Priorities of the Act 8 1.
ï· In 1996 an Inter-Ministerial Committee (IMC) was established which recognised the need for a specialised child justice system in their Interim Policy Recommendations.
ï· In 1997 the South African Law Reform Commission published an Issue Paper on Child Justice,1 which proposed that a separate Bill be drafted in order to provide for a cohesive set of procedures for the management of cases in which children are accused of crimes.
ï· In 1998 a comprehensive Discussion Paper, accompanied by a draft Child Justice Bill2, was produced in consultation with key government departments and non-governmental organisations (NGOs). This was submitted to the Minister of Justice and Constitutional Development in August 2000.
ï· In 2000 a national Inter-Sectoral Steering Committee on Child Justice comprising of the Departments of Justice and Constitutional Development, Safety and Security (Police), Social Development, Correctional Services, Education, Health and the National Director of Public Prosecutions was established.
ï· In August 2002 the Child Justice Bill, 2002 (Bill 49 of 2002) 4 was tabled in Parliament.
3 Department of Justice and Constitutional Development, Department of Social Development, Department of Safety and Security, Department of Correctional Services. Interim National for the Management of Children Awaiting Trial. This work was supported by the United Nations technical assistance project on Child Justice.
4 Sloth-Nielsen, J. 2003. Submissions to the Portfolio Committee on Justice and Constitutional Development: The Child Justice Bill 49/2002.
Available at http://www.childjustice.org.za/submissions/SlothNielsen.
ï· Public hearings were conducted on the Bill in February 2003 and deliberations on the Bill by the Portfolio Committee on Justice and Constitutional Development followed in March 2003.
ï· In late 2003 processing of the Bill through Parliament was suspended for a variety of reasons.
ï· In December 2007 amendments were proposed to the Bill by the Minister of Justice and Constitutional Development.
ï· The Portfolio Committee on Justice and Constitutional Development extensively deliberated on the Child Justice Bill during 2008.
ï· The Bill was adopted by the National Assembly on 25 June 2008; adopted by the National Council of Provinces during September 2008; and passed in September 2008.
ï· The President signed the Bill into law in May 2009 and the Act was published in Government Gazette number 32225 on 11 May 2009.
ï· The Act creates a new child justice system with a procedural framework for dealing with children who are accused of committing an offence.
5 Badenhorst, C. 2006. Criminal Capacity of Children. Doctoral Thesis. UNISA. Available at http://uir.unisa.ac.za/bitstream/10500/897/1/thesis.pdf. Accessed on 11 March 2010.
ï· promoting co-operation amongst government departments and between Government departments and the non-governmental sector and civil society to ensure an integrated and holistic approach in the implementation of the Act.
ï· Thirdly, that the handover of responsibility towards children in conflict with the law between departments is regulated and well-managed (Managing Inter-sectoral Co-ordination).
This committee is mandated to ensure that training is co-ordinated and that information is widely distributed throughout the sector. Ongoing training, both within individual departments and intersectorally is a key national priority and must be prioritised by all the relevant departments as per sections 97 (4) (e), (5) (e) and (8) of the Act.
7 Zaal, N & Skelton, A. 1998. Providing effective representation for Children in a new Constitutional Era: Lawyers in the Criminal and Children's Courts.
The establishment and building of separate child-friendly infrastructure, such as courts and facilities for awaiting trial and sentenced children, will further receive priority attention by Departments, within the available resources of the State.
Where separate facilities cannot be built specifically for children, Departments will do all in their power to ensure that children are managed separately from adults and that in terms of case flow management principles, childrens cases will be fast-tracked and prioritised.
o the appearance of the child in a child justice court; or o the referral of the matter to a childrens court, where applicable.
The Act creates an effective sentencing framework for children to give effect to the constitutional mandate that detention of children should be a last resort and for the shortest appropriate period of time. This is evident from, amongst others, section 3 on the general principles of the Act and section 69 which sets out the objectives of sentencing. The sentencing framework in the Act prioritises the use of alternative or non-custodial sentences and creates a framework to ensure that residential sentences are a last resort.
All departmental role-players will ensure that systems are put in place to ensure that monitoring of non-custodial sentences; the execution of a section 76(3) sentence and the designation of a Child and Youth Care Centre in terms of section 76(4) are effected as expeditiously as possible in the best interests of the affected children.
ï· content for diversion programmes and alternative sentences (offered either by government departments or service providers).
The Provincial Child Justice Forums will submit business plans with recommendations to the National ISCCJ, which will recommend establishment in terms of section 89 of the Child Justice Act, 2008, to the Minister of Justice and Constitutional Development, read with section 2 of the Magistrates Courts Act, 1944 (Act No 32 of 1944).
In order to support the information management requirements of the Act, through the Integrated Justice System but also through the individual Departments Information Management Systems, necessary IT systems will be developed.
Ensuring the childs appearance at a preliminary inquiry, primarily through the use of alternatives to arrest but through arrest as a matter of last resort.
Explaining to the child offender and the childs parent / guardian/ appropriate adult that the child offender has a right to legal representation, and if the family does not have their own legal representative, then Legal Aid SA will assign a legal representative to the child.
Attending to all aspects of finding the childs family, appropriate adult or guardian in liaison with the probation officer.
The transportation of a child offender to and from the various detention facilities, such as the Correctional Services Awaiting Trial Centres or Department of Social Developments Child and Youth Care Centres, Reform Schools and the court.
Providing a probation officer to conduct an assessment of all children apprehended on allegations of having committed a criminal offence, as well as presenting the recommendations following that assessment regarding the possible referral of a child to the childrens court and/or counselling, the placement of a child should he or she not be released; and on the appropriateness of diversion including a particular service provider or particular diversion options.
Ensuring the availability of a probation officer to perform duties in court such as giving oral evidence, submitting assessment and pre-sentence reports and participating in the preliminary inquiry. The probation officer should also furnish the inquiry magistrate with an estimation of the childs age if applicable.
The provision and management of Child and Youth Care Centres for children awaiting trial under the Childrens Act (38 of 2005) and will by 2012 have taken transfer of Reform Schools from the Department of Basic Education, as facilities for sentenced children. From time to time a list with all the information relevant to the location of all Child and Youth Care Centres in South Africa, the amenities and features of each centre and the level of security offered by each centre must be provided by DSD to the SAPS and to the Department of Justice and Constitutional Development (DoJ&CD).
Establishment of a court in any One Stop Child Justice Centre established as prescribed in section 2 of the Magistrates Courts Act, 1944 (Act No. 32 of 1944), and read with section 89 of the Act and the OSCJC Guidelines. One Stop Child Justice Centres are not an essential feature required to run the child justice system, but rather an optimal service delivery model which the Minister is empowered to initiate, within available resources.
Providing a Secretariat for the DGs ISCCJ, National Operational ISCCJ and provincial child justice forums. The prosecutor participates in the preliminary inquiry, and gives an indication at the end of the inquiry, whether he or she supports diversion in such matters.
8 The wording in the Child Justice Act differs in relation to the prosecutorial power to divert a case. In terms of section 52(2) of the Act it stipulates that the prosecutor has to indicate that the matter can be diverted. Thus, the prosecutor is given more power to not just support diversion, but to also make a decision on whether the matter can be diverted.
diverted at the preliminary inquiry, the matter proceeds to plea and trial in the Child Justice Court.
The Department of Basic Education should further be co-responsible for awareness-raising amongst school-going children, of the dangers of crime to support crime prevention, as well as what childrens rights and responsibilities are when they are involved with crime.
The legal representative should allow the child, as far as possible to give independent instructions regarding the case, explain the childs rights and duties and promote diversion, where appropriate, without unduly influencing the child.
In cases where the inquiry magistrate, child justice court or any other court makes a determination of the age of a child offender a copy of the determination must be referred to the DoHA for consideration of issuing an identification document for the child.
It is the Department of Healths responsibility to provide mental health-facilities for children who are referred to mental health-facilities for observation, or who are declared as State patients because of a mental health-challenge.
It is further the Department of Healths responsibility to assist with the provision of expert evidence regarding whether a child has criminal capacity, if the child is between 10 and 14 years of age and the State has to prove criminal capacity.
Offering a range of diversion programmes or community-based sentencing options. While it is the responsibility of DSD to develop, implement and manage diversion and treatment programmes, they also work co-operatively and provide funding for a wide range of NGOs offering diversion and community-based programmes.
The DGs ISCCJ is the most senior structure in a series of inter-sectoral committees which are in place at national, provincial and regional/ local levels in order to provide a vehicle for communication on and the co-ordination of services to children in conflict with the law. The DGs ISCCJ Chair reports directly to the JCPS Cluster meetings.
10 The ISCCJ meeting should be attended by the Chair of the PCJF. When the PCJF chair is not available to attend an ISCCJ meeting, the deputy chair should attend in his/her absence. While many Provincial representatives may be Justice officials, it should be emphasized that by their attendance of ISCCJ meetings they are representing their provincial child justice fora and not the Department of Justice and Constitutional Development.
ï· Provincial representatives should provide minutes and reports detailing progress within their respective provinces and escalating those issues which require the intervention of the ISCCJ.
ï· Each national department should provide statistics as per the agreed upon templates and reports in order to measure progress on the achievement of the NPF and the Act.
ï· The ISCCJ secretariat should provide an overview of the statistical analysis and progress against achievement of the NPF and the Act as well as escalate issues which cannot be resolved to DevComm and/or the DGs ISCCJ.
Specific NGOs who might be required to give expert/technical input or advice.
While the implementation of the Act requires the services of a number of NGOs in terms of diversion, restorative justice, etc, engagement with those NGOs who render a direct service to one or more of the Departments should be through bilateral meetings rather than via the ISCCJ.
ï· There is a need for regular operational meetings between role-players in order to ensure that each department not only takes ownership of their own area of responsibility but also ensures that the interface between departments is well managed.
ï· It is essential that the child is at the centre of this process, and there should be acute awareness of all role-players that delays, particularly those which cause children to remain in detention, are extremely detrimental to the childs well-being.
ï· The child should be moving through the system in a manner that promotes his or her safety and well-being as a priority.
ï· The changing of shifts or the allocation of different responsibilities to arresting officers and investigating officers should all be managed in such a way as to have minimum negative impact on children in the system.
ï· Case flow management principles should be utilised in support of this.
Immediately but not later than 24 hours after handing written notice to child.
Immediately but not later than 24 hours after handing summons to child.
Release of child on written notice into care of parent, appropriate adult or guardian, if the child is in detention in police custody i.r.o. an offence referred to in Schedule 1, unless certain the parents cannot be located or there is a substantial risk that the child may harm him/herself or any other person.
As soon as possible and before the child appears at the preliminary inquiry.
Person admitting the child where a child is placed in a child and youth care centre, police cell or lock-up or a person, to whose attention it comes that an error has been made regarding placement.
After assessment of the child, except if the prosecutor has dispensed with the assessment if it is in the best interests of the child to do so; and before a preliminary inquiry.
PI must be held within 48 hours of arrest if a child is arrested and remains in detention; or within the time periods specified in the written notice or summons.
Level 1-diversion option:12 11 Provided that where it is not possible to comply, the police official must submit a written report to the presiding officer, furnishing reasons for non-compliance.
# For child 14 years or older, order may not exceed 24 months, except if reasons are given for an order exceeding the time period, on the record of the proceedings.
Must complete the report as soon as possible but no later than six weeks following the date on which the report was requested.
Child justice court; and police (transport of child).
Presiding officer must cause the matter to be retained on the court roll for one month, and must, at the re-appearance of the matter, inquire whether the child has been admitted to the child and youth care centre.
Sentenced child may be sentenced to imprisonment for a period not exceeding 25 years.
# for child older than 14, may not exceed 48 hours, except if the reasons are entered on the record of the proceedings.
ï· For cases involving children heard in High Courts: 9 - 12 months.
These case cycle and turn-around times, will also be monitored by the ISCCJ.
The Act requires a monitoring and evaluation component in support of the implementation of the Act. This is in line with international trends which note that "when government officials and the institutions making up the child (juvenile (sic)) justice system do not have information either about the functioning of the system or the children who are in contact with it, abuse, violence and exploitation can occur with impunity, and the experience of the child is unlikely to be in his or her best interests.
o Sexual offences committed by children; and o Children who lack criminal capacity.
Utilise the National Operational ISCCJ, which collects and analyses data via a set of data collection templates which are given to each department, to analyse trends in the flow of children through the child justice system. This will be measured against an initial base line set of data which will be collected during the first three months of the Acts implementation.
Facilitate the establishment of an integrated information system via two electronic tools. In the short term the DOJ&CD National Operations Center (NOC) has incorporated a number of the relevant indicators into a reporting tool which will be tested, refined and operationalised.
Child Justice System will be incorporated into the data collection tools of the Integrated Justice System (IJS)15.
The vision of the Integrated Justice System (IJS) Programme is to bring about the integration of the various business and system processes that make up the criminal justice system, thereby enabling the Cluster Departments to deliver effective and efficient criminal justice to the citizen. The envisaged benefits of this programme will be the introduction of electronic information sharing to reduce administrative delays, enabling the various justice service providers to respond efficiently and provide tools for the effective management and planning of the criminal justice system.
In terms of Section 97 (6)(a), the Director General - DSD must keep a register, as prescribed, of children under 10 years of age in respect of whom a decision has been made and recorded by a probation officer in terms of section 9(6) regarding the outcome of the assessment. This register should also contain information regarding children older than 10 but younger than 14 who have been referred by the prosecutor due to the unlikelihood of proving criminal capacity as per section 10 (2) (b).
The SAPS Station Commissioner must also in terms of section 28 (2) (a), submit a report to the National Commissioner of Police, detailing all complaints or observations about an injury sustained or severe psychological trauma suffered by a child while in custody in police cells.
Monitoring to ensure that these requirements are being met will be done by the National Operations ISCCJ via reports from National Departments, NGOs and Provincial Child Justice Forums.
Systems and programmes which will be revised and further developed over time will be designed in such a way that they do not dissuade people from utilising the provisions of the Act i.e.
ï· United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules).
ï· UN Resolution on the Administration of Human Rights in Particular Juvenile Justice (A/HRC/10/L.
ï· Declaration of the Rights of the Child.
ï· The Constitution of the Republic of South Africa (108 of 1996) which sets out the rights of children in general and in the child justice system in particular.
ï· The Criminal Procedure Act (51 of 1977) which applies to all persons in the criminal justice system, including children.
o The CJA amends section 7 of the CPA by providing that a private prosecution may not be instituted against a child in respect of whom a matter has been diverted in terms of section 59(2) of the CJA.
o The CJA amends section 38 of the CPA by providing for new methods of securing the attendance of an accused child at a preliminary inquiry or in a child justice court.
o The CJA amends section 153 of the CPA by providing that, in terms of section 65(5) of the CJA, no person may be present at the 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 permission for the person to be there.
o The CJA amends section 302 of the CPA by changing the reference to a "reform school" to the term "child and youth care centre" in accordance with section 191(2)(j) of the Childrens Act, 2005.
o The CJA amends sections 309 and 316 of the CPA by aligning it with the provisions of section 84 of the CJA.
ï· The Childrens Act (38 of 2005) deals with the establishment of child and youth care centres which are facilities for the provision of residential care to more than six children outside the childs environment, in accordance with a residential care programme.16 It is important to note that the Child Justice Act, 2008 has amended section 191(2) and no longer refers to the Criminal Procedure Act, but now provides for the reception, development and safe care of children in terms of an order under Chapter 10 of the Child Justice Act, 2008. On a practical level one should note that in line with the Childrens Act, 2005 (No. 38 of 2005), a policy decision has now been reached between the Departments of Social Development and Basic Education that the Department of Social Development will also take over the responsibility for the infrastructure of the Reform Schools, within the next 2 years.17 The Department of Basic Education will only be responsible for the educational programmes of the children detained at such institutions.
17 Department of Justice and Constitutional Development Draft Document on Children in conflict with the law, January 2008.
ï· The Criminal Law (Sexual Offences and Related Matters) Amendment Act (32 of 2007) is relevant in terms of the child who has allegedly committed a sexual offence.
ï· The Correctional Services Act (111 of 1998) contains provisions which deal specifically with children and provides that detainees who are children must be kept separately from adults and in accommodation appropriate to their needs.18 The Act also provides significant detail around education and training opportunities which have to be provided as well a wide range of stipulations relating to the well-being of the child in correctional facilities. The White Paper on Corrections states that children under the age of 14 years should not be detained in correctional centres but that diversion, alternative sentences and detention facilities and centres, as administered by the Departments of Social Development and Basic Education, should be used for such children.
General of the Department of Social Development, transfer a sentenced offender who is a child to a reform school as contemplated in the Child Care Act, 1983 (Act No. 74 of 1983), and from the date of such transfer, the provisions of section 290 of the Criminal Procedure Act will apply.
ï· There are also provisions in the Child Justice Act, which impact on either the mandate of the Department of Correctional Services or which amend provisions of the Correctional Services Act.
ï· The Probation Services Act (Act 116 of 1991) (as amended) contains important provisions relating to child justice, such as those relating to assessment, diversion and restorative justice. In addition to specific provisions in the Child Justice Act, 2008, which spell out the various additional powers, duties and functions of probation officers, the Act also has amended several definitions contained in section 1 of the Probation Services Act, so as to more clearly reflect the intention contemplated in the Child Justice Act.
This National Policy Framework will be implemented and monitored by the various partners of the DGs ISCCJ and National Operational ISCCJ, to ensure that the best interests and rights of children in conflict with the law are promoted and protected.
The Policy will be reviewed after 3 years and on 5-year periods there-after, to ensure that such policies are kept updated and relevant to childrens practical situation.