CIVIL SOCIETY
PRISON REFORM INITIATIVE
SUBMISSION BY THE
CIVIL SOCIETY PRISON REFORM INITIATIVE TO THE PORTFOLIO COMMITTEE ON JUSTICE
AND CONSTITUTIONAL DEVELOPMENT ON THE CHILD JUSTICE BILL [B49 OF 2002]
January 2008
CSPRI REQUESTS AN
Contact details:
Lukas Muntingh
CSPRI
Community Law
Centre
University of the
SUBMISSION BY THE
CIVIL SOCIETY PRISON REFORM INITIATIVE ON THE CHILD JUSTICE BILL
January 2008
Introduction
The Civil Society Prison Reform
Initiative (CSPRI) is a project of the Community Law Centre at the University
of the
This
submission deals with the following aspects:
·
Research, information and monitoring of child justice
·
Children in police custody
·
Children in prison
·
Sentencing of children
·
Legal representation of children
·
Parole for children sentenced to imprisonment
The
submission proposes alternatives to the wording of the current Bill on a number
of occasions. These proposals are presented in the Appendix 1 on p. 20.
Research, monitoring and evaluation
Since
the early 1990s, when government and civil society commenced with the reform of
the child and youth care system, the lack of accurate data collection and
monitoring mechanisms were identified as a significant shortcoming. In many
regards this situation persists, with the exception of the Department of
Correctional Services (DCS) that is able to provide accurate and up to date
quantitative information on the children placed in its care. The intentions of
Clause 95(2)(c), providing for the collection of data on children in conflict
with the law is therefore supported. The collection of quantitative and
statistical data on child justice is not an end itself – it contributes to
three important objectives aimed at protecting children’s rights:
o
It promotes transparency by
describing what is happening to children in the criminal justice system
o
It enables accountability structures
(domestic and international) to hold government accountable in respect of
services to and treatment of children in the criminal justice system
o
It informs the development and
review of policy to ensure that policy is based on knowledge and not
perceptions.[1]
The
Committee on the Rights of the Child (CROC), in a recent commentary, lamented
the absence of comprehensive and reliable statistical information on children
in conflict with the law in country reports:
The Committee is deeply
concerned about the lack of even basic and disaggregated data on inter alia the
quantity and the nature of offences committed by children, the use and the
average length of duration of pre-trial detention, the number of children dealt
with by the use of measures without resorting to judicial proceedings
(diversion), the number of convicted children and the nature of the sanctions
imposed on them. The Committee urges the States Parties to systematically
collect disaggregated data relevant for the information on the practice of the
administration of juvenile justice, and necessary for the development,
implementation and evaluation of policies and programmes aiming at the
prevention and at effective responses to juvenile delinquency in full
accordance with the principles and provisions of the Convention on the Rights
of the Child . [2]
Without
accurate and reliable quantitative information it is difficult, if not
impossible, to measure progress. Realising the difficulties in this regard,
UNICEF in cooperation with UN Office on Drugs and Crime (UNODC) developed a
user-friendly and detailed guide for states to develop the system and collect the
right information on children in the criminal justice system: Manual for the
Measurement of Juvenile Justice Indicators.[3]
It is therefore recommended that
It
is therefore proposed that Clause 95(2)(c) be accordingly amended. See Appendix
for the proposed wording.
Monitoring children in police
custody – Clause 28
Clause
28 of the Bill deals with the protection of children detained in police
custody. In several ways these measures are more protective than the measures
contemplated in the 2002 version of the Bill and the drafters are commended for
this.
In November 2006
It should also be borne in mind that after
OPCAT
provides for international and national visiting mechanisms to places of
detention. The international visiting mechanism is known as the Sub-Committee
on the Prevention of Torture (SPT) and consists of ten experts, elected by
States Parties to the Protocol (Article 2). The national visiting mechanism,
known as the National Preventive Mechanism (NPM) is established and/or
designated by the States Parties to OPCAT in their jurisdictions (Article 3).
The Protocol grants the SPT and NPM(s) access to all places of detention,
people detained there, and documentation at such places. States Parties to the
Protocol are also required to cooperate with the SPT and NPM, and is obliged to
ensure the functional independence of the NPM and furthermore that it has
sufficient resources to fulfil its mandate.
Monitoring
places of detention refers to the process, over time, of regular examinations
of all aspects of detention. The scope of monitoring visits would cover:
·
The legal and administrative measures applied in places of detention
·
The living conditions during detention
·
Access to medical care
·
The regime of the detention facility
·
The organisation and management of detained persons and of personnel as
well as the relations between personnel and detained persons.
There is
at present no independent oversight mechanism in respect of police cells and
the Independent Complaints Directorate (ICD) does not, as a matter of policy,
conduct proactive visits to police cells to monitor conditions and the
treatment of detainees. The protective mechanisms outlined in clause 28 are by
and large reactive and complaints-driven. While this is important, it has been
demonstrated that proactive announced and unannounced visits by independent
bodies or persons to places of detention is the most effective mechanism to
prevent torture, cruel, inhuman and degrading treatment or punishment.[6]
It is unfortunately the case that an NPM has not been designated in
In view
of the above the following are proposed to address the current shortcomings and
establish a more preventive approach towards the monitoring of children
detained in police cells:
·
Each police area commissioner must designate
in his/her area of command the police station(s) that have sufficient and
suitable capacity and services to detain children.
·
The identification of police stations suitable
to detain children should be done with a view to centralize the detention of children
in an area in order to facilitate monitoring and access by other stakeholders
to such children. The intention is that there would be in a police management
area, one or more police stations that area designated as suitable to be used
for the detention of children. This should strike a balance between need and
available resources.
·
In the event that a child is detained in a
police cell, the arresting officer must inform the probation officer
responsible for that area that a child is in detention at that specific police
station.
See
Appendix for proposed wording.
Children in prison
The
description below provides statistical information on children in prison and
will be referred to in subsequent sections. Particular attention is paid here
to age, offence and sentence profiles of children in prison. A brief
description is also provided on Constitutional obligations and the requirements
for limiting a constitutional right with reference to the imprisonment of
children.
General
It
is well known that
Children
Although
children constitute a fairly small percentage of the total prison population
(approximately 2%), this proportion does amount to roughly 2000 children who
are either sentenced or unsentenced prisoners. This is significantly less than
in the past, when in excess of 4000 children were in prison. Government and its
partners are commended for the reduction in
numbers. It should also be kept in mind that even though these figures
have come down significantly, there is a much larger number of children who are
circulating through the prison system on an annual basis, estimated to be at least
three times the average number in custody.
Table
1 provides the age profile of sentenced and unsentenced children in prison as
on 31 July 2007. A number of remarks are warranted:
· There
were 4 unsentenced children under the age of 14 years being held illegally in
prisons (see section 29 of Act 8 of 1959)
· Approximately
14% (or 286 of 2144) of the total number of children were under the age of 16
years and the remainder were aged 16 and 17 years old
·
17% of unsentenced children (or 206)
were aged younger than 16 years
·
9% of sentenced children (or 80)
were aged younger than 16 years
· There
were more children awaiting trial in
prison than sentenced children in prison (59% of the total number of
children). This is an extremely worrying trend compared with the adult prison
population with only 25% being unsentenced prisoners.
Table 1[7]
UNSENTENCED
CHILDREN(YOUNGER THAN 18 YEARS) IN CUSTODY: 31 July 2007 |
||||||
Gender |
7 -
13 Years |
14
Years |
15
Years |
16
Years |
17
Years |
Total |
Female |
0 |
2 |
6 |
9 |
13 |
30 |
Male |
4 |
31 |
163 |
388 |
653 |
1,239 |
All Genders |
4 |
33 |
169 |
397 |
666 |
1,269 |
SENTENCED
CHILDREN(YOUNGER THAN 18 YEARS) IN CUSTODY: 31 July 2007 |
||||||
Gender |
7 -
13 Years |
14
Years |
15
Years |
16
Years |
17
Years |
Total |
Female |
0 |
1 |
2 |
9 |
11 |
23 |
Male |
3 |
8 |
66 |
224 |
551 |
852 |
All Genders |
3 |
9 |
68 |
233 |
562 |
875 |
TOTAL CHILDREN(YOUNGER
THAN 18 YEARS) IN CUSTODY: 31 July 2007 |
||||||
Gender |
7 -
13 Years |
14
Years |
15
Years |
16
Years |
17
Years |
Total |
Female |
0 |
3 |
8 |
18 |
24 |
53 |
Male |
7 |
39 |
229 |
612 |
1204 |
2,091 |
All Genders |
7 |
42 |
237 |
630 |
1228 |
2,144 |
The offence profile of
children in prison, both sentenced and unsentenced, is presented in Table 2 and
the following are noted:
· A
total of 7 children under the age of 14
years were in custody; of which only 1 was held for an aggressive offence
and 1 for a sexual offence. The balance being held for property and other
offences.
·
Approximately a third of unsentenced
children are detained for economic offences and approximately one half for
aggressive offences
·
38% of the 875 sentenced children
were convicted of economic offences; 43% of aggressive crimes, and 12% of sex
offences.
·
The offence profile of unsentenced
children aged younger than 16 years indicates that a third (32%) were charged
with an economic offence; 46% with an aggressive offence and 15% with sexual
offences
·
The offence profile of sentenced
children aged younger than 16 years indicates that nearly half (46%) were
convicted of property offences; a third of aggressive offences and 14% of a sex
offences.
Table 2[8]
UNSENTENCED CHILDREN(YOUNGER THAN 18 YEARS) IN CUSTODY PER CRIME
CATEGORY : 31 July 2007 |
||||||
Crime
Categories |
7 -
13 Years |
14
Years |
15
Years |
16
Years |
17
Years |
Total |
Economic |
1 |
15 |
52 |
126 |
213 |
407 |
Aggressive |
0 |
9 |
80 |
201 |
328 |
618 |
Sexual |
1 |
7 |
24 |
50 |
85 |
167 |
Narcotics |
0 |
1 |
5 |
5 |
11 |
22 |
Other |
2 |
1 |
8 |
15 |
29 |
55 |
All Crime Categories |
4 |
33 |
169 |
397 |
666 |
1,269 |
SENTENCED
CHILDREN(YOUNGER THAN 18 YEARS) IN CUSTODY PER CRIME CATEGORY : 31 July 2007 |
||||||
Crime
Categories |
7 -
13 Years |
14
Years |
15
Years |
16
Years |
17
Years |
Total |
Economic |
2 |
7 |
28 |
88 |
206 |
331 |
Aggressive |
1 |
0 |
27 |
103 |
248 |
379 |
Sexual |
0 |
1 |
10 |
31 |
64 |
106 |
Narcotics |
0 |
0 |
1 |
3 |
10 |
14 |
Other |
0 |
1 |
2 |
8 |
34 |
45 |
All Crime Categories |
3 |
9 |
68 |
233 |
562 |
875 |
TOTAL CHILDREN(YOUNGER
THAN 18 YEARS) IN CUSTODY PER CRIME CATEGORY : 31 July 2007 |
||||||
|
7 -
13 Years |
14
Years |
15
Years |
16
Years |
17
Years |
Total |
Economic |
3 |
22 |
80 |
214 |
419 |
738 |
Aggressive |
1 |
9 |
107 |
304 |
576 |
997 |
Sexual |
1 |
8 |
34 |
81 |
149 |
273 |
Narcotics |
0 |
1 |
6 |
8 |
21 |
36 |
Other |
2 |
2 |
10 |
23 |
63 |
100 |
All Crime Categories |
7 |
42 |
237 |
630 |
1228 |
2,144 |
A
summarised sentence profile in percentages for 2006 is presented in Figure 1;
for comparative purpose the sentence profile of the total prison population is
included. The following are evident from the profile:
· The
overwhelming majority of children sentenced to imprisonment, are sentenced to
terms of less than five years
· There
is also a growing proportion of children serving sentences of longer than 5
years and even as long as life imprisonment.
· There
are significant differences between the sentence profiles of the total prison
population and that of children.
Figure 1[9]
The
Constitution is clear regarding the detention of children: it should be used as
a measure of last resort and for the shortest possible period of time.[10]
The reference to ‘as a measure of last resort’ places the obligation on the
state to explore all other options first and after finding them unsuitable for
reasons that are constitutionally justifiable in respect of section 36 of the
Constitution, it may detain the child or impose a sentence of imprisonment. To limit a
right, in this case the right to freedom, the following needs to be taken into
account:
· the
importance of the purpose of the limitation (i.e. imprisonment)
· the
nature and extent of the limitation (i.e. for how long and under what
conditions)
· the
relationship between the limitation and its purpose (i.e. will imprisonment
reduce re-offending and promote public safety?)
· are
there less restrictive means to achieve the same objective?
International law also places strong
emphasis on restricting the use of imprisonment for children. Article 37(b) of
the Convention on the Rights of the Child uses similar wording to that of
section 28 of the Constitution:
‘No child shall be deprived of
his or her liberty unlawfully or arbitrarily. The arrest, detention or
imprisonment of a child shall be in conformity with the law and shall be used
only as a measure of last resort and for the shortest appropriate period of
time’.
This position is further supported by Rule 1
of the UN Rules for the Protection of Juveniles Deprived of their
Children should not be in
correctional centres, and should as far as is possible be diverted from the
criminal justice system. Where this is not an option, they should be
accommodated in secure care facilities that are designed for children[12]
and furthermore that
Children under the age of 14 have
no place in correctional centres.[13]
In view of the above, the submission will
now turn to specific issues that are regarded as problematic in the Bill with
reference to the imprisonment of children.
Age of admission to
a prison
In the mid-1990s when the situation of
children in prison was under intense focus by government, the decision was
taken that prisons are unsuitable for children and that when circumstances
require a custodial setting, that secure care facilities for children would be
the most suitable option.[14]
Available data indicate that government has made good on these plans and that
by 2006 there were space in secure facilities for 2260 children[15]
and that plans are afoot to create more secure care facilities.[16]
From a law reform perspective it is
therefore important to direct decision-makers in the criminal justice system
towards these resources and away from using prisons as a custodial setting for
children.
At the outset it is acknowledged that there
is a very small percentage of child offenders who present a significant risk to
society and the administration of justice. Furthermore, that there is a similar
proportion of children who commit serious offences, and are similarly in need
of intensive residential services over a prolonged period of time.
The above age profile (Table 2) showed that
of the total number of children in prison on 31 July 2007 (2144 in total), 286 (or 14%) were younger than 16 years of
age. In view of the undesirability of placing children in prison, the
number of children involved and the available resources in the form of secure
care facilities as alternative to imprisonment, it is proposed that 16 years of age be set as the minimum age for
admission to a prison as either a sentenced or unsentenced prisoner.
It should also be noted that secure care
facilities are indeed secure and that private sector operators of these
facilities go to great lengths to not only prevent escapes, but also to ensure
that safety and security are maintained internally and that children receive
proper services. See Appendix 2 for a description of the security measures
operated by Bosasa at its Youth Care Centres.
It is furthermore proposed that in
exceptional cases where a child under the age of 16 years commits a serious
crime and that the sentencing court is of the opinion that a prison sentence is
the most appropriate sentence, that the child will start serving the sentence
in a secure care facility and be transferred to a prison when he or she reaches
the age of 16 years to serve the remainder of the sentence there.
Setting the minimum age of admission to a
prison, either as a sentenced or unsentenced prisoner, at 16 years of age would
bring a number of advantages:
·
It protects those children younger than 16 years of age from
victimisation in prisons and especially from recruitment into gangs at such a
young age. These young children are extremely vulnerable to violence and sexual
assaults.
·
It will enable the more effective and efficient use of the currently
under-utilised secure care facilities (these facilities are under-utilised in
all provinces).[17] The
secure care facilities have space available, whereas prisons are overcrowded.
The expansion of secure care facilities is also being planned and well
underway.
·
It will facilitate access to education for children of compulsory
school-going age as the secure care facilities are better geared towards
providing education and other training.
·
It will enable these younger children to have access to programmes that
are appropriate to their age that are currently not being rendered by the DCS.
·
It will support the policy objectives of the DCS by reducing the number
of children in prison.
·
It will reduce the demand for diversified services placed on the DCS,
bearing in mind that it has to cater for a very wide range of individuals, as
described in the White Paper on Corrections.
·
It will be supportive of the general spirit of the UN Convention on the
Rights of the Child and the UN Minimum Rules for the Treatment of Juveniles
Deprived of their
·
It will address the falling away of the protection afforded by Section
29 of Act 8 of 1959 which is to be repealed. Section 29 currently prevents the
detention of unsentenced children under the age of 14 years in a prison. The
repeal of this section needs to be addressed by a similarly protective
mechanism. The Child Justice Bill presents an opportunity to improve on the
protection originally created by section 29 of Act 8 of 1959.
Conclusion
Government has to be
commended for the practical steps taken and measures put in place over the past
ten years to improve the situation of children in the criminal justice system.
The increased availability of probation officers, the accessibility of
diversion programmes through its NGO partners, and the establishment of
one-stop child justice centres are testimony to this. The Child Justice Bill is
therefore an important step to consolidate the significant advances made to
date and it should affirm the progressive nature of practices that have develop
over the years.
The 2002 version of the Bill
was in a very real sense close to the voices of stakeholders that contributed to
its drafting, with specific reference to officials, SA Law Reform Commission,
NGOs and children. The current version of the Bill departs fundamentally in key
areas from the 2002 version. Of particular concern is the targeting of 16 and
17-year old children for harsh punishment. This is manifested in various
provisions of the Bill and linked legislation. The above submission has
described these in more detail and they are listed below:
·
the Criminal Law Amendment Act
(sentencing)(see clause 78(3))
·
the sentencing provisions of the
Bill (see clause 78(4))
·
exclusion from legal representation at
state expense in general (clause 83(1)(b))
·
exclusion from legal representation
from state expense when facing a sentence of imprisonment (see clause 83(1)(c))
·
exclusion from direct appeals when
sentenced to imprisonment (see clause 85)
·
exclusion from automatic review (see
clause 86)
The net effect of these
measures is that the odds are stacked against a small group of offenders by
excluding them from critical safety measures in the administration of justice.
There is to date no evidence
indicating that this age cohort is disproportionately responsible for crime or
that they commit more serious offences than adults. They constitute indeed a
very small percentage of the prison population and consequently a small
percentage of the total offending population. Seen for their combined effect,
the above measures leave one with the impression that 16 and 17 year old
children are being made the scapegoats of South Africa’s crime problem by
encouraging and facilitating long custodial sentences.
Referring to the 16-17-year
old age cohort, the Bill leaves one with the impression of a high-handed and
uninformed approach. Instead of addressing the fault lines in the existing
criminal justice process as well as the lack of prevention and reintegration
services, it creates new fault lines of a far more dangerous nature. In view of
these concerns and acknowledging the all too human inclination to be
retributive, we respectfully submit that vision, understanding and greatness of
spirit guide the drafting of the Bill.
End
APPENDIX 1
Note
that underlined text indicates proposed insertions and text that is stroked
through indicates proposed deletions.
Research, evaluation and monitoring
Clause 95 (c) Provide
for the establishment of an information system collecting data on children
in the criminal justice system as prescribed with reference to:
(i) Children in pre-sentence
detention, describing the total number of children in detention, the proportion
of children in detention in the different stages of the criminal justice
process, and the average length of detention.
(ii) Duration of detention as
per sentence category and type of sentence
(iii) The number of children coming
into contact with the child justice system with reference to number of arrests,
diversions, trials and adjudication.
(iv) Description of the child
justice system with reference to the existence and accessibility of specialised
courts, procedures and/or dispositions or measures applicable to children.
(v) The availability of
appropriate specialised staff per 1000 arrested children with reference to
judges, lawyers, prosecutors, police, social workers and probation officers
(v) Proportion of children in
detention who are not separated from adults in police cells, prisons and other detention
facilities.
(vi) Measures for control of
quality of services to children in detention with reference to oversight
mechanisms to places of detention and access of parents to children in
detention facilities.
(vii) Protection from
torture, violence, abuse and exploitation with reference to the existence of
legal provisions prohibiting torture, inhuman and degrading treatment or
punishment; the existence of safe, accessible and child-sensitive complaint
mechanisms for children; the number of reported cases of violations, and number
of reported cases followed by criminal or administrative sanctions
(viii) The existence of a
national programme for the prevention of child offending that has at least the
following components: family support services; community-based programmes for
vulnerable groups; programmes for prevention of drugs, alcohol abuse; educational
support programmes, and involvement of mass media in prevention
(vii) Number of children in
detention benefiting from an after-care programme lasting at least six months
following release.
[a single
database, containing quantitative and qualitative data relating, among others,
to -
(i) arrest or methods of securing attendance at criminal
proceedings;
(ii) assessment;
(iii) preliminary inquiries;
(iv) diversion;
(v) children awaiting trial;
(vi) bail and placement;
(vii) trials;
(viii) sentencing;
(ix) appeals and reviews; and
(x) children below the age of 10
years; and]
Protection of children in police
custody
Clause
28 (1) (d) (i) Each police area commissioner shall identify and
designate from amongst those police stations in his/her command area the police
stations that are suitable to be used for the detention of children as required
by section 28(1)
(ii) The identification and
designation of police stations as required by section 28(d)(1)(i) shall be done
with a view to centralise the detention of children in a police management area
to facilitate monitoring and ensuring conditions of detention suitable for
children.
(iii) In the event that a
child is detained in a police station, the arresting officer shall without
delay inform the designated probation officer or other person designated by the
Department of Social Development of the detention of the child.
Children in prison
30.(1) Subject
to section 31(5), a presiding officer may only
order the detention of a child referred to in section
29 in a specified prison, if―
(a) an application for bail has been
postponed or refused or bail has been granted but one or more conditions
relating thereto have not been complied with;
(b) the child is aged 16 years or older
(c) such child is accused of having
committed an offence referred to in Part I or II of Schedule 3;
(d) such detention is necessary in the
interests of the administration of justice or the safety or protection of the
public or such child or another child in detention; and
(e) there is a likelihood that the child,
upon conviction, could be sentenced to imprisonment.
(2) A child who is at least 10 years but
under the age of 14 years
may only be detained in a prison if, in
addition to the factors referred to in subsection (1), the Director of Public Prosecutions
or a prosecutor authorised thereto in writing by him or her issues a written
confirmation that he or she intends charging the child concerned with an
offence referred to in Part I or II of Schedule 3 and stating that there is
sufficient evidence to institute a prosecution against the child.
78 (7) A child
sentenced to imprisonment who is below the age of 16 years at the time of
sentencing may not be admitted to serve the sentence in a prison until he or
she has turned 16 years of age. Until the child reaches the age of 16 years,
the sentence shall be served in a designated secure care facility following
which the child may be transferred to a prison to serve the remainder of the
sentence there. The proportion of the sentence served in a secure care facility
shall be deemed as part of the sentence served for all further decisions.
Sentencing of children – factors to be
considered
70 (3) When
considering the imposition of a sentence involving compulsory residence in a
residential facility or imprisonment, the child justice court should take the
following factors into account:
(a) The seriousness of the offence;
(b) the
protection of the community;
(c) the
severity of the impact of the offence on the victim;
(d) the
previous failure of the child to respond to non-residential alternatives;
and
(e) the
desirability of keeping the child out of prison
(f) the proximity of the designated
facility or prison to the child’s community, parent(s) or care giver(s)
(f) the prevailing conditions at the
facility or prison and the availability, appropriateness and effectiveness of
existing services and interventions at the designated residential facility or
prison.
Sentencing of children – pre-sentence
reports
72.(1) (a) A child justice court imposing a
sentence must, subject to paragraph (b),
request a pre-sentence report prepared by a probation officer or any
other suitable person prior to the imposition of sentence.
(i) The member of cabinet responsible
for social development must through regulations specify the requirements in
respect of other suitably qualified persons referred to in paragraph (a)
(ii) The member of cabinet responsible for
social development must through regulations specify the format and scope of a
pre-sentence report with specific reference to the sources of information to be
consulted, persons to be interviewed and drafting sentence recommendations.
(b) A child justice court may
dispense with a pre-sentence report where a child is convicted of an offence
referred to in Schedule 1 or where requiring such report would cause undue
delay in the conclusion of the case, to the prejudice of the child, but no
child justice court sentencing a child may impose a sentence involving
compulsory residence in a residential facility or imprisonment unless a
pre-sentence report has first been obtained.
(2) The
probation officer or other suitable person must complete the report as
soon as possible but no later than 20 working days if the child is in
custody or 30 working days of the child is not in custody one calendar
month following the date upon which such report was requested.
(3) Where
a probation officer recommends that a child be sentenced to compulsory
residence in a residential facility or prison, such recommendation must
be supported by a sworn statement or facsimile copy thereof, as prescribed,
obtained by the probation officer from the person in charge of such facility,
containing current information regarding:
(i) the availability or otherwise of accommodation for the
child in question;
(ii) the range and purpose of educational,
developmental and therapeutic services available, and
(iii) the effectiveness of services referred to in paragraph
(3)(ii) in reducing re-offending
(4) A
child justice court that imposes a sentence other than that recommended in the
pre-sentence report must record the reasons for the imposition of a different
sentence.
Clause 69 of the
2002 Child Justice Bill
69. (1) A sentence of imprisonment may not be
imposed unless-
(a) the child was over the age of 14
years of age at the time of commission of the offence; and
(b) substantial and compelling
reasons exist for imposing a sentence of imprisonment, which may include
conviction of a serious offence or a previous failure to respond to alternative
sentences, including sentences with a residential element.
(2) No sentence of imprisonment
may be imposed on a child-
(a) in respect of an offence referred
to in Schedule 1; or
(b) as an alternative to any other
sentence contemplated in this Act.
(3) If any child fails to comply
with a condition of a sentence imposed on him or her, the child may, in the
prescribed manner, be brought before the child justice court which imposed the
original sentence for reconsideration of an appropriate sentence which may,
subject to subsections (1) and (2), include a sentence of imprisonment.
(4) A child justice court
imposing a sentence of imprisonment must announce the period of imprisonment in
an open child justice court and the coming into effect of the term of
imprisonment must be antedated by the number of days that the child has spent
in prison prior to the sentence being announced in child justice court.
Legal representation
83.(1) Where a child appears before a child justice court in terms of
Chapter 8 and is not represented by a legal representative of his or her own
choice, at his or her own expense, and -
(a) the child is below the age of 14 years;
(b) the child is in
detention the child is below the age of 16 years and is in detention in a prison; or
(c) it is likely that a sentence contemplated
in section 77 or section 78 may be imposed if the child is convicted of
the offence in question,the presiding officer must refer the child to the legal
aid board referred to in section 2 of the Legal Aid Act, 1969 (Act No. 22 of
1969), for the matter to evaluated by the board as
contemplated in section 3B(1)(b)
of that Act.
(2) The
prosecutor must indicate to the child justice court whether he or she is of the
opinion that the matter is a matter contemplated in subsection (1) before the child is asked to plead
and, if so, no plea may be taken until the child has been granted a reasonable
opportunity to obtain a legal representative or a legal representative has been
appointed.
Parole
78.(1) A child justice court, when sentencing a child to imprisonment,
must only do so as a measure of last resort.
(2) In compliance with our international
obligations, no law, or sentence of imprisonment imposed on a child, including
a sentence of imprisonment for life, may, directly or indirectly, deny,
restrict or limit the possibility of earlier release in terms of any relevant
law of a child sentenced to any term of imprisonment.
(3) Unless a shorter non-parole period is
provided for or specified by the sentencing court, a child sentenced to a
determinate period of imprisonment shall be considered for release on parole or
correctional supervision after he or she has served at least one third or five
years of the term of imprisonment, whichever comes first.
APPENDIX 2
Information
submitted to CSPRI by Bosasa on security measures at the Youth Care Centres
operated by Bosasa. Submitted by Angelo Agrizzi of Bosasa.
The
Bosasa Group of Companies has looked to international benchmarking standards
with regards to security applications for both Secure Care Facilities as well
as High Volume, High Risk detention facilities.
With its
understanding of the South African environment and fifteen year track record in
dealing with Youth in conflict with the law, Bosasa has developed pro-active
measures to counteract potential hazardous situations that could occur.
The
impeccable statistics at our facilities are achieved by implementing both
technology and cultivating an ethos amongst staff members responsible for the
“young people”. Although BOSASA has different contracts with various Provinces,
the following is what is proposed as an option to them. Some facilities will
have all of these below and others only some.
Technology
Bosasa
has employed the services of Sondolo IT to oversee the “Hard” security systems
used at the facility; whilst the systems are discreet they remain robust and
have been extremely successful in the various environments. The systems are not
product specific, making them cost effective and adaptable, most importantly
reliable.
The
solutions are technologically based, and include the following;
The
equipment:
·
Electronic Locking mechanisms for gates – monitored locally at a fully
equipped control room, with fail proof system backups
·
Metal detectors / X Ray scanners – user friendly and integrated into the
control room software, allowing for the verification by independent control
room operators, both on-site and offsite with portability functionality. This
in essence allows for an independent person in a control room to see what the
equipment operator is seeing, whilst taking a snapshot of the visitors and the
operator during the screening process, and has proven invaluable in averting
collusion, as well as smuggling of contraband items into the centre.
·
Static Cameras – Fixed high quality cameras are placed in strategic
places, e.g. passageways, communal areas, receptions, clinic, workshops,
visiting areas to allow for “focused” viewing of potentially problematic areas.
·
Fibre Optic sensors – strategically placed in “no go” areas, such as
parapets of walls / fences.
·
Use of aesthetically pleasing fence products that are visually
attractive with no barbed wire and electric deterrents
·
High Mast Pan Tilt Zoom Cameras are used, with both fixed and
pre-programmed roaming, allowing the control room operators the ability to
focus in on potentially problematic occurrences.
·
The design of the ceilings are unique, preventing both easy access as
well as remaining aesthetically child friendly
The Software
·
Sondolo IT has a team of software developers that have been integrally
involved with the dynamics of the youth centres, and have developed proprietary
software that meets the needs of our facilities
·
All equipment is integrated, allowing the operator easy access, one
screen response
·
Youth centres have integrated into an off-site national control centre,
which allows an independent third party operator to view, not only the facility
within a secure environment but also oversees the on-site control rooms and its
staff’s activity. In the event of a major disruption or failure at the
individual site the site can be remotely accessed via a secure line by the Unit
Manager, alternatively by the National Control Room.
·
Traditionally systems employed are not of a networkable structure, the
network at our facilities allow for the remote storage of data, as well as
remote access of stored data, eliminating potential collusion.
The Control Rooms
·
Each individual site has its own run control room comprising of video
walls that display the various cameras, as well as the computers required to
manage the facility.
·
Control rooms are monitored – via video – at a national centre, which
acts as an emergency backup
·
Staff members (Control Room Operators) are PSIRA registered, and undergo
specific training via Dr. Denise Bjorkman and Dr. Thembi Modungwa, where they
are trained to identify “Subliminal / Behavior patterns” that could result in
riots / suicides / escapes / smuggling etc. Staff members once trained are
certificated and registered by P.A.C.S.T. – The Pan African Council for Surveillance
Technologists.
Staff and young people must feel safe within the secure care facility.
The facility should be equipped with security officers that are PSIRA
registered and they are present in the facility on a daily basis. Young people,
staff and visitors are searched to ensure that no illegal and dangerous
substances enter the facility. CCTV cameras also ensure for a softer yet more
effective measure of security. These cameras should be placed in positions so
as not to invade private spaces such as the inside of the rooms, bathrooms and
toilets. Negotiations will therefore be entered into with the various
Departments regarding the implementation thereof.
Security
is an integral part of the daily operations of the youth centre, in the light
that the young people awaiting trial need to be in a secure and safe
environment. BOSASA believes in continued investments in the development of new
technological trends to ensure quality services.
Access Control
All
security employed by BOSASA are trained to do access control as per set
procedures.
The best
interest of the child will always have preference and thus a safe environment
has to be ensured within the facility. Access control measures depend on a
combination of hardware, software, standard operating procedures and site
specific requirements. Examples of access control measures used by BOSASA in
the different facilities include; registers, turn styles and access control
cards, walk through scanners and parcel scanners.
Perimeter
Surveillance and Security
The
perimeter of the facility will be monitored to determine any security risks and
to ensure the safety of the young people and staff in the facility. Adequate
lighting is however required to assist in the process. CCTV cameras are
installed at strategic points to assist in perimeter surveillance, this could
enhance the security aspect.
Detection of Unauthorised Items
Security
officers are responsible for routine and random searches on an ongoing basis,
and the following methods can be utilised depending on the equipment available
to ensure early detection of such unauthorised items:
·
metal detectors (walk-through and wand)
·
visual or touch inspection of property
·
body searches
All
searches will be conducted by trained personnel and it has to be conducted in a
reasonable manner, with the least intrusive method possible as determined by
the circumstances.
Administration and Information Technology
BOSASA has
developed an innovative and comprehensive method of capturing and storing the
young people’s data on computer. An individual is registered on the database
together with an ID (if available), first name and surname and an extraction of
a chosen fingerprint to produce an identity card containing all their details
and their photograph. The database
captures the name, date of birth, home address, case number, next court date,
and alleged crime, standard of education, room and bed allocated to each young
person as well as educational progress.
A copy of the identity card (student card) is placed on the young
people’s file and when they are released or readmitted, the identity card
information and “live” fingerprint must match the photograph and fingerprint on
the computer. This is the most effective
method of keeping track of individual’s progress.
The card
is used during mealtimes, classroom and workshop attendance and for
participation in various activities and accessing services.
All
interventions and activities are recorded in registers or on the young persons
file which forms part of the quality management system as outlined in the
policy and procedure manual.
Health and Safety
BOSASA complies with all the
regulations of the Occupational Health and Safety Act. The required safety provisions for all staff
are provided for. OHS Act training is
provided to all employees, to ensure understanding and elimination of unsafe
work practices Health and Safety committees are elected and the OHS Act
requirements implemented at each unit.
First Aiders are trained at each unit, and fire fighting equipment is
serviced regularly to ensure that it is in good working order at all units.
Emergency
& Safety Practices
Young
people and staff are informed of the emergency procedures relating to fire,
riot and any other hazards. These are available in the Policy and Procedure
Manual. Fire drills are held with young people and staff.
All
young people and staff engaged in workshops wear protective clothing as a
safety measure.
Fire
extinguishers will regularly be checked.
A layout plan of the facility will have to be made to organisations
checking the equipment so as to assist
in them in advising us on legislation regarding fire safety within the Centre.
Emergency
numbers of the Fire Department and SAPS will be made available at
reception.
Medication
and hazardous substances are controlled and locked away.
Medical
waste and “sharps” are appropriately disposed of.
No
firearms are allowed in the Youth Centre.
Firearms are handed in at the main entrance gate. SAPS staff members are not allowed further
than the reception area with their service firearms.
Health
and Safety signs will be displayed throughout the Centre.
Communication Methods
Communication
is through memorandums, directives, verbal and electronic communication
including two-way radios. All directives, occurrences, events and incidents are
recorded. Cellular communication is also used as backup.
All
units are equipped with Voice Over IP protocols.
Quality Management System
BOSASA
has been certified ISO 9001:2000
compliant by TUV Rhienland. This implies that BOSASA has a quality management
system and has been verified by external auditors TUV.
The
Compliance Division is responsible to ensure that the Youth Centres comply with
the applicable Standards (ISO 9001:2000 - Quality Management System Standard is
currently being used as based standard), applicable legislation and contractual
requirements.
To ensure this compliancy, the Compliance Division has
established and documented a Policy Manual (for the Group) which explains the
Board's (Top Management) commitment and what aspects / functions are required
to manage the Company.
Secondly
the Compliance Division has developed and introduced a Standard Procedure
Manual which explains in detail how the Company will comply with all the
requirements.
The Youth
Development Centres have also established and documented Standard Operating
Procedures which explain the functions and processes to comply with in the
management of a facility.
With an
effective and efficient system in place, the Compliance Division conducts
regular Site Monitoring, Compliance Training and Internal Audits to ensure that
they comply to there requirements.
Once a
year, an External Certification Body (currently utilising TUV Rhineland)
certify that the Company comply with the requirements of ISO 9001:2000.
Compliance also
manages the fire fighting equipment, First Aid equipment, Pest Control Services
and Micro Biological Testing Service Providers which currently provides a
service for the Youth Development Centres.
[1] See Bullock H (2001) Better Policy Making, Centre for
Management and Policy Studies, http://www.policyhub.gov.uk/docs/betterpolicymaking.pdf
[2] Committee On The Rights of the
Child General Comment No. 10 (2007) Children’s rights in Juvenile
Justice, Forty-fourth session, Geneva, 15 January-2 February 2007,
para 34.
[3] UNODC & Unicef (2007) Manual for the Measurement of Juvenile
Justice Indicators, United Nations,
[4] Article 11: Each State Party shall
keep under systematic review interrogation rules, instructions, methods and
practices as well as arrangements for the custody and treatment of persons
subjected to any form of arrest, detention or imprisonment in any territory
under its jurisdiction, with a view to preventing any cases of torture.
[5] Article 16: 1. Each State Party shall
undertake to prevent in any territory under its jurisdiction other acts of
cruel, inhuman or degrading treatment or punishment which do not amount to
torture as defined in article 1, when such acts are committed by or at the instigation
of or with the consent or acquiescence of a public official or other person
acting in an official capacity. In particular, the obligations contained in
articles 10, 11, 12 and 13 shall apply with the substitution for references to
torture of references to other forms of cruel, inhuman or degrading treatment
or punishment.
2. The provisions of this Convention are
without prejudice to the provisions of any other international instrument or
national law which prohibits cruel, inhuman or degrading treatment or
punishment or which relates to extradition or expulsion.
[6] Ludwidge F (2006) The Optional Protocol to the
Convention against Torture: a major step forward in the global prevention of
torture, Helsinki Monitor No. 1, p.
70
[7] Statistics
provided by the Judicial Inspectorate of Prisons.
[8] Statistics
provided by the Judicial Inspectorate of Prisons.
[9] Statistics
provided by the Judicial Inspectorate of Prisons.
[10] Section 28(1)(g)
[12] Department of Correctional Services’ White Paper on Corrections in
[13] Department of Correctional Services’ White Paper on Corrections in
[14] Submission by the Department of Social Development to
the Portfolio Committee on Justice and Constitutional Development on the Child
Justice Bill, February 2003.
[15] Muntingh L (2007) A
quantitative overview of children in the criminal justice system – 2007,
Child Justice Alliance, Cape Town, p. 13.
[16] A tender was recently put out for three more secure
care facilities in
[17] Muntingh L (2007) A
quantitative overview of children in the criminal justice system – 2007,
Child Justice Alliance, Cape Town, pp. 12- 13.
[18] Dünkel F & Van Zyl Smit D (2001) ‘Conclusion’ in Van Zyl
Smit D and Dünkel F Imprisonment Today
and Tomorrow, Kluwer, The Hague, p.
846
[19] Department of Justice and Constitutional Development
(2007) Service Charter for Victims of
Crime in
[20] In 2006 CSPRI co-facilitated a series
of workshops involving over 100 magistrates on alternative sentencing for
children. The general poor quality and delays experienced in receiving
pre-sentence reports was a consistent complaint from magistrates across all
nine provinces.
[21] Bonthuys E (2006) ‘Children’ in Currie I and De Waal J
The Bill of Rights Handbook, Juta,
[22] The
Children’s Act has now provided presiding officers with such a checklist, but
these factors would not apply entirely to criminal proceedings involving
children.
[23] Act 38 of 2007 Criminal Law (Sentencing) Amendment Act
[24] Giffard C and Muntingh L (2007) The impact of sentencing on the size of the prison population, Open
Society Foundation,
[25] Giffard C and Muntingh L (2007) The impact of sentencing on the size of the prison population, Open
Society Foundation,
[26]
S v Brandt, Supreme Court of Appeal, Case no. 513/03
[27]
S v Nkosi 2002 (1) SA
494 (W)
[28] Robertson G (2006) Crimes
against Humanity, Penguin,
[29] Schwikkard PJ (2006) in Currie I and De Waal J The Bill of Rights Handbook, Juta,
[30] Section 73(6)(1)(a) Correctional Services Act
[31] Department of Correctional Services’ White Paper on Corrections in South Africa,
Pretoria, p. 162, para 11.3.1.
the DCS in fact assumes a slightly wider scope and refers to offenders aged 18
to 25 years.
[32] Regulation 3(h) Regulation Gazette No. 8023
[33] These have been described in summary format by Prof. J
Sloth-Nielsen in a submission to the Portfolio Committee on Correctional
Services on the Correctional Services Amendment Bill.
[34] Section 52 of the Correctional Services Act sets out
the conditions in this regard.
[35] Dünkel F & Van Zyl Smit D (2001) ‘Conclusion’ in Van Zyl Smit D and Dünkel F Imprisonment Today and Tomorrow, Kluwer,
The Hague p. 822
[36] Department of Correctional Services’ White Paper on Corrections in South Africa,
Pretoria, p. 142, para 9.13.8.
[37] Sentence plans are required for all prisoners serving
a sentence of longer of 12 months. See section 38(2) of the Correctional
Services Act.
[38] Department of Correctional Services’ White Paper on Corrections in South Africa,
Pretoria, p. 163, para 11.3.2