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10. MONITORING OF A NEW JUVENILE JUSTICE SYSTEM

Proposals

10.1 At present, appeal and review form the only method of control over juvenile sentencing. The present review criteria^[105] do not protect children sufficiently. Sentences of imprisonment imposed by longer serving magistrates, and short sentences imposed by other courts frequently escape High Court scrutiny. Monitors have found numerous cases of children serving prison sentences imposed as alternatives to paltry fines, which they cannot pay. This does not accord with the principles of detention as a measure of last resort.

10.2 In addition, sentences imposed by regional courts are not reviewable, nor are sentences where the accused was legally represented.

10.3 In principle, all custodial sentences imposed upon children should be reviewable. The present automatic review system is limited to convictions, and then only where certain sanctions have been imposed. It has already been suggested that the proposed expansion of diversion should also be subjected to regular review and monitoring.^[106] In addition, the piecemeal manner in which juvenile justice has functioned until now, with juvenile offenders being regulated by a range of legislative provisions in different acts, and kept in a range of different instutions, has led to suggestions that the entire proposed system should be monitored to ensure effective implementation of the underlying principles. Several international instruments also support monitoring, inspections and complaints mechanisms.^[107] Such a system could supplement the present system of automatic judicial review of cases where custodial sentences are imposed.

10.4 Various options can be described which singly or in combination would enhance effective implementation of the proposed legislation:

(a) A precedent for monitoring at the lower court level, in each magisterial division, is to be found in the assessment centre committees which were established in many jurisdictions in the Western Cape when pre-trial assessment of all juveniles was implemented in 1994.^[108] A similar committee was established in Durban, to assist in the pilot assessment and referral project there. The committees include at the moment representatives from the courts, welfare and the police, as well as relevant NGOs and organisations involved in diversion programmes such as NICRO. The Legal Aid Board is often also in attendance. The advantage of these committees, which meet monthly or every two months, is that local trends can be identified, blockages and difficulties ironed out, and they can form the basis for the introduction of new role players who have the potential to positively affect juvenile justice in that area. Examples would be the facilitation of community referrals as a diversion option, setting up of a family group conference scheme, finding safe houses for children who do not require pre-trial detention, but have no alternative accomodation, and the like.

(b) Provincial monitoring has been implemented through the provincial IMC structures in various provinces. Provincial monitoring is important as it allows for the monitoring of institutions in a province (as welfare-run institutions, such as places of safety, or in future, secure care facilities, are provincially managed). Thus low occupancy levels of places of safety can be identified, or cases where children have been admitted without the required assessment. Provincial monitoring as well as monitoring of individual prisons has also been the thrust of the IMC pilot project on monitoring of children awaiting trial in prison. Focussing on children in a particular prison may reveal problems which span various magisterial jurisdictions.

The proper collection of statistics at provincial level by the Safety and Security and Justice Departements would be useful indicators in the monitoring of the effectiveness of aspects of a juvenile justice system.^[109] They can also assist in planning for programme development.

The inter-sectoral provincial committees have possibly been less effective than orginally anticipated. They have no formal powers, and simply oversee trends. They cannot intervene to improve, change matters or investigate complaints.

Comment on the role envisaged for provincial inter sectoral comittees to monitor juvenile justice legislation, if any, is invited.

(c) A national monitoring body could be introduced to ensure effective implementation of the legislation. Several possibilities present themselves:

• A department of government, located in, for example, the department of Welfare or the department of Justice. This could be called "the juvenile justice office" or or other suitable name.^[110] It would have the task of monitoring and overseeing implementation of the legislation, as well as the collection of proper statistics. Since many issues in juvenile justice are intersectoral and depend on co-operation from a variety of role players from within different departments, the national office would, in order to fulfil a meaningful role, have to be granted sufficient powers as to permit effective operation.
• A juvenile justice office could be located outside the relevant departments involved in juvenile justice, such as within the Deputy-President’s office.
• An advisory council on juvenile justice could function independently of governement departments, and report to the Minister (of Justice, Welfare, etc). The council would, however, need to employ a secretariat to fulfil the research and implementation tasks that will arise in relation to the proposed legislation.
• The Draft Correctional Services Act, released for comment by the Department of Correctional Services in February 1997, proposes the concept of a Judicial Inspecorate. Headed by an inspecting Judge, functions include inspections of prisons, offices and other institutions concerned with community corrections, dealing with complaints (but not directly received complaints), reporting on inspections, holding enquiries, and reviewing specific correctional sanctions such as solitary confinement. It is proposed that this model may be suitable in the sphere of juvenile justice as well and could be extended to cover all aspects of the system. It has the obvious advantage of independence from specific government departments who will be tasked with implementation of the proposed new legislation, as well as the benefit of judicial seniority in the form of the appointment of a judge of the High Court to lead the office.

Comment is invited on the specific monitoring and implementation powers that would be assigned to such an office.

(d) Another option is to select certain key issues in the legislation worthy of special monitoring, and then to examine structures for those specific issues. One such issue could be children in institutions. The plight of children in institutions has not only been a key concern in South Africa until now, but the international rules also evidence particular concern for children deprived of their liberty. This option proposes that all children who have been placed in institutions by juvenile justice legislation (rather than care proceedings) should be monitored. The Child Care Act at present incorporates a provision relating to the inspection of institutions falling within the Child Care Act, but these are not mandatory or regular. The task of monitoring children in prison has at present been carried out by NGOs rather than by any official body. Educational institutions which receive children charged with or convicted of criminal offences, were the subject of the IMC report into places of safety, reform schools and schools of industry and it was found that human rights abuses were prevalent. Another key issue worthy of monitoring is diversion, with regard to which both the referral process and the content of the programme could be monitored.

The IMC recommended that, in fulfilment of Rule 72 of the United Nations Rules for Juveniles Deprived of their Liberty, a duly constituted independent authority should conduct regular inspections, including unannounced inspections, of all institutions where children from the juvenile justice system are sent.

It has been noted that, as inappropriate placements of children appear to occur throughout the current system, an effective inspectorate would need to be able to inspect all facilities in the child and youth care system including places of safety, reform schools, secure care facilities and schools of industry, whichever department they fall under. The inspectorate may need the power to recommend transfers/referrals back to court of children who have been inappropriately placed.

The advantage of this option is that sectoral approaches, which draw on the skills and resources of different groups of people could be achieved.^[111] However, the disadvantage would be that it perpetuates a piecemeal approach to juvenile justice, which has been shown to have had negative consequences in the past.

Comment on the monitoring and implementation model desired, and whether that should be legislatively provided for, is invited.

[105] See par 9.12.

[106] See par 7.13.

[107] For example Rules 72 to 78 of the International Rules for Juveniles Deprived of their Liberty.

[108] See J Sloth-Nielsen Juvenile Justice Review 1994 - 1995 1995 SACJ 331.

[109] See for example, the previously cited statistics on release of children, provided from the Western Cape.

[110] There are Australian precedents for this.

[111] For example, child care workers and social workers could be included in a monitoring team looking at children in residential facilities, whilst persons with expertise in diversion and related matters could be involved in monitoring diversion.