GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
______ Words underlined with a solid line indicate insertions in existing enactments.
To amend the Probation Services Act, 1991, so as to insert certain definitions and amend others; to make further provision for programmes aimed at the prevention and combating of crime; to extend the powers and duties of probation officers; to provide for the mandatory assessment of arrested children; to provide for the establishment of a probation advisory committee; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa as follows:-
Amendment of section 1 of Act 116 of 1991
1. Section 1 of the Probation Services Act, 1991 (hereinafter referred to as the principal Act), is hereby amended -
(a) by the insertion before the definition of "authorized probation officer" of the following definitions:
" 'assessment' means a process of developmental assessment or evaluation
of a person, the family circumstances of the person, the nature and circumstances surrounding the alleged commission of an offence, its impact on the victim, the attitude of the alleged offender in relation to the offence and any other relevant factors;
'assistant probation officer' means a person who is appointed under section 2 and who assists and works under the supervision of a probation officer:":
(b) by the substitution for the definition of "authorized probation officer" of the following definition:
" 'authorized probation officer' means a probation officer authorized or directed by the Minister to perform any function entrusted to an authorized probation officer under this Act and, except in sections 9(1) and 15A, includes an authorized assistant probation officer:";
(c) by the insertion after the definition of "authorized probation officer" of the
"child means any person under the age of I 8 years:":
(d) by the insertion after the definition of "Director-general" of the following definitions:
'diversion' means the referral of cases of persons alleged to have committed offences away
from the formal court procedure with or without conditions;
" 'diversion programme' means a programme within the context of the family and
(a) in respect of a person who is alleged to have committed an offence;
(b) which is aimed at keeping that person away from the formal court procedure; and
(c) which promotes the development, accountability and effective integration of that
person within society;
'early intervention' means the provision of services and programmes aimed at preventing the
need for a person who is alleged to have committed an offence, to be dealt with in terms of the
formal court procedure;
'family finder' means a volunteer appointed under section 9;
'family group conferencing' means a gathering convened by a probation officer as a
diversion or sentencing option to devise a restorative justice response to the person's offence;
'family member' means a person who is related to another person biologically, by law or
according to customary law:":
(e) by the insertion after the definition of "Minister" of the following definition:
" 'person' means a natural person and includes a child;";
(f) by the substitution for the definition of "probation officer" of the following definition:
" 'probation officer' means a person who complies with the prescribed requirements, and who
has been appointed under section 2 and includes an assistant probation officer: "; and
(g) the insertion after the definition of "regulation" of the following definition:
" 'restorative justice' means the promotion of reconciliation, restitution and responsibility
through the involvement of a child, the child's parents, family members, victims and
Amendment of section 3 of Act 116 of 1991
2. Section 3 of the principal Act is hereby amended-
(a) by the substitution for the words preceding paragraph (a) of the following words:
"The Minister may, in respect of different categories of persons, establish or cause to be established programmes or services which are aimed at-";
(b) by the substitution for paragraph (a) of the following paragraph:
"(a) the prevention and combatin2 of crime;
(c) by the substitution for paragraph (d) of the following paragraph:
"(d) the assessment care, [and] treatment, support, referral for and provision of mediation in respect of the victims of crime;"; and
(d) by the deletion at the end of paragraph (i) of the word "and" and the addition after paragraph (j) of the following paragraphs:
"(k) early intervention, including family group conferencing;
(l) restorative justice as part of appropriate sentencing and diversion options.".
Amendment of section 4 of Act 116 of 1991
3. Section 4 of the principal Act is hereby amended by the addition to subsection (1) of the following paragraphs:
(i) the reception, assessment and referral of an accused person and the rendering of early intervention services and programmes, including mediation and family group conferencing;
(j) the investigation of the circumstances of an accused person and the provision of a pre-trial report recommending the desirability or otherwise of prosecution;
(k) the investigation of the circumstances of a convicted person, the compiling of a pre-sentencing report, the recommendation of an appropriate sentence and the giving of evidence before the court;
(l) the mandatory assessment of a child as contemplated in section 4A.".
Insertion of section 4A in Act 116 of 1991
4. The following section is hereby inserted in the principal Act after section 4:
"Mandatory assessment of arrested children
4A. Every child who is alleged to have committed an offence shall as soon as possible but not later than 48 hours after his or her arrest be assessed by a probation officer.".
Insertion of section 8A in Act 116 of 1991
5. The following section is hereby inserted in the principal Act after section 8:
"Establishment of a probation advisory committee
8A. The Minister may, in the prescribed manner, establish and maintain a probation advisory committee to advise him or her on matters regarding probation services in the country.".
Insertion of section 15A in Act 116 of 1991
6. The following section is hereby inserted in the principal Act after section 15:
15A. Whenever a child is brought before the court and the child's parents or guardians are not present at court, an authorized probation officer may as a last resort designate a family finder to trace the parents or guardian and to bring them to court in order to assist the child in the case.".
Short title and commencement
7. This Act is called the Probation Services Amendment Act, 2002.
MEMORANDUM ON THE OBJECTS OF THE PROBATION SERVICES AMENDMENT BILL, 2002
This Bill seeks to serve as an interim measure to facilitate the transformation of the child and youth care system and the proposed Child Justice Bill by amending the Probation Services Act, 1991 (Act No. 16 of 1991), hereinafter referred to as "the Act," by-
(a) amending the definitions of "probation officer" and "authorized probation officer", so as to extend
the meaning thereof to include an "assistant probation officer" and an "authorized assistant probation officer" who will assist probation officers in the performance of their duties;
(b) inserting the definition of "family finder" whose main function would be to trace the parents or
guardian of a child who is being prosecuted, so as to make them available to assist the child in court;
(c) introducing assessment, support, referral and mediation services in respect of victims of crime;
(d) introducing crime prevention strategies through the provision of early intervention programmes
including diversion services and family group conferencing;
(e) providing for the establishment of restorative justice programmes and services as part of appropriate sentencing and diversion options;
(f) providing for the reception, assessment and referral of an accused person and the rendering of early intervention services and programmes, the investigation of the circumstances of an accused person and the provision of a pre-trial report on the desirability or otherwise of prosecution and the investigation of the circumstances of convicted persons;
(g) providing for the competency of a probation officer to recommend an appropriate sentence or other options to the court and for the mandatory assessment of every arrested child within 48 hours of his or her arrest; and
(h) providing for the establishment of a probation advisory committee to advise the Minister on matters with regard to probation services.
The Drafting Committees of the SA Law Commission for Child Justice Legislation and the Review of the Child Care Act were requested to send representatives to a consultative meeting with representatives from the national Department of Social Development and from the Interministerial Committee for Children at Risk. This meeting was held in Cape Town in November 1998. Thereafter, a group of drafters from the aforesaid group worked together to prepare a draft Bill, which was presented to the Minister for Social Development on 18 December 1998. The MECs responsible for social development in the provinces were also consulted.
Cabinet approved the introduction of the Probation Services Amendment Bill in Parliament during January 1999 and the Bill was certified by the State Law Advisors in February 1999. On 3 March 1999 the Portfolio Committee on Social Development adopted the Bill. However, following an intervention from the Ministry of Justice, the Bill was withheld on 17 March 1999. The Department of Justice proposed a single amendment which was agreed to by the Department of Social Development and the State Law Advisors on 23 March 1999 (too late to be finalised during that session of Parliament).
During October 1999 the Department of Social Development was informed that the Bill needed to be resubmitted to Cabinet for approval. Further amendments to the Bill were then proposed and approved by roleplayers and the national and provincial departments of Social Development.
The provisions of the Bill were also discussed and approved at various probation advocacy group meetings attended by policy-makers in the field of probation services and by provincial probation officers during March 2001. Provincial Departments of Social Development were also consulted at various meetings during 2001 and approved of the Bill. During March and May 2001 further discussions were held with officials from the Department of Justice who approved the Bill.
The provisions of this Bill were also discussed with officials from the Department of Justice in order to ascertain the relationship between this Bill and the proposed Child Justice Bill. It was found that there are no conflicting areas between the two Bills. It is also important to note that the Probation Services Act applies to children and adults while the Child Justice Bill will apply to children only.
FINANCIAL IMPLICATIONS FOR THE STATE
The Department of Social Development has considered any financial implications arising from the proposed Bill and the necessary budgetary provision has been factored into the Medium-term Expenditure Framework.
Provinces have been allocated funding through the One Stop Early Intervention Business Plan during and for the period 2000/2001 in order to employ assistant probation officers. The provinces have already employed 33 assistant probation officers at a cost of R990 000,00 per annum. It is foreseen that by the year 2004 at least 10 assistant probation officers will have been employed per province which amounts to a total of 90 assistant probation officers at a total cost of R2 700 000,00 per annum.
The State Law Advisers and the Department of Social Development are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 76 of the Constitution.