department of justice and constitutional development 13 march 2013

PRESENTATION TO THE PORTFOLIO AND SELECT PRESENTATION TO THE PORTFOLIO AND SELECT COMMITTEES ON WOMEN, COMMITTEES ON WOMEN, CHILDREN AND PEOPLE WITH CHILDREN AND PEOPLE WITH DISABILITIES: DISABILITIES: UNITED NATION COUNTRY REPORT ON THE

CONVENTION ON THE RIGHTS OF THE CHILD

DEPARTMENT OF JUSTICE AND DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENTCONSTITUTIONAL DEVELOPMENT

13 MARCH 201313 MARCH 2013

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Presentation outlines the following:

Background on the compilation of the UNCRC report

The Constitution

Relevant Articles of the CRC

Interventions, progressive achievements and limitations experienced by

DoJ&CD;

Capacity Building

Public Education and Awareness

Institutional Mechanisms to protect and promote the rights of children within

the JCPS Cluster

Challenges and Conclusion

PRESENTATION AT A GLANCE

South Africa signed and ratified the United National Convention on the Rights of the Child

(UNCRC) in June 1995.

Section 28 of the Constitution of the Republic of South Africa (the Constitution)

enumerates and entrenches the rights of children.

The inputs of the Department to the UNCRC Report reflect the progressive measures put

in place to achieve the incremental promotion and realisation of these rights.

Interim Task Team, chaired by Department of Women, Children and People with

Disabilities (DWCPD) , finalised the drafting of the NCRC Report

BACKGROUND: COMPILATION OF THE UNCRC REPORT

This submission highlights the Departmental approach to the protection and

promotion of the rights of children in compliance with the Constitution and the

UNCRC which include:

Measures (legislation, policies and programmes/interventions)

implemented to achieve the objectives of the section 28 of the

Constitution and the UNCRC.

On- going monitoring of the implementation of legislation (led by the

Department) that relates to the protection of the rights of children.

Intersectoral approach to strengthen measures implemented to protect

and promote the rights of children.

INTRODUCTION: COMPILATION OF THE UNCRC REPORT

ENABLING LEGAL FRAMEWORK: The Constitution...

In SA children enjoy the following constitutional protection:

Section 9: Equality;

Section 10: Human dignity;

Section 11: Life;

Section 12: Freedom and security of the person;

Section 28: Children;

Section 32: Access to information;

Section 33: Just administrative action;

Section 34: Access to courts;

Section 35: Arrested, detained and accused persons;

Section 38: Enforcement of rights.

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ENABLING LEGAL FRAMEWORK: INTERNATIONAL PROTOCOLS

Relevant International Instruments:

Hague Convention on the Civil Aspects of International Child Abduction;

Hague Convention on the Protection of Children and Co operation in Respect of

Inter-Country Adoption;

Optional Protocol to the Convention on the Rights of the Children on the

Involvement of Children in Armed Conflict;

Convention on the Worst Forms of Child Labour;

Optional Protocol on the Sale of Children, Child Prostitution and Child

Pornography

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Relevant Articles of the UNCRC

The mandate of the Department is limited to the implementation of the

following articles:

Article 3: The best interest of the child;

Article 16: Protection of privacy and protection of the image;

Article 17: Access to information from a diversity of sources and protection

from material harmful to the child’s wellbeing;

Article 21: Adoption, national and inter country;

Article 27: Recovery of maintenance for the child;Article 29 and 39:Abuse and neglect, including physical & psychological recovery

The Department provides a support to the other departments responsible for

the implementation of other Articles of the UNCRC.

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ARTICLE 3: The best interests of a child

s28(2) of the Constitution emphasises the paramount importance of the child’s best interests in every matter involving a child;

s7 of Children’s Act 38 of 2005 amplifies the concept of the best interests of a child, and has received recognition and further interpretation from a number of court decisions, e.g.AD and Another v DW and Others 2008(3) SA 183 (CC), where the court confirmed that it was in the best interests of a child to follow proper judicial procedures.

Other court decisions that embraced the principle of child’s best interest include:

S v M 2008 (3) 183 (CC);Matiso v Road Accident Fund 2001 (3) SA 1142, where the court recognized a customary adoption for the purposes of recognizing a dependant’s claim on the ground that this was in the best interests of the child. 8

ARTICLE 3: The best interests of a child

The Children’s Act, 2005, in promoting the best interests of a child, further gives powers and duties to Family Advocates to: Conduct mandatory mediations in cases of fathers of children born out of wedlock;

Facilitate, draft, register, rescind and/ or amend parental plans;

Facilitate parental responsibilities and rights agreements;

Provide specified services to the Children’s Courts, which include the facilitation of family group conferences and lay fora.

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Family Advocates & Family Counsellors

PROVINCE No of Family Advocates

No of Family Counsellors

Gauteng 18 15

North West 04 06

NC 05 05

WC 12 13

KZN 14 18

Limpopo 04 04

FS 04 07

Mpumalanga 04 05

EC 15 18

TOTAL = 80 91

Children’s Act, 2005:

s12 protects the privacy of girls that have undergone virginity

testing by preventing disclosure of results thereof without the

consent of the child;

s13(1)(d): guarantees the privacy of a child’s health status,

e.g. HIV/AIDS

Child Justice Act, 2008

S63(5) prohibits media or any other persons from attending

court proceedings involving a child, unless application is

granted by the court;

Domestic Violence Act 116 of 2008 s11: restricts attendance of proceedings and prohibits the disclosure of the identity of

parties and the publication of certain information 11

ARTICLE 16: Protection of privacy & protection of the image

Criminal Procedure Act 51 of 1977

s170 (A) protects the privacy of child witnesses by allowing

them to testify in camera through the assistance of an

intermediary. The child testifies in a private Testifying Room

that is linked to the courtroom through CCTV/ One-Way Mirror.

Currently, our courts are capacitated by 92 ad hoc

intermediaries; 156 contract intermediaries, and 210 social

workers from DSD & NGO’s;

Established 220 Testifying Rooms12

ARTICLE 16: Protection of privacy & protection of the image

Films and Publications Act, 2004 prohibits & criminalizes

the production or distribution of child pornography;

Criminal Law (Sexual Offences and Related Matters)

Amendment Act, 2007: s19 creates a punishable offence of

‘Exposure or display of or causing exposure or display of child

pornography or pornography to children’;

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ARTICLE 17: Access to information from a diversity of sources & protection from material harmful to the child

To ensure access to information by children, the Department

developed:

A Children’s Act webpage to communicate information in a

child-friendly manner;

A Child’s FAQ’s Booklet on Children’s Act;

Brailed FAQ’s Booklet on Children’s Act, and launched it in

2012 at Zamokuhle Special School for the blind in the EC

A Child’s Information Booklet on Child Justice Act, 200814

ARTICLE 17: Access to information from a diversity of sources & protection from material harmful to the child

Children’s Act, 2005 and its Regulations:

Detail procedures to be followed at all stages of adoption

process;

Require specific accreditation of those involve in adoption

process;

Establish a register on adoptable children and prospective

adoptive parents for matching and placement purposes.

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ARTICLE 21: Adoption, National & Intercountry

Maintenance Act 99 of 1998:

S15 of the Act enforces the common law duty of the parents to

support their children. This includes the provision of food,

clothing, accommodation, medical care & education;

S26 provides for the enforcement of maintenance orders by:

Execution against property

Attachment of emoluments

Attachment of any debt;

S40 provides for the recovery of arrear maintenance with

interest.

Children’s Act, 2005 reinforces this obligation by allowing

maintenance arrangements as a consideration in the

development of parenting plans.

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ARTICLE 27: Recovery of Maintenance for the child

Reciprocal Enforcement of Maintenance Orders Act, 1963

grants a children’s court power to issue a provisional

contribution order against a respondent resident in any

country.

For countries in Africa, this order is issued in terms of the

Reciprocal Enforcement of Maintenance Orders, 1989.

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Project Kha Ri Unde: In 2011, the Department initiated a 3

year project, mainly to reduce the turnaround times in

maintenance services, & the following are the achievements

recorded thus far at 9 pilot sites:

Introduced queue management that reduced waiting time to

2hrs in most pilot courts;

Introduced Mediation Services to cut down the process of

issuing of maintenance orders to less than 90 days;

Introduced standardized Maintenance Signage System to

avoid wrong queuing;

Developed brailed Maintenance Info Booklet to ensure access

to justice to blind court users 18


Project Kha Ri Unde Pilot Courts: The Department further

increased human capacity for Maintenance to:

10 x Maintenance Complaints Managers (MCM) to deal mainly with

complaints, especially the ones received through Presidential Hotline

(i.e. 1 x MCM in each region + 1 x based @ national office). These

appointments were finalized in Dec 12;

18 x data capturers to improve filing system & reduce file processing

backlogs at pilot sites

140 x permanent maintenance officers (MO’s); 32 x contract MO’s

201 x permanent maintenance investigators (MI’s); 32 contract MI’s

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Project Kha Ri Unde Pilot Courts:

JHB Family Court, Gauteng

KwaMhlanga, Mpumalanga

East London, EC

Kimberly, NC

Botshabelo, FS

Emlazi, KZN

Philippi, WC

Thohoyandou, Limpopo

Moretele, NW

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Children’s Act, 2005

Provides an expanded range of protective measures for

children, including the mandatory reporting of physical and

sexual abuse and deliberate neglect;

Establishes a Child Protection Register (CPR);

Criminal Law (Criminal Law and Related Matters)

Amendment Act (SORMAA), 2007

Ch 3 creates punishable sexual offences against children; Establishes a National Register for Sex Offenders (NRSO).

From 01 April 12 to 31 Jan 13, the electronic registrations of convicted sex offenders showed a dramatic increase from 2 340 to 3100. This is a 72% increase achieved slightly over the 3rd quarter of financial year 2012/2013

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ARTICLE 37: Abuse and neglect, including physical & psychological recovery

Criminal Law (Criminal Law and Related Matters)

Amendment Act, 2007

Introduces compulsory HIV testing of alleged sex offenders;

Provides services for victims relating to Post Exposure

Prophylaxis (PEP)

Creates an offence of trafficking of persons (including

children) for sexual purposes;

Domestic Violence Act 116 of 1998

Allows children to apply for Protection Order with or without

assistance of parent or guardian;

Allows any child in the care of the complainant to apply for a protection order.

Such child will be considered as (an indirect) complainant. 22


Domestic Violence Act 116 of 1998

Allows applications to be brought to court on behalf of a minor

complainant by any person who has a material interest in the

well-being of such a minor (incl. counsellor, health service

provider, SAPS, social worker, teacher), without the written

consent of such a minor.

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Capacity BuildingPersonnel No trained Period Training

Provided

Prosecutors 912 (30 sessions) 2009-2011 Child Justice Act

Judiciary, probation officers, SAPS, Legal Aid SA, DoE, DHA, DCS (intersectoral training by DoJCD

306 211 Child Justice Act

Child Justice Clerks 891 2010-2011 Child Justice Act

Prosecutors 993 (38 sessions) 2008-2012 Sexual Offences

Magistrates 402 2007-2010 Sexual Offences(training transferred to SAJEI)

TCC’s staff 483 (20 sessions) 2011-2012 Integrated training on Sexual Offences

Capacity BuildingPersonnel No trained Period Training

Provided

Prosecutors 213 (10 sessions) 2010-2012 Domestic Violence

Clerks of Domestic Violence

455 2010-2012 Domestic Violence

Prosecutors 422 2010-2012 Children’s Act

Family Advocates, Family Assts, Family Counsellors, Legal Aid practitioners, Traditional Leaders; State Attorneys, Family law clerks

117 2010 Children’s Act

Children’s Court Clerks

582 2010-2012 Children’s Act

Magistrates 195 2009-2010 Children’s Act

Held intersectoral radio talk shows on Child Justice Act and Children’s Act, and

reached all provinces.

Held Ndabezitha Izimbizo campaign for rural men and boys on Domestic

Violence in 8 provinces, and reached 3 200 people (2010-2012)

Developed brailed Domestic Violence Booklets, and circulated to all courts

Launched brailed FAQ’s on Children’s Act at Zamokuhle Special School, and

reached about 500 blind children (2012). During the 2012 National Mandela

Day, the Department staff went back to this school to donate 500 school

shoes to learners. Launched brailed Maintenance Info Booklet at Setotoawae Special School

and Senwarwabane (Helen France Special School), Limpopo, and reached 558 children (2012)

Held ‘Stop Teenage Pregnancy Campaign’ at 262 rural schools of Limpopo where high rates of teenage pregnancies were previously reported, and reached 58 825 teenage-learners (2012) 26

PUBLIC EDUCATION & AWARENESS CAMPAIGN

Information Booklets on the Children’s Act, 2005; the Child Justice Act, 2008;

the Domestic Violence Act, 1998; Maintenance Act, 1998 are published in all

the eleven official languages, and also in brail to increase access to justice

A Guide for Frontline Officers on the Management of Human Trafficking

booklet was developed, including information on how children who are victims

of trafficking in persons must be handled.

Research on the cellular phone-game to educate children about SORMAA was

conducted during 2012 with the purpose of determining whether this is a

viable option to use as an education and communication tool for children.

The response is positive and the recommendations will be taken forward in

the new financial year.27

Education and Awareness Campaigns:

Public Education Campaigns on Trafficking in Persons targeted communities in Mpumalanga where there are five borders which are high risk for trafficking including trafficking of children were from December and these are on-going activities. Target groups include schools and families which are reached through door-to-door campaigns.

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Public Education and Awareness Campaigns (Continued):

The Department chairs various structures to ensure coordinated planning,

implementation and monitoring of legislation, policies and interventions

relating to the protection and promotion of the rights of children: These

include the:-

DG’s Intersectoral Committee on Child Justice (DG ISCCJ) which includes

DG’s/ Heads of relevant Government Departments within the JCPS cluster (i.e.

the National Prosecution Authority, South African Police Service, Legal Aid

South Africa and the department of Correctional Services, Health, Social

Development and Education), and the Department of Women, Children and

People with Disabilities, etc

National Operational ISCCJ which is responsible for the national operational

implementation of the Child Justice. This structure also gives technical support

to the DG’s ISSCJ.

INTERSECTORAL APPROACH TO STRENGTHEN THEPROTECTION & PROMOTION OF RIGHTS OF CHILDREN

Intersectoral Committee on the management of Sexual

Offences (DG ISC): consisting of the heads of the various role

player departments and responsible for the management of the

implementation of the SORMAA, and assisting the Minister to report

to Parliament on the interdepartmental performance annually.

National Operational Intersectoral Committee on the management of

sexual offences (National OISC): which is a structure responsible for

coordinating the intersectoral implementation of the SORMAA and reporting to

the DG-ISC.

Domestic Violence Intersectoral Committee (DVIC) chaired by DoJ&CD

to monitor the national implementation of the Domestic Violence Act,

including abuse of children.


National Intersectoral Committee on Combating Trafficking in

Persons (the NICC: TIP): consisting of the various departments /

institutions whose roles and responsibilities includes the combating

and prevention of trafficking, including trafficking of children.

Inter-departmental Committee on the Services Charter for Victims of

Crime (Victims Charter IDC): consists of various JCPS

departments/institutions and whose mandate includes the promotion and

protection of the rights of victims of crime, including child victims of crime.

National Committee on Restorative Justice: which focuses on

development and implementation of strategies and policies on alternative

sentences including the diversion for child offenders.


Intra-departmental Committees

The Department also established a number of intra-departmental structures

which coordinates internal stakeholders to strengthen the implementation of

legislation. In identifying the various needs of the beneficiaries of the legislation,

children are always identified as a primary beneficiary with specific needs. The

following forums are established for the effective implementation of legislation:

National Children’s Act Working Group: chaired by the Department

and consisting of various representatives from the Judiciary, Family

Advocates, Legal Aid SA and Justice College. This forum shares

information on the implementation of the Children’s Act, 2005 and the

Children’s Courts.

INSTITUTIONAL MECHANISMS RESPONSIBLE FOR THE PROTECTION AND PROMOTION OF RIGHTS OFCHILDREN

Intra-departmental Committee on the

Implementation of the SORMAA: consisting of

the different internal role players whose

responsibilities impacts on the effective

implementation of the SORMAA and the Sexual

Offences NPF including the representatives from

the Regional Offices of the Department, Court

Operations, Human Resources units, Facilities

unit, National Operations Centre, International

Relations etc.

INSTITUTIONAL MECHANISMS RESPONSIBLE FOR THE PROTECTION AND PROMOTION OF RIGHTS OFCHILDREN

MEASURES (POLICIES AND PROGRAMMES AND INTERVENTIONS) TO PROTECT AND PROMOTE THE RIGHTS OF CHILDREN

The Department participates in other Intersectoral and Multi-disciplinary forums

including those outside of the JCPS cluster whose functions include the

protection of the rights of children.

The Department participated in the Task Team which contributed in the compilation of this

first Country Report co-ordinated by the DWCPD.

National Child Care and Protection Forum: chaired by the National Department of

Social Development to promote the implementation and monitoring of the Children’s Act

which also domesticates the CRC.

Child Labour Programme of Action for South Africa Committee: chaired by the

Department of Labour whose mandate is to prevent commercial sexual, labour and

trafficking exploitation of children.

Human Trafficking Task Teams (the HTT): which are coordinated and chaired by the

National Prosecution Authority. In some of the provinces the Department co-chairs the

HTTs or provides coordination support to the National Prosecution Authority.

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Reduction of the rate of diversion of children in terms of the Child Justice Act;

Non-funding or inadequate funding for NGO’s that were or are assisting courts with the execution of non-custodial sentencing programmes for children in conflict with law;

The need to merge the National Child Protection Register with the NRSO

The need to amend SORMAA to create an enabling provision for the re-establishment of Sexual Offences Courts (to improve response to sexual violence perpetrated against children) Improper costing of legislation

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CHALLENGES

There is a need to bridge the gap between legislation and implementation so as to achieve significant and impactful outcomes in the protection and promotion of the rights of children. , However, without the intersectoral response and prevention, as well as the allocation of dedicated budget, this goal cannot be achieved

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CONCLUSION:

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THANK YOU

department of justice and constitutional development 13 march 2013

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