Regulation of Interception of Communications & Provision of Communication Related Information Amendment Bill & Child Justice Bill: briefings by Department of Justice

Regulation of Interception of Communications and Provision of Communication related Information Amendment Bill
The Chairperson noted that this Committee had been about to adopt the Bill but there had been some interventions by the Executive and the Committee had therefore rejected it. The Bill was now referred back to the Committee again.

The Chairperson suggested that there should not be a completely new briefing on the Bill, but that the specific amendments pursuant to suggestions by the provinces would be outlined.

Mr J le Roux (DA, Eastern Cape) said that he recalled that this Bill was rejected because of submissions made by stakeholders that the Bill was impractical, and not because of interference by the Executive. He suggested that once the amendments were proposed, the stakeholders should be consulted again.

The Chairperson noted that the Committee had proposed some amendments on the day before it finally considered the Bill. When it was about to present those amendments, the Ministers had asked that those not be tabled. The Committee was concerned that the Executive was seemingly attempting to usurp the role of Parliament.

He reminded Members that the issues firstly concerned the roaming provisions. This Committee said that the requirements were seen as onerous, and would be frustrating tourists - especially those arriving for 2010 - who would have to queue and register for roaming. Secondly, the registration process had been seen as problematic for those small shops that would be selling airtime. The South African Police Service (SAPS) had also noted that it would not have capacity to police the requirements. Thirdly, there had been a request from the service providers to have 24 months to implement the systems, whereas the Department wished to limit this to 12 months. The Committee had suggested a compromise of 18 months for implementation.

Mr le Roux asked if there had been any indication how much this was likely to cost, as he noted that the cost was likely to be passed on to the consumer.

Mr Lawrence Bassett, Chief Director: Legislation, Department of Justice, noted that the registration of roamers had been amended. Similarly there had been amendments to the registration of handsets. He noted that the outstanding issue, which could be dealt with easily, was the registration period, which was still reflected in the Bill as twelve months.

Mr Sarel Robbertse, State Law Advisor, Department of Justice, was asked to refresh the Committee's memory on some further amendments. He noted that the first related to Section 40 in relation to information to be stored by cellular operators. This had originally provided that SIM cards should not be activated until such time as certain information had been recorded. The network operators had submitted that this should not be done, as certain information could be made available without the necessity to go through the registration process. Amendments were proposed to clause 1(g), whereby roamers were now defined. Roamers were now excluded from the general operation of Section 40. However the new requirements for roaming were set out in Section 40A(1), including the MSISDN number, the IMEI number and the name of the home network. Now that this was included section 40(9) could be deleted. He explained that this then necessitated consequential amendments to other subsections. References to cellular phones would be deleted. If the cellular operators failed to comply, this non compliance would be criminalised. 

The Minister of Communications requested the department to effect certain other amendments to the Act. The first was that the expression "after consultation with” should be amended to read "in consultation with the Cabinet Member responsible for communications." He explained that "in consultation" implied that there must be consensus between the Ministers in the consultation process, whereas "after consultation" merely meant that there should be discussions.

He noted that one amendment not effected yet related to the time period for registering pre-paid cellular phone users. He noted that the committee wished this to be amended from 12 to 18 months, and this would be effected>

Mr Robbertse, having given this general introduction, then moved to the specific clauses of the Bill, indicating that the double-underlining showed completely new amendments.

Section 1 of principal Act: Definitions
Mr Robbertse noted that there was a new definition to "activate". The definition of "customer" was also being amended, by including a further phrase to deal with employees of the electronic communication service provider (ECSP), or one who received the service as a gift. A consequential amendment was made to the definition of "identity number".

A new definition had been inserted for "roam". This meant the use of an electronic communication system by a ECSP in South Africa to a customer of another ECSP outside South Africa.

The Chairperson asked why it was necessary to have a definition still for roaming, as the concept of legislating for roaming had been rejected.

Mr Robbertse noted that the registration of roaming had been rejected, as it was seen as unnecessarily burdensome. The Department had consulted with all the law enforcement agencies, who noted that the ECSPs’ systems would be able to capture certain information as soon as a call was made. However, the law enforcement agencies were adamant that certain information must be captured, which equated with what was currently being captured, and, in addition, wished to ensure that information would be stored, to deal with the problems identified.

Ms Ina Botha, Senior State Law Adviser, Department of Justice, referred the Committee back to section 40(1)(a) of the principal Act. It had not used the word “roam”. It contained a general prohibition that no mobile service could be offered to a person unless there had been registration of certain details, and so it would have covered not only South African users, but roaming as well. The Committee had been concerned that that would be too onerous, and had asked that this requirement should not be enforced against roamers. The ECSPs had a system already in which the use of the South African mobile number would be automatically registered on the system, together with the handset number, when the first call was made.  The Department still wanted there to be an obligation on the ECSPs to have the information available to the law enforcement agencies. Because this obligation differed from the Section 40(1)(a) obligation, a new clause was needed. That new clause referred to roaming, and so it was necessary also to include a clause that defined “roam”.

The Chairperson asked again who had given instructions to put in this clause.

Mr Robbertse said it was not exactly an instruction, but a practical requirement emanating from the new arrangements.

The Chairperson asked what had been the arrangements before with roamers.

Mr Robbertse noted that when a person who was roaming switched his phone on, it would select a network. Once the call was made, the information would be automatically captured in the ECSP’s system. The law enforcement agencies wanted this to be tightened up to spell out the obligations, to regulate the period for which the information must be kept, and put in place security standards for the storing of this information.

The Chairperson noted that he would have expected the Department to bring only amendments proposed by the Committee. If the amendment, although not specifically authorised by the Committee, was improving the Bill, then perhaps the Committee could accept it. However, if it was not doing so, or was placing an extra burden on users, he was not sure that it should be allowed.
Mr Pakamile Pongwana, Managing Executive, Regulatory Affairs, Vodacom, said that the explanation did not cover the number block, which would produce the IMEI and MSISDN numbers. Since May this year, some networks would be able to retrieve this, but it depended upon the developmental stage of different networks. There was still work in progress, and not all partners of the networks were also at the same stage of development. He was not sure whether this provision was currently completely enforceable. He pointed out that the Bill was speaking of mobile cellular networks, but some of the licences to be converted would be providing different services, and Neotel would probably be using a slightly different technology, the CDA. He said that in theory it was not hugely problematic, but in practice systems would need to be developed to do what was required.

The Chairperson asked the mobile operators whether the definitions and new Section 40A would improve the legislation or cause any further burden.

Mr Pongwana said that he thought it could be problematic, because of the divergent development just described. There would not be a burden on the consumer, but there could be one on the operator. He suggested that if there was to be a requirement, perhaps it could be in the form of authority to be given to the Minister. If the obligation was in the Bill, then the operators would have to comply, but some could be limited in their ability to do so.

Mr Shaun Talbot, HOD Project Management, Vodacom said that Vodacom’s systems could cater for the information requirement for IMEI and MSISDN numbers. However, it was totally reliant on the roaming networks to pass on the information. If they chose not to do so, the information could not be captured.

Mr le Roux noted that he had previously asked if these systems now suggested in South Africa were more onerous than those in the rest of the world. He pointed out that extra financial burdens placed on the service providers would, in the course of business, be passed on eventually to the consumers, so that there would indirectly be a burden to consumers. However, if the intention was to try to secure the storing of information he did not see that as problematic.

Mr D Worth (DA, Free State) noted that this roaming clause was more relaxed than in the previous version, but he was concerned about the implementation, if there were problems in getting information, and he said there was no point in putting in a provision that could not be implemented. He enquired of the operators when they might have the ability to make this information available.

He added that the ECSP must "at own cost" implement the process to record and store information. He pointed out that this would affect agents or sub-agents selling SIM-cards and agreed that the costs would end up being passed to the subscribers.

Dr D van der Merwe (DA, Northern Cape) would like to know when it could be implemented.

Mr N Mack (ANC, Western Cape) thought that this was a way of getting a provision previously rejected through the back door.

Ms F Nyanda (ANC, Mpumalanga) agreed fully.

Mr A Moseki (ANC, North West) said that previously the Department had been asked what its real objective was. The response was that it was linked to security of the country, and tracking criminal activity. The Department seemed to be very persistent on this matter, and he asked whether there was not perhaps an alternative way of dealing with this.

Mr M Mzizi (IFP, Gauteng) agreed with the Chairperson that the Committee was expecting to see the amendments proposed by the Committee only. He asked for an outlining of the practicalities. He asked how roamers' information was captured.

Mr Pongwana noted that he could only speak for Vodacom in respect of their ability to obtain the information. Vodacom, because it was one of the largest operators, could probably get the information. Costs did end up being passed on to consumers in one way or another. Vodacom had calculated, when the Bill was first introduced, that the costs would include not only the technology, but hiring of additional staff to capture information, and in addition believed that incentives would have to be put in place to ensure that people provided their information. He drew parallels with the difficulties and delays with getting information for both the Financial Intelligence Centre Act requirement and conversion to card drivers' licences.  Now that prepaid numbers would also have to be registered, this meant that 130 000 subscribers per month must be registered. The ECSPs could not simply cut off service altogether, as there must be access to emergency services. He noted that the ECSPs were more or less certain on what fields of information must be implemented. They would have to motivate their boards for additional budgets. He thought that it would suit Vodacom to start implementation at the beginning of its financial year.

The Chairperson said that he would expect the department to respect Committees and to carry out their instructions. He ruled that the Department must re-draft the Bill, and bring only those amendments agreed to by this Committee, and not those that depended upon instructions from any other agency.  . The Department must return at 2pm with a redraft, and there would be no further discussion on it at this point.

Child Justice Bill (the Bill)
Response to questions raised on the previous day
The Chairperson noted that South African Police Service (SAPS) were now able to attend the meeting, and he asked the representatives to respond to questions posed on the previous day.

Comm Tertius Geldenhuys, Assistant Commissioner: Legal Services, SAPS, said that the first question related to how SAPS handled summons and warrants of arrests. He explained that once a summons was provided, SAPS would serve it. In the case of a child, this would include service on the child and at least one parent of the child, to note that the child must be at court on a certain date. The Bill provided that the child alone could receive the summons, if it was not possible to locate the parents, but SAPS would thereafter try to locate the parents to serve on them as well. The obligations and consequences would be explained.

He noted that where a Preliminary Inquiry was to be held, the written notice would be served on the child and caregiver. The child would not be held in police detention, and the written notice would thus be served on the child an the caregiver. The effect of a failure to appear would be explained. The parents / caregiver could be charged with a criminal offence if the child failed to appear at the Preliminary Inquiry.

Comm Geldenhuys noted that the second question had related to transportation of children separately, and what arrangements would be made for children who were transsexual. If SAPS transported a boy child, he would only be transported with other boy children. As far as possible the sexes would be separated. This would apply no matter what the sexual preference or orientation of the child. To date, SAPS had never encountered any problem with a transvestite or trans-sexual child. However, if this did occur, SAPS would try to advise that such a child must be transported separately from other children. The same instruction would be issued in respect of detention, but he indicated that there was limited capacity in the police holding cells. SAPS would try to release a child rather than keeping him or her in custody. In the exceptional circumstances where SAPS must detain children, they would be separated by sex, but there had not been any instructions to date with regard to gays, lesbians, or transvestites. Where there were no available facilities, then the child could not be detained at all, and the child would, as a last resort, be taken to a place of safety where he or she would be kept until the hearing. He would take up the problem mentioned yesterday in respect of Beaufort West.

Comm Geldenhuys said that when the age of the child was unknown, there were three possibilities. If there was a chance that the child might be below 18, then he would be treated as if he was younger than 18. The problem could arise where a person of 24 years old might lie and say that he was 16, and where it appeared that this could be so. It could be prejudicial to those genuinely under 18 to put them with this 24-year old. Therefore instructions had been issued that where there was some uncertainty, immediate steps must be taken to determine the age of the person by taking him to a medical practitioner who could make a better estimate.

The same principle of erring on the side of the lower age group would apply also to those around the age of 10. In the case of doubt whether a child was below 10, every possible step would be taken to have the child taken to a place where he would receive care and protection, and the process would be followed as if he was below 10. When the age was finally established, the relevant steps would be taken in terms of the legislation.

Comm Geldenhuys noted that SAPS was asked how it would deal with cases where children stole because they were hungry. This was a reality, but this would be dealt with as with any other criminal offence. If the probation officer, after interviewing he child and the people involved, was satisfied that the child had stolen to satisfy his hunger, then the social development system would be called in, as that child was in need of care and protection. He pointed out that public prosecutors had discretion whether to institute a prosecution, and would be unlikely to institute a prosecution in these circumstances. The National Prosecuting Authority (NPA) was likely to issue directives on how to handle cases of that nature. If the child was below 10 the matter would automatically be passed to Department of Social Development (DSD).

Comm Geldenhuys confirmed, in answer to another question, that the SAPS would notify DSD when a child was arrested, because that child must be seen by a probation officer within 24 hours of his or her arrest. The DSD did provide SAPS, provincially, with a contact list of probation officers who could handle the initial interviews.

Comm Geldenhuys then turned to a question about how children were recorded. The particulars of children must be separately recorded, in a way clearly distinguishable from the detention of an adult. At present there was a hand written register at every police station, in which the detention of each person was entered. This included a section for the age, and if the age given was below 18, then the register must be written in red. At the moment SAPS was in the process of developing a centralised database, which would be accessible to about 96% of all police stations. This would separate out the adult and child arrests. Both the person going off duty and the one coming on duty had to check, at the change of shift, that the persons on the list were indeed held in detention, so it was a control measure. When the Integrated Justice System was up and running it was hoped that the SAPS systems would be linked into the Department of Justice, so that it would be immediately apparent to the Court as well that a child was being brought in, who must be detained separately.

Comm Geldenhuys then described the monitoring systems. He reiterated that the registers were hand-written. The person in charge of the Community Service Centre or the detention facility must oversee that the information was correctly entered in the register. When the computerised system came into play, this would be done by signing a print-out. The second level was that the person in charge of the shift must, before the end of the shift, inspect all the registers and the detention facilities, and the person taking over the shift must do the same. The third level of control lay with the Station Commissioner (or, in the case of a large station, his designated official) who must do daily inspections of the registers. Fourthly, there would be random inspections by provincial inspectors, who would also check detentions. Finally the Independent Complaints Directorate, and in future probably also the Inspecting Judge of Correctional Services, would also be required to check the facilities.

Comm Geldenhuys said that a question was asked how a child would get to court if released on own recognisance. He explained that a child could not actually be released on own recognisance. If a child was clearly not responsible for an incident, or was below 10, the child must be immediately released. If the child could be prosecuted, and a criminal charge was laid, the child could only be released under the existing Criminal Procedures Act (CPA) or this Bill (once in force), and the caretaker of the child was required to ensure that the child would attend the inquiry or hearing. Even where a written notice was issued allowing for payment of an admission of guilt fine this would be issued to the child and the caregiver. If the child was released on bail, money would be deposited and receipted, and the caregiver again must ensure the appearance on a certain date. Each of these options created a legal and binding obligation on the child and caregiver.

Dr van der Merwe asked what would happen if the parent could not be found immediately, if the summons was served on the child, but where that child did not give the summons to the parent, and then did not appear.

The Chairperson noted that on the previous day, there had been a question about invasion of privacy of the parent if an order was given that the child must have "family time" with the parent.  Concerns were expressed that such orders would have the effect of monitoring the parent and not necessarily the child.

Continuation of briefing by Department of Justice (DOJ)
Ms Thandakazile Skhosana, Senior State Law Adviser, Department of Justice, said that she would continue to take Members through the Bill.

Chapter 9
Ms Skhosana explained that the Child Justice Court would apply the provisions of the Criminal Procedure Act (CPA), read with the Bill. The Court could also consider diversion of the matter, as provided for in clause 7. She noted that clause 54 was also important, and was closely related to clause 50. If it appeared to the presiding officer that the child was in need of care, then he must refer the child to be dealt with in a certain way.

She added that when a child appeared at the Child Justice Court, with parental or other assistance, the Court could dispense with the requirement for parental presence if the parent could not be traced, or if this would be prejudicial to the best interests of the child or the interests of justice.

If a child was being detained at a prison, the Child Justice Court may not postpone the matter for more than 15 days, and if the child was in a Child Justice Centre the postponement was limited to 30 days. No postponement could be longer than 60 days.

Chapter 10
Ms Skhosana noted that the objective in relation to sentencing was to encourage the child to understand the implications of and be accountable for the harm caused, to promote individual response and to promote reintegration of the child into the family or community.

Clause 69 set out the factors to be taken into account. Clause 70 related to the impact of the offence on the victim. Clause 71 required pre-sentence reports to be made by the probation officer. These, unless the Court dispensed with them (for a Schedule 1 offence), were compulsory. If there were recommendation that a child must be sentenced to a child and youth care centre, then there were further requirements.

The sentencing options were set out in clauses 72 to 78 of the Bill. Community based sentences allowed a child to remain in the community, but would include diversion options, and may be used in combination with other sentences. Reference was made to family groups or victim/offender mediation as part of the restorative justice sentences in Clause 73. Clause 74 referred to fines or alternatives to fines.

Clause 75 related to correctional supervision. For a child over 14, this correctional supervision would fall under sections 276 (h) or (i) of the CPA, but for a child under 14, only section 276(h) would apply. A court could also sentence a child to compulsory residence in a child and youth care centre. It must take into account various factors, including the seriousness of the offence, the protection of the community and the desirability of keeping a child out of prison. Sub-clause (3) noted that a child convicted of a Schedule 3 offence, who could have been sentenced to more than 10 years if he had been an adult, could be sentenced to a period in a child and youth care centre until reaching 18, and thereafter complete the term in a prison. Reports would be submitted at the end of the period at the child and youth care centre in relation to the extent of rehabilitation, and whether it would be in the interests of justice that the remainder of the sentence be completed in a prison. Where children may have been held in prisons before being moved to child and youth care centres, there were other detailed provisions.

Further provisions related to monitoring of the child and reporting to the Court. These were contained in subclause 76(4).

Clause 77 dealt with sentences of imprisonment. Two general rules were stated up front. A Child Justice Court could not impose a prison sentence on a child under 14. A sentence or imprisonment on a child of over 14 must only be done as a last resort. This gave effect to international obligations and the international trend to avoid imprisonment of young children. Ms Skhosana noted that the prohibition related to the time of sentencing and not to the time of commission of the offence. She further noted that the Criminal Law Amendment Act provisions would apply to a child of 16 years or older. A child of 14 or more could only be sentenced to imprisonment for a Schedule 3 offence, for an offence under Schedule 2 if there were "substantial and compelling reasons" or, in extreme circumstances, for a Schedule 1 office if there was a record of previous convictions. The provisions relating to postponement or suspension of passing of sentences were contained in clause 78.

Discussion
Mr Ntuli asked SAPS whether there would be computer linkage with the Department of Home Affairs (DHA).

Ms Nyanda supported this question, noting that her own family had experienced problems with incorrect documentation.

Comm Tertius Geldenhuys, Assistant Commissioner: Legal Services, South African Police Services (SAPS) said that an arrangement existed between the two parties in terms of which information could be obtained, but an integrated system for searches was part of the future and was still under investigation. In terms of the Department of Home Affairs (DHA) certifying persons as dead when they were still alive, Mr Geldenhuys said that this was one of the reasons why the SAPS was careful about using information received from the DHA.

Mr Ntuli also questioned the monitoring. He noted that experiences of the members when visiting police stations was that the registers were not always being properly kept. He wondered how long it would take for the systems to be connected.

Ms Nyanda referred also to the registers and noted that in Bizana the Station Commissioner was unable to read out his own report.

Comm Geldenhuys said SAPS was trying to assist members to properly record situations in the register. He said that this was a long term process and extended his apologies or the inconvenience.

Mr Ntuli said that when a person was released on bail, the community perceived this to mean that the offender was going free, and that the system was not working. He noted that no distinction had been made between the types of offences committed. He noted that a number of children arrested had been involved in serious crimes and their release on bail could lead to a cycle of mob violence and community retribution.

Comm Geldenhuys said that the problems experienced were that when an alleged offender was arrested and released on bail, there was a danger of that person being attacked.  In this regard the SAPS hads established a system of community police forums, with the objective of ensuring communication between the police and the public to provide enlightenment about the systems and an understanding of why people should be released on bail. This was a long term process and advice from the Committee to speed up this process would be welcome.

Dr van der Merwe said that he was very concerned about the numbers of street children. It was necessary, in his view, to go to the root causes of crime. Street children of every age were held in centres. Although it had nothing to do with this particular Bill, he pleaded that he would like to see children prevented from ever getting on to the streets, where they had few options other than to commit crime to survive.

Mr Steven Masilesele, Director, Department of Social Development, addressed the issue of Street Children. He indicated that street children were a worldwide phenomenon and the problem was on the increase. The DSD had programmes in place, including shelters and drop-in centres for children living on and off the streets. At National level, the Chief Directorate for Children’s Services had established a directorate to deal with children in need of care, and had a unit that dealt specifically with human trafficking.

Mr M Mzizi (IFP, Gauteng) referred to clause 73, saying that (4)(a) was providing a monitoring system to the probation officer, but if there was not compliance the child would be called back for an inquiry under clause 79. He said, however, that if a child had committed an offence, but sentencing was to take place later, there would have to be monitoring of behaviour in the interim, and he wondered who would be doing this monitoring.

Mr Masilesele said that the issue being raised quite consistently was around monitoring of compliance, and noted that probation officers were required to do monitoring as part of their portfolios. Probation officers were also required to present progress reports to the courts in the prescribed manner. The failure of probation officers to comply with the  recommendations would be considered contempt of court. 

Mr Mzizi said that clause 78 also dealt with postponement of passing of a sentence. He asked for a further explanation on clause 79, and whether the same sentence would be imposed, or whether it would be a different sentence.

Ms Skhosana said that there were provisions in Section 297 of the Criminal Procedure Act which contained their own monitoring procedures, which were similar to other provisions in this Bill. They were not provided for specifically in the Bill because that would have been repetition.

Ms Shireen Said, Chief Director: Department of Justice and Constitutional Development made some additional comments about the Child Justice Bill. She said that there were several options available now for rehabilitation including sentencing, prison, a conditional sentence, correctional supervision, fines and programmes.

Mr Mzizi noted that clause 74 spoke of an inquiry into the ability of the child, the parent or an appropriate adult, to pay the fine. It could be assumed that the child would not be working. He wondered what would happen if the parent or adult was not prepared to pay the fine.

Ms Skhosana said that when  the parent or a child was unable to pay a fine, Clause 74(2)  did provide alternatives for courts. Symbolic Restitution may be the alternative posed for children, to provide some services to the victim. The court may also find other appropriate measures to suit the circumstances.

Mr Mzizi also asked for further detail on the monitoring process. He said that the practical effects of monitoring must be taken into consideration and whether there was not likely to be interference with the parents' right to privacy.

Ms Skhosana responded that Section 72, 73, 74 were the restorative and community based services that the courts might propose, provided they dealt with monitoring provisions, and if the court identified a  probation officer to monitor compliance.

Mr Mack said that he had been satisfied with the explanations given on probation officers and the way they worked. He remained concerned, however, about pre-sentence reports, which would determine what sentence was imposed on a child. He noted that sub-clause (4) said that a court did not have to follow the recommendations of the pre-sentence report, and he believed that this was unwise, as the probation officer had been working with the child for considerable time. He asked if there was not some other mechanism that could be used for re-examination of the report. There was nothing to say what other reports would be informing the court if it did not recognise the probation officer's expertise.

Mr Masilesele said that the duties of a probation officer were to compile pre-sentence reports and make recommendations to the courts. These recommendations should take into consideration the circumstances, the offences committed, the victims concerned and the availability of programmes for rehabilitation. Mr Masilesele said that the court would weigh the options based on the recommendations from the probation officers. The Court retained a discretion to decide what was best.

Mr Worth asked whether there were sufficient social workers to deal with the rehabilitation of children.

The Chairperson also raised concerns about the anticipated workload of the Department of Social Development (DSD). He said that experience indicated that the Department would not be able to deal with assessment and monitoring required to effectively implement the Bill.

Mr Masilesele said that a breakdown had been given the previous day of what would happen in preparation for the implementation of the Bill when it was enacted. Currently the department had 484 probation officers countrywide. These numbers were not spread out equally geographically. For example the Eastern Cape had 118 officers, Limpopo had 22 officers, the North West had approximately 20 officers, Gauteng had 79 officers and Kwa-Zulu Natal had 49 officers.

Mr Masilesele said that the total number of probation officers required in the country to implement this Bill, the Children’s Act and the Probation Services Act, would be more than 11 000 social workers for all three Bills. All pieces of legislation require social workers, hence it had been declared a scarce skill. Of the generic social workers in the country, more than 8000 were implementing the Childrens Act, but these were dedicated personnel dealing with children.
 
Mr Masilele said that in terms of the capacity and plans of the DSD, an additional 484 probation officers had been requested. He added that there were 264 assistant probation officers, and 772 assistant probation officers would be added for the next MTF cycle. The Department had sent a sector bid to National Treasury to request additional funding for the capacity. This was excluding infrastructure and information management. For the personnel alone, DSD had requested R245 million to improve capacity to cater for needs in Secure Care facilities.

Mr Masilesele said that this was part of the recruitment drive undertaken by the DSD.
 
Ms Miche Sepeng, Deputy Director, Department of Social Development,said that the DSD was trying to implement what was contained in the Bill. She said that the traditional leaders in the rural areas were also providing assistance. Most of the DSD probation officers were aware of the problems in the rural areas, and an attempt was being made to preserve the family unit at all costs.

Adv Shireen Said, Chief Director: Vulnerable Groups, Department of Justice, said that an important thread emerging from the Bill was that of implementation. This was the first piece of legislation with a very strong monitoring framework. In respect of Section 96, which dealt with responsibilities, functions and duties for the implementation of the priorities and strategies contained in the national framework, there were committees taking responsibility for each of those different aspects of implementation.

Adv Said noted that this Bill, the first ever to do so, required that the framework for the regulations had to be submitted. This Bill also required that systems had to be in place by December 2009, so regulations and the Bill had to be put in place simultaneously.

Mr D Worth (DA) asked, given that there was a shortage of probation officers, what were the necessary qualifications required for a person to become a probation officer.

Mr Masilelele said that a probation officer was firstly a social worker, who would have to be trained for 4 years, and secondly, would have to undergo further training of one year to become a court official.

The Chairperson said that the DSD would have to unpack for the Committee how they were planning to deal with the challenge of recruitment.

He flagged for later discussion, the provisions of Clauses 65, 66, 67, 68, 72, 73, 76 and 77, for discussion when these Chapters were reached. 

Continuation of briefing
Chapter 11
Ms Skhosana continued reading the Child Justice Bill. She read through Chapter 11 on Legal Representation for Children, Chapter 12 on Appeals and Automatic Review of Certain Sentences and  Chapter 13 on Expungement of Criminal Records.

Mr Mack asked for clarity regarding the ages for conviction. He asked what would happen to a sentence on a child if the offence had been committed under the current law, where a child of between 7 and 10 was deemed capable of committing an offence. He noted that the new Bill raised the age of expungement for crimes committed by children over 10 years of age.

Ms Skhosana said that there was a transitional provisions in the Bill, contained in Clause 98, which stated that all proceedings would continue in the present as if the Act had not been passed. So all matters still in progress according to the Criminal Procedure Act would be continued.

Mr Basset said that if a child of seven to ten years committed an offence the day after the Bill came into operation, hat child would not have criminal capacity, despite the fact that if the offence had been committed on the day before the Act came into operation he could have been charged.

Adv Said explained that there was a principle in law that would not allow for retrospectivity.

Mr Mack indicated that he was not quite happy with this response and would like the issue to be flagged for further discussion.

Mr Mzizi asked about sentences that were not carried out, and if the magistrate would have to have a review.

Mr Bassett said that a person who did not comply with periodic sentencing according to the Criminal Procedure Act could be brought back and another sentence could be imposed.

Mr Mzizi also asked how the matter of compensation would be dealt with if the court did not convict and the victim took civil action.

Mr Mzizi said that Clause 84(2) stated that convicted children could write to the Director-General for expungment after a period of 10 years has lapsed. He said that the Constitution stated that an application for expungement should be made to the President. He added that Child Justice appeared to have its own set of rules, which could cause confusion.

Mr Basset said that the expungement referred to here was not the same as the Presidential pardon referred to in the Constitution. The expungement was merely the cleaning of criminal records,  which was done through the SAPS record centre.

Adv Said added that these expungements related to Schedule 1 and 2 offences, and the clause did not mean that once an application was made, there would be an  automatic expungement. There was an application process to be followed, but each case would be decided on its merits.

Mr Worth asked what would happen in a case where an employer asked if there was a criminal record against a potential employee, whose crime had been expunged and therefore removed from the records, but thereafter the employee committed the same crime again. He wondered if the employer could sue the State.

Ms Skhosana said that such matters were covered under the Criminal Procedure Act.

The Chairperson said that Members were not entirely satisfied with the responses, and that these questions would be asked again the following day for a further response from the Department.

Chapter 14
Ms Skhosana read through Chapter 14 on General Provisions.

Briefing on the Implementation of the Child Justice Bill by Department of Justice
Adv Said informed Members that this Bill had brought different Departments together to address the fragmented criminal justice system. Departments now linked with each other to implement the Bill. This Bill brought together the Cluster through comprehensive integrated services, and from a policy perspective. This realised the constitutional principle that human beings were indivisible.

Adv Said noted that the Bill created incremental procedures that were achievable, given that State resources were not as exhaustive as expected. The Bill required implementation, a whole plan and operational framework in place in the first year, and intended to be fully operational within five years. There would be better implementation because it would be progressive.

The Bill emphasised and sought to instill the importance of different types of parenting skills.  This Bill must not be read outside of the Children’s Act, which was very strong on parenting, and this ethos was carried through also to this Bill.

The Intersectoral Committee on Child Justice was now into its tenth year of operation, and it had included and maintained the principle of concentration on the rights of the child and the recognition of the role of civil society organs. The Bill also included the Department of Health into the criminal justice system formally, as well as the Department of Labour.

Adv Said reported that a standing committee was now in existence and was meeting every month, to incorporate  provincial forums into the National considerations. She added that reporting was done collectively and consultations took place even when budgets were submitted.

The concerns about implementation had led to investigation into the change from a manual to an automated system. Adv Said said that the business processes were different, as the legislation and policies differed, but the alignment of all these processes were being worked on. It was necessary that all systems be compatible, because Departments had different definitions and were regulated by different Acts. This Bill enableds a legal framework that could work for all.  Data analysis was being looked at within the integrated systems.

There had been reductions in the numbers of awaiting trial detainees, because of the intense  monitoring now taking place, and there were decreases also because now options were available in terms of diversion services and home-based supervision. One-stop child justice centres were being created, and the secure care facilities were being linked to them. There were currently only two centres, because of the costs. The limited numbers of reform schools were another serious challenge, but secure care facilities were being used in the interim.

The numbers of children going through the different systems had decreased because sentencing had been reduced. The Bill envisageds the regulation of non-custodial options as it intended to provide the legal framework for more options.

Adv Said mentioned that training was the biggest challenge, in terms of developing the proper mindset. This had started with training on the process of restorative justice and had been included in the Justice College. A Child Law manual had been developed and would be updated to take into account the principles concerned, and to review this Child Justice Bill.

In terms of the human resource requirements, there was a need for more magistrates, prosecutors and clerks, but with the  incremental approach and systems in place, tracking of the case flow could be better managed.

Adv Said concluded that time was a major challenge in terms of joint reporting, but collective collaboration had been agreed upon. The public needed to understand the principle of restorative justice and the need to account to victims.

The Chairperson said that Members would have the opportunity to pose questions tomorrow.

Continuation of deliberations on Regulation of Interception of Communication and Provision of Communication-Related Information Amendment Bill [B9B-2008].
Mr Sarel Robbertse, State Law Advisor: Department of Justice, returned to the Committee with a re-drafted version of the Bill.

He then briefed the Committee on the latest amendments.

He indicated that under the definition section, the paragraph (g), which had related to the definition of roaming, had now been removed.

Following the requests of the Committee earlier that morning, the proposed Section 40 (1) had been re-drafted to take out the concept of the registration of roamers. Other services were subject to paragraph (b), which stated that the service provider was not to activate the SIM card unless subsection (2) had been complied with.

In the proposed Section 40(2), the requirement that the IMEI number be recorded and stored before the SIM card could be activated, was deleted, as was the requirement that the IMSI-number of the SIM card also be recorded.

Certain consequential amendments were further effected in 40(2),  and the reference to ‘cellular phone’ was deleted.

Mr Robbertse said that he would not be raising all consequential amendments, but Members could note these as they went through the redrafted version.

The major amendment to Clause 40 was the deletion of subsection (9), which had formerly been applicable to ‘roamers’. Instead a new subclause (9) was now inserted. This would ensure that an ECSP must, on its system, record and store the MSISDN number used with every IMEI number, and every IMEI number used with every MSISDN number. If so directed, this must be provided to an applicant within 12 hours.

Subclause (10) was then explained to the Committee. This stated that this information recorded and stored must be stored by an ECSP for five years, from the date when the customer cancelled the contract, or the electronic communication service provider ended the service’.

The proposed new Section 40A had been deleted.

Mr Robbertse said that he would not explain the consequential amendments as set out in Clause 3 of the Bill.

In Clause 4, he noted that the amendment to Section 62 of the Act still required the ECSPs to be able to have all the information needed within a period of 12 months. The Chairperson had  indicated that a some kind of further consultation may be needed, and there was the feeling amongst some Committee Members that perhaps 18 months must be given to mobile cellular operators to store and record information of prepaid cellular customers.

In Clause 5, the amendment of Section 62 was explained as an extension of the current section that was approved by the National Assembly, to make this Bill applicable also to juristic persons. Therefore it provided that any juristic person, having complied with Section 40(2) or Section 62(6), and which provided a SIM card to employees, must before handing over the SIM card record the particulars and the date and period for which that card was provided to an employee.

Mr Robbertse noted that a new subsection (5) had been added, to deal with identity documents that must be reported in 24 hours at the police station. This was similar to the provision for verification of identity of the person to whom the SIM card was handed.

The Chairperson said that the Bill was now in a similar form to that in which it had appeared before the Committee last year, before the Committee had rejected it for other reasons. He said that it seemed that everything had been removed that the Committee had objected to in the morning session. Mr Robbertse and the Department would be given a chance to clean it up finally, and bring a fresh copy to the  Committee tomorrow for adoption.

Mr Worth asked if he had heard correctly that the Department was willing to change the12 month period given to the service providers to 18 months.

The Chairperson agreed.

Mr Mzizi asked if service providers in the meeting were happy with the changes made.

The Chairperson said that service providers were at liberty to raise any concerns at the meeting before voting took place.

The meeting was adjourned.