CHILDRENS COURTS CHAPTER IN CHILDRENS BILL NO B

CHILDREN’S COURTS CHAPTER IN CHILDREN’S BILL, NO. B 70 OF 2003 AS RE-INTRODUCED: PRESENTATION TO PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT 15 – 18 MARCH 2005 ADV P A DU RAND, CHIEF DIRECTOR: COURT PERFORMANCE (INLAND), ALSO ON BEHALF OF MS K B SHABALALA, CHIEF DIRECTOR: PROMOTION OF THE RIGHTS OF VULNERABLE GROUPS BRANCH: COURT SERVICES DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

Questions raised by Portfolio Committee regarding Children’s Bill, Children’s Courts Chapter and matters regarding Justice interventions n n n n Childrens’ Courts: Breakdown of where the Magistrates’ Courts + other courts in the country are situated, to address the question of accessibility of Children’s Courts: Please see following slides and hand-outs; Explain how traditional courts work regarding their oversight function of childrens’ matters; Presentation by the Legal Aid Board on the legal representation of children: A representative from the Legal Aid Board is here today; Presentation by the Masters’ Office spelling out its functions regarding Childrens’ Courts: A representative from the Legal Aid Board is here today; Presentation by the Chief Family Advocate on their role and function in Children’s Courts: Adv Seabi is here today; Discussions regarding the Adoptions and International Adoptions. Chapters: Ms Moodley, Director: Child and Family Law will handle this matter; and Clause by clause explanation of the Childrens’ Courts Chapter 5 – Adv Du Rand (15 th), Ms Moodley and Mrs Kok (16 th – 18 th) of Justice; Discussions of other clauses requested: n n Clause 15: Enforcement of rights; and Clause 26 and 27: Court proceedings. 2

Childrens’ Courts and request for indication of mapping of courts n n n n * The Department of Justice is distributing a list of Magisterial Districts indicative of district courts per province as well as a second list which is a list of proposed districts per province, should the Minister approve the re-demarcation process. * List 1 is the existing list and list 2 the proposed list of Magisterial Districts, Offices, Detached Offices; Branch Courts; and Periodical Courts. * A map of all Magistrates’ Districts is also attached in further slides. * Regarding the Regional Divisions, the divisions were created and published in Government Gazette 26091 of 27 February 2004. A court was also established for each regional division. * Regarding the seat of the regional division, the term “headquarters” relats to the seat of the division. The expression “headquarters” is defined as follows in the regulations for Judicial Officers in the Lower Courts, 1993. “Headquarters” means the city, town or place where the principal duties of the magistrate are or have to be performed, or which has been designated by the Director-General as his “Headquarters”. * “Director-General”, means the Director-General of Justice or a person delegated by him. The relevant regulations do not contain any express provision. However, the decision to allocate a place as the headquarters for the Regional Court President, by the Director-General, is an administrative action as contemplated in section 33 of the Constitution. Section 33 contemplates that an administrative action must be lawful, reasonable and procedurally fair. * n 3

Childrens’ Courts and request for indication of mapping of courts n *Headquarters are at the following places: n n n n n Eastern Cape: Port Elizabeth; Free State: Bloemfontein; Gauteng: Johannesburg and Pretoria (Tshwane); Kwa. Zulu-Natal: Durban; Mpumalanga: Nelspruit; North-West: Mmabatho; Northern Cape: Kimberley; Limpopo Province: Polokwane; Western Cape: Cape Town. 4

Childrens’ Courts and request for indication of mapping of courts n n * However, every magistrate’s court established under section 2 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), is a place of sitting for the regional court concerned. * District and Regional Courts are established in terms of section 2 of the Magistrates’ Courts Act, 1944: n Jurisdiction in respect of offences: section 89; n Local limits of jurisdiction: section 90; n Criminal jurisdiction of periodical courts: section 91. • Regarding civil jurisdiction: • Area of jurisdiction - section 26; • Jurisdiction in periodical courts – section 27. • However, section 12(4) of the Magistrates’ Courts Act, 1944, empowers the magistrate of the District to direct the utilisation of courts in his District. • Please see attached maps and lists handed out. 5

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Family Courts and their roles vis-àvis Childrens’ Courts: n n n * It is the view of the Department that the Family Courts Concept should also enclose the following family law–related courts: Maintenance, Domestic Violence, Divorce and Children’s Courts. * While this concept is being rolled out, the Children’s Courts capacitation should not be seen to stand still, as every magistrates’ court and proposed magistrates’ court, is a Children’s Court. * However, regarding Family Courts-matters, the following: n Existing Family Court Centres being strengthened: Durban, Cape Town, Johannesburg, Lebowakgomo, and Port Elizabeth. n Capaciation of the following courts in terms of funding for roll-out: n Kimberley and Upington. n Temporary appointments in the family law sections at the following sites: n Protea; n Orlando; n Hlanganani; n Pietermaritzburg; n Umbumbulu; n Msimbi; and n Chatsworth. 11

Oversight role of traditional leaders and courts: n * Powers of Chiefs, Headmen or Chief’s Deputy: n Conferment of jurisdiction in terms of section 12 and 20 of the Black Administration Act, 1927 (Act No. 38 of 1927): n n Criminal Offences: See section 20; Civil matters: See section 12. * Currently, chiefs courts enjoy jurisdiction in: * determination of the validity, effect or interpretation of a will; * determination of the custody or guardianship of minors, and * determination of liability for maintenance. * Chiefs do not have jurisdiction in matters (issues) relating to civil marriages and since the Recognition of Custmary Marriages Act, 1998 (Act No. 120 of 1998), came into effect, no longer any jurisdiction in customary marriages. 12

Recommendations regarding Childrens’ matters for Traditional leaders’ Courts n n * Appeals against Chiefs’ decisions in indigenous courts, still lie with magistrates’ courts and in practice, very little appeals regarding such matters take place. * Concern: Awareness campaigns and training for Chiefs in this regard, will be necessary, if this matter is formalised in the Children’s Bill, in order to protect the Childrens’ Rights. * The South African Law Reform Commission is investigating the concept of traditional and community courts. * In the meantime, the Department is in the process of drafting a manual for Traditional Leaders in conjunction with the National House of Traditional Leaders, and this issue will also be included. 13

Children’s Courts-matters handled in 2002 CHILD WELFARE 8. 1 8. 2 8. 3 8. 4 8. 5 Adoptio n s d e a lt w it h i n q u ir i e s d e a lt w it h Contrib u ti o n o r d e r i n q u ir i e s Childre n f o u n d i n n e e d o f c a r e Childre n p l a c e d i n f o s t e r c a r e Eastern Cape 358 3161 348 2086 5101 Free State 128 2302 60 2356 2626 Gauteng 1294 7174 911 3723 4861 Kwazulu Natal 1942 8454 442 9082 11413 Limpopo 444 1553 970 3305 2823 Mpumalanga 200 801 103 849 756 Other Province 14

Cost implications: n What is available: n n n What is needed: n n n The Department has received funding as an Unfunded Priority Project for R 5 million for the 2005/06 financial year in this regard. The Department further has funds for the implementation of the Family Courts for the next financial year. Preliminary costing for implementation of current version of the Children’s Courts Chapter of the Children’s Bill: R 15 million, because Department plans on implementing in phases and has made provision in other Projects for some funding, for example, the appointment of contract intermediaries and the extension of the services of the Family Advocate to Family Courts. Preliminary costing for implementation of the S A Law Reform Commission Bill: R 139 415 950 (please see attached slide) Gaps: n Extra funding has been requested from National Treasury for th MTECperiod for the next three financial years. We have received R 5 million. 15

Chapter 5: Children’s Courts n n n The Children’s Courts Chapter, to some extent, is modeled on existing legislation dealing with the various courts in the administration of justice. This Chapter has also been drafted in such a manner so as to anticipate possible changes to our court structures that might take place in the near future. The Department of Justice and Constitutional Development is in the process of rationalising the courts, in order to bring them into line with the court arrangements envisaged in the Constitution. The original South African Law Reform Commission’s version of the Children’s Bill, recommended the establishment of a Child and Family Court for each magisterial district in terms of the Magistrates’ Courts Act, 1944; and further recommended the prescription of competencies of the child and family district court; the competencies of the child and family regional court; and the referral of matters to a child and family regional court. In the certified Bill, the position has been changed to the status quo. 16

Chapter 5 of the Children’s Bill No. B 70 Children’s Courts: Introduction n The current Bill therefore retains children’s courts (that every magistrate’s court is also a children’s court) in the present format. n Each magistrate is also a presiding officer of a children’s court. n n n The reason for this amendment of the proposed Family and Children’s Courts, is that the proposed two-tier Child and Family Court System cannot be incorporated into the Children’s Bill before the court system has been adapted to make the establishment of child and family courts possible. Further, the proposed system would not have been in line with the present restructuring of the Courts, including Family Courts and Children’s Courts. Lastly, as only the Minister for Justice and Constitutional Development can establish courts in terms of the Constitution of the Republic of South Africa, any proposed amendments must first be submitted to the Minister for Justice and Constitutional Development 17

Chapter 5 of the Children’s Bill No. B 70 Children’s Courts n n n While this Chapter does not represent a drastic departure from the position on how children’s courts function presently, there a number of innovations and much more detail is set out regarding the court’s powers and functions. The Department of Justice and Constitutional Development has requested the Commissioners of Child Welfare (Children’s Court Magistrates) for inputs regarding the latest developments of the Children’s Courts Chapter of the Children’s Bill; and to inform all the Justice family role players of the amendments made to the SA Law Reform Commission’s version of the Children’s Courts Chapter on request of the Cabinet and the former Minister for Justice and Constitutional Development. The Department has further undertaken to assist the Lower Court Management Committee of the Judiciary, the Family and Gender Task Team and Justice College, to draw up and publish Children’s Court Guidelines once the Children’s Statute has been passed by Parliament. 18

Chapter 5 of the Children’s Bill No. B 70 Children’s Courts: n This Chapter is divided into the following 4 Parts: (i) Part 1: Establishment, status and jurisdiction; n (ii) Part 2: Court proceedings; n (iii) Part 3: Clerks of children’s courts; n (iv) Part 4: Miscellaneous matters. n 19

Contents and implications of Children’s Courts Chapter n Part 1: Establishment, status and jurisdiction: n Children’s courts and presiding officers; n Status; n Jurisdiction of children’s courts; n Matters children’s courts may adjudicate; n Orders children’s courts may make; n Referral of children to children’s courts by other courts; n Additional powers; n Lay forum hearings; n Investigations; n Appeals. 20

Contents and implications of Children’s Courts Chapter n Part 2: Court proceedings: n n n n Rules and court proceedings; Who may approach court; Legal representation of children; Attendance at proceedings; Compulsory attendance of persons involved in proceedings; Rights of persons to adduce evidence, question witnesses and produce argument; Witnesses; Conduct of proceedings; Participation of children; Professional reports ordered by court; Evidence; Adjournments; Monitoring of court orders; Protection of court case records. 21

Contents and implications of Children’s Courts Chapter, continued n Clerks of Children’s Courts: n Appointment or designation of clerks of children’s courts; n Referral of matters to children’s court by clerk of children’s court; n Pre-hearing conferences; n Family group conferences; n Other lay forums; n Settling of matters out of court; n Other functions: n May attend children’s court hearing; and n Must arrange legal representation for child. 22

Contents and implications of Children’s Courts Chapter, continued n Part 4: Miscellaneous matters: n Publication of information relating to proceedings; n Regulations. 23

CHALLENGES n COSTING AND ADEQUATE FUNDING n FOSTER CARE GRANTS AND THE ROLE OF CHILDREN’S COURTS IN THIS REGARD n INTERCOUNTRY ADOPTIONS: Section 24 read with other relevant provisions of the Children’s Bill do not spell out a clear procedure for inter-country adoptions. The Department of Justice and Constitutional Development has received various representations from the organised Lawyers’ profession regarding this matter. As the Department of Justice is an integral part of the procedure involved in intercountry adoptions, it is clear that it should be considered that the Department of Justice should be represented on the Central Authority. The provision in section 257(1) that allows the DG to delegate the authority of the Central Authority to “an officer” in the Department does not take cognisance of the importance of the functions of the Central Authority. Section 258 provides for the accreditation of Child Protection organisations for Intercountry adoptions. The Association of Law Societies of SA have objected to exclusion of Family Law Attorneys from being accredited to conduct inter-country adoptions. 24

Key policy issues raised during the Public Hearings continued n Legal representation of Children: n n The submission by the Community Law Centre is that the Commissioner of Child Welfare should be compelled to decide whether a child should be assisted to acquire legal assistance. The Bill actually goes further than this. Section 55 re-inforces the child’s constitutional right to legal representation. The Department is currently engaged in discussions with the State Attorney and the Legal Aid Board to establish a policy that will ensure that children in civil proceedings be given expert legal representation. The Legal Aid Board is here today also to make a presentation in this regard. 25

CONCLUSION n We are all working for the best interests of all our children and the realisation of their rights! n The Department wishes to assure you of the Department’s support and cooperation in this regard. ……………………. . Any Questions n Thank you! 26

Contact persons: n n Ms K B Shabalala, Chief Director: Promotion of the Rights of Vulnerable Groups, tel: 012 315 1738/39; fax: 012 315 1851; email: bshabalala@justice. gov. za; Adv P A du Rand, Chief Director: Court Performance (Inland), tel: 012 315 1219; fax: 012 315 1888; e-mail: mgarnettbennett@justice. gov. za; Ms P Moodley, A/Director: Child and Family Law, tel: 012 315 1998; fax: 012 315 1851; e-mail: pmoodley@justice. gov. za; Mrs C S Kok, Deputy Director: Child Justice and Children’s Courts, tel: 012 315 1259/1651; fax: 012 315 1851; e-mail: ckok@justice. gov. za. 27