers, as required.

The main thrust of the model is that a holistic approach needs to be adopted, in that appointing maintenance investigators alone will not solve the many issues relating to maintenance and the problems being experienced in the maintenance courts.

The maintenance court initiative now also falls under the umbrella of the family court project.

As soon as the policy for the appointment of maintenance investigators have been approved and the necessary regulations have been finalized, the Department will request the creation of the post class "Maintenance Investigator" and the permanent appointment of such officials as public servants in all 471 maintenance courts. This is naturally subject to the availability of funds.

Finally, since the assistants to maintenance officers will be working under the guidance of the maintenance prosecutors, a memorandum of understanding between the SOCA Unit and the BU: Court Services is in the process of being drafted.

COURTS WHERE ASSISTANTS TO MAINTENANCE OFFICERS HAVE BEEN APPOINTED:

Gauteng: Johannesburg, Pretoria North, Pretoria, Randburg, Germiston, Boksburg, Brakpan, Kempton Park and Vanderbijlpark;
Western Cape: Cape Town, Wynberg, Mitchells Plain (Khayelitsha), Paarl, Belville and George,
Eastern Cape: Port Elizabeth, Bizana, Mount Frere, Butterworth, Mdantsane, Zwelitsha and Uitenhage,
Mpumalanga: Nsikazi, Middelburg, Ermelo, Belfast and Nelspruit,
Free State: Bloemfontein and Botshabelo (1 assistant for both courts), Phuthaditjhaba and Bethlehem (1 assistant), Welkom and Odendaalsrus (1 assistant), and Kroonstad and Sasolburg (1 assistant);
Northern Cape: Kimberley, Upington and De Aar;
North West: Vryburg, Kudumane, Taung, Klerksdorp, Rustenburg, Mmabatho and Odi;
KwaZulu-Natal: Durban, Ladysmith, Newcastle, Pinetown, Umlazi, Empangeni, Mtubatuba and Mhlabathini;
Limpopo Province: Lebowakgomo (Thabamoopo), Tzaneen, Giyani, Thohoyandou, Potgietersrus and Bushbuckridge (Mapulaneng).

5. DEDICATED SEXUAL OFFENCES COURTS:

Substantial progress has been made with the establishment of special magistrates’ courts on a Regional Court level which are dedicated to hear Sexual Offences.

The Court Services Business Unit of the National Department of Justice and Constitutional Development and the Units in the Office of the National Director of Public Prosecutions responsible for Sexual Offences and Community Affairs and the National Prosecuting Service, have established a close working relationship and have developed a National Strategy for the Roll-out of Sexual Offences Courts, so as to prioritise the hearings relating to sexual offences in dedicated Sexual Offences Courts on a Regional Court level. Both the Director-General for Justice and Constitutional Development and the National Director of Public Prosecutions, have approved the strategy.

The National Strategy for the Rollout of Specialised Sexual Offences Courts, recognizes that the fight against sexual offences involving women and children is a national priority. The NPA and DOJCD must be at the forefront of the efforts to reduce the incidence of these offences, and to provide better services to survivors. An integrated and multi-disciplinary approach is essential for any intervention to make a meaningful impact. The rollout of specialised sexual offences courts is an integral component of the national strategy to address this growing concern. The purpose of the strategy is thus to clarify the various roles and responsibilities of the two departments, and also to provide clarity on future plans for the establishment of sexual offences courts.

What is a sexual offences court
Sexual offences, whether perpetrated against women or children, are extremely intricate and complicated crimes to prosecute. The intimate nature of these cases requires prosecutors and magistrates to be sensitive to the needs of the survivor, and the scientific and complicated nature of the evidence requires all role-players to have specific and specialised expertise in order to effectively deal with issues that may arise during the trial. It was with the above in mind, that it was decided to establish these specialised courts.

The objectives of the sexual offences courts are the following:
To provide for the effective prosecution and adjudication of sexual offences;
To increase the reporting rate;
To reduce the cycle time of cases; and
To reduce secondary victimisation for survivors.

In order to achieve these objectives, it is essential that all sexual offences courts comply with the blueprint that was developed for their establishment. This blueprint advocates an integrated and multi-disciplinary approach, and requires cooperation and buy-in from all role-players involved in the criminal justice process. However, it has been accepted that the establishment of a sexual offences court is a process that often takes several months. It is not always possible to immediately provide all the facilities required for a blueprint compliant court. The ultimate goal is to ensure that all courts comply fully with the said blueprint, but it is, however, also necessary to continue with the rollout of dedicated courts, and in the meantime to try and provide at least a minimum standard of facilities in these courts. It has therefore been decided to divide the classification of sexual offences courts in two categories. The first category includes all courts that are dedicated to hearing sexual offences even though they do not yet comply with the blueprint. These courts should not be classified as sexual offences courts, but should rather be referred to as dedicated courts dealing solely with sexual offences. Throughout that rollout phase, the NPA and DOJCD will strive to convert all dedicated courts into fully-fledged blueprint compliant courts. It is however also important to adhere to certain minimum standards in these dedicated courts. We do not want a situation where these courts actually do a disservice to the community and exacerbate secondary victimisation. To prevent this, it was agreed that in order to comply with the minimum standards set for these courts, the following must be present:
2 prosecutors per court;
A dedicated magistrate;
Proper intermediary facilities (CCTV);
A separate waiting area for children and women; and
Sufficient legal aid to ensure speedy finalisation of cases.

An audit of all sexual offences courts will be completed by the end of April 2003. This audit should clearly stipulate in which category each court fits, and what is still required in order to ensure compliance with the blueprint. This audit will thus provide clarity with regard to the current position, and will highlight areas that are in need of specific resources.

Present position
There are presently 29 established sexual offences and dedicated courts. These courts have been extremely successful, and have resulted in a dramatic increase in the conviction rate and a reduction in the cycle time of cases. The further rollout of these courts has received widespread support. The Dept is working on a long-term (5 year) programmatic strategy for the court rollout. After sites have been identified (based on agreed criteria), a thorough needs analysis together with specific timelines should be developed. This will ensure sustainability of the processes, and will also prevent confusion and unnecessary crisis management at a later stage. It will also ensure that budgets are properly allocated to ensure the availability of essential resources.

6. Implementation of the Domestic Violence Act:
The Domestic Violence Act, 1998 (Act No. 116 of 1998) is a response to the social evil of domestic violence and recognizes that its victims are mostly women and children who are often powerless to change their situation because of financial dependency and who are not aware of their rights. A number of legal provisions address issues of violence. The Domestic Violence Act was implemented from December 1999 and has a number of provisions to address the plight of victims more effectively. Special protective measures are given to children who access their rights in terms of the Domestic Violence Act. This Act has been written in a very child-friendly manner. An example can be found in section 4(4) which reads as follows: ‘Notwithstanding the provisions of any other law, any minor, or any person on behalf of a minor, may apply to the court for a Protection Order without the assistance of a parent, guardian or any other person.’ This means that any child can approach the court directly to apply for a Protection Order. In terms of section 11(1)(f) of this Act, any person who applies for a Protection Order (complainant) may be accompanied by not more than three persons for the purpose of providing support to the complainant. The Act also makes provision for proceedings to be heard in camera. The Domestic Violence Act is structured in such a way that it compels all the role players to take a collaborated approach in the management of domestic violence cases in order to be effective and efficient.

Update: Training:
It was recommended that all persons dealing with domestic violence and sexual offences cases undergo mandatory training to equip them with the necessary skills to deal with victims of sexual violence. In addition it was recommended that the Department give consideration to enhance the language skills of court personnel and to sensitize staff on the cultural aspects faced by such victims.

Such training is provided by Justice College and members of the National Prosecuting Authority, as well as with funds received from donor agencies for Magistrates and Intermediaries for example. Such training is however, not yet mandatory, as courts still have to function while personnel are being trained. Court personnel also need to be sensitized on gender issues and this is done at each Justice College Seminar and Course with Social Context training.

Although the training is not yet mandatory, the NPA and the DOJCD have embarked on an aggressive training campaign for all role-players in sexual offences. We have also engaged the Departments of Health and SAPS in this regard. Training of the following people has taken place and further training has been planned for the future:
Prosecutors;
Magistrates;
Court Preparation officials;
Intermediaries;
Doctors; and
Police.
This training includes a strong element of social context training, and will hopefully go a long way towards sensitizing role-players.

The Chief of the Justice College has reported that court personnel also receive training on how to deal with victims of sexual violence. This training is ongoing and caters in particular for the specialized courts that have been established to adjudicate such cases.

One hundred and eighty (180) Regional Court Magistrates received training from 28 to 30 November 2002 in the Strand on the "Judicial Officer and the Child Witness". This was a Justice College initiative. A Business Plan has also been submitted to hold Workshops for Regional Court Magistrates on a provincial basis, to bring them in line with the new developments in the manner and procedure used in Sexual Offences cases.

Ninety (90) South African Police Service, Child Protection Unit officers, received training in Krugersdorp from 24 February 2003 to 14 March 2003 relating to the investigation of Sexual Offences cases.

Magistrates receive social context training provided by Justice College at each seminar/course held. This is to sensitise them not only relating to Sexual Offences issues, but also on gender issues.

The Gender Directorate has prioritized the project "Access to Courts" for the year 2003/2004.

The aims and objectives of this project are to:
Arranging and holding a workshop for Magistrates with a view to empower them on how to respond to gender based violence and to achieve poverty alleviation through judicial decision making;
To identify blockages in service delivery in the identified courts and to develop guidelines on addressing those blockages;
To discuss the implementation of the National Guidelines on Handling Victims/Survivors of Sexual Offences and to develop guidelines for the handling of Maintenance and Domestic Violence Cases;
Discuss the protection of the Constitutional rights, because for rights to be real, they should be recognized and made real;
To discuss the development of mechanisms to support the quality of judicial officers, because legal disputes, conflicts, and complaints need to be resolved in a fair and orderly manner so as to promote harmony and peace;
Providing Magistrates with knowledge on how to strengthen the lower court judiciary;
Providing a forum for the judiciary to discuss issues of judicial independence, ethics, judicial accountability and minimum standards for judicial officers; and
To foster a spirit of partnership and cooperation between all service providers and to encourage members of the judiciary to assume leadership in courts in order to protect women and children.

7. Other legislation:
Other legislation which have been introduced to conform with the provisions of the International Convention on the Rights of the Child, include the Hague Convention on Civil Aspects of International child Abduction Act, 1996, the Films and Publications Act, 1996 and the Basic Conditions of Employment Act, 1997 (Act 75 of 1997).

Legislation Passed Since 1994 Which Has A Direct Or Indirect Bearing On The Protection Of Children and Women Against Any Form Of Violence And Particularly Domestic Violence:

Since 27 April 1994 the Department of Justice has submitted over 70 Bills to Parliament for consideration and approval. These statutes give effect to or address a wide range of aspects which are required to regulate society, particularly in the light of the new constitutional dispensation. An area which has received a great deal of attention and focus in terms of legislation is the marginalised position of women and children, with specific emphasis on their advancement and their protection from all forms of abuse. This is confirmed if one reflects on some of the legislation that has been approved by Parliament. It is expedient to highlight some of these statutes which were intended to come to the assistance of women and children, directly or indirectly, in their fight against abuse and domestic violence.

In 1995 Parliament approved the Criminal Procedure Amendment Act, which brought about comprehensive changes to the bail laws. In terms of the new bail law, an accused person is entitled to be released on bail unless the court finds that it is in the interests of justice that the accused person be detained in custody. The amendments, among others, set out comprehensive guidelines for the courts to take into consideration when deciding what is in the interests of justice, whether an accused person should be kept in custody pending the finalisation of his or her trial. Many of these guidelines have a bearing on violence against women and children and will prevent many an accused person from continuing with acts of violence against women and children before their criminal trials have been finalised. Should the circumstances of a case before a court in bail proceedings be similar to what is set out in the guidelines, this should send out a clear message to the judicial officer concerned that the interests of justice require the further detention of the accused person and the refusal of bail. Allow me to mention a few of these guidelines which must be taken into account. For instance, the following:
* where there is the likelihood that the accused person, if he or she were to be released on bail, will endanger the safety of the public or any particular person or will commit any serious offence such as murder, rape, indecent assault, kidnapping, child-stealing, assault when a dangerous wound is inflicted and malicious injury to property, all offences which place women and children at high risk;
* where there is a likelihood that the accused person will attempt to influence or intimidate witnesses;
* any threat of violence which the accused person may have made to any person;
* the fact that the accused person is familiar with the identity of witnesses and with the evidence they may give; and the relationship of the accused person with the various witnesses and the extent to which they could be influenced or intimidated.

In 1996 the Commission on Gender Equality Act was enacted and the Commission on Gender Equality was established. In terms of this legislation the Commission has the power to investigate any gender-related issues of its own accord or on receipt of a complaint and to resolve any dispute, to rectify any act or omission by mediation, conciliation or negotiation and, where necessary, to refer any matter to the South African Human Rights Commission or the Public Protector or any other appropriate authority to deal with the matter in terms of the legislation regulating these institutions. The South African Human Rights Commission can, for example, institute court proceedings on behalf of a complainant.

In 1997 the Divorce Courts Amendment Act opened the then Black Divorce Courts to all races, giving women access to less costly divorce proceedings and making it easier for many women to walk out of an abusive marriage relationship, also benefiting the children of the marriage.

In 1997 the Criminal Procedure Second Amendment Act again brought about changes to the bail laws to ensure that persons who are accused of having committed serious offences are not released on bail, again offences where women and children are the victims.

Also in 1997 the Criminal Law Amendment Act was approved by Parliament. Besides giving effect to the Constitutional Court's judgment in respect of the death penalty, this Act provides for the imposition of minimum sentences in respect of certain serious offences, for example murder and rape. These sentences are more severe in certain circumstances, for instance i) when the death of a woman was caused by a person in the commission of a rape or attempted rape, or ii) where the rape victim was raped more than once, or iii) where the rapist has previous convictions for rape, or iv) where the victim is under the age of 16, or v) where grievous bodily harm is inflicted.

The Witness Protection Act was approved by Parliament in 1998. This Act provides for the better protection of witnesses through witness protection programmes which will be administered by a central Office for Witness Protection. It is often difficult to prosecute cases successfully because of witnesses not coming forward to testify because of intimidation. This is often the case with domestic violence related cases. Offences to which this Act applies include murder, rape, kidnapping and indecent assault.

The Prevention of Organised Crime Act, 1998, is intended to introduce measures to combat organised crime, money laundering and criminal gang activities. It prohibits certain activities relating to racketeering, that is the planned, ongoing, continuous or repeated participation or involvement in certain offences. It prohibits money laundering and criminalises certain activities associated with gangs and it provides for the recovery of the proceeds of unlawful activities as well as for the forfeiture of criminal assets that have been used to commit an offence or assets that are the proceeds of unlawful activities. Offences to which numerous provisions of this Act apply include murder, rape, kidnapping, assault with intent to do grievous bodily harm, indecent assault, child-stealing, malicious injury to property and the contravention of section 20((1) of the Sexual Offences Act, 1957.

Of great importance in the fight against abuse against women and children is the Domestic Violence Act which was enacted in 1998. This Act constitutes a substantial broadening of the limited scope of its predecessor, the Prevention of Family Violence Act, 1993, and recognises that domestic violence is a serious social evil and an obstacle to achieving gender equality. Among others, it offers protection to any victim of domestic violence, that is physical or mental abuse, who is or was in a domestic relationship with an abuser. It places a duty on a member of the South African Police Service (SAPS) to inform a victim of his or her rights at the scene of the violence and requires the National Commissioner of the SAPS to issue national guidelines which must be observed when dealing with domestic violence. It makes provision for a peace officer to arrest any respondent at the scene of an incident of domestic violence without a warrant if the peace officer reasonably suspects that the respondent has committed an offence containing an element of domestic violence.

8. The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, emanates from section 9 of the Constitution, which deals with the right to equality and is intended to give full effect to the right to equality as contemplated in the Constitution. The Act consequently deals with prevention and prohibition of unfair discrimination as well as the promotion of equality. The objects of the legislation are, among others, to -
* give effect to the letter and spirit of the Constitution;
* prevent and prohibit unfair discrimination and to provide redress in cases of unfair discrimination;
* facilitate South Africa’s compliance with international human rights treaty obligations, with specific reference to the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women;
* provide for the eradication of current systemic discrimination which is a legacy of previously legalised discrimination;
* provide for the promotion of equality, prioritising the adoption of measures to advance persons disadvantaged by unfair discrimination;
* provide for measures aimed at ensuring the eradication of unfair discrimination, hate speech and harassment with special focus on race, gender and disability.

Chapter 2 of the Act deals with the prevention, prohibition and elimination of unfair discrimination, hate speech and harassment. Besides the general prohibition of unfair discrimination on any of the prohibited grounds, as set out in the definition of "prohibited grounds (which is not a closed list, but all the 17 prohibited grounds contained in the Constitution), special attention is given in this Chapter to the prohibition of unfair discrimination on the grounds of race, gender and disability, three areas which require focus in the light of our history. Sections 7 to 10 consequently highlight various common forms of unfair discrimination in these areas which are specifically prohibited, but not to the exclusion of any other forms of unfair discrimination which might be alleged, such as discrimination based on age.

This Chapter also prohibits hate speech by prohibiting the publication, propagation or communication of words that are clearly intended to be hurtful, harmful or to promote or propagate hatred on any of the prohibited grounds. Likewise, this Chapter prohibits the dissemination or publication of information that unfairly discriminates on any of the prohibited grounds, unless it is done in the course of bona fide artistic creativity, academic or scientific inquiry or fair and accurate reporting in the public interest. Lastly this Chapter prohibits any form of harassment. ("Harassment" is defined in section 1 as serious, persistent unwanted conduct, which demeans, humiliates or creates a hostile environment or is calculated to induce submission and which is related to sex, gender, sexual orientation or a person's membership of a group identified by one or more of the prohibited grounds). There is no defence to hate speech or harassment.

Chapter 4 of the Act deals with the enforcement mechanism. Disputes arising out the provisions of this legislation will be adjudicated in equality courts. All magistrates' courts and High Courts are equality courts and will be presided over by trained presiding officers designated by the Minister after consultation with the Judges-President or cluster heads concerned. The South African Human Rights Commission and the Commission on Gender Equality can also institute proceedings on behalf of litigants. These courts have the power to make a very wide range of orders, ranging from orders of a deterrent nature to orders of a restorative or corrective nature.

Section 28(1) of the Act is important and provides as follows:

"If it is proved in the prosecution of any offence that unfair discrimination on the grounds of race, gender or disability played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence.".

The Act was promulgated in February 2000. The Act gives effect to section 9 read with item 23(1) of schedule 6 of the Constitution of the Republic of South Africa, 1996.
 
The Act give effect to section 9 read with item 23 (1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, so as to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith.
 
Sections 1, 2, 3, 4(2), 5, 6, 29 (with the exception of subsection (2)), 32, 33 and 34(1) were put into operation on 1 September 2000.
 
The Amendment Act (No.52 0f 2002), which came into operation on 15 January 2003 serves:
to further provide for the training and designation of presiding officers of equality courts for purposes of the Act;
to provide for the designation of magistrates’ courts as equality courts;
to further regulate the training of the clerks of equality courts;
to provide for matters connected therewith.
 
The Department envisages –
to incrementally establish equality courts to dispense equality justice
Facilitate judicial education and training on equality.
Facilitate provision of identified equality courts with minimum resources to operate (i.e. furniture, equipment).
Monitor and evaluate the implementation process.
 
Extension of jurisdiction of Equality Courts at magisterial level – This forms part of the amendments to give more access. The Act further provides for the Minister after consultation with the head of the administrative region concerned, to increase or reduce the area of jurisdiction of each equality court. As a result the first phase of 47 equality courts have been designated in all the nine provinces of South Africa. This process was facilitated in consultation with the heads of the courts
 
An amount of R2.7 million for Equality Courts was successfully sourced from the funds dedicated to upgrading of courts infrastructure. The money has been allocated to these 47 courts to provide them with minimum resources to operate as equality courts.
 
Designation of presiding officers/clerks - Also part of the amendments, these are crucial to the operation of the Equality Courts. The Judge President designates presiding officers at High Court level and the head of administrative region designates presiding officers at the magisterial level whilst the Director- General of the Department of Justice and Constitutional Development designates clerks of the equality courts.
 
Training of presiding officers and clerks of equality courts is ongoing as this is a condition for operating the courts in terms of the Act. The Act requires trained clerks to inter alia assist unrepresented complainants in the process of instituting their cases.

Regulations on Prevention of Unfair discrimination – The prevention regulations have been approved, finalized and ready for publication. The requirement regarding translation of these regulations to iSizulu has already been finalized. Promotion regulations (Chapter 5) are in draft phase. They are still to be refined
 
The rest of the Act is not yet in operation. There is tremendous pressure to have the Act wholly operational and the issue of resource/ budgetary constraints, remains an obstacle, but the equality courts were prioritised in the whole implementation plan.

9. IMPACT OF THE CHILD JUSTICE BILL, NO. B. 49 OF 2002 ON THE QUALITY OF LIFE OF WOMEN AND CHILDREN:

The Department of Justice and Constitutional Development is committed to strengthening the protection of vulnerable people in the criminal justice system. In keeping with this commitment, the Child Justice Bill, No B. 49 of 2002 was introduced into Parliament on 8 August 2002, and the Department is looking forward to the matter being debated in Parliament in the near future.

The Child Justice Bill seeks to promote crime prevention by dealing appropriately with children when they first come into the criminal justice system.

Application of the Bill:
The Bill applies to any person under the age of 18 years who is alleged to have committed an offence. The minimum age of criminal capacity is raised from seven to 10 years. It is presumed that children between the age of 10 and 14 years lack criminal capacity, but the State may prove such capacity beyond reasonable doubt.

Children in detention:
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 government has had to continue to grapple with the problem of too many children being detained in prison.

In March 2000 the highest ever number was recorded at 2828. Following government intervention led by the Department of Justice and Constitutional Development from April 2000 the number of children awaiting trial started to decline significantly and by September 2000 had gone down to 1862. The number has risen slightly since then, the most recent verified statistics being for November 2002, when there were 2256 children awaiting trial in prison.

In order to keep children out of police cells and prisons, the Bill encourages the release of children into the care of their parents. A probation officer will assess every child before the child appears at a preliminary inquiry. A preliminary inquiry is held in respect of every child within 48 hours of arrest and is presided over by a magistrate, referred to as the "inquiry magistrate". Decisions to divert the child away from the formal court procedure to a suitable programme may be taken at the preliminary inquiry stage, if the prosecutor indicates that the matter may be diverted.

Positive deliverables of the Bill:
The Bill Aims to –
protect children charged with less serious offences from the brutalising effects of courts and prisons;
speed up the criminal justice process regarding children by reducing the number of trials;
involve victims and communities through an emphasis on ubuntu and restorative justice;
promote moral regeneration by bringing families and communities back to the centre of managing the behaviour of children; and
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.

IMPACT OF THE CHILD JUSTICE BILL ON THE CHILD AND FAMILY COURTS:

The Child Justice Bill as contemplated in section 41(1) will have an impact on the Children’s Court in circumstances where a matter is referred from the preliminary inquiry by the inquiry magistrate to the Children’s Court and this will occur in instances where a child is a child as referred to in section 14(4) of the Child Care Act, 1983 (Act No. 74 of 1983), as a Child in need of Care.

Family Courts tend to focus on civil and family matters. This means that current work in the Family Courts does not include Child Justice. However, the door is not closed to the possibility of a Child Justice Court being included at a future time. In particular the sharing of resources such as access to social workers and probation officers, would be a logical practice.

PROGRESS WITH THE CHILD JUSTICE BILL:
The Child Justice Bill (No. 49 of 2002) was presented to the Portfolio Committee on 20 February 2003.
The Department presented jointly at the briefings with members of the SOCA unit of the NPA, but was also supported by a number of partners, such as the Inter-sectoral Committee for Child Justice, and representatives of the Departments of Social Development, Correctional Services, Education and the SAPS.
The government presentations focused on planning for implementation, and on the budget implications of the Bill.
The Portfolio Committee acknowledged that a great deal of work had been done on planning for the implementation of the Bill, and appreciation was expressed to the Departments concerned.
Some additional work regarding implementation planning and budgets was requested by the Portfolio Committee, and the various departments are currently working on this. They will present this work to the Portfolio Committee when requested to do so.
In addition to the government briefings to Parliament, public hearings were held over three days in the last week of February 2003. Several non-governmental organizations and individual experts gave oral submissions, and many written submissions were also received.
There was broad support for the Bill. The legislative drafting team has summarized these submissions for the Portfolio Committee.
The Portfolio Committee began their deliberations on the Child Justice Bill on 10 March 2003. They have worked the through the Bill, and given detailed instructions to the drafting team. Redrafting is currently taking place.
The Portfolio Committee chairperson indicated that the redrafted Bill will be deliberated upon during the second session of Parliament, after the parliamentary recess, which ends on 12 May 2003.

Although substantial redrafting of certain sections has been requested, the main policy direction of the Child Justice Bill remains intact. Some suggestions for minor policy changes were discussed by the Portfolio Committee, but no final decisions have as yet been taken. At this stage it appears likely that the Child Justice Bill will be passed before the end of 2003.

It is trusted that the above information will be of assistance.