CHILDREN

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• CHILDRENS COURTS CHAPTER IN CHILDRENS BILL, NO.
  B70 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
  DIRECTORPROMOTION OF THE RIGHTS OF VULNERABLE
  GROUPS
• BRANCH COURT SERVICES
• DEPARTMENT OF JUSTICE AND CONSTITUTIONAL
  DEVELOPMENT

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Questions raised by Portfolio Committee regarding
Childrens Bill, Childrens Courts Chapter and
matters regarding Justice interventions

• Childrens Courts Breakdown of where the
  Magistrates Courts other courts in the country
  are situated, to address the question of
  accessibility of Childrens 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 Childrens 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 (15th), Ms Moodley
  and Mrs Kok (16th 18th) of Justice
• Discussions of other clauses requested
• Clause 15 Enforcement of rights and
• Clause 26 and 27 Court proceedings.

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Childrens Courts and request for indication of
mapping of courts

• 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.

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Childrens Courts and request for indication of
mapping of courts

• Headquarters are at the following places
• Eastern Cape Port Elizabeth
• Free State Bloemfontein
• Gauteng Johannesburg and Pretoria (Tshwane)
• KwaZulu-Natal Durban
• Mpumalanga Nelspruit
• North-West Mmabatho
• Northern Cape Kimberley
• Limpopo Province Polokwane
• Western Cape Cape Town.

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Childrens Courts and request for indication of
mapping of courts

• However, every magistrates 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
• Jurisdiction in respect of offences section 89
• Local limits of jurisdiction section 90
• 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.

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Family Courts and their roles vis-à-vis
Childrens Courts

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

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Oversight role of traditional leaders and courts

• Powers of Chiefs, Headmen or Chiefs Deputy
• Conferment of jurisdiction in terms of section 12
  and 20 of the Black Administration Act, 1927 (Act
  No. 38 of 1927)
• 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.

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Recommendations regarding Childrens matters for
Traditional leaders Courts

• 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 Childrens 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.

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Childrens Courts-matters handled in 2002
Province CHILD WELFARE CHILD WELFARE CHILD WELFARE CHILD WELFARE  
Province 8.1 8.2 8.3 8.4 8.5
Province Adoptions dealt with Other inquiries dealt with Contribution order inquiries Children found in need of care Children placed in foster care
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
Northern Cape 115 759 112 158 1327
North West 162 850 145 1275 1521
Western Cape 639 3278 202 1603 2391
Total 5282 28332 3293 24437 32819

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Cost implications

• What is available
• The Department has received funding as an
  Unfunded Priority Project for R5 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.
• What is needed
• Preliminary costing for implementation of current
  version of the Childrens Courts Chapter of the
  Childrens Bill R15 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 R139 415 950
  (please see attached slide)
• Gaps
• Extra funding has been requested from National
  Treasury for th MTEC-period for the next three
  financial years. We have received R5 million.

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Chapter 5 Childrens Courts

• The Childrens 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
  Commissions version of the Childrens 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.

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Chapter 5 of the Childrens Bill No. B70
Childrens Courts Introduction

• The current Bill therefore retains childrens
  courts (that every magistrates court is also a
  childrens court) in the present format.
• Each magistrate is also a presiding officer of a
  childrens court.
• The reason for this amendment of the proposed
  Family and Childrens Courts, is that the
  proposed two-tier Child and Family Court System
  cannot be incorporated into the Childrens 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 Childrens
  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

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Chapter 5 of the Childrens Bill No. B70
Childrens Courts

• While this Chapter does not represent a drastic
  departure from the position on how childrens
  courts function presently, there are a number of
  innovations and much more detail is set out
  regarding the courts powers and functions.
• The Department of Justice and Constitutional
  Development has requested the Commissioners of
  Child Welfare (Childrens Court Magistrates) for
  inputs regarding the latest developments of the
  Childrens Courts Chapter of the Childrens Bill
  and to inform all the Justice family role players
  of the amendments made to the SA Law Reform
  Commissions version of the Childrens 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
  Childrens Court Guidelines once the Childrens
  Statute has been passed by Parliament.

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Chapter 5 of the Childrens Bill No. B70
Childrens Courts

• This Chapter is divided into the following 4
  Parts
• (i) Part 1 Establishment, status and
  jurisdiction
• (ii) Part 2 Court proceedings
• (iii) Part 3 Clerks of childrens courts
• (iv) Part 4 Miscellaneous matters.

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Contents and implications of Childrens Courts
Chapter

• Part 1 Establishment, status and jurisdiction
• Childrens courts and presiding officers
• Status
• Jurisdiction of childrens courts
• Matters childrens courts may adjudicate
• Orders childrens courts may make
• Referral of children to childrens courts by
  other courts
• Additional powers
• Lay forum hearings
• Investigations
• Appeals.

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Contents and implications of Childrens Courts
Chapter

• Part 2 Court proceedings
• Rules and court proceedings
• Who may approach court
• Legal representation
• 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.

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Contents and implications of Childrens Courts
Chapter, continued

• Clerks of Childrens Courts
• Appointment or designation of clerks of
  childrens courts
• Referral of matters to childrens court by clerk
  of childrens court
• Pre-hearing conferences
• Family group conferences
• Other lay forums
• Settling of matters out of court
• Other functions
• May attend childrens court hearing and
• Must arrange legal representation for child.

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Contents and implications of Childrens Courts
Chapter, continued

• Part 4 Miscellaneous matters
• Publication of information relating to
  proceedings
• Regulations.

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CHALLENGES

• COSTING AND ADEQUATE FUNDING
• FOSTER CARE GRANTS AND THE ROLE OF CHILDRENS
  COURTS IN THIS REGARD
• INTERCOUNTRY ADOPTIONS
• Section 24 read with other relevant provisions
  of the Childrens 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 inter-country
  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 Inter-country
  adoptions. The Association of Law Societies of SA
  have objected to exclusion of Family Law
  Attorneys from being accredited to conduct
  inter-country adoptions.
• Ms Moodley will handle these matters more fully
  later this week.

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Key policy issues raised during the Public
Hearings continued

• Legal representation of Children
• 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 childs 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.

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CONCLUSION

• We are all working for the best interests of all
  our children and the realisation of their
  rights!
• The Department wishes to assure you of the
  Departments support and co-operation in this
  regard.
• ..
• Any Questions
• Thank you!

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Contact persons

• Ms K B Shabalala, Chief Director Promotion of
  the Rights of Vulnerable Groups, tel 012 315
  1738/39 fax [phone] e-mail
  bshabalala_at_justice.gov.za
• Adv P A du Rand, Chief Director Court
  Performance (Inland), tel [phone] fax 012
  315 1888 e-mail mgarnettbennett_at_justice.gov.za
• Ms P Moodley, A/Director Child and Family Law,
  tel [phone] fax [phone] e-mail
  pmoodley_at_justice.gov.za
• Mrs C S Kok, Deputy Director Child Justice and
  Childrens Courts, tel [phone] fax
  012 315 1851 e-mail ckok_at_justice.gov.za.