At present there is no comprehensive set of laws which govern child justice, although aspects dealing with children are covered in separate pieces of legislation, such as the Correctional Services Act, the Welfare Act, the Criminal Procedure Act, and the Child Care Act.
The draft Child Justice Bill, released in December 1998, was the first attempt to bring all these pieces of law together. This Bill aims to "protect the rights of children entrenched in the Constitution and international instruments, and to ensure an individual and appropriate response towards each child accused of committing an offence while still holding him or her accountable for his or her action." The Law Commission has steered this draft Bill through a process of consultation and review, and the Department of Justice is reportedly preparing for its presentation to Parliament.
The Bill endeavours to steer children who have committed less serious offences away from the criminal justice system, but nevertheless to hold them accountable through various diversion options. These are based on restorative justice principles, which embody reconciliation and restitution, rather than retribution and punishment. The system also provides for children who are accused of serious offences, as well as those who repeatedly commit offences, and for secure containment of children who are found to be a danger to others.
The Bill places emphasis on dealing with the child in the period immediately following arrest and before trial. The Bill allows for the detainment of children awaiting trial under certain defined circumstances, but only as a measure of last resort.
The draft Bill separates the handling of these children into nine distinct phases:
- The police apprehend the child and there is a period of waiting or detention in a police cell.
- The assessment and waiting period. This provides for compulsory assessment of all children by a probation officer as soon after the arrest as is practicably possible.
- The prosecutor makes a decision on how to deal with the child.
- A preliminary enquiry is held to ensure that all efforts are made to deal with the child in an appropriate manner, to ensure there is sufficient evidence to proceed to trial, and to look for ways to avoid pre-trial detention.
- The trial period where the charges against the child are heard before a 'Child Justice Court' presided over by specially designated magistrates who will be able to address the needs and concerns of the child.
- The child is again assessed to determine an appropriate sentence strategy, and a pre-sentence report is prepared for the court.
- The child is sentenced. Different sentence options are available, including non-residential options such as restitution, apology, reprimand, etc.; correctional supervision; reform school; and as a last resort, the child may be sentenced to imprisonment.
- The child serves the sentence. The draft Bill does not deal with children serving sentences of imprisonment, as this is dealt with in the Correctional Services Act.
- There is a specific process for appeal and review of conviction and sentence.
Decisions may be made at various stages in this system to divert the child, to release him or her, or to refer the child to a Child Court Enquiry.
The Bill allows for the appointment of a legal representative at any stage in the proceedings, at the child's own expense, alternatively to be appointed and paid for by the State.
The proposed system aims to encourage specialization in child justice practice, and provides for specialised and highly trained probation and court officials. Through the diversion process, the system also creates opportunities for greater civil sector involvement. There are already a number of NGOs providing diversion programmes for children, and the variety and quality of services could improve once the Bill is implemented.
One of the factors leading to the delay in the implementation of the Child Justice Bill has been concern for the resource implications. The Applied Fiscal Research Centre conducted a costing exercise for the Law Commission during 1999. It was estimated that the government currently spends about R675 million per year dealing with children in conflict with the law. It was suggested by the study that the implementation of the system proposed in the Child Justice Bill could reduce this spending to about R429 million per year, representing a saving of over 35 percent.
However, in order to be able to realise these savings, there needs to be substantial reallocation of resources from existing activities to assessment services, the preliminary enquiry process and the provision of diversion and alternative sentencing options. This requires substantial resource re-allocation by the Justice and Welfare departments particularly.
In addition to the savings quantified in the study, there are additional benefits which are even more deserving of attention. By keeping children out of prison and the justice system, they are protected from further 'criminalisation' and other harmful effects. They are also brought into a system which aims more substantially to deal with the problems leading to offending. Research has shown that recidivism is very low for children who have participated in diversion programmes. It is also argued that reducing the flow of children into the court system will also reduce cost and increase efficiency of the justice system.
The Department of Justice has recently indicated that the Bill will be presented to cabinet in April 2001, it should be certified by the state law advisors in June, and be introduced in Parliament by the end of June.
South African Law Commission (2000), Report on Juvenile Justice, http://www.law.wits.ac.za/salc/report/project106.html
Draft Child Justice Bill, as proposed for comment by the South African Law Commission's Project Committee on Juvenile Justice.
Baberton, C., Stuart, J. and Ajam, T. (1999), Costing the Implementation of the Child Justice Bill and developing a Strategy for Implementation, Applied Fiscal Research Centre.
Article 40, Vol 2, No. 4.
Amanda Dissel is Manager of the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
Briefing Paper, 28 March 2001.
© Centre for the Study of Violence and Reconciliation