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Response to Proposed Amendments to Children's Act - Portfolio Committee Briefing

This document provides a response to proposed amendments to the Children's Act, 2005, including similarities and differences between the Private Members Bill and the Children's Amendment Bill. Recommendations are also provided.

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Response to Proposed Amendments to Children's Act - Portfolio Committee Briefing

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  1. Response to the Proposed Amendments to the Children’s [Private Members Bill] PORTFOLIO COMMITTEE 28 OCTOBER 2015

  2. 1. PURPOSE • To brief the Portfolio Committee on Social Development in response to the proposed amendments to the Children’s Act, 2005 (Act No. 38 of 2005) (“The Private Members Bill” (“PMB”).

  3. 2. INTRODUCTION • On 19 November 2014 the Honourable Mike Waters published the PMB in the Gazette, which has since been introduced. • On 20 May 2015 the Minister of Social Development tabled the Children’s Amendment Bill (B13-2015) in both Houses of parliament in terms of JR 159. • The Department briefed the Committee on the B13 of 2015 on 05 August 2015. • Honourable Waters also briefed the Committee on the PMB on 12 August 2015. • The Department has now been invited to brief the Committee in response to the PMB

  4. 3. SIMILARITIES BETWEEN THE PMB AND B13-2015 • Both Bills seek to- • amend section 120 of the Act by introducing a deeming provision; • align section 120 to the Sexual Offences Act, 2007; • give effect to the Constitutional Court Judgement in the matter of J vs the National Director of Public Prosecutions [2014] ZACC 13.

  5. 4. DIFFERENCES BETWEEN THE PRIVATE MEMBERS BILL AND B13-2015 • The PMB is confined to amendments to section 120 whereas B13-2015 seeks to introduce comprehensive amendments and address issues raised in various court judgements and other shortcomings which have been identified in course of implementing the Act. • The PMB makes reference to the now repealed Sexual Offences Act, 1957 (Act No. 23 of 1957). • The PBM also seeks to introduce a new section 5A which seeks to distinguish between adult offenders and child offenders thereby giving effect to the judgement of J vs The National Director of Public Prosecutions. In B13-2015 this is addressed under amendments to section 128.

  6. 5. Comments on the PMB by the DoJC • DoJC suggests that the Amendments should make reference to both common law sexual offences as existed prior to 16 December 2007 and the Sexual Offences Act, 1957 (Act No 23 of 1957). • The proposed PMBsection 120 (4A) reads as follows: “(4A”)in criminal proceedings, where a child is convicted…”. The DoJC argues that this formulation does not take into consideration a scenario where a person who is 18 or older is convicted of an offence which was committed while he or she was a child.

  7. 5. Comments on the PMB by the DoJC Continue… • In order to cure the situation DoJC suggests the following formulation: “4(A) In criminal proceedings a person who was a child at the commission of the offence…”. • The wording in B13-2015 is consistent with the suggestion by DoJC. • DoJC also raises a concern about a reference to a “child” in proposed PMBsection (5A) and suggests that the section should refer to person who was a child at the commission of an offence. As indicated previously B13-2015 addresses this issue in the amendments to section 128.

  8. 6. Alignment of the PBM with section 50 of the Sexual offences Act • Just like B13-2015 the PMB is not properly aligned to Section 50 of the Sexual Offences Act. • Section 50 of the Sexual offences Act provides as follows: “50 if a court has in terms of this Act or any other law, convicted a person (“A”) of a sexual offence referred to in paragraph (a)(i) and A was a child at the commission of such offence, or if a court has made a finding and given a direction referred to in paragraph (a)(ii) in respect of A who was a child at the time of the commission of the alleged offence, the court may no make an order as contemplated in paragraph (a) unless- • The prosecutor has made an application to the court for such an order;

  9. 8. Alignment of the PBM with section 50 of the Sexual offences Act Continued … (ii) The court has considered the report by the probation officer referred to in section 71 of the Child Justice Act, 2008, which deals with the probability of A committing another sexual offence against a child or person [who is mentally disabled as the case may be] in the future; • A has been given an opportunity to address the court as to address the court as to why his or her particulars should not be included in the Register, and • The court is satisfied that substantial and compelling circumstances exists which justify the making of an order as contemplated in paragraph (a), the court must enter such circumstances in the record of proceedings."

  10. 9. Conclusion • The differences between the two Bills are not fundamental and can be easily bridged. • It would be ideal to deal with one set of amendments as the current situation results in a duplication.

  11. 9. RECOMMENDATIONS • It is recommended that the Portfolio Committee takes note of the Department’s response to the proposed amendments to the Children’s Act, 2005 (Act No. 38 of 2005) (“The Private members Bill” (“PMB”).

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