Department of Justice and Constitutional Development

1. Department of Justice and Constitutional Development Child Justice Bill No. 49 of 2002 Presentation to the Portfolio Committee on Justice and Constitutional Development 20 February 2003

2. Existing activities and key changes required The cycle of events following arrest • In the current system, the general pattern is that children are arrested and then appear in court within 48 hours • The case is then often remanded again and again for “further investigation” • In many cases the child remains in custody either in a police cell or in prison

3. Child Justice Bill Preliminary Inquiry • This is a new procedure that aims to interrupt the normal cycle of events • It takes the place of the first appearance – aims to look at the case in some detail, to determine if it can be diverted, and if not, where the child will be placed pre-trial and during trial

4. Child Justice Bill Diversion • NPA has issued policy guidelines, but diversion is not equally applied- legal framework will assist. • Discussions with partners regarding standards for diversion • Audit of programmes complete, report forthcoming • Bill allows diversion through orders- programmes not required in these cases

5. Existing activities and key changes required Remands by court • Current process for remands is inefficient. Statistics show that one child was remanded 72 times • 14 day remand requirement aimed at protecting children but in fact “chokes” the roll, docket constantly circulating

6. Child Justice Bill New procedure for remands • Child Justice Bill proposes that a child awaiting trial in prison be brought back to court every 30 days • Additional measure to reduce pre-trial time – a six month limit on keeping children in custody (this does not apply to murder, rape and robbery cases) • These measures are aimed at making investigation more efficient and for trials to be completed more speedily

7. Existing activities and key changes required Court process • 747 magistrates’ courts, children may appear at any one. Currently no official specialisation – “juvenile courts” administrative arrangement in some urban areas Personnel not specially selectedor trained

8. Child Justice Bill Child Justice Courts • The Bill provides at clause 50 (1) (a) that any court before which a child appears for plea and trial must be regarded as a child justice court • Thus the setting up of new courts is not required

9. Existing activities and key changes required Sentencing options • Over-utilization of imprisonment as a sentence. • The number of children being sentenced to imprisonment has risen in recent years, and children are receiving longer sentences. • Approximately half of all children serving sentences in prison have been convicted of property crimes. • There are children aged between 7 and 14 serving prison sentences in our country, a cause for great concern. • Reform Schools – insufficient coverage

10. Child Justice Bill Sentencing Options • Community based and restorative sentencing encouraged by the Bill • Magistrates and Prosecutors need to be aware of alternative options • Bill refers to “residential facility” which broadens the options to using other facilities besides Reform Schools

11. Existing activities and key changes required Judicial Review • Currently any term of imprisonment of more than 3 months (magistrate< 7 yrs) or more than 6 months (magistrate > 7 years) goes on automatic review • This has been of assistance to numerous sentenced children, and helped to set guidelines for good practice

12. Child Justice Bill Judicial Review • Bill proposes slight expansion of grounds for automatic review – any sentence involving residence • Will not place a burden on the system • 11% (178) of all children in prison serving less than 6 months

13. Existing activities and key changes required Legal Representation • Children, like adults, have the right to legal representation where substantial injustice would otherwise occur • Children whose families cannot afford legal fees can obtain representation by Legal Aid Board • Although % of children being represented has increased, a sample study in 2000 indicated less than 50% are appearing with legal representation

14. Child Justice Bill Legal Representation • Bill provides for state funded legal representation when child is detained, when there is a likelihood that a sentence involving detention may result, or where child is below age of 14 years. Children may not waive this right • Non waiver clause – categories correspond with cases where a substantial injustice would otherwise occur • No substantial cost increases expected, however, as fewer cases expected to go to trial

15. No additional personnel required • Magistrates and Prosecutors will spend more time on preliminary inquiry but this is off-set by less time spent on trials. • Magistrates may have to recuse them- selves, not a problem in urban areas, but elsewhere may cause travel and subsistence costs, and these have been factored in.

16. Training • Court personnel will need to be trained regarding the new procedures • Development of training materials is underway, general awareness raising has already taken place • Donor funding available for the finalisation of training materials once Bill is passed as well as for the actual training process

17. New Infrastructure • The Bill empowers the Minister to establish One Stop Child Justice Centres • Two such centres already exist and an inter- sectoral planning process for the roll out of these centres as a best practice is underway • Additional funds requested for this purpose were allocated by Treasury. This amount, as well as the current use of roll over funds and donor support place the department in a strong position to ensure that there is at least one One Stop Child Justice Centre in every province by the end of 2005.

18. Monitoring • The Bill provides for “regulation regarding procedures to be put in place to monitor and assess the proper application and compliance with this Act.” • The Department, with the Inter-sectoral Committee on Child Justice, has already begun to plan for structures and procedures for monitoring. Money has been allocated in the department’s budget to assist with this process and there is also donor funding earmarked for this purpose

19. Conclusion • The Department of Justice and Constitutional Development and the National Prosecuting Authority are committed to improving service delivery for children in the criminal justice system. • Whilst legislation is only one aspect of this, the Child Justice Bill offers a sound framework for service delivery that is efficient and effective, whilst also protecting children and balancing their rights and needs with the interests of society as a whole.