Report of the Portfolio Committee on Justice and
Constitutional Development on the Child Justice Bill [B 49 – 2002] (National
Assembly – sec 75), dated 24 June 2008:
The Portfolio Committee on Justice
and Constitutional Development, having considered the Child Justice Bill
[B49-2002], reports as follows:
The important and overdue Child Justice Bill was introduced in Parliament
in 2002. The Portfolio Committee made various amendments to the Bill, and in
2003, for a variety of reasons, suspended processing the Bill. The Ministry
worked on the Bill further and proposed new amendments to Parliament in
December last year.
The Portfolio Committee organised public hearings on the Bill in February this
year because five years had elapsed since the Bill was first introduced in
Parliament and the Bill had been significantly changed. The approach of the
Committee in processing the Bill this year was similar to that of the 2002
Committee, revolving around two principal considerations:
The need to balance, on the one hand, the rights of the child established in
the Constitution and our legal obligations in terms of international treaties
and conventions with, on the other hand,
the rights of the victims of crime and the need to fight crime and
ensure the safety and security of the community.
The need to ensure that the State has the necessary capacity to effectively
implement the new criminal justice system for children decided on.
The Committee is excruciatingly aware of the high levels of crime in our
country and the capacity of children in our country to commit crime. The
Committee is also acutely aware of the public perception that the State is
failing dismally to curb crime. It is precisely because of these concerns that
the Committee effected changes to the Bill. Clearly, it is important to be
tough on crime, including crime committed by children, but we also have to
ensure that this is part of a process of preventing and reducing crime over
time, and ensuring that children are not criminalized and constantly re-offend,
becoming part of an endless cycle of crime. What future has the country
otherwise? Clearly, there need to be short, medium and long term programmes,
measures and targets as part of an overall, sustainable long term strategy to
reduce crime by children as part of a broader approach to reduce crime
generally in the country. This Bill has to be located in the context of the
need of these considerations.
The statistics provided by government departments, NGOs, academic and other
experts to the Portfolio Committee are far from reliable or comprehensive
enough and there are also many gaps in the research on crime committed by
children. However, it is reasonably clear that while there are many complex
objective and subjective reasons for crimes committed by children, a
significant part of crime has fundamental material and structural roots – and
unless we adequately address these systemic issues, and develop a child justice
system that is effectively based on both preventing and combating crime, we
will not be able to reduce the levels of crime committed by children over time.
This is not to be reductionist (understand crimes by children to be simply an
outcome of the structure of society), nor is it to ignore the subjective
choices children make to commit crime for which they must be held accountable;
it is about finding a balance between the objective and subjective dimensions
of crime committed by children – and it is this that underpins the key changes
to the Child Justice Bill that the Portfolio Committee effected. Of course, key
aspects of preventing crime by children are dealt with in other legislation and
the policies of other Departments, but the Child Justice Bill also has to
contribute to this – and this too explains part of the Portfolio Committee’s
approach.
The Committee is clear that we should not be romantic about children in our
country or ignore the extent to which children, especially older children,
subjectively choose to commit crime, and they must therefore be held
accountable for their actions; nor should we downplay the State’s
responsibility to ensure the safety and security of both the potential victims
of crime by children and the society as a whole. But we are equally clear that we should avoid
an “exceptionalism” that borders on suggesting that SA children, basically
African children, are inherently worse than children universally and are
incapable of being rescued from a predilection to committing crime; which in
effect borders on neo-racist theories. It is in striking a path between these
two extremes that the Portfolio Committee’s approach is directed.
The Committee processed the Bill this year in a somewhat changed context from
that of the Committee in 2002. Of course, public anxieties and frustrations
about the levels of crime and the perception that the State is failing to curb
crime have heightened. These are very understandable feelings and views, and
the Committee is entirely empathetic.
But the Committee cannot shape legislation on a new sustainable model of
child justice with both immediate and long term goals solely on the basis of
the emotions of the public, as legitimate as these are and as accountable as
Parliament is to the public. The Committee is careful to avoid being populist
and “short-termist” in our approach and it is precisely because of public
concerns about crime and the need to ensure the safety and security of the
public that the Committee effected changes to the Bill. Interestingly, while
recognizing the limitations of Cape Town-based Parliamentary hearings and the
questions about the “representativity” of those who participate, every
submission we received at the public hearings, it must be noted, is broadly
consistent with, and, of course, influenced, the approach of the Committee and
the changes we ultimately effected to the Bill. The changes we made are
influenced by other developments since 2002, including:
The notion of “restorative justice” is a fundamental aspect of the Bill –and
there have been significant advances in the concept and practice of restorative
justice since 2002, both in
Departments, especially the Department of Social Development (DSD), other State
structures and NGOs have developed greater capacity to implement the Bill since
2002, and in some respects are already implementing key aspects of it,
including assessments and diversion. In a sense, the Bill is lagging behind
current practice – and serves to provide a legislative framework for ad hoc
practices that have emerged. The Bill is, in some respects, a formalisation of
practices already in place.
According to the Department, there are about 18 000 children already being diverted away from the criminal justice
system as provided for in the Bill.
There are now more and more experienced Probation Officers than in 2002 – and
these Probation Officers have a key role to play. The work they are already
doing is consistent with the current provisions of the Bill.
There are also more secure care facilities now than in 2002 for children in
conflict with the law. DSD
representatives who appeared before the Committee said that there are plans to
increase the number of secure care facilities (child and youth care centres, in
terms of the Children’s Act).
There are changes to other legislation affecting children since 2002, including
the Children’s Act which are more consistent with the
current version of the Child Justice Bill.
The Bill was also amended to make it easier to read and to be more
user-friendly. The draft we received was difficult to read, not just for
children rights activists, child care workers,
probation officers, police, correctional services officials, diversion
service providers, teachers and others,
but possibly also for lawyers, prosecutors and magistrates.
A key aspect of the Bill is the diversion of children who come into conflict
with the law away from the formal criminal court procedures. Diversion, experts
say, began to be applied in our criminal justice system from 1992 and is being
increasingly practised, even though it lacks a legislative framework to
regulate its implementation. The lack of legislation has led to some problems
about legal certainty, and the practice of diverting children has become
inconsistent. Some case law on restorative justice has developed. However, the Committee feels that the
legislative framework provided in the Bill will contribute to uncertainties
being removed and ensure a clear, transparent procedure, and will serve to hold
decision-makers to account.
Basically, diversion allows for the referral of a child away from the formal
court system to some form of diversion option or programme which represents an
alternative to the formal criminal justice system, and instead the child is
held accountable for his or her actions through this process. The benefits of
this include ensuring that the child receives an intervention based on his or
her individual circumstances aimed at preventing him or her from re-offending
and producing the best outcome for the child as well as promoting public
safety. In addition, the child does not incur a previous conviction, thereby
allowing him or her to become a productive member of
society without the stigma attached of a criminal record. However, precisely
because diversion represents an alternative to the formal criminal justice
system, the Bill carefully regulates the issue. The Bill has created a system
of checks and balances to ensure that diversion is not a ‘soft option’ for
children who commit crime. These checks and balances include only allowing for
the diversion of serious offences in exceptional circumstances; requiring the
Director of Public Prosecutions to decide on whether children charged with more
serious offences can be diverted; providing that a presiding officer may decline to make a
diversion order even if requested by a prosecutor. Other measures include the
adoption of minimum norms and standards for the content of diversion
programmes; the regular accreditation of diversion service providers; quality
assurance; and the monitoring of
diversion orders. There are also mechanisms to bring the child back into the
criminal justice system should he or she fail to comply with a diversion order.
The Committee has created a carefully balanced system of diversion in order to
ensure that children are diverted from the formal criminal justice system,
while also ensuring that such diversion is not only in the interests of the
child, but also society.
Since diversion is such a key feature of the Bill, its success will ultimately
depend on how the provisions of the Bill dealing with it are applied in
practice. The Bill only allows for
diversion to be considered as a possibility if the child acknowledges
responsibility for the offence, and if he or she has not been unduly
influenced, to make an acknowledgement to this effect. The role of presiding officers and
prosecutors in this regard is possibly limited when compared to the role of the
legal representative of child. Legal
representatives might often be better placed in assisting the court to come to
the correct decision relating to diversion, having facts at their disposal
which may not necessarily emerge during a preliminary inquiry. The Bill requires a legal representative to
promote diversion, but not to unduly influence the child to acknowledge
responsibility. Legal representatives
need to be acutely aware of their responsibilities when giving effect to this
particular aspect of the Bill.
The Committee feels that it is important to stress that diversion is not meant
to widen the door to adults more readily using children to commit crime, and
refers to section 92 of the Bill for action against adults in this regard.
While the Committee is clear that the provisions of the Bill on diversion are
sound, we have concerns about the capacity of diversion service providers. We
are clear that the capacity of the diversion service providers needs to be
significantly developed. The Bill has several provisions that seek to ensure
this, including the requirement that DSD should “ensure availability of
resources to implement diversion programmes, as prescribed” (section 56 (2)
iii). DSD, the Department of Justice and Constitutional Development, the
Intersectoral Committee for Child Justice, Parliament, NGOs and other
stakeholders need to actively monitor the programmes delivered by diversion
service providers and, very crucially, the outcomes.
A key principle of restorative justice is that of reconciliation, which entails
taking into account the views of the victim, their families and others
connected to the victim. In good
measure, this Bill gives effect to the Service Charter for Victims of Crimes,
which was adopted by the Executive in 2006, by, among others, the following
provisions:
Specifically including, as diversion options, victim-offender mediation, which
is designed to bring together the victim and the child offender, and family
group conferencing, which includes not only the victim and child offender but
also their respective families.
Encouraging, where reasonably possible, regard for the victim’s views by the
prosecution on whether or not the matter may be diverted, as well as, in the
most serious offences, the victim’s views on the nature and content of the
diversion option that is being considered, including the payment of
compensation or the performance of a specific benefit or service by the child.
Obliging a child justice court to take into account the
severity of the impact of the offence on the victim when sentencing a child.
Allowing the prosecution to place before a child justice
court a statement by the victim on the physical, psychological, social,
financial and other consequences that the crime has had on him or her.
The implementation of the above provisions, however, requires sensitivity to
the plight of victims. It is important that government departments ensure that
their information management systems are designed to collect and analyse trends
to allow them to intervene more appropriately, where necessary, with respect to
the needs and the plight of victims.
The Committee notes that the DSD has established 30 secure care facilities in
all the provinces and has budgeted and planned to establish another 20. This is
important as the Bill aims to divert children as far as possible away from the
criminal justice system into the child care and protection system. In terms of
Chapter 13 of the Children’s Amendment Act, 2007, all secure care facilities
and reform schools will become child and
youth care centres, for awaiting-trial
and sentenced children. The existing four reform schools and 17 “schools of
industry”, which are administered by the Department of Education at the moment,
will be transferred to DSD within the next two years. The Committee notes that
until this happens there might be challenges, and feels that the process should
be fast-tracked.
There is currently a ban on children under 14 awaiting trial in prison. While recognizing the challenges, the
Committee has decided to provide for this restriction to be extended to
children under 14 being sentenced to a term of imprisonment. Unlike other
provisions of the Bill, there was not substantial consensus within the
Committee on whether the exclusion should apply to the child when he or she is
under 14 at the time of sentencing, as the Bill provides for, or whether the
child has to be under 14 at the time of the commission
of the offence. This may require further consideration in future.
The Constitution requires children in conflict with the law to be kept
separately from adults. The Bill provides that this must apply also when
children are being transported to and from their place of detention and court.
However, it is recognized that this is in some situations not possible and the
Committee has, very reluctantly, after much deliberation, allowed for these
exceptions. But the Committee is clear that only in exceptional circumstances
and where it is simply not possible otherwise, must children be transported
together with adults. All stakeholders are required to monitor this to the
extent reasonably possible.
The Committee was informed that girl children, especially in police cells and
lock-ups who appear in court, are often found not to have access to sanitary
pads required during their menstrual cycle. While the Committee recognizes that
this falls outside the ambit of medical assistance, we feel it should be considered by the police, secure
care facility and correctional facility authorities.
The “recognizing” section of the Preamble of the Bill suggests that black
children are more vulnerable to crime because of the legacy of apartheid. While
supporting the Bill, the Democratic Alliance (DA) raised reservations about the
reference to black children in this context. The majority in the Committee
feels that this section of the Bill holds true for the present, but agreed that
it may not necessarily be so in the future. An amendment was effected to this
section of the Preamble to partly address the DA’s concerns, and the Committee
agreed that the section should be reviewed after 5 years to consider its
continuing relevance.
In terms of section 154(3) of the Criminal Procedure Act, there is a
prohibition on the publication of any information which may reveal the identity
of an accused person who is under the age of 18 years. However, once the person
turns 18 the prohibition falls away. The
Committee feels that the Department, and perhaps the South African Law Reform
Commission, should consider an amendment to section 154(3) of the Criminal Procedure
Act to provide for the retention of the prohibition after a person turns 18.
The Department should report back to the Committee on this within a reasonable
time.
The Committee feels it is important to draw attention to the many provisions in
the Bill relating to the need for children and their parents or “appropriate
adults” to be fully informed about the way the new child justice system will
work, and there is significant space for them to also be heard in respect of
the offences the children are accused of.
While the State has obvious obligations towards children it cannot substitute
for the role of parents, who have the primary responsibility towards children.
This principle has been given legislative definition through the inclusion of the
concept of parental rights and responsibilities in the Children’s Act. Section
18 states that parents of children have both parental rights and
responsibilities towards children, which include care of and contact with their
children. Care is defined in the Act to include protecting the child from
maltreatment, abuse, neglect, degradation, discrimination, exploitation and any
other physical, emotional or moral harm or hazards and guiding the behaviour of
the child in a humane manner. These are responsibilities best fulfilled by
parents and the State should not be a substitute provider for this type of care
unless circumstances require. The issue of parental care being the primary care
for children has been alluded to by the Constitutional Court in The Government
of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA
46 (CC), where the Court reasoned (albeit in the context of socio-economic
rights) that the Constitution contemplated in section 28, seen as a whole, that
children should be basically cared for by their parents and families. The Bill
provides many opportunities and obligations to ensure the participation of
parents, both in requiring their presence at formal justice processes, and
involving them as far as possible in diversion and community-based sentences.
This is one of the practical ways in which the aim of promoting “Ubuntu” can be
realised. Children do not live alone, they are members
of families and communities. It is well understood that a sense of belonging,
as well as caring about what one’s family and community think or feel about
one, are powerful factors in preventing crime. The Committee feels that unless
we can re-establish functional families, we cannot solve all the challenges
associated with children coming into conflict with the law. We need to rebuild
society through strong families, kinship groups and communities, which will
further add towards crime prevention and the prevention of children
re-offending.
The Committee is acutely aware of the capacity and other constraints of the
State to implement the Bill, and the amendments to the Bill were effected with
this constantly in our collective mind. There are also various provisions in
the Bill that relate to the need to develop the capacity of the State. The Preamble
also notes, in the “acknowledging” section, that “there are capacity, resource
and other constraints on the state which may require a pragmatic and
incremental strategy to implement the new criminal justice system for
children”. We engaged rigorously with the Departments and other state
structures on their capacity to implement the Bill. This included about 12
hours in closed workshop-type meetings and a further eight hours in ordinary
Portfolio Committee meetings. We also required the State and other structures
to respond in writing to questions about their capacity to implement the Bill,
which were put to them in writing. We also undertook study visits, without
pre-warning, to the One Stop Child Justice Centres and diversion service
providers in Mangaung and
Interestingly, the original independent 2001 report on the costing exercise on
the Bill noted: “capacity is an important consideration in transformation
(human capacity, financial capacity, information technology, etc). But current
capacity should not dictate the destination that the Child Justice Bill wishes
to achieve. … Current capacity does
however influence the trajectory of the implementation strategy to achieve the
specified objective”. An important consideration is that people tend to seek to
invest time in learning how a new system works only if that system is a reality
in their lives. “So long as the implementation of the system is being planned
so people will only plan to learn how it works some time in the future, i.e.
capacity will not be developed without some external pressure.” The report also
rejects a big bang approach, which, it says, could severely compromise service
delivery but acknowledges that dividing the actual implementation into a number
of phases is a challenge. The report also suggests that a systemic approach
will probably require a reasonably long roll-out period, requiring a project
management approach. The implementation plan will also need to be reviewed
regularly. Obviously, there will be major costs in implementing the Bill, but
over time, experts argue, there will be financial savings for the government.
Obviously, there are aspects of the CJB that only the state structures should
implement, but there are other aspects that the NGOs could assist with and are
keen to do so. It is important, however, not to conflate the roles of the State
and NGOs, but certainly there is a need for greater co-operation between them, and the Committee effected various
amendments in the Bill to encourage this.
There are various regulations, directives and national instructions that
Parliament has to approve of. The Committee commits itself to fulfilling its
responsibilities in this regard with due expedition.
In view of the need for inter-sectoral co-operation and co-ordination in the
implementation of the Bill, the Committee will co-operate with the Social Development
and other relevant portfolio committees in oversight of the implementation of
the Bill. The Committee will seek to facilitate at least one meeting a year to jointly
receive reports from the relevant departments and other stakeholders in order to
monitor progress on the implementation of the Bill.
The Committee acknowledges the extremely valuable contribution of various
individuals in the finalization of the Bill, including Mr Laurence Bassett,
Advocate Shireen Said, Ms Thandazille Skhosana, Ms Corlia Kok and Mr Hennie
Potgieter, who made up the Department team; Dr Anne Skelton, Dr Jacqui
Gallinetti and Ms Dhaksha Kassan from
the Child Justice Alliance; Ms Christine
Silkstone of Parliament’s Research Unit;
researcher Mr Tumisang Bojabotshena; and Mr Neil Bell, Chief Editor,
Bills Office of Parliament.
While the Committee regrets the delay in finalising the Bill, we would like to
think the delay served to, ultimately, produce a better quality Bill.
Certainly, the Bill is the outcome of considerable negotiations among a range
of stakeholders, and there is now substantial consensus on its content between
Parliament, the Executive, NGOs and academic and other experts. The challenge
now is for us all to work together to implement the Bill effectively. The
Committee feels we owe this to the children of our country and we need to do
this to consolidate and advance our democracy.