ATC150923: Child Justice Workshop Report Select Committee on Security and Justice 27 May 2015

NCOP Security and Justice

Child Justice Workshop Report Select Committee on Security and Justice 27 May 2015

Contents

INTRODUCTION TO THE CHILD JUSTICE DIALOGUES. 2

1. OPENING AND WELCOME BY CHAIRPERSON OF THE SELECT COMMITTEE ON SECURITY AND JUSTICE 4

2. ADDRESS BY THE DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT, THE HON JH JEFFERY, MP AT THE CHILD JUSTICE DIALOGUES, 5

3. PRESENTATION BY LORENZO WAKEFIELD: OVERVIEW, HISTORY AND INTERNATIONAL OBLIGATIONS ON CHILD JUSTICE IN SOUTH AFRICA. 10

4. PRESENTATION BY ZITA HANSUNGULE SHADOWING THE CHILD THROUGH THE CHILD JUSTICE SYSTEM 11

5. QUESTIONS AND DISCUSSION. 14

6. IMPLEMENTATION OF THE CHILD JUSTICE ACT – Lorenzo Wakefield. 15

7. ISSUES ARISING FROM THE CHILD JUSTICE ACT IMPLEMENTATION REPORTS – Patricia Whittle 18

8. DIRECTOR-GENERAL PRESENTATION. 23

9. QUESTIONS AND ANSWERS. 24

10. CONCLUSION. 25

INTRODUCTION TO THE CHILD JUSTICE DIALOGUES

PURPOSE AND OBJECTIVES

The Child Justice Act was adopted by the National Assembly in November 2008, and signed into law in May 2009.

The Act introduces certain reforms in the criminal justice system to ensure that children in conflict with the law are treated in a manner that takes into account their age, vulnerability and special needs, such as their developmental needs. It gives children a chance to benefit from intervention programmes and sentencing options aimed at rehabilitating them for the purposes of ensuring that they are ultimately re-integrated back into families and communities where they could become law-abiding citizens.

The Act promotes a collaborative and coordinated approach by all sectors in the establishment and management of a child justice system in South Africa. It creates interdependencies between role-players that result in the unified execution of responsive and preventative measures within the value chain of the child justice system.

To date there at three fully operational One Stop Child Justice Centres (OSCJCs) in the country situated in Port Elizabeth, Bloemfontein and Klerksdorp.

Purpose: The purpose of the meeting is to ensure that MPs understand the Child Justice Act and all implementation challenges related thereto prior to conducting the oversight visit to the Child Justice Centre in North West Province.

The objectives of the workshop will be the following:

To share a common understanding of the Child Justice Act;
To understand the challenges related to implementation of the Act particularly in relation to children in conflict with the law;
To understand the implementation challenges related to the Child Justice Centres and
To equip members to oversee the implementation of the CJA and prepare for oversight visits to child justice centres.
To develop an understanding of parliamentary responsibilities in oversight.

PROGRAMME

Time

Topic

Presenter

9:30 – 10:00

Arrival and Registration

10:00 – 10:20

Welcome and Introductions

Chairperson Select Committee on Security and Justice: Honourable D Ximbi

10:20 – 10:35

Opening Address

Deputy Minister of Justice and Constitutional Development: Deputy Minister John Jeffery

10:35 – 10:55

Overview, history and international obligations on child justice in South Africa

Lorenzo Wakefield: Child Justice Alliance

10:55 – 11:20

Shadowing the Child through the Child Justice System

Zita Hansungule: Centre for Child Law, University of Pretoria

11:20 – 11:45

Questions and Discussion

11:45 – 12:00

Tea Break

12:00 – 12:30

Systemic Implementation Challenges experienced in the application of the Child Justice Act

Lorenzo Wakefield: Child Justice Alliance

12:30 – 12:50

Issues arising from the Child Justice Act Implementation reports

Patricia Whittle: Parliament Research Unit

12:50 – 13:20

Questions and Discussion

13:20 – 14:00

LUNCH

14:00 – 14:50

Summary of Oversight Guidelines towards the development of oversight tool

Bennita Moolman: Facilitator

14:50 – 15:00

Thanks and Closure

OPENING AND WELCOME BY CHAIRPERSON OF THE SELECT COMMITTEE ON SECURITY AND JUSTICE

HONOURABLE D XIMBI

Welcome

Honourable Deputy Minister of Justice and Constitutional Development,
Honourable members
Esteemed Guests

Welcome to the Select Committee on Security and Justice’s dialogue on Child Justice. We have set aside time today to discuss the importance of the child in conflict with the law, to engage with stakeholders and to understand the implementation challenges related to the Child Justice Act.

To this end, the Child Justice Act was adopted by the National Assembly in November 2008, and signed into law in May 2009.

The Act promotes a collaborative and coordinated approach by all sectors in the establishment and management of a child justice system in South Africa. We always need to ensure that the “Best Interests of the Child” is taken into account in any work involving children. It is with this in mind that various role-players are present today for this dialogue.

The purpose of this dialogue is to ensure that MPs understand the Child Justice Act and all implementation challenges related thereto prior to conducting the oversight visit to the Child Justice Centre in North West Province towards the end of June 2015.

We hope and trust that this will be a fruitful engagement and the first of many future similar engagements.

I thank the Deputy Minister of Justice for his attendance at this event today and welcome him and invite him to do an opening address to this dialogue on the Child Justice Act.

ADDRESS BY THE DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT, THE HON JH JEFFERY, MP AT THE CHILD JUSTICE DIALOGUES,

Good morning to Members, participants from civil society, officials from various Departments and all other guests and thank you for the opportunity to be part of this valuable information sharing session this morning.

The Child Justice Act has a long history - is the result of work by government and activists in the children’s rights and child justice fields going back as far as 1996. The Act is, in many ways, a ground-breaking piece of legislation. It came into operation on 1 April 2010 and represents a rights-based approach to children in conflict with the law and created a new child justice system with a procedural framework for dealing with children who are accused of committing an offence. It also raised the age of criminal capacity of children.

It is also important to stress that there are various international instruments that provide for juvenile justice. The Child Justice Act brought our legislation in line with our international obligations in this regard. For example, the Riyadh Guidelines and the Beijing Rules make up what are referred to as the UN Standards and Norms in Juvenile Justice and there is the Convention on the Rights of the Child which provides that no child shall be deprived of his or her liberty unlawfully or arbitrarily and the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort.

The Child Justice Act mainly aims at establishing a child justice system that entrenches the principles of restorative justice, while ensuring the child’s responsibility and accountability for crimes committed, without necessarily criminalising their conduct. It recognises the need for proactive crime prevention by placing emphasis on the effective rehabilitation and reintegration of children in order to minimise the potential of re-offending, whilst balancing the interests of children and those of society, with due regard to the rights of victims.

The significance of the Act is not only on the establishment of a separate child justice system in South Africa, but also on the provision of the legislative framework for various processes, which include the evaluation of criminal capacity, restorative justice, pre-sentence reports, victim impact statements and diversion.

During the Portfolio Committee’s 2008 deliberations on the Bill, I chaired the Technical Drafting Sub-committee and it was not always an easy process. For many members of the Committee at the time, concepts such as assessments, preliminary inquiries and diversion were new. Some members were afraid that diverting children away from formal criminal court procedures into a diversion option or programme would mean that children would get away with committing crimes. It took a lot of persuasion to convince some members that the system of diversion really is one where the child is held accountable for his or her actions throughout the process.

At the end of many weeks and months of in-depth deliberations and after thoroughly evaluating all the inputs made by civil society, Chapter 9 bodies and others, the Committee was of the view that there were many benefits of choosing a diversion option – such as ensuring that the child receives an intervention based on his or her individual circumstances to prevent him or her from re-offending and producing the best outcome for the child, considering the needs of the victim and promoting public safety. In addition, diversion means that the child does not incur a criminal record, thereby allowing him or her to become a productive member of society without the stigma attached to having a criminal record and the limitation of occupational opportunities that this would entail.

However, because diversion represents an alternative to the formal criminal justice system, the Committee had to ensure that the Act carefully regulates the issue, and created a system of checks and balances to ensure that diversion is not seen as a “soft option” for children who commit crime. In the event of the child not complying with the diversion option, his or her case reverts to court.

One of the main principles of the Act is to minimise children’s contact with the criminal justice system, and to use detention only as a measure of last resort and for the shortest appropriate period of time. The Act also introduced the preliminary inquiry process which aims to ensure that a collective, determined effort is made to consider what should be done in the case of each child, and that the inquiry occurs within 48 hours of arrest if the child is detained. This Act, like many pieces of legislation, stands or falls on its actual implementation. To monitor achievement in this regard it is necessary to monitor the child justice system and process at various points of service to establish the movement of children through the system. And this is where the Parliamentary Committee and Members can play a valuable oversight role.

For example, Chapter 3 of the Act regulates the apprehension of a child alleged to have committed a criminal offence. Section 17(1) of the Act provides that the attendance of a child at the preliminary inquiry can be secured through a written notice, a summons or an arrest.

SAPS recorded that in 2010/2011 there were 75 000 charges against children, in 2011/2012 there were 68 000, 57 000 in 2012/2013 and 47 000 in 2013/2014. This means that there has been a consistent decline in the number of charges against children since the first year of the implementation of the Act in 2010. This is a decline of 28 161 (-37%) charges in 4 years. From 2012/13 to 2013/2014, a reduction of -18.1% was registered. The reasons for this significant drop in the numbers still needs to be verified, and DoJ&CD hopes that the national research on the review of the Act, which will commence in this financial year, will provide some answers. Once the findings of the research become available, we will, no doubt, brief the Committee on the findings.

Section 34(1) of the Act provides that every child who is alleged to have committed an offence must be assessed by a probation officer, unless assessment has been dispensed with. In 2013/2014, some 29 000 children were assessed. Since the implementation of the Act, a total number of 112 239 children have been assessed and this represents an important step in the realisation of one of the aims of the Act to ensure the assessment of all children in conflict with the law.

When looking at the number of assessments in isolation it appears that there has been a slight drop of 2 845 (9.11%) assessments between 2012/13 and 2013/14. This reduction ought to be expected in view of the persistent drop in the number of charges against children recorded by SAPS.

There has been a slight decrease in the number of preliminary inquiries conducted since 2012/2013. Since the implementation of the Act a total of 99 013 preliminary inquiries have been conducted. In 2014/15, a further decrease of 8,9% was registered. It is presumed that this decrease may be the result of the following factors:

(i) The possible decrease in the number of charges against children registered by the SAPS,

(ii) The possible decline in the number of assessments conducted by the Probation Officers;

(iii) The possible increase in the number of children being diverted in terms of section 41 of the Act (before the preliminary inquiry for Schedule 1 offences); or

(iv) The possible decrease in the number of children entering the child justice system.

The Directors-General Intersectoral Committee on Child Justice has commissioned the National Operational Intersectoral Committee to conduct research to determine the cause for this decline. This research will form part of the broader research on the impact of the Act, which is planned by DoJ&CD to start in 2015/16 and we will keep the Committee informed of these processes and the outcomes of the research as it becomes available.

Section 81 of the Act makes it clear that it is not compulsory for a child to be legally represented at the preliminary inquiry but states that nothing precludes a child from being represented by a legal representative. However, Legal Aid SA provides legal aid services in cases where it is deemed necessary for the child to be assisted at preliminary inquiry stage of the proceedings. There are no dedicated practitioners to assist with preliminary inquiries yet. There has been a progressive increase in the number of children that have been legally represented by Legal Aid SA during preliminary inquiries. In 2012/2013 1612 children were represented by Legal Aid SA and in 2013/2014 it rose to 2672.

Of 21 563 children who participated in preliminary inquiries, 2 672 (i.e. 12.39%) received legal aid services. As mentioned, it must be noted that these services are not compulsory at this stage. The decision to grant bail or of the placement of the child primarily falls under the mandate of the judiciary. There has been an increase of 181 children who were detained in child and youth care centres while awaiting trial and a decrease of 220 children awaiting trial in prison. This ought to be seen in a positive light as it may show the increased realization of the objects of the Act.

There was also a significant increase of 354 children who were released in the care of a parent/guardian/appropriate adult while awaiting trial. This figure is also encouraging since it gives effect to the goal of the Constitution and the Act that detention should only be used as a measure of last resort.

With regards to diversion, a total of 47 883 matters have been diverted from the formal criminal justice system since the implementation of the Act. Between 2012/13 and 2013/14, it appears that there was a drop of 611 diversions. However, if the number of diversions is compared with the number of charges against children it is clear that 22.87% of 47 269 charges laid against children constituted cases that were diverted. However, it must be noted that the counting system of NPA differs from SAPS’. SAPS’ counting system is on charges whereas the NPA’s focus is on the number of cases. More so, with a decline of -18.1% charges laid against children in 2013/14, it is not surprising for the NPA to record a decline of -5.35% cases of children diverted during the same period.

There is a noticeable decline in the number of sentences in the form of fines imposed against children. This decrease is welcomed as it often serves as indirect punishment against parents while the children, who are still at school and therefore without an income, are not the ones paying for such fines. A further decrease in the number of children sentenced to imprisonment is also positively noted. From 2011/12 to 2014/2015, the number of children sentenced to imprisonment dropped from 94 to 39. This is a -58.5% decrease, which could mean that the Act is indeed making significant inroads in building the child justice system in South Africa.

An inference may be drawn from this consistent decline that fewer children were convicted of serious offences, which warranted imprisonment sentences. This reduction could also account for the decrease in the number of children sentenced to compulsory residence in a child and youth care centres.

Section 89 of the Act provides that the Minister of Justice and Correctional Services, in consultation with the Ministers of Police, Social Development and Correctional Services, may establish One Stop Child Justice Centres (OSCJC’s). In 2010, DoJ&CD and other implementing stakeholders developed the National Guidelines for the Establishment of the One Stop Child Justice Centres. Due to the lack of adequate budget to construct buildings for One Stop Child Justice Centres, the National Guidelines required stakeholders to identify existing buildings that can be converted into One Stop Child Justice Centres. Three (3) One Stop Child Justice Centres were established as follows:

(i) Eastern Cape: Port Elizabeth- Nerina One Stop Child Justice Centre;

(ii) Free State: Bloemfontein- Mangaung One Stop Child Justice Centre; and

(iii) North West: Klerksdorp- Matlosana One Stop Child Justice Centre- designated in 2013.

Out of these, Nerina achieved the best court performance. It is the busiest OSCJC as in 2014/15 it recorded 536 new preliminary inquiries, 138 criminal cases and disposed of 3 104 cases.

Mangaung OSCJC came second after Nerina by registering 417 preliminary inquiries; 126 new criminal cases; and disposing 30 cases. This was a declined performance for Mangaung as in 2013/14, it finalized 141cases. The Matlosana OSCJC registered 194 new preliminary inquiries; 140 new criminal cases and disposed of only 8 cases.

The Department has commenced with the national study into the viability of continuing with the establishment of OSCJC. This study is expected to investigate the causes for the declined performance of Mangaung and Matlosana OSCJC’s. This is also something that the Members can look into when you visit the various OSCJC’s.

Ladies and gentlemen, in conclusion, it must be stressed that the Act requires cooperation and coordination from a variety of role-players, eg SAPS, the DOJCD, the NPA and DSD.

There is still a lot more work that needs to be done by everyone in order to achieve the optimal implementation of the Child Justice Act. However, the achievements attained thus far have begun to show signs of progress towards establishing an effective child justice system in South Africa. The best interests of the child are of paramount importance. All stakeholders can assist, and indeed have an important role to play, in making the Act achieve its desired outcomes.

Thank you.

PRESENTATION BY LORENZO WAKEFIELD: OVERVIEW, HISTORY AND INTERNATIONAL OBLIGATIONS ON CHILD JUSTICE IN SOUTH AFRICA

United Nations Convention on the Rights of the Child (CRC)

Best interests of the child
Right of the child to participate in decisions on matters i.r.t his/her life
Right not to be discriminated against
Right to survival and development
Art 40 – separate criminal justice system for children
Art 37 – children in detention

South African Constitution

S 28(2) – requires that a child’s best interests have paramount importance in every matter concerning the child
S 28(1)(g) - right of a child to be kept separately from persons over 18 while in detention; right of a child not to be detained except as a measure of last resort and then only for the shortest possible period.

Since the early 1990’s there has been a heightened awareness of the plight of children accused of crimes and their treatment within South Africa’s criminal justice system. There have been unsuccessful piecemeal attempts by the government to amend existing legislation to improve the situation relating to juvenile accused.

South African Law Commission’s Project Committee on Juvenile Justice 1996 - 2000

SALRC investigation into Juvenile Justice resulted in a report and draft Bill in 2000. The Bill has addressed the problems encountered in the field of child justice as it exists within the framework of current legislation. The Act is aimed at protecting the rights of children accused of committing crimes as well as establishing a more efficient and child friendly criminal justice system. Generally the legislation is procedural, it deals with issues such as police powers and duties, arrest and court procedures. Furthermore the Act regulates the detention and release of children, providing definite guidelines for the exercise of judicial discretion in detaining children in prison while awaiting trial. More importantly, there are a number of provisions in the Act that significantly change the present state of our child justice law.

The Bill was introduced into parliament in 2002 and public hearings and departmental briefings were held between February and March 2003. The Portfolio Committee on Justice and Constitutional Development held debates during 2003 which resulted in various changes.

In 2004, there were national elections and the Bill was not debated until a new version was approved by Cabinet in late 2007. In 2008, there were public hearings and PC deliberations on the Bill which was very participatory. On 25 June 2008, it was passed at 1st reading in the NA; 25 September 2008 passed by NCOP; 19 November 2008 passed at 2nd reading by NA and then sent to President for assent and signature. On 7 May 2009, the President signed the Bill into an Act: Child Justice Act 75 of 2008.

The Act seeks to ensure that the roles and responsibilities of all those involved in the process are clearly defined, in order to facilitate inter-departmental co-operation. The Act recognises the fact that children do commit serious offences and that they must be held accountable for their actions and take responsibility for the human rights and fundamental freedoms of others. Generally the legislation is procedural in terms of:

police powers and duties
regulates the detention and release of children, providing definite guidelines for the exercise of judicial discretion in detaining children in prison while awaiting trial.
Introduces new procedures in law – diversion, assessment, and raises the age of criminal responsibility.

PRESENTATION BY ZITA HANSUNGULE SHADOWING THE CHILD THROUGH THE CHILD JUSTICE SYSTEM

An overview of the Act

The way the Act is set out follows the process of a child going through the system.

The Act is mainly procedural in nature, except for the changes to criminal capacity and has a ‘restorative’ mind set. It aims to prevent future crime and is protective of children’s rights. The Act remains pragmatic – children can be sentenced up to 25 years

Efforts to reduce pre-trial detention

The Act encourages the release of children to the care of their parents or other suitable adults. The Act entrenches the constitutional requirement that detention should be a measure of last resort – both awaiting trial and with regard to sentencing.

To illustrate the Act we are going to look at each stage from the perspective of two different hypothetical offenders

The first is an 11 year old girl charged with a schedule 3 offence
The second is a 16 year old boy charged with a schedule 1 offence

Zita

Zita is an 11 year old girl who lives with her mother and father in a middle class home. One day at school she had an argument during class with an 11 year old class mate, Sumi. After school, several witnesses saw Zita push Sumi from behind into the path of an oncoming car. Sumi suffered a fractured skull and a broken arm and leg. Zita was charged with attempted murder.

Morgan

Morgan is in grade 10. He is rebellious and often in trouble at school. He is an orphan and lives in an apartment with his 24 year old brother who works at Romans Pizza. Morgan went out one night and spray painted an Eskom wall with the words “Smaller carbon footprint – the lights are on: Is there anyone at home?” When confronted, he admits it was his work. The Eskom manager says it will cost R1500 to repaint.

Alternatives to arrest

Chapter 3 of the Act - sets out 3 ways of securing the attendance of a child at a preliminary inquiry (which is considered the 1st appearance)

Written notice to appear
Summons
Arrest

They are set out in this order because the Act is trying to discourage the automatic use of arrest. If Zita or Morgan were arrested and taken to the police station by the police, the next issue is the approach to be followed when considering the release or detention of a child after arrest. Chapter 4, s 21 gives an overview of the approach, s 22 and 23 go into more detail.

Assessment by a probation officer prior to preliminary inquiry

Assessment is contained in Chapter 5: Before the preliminary inquiry a probation officer will assess every child, irrespective of the child’s age or of the offence. The assessment report is important for decisions being made by the prosecutor and/or at the preliminary inquiry.

Diversion is a new feature in our law. It occurs in the following instances:

prior to (and instead) of preliminary inquiry
at preliminary inquiry (prior to and instead of the trial
during the trial.

There is also diversion by prosecutors and this can be done in respect of schedule 1 offences. Previously all diversions were concluded by a prosecutor, and most of these were for schedule 1 offences (but not all). This diversion is something new and it must be made an order of court and be concluded in chambers.

Preliminary inquiries

Schedule 2 and 3 offences (plus schedule 1 cases where prosecutor did not divert) will go to the preliminary inquiry. Pre-trial, similar to a ‘case conference’ the idea was born from the fact that the previous system operated like a ‘conveyer belt’. It represents a moment in which all the role players focus (jointly) on deciding what is the correct action to be taken – ‘an informal pre-trial procedure which is inquisitorial in nature’.

Pre-trial release/ placement

Chapter 4 part 1 deals with release and part 2 with placement. S 26 gives an overview. Part 3 includes factors to consider every time a child appears

Release or placement?

Zita: Children below 14 years cannot be held in a prison -maybe in secure care? See the factors the court will consider in s 29(2).

Morgan: Schedule 1 offence. He has a home where he lives and his brother is probably an appropriate adult. If he lived on the streets, what then?

Child Justice Court

Not very different from how the old ‘juvenile court’ operated. If children are prosecuted in District, Regional or High Court, the Act and its procedures will apply. There is a commitment to trying to reduce the number of remands and the duration thereof. The 14 day rule for prison, 30 day for secure care and 60 days for not detained. S 63(2): Where a child and adult are charged together in the same trial in respect of the same facts … a court must apply the provisions of this Act in respect of the child and the CPA in respect of the adult.

Media 24 Limited and Others v the National Prosecuting Authority and Others in re: S v Mahlangu and Another 2011 (2) SACR 321:

S63 (5) No person may be present at any sitting of a child justice court, unless his or her presence is necessary in connection with the proceedings of the child justice court or the presiding officer has granted him or her permission to be present. Reference to CPA which states that the media cannot publish any info which identifies or may identify a child.

Objectives of sentencing – see s 69

General rule: there must always be a probation officer’s pre-sentence report prior to the sentencing of a child - s 71.The Act includes a wide range of sentencing options. Imprisonment should only be used as a measure of last resort and then for the shortest possible time. Imprisonment: There is a prohibition on prison sentences for children under the age of 14 years and certain criteria linked to the severity of the offence in respect of children older than 14 years. Long sentences remain available for very serious cases - up to 25 years.

QUESTIONS AND DISCUSSION

Hounourable Julius: How ready are our police in terms of the implementation of the Child Justice Act, what are the realities on the ground and please clarify the various sentences for children. There is a centre in Mogali city where children are kept and its closed. Just want to know are we winning the war against it or is something happening, what is being done regarding that case?

Honourable Manopole: Chairperson thank you, I would like to welcome the presentation. To what extent have we been creating sufficient awareness with communities? Do communities know and understand the seriousness of the offences?

Honourable Capa: in social development are these children completely in the diversion programme and do we have sufficient social workers? Family advocates office delays - what kind of shortfalls does this create in the system?

Honourable Mohapi: The application in Section 35 of the Constitution in respect of the right to remain silent, what is the application of this in the case of a child?

Answers to Questions:

Zita: In terms of the right to remain silent, all the rights in the Constitution apply to children. This includes the right to a fair trial or the right not to be detained as a measure of last resort. All of these rights apply to children as they go through the criminal justice system and it is also important to note that, when I talk about written notice what I mean is that the children’s parents or guardians were requested to be there as a form of protecting the rights of the children so when they do go to trial they have legal representation which is also another way of protecting the rights in the Constitution

I would like to add that with regards to protection and the right to remain silent I know the Deputy Minister mentioned the preliminary enquiry and if you look at the way it is set up the preliminary enquiry is meant to look at the probation officer’s report. A recommendation is then made as to whether it is a child is in need of protection and care in line with the children’s court order and whether the child will be diverted or if the child wants to proceed to trial, trial will be under a different magistrate and the child justice court proceedings will then be applied. It is therefore not dependant on anything the child might say in the preliminary enquiry that will be held against them in the child justice court.

IMPLEMENTATION OF THE CHILD JUSTICE ACT – Lorenzo Wakefield

Introduction

The information being presented is based on findings from desktop-based research:

Criminal Capacity

Previously this was based on common Law. Child below 7 years is irrebuttably presumed to be doli incapax. Child between 7-14 years is rebuttably presumed to be doli incapax. Child above 14 years is regarded as having full criminal capacity

In International law, there is no specified age for criminal capacity but, the Committee on the Rights of the Child recommends that the minimum age of criminal capacity is 12 years. Developing medical science also points to later development of children’s mental capacity.

In terms of the Child Justice Act

Child below 10 years is irrebuttably presumed to be doli incapax

Child between ages of 10 – 14 years is rebuttably presumed to be doli incapax
Child above 14 years is regarded as having full criminal capacity

However, the Act provides that the Minister of Justice MUST review the minimum age of criminal capacity after 5 years. DoJCD hosted a workshop on the amendments to the CJA in relation to criminal capacity. Multiple stakeholders agreed to 12 years as minimum age of criminal capacity. The impact of this is that fewer children enter the justice system. Pool of children benefiting from social services might increase. Bill with amendments is yet to be tabled in Parliament – despite 1 April 2015 deadline.

Impact of the Sexual Offences Act

Criminalisation of consensual sexual behaviour by children between the ages of 12 and 16 years. Sections 15 & 16 criminalisation.

Teddy Bear Clinic & RAPCAN v Minister of Justice and Constitutional Development (CC):

Introduction of Criminal Law Matters (Sexual Offences and Related Matters) Amendment Act Amendment Bill of 2015. Children’s names on the sex offenders register. Upon conviction of any sexual offence a child’s name is placed on the register and in certain instances for life.

In J v National Director of Public Prosecutions

Individualised approach to screening the possibility of a child’s name on the register.

Statistics

The collection of statistics have been problematic since the implementation of the Act. Statistics are important to measure the impact of the Act. Statistics are important to identify and address challenges in implementation.

Numbers of charges vs numbers of children

The fourth (2013/2014) annual report

No statistics on number of charges brought against children.
No statistics on number of children assessed.
No statistics on number of children diverted.
Comparative to other previous financial year reporting, but not within the current financial year.
Valuable information such as number of sexual offences committed and number of children used by adults to commit offences.

Accountability and Oversight

Annual Report	Date Tabled	Date Considered	Committee
2010/2011	April 2011	21 June 2011	PC: Justice PC: CS
2011/2012	April 2012	12 Sept 2012	PC: Police
2012/2013	May 2013	23 Oct. 2013	SC: Security and CD
2013/2014	June 2014	Not yet	N/A

Combined Child Justice Act annual report with that of Departmental Annual Report. This is problematic for a number of reasons:

Purpose of these reports are different.
Weakens Parliamentary oversight.
Removes political accountability towards children.

Table shows that DOJ complied with duty to table reports. Parliament must strengthen its oversight on implementation.

Conclusion and Recommendations

There is no doubt that the CJA takes the best interest of children into account and provides a child appropriate justice system for children.

Recommendations

The Executive must reflect more accurately and consistently on the statistics of children in the justice system.
Vital information, such as the number of charges brought against children and the number of children diverted cannot be omitted.
Parliament needs to strengthen its oversight on the implementation of the Act.
Consistency with meetings is a first step.
Section 19(3)(a) of the Judicial Matters Amendment Bill 2of 2015 should be rejected.

ISSUES ARISING FROM THE CHILD JUSTICE ACT IMPLEMENTATION REPORTS – Patricia Whittle

Quality of information in reports

Inaccurate and contradictory statistics; inconsistent reporting; lack of systematic year on year reporting; absence of detailed analysis of the statistics and gaps in information and statistics.

Therefore an inconclusive picture of implementation of CJA or children in conflict with the law is being presented.

Number of charges

2010/11 : 75 797
2011/12: 68 078
2012/13: 57 721
2012/13 compared to 2010/11 shows 23.85% Decrease
2012/13 compared to 2011/12 shows 15.21% Decrease

Number of assessments

2010/11 : 32 500
2011/12: 18 334
2012/13: 32 125
2013/14: 29 280
2012/13 compared to 2011/12 shows 75% Increase
2013/14 compared to 2012/14 shows 8.85% Decrease

Number of preliminary inquiries

2010/11 : 14 471
2011/12: 17 822
2012/13: 25 517
2013/14: 21 563
2012/13 compared to 2011/12 shows 43.17% Increase
2013/14 compared to 2012/13 shows 15.49% Decrease

BAIL AND PLACEMENT OF CHILDREN ALLEGED TO HAVE COMMITTED OFFENCES

	2011/12	2012/13	2013/14	2013/14 compared to 2012/13 (%)
In care of parent / guardian / appropriate adult	4 664	4 582	5 314	15.9% Increase
Bail	261	283	327	15.5% Increase
In prison	565	733	789	7.6% Increase
In child and youth care centre	1 534	1 721	1 440	16.3% Decrease
Police lock up	174	110	76	30% Decrease

Department of Health (DOH)

The Department is responsible for criminal capacity assessments of children aged 10 -13 and determining the age of a child when it is uncertain whether the child is under 10 or under 14 years old. 1 584 criminal capacity assessments were done in 2011/12 of children aged 11 -14. No other data was provided on the number of criminal capacity assessments done in 2012/13 and 2013/14. DOH has a serious shortage of clinical psychologists and psychiatrists (54 private psychiatrists and 32 private clinical psychologists can do criminal capacity evaluations for courts but charge very high rates)

DIVERSIONS

Diversion Orders	2010/11	2011/12	2012/13	2013/14	2012/13 compared to 2011/12 (%)	2013/14 compared to 2012/13 (%)
Before enrolment (and as a percentage of all diversion orders)	Not reported	Not reported	6 605 (57%)	Not reported	-	-
Before Preliminary Inquiry	2 444	1 577	Not reported	Not reported	-	-
Diversion Orders	2010/11	2011/12	2012/13	2013/14	2012/13 compared to 2011/12 (%)	2013/14 compared to 2012/13 (%)
At Preliminary Inquiry	4 630	2 608	4 428	Not reported	69% Increase	-
At trial (after enrolment) [as a percentage of all diversion orders]	8 539 (51.8%)	3 946 (42.9 %)	4 815 (42%)	Not reported	22% Increase	-
At District court	Not reported	Not reported	4 725	Not reported	-	-
At Regional court	Not reported	Not reported	90	Not reported	-	-
TOTAL	16 462	9 192	11 420	10 809	24% Increase	5.3% Decrease

OUTCOME OF TRIALS IN CHILD JUSTICE COURTS

	Guilty	Not guilty or acquitted	Withdrawn	Struck off the roll	Total
2011/12	1 128	794	1 637	1 000	4 559
2012/13	1 443	628	1 384	1 123	4 578
2013/14	1 179	650	1 179	949	3 957
Total	3 750	2 072	4 200	3 072	13 094

Only 3 750 (28%) of 13 094 trials ended in a guilty verdict.
72% of cases ended in not guilty /acquittals / withdrawn / struck off the roll.
A high number of children enter the criminal justice system only to be released.

Total number of non-custodial sentences increased 2010/11-2012/13:

Community-based sentences (1 045% increase)
Restorative justice sentences (270.8% increase)
Compulsory residence in a CYCC (204.5% increase).
In 2013/14, the total number of non-custodial sentences decreased by 2.8% in comparison with 2012/13.
The largest decrease was in postponement / suspension of passing of sentence (30.4%) and the restorative justice sentence (20.8%).

There is a lack of reporting on recidivism in the Reports, which is important to measure the impact of the implementation of the CJA, especially in respect of diversion and rehabilitation programmes for children.

Custodial Sentences

Used as a measure of last resort, and only for the shortest possible time. Children under 18 years and on remand in DCS facilities. It is important to note that no children under 14 may be kept in prison. Total number of non-custodial sentences decreased by 81.7% between 2010/11-2012/13.

Children in Detention (awaiting trial and sentenced)

Reports lack comparative year-on-year data

Regions with the highest number of detained children in 2013/14 were Eastern Cape (31%) and KwaZulu-Natal (30%).

(Gauteng and Western Cape have the highest inmate population)

In 2013, the number of remand detainee children detained for longer than 90 days in DCS facilities increased. Of the 181 remand detainee children as at 31 March 2014, five of them were detained with the option of bail. Is there an increase in the number of children in remand detention? DCS figures of admissions and releases do not provide a clear picture.

The Third Report lacks data for 2012/13. The number of awaiting trial children in CYCCs declined by 42.53% in 2012/13 compared to 2010/11 (information provided by DSD). In terms of the 2013/14 unconsolidated Report there were 632 sentenced children in CYCCs in 2013/14.

DIRECTOR-GENERAL PRESENTATION

I have some observations related to the reports that have been presented before the honourable house but they are also observations that are informed by my own experience with the inter-sectoral committee linked to the issues of child justice.

The thing that permeates all the presentations is that there is a limitation of information and the comparative nature of the information gets omitted. Please note that this is only the first 5 years of the implementation of the Act and in my understanding an Act takes quite a while before it matures in its implementation. We need to understand how people are able to play their part in implementing the legislation. Each year we must look at the implementation of each section of the Act and report on the implementation per section of the Act and in terms of the progress being reviewed we feel that perhaps the legislation is too ambitious in terms of the implementation.

The second thing is the issue of capacity across the board. The slow way in which the Act has been progressing speaks to the capacity on the ground and you can see we are falling behind in the terms of the implementation. We need to understand that we do have inconsistent representatives because people do change departments and as people change the intellectual memory around implementation does change as a consequence of that.

Another issue speaks to information around the review of the minimum age of criminal capacity, we need to do more comparative research that will be meaningful going forward and therefore it will be easy to show criminal capacity. We started the research but did not meet the expectations of parliament in terms of the submission of the report and therefore could not complete that report. We have committed to submit the report by August or September of the current year.

We took a conscious decision to halt the establishment of the child justice centres because we are trying to assess the infrastructure and the actual resources that must exist in the child justice centres countrywide.

In respect of training each one of us have to be trained as much as possible but this is a big challenge and people leave with all their training knowledge and so we are in constant refresher training. Training is expensive and therefore we don’t have an unlimited budget to be training everybody. We conduct training and we are trying to develop an accredited training program.

In relation to the decreases in the children assessed, we as the inter-sectoral committee are looking at ways to improve. We want to gather information of who is assessed and who is not assessed. As the inter-sectoral committee we have established that we were falling behind in terms of the rolling out of diversion programs in part due to capacity on the ground and due to the financial constraints. We have submitted a report in terms of mutual funding of the NGOs.

Finally, I would like to deal with the last issue of information capacity. We wish to improve levels of assessments as soon as possible and people in the private sector have offered their assistance.

We have not been consistent in terms of how we submit temporary reports the reason for that is because it takes time for each government department to process reports and as a result the reports are done slightly out of time. The problem with submitting reports on time is that it doesn’t give us a consolidated open review. It is very difficult to put these things together but we are very mindful of it.

Thank you very much.

QUESTIONS AND ANSWERS

Honourable Capa: The challenges that we are putting forward are disheartening because we have dedicated as parliament through all the structures that are here to bring about change. As a full government we have agreed to do things right. We as parliamentarians wouldn’t indeed appreciate the challenges brought forward as we are supposed to receive a progress report. We would rather have these on an ongoing basis.

The matter before of us is critical for the survival of South Africans if we look into all of the challenges that are out there in every department the fact is that our children are of utter importance and we need to do things quickly. I understand the executive challenges and I believe that there is executive authority in every department and leaders need to keep each other in check because we are working within our own departments to bring about social justice so that as a social cluster we understand the dynamics that affect us. To make processes less time consuming we must report to other clusters. Statistics are the only instrument we can use to make a difference out there and that is why we need reports. The people out there want our services.

Mbali Mnati (SAPS): We would like to apologise as there has been a glitch in communication around the report. However, we are going to sort it out as soon as possible.

Vanessa Padayachee (Nicro): I want to thank all the presenters for their input and I’m just glad we could be here as NICRO being one of those first organizations that took part in the development of the legislation many years ago. I think when we said there was going to be a series of dialogues there should be a lot more input that can go into looking at the review of the sector. DG its really good to hear that you’re looking to review the sector and that the priorities are on capacity and just to say that NICRO is also doing some research on capacity.

Praise Kambula (DOJ): will link up with Nicro on criminal capacity research and there will be a manual collection of data as the Act requires such collection to go into case records for the report to be completed by 31 August 2015.

Response to Honourable Manopole’s question regarding capacity building: The inter-sectoral committee produces materials and raises awareness with communities on the CJA and there are outreach programmes in place.

Honourable Swart (PC Justice): The Committee was involved in the inception of this Act but oversight remains a challenge as there are currently 2 portfolios in 1 committee.

CONCLUSION

Bennita Moolman (facilitator): Due to other plenary commitments of members, the programme had to be shortened and we did not have time to develop oversight tool. This tool will be developed after the workshop and presented to the Committee.

Honourable Manopole thanked everyone for their participation and attendance.

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