Human Rights Committee
Criminal Procedure Amendment Bill (59 – 98)
19 August 1998
1.1 Children have the right not to be detained in prison
1.2 Legislative history
1.3 The length of time for which the bill will be applicable
2. Detention in police cells and lock-ups
2.1 Detention in police cells before first appearance
2.1.1 The period of detention allowed
2.1.2 The requirements which must be satisfied before a child may be detained in a police cell
2.1.3 Duties placed upon an arresting officer who detains a child
(a) If the child subsequently appears before a court
(b) If the child is released and does not appear before a court
2.2 Detention in police cells after first appearance prohibited
3. Detention in prison
3.1 Children 15 years old and younger may not be detained in prison under any circumstances
3.2 Children 16 and 17 years old may only be detained in prison if they are accused of committing a schedule 8 offence
3.3 Criteria which must be satisfied before the court may order detention in prison.
3.4 An oral inquiry must be held to assess whether the detention or further detention of the child is necessary
3.5 Magistrates must record reasons for ordering the detention or further detention of a child
The detention order must be reconsidered by the court every 14 days
4. Obligation to expedite children’s trials
5. Monitoring mechanism
6. Appendix 1 – Statistics on unconvicted children in prison for 1997 and 1998
1. Introduction Introduction
1.1 Children have the right not to be detained in prison
The Human Rights Committee believes that children should not be detained in prison.
The Constitution provides in section 28(1)(g) that every child has the right not to be detained. Detention of children is allowed only as a measure of last resort and in such cases, only for the shortest appropriate period of time. In addition to the rights which a detained child has under section 12 and 35 of the Constitution, s/he has the right to be kept separately from adults and to be treated in a manner and accommodated in conditions that take account of his or her young age.
We are of the opinion that in many instances, imprisonment of children is occurring in violation of the Constitutional provision and in violation of South Africa’s international obligations:
• detention in prison is ordered when other placement options are available;
• children spend inappropriately long periods of time awaiting trial in prison;
• separation from adult prisoners is not guaranteed; and
• the Department of Correctional Services does not have the staff, resources or facilities necessary to ensure that children’s rights are protected and that children are kept in conditions which take account of their young age.
Detention in prison is ordered when other placement options are available
Despite the commitment to work towards the creation of a system where the detention of children in prison will not be necessary, the number of children ordered to await trial in prison has steadily increased over the last three years. At the end of January 1997, there were 693 children awaiting trial in prison. At the end of June 1998, there were 1130. These statistics indicate that the principle of "detention as a measure of last resort" is not being adhered to.
Before children may be detained in prison, all other measures of ensuring the safety of the public and of ensuring that the child appear in court should be exhausted. This implies that all other measures need to be investigated before the conclusion is reached that prison is the only option.
Our research has indicated that decisions to imprison children are sometimes being made without the necessary investigation being done regarding alternative placement options. In this regard we would particularly like to point out the following:
• Children often appear in court after arrest without their parents or guardians. One of the reasons is that parents are not being contacted by the investigating officers and informed of their child’s arrest and first appearance court date. The absence of parents or guardians is a factor which the court takes into account when assessing the best placement option for the child.
• Decisions to imprison children are sometimes taken without a probation officer’s report being handed in to the Court or without proper consideration being given to the report.
• Decisions to order the detention, or further detention, of children are sometimes taken without the requisite oral enquiry being undertaken by the Court.
Children spend inappropriately long periods of time awaiting trial in prison
Although courts are required to reconsider detention orders every 14 days, there is no limit on the number of 14 day remands which a court may order. Children can spend up to two years in prison awaiting trial. The principle of "detention only for the shortest appropriate period of time" is not being adhered to.
Separation from adult prisoners is not guaranteed
In May 1998, Commissioner Jody Kollapen of the South African Human Rights Commission (SAHRC) visited Nylstroom prison in the Northern Province. On inspection of the awaiting trial section, he found that children were not being detained separately from adults. The Prison Head informed the Commission that this was necessary as a temporary measure due to overcrowding in the prison.
As the overcrowding worsens, incidences like the above will become common place.
The Department of Correctional Services does not have the staff, resources or facilities necessary to ensure that children’s rights are protected and that children are kept in conditions which take account of their young age.
The poor conditions in South Africa’s prisons make adherence to the principle that children who are detained in prison must be treated in a manner, and kept in conditions, that take account of their young age, very difficult.
One of the reasons for the poor conditions is the overcrowding crisis. With the new bail law and minimum sentences legislation coming into effect, the overcrowding crisis will deepen. Conditions in prison regarding safe custody, space, hygiene, health care, nutrition, education, rehabilitation and recreation will deteriorate further as the numbers increase.
Unconvicted children are generally in a worse off position than adults and sentenced children specifically in relation to clothing, bedding, recreation and education. In most prisons there are no educational or recreational programmes for unconvicted children and children are kept in their cells for the greater part of the day to avoid them coming into contact with adults.
On the visit by the SAHRC to Nylstroom prison mentioned above, Commissioner Kollapen found more than 40 children in a cell which was designed to accommodate 25 people. This is not an isolated incident; most of the larger prisons are heavily overcrowded with not enough space, mattresses or bedding for all the children.
Taking the above into account, we strongly believe that in order to avoid violating children’s constitutional rights, all efforts should be concentrated on ensuring that children are not detained in prison.
1.2 Legislative History
The Human Rights Committee has been monitoring the number of unconvicted children in prison and the relevant legislation since 1995. In 1996, we argued against the need for section 29 of the Correctional Services Bill 1959, to be amended, so as to allow for the detention of unconvicted children in prison. We were however pleased that the bill had an expiry clause and was intended as a temporary measure.
From its inception, the implementation of section 29 proved to be problematic. There were many reports of the Department of Correctional Services, magistrates, prosecutors and police not adhering to the provisions. However, despite these problems, in May 1997, the Correctional Services portfolio committee decided to extend the section for another year without making any amendments with the result that many children continued to be wrongfully and inappropriately imprisoned.
In May 1998, the whole of section 29 did not expire as was expected due to reliance on a drafting error. The Justice department however committed itself to draft a new section limited to older children accused of serious crimes, to be inserted into the Criminal Procedure Act. It was announced that the section would be an interim measure pending the establishment of sufficient secure care facilities and the passage of the juvenile justice legislation. Hence the tabling of the present bill on 30 June 1998.
1.3 The length of time for which the bill will be applicable
The memorandum to the bill specifies that the bill is " an interim measure, pending the legislative recommendations of the South African Law Commission in its investigation into the establishment of a separate juvenile criminal justice system which, amongst others, will deal with the detention of juveniles".
Taking into account the time it will take for the juvenile justice legislation to be put in place, and the slow pace at which secure care facilities are being established and opened, it is a conservative estimate that the provisions of the bill will be applicable for a period of a year and a half.
The memorandum to the bill states that the approach in drafting the bill has been to adhere to the present wording of section 29 as far as possible, only making changes where problems have been experienced in practice and which are deemed absolutely necessary for the interim period.
In the light of the length of time for which the interim measure is likely to apply, we think it is important that all problems experienced under section 29 are adequately addressed. Many of the problems relate to implementation and cannot easily be addressed through legislation, however we would like to bring these problems to Parliament’s attention in the hope that Parliament will use its oversight powers to call to account and vigorously monitor the state departments and officials charged with implementing the legislation and government policy.
2. Detention in police cells and lock-ups1. Detention in police cells and lock-ups
The bill provides in section 71A(1) that an unconvicted child (a person under 18 years of age) may not be detained in a police cell or lock-up. This general principle relates to all stages of the process, ie before and after first appearance in court. The provisos to the general principle allow for detention in police cells and lock-ups before first appearance in prescribed circumstances.
2.1 Detention in a police cell before first appearance 1.1 Before first appearance
2.1.1 The period of detention allowed 1.1.1 The period of detention allowed
Section 71A(2) of the bill provides that under certain circumstances a child under the age of 18 may be detained upon arrest in a police cell or lock-up pending his or her first appearance in court. The period of detention may not exceed 48 hours.
Prior to the expiry of section 1(a) of the Correctional Services Amendment Act, 14 of 1996 on 10 May 1998The Correctional Services Amendment Act, 14 of 1996 and the subsequent lapsing of section 1(a) , police officers were allowed to detain children under 14 in police cells for a maximum period of 24 hours. Children 14 years and older could be detained in police cells for a maximum period of 48 hours.
On 10 May 1998, when section 1(a) expired, the old section 29 was re-activated with the result that the present position is that no child offender may be detained in a police cell for longer than 24 hours. HRC’s comment
The bill, in increasing the maximum time from 24 to 48 hours, is thus taking a step backwards. This is particularly problematic in relation to children 13 years old and younger. In keeping with the principle that children should be treated in a manner that takes into account their young age, HRC recommends that the maximum period should be 24 hours for all children under the age of 14 years.
2.1.2 The requirements which must be satisfied before a child may be detained in a police cell
Section 71A(2) of the bill stipulates that before a police officer may detain a child in a police cell, the following requirements must be satisfied:
• the detention must be necessary;
• the detention must be in the interests of justice; and
• the child cannot be placed in the care of his/her parent, guardian, any other suitable person; or any institution or place of safety as defined in section 1 of the Child Care Act, 1983
The section mirrors the present provisions in section 29 of the Correctional Services Act.
Police officers are required to assess each case and decide whether the above requirements have been complied with before they detain a child in a police cell or lock-up.
We would suggest that "suitable person" be defined for the purpose of clarity and uniformity of implementation. The definition suggested below is based on the definition in the draft juvenile justice legislation.
"For the purposes of this section, other suitable person means an adult person who is prepared to assist the child in relation to his or her attendance at court and who has a prior relationship of responsibility towards the child concerned or who is prepared to enter into a relationship of responsibility towards the child. "
2.1.3 Duties placed upon an arresting officer who detains a child 1.1.3 Duties placed upon an arresting officer who detains a child
a) If the child subsequently appears before a court
Section 71A(3)(a) of the bill requires the police officer responsible for ordering the detention of a child, to provide the court, in which the child makes his or her first appearance, with a written report. The written report must set out the reasons why the child was detained and provide an explanation as to why it was necessary to detain the child.
The section does not deviate from the current provisions in section 29 of the Correctional Services Act.
Child offenders often make their first appearance in court without their parents or guardian, without legal representation, and without having being assessed by a probation officer.
Duty to notify the child’s parents or guardians
Section 50 (4) of the Criminal Procedure Act stipulates that upon the arrest of a child, the investigating officer must notify the child’s parent or guardian of the arrest.
Section 73 (3) of the Criminal Procedure Act gives children the right to be assisted by their parent or guardian at criminal proceedings. Section 74 requires parents or guardians of children to attend criminal proceedings and instructs the arresting officer to inform the parents or guardians of the place, date and time at which the child is to appear in court. The section further empowers the court to issue a warrant of arrest to ensure the parents attendance if the court is satisfied that the parent has been warned to attend.
There is a growing number of cases in which a child’s right to parental assistance has been brought to the fore and the lack of parental assistance has been cited as a ground for challenging the conduct of proceedings [see S v M 1993 (2) SACR 487 (A), S v Kondile 1995 (1) SACR 394 (SE) and S v N 1997(1) SACR 84 (Tk)].
Besides the child’s right to parental assistance , the absence of the child’s parent or guardian is a factor which magistrates take into account when deciding whether the child should be detained in a prison, welfare institution or remanded into the custody of a parent.
It is therefore essential that parents are contacted and informed of their child’s arrest and the first appearance court date in order to enable them to be in court on the day in question. As it is the investigating officer’s duty to notify the parents, we suggest that s/he be required to provide the court with a report on the steps taken to notify the parents or guardian. Such a reporting mechanism will help ensure that notification takes place more regularly.
Duty to contact a probation officer
Section 50 (5) of the Criminal Procedure Act stipulates that a probation officer must be informed as soon as possible by the investigating officer that a child has been arrested.
The Department of Justice has stipulated in a circular dated 10 July 1998, that a probation officer must be informed of the child’s arrest within 6 hours of the arrest.
The probation officer is required to undertake a preliminary assessment to determine the best placement option for the child. In order to conduct the assessment, the probation officer must contact the child, the child’s parents, guardian or other family members, the social worker dealing with the child, the principal of the child’s school and other persons who interact with the child. The preliminary assessment is aimed at finding the least restrictive placement option. The assessment must be completed in order for it to be presented to the court at the child’s first appearance (within 48 hours of the child’s arrest).
Our research has indicated that probation assessments are not always done with the result that detention orders are made without the child having being assessed. Alternatively, the detention hearing is postponed pending the completion of a probation officer’s report.
Investigating officers need to be encouraged to contact probation officers when they arrest a child. HRC suggests that the investigating officer should be required to provide the court with a report on the steps taken to inform a probation officer of the child’s arrest.
Duty to inform the child of the right to legal representation
In terms of section 35 (2)(c) of the Constitution every detained child has the right to have a legal practitioner assigned to him or her by the state and at state expense, if substantial injustice would otherwise result. Every child who is accused of committing an offence for which his or her detention in prison can be ordered, may suffer substantial injustice if they do not have legal representation at their first appearance.
A police officer has a duty to inform the child upon arrest of his or her right to legal representation. There is however, no duty on the officer to assist the child in obtaining such representation. Given their young age and lack of resources, children often need assistance, especially if their parents or guardians cannot be contacted.
HRC suggest that the investigating officer should be obliged to assist the child to obtain legal representation. This could be facilitated by requiring the investigating officer to report to the court on the steps taken to assist the child in this regard.
In summary of the above three points, we recommend that the written report, which the arresting officer is required to present to the court, should contain a statement detailing:
• the steps taken to contact the child’s parents, legal guardian or other suitable person;
• the steps taken to contact a probation officer; and
• the steps taken to assist the child in obtaining legal representation
In order for this reporting mechanism to be effective, the report should not merely be filed in the court file, but should be seriously considered by the magistrate and appropriate steps should be taken if the court is of the opinion that the police officer did not do his or her duty. Furthermore, the reports should be forwarded to the person or body tasked with monitoring section 71A.
b) If the child is released and does not appear before court
Section 71A(3)(b) of the bill requires a police officer who orders the detention of a child and who subsequently releases the child without the child appearing before a court, to submit a written report to the magistrate of the magisterial district in which the detention took place. The report must set out the reasons for the detention and provide an explanation as to why it was necessary to detain the child.
Comment HRC’s comment
Organisations working with street children have reported cases of children being arrested and detained for 48 hours and then subsequently being released without being charged. The reason for arrest is sometimes fabricated. In one instance, a police officer allegedly locked a child in the back of a police van for the duration of his shift. Most of these cases amount to illegal arrest and harassment and are very difficult to monitor.
The Acting Regional Magistrate in Queenstown points out in her submission (CRP2) that it has been her experience as Magistrate of the District, that these reports are very rarely handed in. She also says that there is very little scope to monitor the system.
A mechanism needs to be found to ensure that whenever a child is detained, the section 71A(3)(b) report is written, and forwarded to the district magistrate and to the person or body tasked with monitoring the implementation of section 71A.
We would further suggest that the report should provide an explanation as to why the child was subsequently released.
2.2 Detention in a police cell after first appearance is prohibited
On a careful reading of sections 71A(1), (2) and (5), it becomes clear that children may not be detained in police cells after their first appearance in court.
Some magistrates have interpreted the current provisions in section 29 of the Correctional Services Act in a way which allows them to order a child to be detained in a police cell after first appearance in court. Children can spend long periods of time (three months and more) in police cells which are designed primarily as holding cells and are not suitable for long periods of time. Furthermore, it is very difficult to monitor children in police cells.
HRC welcomes the wording in the bill which provides that children may not be detained in police cells after their first appearance in court.
However, the bill is not absolutely clear on the position regarding children who are 15 years old and younger. Given the past uncertainty surrounding this area, we recommend that in addition to the wording used, the following underlined words should be inserted:
Section 71A (2) A person referred to in subsection (1) may be detained in a police cell or lock-up for a period not exceeding 48 hours pending such person’s first appearance in court after arrest, but not after first appearance, if -
3. Detention in prison2. Detention in prison
3.1 Children 15 years old and younger may not be detained in prison under any circumstances
On a cumulative reading of sections 71A(1), (2) and (5) of the bill it becomes clear that unconvicted children 15 years and younger may not be detained in prison. Unconvicted children who are 16 or 17 years old may only be detained in prison if they are accused of a schedule 8 offence and other specified requirements are satisfied.
• The current provision, section 29 of the Correctional Services Act, 1959, provides that children under 14 may be detained in a police cell pending first appearance but may not be detained in prison after first appearance. Despite this provision, children under the age of 14 were and currently are being detained in prison. At the end of June there were 9 children under 14 awaiting trial in prison. The July statistics are not yet available.
HRC recommends firstly that effective steps should be taken to ensure that magistrates are aware that children 15 years old and younger may not be detained in prison and secondly that appropriate action should be taken against magistrates who act in contravention of an Act of Parliament
• Although the Human Rights Committee cannot condone the retention of a provision which allows for the detention of any child in a prison, if the provision is to be retained, we welcome any measure aimed at restricting its scope. The restriction of the provision to 16 and 17 year olds who are accused of committing schedule 8 offences is welcomed. This restriction will substantially reduce the number of children in prison and aid in ensuring that prison is used as a last resort.
Government has initiated various long term reform measures aimed at creating a system where a complete prohibition on the detaining of any child in prison becomes possible. We fully support these initiatives but are of the opinion that these projects have not been sufficiently prioritised, particularly the securing of existing places of safety and the establishment and opening of secure care facilities.
The lack of sufficient secure welfare institutions was cited as the reason for the amendment of section 29 in 1996, the extension in 1997, the retention in May 1998 and the amendment currently under consideration.
Until this problem is properly addressed, there will continue to be a need to retain a provision allowing for the detention of unconvicted children in prison.
We implore the Justice committee to do all in its power to ensure that the establishment and opening of secure care facilities is treated as a matter of urgency in order to avoid this provision becoming a permanent feature of our juvenile justice system.
3.2 Children 16 and 17 years old may only be detained in prison if they are accused of committing a Schedule 8 offence
HRC welcomes the deletion of the provision in section 29 which gave magistrates a wide discretion to detain children alleged to have committed non-scheduled offences. This amendment will substantially reduce the number of children who are detained in prison and ensure that children accused of less serious crime are either released into their parent’s custody or detained in Welfare institutions.
3.3 Criteria which must be satisfied before the court may order detention in prison
The bill provides in section 71A (5) (b) that:
• detention in prison must be a measure of last resort;
• the detention must be necessary in the interests of the administration of justice and protection of the public or the child concerned;
• there must be a substantial likelihood that upon conviction, the child could be sentenced to imprisonment for a period exceeding 2 years; and
• there must be no place of safety which is secure, available and within a reasonable distance from the court
"necessary in the interests of the administration of justice and the protection of the public or the child"
The bill provides that in order to enable the court to determine this question, the state must place appropriate oral evidence before the court. Such evidence should include, where applicable, evidence in respect of the following:
(a) the risk of the child absconding from a place of safety;
(b) the risk of the child causing harm to other persons in a place of safety;
(c) the period for which the child has already been in custody since his/her arrest;
(d) the probable period of detention until the conclusion of the trial;
(e) the reason for any delay in the disposal or conclusion of the trial and any fault on behalf of the child, his/her leg rep, or the state with regard to such delay;
(f) any impediment to the preparation of the child’s defence or any delay in obtaining legal representation which may be caused by detaining the child;
(g) the child’s state of health; or
(h) the disposition of the child to commit serious offences, particularly schedule 8 offences
HRC recommends that in addition to the above, the magistrate should be obliged to inquire whether the child has been assessed by a probation officer and if not, to make an order that such assessment be undertaken within 24 hours. However the magistrate may dispense with such an assessment if a release option is available.
The Justice Department circular referred to above stipulates that the magistrate should do the above. We recommend that the instructions in the circular should be incorporated into the legislation. This would imply the insertion of a clause instructing the court to ask for a probation officers report.
The addition of a requirement to section 71A(6) that the state must present a probation officer’s report to the court could also be considered.
"substantial likelihood that the child could be sentenced to imprisonment for a period exceeding 2 years"
The impact of the Criminal Law Amendment Act needs to be taken into account. Of the 10 crimes listed in schedule 8, seven of them are crimes which carry a compulsory minimum sentence of 5 years or more. A list of schedule 8 crimes which carry a minimum sentence and the length of the minimum sentence for first offenders appears below:
• Murder (life or 15 years, depending on the circumstances)
• Rape (life or 10 years depending on the circumstances)
• Robbery where the wielding of a fire-arm or other dangerous weapon is involved (15 years or 5 depending on the circumstances)
• Robbery where the infliction of grievous bodily harm is involved (15 years or 5 depending on the circumstances)
• Robbery where the taking of a motor vehicle is involved (15 years)
• Assault with intent to commit grievous bodily harm (10 years is the victim is younger than 16)
• Assault of a sexual nature (10 years depending on the circumstances)
• Assault where a dangerous wound is inflicted (uncertain)
• Kidnapping (no minimum)
• Any offence under any law relating to the illicit conveyance or supply of dependence -producing drugs (no minimum)
• Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule (no minimum)
"no place of safety which is secure, available and within a reasonable distance from the court"
Due to the fact that "secure care facility" is a new concept, it has not yet been defined in the Child Care Act. In practice, a "secure place of safety" is being interpreted by some magistrates to mean secure care facilities only and by others to include places of safety which are secure enough to prevent escapes. For the sake of uniformity of application we recommend that "secure" should be defined.
3.4 An oral inquiry must be held to assess whether the detention or further detention of a child is necessary
The bill in section 71A(6) requires the state to place before the court appropriate oral evidence in order to equip the court to determine whether the interests of justice and the safety and protection of the public or the child necessitate the detention or further detention of the child in a prison.
The bill does not deviate materially from the provisions of section 29, except that it is more prescriptive on the type of oral evidence which should be presented.
Section 29 has a similar provision obliging the state to present oral evidence to the court. However, magistrates often fail to conduct an oral inquiry before making their decision.
The new requirement that the court must record its reasons for ordering the detention of the child could go a long way to ensuring that oral inquiries are held. However we suggest that the bill expressly place an obligation on the Court to hold an oral inquiry. The emphasis on the state’s obligation to present "appropriate oral evidence including evidence, where applicable, in respect of - …" does not convey strongly enough that the court is obliged to hold an oral inquiry. As this is an area which has invoked the institution of litigation against the government we suggest that the obligation to hold an oral inquiry is made very clear.
3.5 Magistrates must record reasons for ordering the detention or further detention of a child 2.3 Magistrates must record reasons for ordering the detention of a child
HRC welcomes the provisions which require magistrates to enter reasons for ordering the detention [s71A(5)(a)] or further detention[s71A(5)(c)] of a child on the record of the proceedings.
Such a requirement will go a long way to ensuring that magistrates hold an oral inquiry to assess the necessity of detention and apply their minds to each case. As Court records are not available at a central location, we would suggest that the recorded reasons should be forwarded to the person or body tasked with monitoring the implementation of section 71A .
3.6 The detention order must be reconsidered by the court every 14 days
Section 71A(5)( c) of the bill requires the court to reconsider the order every 14 days. This provision is not new and can be found in section 29(5)(a) of the Correctional Services Act, 1959.
Despite section 29 requiring fortnightly review, magistrates have remanded children in prison for periods longer than 14 days. This practice is unlawful and will probably continue until a mechanism to monitor adherence to the provision and intervene where necessary, is found.
In a circular dated 10 July 1998, the Minister of Justice requests state prosecutors to report to the Senior State Prosecutor who in turn is required to report to the Director (Gender) at the National Office of the Department of Justice, on all children ordered to be detained in prisons. The report must be made within 7 days of the order being made.
Regarding detention orders made prior to the receipt of this circular, where the child concerned is still in prison, reports must be sent to the Director within 14 days of receipt of the circular.
All such reports are to include the name of the child, the child’s age, case number, offence, name of the prison, remand date and the reasons for detention in prison.
While we support the sending of all information to a central point, we are concerned :
• that the circular directives have not yet reached the target audience and are for that reason and other reasons, are not being complied with;
• that the mechanism does not provide a system for ensuring that the 14 day review requirement is adhered to; and
• furthermore, that the office concerned (Director: Gender) does not have the resources needed to undertake the necessary follow up action if irregularities are occurring.
4. Obligation to expedite the processing of children’s trials
Section 71A(8) of the bill specifies that the highest priority must be given to expediting children’s trials.
Children often turn down their right to legal representation at state expense due to a perception that they will spend more time in prison if they have a lawyer. This perception is based among other things, on the following:
• Legal Aid attorneys have heavy work schedules and often do not have the capacity to prioritise children’s cases.
• Postponements from both the state and the defence are requested more often when the child has legal representation.
A circular dated 11 August 1997, from the Minister of Justice requests Magistrates to " keep tight control on cases involving juveniles. Lengthy postponements must be avoided where possible, whether the request comes from the prosecution or the child’s own lawyer."
We would suggest the insertion of a "speedy trial provision" which could stipulate that after a certain period of time, the magistrate should seriously consider refusing all further postponements and order the trial to continue.
If magistrates start refusing postponements, both the defence attorney and the state prosecutor will be forced to prioritise children’s cases.
5. Monitoring Mechanism
On 10 May 1998, Nicro, the organisation tasked with monitoring implementation of and adherence to the provisions of section 29, ceased monitoring activities due to the function of monitoring being allocated to Project Go and the funding to Nicro thus being withdrawn. Despite this function being allocated to Project Go, organisations working in the area of children in trouble with the law, have reported that monitoring is not taking place. Past experience and available statistics show that monitoring substantially reduces the number of children detained in prison and the length of time spent in prison.
The Correctional Services Department has in the past released statistics on the number of children in each prison and the number of children who had been awaiting trial in prison for longer than 6 weeks. Since March 1998, the statistics are no longer being compiled (or distributed) in this format and thus monitoring of the provisions of section 71A becomes more difficult.
5.1 Adherence to the bill’s provisions by police officers needs to be monitored
The South African Police Services should be required to report to parliament on how they have ensured that police officers are aware of and are adhering to the bill’s provisions and on what measures they have adopted to ensure that police officers use detention in police cells as a last resort.
5.2 Adherence to the bill’s provisions by the courts needs to be monitored
In settlement of three test cases brought against the government by the Legal Resources Centre, the Department of Justice undertook to establish a monitoring system over the magistrates courts. This system was set out in a circular which was distributed to prosecutors and magistrates (dated 10 July 1998). The Legal Resources Centre points out in its submission that there has been minimal compliance with the circular and the Department has not succeeded in implementing the monitoring system.
In order to assess whether magistrates were aware of the circular, we phoned two children’s court magistrates. One had not received the circular, and the other had received it last week but had not yet read it.
The status of the circular directives is also unclear. The "directives" are contained under the heading of "Proposed solutions" and the circular ends with a statement that "any magistrate who issue[s] an order in breach of the above, may face an urgent court application for the release of the child and costs de bonis propriis in the application".
Any monitoring mechanism which is set up, needs to monitor the following in relation to the Courts:
• ensuring that only 16 and 17 year olds are detained in prison
• ensuring that only children accused of schedule 8 offences are detained in prison
• ensuring that detention orders are reviewed every 14 days
• alerting the necessary authorities when children are detained in prison for inappropriately long periods
The Justice Department, specifically the Director: Gender, should be required to report to the Justice committee on the monitoring mechanism established in terms of the settlement between the Justice Department and the Legal Resources Centre.
5.3 Conditions in prisons need to be monitored
The Department of Correctional Services and the Department of Welfare should be required to report on how they intend to ensure that children who are detained in prison are treated in a manner and kept in conditions which take account of their age.
They should particularly be required to report on how they intend to ensure that:
• children in prison are kept separately from adults
• children have adequate nutrition, bedding and clothing
• children get daily exercise
• children have access to education and recreation programmes
• children’s health care needs are adequately addressed
5.4 The establishment and opening of secure care facilities needs to be monitored
The Welfare Department, specifically Project Go, should be required to report regularly to parliament on progress made in the establishment and opening of secure care facilities.
The total number of beds planned and a breakdown per province should be provided.
The following chart provides statistics on children in prison awaiting trial (under 18 years). The statistics were supplied by the Department of Correctional Services. Schedule 2 includes serious crimes (the same as schedule 8 of the proposed bill) like murder, rape and robbery. The "other" category does not include serious crimes but "other offences committed in circumstances of such a serious nature as to warrant detention in prison".
31 January 1997 to 30 June 1998 31 January 1997 to 30 June 1998
Year & Month Schedule 2 Other Total
1997 January 311 382 693
1997 February 324 476 800
1997 March 321 467 788
1997 April 358 563 921
1997 May 365 532 897
1997 June 393 566 959
1997 July 410 556 966
1997August 427 587 1014
1997 September 512 670 1182
1997 October 516 650 1166
1997 November 504 637 1141
1997 December 484 913 1397
1998 January 548 600 1148
1998 February 492 582 1074
1998 March Not available Not available 1345
1998 April 612 680 1294
1998 May 526 557 1083
1998 June Not available Not available 1130