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Listen to thisJOHN: Just under two years ago, in July 2001, we last looked in this programme at the question of juvenile justice and the proposals then made by a Project Committee of the South African Law Commission for an overhaul of the criminal justice system as it applies to juveniles. It was hoped then that by the end of 2001 draft legislation would be before Parliament. Well, the timetable has been stretched somewhat, but in mid 2003 there is indeed a Child Justice Bill in Parliament, and that's our focus in tonight's Youth Day edition of The Law Report".
Ann Skelton is the Project Co-ordinator of the Child Justice Project. It's a project of the Department of Justice and Constitutional Development, with technical support from the United Nations Development Programme. She was also the Chair of the Law Commission Project Committee which produced a draft Child Justice Bill for the government's consideration. She joins me on the programme tonight, along with Conrad Barberton of Cornerstone Economic Research. He's a consultant economist, and his relevance to the discussion will become apparent as we go along.
Ann, it's nearly two years since we last spoke. Why the delay?
ANN: Well, I think part of that is just the nature of the way in which Bills move from the Law Commission to Parliament, and that is that they have to go through a process of being looked at by State law advisers. What's also been part of the issue with regard to the Child Justice Bill is that for the first time we've really made a serious effort at being fully prepared for the implementation of that Bill. Quite often Bills get passed, and only then people start thinking about implementation. But we've tried to do that very differently here, and the result of that would be that although there may have been a delay between the Law Commission and the hearing of the Bill by Parliament, there should be no delay between the Bill being passed and its implementation.
JOHN: And the actual status of the Bill in Parliament now is...?
ANN: It's been through one reading by the Portfolio Committee. They're still busy with it. So we're still expecting that it will be passed sometime before the end of this year.
JOHN: Just remind us briefly... the Bill sets out to do what?
ANN: The Bill provides a separate set of rules for the way in which we take children through the criminal justice system. At the moment they go through it in terms of the Criminal Procedure Act with very few special provisions for children. This Bill will ensure that from when a child is arrested a very different approach is followed in the first 48 hours, focusing on a preliminary enquiry. A child will be assessed, and then taken to a preliminary enquiry, at which a magistrate presides; the prosecutor will be present, a social worker, and so on. And there a decision is made whether this child really needs to go through the criminal justice system or whether they could be diverted to other programmes through which they could be held accountable and be taught valuable lessons but without having to actually come into contact with the damaging effects of the criminal justice system. And they also avoid a criminal record.
JOHN: That preliminary enquiry is partly an assessment of the child in the circumstances and partly, presumably, some sort of fact-finding exercise: What did he or she do?"
ANN: Well, in order to be considered for diversion a child has to acknowledge responsibility, so one of the things the preliminary enquiry will do is to check that the child is acknowledging responsibility. If he or she is, then diversion is a possibility: if not, then a trial would have to ensue.
Also, of course, if children are charged with serious or violent offences then diversion would not be possible, because the demands of the safety of the community provides that in those instances we would have to take children through trial and sentencing. But at the sentencing stage, again, there are many more options for doing creative and useful things with children rather than just imprisoning them which, as I think we all know, should be avoided unless one really is dealing with a young person who's such a danger to society that he or she would have to be locked up.
JOHN: And the Bill presumably will also deal with children's rights, and the right to legal representation where necessary, that kind of thing?
ANN: Yes, it does. And another important thing it does is it raises the minimum age of criminal capacity from 7 to 10, so that in future it will not be possible to prosecute children under the age of 10, although there are other measures that could be taken to make sure that the family circumstances are looked into, and that the child is put on the right track.
JOHN: What about victims' interests?
ANN: Yes, victims' interests are recorded and made important in this Bill. Because one of the diversion options and sentencing options involves an opportunity for the victim to come face to face with the offender and actually for compensation to be paid or for apologies to be made. These are called restorative justice options, and that is a route that one can go. Although, of course, this would only be done if victims were comfortable with it, and if it was what they wanted ...
JOHN: Now, you've alluded to this already but it is often said, isn't it, that we have a Rolls Royce constitution and pretty much the same quality of laws in all sorts of areas, but we do have insufficient capacity, often, in this country and maybe that is, well, I don't know about particularly so but certainly so of the criminal justice system which, by many people, is perceived to be leaking somewhat, almost in tatters.
ANN: Yes. I think that is obviously true. And one needs to meet that challenge when looking at new laws. It's obviously no good to come up with a Rolls Royce solution as you put it that isn't going to work and isn't going to fit. And I think one can safely say that in the law drafting process here that really was factored in and taken into consideration. On the one hand, obviously we wanted to come up with new ideas and new approaches, which sometimes does involve having more probation officers or more diversion programmes, so to a certain extent there's an acceptance that government will need to spend in these areas. But at the same time, if you look at the overall focus of the Bill it creates a more efficient process for taking children through the criminal justice system, and therefore, as we'll hear later in the programme from Conrad, potentially it can actually save money and save time so that it's actually easier to do than the current system.
JOHN: Well, suppose you explain to us what Conrad's input in this is.
ANN: When we were at the Law Commission we realised that the Justice Portfolio Committee had become increasingly aware of the fact that passing legislation where there wasn't a clear implementation plan or budget was something they were not prepared to do in the future. So we knew that if the Child Justice Bill was going to succeed we would need to be very focused on explaining how it was going to be able to be implemented and whether it was affordable and so on. And so at that point we got in touch with Conrad and he, together with some colleagues, did a kind of cost-benefit analysis, and he'll explain that in more detail. But basically that was to look at whether or not what we were proposing in the Bill was financially viable, and how it would work. And, in fact, recommendations that he made at that stage had a bearing on the final draft of the Bill, because we actually made some changes to the Bill arising from his suggestions and recommendations.
It then became necessary, later, when the Bill was going through the executive arm of government, before it got to Parliament, for government to really become much more involved in understanding what the implementation implications of this Bill were, and indeed ensuring that there would be a budget in place to do what was needed. So in order to co-ordinate that process of government coming up with its budget and implementation plan Conrad was approached again by the Child Justice Project, and together Conrad and I co-ordinated that process and provided a lot of technical support to government whilst they were developing their budgeting and implementation plan.
JOHN: Well, there is a document which has been formulated which accompanies the Bill through Parliament, and it clearly has had participation from various agencies representing the police, the prosecution services, legal aid, the correction services people, social welfare, education at national and provincial level. Can you take us, fairly briskly, through the process? You're a consultant economist, I gather, Conrad. You were asked to presumably show that Plan A, which was on the table, might actually be attractive to the government rather than Plan X, which was in operation at the moment ...
CONRAD: Well, yes, the ultimate effect is that one wants to establish what is the cost implication of the Bill going to be. So we looked at the two options, which was the existing system and given its inefficiencies it isn't very attractive and the new system, and sought to compare those two systems with each other by modelling them on a spreadsheet model. And that involves gathering an enormous amount of data on how each of the systems are going to work, and then feeding all that data, in some kind of ordered format, into the model and calculating what the costs of each of the options were.
What the model showed or what our calculations showed is that the proposals that are set out in the Child Justice Bill are likely to save government money at the end of the system. In other words, because we're not sending children to jail and incurring the costs of incarceration in the new system there are going to be substantial savings in that area. On the other hand, the costing showed that the new model the new system of child justice is going to be more expensive up front. This is because of the introduction of the preliminary enquiry, the necessity to transport children backwards and forwards from the police to social welfare offices, to the preliminary enquiry, to places of safety. And that, on balance, those two costs the savings and the extra expenditures would equal each other, more or less.
JOHN: And these are in rands-and-cents terms? ... I presume Ann would argue that there's another benefit, which would be a social benefit.
CONRAD: Yes. And those we didn't cost, because many of those are very difficult to cost, and they're intangible in nature. If one's a purist, with a sort of cost-benefit analysis approach, one argues that those kinds of benefit can be monetised. I'm not so sure about that. So I tend to stick to calculating the rands-and-cents of legislation.
JOHN: I wonder if, between you, you could take us through what the situation is as it is now and the situation as it is proposed to be under the Child Justice Bill, and perhaps you could highlight on the way where things will be more expensive and where savings may or may not be made. Is it possible, first, Ann, to take a representative case which would serve to illustrate?
ANN: Yes, I think so. Let's presume that a child is arrested on a housebreaking charge. Such a child would be inclined to be held in police cells for the first 48 hours in the current system. It's quite likely that not much would be done to find out about the background circumstances of the case, and in all likelihood when the child appears in court quite regularly the parents have not been notified. This obviously depends on the child's background, but there are many children who are sort of living in loose arrangements with their parents, sometimes living in the city, sometimes in a township, for example. So it's quite common that we find children appearing in court and the parents are not there. This then means that we cannot release them into the care of their parents or guardians at court, and they tend to get remanded to prison cells to await a further period of time.
Now, quite often also at this stage the police are not ready with their investigation, and so it may take a few more weeks while they're investigating it. And all this time the child is sitting in prison cells, at vast cost, and also in extreme danger to the child. At some point then a decision is made by the prosecutor, often some weeks down the line after the arrest, that perhaps this case is one that might have been able to be diverted. But in many places in the country diversion is not even being considered because it isn't part of our law. It is done in some areas through co-operative prosecutors and open-minded officials who are trying it out as an experiment, but the Child Justice Bill will make it actually part of the law in that it should be considered in a range of cases.
JOHN: Sorry... Diversion would happen presumably with the co-operation of some sort of NGO or people like NICRO, that sort of thing?
ANN: That's right. The probation services are the government agency that must make sure that there will be sufficient diversion programmes available but they do that very much in partnership with non-governmental organisations. So again in the current case the case may drag on for very long periods of time. The child may or may not be legally represented. Ultimately the child may be convicted and then wait some period of time before a decision about sentence is made, and then once the sentence has been passed the child may well end up in a custodial setting again. Again a very expensive option and again one which is very unlikely to produce a young person that is going to grow into a responsible adult citizen.
So that really, in a nutshell, is where the problems are in the current system. And what the Child Justice Bill aims to do is to really focus a great deal of attention in the early stages after arrest. In other words, also giving police other options. Instead of arresting children, putting them in the police van, taking them to the police station, they can actually take that child home, and release them on a written warning to appear in court, and their parents then bring them back to court on the appropriate day. This avoids them being in custody at all.
In more serious cases they may have to bring them to the police station but then, by the first appearance, they will have been assessed by a probation officer. And this probation officer's pre-appearance report will look at whether or not this child is the sort of candidate that would be suitable for diversion and, if not, would also look at where the child should stay during the trial. If the trial is going to go on, could he or she not be released to go back home and stay there, or what other options there might be besides imprisonment, for example.
And at the preliminary enquiry which happens within 48 hours of the arrest all minds around the table are focused on What can we do with this child? Is it possible to do something other than take him or her through the criminal justice system?" And if the child is indeed diverted out then obviously you have enormous time and cost savings because of the fact that that child is no longer in the criminal justice system. But you also have, clearly, human rights benefits for that child as well, and less damage done to that child, which has a direct consequence for society.
If the child does go through the criminal justice system, the Child Justice Bill will allow for a speedier process, remembering that a lot of the flotsam and jetsam will have been got out of the system so the prosecutors can concentrate on more serious cases and complete trials more speedily. And there are some protections built in. Children who go to trial will, in most cases, have legal representatives paid for by the State, if necessary, who will hopefully also apply some pressure to finalise the cases quickly. And then, when it comes to sentencing, instead of the knee-jerk reaction or response of imprisonment, again there are a range of options that are more cost-effective and better for children.
JOHN: Okay, so that's the Rolls Royce. Just show us, Conrad, where the extra costs come in and where the savings are. It sounds like more police work, for a start, and more work for probation officers, for a start.
CONRAD: Yes, those are two of the important costs. Police are going to have to take responsibility for transporting children from the place of arrest to their parents' homes, or to the probation officers. That is something they do not currently do, and that will be an extra expense for SAPS (South African Police Services). The number of probation officers that are required for the system is fairly substantial, and the Departments of Social Development at a provincial level are already beginning to appoint new probation officers in order to take up the responsibility.
Then the additional costs of the preliminary enquiry need to be factored in because there you have the prosecutor, a probation officer, a presiding officer and court officials. But those can be regarded as offsetting the savings that one makes in the trial process, because it's a fairly rapid process; they don't follow the same rules of evidence and interrogation, and a large number of cases that currently go through to trial would be diverted at that stage. So on balance the preliminary enquiry offsets the savings that would be made on the trial process.
JOHN: What about diversion options?
CONRAD: Diversion options are going to be expensive, relatively, to what is done at present. It's estimated that currently about 8 million rand is spent on diversions, and in future that is going to have to increase to about 40 or maybe 50 million rand. But if one compares the cost of diversion to the cost of incarceration it's chalk and cheese. Incarceration currently costs about 250 million rand...
JOHN: For children?
CONRAD: Yes, for children. And that is compared to 40 million rand for diversion. In addition, if one compares the number of children that are incarcerated for 250 million rand, it's maybe 12 000 children. If one compares the number of children that go through diversion, it's about 48 000 children per year that would be paid for by the 40 million rand. At the moment there's some dispute on the numbers, but it's between 18 000 and 30 000 children going through diversion at the moment.
JOHN: Your model presumably takes account of the needs of the whole country, and presumably is not based upon a very well funded magisterial district which you then simply spread out all over the map, nor have you taken the least funded magisterial district.
CONRAD: Well, when the original costing was done let's call it the cost-effectiveness analysis we divided the country up according to the magisterial districts: the urban, metropolitan and rural magisterial districts and tried to identify what the costs were for each of those groups of magisterial districts. In the budgeting exercise that the departments have undertaken in the last year that kind of finessing wasn't done, but they worked according to workloads for different magistrates and different staff members involved in the system. So it's not just extrapolating a single magisterial district for the whole country.
JOHN: The budget and implementation document which presumably Parliament is seized with to persuade them that this is a good thing all round takes what sort of period in view? Is it a three-year thing, or a five-year thing, or what?
CONRAD: Well, it looks at the three-year MTEF (Medium Term Expenditure Framework) cycle, which is the period of time that government budgets cover, so it looks at the implementation of the Bill in its first three years. For most areas of the Bill that enables the government to arrive at full implementation. The one area where that does not happen is in the Departments of Social Development, where most of the provinces achieve about 90% implementation over those three years.
JOHN: What has been the response, Ann, from the various inter-sectoral players, the police and the prosecution services and the others we mentioned earlier? Some of them are going to have, as we've said, more work to do, of a different kind: others are going to have to appoint new staff; others again perhaps are going to be saved some work.
ANN: I think there's generally a very good attitude towards doing the work that is needed. Probably the Department of Social Development is the department who has the biggest financial and workload impact arising from this Bill. Whilst they are very positive about that, and believe strongly that they will be in a position to deliver, they're certainly the department that's going to struggle the most to make sure they have enough probation officers, enough secure care facilities, enough diversion options. And I think it is going to be quite a long haul and a difficult process for them.
The budgeting process itself was fascinating in that it brought together people in the departments who normally deal with budgets with people in the departments who normally deal with line function, as they call it, and in some instances we were actually forging relationships between these people that hadn't existed before. So I do believe we've laid a framework and a groundwork for the departments being able to plan much better in the future in order to achieve what they need to. Quite often I think departments embark on trying to implement legislation with very little real planning on what they have to do. Here I think at least the plan is there. And, of course, what we've done and this document does do is it sets up indicators. We now know what the Department of Social Development has forecast for itself or promised to itself that it will achieve over the MTEF cycle, and therefore if that is not achieved questions can obviously be asked.
JOHN: So this is, in a sense, halfway to monitoring the success of it?
ANN: That's right.
CONRAD: Yes. Within government the funding cycle takes probably 18 months for you to get your first funding for the implementation of any new policy, and thereafter it ratchets up. So that's one of the advantages with having all this information available before the Bill goes to Parliament, is that one can already introduce it into that 18-month cycle so that when the Bill is passed the money is available.
JOHN: It occurs to me that I have neglected to ask you... Bottom line across all these different sectors: how much saving, how much extra expenditure and what's the difference between the two?
CONRAD: When we're looking at what the expenditure of departments is currently on the child justice system we're looking at about 300 million rand, give or take 10 or 20 million rand. It's not a very precise calculation, simply because one doesn't have very precise figures when one's working at that level of aggregation. What we're looking at is that the Bill's implementation will cost an extra 100 million rand. So the implementation of the Bill will cost 100 million rand over and above the 300 million rand. That's in the first year. By the third year it will cost an extra 200 million rand. So in total the implementation of the Bill will cost about half a billion in total, including the increase required by the new Bill.
JOHN: And that takes account of the various savings that you've made somewhere along the line?
CONRAD: Yes. Incidentally, this is going to become, let's say, standard practice, that costing of this nature has to be done for all Bills that have implications for the provinces. This is terms of the Public Finance Management Act section 35, which is specifically designed to avoid unfunded mandates. So the Child Justice Bill is the first one really to comply with this provision in the Public Finance Management Act. And Parliament, having seen the kind of information that can be made available, I expect is going to insist that other Bills are costed in a similar way.
JOHN: My thanks this evening to Conrad Barberton, who's a consultant economist from Cornerstone Economic Research, and also to Ann Skelton of the Child Justice Project.
This feature: A transcript of The Law Report which was
broadcast on Youth Day in South Africa, Monday 16 June, on SAfm 104-107,
published with permission.
