Comments on SA’s country report to the UN Committee

1. Comments on SA’s country report to the UN Committee Ann Skelton Director Centre for Child Law

2. Introduction • The report has been a long time in the making, sensible to group the three reporting periods together • The drafters of the report to be complemented on a well written, comprehensive piece of work • Government (Exec and Parliament) to be commended for all the achievements • Role of civil society is visible and is acknowledged near the beginning – service delivery by NGOs needs more recognition

3. Overview • Education sector • Child victims and witnesses • Child Justice issues • Litigation (court cases on children) • Some other concerning issues

4. Education sector • The report does record the work that has been done in this sector and is also honest about some of the problems such as teacher absenteeism, low teacher abilities • One area where the report could say more is that with regard to infrastructure, the ‘mud schools’ settlement committed the DBE to spending R8.2 billion over 3 years (could mention at par 278 on p 68)

10. Norms and standards • Minister of Basic Education has the power to set norms and standards • She has recently issued norms and standards for infrastructure for comment • However, she has not issued norms and standards for admission (capacity eg size of classes, teacher pupil ratio) • Until she does, SGBs have the say, unguided by govt. This has led to court case: Rivonia Primary School

11. Learner pregnancy policy • Welkom and Harmony High Schools cases • The lack of a national policy has led to SGBs setting their own policy – ‘measures’ that were issued by Minister, then circular contradicting • Constitutionality of learner pregnancy policy under the spotlight in Con Court yesterday • The report on p 69 suggest govt is providing clear guidance on this, but that is misleading. • When are national policy/regulations going to be issued?

12. Corporal punishment in schools • The report proudly reports that we have abolished CP in schools • However, the figures set out at table 21 p 96 are astonishing. • This is one of the most shocking set of stats in the report, but no real acknowledgment or serious plan. • Need more at par 190 on p 50.

13. Child victims and witness • Not dealt with very well in the report • The UN issued UN Guidelines for Child Victims and Witnesses in the Justice System – not mentioned that we have tried to bring our laws in in line with this and also that our Constitutional Court has mentioned these guidelines in the case of Director of Public Prosecutions v Minister of Justice (2009)

14. Special court procedures for child victims and witnesses • There is no mention of special court procedures for child victims and witnesses • What about intermediaries, CCTV cameras, special waiting rooms? • Par 185 on p 49 children’s courts are mentioned but not these special measures for child victims and witnesses • Dedicated sexual offences courts? Govt’s blunder not expanding these not acknowledged

15. Child Justice system • The report proudly records some of the gains made by the CJA. • Could brag more about the extraordinary reduction in the number of children in prison (at par 321) – if the report included figures going back to 2000 – there were about 4000 children in prison then. Should be clearer about which childre are awaiting trial and which sentenced

16. Minimum age of criminal capacity • This will be very controversial with the UN committee • The report foreshadows this but could go further • Should emphasise Parliament’s role • The min age of criminal capacity must be reviewed by Parliament within 5 years (CJA came into op on 1 April 2010)

17. Statistics child justice • The ISCCJ has been criticised by Justice Portfolio comm in 2011 no report 2012 • Charmain Badenhorst (for OSF) has done two reports on CJA implementation • Major concern is the drop of numbers of children in the system • Probably a problem in police understanding but high no of police trained

18. Cases • Report is good (list on p 126) but uneven, some left out • Court have referred to CRC insert at para 38 on p 19 • Teddy Bear Clinic and Rapcan v Min of J mentioned at para 53 • Cases on right to be heard (below para 103) Christian Schools, Pillay, Soller NO v G and Ano and Legal Aid Board v R.

19. C and other v Dept Soc Dev Gauteng (2012) • Constitutional Court judgment – specifically mentions CRC • Children’s Act left our automatic right of review of decision to remove children from parents (required by CRC) – court declared unconstitutional and ‘read in’ • Should mention at para 149 on p 42

20. Other cases • Pillay should be mentioned re religious freedom in schools (only Antonie mentioned) • Inter-country adoption see para 174 on p 46 – should mention AD v DW (Con Court) which decided best interests is determining factor • Juma Musjid – about the right to a basic education

21. Final few issues • Par 41 All rights in BOR apply to children • Age of marriage par 48 – low and discriminatory – compliance is not enough • Unaccompanied foreign children – problems but reference on p73 only to refugee and asylum seeking children • Mental health (not just intellectual disability) see paras 77 and 78 on p 27