The South African Human Rights Commission (SAHRC)
welcomes the Child Justice Bill. The
Bill contains many positive aspects which will bring
In spite of its general appreciation of the Bill, SAHRC does have several concerns with the Bill, which are detailed below. The SAHRC would particularly like to emphasize its concerns relating to the diversion of sexual offenders, the detention of children in police cells for longer than 48 hours, and the provisions of the Bill exempting some children from assessments.
The Constitution sets out the functions of the SAHRC. Section 184(1) states:
“The South African Human rights commission must-
(a) Promote respect for human rights and a culture of human rights;
(b) Promote the protection, development and attainment of human rights, and
(c) Monitor and assess the observance of human rights in the Republic.”
It is within this mandate that the SAHRC monitors the legislative process at a parliamentary and government department level. Where necessary the Commission will respond to requests for comments and submissions on proposed legislation, regulations, and policies. In this instance, the SAHRC writes to draw the attention of the Committee to several requirements relevant to the treatment of children who come into contact with the justice system. These requirements are set forth in national and international law.
The Commission warmly welcomes the diversion and
restorative justice provisions in the Bill.
Diversion and restorative justice have been mandated by the UN Committee
on the Rights of the Child as key elements in the creation of a child justice
system that emphasizes rehabilitation and operates in the best interests of the
child. Accordingly, the diversion
provisions in this Bill enhance
The Commission would like to emphasize that diversion should not be viewed as a chance or a once off. The purpose of diversion is to provide an appropriate response in order to prevent reoffending. Accordingly, diversion must respond to the individual needs of the child. A range of responses are necessary in order to meet each child’s individual needs. Additionally, diversion programs should be structured to promote accountability of children.
Diversion should not be treated as part of a criminal record and used in future criminal matters at sentencing (clause 53). This is required for internal consistency, as clause 52(j) lists preventing the child from having a criminal record as one of the objectives of diversion. It is also consistent with the recommendations of the UN Committee on the Rights of the Child.
The Bill should be modified to state clearly that a child can be diverted more than once. This makes particular sense as a child may commit two very different crimes for very different reasons, and it will be in the best interests of the child to divert in both cases. Likewise, the state could send a child to a diversion program that is not the best fit, and another attempt might be needed to rehabilitate the child through a more appropriate diversion program.
The SAHRC is strongly concerned by the provisions in clause 57 that limit the prosecutor’s authority to pursue diversion for children who commit certain sexual offences. This provision violates the Constitution and best practices of child justice as set forth in international law. It also amounts to an amendment of the National Prosecuting Authority Act 32 of 1998.
Firstly, it is not constitutionally permissible to prescribe that a prosecutor cannot exercise the option of diversion when exercising her or his prosecutorial prerogative. Section 179(2) of the Constitution grants the prosecutorial authority to prosecutors, including the authority to determine when to divert a case. Thus, legislation that prescribes that the prosecutor may not consider diversion interferes with the separation of powers doctrine. Parliament cannot interfere with the prosecutor’s role as dominus litis and should not be arbitrarily limiting the prosecutorial prerogative of the Prosecutor. To the extent that the Committee would prefer some limit on the prosecutor’s discretion in an individual case, Prosecutorial Guidelines could be developed.
Additionally, as currently drafted, the exclusion of sexual offences is so irrational and arbitrary that it undermines the rule of law. This is because some of the crimes excluded from diversion are far less serious than other crimes where diversion is permissible. A 15-year-old girl who kisses her 15-year-old boyfriend, for example, would have committed a sexual offence and be ineligible for diversion. However, if she burned down his house, she would qualify for diversion. Because eligibility for diversion “bears no relation to the gravity of the offence . . . the offender is being used essentially as a means to an end and the offender’s dignity assailed.”
Prohibiting consideration of diversion for children also runs contrary to the Convention on the Rights of the Child. The Convention emphasizes the importance of diversion programs and requires equal treatment under the law for children and adults. South African law does not prohibit diversion for adults in sexual offences cases. Thus, prohibiting consideration of diversion for children is unequal treatment. Moreover, this inequality runs contrary to the goal of facilitating rehabilitation through diversion and makes little sense as children come to appreciate the nature of sexual offences at a later stage from that of other crimes.
In addition to the constitutional and international law concerns, clause 57 amounts to a de facto amendment of the National Prosecuting Authority Act. This Act expressly gives the National Director the authority to institute, conduct and discontinue criminal proceedings. Rules guiding the exercise of the prosecutor’s discretion in this regard are to be determined by the National Director rather than Parliament. The Act also encourages prosecutors to exercise their prosecutorial authority by diverting cases, particularly cases involving children.
For the reasons stated above, the SAHRC strongly advises that this provision be eliminated or be made consistent with other provisions in the Bill that address issues of prosecutorial prerogative. Section 42, for example, uses non prescriptive language, such as “may”, “decide”, and “is of the opinion”, which is appropriate in the context of the prosecutorial prerogative.
It is critical that children be detained in police
cells only as a measure of absolute last resort and for the shortest possible
time. Currently there is no system of
regular monitoring visits to police cells. This is of concern given the fact
that 698 people died in police custody in fiscal year 2006/07, an 11 percent increase
over the preceding year. In order to rectify this situation,
Clause 28 is welcomed. However, the clause needs to cover mental abuse and neglect. The Constitution, in section 28(1)(d), provides that children should be protected from abuse and neglect. Accordingly, neglect should be included in this sub clause. Neglect could include for example, inadequately warm clothing or bedding or lack of nutritious regular meals. Additionally, mental abuse or suffering should be added to clause 28(2)(a).
It is unclear what a lock-up actually is. Dictionaries define the word in a variety of ways, including “a jail,” “a place where someone cannot escape,” and “a place where persons under arrest are temporarily locked up; a watchhouse.” This makes the concept subject to interpretation by police officials and thus could potentially lead to children being detained in unsuitable places. Accordingly, the SAHRC recommends that the word lock-up be removed from the entire Bill and be replaced with “designated place.” The phrase “designated place” could then be defined in terms of regulations that would mandate, for example, what kind of room could be used for detention and what types of things should be in the room.
This section on the whole is welcomed. However, it needs to be pointed out that whilst children are being transported they are still being detained and thus they may never in terms of the constitutional stipulations be transported together with adults (section 28(g)(i)). The words “if reasonably possible” should accordingly be removed form clause 34(2)(c).
The Commission remains concerned that detained children awaiting trial do not receive access to basic education. This is in clear violation of the constitutional right to basic education (clause 29) and the recommendations of the CRC. The violations of the child’s right to education could be quite severe as the Act provides for pre-trial detention of up to two years. The Commission recommends that a provision requiring access to basic education for children in detention be added to Chapter 4, Part 2.
Unlike adults, children can often not entertain themselves for long periods of time. Accordingly, it is essential that all children in detention, including children in police detention, be provided with adequate and age-appropriate stimuli consistent with the recommendations of the Committee on the Rights of the Child.
The SAHRC welcomes the assessment requirements in the Bill. The SAHRC considers assessments to be a critical component of ensuring that criminal matters relating to children are handled in accordance with the best interests of the child, as required by the Constitution (clause 28(2)). Fulfilling the best interests of the child requires an individualized analysis of the child’s needs, which is what an assessment provides. Thus, the decision whether or not to assess a child should not be based on the charge. All children should be assessed unless performing an assessment is not in the best interests of the child. Accordingly, clause 9 should be modified so that all children below the age of 14 years are assessed.
Because of the shortage of qualified probation officers and the importance of handling matters relating to children quickly, as discussed in other parts of this submission, the persons who conduct assessments should not be limited to probation officers but should include other suitable qualified persons. (This could be further extrapolated and prescribed in regulations.)
The UN Committee on the Rights of the Child has warned that children who commit serious crimes are often prosecuted regardless of their actual criminal capacity. The current form of the Bill raises particularly strong concerns that children may be prosecuted unlawfully because section 9(2) appears to combine the inquiry as to whether the child has criminal capacity with the inquiry about whether the case should be prosecuted. Dealing with both of these issues within one clause is likely to result in confusion and the conflation of the issues. This could be remedied by creating a new section within section 9(2)(b) with an appropriate heading.
In terms of international law and commentary from the UN
Committee on the Rights of the Child, criminal capacity is recommended to be
set at 12 years of age. The Committee
has explained that countries should set the minimum age of criminal
responsibility to “12 years as the absolute minimum age and to continue to increase it to a
higher age level.” Moreover, the Committee specifically
recommended that “
The Commission would like to commend the Committee for
the inclusion of clause 4(2)(b). This
clause is consistent with the recommendations of the Committee on the Rights of
the Child, and forwards
Parental notification is important under both South
African and international law. A right
to parental notification is implicit in clause 28(1)(b) of the Constitution,
which guarantees the right to family or parental care, as a parent cannot provide
appropriate care if unaware of allegations that his or her child is involved in
criminal activity. The Committee on the
Rights of the Child also recommended that
The right to parental care is particularly critical for children involved in the child justice system, as parental care is an important component of preventing recidivism. Additionally, children are unlikely to have the knowledge to protect their own rights and often need the assistance of a trusted adult. The Bill itself recognises the importance of parental involvement in the juvenile justice system. See, for example, clause 48(7).
Accordingly, the words “where circumstances permit” ought to be removed from clause 18(3)(d). Should parental notification be considered impractical in a particular case, the police official should be required to provide a report to the court indicating the steps that were taken to inform the parent of the child’s’ arrest.
The 2-year time period provided in 67(2)(a) is unduly long. This is particularly true in light of 67(2)(b), which requires that trial be completed within one year of the child pleading to a charge. Clauses 67(2)(a) and (b), viewed together, would allow for children to be held for a full year without even pleading to a charge, even though the Convention on the Rights of the Child requires that children who are detained be charged within 30 days. Moreover, there is the danger that stipulating the maximum period will make it the norm and will inhibit efforts to ensure that children are detained for the shortest appropriate period of time as prescribed by the constitution (section 28(1)(g)).
Applying minimum sentencing to children is contrary to
The SAHRC would like to draw the attention of the Committee to the fact that the maximum sentence of 25 years, provided in section 78(5) is quite lengthy for a child. Whilst it may be appropriate for a court to impose such a lengthy sentence, the Committee should ensure that the children in such cases come regularly before the parole board as recommended by the Committee on the Rights of the Child.
 Committee on the Rights of the Child, General Comment No. 10 (2007), Children’s rights in juvenile justice, CRC/C/GC/10, at para. 21.
 Section 179(2); see also NPA 20(1) (defining the scope of prosecutorial powers).
 Cf. State v. Dodo, 2001 (3) SA 382 paras. 26, 40 (CC) (stating that, in the context of a minimum sentencing law, parliament cannot legislate to “exclude the important function and power of a court to apply and adapt a general principle to the individual case,” but upholding the law in question because the court has discretion in determining whether imposing such a sentence would be fair). No such discretion is provided for in clause 57 of the Child Justice Bill.
 The Bill of Rights Handbook (2005) p. 13, citing New National Party v Government of the
 State v. Dodo, 2001 (3) SA 382 para 38 (CC) (discussing proportionality in the context of sentencing).
 Supra, note 1, at pp. 5, 25.
 Supra, note 1, at pp. 5, 25.
 Act 32 of 1998.
Prosecuting Authority Act states that National Director must bring attention to
on the Role of Prosecutors, which state that “Prosecutors shall use their best
efforts to take prosecutory action against juveniles only to the extent
strictly necessary.” Guidelines on the
Role of Prosecutors, Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, A/CONF.144/28/Rev.1 (1990), para. 19, available at http://www.law.wits.ac.za/humanrts///instree/i4grp.htm. The Guidelines also state that, “[i]n
with national law, prosecutors shall give due consideration to waiving
prosecution, discontinuing proceedings conditionally or unconditionally, or
diverting criminal cases from the formal justice system, with full respect for
the rights of suspect(s) and the victim(s).”
 Report shows increase of deaths in police custody, Mail and Guardian Online, 8 Oct. 2007, at http://www.mg.co.za/articlePage.aspx?articleid=321391&area=/breaking_news/breaking_news__national/.
 Answers.com, available at www.answers.com/topic/lockup.
 Free Dictionary, available at http://www.thefreedictionary.com/lock+up.
 Dictionary.com, available at http://dictionary.define.com/lockup.
 Supra, note 1, at para. 89.
 See supra, note 1, at para 89.
 Committee on the Rights
of the Child, Concluding Observations of the Committee on the
Rights of the Child:
 Id. at para. 42.
 Supra, note 1, at para. 83.
 Supra, note 1, at para. 70 (citing the Convention on the Rights of the Child Arts. 40(4) and 37(b)).
 Supra, note 1, at para. 77.
 Supra, note 1, at para. 82.