Speech by Minister Jeff Radebe, Minister of Justice and Constitutional Development, on the occasion of the Imbizo Week in Matlosana, North West, 11 June 2013
“Working together for youth development and a drug free South Africa”
Deputy Minister of Justice and Constitutional Development Andries Nel;
Mayor of the Matlosana Municipality;
Councilors from the Matlosana Municipality;
Representatives from the Matlosana Magistrates Court,
Representatives from various youth institutions such as the NYDA;
Officials from the Department of Justice and other National Departments;
Members of the Community of Matlosana;
Ladies and Gentlemen
Allow me to express my profound gratitude to be here today during this very important Imbizo, the sole purpose which is to have a conversation with the people of Matlosana around our collective endeavor to ensure youth development and a drug free South Africa.
Of course there are many other challenges facing our country that we attend to on a continuous basis, however we have chosen this day to dedicate our efforts in attending to the challenges facing the youth of our country.
All over the world, nations pride themselves with their youth as they are drivers of development particularly in the various arts as well as in sports. There is no doubt that if the youth of our country are to take this country forward, they must demonstrate their own leadership skills as young people in every facet of their development potential.
As the ruling party, we have acknowledged that denial of education to the youth was the basis not only to sideline and oppress the youth but also to ensure that the black population as a whole is denied its rightful place in our country’s development.
Young people such as Anton Muziwakhe Lembede, Nelson Rolihlahla Mandela, Oliver Reginald Tambo, Walter Sisulu, AP Mda, Robert Sobukwe, Dilizintaba Mji and many others, convened at the Bantu Men’s Social Centre in Johannesburg in 1944 to found the ANC Youth League as a platform to spearhead their own role in the struggle for freedom and democracy. Years later, in 1976, the youth of our country braved the apartheid security forces to fight for freedom and democracy, by demanding that Afrikaans ceases to be the sole medium of instruction at schools. The 1980s saw yet another generation of brave young people, whose struggle credentials prompted the then ANC President OR Tambo, to declare them as “young lions”.
Today as we convene here in Matlosana, we should probe the question of whether or not the youth of our country have fulfilled Frantz Fanon’s clarion call that, “Each generation must discover its mission, fulfill it or betray it, in relative opacity.” As government, we have promulgated various acts, previously giving rise to the Umsobomvu Youth Fund and the National Youth Commission, which have since been merged to form the National Youth Development Agency. We have allocated funds to these structures, precisely because we believe that the youth must not be impeded as, in Frantz Fanon’s words, they attempt to discover their own mission. And we have full confidence that in as much as the generation of Nelson Mandela that established the ANC Youth League in the 1940’s as well as Solomon Kalushi Mahlangu’s generation of 1976 did not betray the struggle, that the youth of today will too not betray the struggle to assert their own development. As government, it remains our duty to listen to the youth and ensure that relevant measures are in place to ensure that they indeed participate in the development of our country.
Ladies and gentlemen,
The youth still constitute by far the largest portion of the unemployed, largely reflective that South Africa, like most developing countries, is a nation whose greater portion constitute of the youth.
It is our stand point that in every area of our country’s development, the youth must have a prominent role. That is why it is imperative that the National Youth Development Agency ensures that the youth are fully aware of the wide spectrum of our country’s development and the opportunities that are available to them arising out of our democratic dispensation. Through a focus on youth development in sports, arts, engineering, medicine, accounting, ICT and all other areas of development, we will be able to change the demographics that the centuries of colonialism and decades of apartheid misrule sought to engrave in our communities socially, economically and politically.
As government, we have adopted the National Development Plan as our blue print whose targets seek not only to eradicate the apartheid disparities of race, gender, class and geographical location, but also to project a future whose development will increasingly meet all the needs of our people. The youth must find their mission within these broad development frameworks. The youth must not wait to be told but to actively seek information for their own development as one artist correctly alluded to that “uzoyithola kanjani uhleli ekhoneni”. We must rid ourselves of the culture that reduces us only to complainants but seek ways in which we can drive development for our own good and the good of our neighbourhood and our country.
This being Youth Month, we take this opportunity to heighten our collective and individual consciousness on the importance of youth development. And in this we invite all and sundry to contribute towards finding solutions on the various challenges that we face nationally, provincially and locally.
One of the challenges facing our youth today is substance abuse. We have lost young people to drugs. Some may think it is only the unemployed or poor youth involved in drugs but some of the well known promising musical talents and those from other art forms have had their lives cut short due to indulgence to drugs. We take this Youth Month as an opportunity to create awareness around the fatal dangers of drug abuse.
As the Department of Justice and Constitutional Development, we are fully conscious of the fact that some of the youth could have been prompted into drug abuse due to the pressures of youthfulness, particularly peer pressure. However, as administrators of justice, we also use this as an opportunity to remind the youth of the legal consequences of drug abuse and dealing in drugs. The long arm of the law will kick in whenever the law is broken.
However, we have also recognized that children in conflict with the law require a response different to those applicable to hardened adult offenders. That is why we promulgated the Child Justice Act as a special mechanism to deal with child offenders. The Child Justice Act came into operation in April 2010.
The main focus of the Child Justice Act deals with cases of children in conflict with the law by amongst others removing such children away from the mainstream criminal justice system. In essence the main objective of the Child Justice Act is to divert cases of children in conflict with the law from the provisions of the Criminal Procedure Act of 1977 which is applicable to adult offenders.
IMPLEMENTATION OF THE CJA
Here in the North-West, the Regional Office established a Provincial Child Justice Forum consisting of stakeholders, namely the Department of Justice and Constitutional Development (DOJCD), Provincial Department of Social Development, Women, Children and People with Disabilities (DSDWCPD), Provincial Department of Education (DoE), Legal Aid South Africa (LASA), National Department of Correctional Services (DCS), Judiciary, National Prosecuting Authority (NPA), National Department of Home Affairs, Provincial Department of Health and Khulisa (NGO).This was an effort to ensure the Child Justice Act is implemented with the full participation of various stakeholders, in line with the African ethos that a child is brought up by the collective action of the community. The Department of Justice and Constitutional Development provides the chair and secretariat to the forum whilst the Provincial Department of Social Development, Women, Children and People with Disabilities is the Deputy Chair. The forum sits monthly.
Within the forum, an Awaiting Trial Project team led by three (3) Chief Prosecutors was established with the main purpose to fast track cases of children in conflict with law and this project has yielded positive results. We do not have children in police custody and also no backlog in cases involving children in conflict with law. Since April 2010 the statisticsindicate 2855 cases were heard in the Child Justice Court to date.
The focus of the Child Justice Act is on crimes such as Sexual offences, Harassment, Domestic violence, drug abuse and trafficking as well as Maintenance. In compliance with section 28 of the Constitution, the Act requires that the imprisonment sentence be imposed on a child only as the last resort and for the shortest possible period of time. Other sentencing options include:
- Community-based sentences;
- Restorative justice sentences;
- Fines or alternatives to fines;
- Sentences involving correctional supervision;
- Sentence of compulsory residence in child and youth care centre
- Postponement or suspension of the passing of sentence; and
- Imprisonment (only as a last resort).
Let me take this opportunity to dismiss the myth that those who take whatever concoction of illicit drugs not necessarily classified as a drug will not be prosecuted. All cases of drug abuse and dealings, including those pertaining what is known as “nyaope” will face the might of the law!
SAPS have recorded a serious drop in the number of children arrested for allegedly committing crimes. During the previous financial year, 43 517 children were arrested as against the shocking figure of 75 435 arrests of children that was recorded in 2010. This significant drop in the number of child-arrests is construed as an indication that the Act is beginning to show results of success in crime intervention.
Section 34 of the Act requires that every child who is alleged to have committed an offence must be assessed by a probation officer, unless such assessment has been dispensed with by the prosecutor, only if it will be in the best interests of the child concerned to do so (s41(3) of the Act). In section 35, the Act lists nine (9) instances that must be considered during an assessment. For instance, the probation officer must assess the child to determine whether or not such child is in need of care and protection in terms of the Children’s Act. The assessment must also, inter alia, explore whether the child has been used by an adult to commit a crime. The age estimation, the need for the evaluation of criminal capacity, the prospects for the diversion of the case are also considered during an assessment.
In the child justice value chain, it is the Department of Social Development that takes the responsibility of conducting these assessments. However, there are a number of inter-dependencies in the service chain that need to be collectively managed. For instance, the Act requires the arresting officer to immediately notify the Probation Officer of any arrest of a child. The absence of this notification report may therefore lead to a variance between the number of arrested children and the number of children assessed, if not properly monitored. It may also result in discrepancies featuring in other processes that may follow, e.g. preliminary inquiry.
The joint collaborations of SAPS and DSD have yielded good results against the unfathomable drop in the figures of assessments experienced during the previous reporting period. This decline raised serious eyebrows against the effectiveness of the Act, but with the dedicated interventions introduced by SAPS and DSD, a turnaround of events was quickly recorded. The total number of children assessed moved from 18 334 to 32 125. What can be deduced from this increase, is the visible growth in the implementation of the Act, which will ultimately entrench the child justice system in this country.
A preliminary inquiry is an informal pre-trial procedure which is inquisitorial in nature. It is viewed as the first court appearance by a child, where the court, inter alia, considers the assessment report of the probation officer, with particular reference to the age estimation, the need to evaluate criminal capacity, if the child is 10 years or older, but under the age of 14 years. It is also during this inquiry where the court also considers the need to divert the matter before plea is tendered.
In 2012/2013, DoJ&CD reported a 42% increase in the number of preliminary inquiries held. This increase ought to be viewed in a positive light as it means that many children are saved from the harsh realities embedded in the criminal justice system so as to ensure that the system respects and protects their constitutional rights.
Legal Aid South Africa
Due to budgetary constraints, Legal Aid SA does not have dedicated practitioners to assist with preliminary inquiries, even in those areas where there is a dedicated preliminary inquiry court. Nevertheless, all our practitioners who serve in the normal courts are available to assist with preliminary inquiries in all cases where it is deemed necessary for the child to be assisted by a legal representative at the preliminary inquiry stage. The request will normally come from the magistrate conducting the preliminary inquiry. During the period under review, 15 295 of the total 25 517 preliminary inquiries conducted received legal representation by Legal Aid SA.
During 2012/2023, the NPA recorded an increase in cases diverted from the criminal justice system from 9 192 to 11 420. This rise in diversions came at a time questions were still asked as to what caused the decline in the previous reporting period from 16 462 to 9 192 diversion orders. With this increase, it could be assumed that the training interventions are beginning to make significant improvement in the newly-established child justice system.
One Stop Child Justice Centres (OSCJC’s)
During the previous financial year, the Minister of Justice and Constitutional Development designated theMatlosana Child and Youth Care Centre, North West, as a One Stop Child Justice Centre (OSCJC) in terms of section 89 of the Act. On the 22 February 2013, the Government Gazette Notice No 36179 was published for the designation of the Matlosana OSCJC. This Centre has, since February 2013 been fully operational. The jurisdictional areas of the Matlosana OSCJC include:
- Stilfontein Gold mines
The Department planned to convert the Khayalethemba Children’s Home, Eastern Cape into a One Stop Child Justice Centre, butcould not succeed because costs for refurbishment were subsequently increased to R28 million.
To date, there are 3 OSCJC’s that are fully operational in 3 provinces, viz. Eastern Cape, Free State and lastly North West. Below is the Table of fully operational OSCJC’s in the country:
Since 2010/2011, a total of 5 120 non-custodial sentences were imposed, whilst in a total of 728 cases children received imprisonment sentences. The great variance in these two figures shows that our courts are indeed complying with the Act. The Department of Correctional Services has also reported that as at 31 March 2013, only 328 children were serving custodial sentences in the correctional facilities. Out of the 3 058 children who were remanded into correctional facilities whilst awaiting trial during this reporting time, only 135 children were awaiting trial as at 31 March 2013.
South Africa is committed to the establishment of a society that is non-violent and non-abusive to children. We are the proud signatory of the 1989 Convention on the Rights of the Child and the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which requires all government stakeholders to treat victims of crime and abuse of power with compassion and respect for their dignity when engage with the criminal justice system.
We take pride in our Constitution for its global-competitive status in the area of the protection of children. Section 28 of the Constitution expressly affords children not only the right to family care or parental care, but also the right to be protected from maltreatment, neglect, abuse or degradation. It is also our constitutional obligation to protect and promote the rights of children to equality, human dignity, privacy, and most importantly, the right to freedom and security of person, which includes the right to be free from all forms of violence, particularly sexual violence.
Sexual Abuse within Domestic Relationships: Domestic Violence Act, 1998
Our Parliament has continued to show its devotion to the protection of children in our country. In South Africa, we have the Domestic Violence Act 116 of 1998, which is widely recognized for its notable features that seek to provide response, prevention and care to victims of sexual abuse, including the adolescents, when engaging with our courts. Section 4 of the Act allows children to apply for Protection Order with or without assistance of a parent or guardian. It is a provision that recognizes that children may be abused by their parents, guardians, siblings or other parties who are in a domestic relationship with them. It is legislation that allows proceedings to be held in camera. It further entitles victims to bring to court not more than 3 support persons so as to ease anxiety whilst testifying. This Act also allows teachers to apply for a Protection Order on behalf of a learner, who is sexually abused or exposed to any form of domestic violence.
The Domestic Violence Act is currently being scrutinized for amendment by the Department to ensure that we have a criminal justice system fully responds to the special needs of the victims, especially child-victims.
Sexual Offences Legislation and the NRSO
In our endeavor to lower down the rate of sexual violence against children, our country has just introduced more comprehensive legislation, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which sets out specific protection for children and persons living with disabilities. This legislation further established the National Register for Sex Offenders (NRSO) to ensure that convicted offenders of sexual crimes involving children and disabled persons are registered and restricted access to all children and disabled persons. As at 31 March 2013, the Register had captured 2 792 names of convicted sex offenders.
Legislative Amendments: Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007,Sections 15 and 16 of the Act: In the case of Teddy Bear Clinic v Minister of Justice and Constitutional Development and Others CAS 73300/10 the applicants argued that sections 15 and 16 of the Act were unconstitutional. The applicants accepted that these provisions are constitutionally permissible insofar as they criminalize the sexual conduct of adults, but not of children.
As I conclude, let me emphasize that youth development is an imperative for both individual and national development as a whole.
Every local municipality must be seized with programmes to ensure youth development on the one hand, and crime prevention and the rehabilitation of youth offenders on the other.
As we commemorate June 16, we do so hoping that the youth will seize the moment and emulate the heroes and heroines of 1944, of 1976 and the young lions of the 1980’s. They did not ask what the struggle must do for them but carved their own role. South Africa is today free and also a democracy owing to their fearless struggle. South Africa will be a better place because the youth of today will, in Frantz Fanon’s words, discover their own mission and we have faith in them that they will not betray it! To the youth of Matlosana we say the future is in your hands!
I thank you!