Reform school as a sentencing option for juveniles is ”all but a dead letter” in South Africa as there is only one reform school to service eight of the nine provinces, the Grahamstown High Court heard on Monday.
A full bench of the high court was hearing argument on whether it had the power to intervene, by way of appeal or review, in sentences that were appropriate but had been delayed for lengthy periods or which were unlikely to be implemented at all.
The matter came before the full bench after Stepping Stones One Stop Youth Justice Centre Magistrate Cornelius Goosen asked it to review more than 20 cases of children he had himself referred to reform school over the past few years.
He turned to the high court after it was brought to his attention that many of these children were languishing in prison rather than being admitted to reform schools.
By law, children awaiting transfer to a reform school are held in a place of safety. Because of the dire lack of provincial places of safety, most in the Eastern Cape end up waiting in jail.
There they await a transfer to reform school that, more often than not, will never come through. Many of the children involved in the cases Goosen asked the court to review have been sitting in jail for up to four years waiting to serve often shorter periods in non-existent reform schools.
Advocate Mark Euijen, for the Legal Resources Centre in Grahamstown, on Monday argued that the court was obliged to intervene as it involved the State breaching the fundamental rights of those that are ”most vulnerable and least able to protect themselves”.
But Advocate Nico Henning from the office of the Eastern Cape Director of Public Prosecutions submitted that the court did not have the jurisdiction to set aside competent or appropriate sentences.
He said sentences passed might not be enforceable but this was due to a lack of action on the part of the executive rather than to any irregularity in proceedings.
”The problem has to be addressed but this court cannot set aside the sentences in each individual case.”
But Judge Eric Leach questioned whether it was in accordance with justice that a sentence intended by a magistrate could not be implemented.
Judge Clive Plakset said it seemed ”arbitrary, senseless and flew in the face of the rule of law”.
The departments of education and development were last month ordered to produce reports setting out steps they intended taking to address the lack of reform facilities for juvenile offenders in the province.
Advocate Torquil Patterson, who appeared for the two departments indicated yesterday that he did not believe the conduct of the two departments was ”justiciable”.
However, he said they would be open to any ”request” by the court to conduct a proper audit and furnish comprehensive information on the current situation.
The education department has already submitted a report acknowledging the enormity of the problem. However, it indicated a national task team was appointed in May to generate an immediate action plan for the movement of children out of prisons and secure care facilities into reform schools as well as to develop a medium to long-term plan for the implementation of the Child Justice Bill in relation to sentenced learners. – Sapa