CRP 1 - Chief Magistrate: Durban
CRP 2 - Regional Count Magistrate: Queenstown
CRP 3 - Magistrate: Johannesburg
CRP 4 - Magistrate: Port Elizabeth
CRP 5 - Law Society of the Cape of Good Hope
CRP 6 - Law Society of South Africa
CRP 7 - Attorney-General: Grahamstown
CRP 8 - Magistrate: Cape Town
CRP 9 - Attorney-General: Pietermaritzburg
CRP 10 - Legal Resource Centre Pretoria
CRP 11 - Community Law Centre: University of Western Cape
CRP 12 - Attorney-General: Bloemfontein
CRP 13 - Attorney-General: Pretoria
CRP 14 - Magistrate: Verulam
CRP 15 - Human Rights Committee of South Africa
CRP 16 - South African Human Rights Commission

DOS - Department of Correctional Services
SAPS - South African Police Services
AGB - Attorney-General: Bisho


Clause 1, inserting a new section 71A into the Criminal Procedure Act, 1977, is fairly extensive with numerous subsections and the comments on the Bill will be discussed with reference to the relevant subsections.

1. CRP 7 (Attorney-General, Grahamstown):
The ages, presently determined by section 29 of the Correctional Services Act, 1959 (Act 8 of 1959), should remain the same. Serious crimes are committed by children of all ages.

Many children who are arrested, are without homes or a place to go when released.

2. CRP 9 (Attorney-General, Pietermaritzburg):
It is unnecessary to distinguish between juveniles under the age of 16 years and those who are 16 or 17 years; in other words, retain the present situation. The section, as an interim measure, should restrict the discretion of presiding officers as little as possible. The definition of an "unconvicted person" is confusing. The Criminal Procedure Act, 1977 (Act 51 of 1977), refers to an accused (it is the age of the person that is relevant).

3. CRP 13 (Attorney-General, Pretoria);
Juveniles under the age of 16 commit serious crimes and provision must be made in the sense that a circumscribed discretion is essential, even by way of exception to a rule. The continuous sensitization of relevant role players (magistrates and prosecutors) to the special needs of children should have the necessary beneficial effect if it appears that such discretion is being abused.

1. CRP 4 (Magistrate, Port Elizabeth):
It is suggested that the 48 hour period might pose difficulties where the period expires on a non-court day and in view hereof that a similar proviso as contained in section 50(1) of the Criminal Procedure Act, 1977, be inserted.

2. CRP 9 (Attorney-General, Pietermaritzburg):
Section 50 of Act 51 of 1977 deals with the procedure after arrest and refers to 48 hours and in view thereof it would only be necessary to refer to a time period when a period other than the 48 hours is contemplated in section 71A(2) and he consequently suggests that section 50 regulate the position.

The two conditions in section 71 A(2)(b)- (namely that the detention is necessary and in the interest of justice and that the person cannot be placed in the care of a parent or guardian) are in conflict with each other, meaning that even if the detention is justified on many grounds, the person will have to be released if a parent or guardian could take care of him/her. He suggests that the interests of the child and the interests of the community be weighed up against each other and that this be replaced by the following:

"A person referred to in subsection (1) may be detained in a police cell or lock-up pending such person's first appearance in count if his or her detention is a measure of last resort as contemplated in section 28(1)(g) of the Constitution.".

3. CRP 15 (Attorney-General, Pretoria):
It is recommended that the maximum period of detention should be 24 hours for all children under the age of 14 years.

4. CRP 16 (South African Human Rights Commission):
The shorter period of 24 hours for younger children is preferable.

Section 71A (2) stipulates that before a police officer may detain a child in a police cell before his or her first appearance in court, the following requirements must be met:

* 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 or her parent, guardian, any other suitable person" or any institution or place of safety.

The Human Rights Committee suggests the term "suitable person" be defined as follows for the sake of clarity and uniformity:
"For 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 count 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".

In order to ensure that children and particularly children who are 15 years and younger are not detained in police cells after their first appearance in count it is suggested that the following underlined words be inserted in proposed 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 such first appearance, if

5. SAPS:
The SAPS suggests that the detention of a juvenile may take place for a period not exceeding 48 hours if one of two requirements are met. (The SAPS suggests a linkage between this reference to 48 hours with the reference to 48 hours in section 50 of the Criminal Procedure Act, 1977, which deals with the situation where the 48 hours expires outside of ordinary court hours). The SAPS suggests that one of these two requirements is that such detention must be necessary and in the interests of justice. The other is if the person concerned cannot be placed in the care of his or her parent or guardian, etc. The SAPS also suggests that consideration should be given to include persons who have been arrested in terms of the Aliens Control Act, 1991 (Act 96 of 1991), and also to include persons who have absconded from a place of safety as defined in section 28 of the Child Care Act, 1983 (Act 74 of 1983). It is argued that the reference to illegal immigrants is necessary because families (illegal immigrants) are often arrested and the children have to be released and then disappear.

1. CRP 2 (Regional Court Magistrate, Queenstown):
In terms of section 71 A(3)(b), based on existing provisions in section 29 of the Correctional Services Act, 1959, it is very rare for the Magistrate of the District to be provided with the written reports and monitoring of the system is difficult. To circumvent this problem it is suggested that the procedures in (3)(a) and (b) be made identical.

2. CRP 8 (Magistrate, Cape Town):
The requirement for a written report is never met but if it is a necessity there should be a sanction for failing to provide the court with a report and the purpose of the report should be stipulated (otherwise the section appears to be superfluous and should be deleted). The Attorney-General, Pietermaritzburg (CRP9) and the Magistrate, Verulam (CRP14) also express their doubts regarding the effectiveness of these provisions.

3. CRP 15 (Human Rights Committee):
The reports mentioned in proposed section 71 A(3) should also set out the steps taken by the investigating officer/arresting officer i) to notify the parents or guardian of the arrest of the child; ii) to inform a probation officer of the child's arrest; and iii) to assist the child in obtaining legal representation. These reports should be taken more seriously and action should be taken against police officers who do not comply with them and the reports should also be forwarded to a designated central monitoring mechanism which should be set up to monitor the application of these new provisions.

1. CRP 1 (Chief Magistrate, Durban):
The phrase "no secure place of safety" in proposed section 71A(5)(b) (iv), coupled with the expression "the risk of the person absconding from a place of safety" in the proposed section 71A(6)(a) may be potentially problematic for the courts. It is argued by the Chief Magistrate that the courts must on the one hand determine whether "a place of safety" (which is supposed to be adequately secure) is not secure (section 71A(5)(b)(iv)) and, on the other hand, after making its finding, determine "the risk of the person absconding from a place of safety". He refers to section 71A(2)(b) which allows a person to be detained if "the person cannot be placed in any place of safety". He suggests that consideration be given to using this phrase in section 71A(5)(b)(iv) as well, which would solve the problem of over-full places of safety and still allow for considerations of lack of security in appropriate instances. He suggests the following new proposed section 71 A(5) (b) (iv):
"the person concerned cannot be placed in a place of safety mentioned in section 28 of the Child Care Act, 1983 (Act No.74 of 1983), within a reasonable distance from the court.".

2. CRP 5 (Law Society of the Cape of Good Hope):
A person detained should be brought before court every seven days instead of every fourteen days (section 71 A(5) (c)) to ensure that the court reconsiders the detention order.

3. CRP 6 (Law Society of South Africa):
The period of fourteen days referred to in section 71A(5)(c) should be seven days. A chic's safety while in detention should be closely monitored.

4. CRP 7 (Attorney-General, Grahamstown):
Proposed section 71 A(5)(b) (iii) is problematic since it will be difficult in the early stages of the court proceedings to have information available which will assist in evaluating this factor. Courts in any event try and avoid heavy sentences for children as far as possible. He suggests that this factor be scrapped.

5. CRP 8 (Magistrate, Cape Town):
The fourteen day period (section 71 (5)(c)) causes difficulties, especially, in rural areas. An example would be where a child has already appeared in the Regional Court and the case is postponed and the child remanded in custody. The Regional Court does not visit "that court" every fourteen days and the question arises who should decide on the further detention of the child. A district magistrate would not have jurisdiction in view of section 71A(5)(d), which allows another presiding officer of "that court" to order the further detention of the juvenile.

6. CRP 9 (Attorney-General, Pietermaritzburg):
Proposed section 71 A(5) (b) provides that a child can only be detained in a prison if certain preconditions are met. It is argued that a problem will arise when a court has decided in terms of section 60 of the Criminal Procedure Act, 1977, that the accused should not be released on bail. The court decides that the accused cannot be released on bail. However, the question is raised what happens if that person cannot be detained in prison because one or more of the preconditions set in proposed section 71A(5)(b) are not met.

7. CRP 14 (Magistrate, Verulam):
A sentence to imprisonment exceeding two years is high and has the effect of interfering with independence of the judiciary. It would be more appropriate if the section refers to a sentence without the option of a fine.

8. CRP 15 (Human Rights Committee):
Proposed section 71 A(5), amongst others, requires presiding officers to record the reasons for the detention or further detention of children on the record of proceedings. The Human Rights Committee suggests that this information be sent to a designated monitoring mechanism.

It is suggested that provision should be made for a juvenile under the age of 16 years to be detained in prison after his or her first appearance in court and before his or her conviction and sentence, if the juvenile was previously convicted of a Schedule 8 offence. It also suggests in proposed section 71 A(5) that a juvenile may only be detained in a prison if there is no "suitable" secure place of safety (See proposed section 71A(5)(b)(iv)).

1. CRP 8 (Magistrate, Cape Town):
The appropriate oral evidence that must be placed before the court by the State, including evidence, where applicable in terms of section 71 A(6) (a) to (h), may have the effect that the presiding magistrate will have to recuse him/herself at a later stage. A pre-trial enquiry procedure should be incorporated to obviate the situation and to provide for a diversion procedure.

2. CRP 9 (Attorney-General, Pietermaritzburg):
The question is raised whether it is advisable to require only "oral evidence" as is suggested in proposed section 71A(6), which excludes documentary evidence. Some of the factors referred to in this subsection do not really require oral evidence and some information could even gainfully be given from the Bar. In this regard the question is raised why make a doctor give "oral" evidence with regard to the "state of health of the person" (section 71A(6)(g)). It is suggested that documentary evidence should rather be made permissible because the possibility exists that medical practitioners might be loath to attend court every 14 days (Westville prison for example has approximately 300 children in detention - 28/7/98).

3. CRP 15 (Human Rights Committee):
An additional requirement should be added to the factors referred to in proposed section 71 A(6), namely that the State must present a probation officer's report to the court but that this be dispensed with if a release option is available.

Although proposed section 71A(6) obliges the State to present oral evidence, the Bill should categorically state that the court is obliged to hold such an oral inquiry.

4. CRP 16 (South African Human Rights Commission):
The formulation links the evidence to the court's discretion, rather than an obligation of the State, which is preferable. It may be advisable to include an express provision for the court to request such evidence from the State of its own accord, thereby ensuring that magistrates do not make orders without applicable evidence being presented.

1. CRP 9 (Attorney-General, Pietermaritzburg):
The Constitution already provides for legal presentation; there is no need to repeat the accused's right in this regard.

2. The SAPS argue that all children should be afforded the opportunity of legal representation and not only the category referred to in proposed section 71A(5) as provided for in the Bill.

1. AGB (Attorney-General, Bisho):
The definition of the word "unconvicted" should be rephrased as it is vague and could be misinterpreted, e.g. does it refer to "unconvicted" in the general sense, or in respect of the offence for which he or she is before the court.

2. DCS (Department of Correctional Services)
The Department has no principle objection against the Bill, but is of the opinion that the definition of "unconvicted person" needs to be revised. Presently section 29(8) of the Correctional Services Act, 1959, is often misinterpreted, e.g. section 29 is not applied to certain juveniles by finding them guilty but not necessarily sentencing them. The Department of Correctional Services has suggested that "unconvicted person" be defined as a person who has not been sentenced". The SAPS suggests that the definition is not necessary and that it be deleted.

1. CRP 2 (Regional Court Magistrate, Queenstown):
It is argued that "assault with the intent to commit grievous bodily harm, or where a dangerous wound is inflicted" sounds strange since a wound cannot be "dangerous"; it could be serious or possibly grave. The word "dangerous" could refer to a person or a weapon but not a wound.

2. CRP 4 (Magistrate, Port Elizabeth):
It is suggested that "theft of a motor vehicle" and "housebreaking" be included in the Schedule.

3. CRP 7 (Attorney-General, Grahamstown):
Housebreaking with intent to steal or rob or rape or murder should be included in the Schedule, since up to 70% of juveniles who are prosecuted, are charged with housebreaking.

4. CRP 8 (Magistrate, Cape Town):
"Dealing in drugs" is not a common offence amongst juveniles and could be deleted. Possession of ammunition and firearms (a prevalent offence in the Western Cape especially in the gang-infested areas) and housebreaking (a common repeat-offence among "street children") should be included in the Schedule.

5. CRP 9 (Attorney-General, Pietermaritzburg):
Housebreaking and theft, theft of a motor vehicle or out of a motor vehicle should be included. Schedule 8 is too restrictive.

6. CRP 13 (Attorney-General, Pretoria):
The inclusion of crimes such as intimidation, housebreaking with intent to steal and theft, breaking into and theft of a motor vehicle and the illicit conveyance or supply of firearms should be included in the Schedule.

The SAPS suggests that the Schedule be amended to include unlawful possession of or dealing in firearms or explosives and terrorism.

1. DCS (Department of Correctional Services):
The Department indicates that section 29 and Schedule 2 to the Correctional Services Act, 1959, are repealed except for subsections (5B) and (6). Subsection (5B) deals with the drawing of new regulations which was done by the insertion of regulation 137A. Subsection (5B) is redundant and can be repealed. Subsection (6) deals with unconvicted juveniles who are detained in a prison or a police cell or lock-up or who are being moved in custody or attends court. These juveniles must be kept separate from any person over the age of 18 years. Subsection (6) refers to subsection (2) and (5) which are being repealed by the Bill. Subsection (6) will be rendered null and void and it is recommended that it be amended to refer to the applicable sections in the Criminal Procedure Amendment Bill or that it should be repealed.

It is suggested that the provisions of section 29(6) and (7) of the Correctional Services Act, 1959, should be included for repeal. Section 29(6) in short entails that juveniles shall be kept separate from any person over the age of 18 years with the proviso that contact with a person over the age of 18 years may be allowed under certain circumstances. Section 29(7) requires that a girl under the age of 18 years in custody or detention should be under the care of a woman. The SAPS then suggests that these two provisions be dealt with in clause 1, as two new subsections.

1. CRP 9 (Attorney-General, Pietermaritzburg):
A longer period should be given to implement these provisions.

1. The Legal Resources Centre (CRP10) argues strongly in favour of a statutory obligation on magistrates to report to a designated officer, information on the detention of awaiting-trial children in an effort to monitor the exercise of the powers of magistrates.

2. The Attorney-General, Pretoria (CRP13) states that if the discretion of magistrates is to be curtailed, then the schedule of offences should be revisited. There is still a dire lack of places of safety, which will give rise to problems if this legislation is implemented.

3. The Human Rights Committee (CRP 15) and Ms J Sloth-Nielson, representing the Community Law Centre (CRP11) suggest that a "speedy trial provision" be inserted in the Bill in terms of which magistrates should consider refusing postponements after a certain period or that the child be released from detention but that the trial continue, perhaps after 6 months in the District Court and 12 months in the Regional Court. This Committee and the South African Human Rights Commission (CRP 16) also suggest that numerous aspects surrounding the legislation should be subject to monitoring, perhaps a formal or statutory monitoring mechanism.

4. The SAPS, in comments which were received after the public hearings on the Bill, have suggested a new structure to the Bill, particularly the introductory provisions, where they suggest 2 new subclauses (1) and (2) to replace the existing subclause (1). The new subclauses (1) and (2) are intended to state cl9arly what may be done with children who are detained. The SAPS argue that the previous section created confusion since it allowed children to be released who should have been detained as a result of the nature of the offence which was committed. Children would also be released without having an obligation to return to court; hence the reference to section 72(2)(b), (3) and (4) in the proposal of the SAPS.