Vol. 403, No. 19669, 15 January 1999
GENERAL NOTICE
Notice 12 of 1999
SOUTH AFRICAN LAW COMMISSION
PROPOSED NEW CHILD JUSTICE SYSTEM: COMMENTS
The South African Law Commission has approved a discussion paper containing preliminary recommendations and a draft Bill on a proposed new child justice system at its meeting on 27 November 1998. The discussion paper is published for purposes of eliciting comment on the Commission's proposals relating to a new structure to govern children under the age of 18 years who are accused of having committed offences.
In essence, the proposed system aims to ensure that children accused of less serious offences will be afforded the opportunity to pay their debts to society without obtaining a criminal record through a process know as diversion. Diversion it the referral of cases away from the criminal justice system to an approved programme or plan. The Commission therefore envisages a cohesive child justice system which strives to prevent children from entering deeper into the criminal justice process while holding them accountable for their actions by means of various diversion options and programmes. These options and programmes embody restorative justice principles, which focus on reconciliation and restitution rather than on retribution and punishment, and lay emphasis on compensation to the victim by the offender with the object of successfully reintegrating both victim and offender as productive members of safe communities. The proposed system does, however, provide for the criminal prosecution of children who are accused of serious or violent offences as well as those who repeatedly commit offences.. The system also allows for the secure containment of children who are assessed to be a danger to others.
The proposals are based on international human rights standards and constitutional principles. The proposed draft Bill contains a body of principles to guide those who will be tasked with the implementation of this legislation in the future.
The proposed system further aims to encourage a degree of specialisation in child justice practice. In so doing, the Commission is giving effect to a long standing call from Service providers and non-governmental organisations for a distinct and unique system of criminal justice that treats children differently, in a manner appropriate to their age and maturity, and which develops mechanisms and processes designed to achieve that goal. For instance, a specialised child justice court at the district court level, with increased sentencing jurisdiction so as to draw a wider range of cases within its ambit is proposed. Further, specialisation in relation to the role of the probation officer builds on practical developments in the field of child justice since 1994. It has become increasingly clear that probation officers will be pivotal to the future child justice system, and this notion accords with views expressed by policy-makers as well as with the views of probation workers concerning their own conceptualisation of their duties in a future child justice system.
Some degree of specialisation is also proposed in the area of legal representation (through a system of registration), as advocacy for children entails a heightened responsibility and commitment to serve the best interest of children, as well as an ability to communicate in a manner that a child can understand.
The proposed child justice system hinges on a new process which aims to address effectively the problems that have been experienced in the administration of child justice, particularly in relation to diversion and pre-trial release of children from custody. This is the insertion of the proposed preliminary inquiry as a compulsory pre-trial procedure presided over by a magistrate at district court level. The preliminary inquiry provides a formal step, prior to charge and plea, to maximise the use of diversion and to provide safeguards regarding the use of pre-trial detention.
The draft Bill finally aims to extend the range of sentencing options available to the proposed specialised child justice court and to other courts in which child offenders are tried, and to create mechanisms to ensure the effective monitoring of the legislation, both at district and national level.
The Commission's proposals strive to encompass a vision for, and define the characteristics of a coherent and self contained child justice system, as distinct from a series of procedural provisions which spell out powers and duties for various role-players who can nevertheless operate in isolation from one another.
The closing date for comments on the Commission's proposals is 31 March 1999. Interested persons, bodies or institutions who wish to submit comment may obtain a copy of the discussion paper from the Commission's offices at the 1 2th Floor, Sanlam Centre, corner of Andries and Pretorius Streets, Pretoria. The postal address is Private Bag X668, Pretoria, 0001 and the telephone number is (012) 322-6440. Enquiries should be addressed to Mrs P. Kotze.