1

Department of Social Department of Social Development (University of Cape Development (University of Cape

Town)Town)

submission to the Justice Portfolio submission to the Justice Portfolio Committee on the Child Justice Bill Committee on the Child Justice Bill

presented by presented by Thulane GxubaneThulane Gxubane

(Lecturer and Probation & Correctional (Lecturer and Probation & Correctional Practice Programme convener).Practice Programme convener).

2

INTRODUCTIONINTRODUCTION

The Department has a particular interest The Department has a particular interest in the matters relating to good probation in the matters relating to good probation practice which promotes proper practice which promotes proper management of children in conflict with management of children in conflict with the law and joins forces with advocacy and the law and joins forces with advocacy and lobby groups such as the Child Justice lobby groups such as the Child Justice Alliance in pursuit of this goal. Alliance in pursuit of this goal.

The Bill recognizes and accords probation The Bill recognizes and accords probation officers a central and prominent role in the officers a central and prominent role in the proposed child justice system. proposed child justice system.

3

Our submission focuses on the following Our submission focuses on the following aspects and sections of the Bill as aspects and sections of the Bill as pertaining to probation practice:pertaining to probation practice:

Assessment:Assessment: Definition and Purpose of Assessment, Definition and Purpose of Assessment, Child offenders suitable for Assessment,Child offenders suitable for Assessment, Age factor in Assessment, andAge factor in Assessment, and Assessment Procedures, Assessment Procedures, and and

Pre-sentence investigation Pre-sentence investigation reports.reports.

4

BackgroundBackground Developments occupation specific Developments occupation specific

research and training programmes for research and training programmes for probation practitioners which include:probation practitioners which include:

Post-graduate qualifications (Honours and Post-graduate qualifications (Honours and Masters degrees) in Probation and Masters degrees) in Probation and Correctional practice in 1997.Correctional practice in 1997.

In July 2003 tasked by the National In July 2003 tasked by the National Department of Social Development:Department of Social Development:

Established a S. A. Q. A. approved training Established a S. A. Q. A. approved training curriculum for Assistant Probation Officers curriculum for Assistant Probation Officers (A. P. Os.), and(A. P. Os.), and

5

Researched and provided training for probation Researched and provided training for probation officers in all provinces in South Africa in officers in all provinces in South Africa in aspects relevant to their daily practice,aspects relevant to their daily practice,

Numerous workshops, on subjects ranging from Numerous workshops, on subjects ranging from the psychology of the criminal court, legislation the psychology of the criminal court, legislation relevant to probation practice, the probation relevant to probation practice, the probation officer as an expert witness and restorative officer as an expert witness and restorative justice, to developing and implementing crime justice, to developing and implementing crime prevention programmes in disadvantaged prevention programmes in disadvantaged communities were presented. communities were presented.

6

1. Assessment1. Assessment

The Bill provides a narrow definition and The Bill provides a narrow definition and purpose of assessment. purpose of assessment.

Assessment is an important and Assessment is an important and fundamental component of practice fundamental component of practice particularly in working with troubled particularly in working with troubled children.children.

Propose an addition to the purpose of Propose an addition to the purpose of assessment to that provided in Ch 5, s 36 assessment to that provided in Ch 5, s 36 of the Bill and submit the definition as of the Bill and submit the definition as stipulated in the Probation Services Act No. stipulated in the Probation Services Act No. 116 of 1991 be adopted which states that:116 of 1991 be adopted which states that:

7

Assessment is: “a process of Assessment is: “a process of developmental assessment or developmental assessment or

evaluation of a person, the family evaluation of a person, the family circumstances of the person, the circumstances of the person, the

nature and circumstances surrounding nature and circumstances surrounding the alleged commission of an offence, the alleged commission of an offence, its impact on the victim, the attitude of its impact on the victim, the attitude of the alleged offender in relation to the the alleged offender in relation to the

offence and any other relevant factor”.offence and any other relevant factor”.

8

Types of AssessmentsTypes of Assessments

Determining where the child will be Determining where the child will be kept during the investigation process.kept during the investigation process.

Establishing the age of the child.Establishing the age of the child. Establishing the criminal capacity of Establishing the criminal capacity of

the child,the child, Suitability of the child for diversion,Suitability of the child for diversion, Suitability of a case for conversion to Suitability of a case for conversion to

a children’s court,a children’s court,

9

Developmental assessment of the child in Developmental assessment of the child in formulation of an Individual Development Plan or formulation of an Individual Development Plan or Care Plan of the child.Care Plan of the child.

Proper assessment is a complex process that can Proper assessment is a complex process that can be very time-consuming, and this can create be very time-consuming, and this can create difficulties given the realities of court rolls.difficulties given the realities of court rolls.

In light of the shortage of social workers and In light of the shortage of social workers and probation officers in South Africa, and in the best probation officers in South Africa, and in the best interest of the children we propose the extension interest of the children we propose the extension of certain types of assessments such as those that of certain types of assessments such as those that need to be conducted prior to preliminary enquiry need to be conducted prior to preliminary enquiry to “other suitably qualified persons as prescribed” .to “other suitably qualified persons as prescribed” .

10

Child offenders suitable for Child offenders suitable for AssessmentAssessment

Diversion may not be appropriate in certain Diversion may not be appropriate in certain cases, there are other factors that need to cases, there are other factors that need to be considered in the process of assessment.be considered in the process of assessment.

In view of the importance of these issues, it In view of the importance of these issues, it is our submission that is our submission that allall children must be children must be assessed and no groups of children, based assessed and no groups of children, based simply on the immediate nature of the simply on the immediate nature of the offence or age, should be excluded from offence or age, should be excluded from this.this.

Section 35 should thus be amended to make Section 35 should thus be amended to make provision for this.provision for this.

11

Age factor in AssessmentAge factor in Assessment

Assessment of a child offender helps to pick Assessment of a child offender helps to pick up those children whose chronological age up those children whose chronological age may not correspond with expected and may not correspond with expected and normal appropriate psychological and normal appropriate psychological and cognitive human development. cognitive human development.

In other words a child may be 14 years in In other words a child may be 14 years in chronological age but may be functioning at chronological age but may be functioning at a cognitive and psycho-social level of a 10 a cognitive and psycho-social level of a 10 year old.year old.

It is these types of children often vulnerable It is these types of children often vulnerable to abuse by adults to commit crimes.to abuse by adults to commit crimes.

12

Assessment ProceduresAssessment Procedures

The whole notion of assessment must thus The whole notion of assessment must thus be viewed as a process, rather than as a be viewed as a process, rather than as a single event.single event.

Sections 39 and 40 do not fully reflect this Sections 39 and 40 do not fully reflect this perspective. perspective.

Our proposal is that these sections be less Our proposal is that these sections be less prescriptive about who may attend prescriptive about who may attend assessment (39(3)), and that this matter assessment (39(3)), and that this matter be covered by the discretion already be covered by the discretion already afforded to the probation officer in section afforded to the probation officer in section 40(2). 40(2).

13

2. Pre-sentence investigation 2. Pre-sentence investigation reportsreports

The purpose of pre-sentence The purpose of pre-sentence investigations and reports isinvestigations and reports is to provide the to provide the court with adequate information on the court with adequate information on the offender as a person, to enable it to pass offender as a person, to enable it to pass an appropriate and effective sentence.an appropriate and effective sentence.

A probation officer is a professional A probation officer is a professional considered by the court of law as an considered by the court of law as an ‘expert witness’. ‘expert witness’.

The key elements of expertise are skill, The key elements of expertise are skill, knowledge and experienceknowledge and experience

14

Pre-sentence investigations and report writing Pre-sentence investigations and report writing requires knowledge in requires knowledge in theories and the objectives theories and the objectives of punishment, knowledge on the Criminal of punishment, knowledge on the Criminal Procedures Act that guide sentencing and a range Procedures Act that guide sentencing and a range of alternative sentencing options.of alternative sentencing options.

Ideally a PO or a person with post-graduate Ideally a PO or a person with post-graduate qualification in Probation and Correctional practice qualification in Probation and Correctional practice would be more suited for this task, however taking would be more suited for this task, however taking into account into account the shortage of probation officers in the shortage of probation officers in South Africa which often leads to unconstitutional South Africa which often leads to unconstitutional delays in the sentencing of convicted child delays in the sentencing of convicted child offenders, we therefore support the extension of offenders, we therefore support the extension of pre-sentence investigations duties to “other pre-sentence investigations duties to “other suitable person” as prescribed.suitable person” as prescribed.

15

Section 74 deals with all matters relating to Section 74 deals with all matters relating to pre-sentence reports. Section 74(2) sets one pre-sentence reports. Section 74(2) sets one calendar month as the maximum time calendar month as the maximum time allowed for the provision of a report. allowed for the provision of a report.

We accept the importance of completing We accept the importance of completing such reports as urgently as possible, it is such reports as urgently as possible, it is our contention that this formulation is our contention that this formulation is inadequate.inadequate.

Our proposal is that 4 weeks should remain Our proposal is that 4 weeks should remain in respect of children who are in detention in respect of children who are in detention or secure care, and that 8 weeks be allowed or secure care, and that 8 weeks be allowed in all other cases.in all other cases.