Community Law Centre, University of the Western Cape
4 August 1998
Temporary provisions for the detention of juveniles amendments to the Criminal Procedure Act
1. As non- governmental organisations that have been integrally involved in matters affected by this legislation, including the monitoring of the existing provisions of section 29 of the Correctional Service Act, we believe that the inclusion of these new provisions in the Criminal Procedure Act are to be welcomed
2. First the new provisions are set out more clearly than the previous legislative enactment, and clarify matters that have previously been problematic, such as whether children can be detained in police cells after first appearance in court.
3. Second, the legislation does not deviate too substantially from the structure of' the present legislation in the Correctional Services Act, which we believe is the correct approach given the fact that this legislation is intended to be of temporary duration until the SA law Commission's juvenile justice drafting process has been completed.
4. Despite this, the Iegislation does take further the progressive realisation of the child's right nor to be detained in prison whilst awaiting trial, in that further limitations have been set on the use of pre trial detention. in accordance with government policy and with the emergence of alternative facilities (i.e. secure care). In particular; the limitation regarding the use of imprisonment only for children charged with serious and violent offences is supported.
5. Finally, the Bill clarifies the meaning and purposes of the appearance after 14 days, making it clear that this should not be a pro forma appearance simply to remand a matter, but that reasons should be sought why the child must continue to await trial in detention.
6. We would not support material deviations from the proposed legislation, as this might contribute to uncertainty amongst role players (magistrates, correctional services officials, staff at alternative facilities, and probation officers who have to make recommendations on placement of children in the pre-trial phase). This uncertainty and consequent uneven application of the provisions of the legislation was experienced with previous amendments to section 29, and it would be unwise we believe, to change the present rules too dramatically.
7. Finally, we would appreciate the opportunity to address the portfolio committee in person about the present state of affairs concerning children awaiting trial in prisons and related issues in order to assist the committee to deliberate upon the Bill.
Julia Sloth Nielsen, Senior Researcher, Children's Rights Project
Ann Skelton, Coordinator Child Rights, Lawyers for Human Rights