NICRO
SUBMISSION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON JUSTICE REGARDING THE CRIMINAL PROCEDURE AMENDMENT BILL (B 59-98)
by NICRO National Office
Prepared by Lukas M. Muntingh
17 August 1998

Introduction
NICRO has been active in the field of juvenile justice for some years now and it is with deep concern that we have to acknowledge that the plight of arrested children have shown minimal improvement since 1994. It is however not our intention here to analyse the reasons for the slow movement in the juvenile justice field. We would rather want to provide some statistical information as well as other insights and observations to the committee that we hope will assist them in debating the Bill before them.

The information presented here are from two primary sources. In late 1997 NICRO was asked to monitor five prisons on behalf of the National Department of Welfare Committee on Juveniles Awaiting Trial (COMJAT). These prisons were Pollsmoor, St Albanís, East London, Pietermaritzburg and Johannesburg. The named prisons were selected for the number of children being held there awaiting trial. In addition to the information collected between October 1997 and May 1998 as part of the monitoring process, previous sets of information regarding children awaiting were collected in order to get an overview of trends. NICROís monitoring of said prisons were terminated in May 1998 as the contract with the Department of Welfare came to an end.

In preparation of this hearing more up to date information from six prisons were collected in late July and early August 1998 to come to a closer and more accurate scenario of the implications of the Bill should it be enacted. The prisons and dates on which information was collected are as follows:

Durban Westville 29/7/98
St Albanís 31/7/98
Grootvlei 28/7/98
Pretoria Local 24/7/98
Pollsmoor 3/8/98
East London 5/8/98.

Overview
[Ed. note: the graph has not been included]

The accompanying graph clearly shows that since November 1996 there has been a steady increase in the number of children awaiting trial in South African prisons. This happened despite numerous efforts from governmental and non-governmental sides to achieve the opposite. We believe that this trend will only be reversed when two requirements are met. Firstly that the law is written very clearly and leaves little if any discretion to the Magistrate concerned. Secondly, that mechanisms are built in and established to ensure that the law is in fact correctly applied.

On said dates the number of children awaiting trial (all ages and all offences)at these prisons were as follows:



PRISON NUMBER PERCENTAGE
Pollsmoor 170 26.65
St.Albans 155 24.29
East London 41 6.43
Westville Youth Centre 219 34.33
Grootvlei 34 5.33
Pretoria Local 19 2.98
Total 638 100.00

These six prisons currently hold the highest number of children awaiting trial and account for approximately 50% of the total number of children awaiting trial in prisons. We believe that a closer and more detailed analysis of these figures with specific reference to age and offence will give a clearer picture of what the impact of the proposed legislation will be.

[Ed note: graph not included]

Percentage of children under the age of 16 years being held awaiting trial
The accompanying graph clearly shows that there is substantial variation between the different prisons according to the proportion of children under the age of 16 years awaiting trial, ranging from between 5 - 30% of the total at that prison. This variation will obviously have implications in terms of finding alternative accommodation for these children should they be released.

Number of children under the age of 16 years being held i.t.o. proposed Scedule 8
[Ed note: graph not included]

Of the total group of children held at these 6 prisons, the number of under 16 year olds charged with offences in terms of the proposed Schedule 8 offences represent 8.7% or 56 children. It can be assumed that this proportion will require some form of secure care facility.

Number of children under 16 years and over 16 years being held for Non-Scheduled Offences

[Ed note: graph not included]

Of the total sample 298 children are being held for non-scheduled offences. Of this group, 87 (29.2%) are below the age of 16 years and 211 (70.8%) are 16 years and older. If this figure is generalised to the rest of the population of children awaiting trial in South Africa, which was 1130 in June, it is clear that this will place a tremendous strain on the criminal justice system in order to administer these cases expeditiously. In short it will mean an additional estimated 600 cases to be administered within 14 days as envisaged in the Bill.

Children to remain in custody in terms of the Bill
[Ed note: graph not included]

The accompanying graph shows that should the Bill be implemented in its current form it will reduce the number of children awaiting trial by approximately 55%. It is possible that if other prisons are included in the analysis there may be a slight variation. This reduction will however be an "overnight" reduction and it by no means suggest that the number of children awaiting trial will remain at this level as children will be admitted after this date.

Period in custody for Scheduled and Non-Scheduled offences
[Ed note: graph not included]

At the time when the information presented here was collected, children awaiting trial on Non-Scheduled offence had already on average been in custody for 68.8 days and children awaiting trial for Scheduled offences for 81.4 days. The overall average being 75.5 days. The longest periods that children had already been in custody at the time of the inspections were respectively 608 and 456 days for Non-Scheduled and Scheduled offences. It should be noted that these are not true averages as the period of custody has not come to an end and these children will remain in custody for some time still.

The number of remands is also cause for concern. At the time of the visits to the prisons many cases have appeared in court less than 5 times but an equal proportion have appeared more than ten times. One child in St Albanís have already appeared 39 times at the time of the visit.

[Ed note: graph not included]

This presents us with a particularly worrying picture as it may be possible to reduce the number of children awaiting trial by approximately 50% with almost immediate effect but it is a real scenario that the numbers may soon be back to their present level, given the pace at which the courts are processing cases, especially Regional Courts.

To illustrate this point the accompanying graph shows the number of children convicted per year for the period 1977/8 to 1995/61. It is especially since the early 1990s that the number of convictions dropped sharply and this is in all likelihood due to the fact that the courts are increasingly unable to process cases speedily. It is therefore of the utmost importance that very specific guidelines and criteria be built into the legislation to ensure that children are not kept in custody awaiting trial for unnecessarily long periods or that there cases are repeatedly remanded.

Conclusions and Recommendations
1. Regardless of how undesirable it may be to keep children awaiting trial in prisons, the fact is that there are at present not sufficient secure care facilities for children awaiting trial on serious offences or children posing a threat to the community. Given this, NICRO supports the proposed amendments in principle.

2. It was stated above that the proposed amendments will have the effect of a sudden reduction in the number of children awaiting trial in prisons. The problem presenting us is to keep the reduced numbers at that level and not allow it to creep up to the present levels. NICRO has in the past shown that monitoring can be effective and bring about a change in the number and profile of children awaiting trial.

3. It is with this in mind that we want to propose that a monitoring mechanism with the necessary authority be put in place that will ensure that the law is applied as it was intended. During NICROís monitoring in 1997 and 1998 we frequently came across cases where the magistrate concerned blatantly disregarded the law, ie. Section 29 of the Correctional Services Act.

NICRO would again be willing to perform an independent monitoring function on a contract basis at the prisons where large numbers of children are being held. Such an agreement would be similar to the original agreement NICRO had with the National Department of Welfare. We would however want to suggest that where transgressions or problems are picked up, that this be reported to a judicial authority that has the necessary powers to deal directly with magistrates transgressing the law.

4. We further request that certain guidelines be built into the amendment with regard to the time that a child may spend awaiting trial in prison. Realising that the Department of Justice is experiencing human resource problems we want to suggest the following guidelines with regard to the time that a child spend in prison awaiting trial depending on the court in which the case is being heard:
Magistratesí Courts - 6 months
Regional Court - 9 months
Supreme Court - 12 months.
If a case has not been finalised within the above noted periods, the court shall be informed by the Head of the Prison and the child will subsequently be released although the trial will continue.