A summary of this committee meeting is not yet available.
SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
9 October 2007
CHILDREN'S AMENDMENT BILL: NATIONAL PROSECUTING AUTHORITY INPUT; DELIBERATIONS ON PUBLIC SUBMISSIONS
Chairperson: Adv Masutha (ANC)
Documents handed out:
Summary of public submissions heard in August 2007
Children’s Amendment Bill [B19B-2006]
National Prosecuting Authority (NPA) presentation
PMG Note: These minutes were provided by the Children’s Institute
MPs in attendance:
Adv Mike Masutha (ANC)
Ms Cheryllyn Dudley (ACDP)
Ms Caroline Makasi (ANC)
Ms Janet Semple (DA)
Ms Hilda Weber (DA)
Ms Hendrietta Bogopane-Zulu (ANC)
Mr Louis Nzimande (ANC)
Ms Winkie Direko (ANC)
Ms Bangilizwe Solo (ANC)
Ms Winkie Direko (ANC)
Mr Lance Greyling (ID)
Adv Masutha gave a short report of his visit to the MINMEC meeting at which he had raised the issues of funding and capacity, the lack of support to NGOs, and given everything that National Treasury had said about the lack of capacity in provincial treasuries to even ask for money. It had been suggested that Parliament extend an invitation to the MECs to come to brief the Portfolio Committee and help them to understand the challenges at a provincial level.
Suggested programme for the week:
- Tuesday: start with briefing from the National Prosecuting Authority. Continue deliberations.
- Wednesday morning: deliberations, and in the afternoon MPs to brief their study groups.
- Thursday morning: MPs to brief party caucus and get resolutions on the contentious issues.
- Thursday afternoon: deliberations.
- Friday: final instructions to drafters
Ms Dudley: no changes to the programme
Ms Semple: why are the NPA here, the Committee did not take the decision to invite them.
Adv Masutha: the decision to invite the NPA was taken at a previous meeting.
Briefing by the NPA on the implications of Clause 139: Discipline of children
Mr Rodney de Kok (NPA: Western Cape Director) and two advocates from the Sexual Offences and Community Affairs Unit (SOCA) were present. Request received only on the 4 October so little time and thus he has limited capacity to input; the national office delegated the Western Cape to respond. Two or three inputs had been received, but they would want to convene a national meeting to discuss the clause. He requested an extra week to discuss the clause within the NPA.
Adv Masutha: Committee has until Friday to finish the Bill. Vote not until the 17 October. The Committee could consider extra input in the ‘window’ period.
Mr Rodney de Kok (NPA): Current position in the courts - the right to raise children should not be unreasonably limited. The question of a prosecution dependent on establishing the use of “unreasonable force”. Best interest of the child is also at the heart of the matter. One submission suggested that ‘trivial matters’ would not be prosecuted, however, all matters must be prosecuted. General rule all cases examine each case to determine if sufficient grounds. Discretion as to whether so called de minimus. With domestic violence cases, do not just prosecute “serious cases” and they should be prosecuted as an assault is not a trivial matter, because the privacy of someone has been invaded.
Clause 139(7) - prosecute the parent if the punishment constitutes abuse of the child.
- Concept of abuse is not defined – what constitutes abuse depends on the circumstances.
- There must be certainty in the minds of the public which actions constitute an offence.
- Confusion in the minds of the parents will make prosecution difficult.
- Discretion is not arbitrary.
- Judicial discretion that lies with the prosecutor so the concept of what is abuse is important.
- Where is the line in what is reasonable. For example, child made to stand in the corner is abuse after two hours or three hours?
- If child is denied certain privileges is that abuse?
- Define abuse in the law or the court may determine in each case.
Adv Masutha: abuse is defined in the principal act.
Mr de Kok (NPA): a second concern is that no offence nor penalty is created.
Ms Ronel van Zyl of the South African Law Reform Commission (SALRC): the offence is created in Clause 305(3) – that is the offence of abuse of the child.
Adv Masutha: that is the broader concept of abuse. What about the narrower concept of discipline and corporal punishment?
Ms van Zyl: measures are in place to avoid prosecution. A person will only be prosecuted if inappropriate discipline constitutes abuse.
Ms van Zyl read out the definition of abuse from the principal act.
Adv Masutha: then the principal act has already made corporal punishment an offence.
Mr de Kok: SOCA has general support for the clause. It will go a long way to help change behaviour and reduce the patterns of violence against women and children.
The intention of the legislation is a good intention, violence is not a legitimate method of disciplining a child. Will go back and look at the principal act, the definition of abuse and the cross-referencing. Will come back to them by Thursday, 11 October.
Adv Masutha: the Committee has not yet made a decision may decide in favour or change it. Would require the concurrence of the National Council of Provinces, if not it will have to go to arbitration.
Mr Solo: do not want people prosecuted left, right and centre and there should be consultation between the drafter and the NPA, this is a complex issue. Do not want to criminalise everyone.
Ms Dudley: the provision in the original act that makes corporal punishment an offence, where is it? Do the prosecutors agree? Looking at Clause 139(2), discipline has nothing to do with abuse. Spanking has nothing to do with violence. Insert ‘unreasonable’ corporal punishment in (2) and (4). Take out (3).
When parents cannot spank, this leads to other forms of abuse such as screaming and standing in corners of the room.
Ms Hilda Weber (DA): It would make our lives easier if there was explanation of Clause 139(5). I have not seen programmes which offer alternatives. What appropriate disciplines are available?
Adv Masutha: over and above the Act, the regulations, policy, manuals etc. The Department of Social Development will develop the capacity to implement the Act. Discipline is one of the areas that will be discussed.
Ms Weber: How can we pass this, if we have no idea what the programmes are going to be?
Adv Masutha: the programmes do not need to be defined in the act.
Ms Dudley: we have had reasonable chastisement in the law – has this been problematic? Has this stopped parents being brought to book? What is missing?
Adv Masutha: Clause 139(7) takes us back to abuse, so there is no offence of corporal punishment or other forms of inappropriate punishment. The logic of the wording says that if corporal punishment does not constitute abuse it is then not an offence. The definition of “abuse” seems to deal directly with corporal punishment, any form of punishment; therefore Clause 139 is superfluous.
Ms van Zyl: the SALRC only abolished the defence of reasonable chastisement. In legislation one only defines something if it has a meaning in terms of the Act, leads to problems with interpretation. This version was devised in consultation with Ms Ayeesha Johaar (State Law Advisor) and Mr Pierre du Preez (Senior Counsel for Department of Social Development) - corporal punishment is self-defining: related to punishment inflicted on the body. Further definition is not necessary.
When drafting the clause we considered three options:
- No change
- Remove reasonable chastisement - If you hit an adult on the hand it is assault.
- Balancing abolishing corporal punishment but clarifying that not every case should be prosecuted.
If corporal punishment is the offence, every whack will be prosecuted – abuse is taken more seriously.
Adv Masutha: Assault is something physical.
Ms van Zyl: the issue of prosecution of corporal punishment is highly contentious. Whacking a child on the hand has never been prosecuted. Great resistance to the proposal to abolish corporal punishment do not want any whack to be prosecutable. There is developed jurisprudence on abuse. Decided not to be silent on the issue Constitution under Clause 12 gives everyone including children the right to freedom and security of the person. Corporal punishment can only be physical, abuse could also be emotional.
Will not put in you jail for whack on the hand, will try and train you on alternatives, if you continue that will be abuse.
Adv Masutha: lets understand the mechanics of the law. A prohibition that is not supported by an offence is meaningless; a prohibition always has an offence either in criminal or civil law. What is the purpose of creating the prohibition if there is no offence? There is a specific prohibition on corporal punishment, must then be a concomitant offence.
Ms van Zyl: attempt to balance the need to ban corporal punishment, without prosecuting half of all parents. We did what we could it was an attempt to get the balance right.
Adv Masutha: responsibility of the Committee to bring in other experts, where necessary.
Dr Maria Mabetoa (DSD): concern in the Department is around the issue of that thin line – smacking/instilling pain should not be a method of parenting. Currently not 100% of parents use smacking, there are alternatives. Smacking is hitting. Inflicting pain takes away the rights of the child in terms of the Constitution.
Many effective parenting programmes in the country, want to strengthen programmes, part of the implementation plan.
Adv Masutha: document explaining alternative forms would be helpful.
Ms Dudley: What about parental concerns that certain experts will tell you to drug unruly children. Give drugs rather than spank.
Adv Masutha: that relates to a medical intervention for a medical condition; do not mislead the debate.
Ms Dudley: they say smacking is humiliating, so is shouting.
Adv Masutha: that is why this clause covers other forms of discipline.
Ms Dudley: Reasonable corporal punishment is what we should be talking about.
Adv Masutha: hammering on the one proposal is not helpful.
Mr de Kok: A smack is an assault, the defence was in respect of a child only. Once that is removed then it will be prosecutable as assault.
If this Bill is passed as is then any action will be prosecutable.
Adv Masutha: this is an invasion of a child’s right to dignity. I cannot smack my wife. If I do, I violate her rights. Does Constitution afford the right to dignity in the same way to children as it does to adults? No comprehensive review of parent child relation in terms of Constitution and international law since 1994.
Mr de Kok: the Committee needs to have a clear intent, the link between (2)(3) and (7) suggest that there must be a limitation. I saw (7) as a separate offence more than physical. Our reading was that any form of assault will be criminalised in terms of (3); furthermore other forms may be an offence in terms of (7). There is a lot of confusion.
Adv Masutha: there are a number of issues that we have to resolve:
1. The first is the interpretation of the legislative arrangements. The Department of Social Development says any form of a smack should not be permissible. That is the formulation in the Act and the Children's Amendment Bill, that is, a prohibition on all forms of physical invasion. Is this how the Act will be interpreted?
2. Is that the position we want to sustain?
3. Is abuse wide enough to cover this prohibition.
4. Once you create a prohibition you want consequences to flow.
Ms van Zyl said she wanted corporal punishment to be acceptable in some circumstances. This framework means all forms would be outlawed – it is very clear corporal punishment is a no-no.
The discussion was interrupted so that Ms Hendrietta Bogopane-Zulu could officially hand over the position of Chair to Adv Masutha.
Ms Bogopane-Zulu (ANC): I will be studying all week and so will not be part of the discussion. On the issue of corporal punishment, we are in the business of protecting child. My position is clear, I am sorry I won’t be around when it is discussed.
I must hand over as the Chair. The Committee was dealing with Clause 136 on Child-headed Households. The process we followed was clause-by-clause making sure we understand the submissions. In Clause 136(1)(a) added “guardian”. The Committee broke without agreeing on 136(5) decision not taken, except that the drafter was to look at the Social Assistance Act. Ms van Zyl was reading the Bill and Ms Yolisa Nogenga was reading the public submissions.
The Portfolio Committee returned to the discussion on Clause 139.
Ms van Zyl: if there is any confusion, it must be redrafted. From a legal point of view the only thing that is necessary is to abolish the defence of reasonable chastisement of a child. The Constitution contains the right to no violence and any transgression can be prosecuted under the common law as assault. But if you do this, everything becomes prosecutable. Inputs from the public showed that people wanted a clear prohibition – but need a time period to train parents. Do not want to prosecute in every case. Committee must give guidance, on the basis of marrying the duty of protecting children and avoiding multiple prosecutions.
Adv Masutha: there maybe confusion, but there is not contradiction, the clause fits with the rest of the Bill. I had requested a legal opinion from the parliamentary legal team to see if the Constitutional Court principles apply to children in the home. The State Law Advisor to look at the judgements on the matter, review cases the court will be consistent with previous judgements.
Ms Dudley: The major emphasis/ clear warning in that judgement was not to interfere in communities understanding their responsibility before God. What will be the implications in reality?
Adv Masutha: NPA indicated that every offence must be prosecuted, but there is discretion.
Mr de Kok: It is a policy decision by the Committee and Parliament - absolute provision or some scope for exclusions – like smackings. Useful to give consideration to impact. There will be practical implications but no research done, increased crime rate and victimisation. May be unfair to leave the decision with the NPA as to which cases must be prosecuted. If all forms of violence against a child be taken to court. It is a value judgement as to what is serious and what is not. Do not want to put that onto the NPA. If the law is clear that assault on children is the same as adults, then we know how to act.
Adv Masutha: Is your concern that the flood-gates might open? Are you saying that certain moderate forms be tolerated?
Mr Greyling (ID): currently against the law to smack children but defence of what is reasonable prevents prosecution. What is the position of the NPA? Will there be a review of the existing cases where charges have been brought but conviction has not been secured because parents used the defence.
Adv Masutha: in common law, corporal punishment is not abolished. In Roman law you could beat up anyone - your slave, your wife, your workers.
Mr de Kok: as soon as we remove the defence, the NPA has no choice but to prosecute.
Adv Masutha: only when you feel that it is not a prosecutable offence that discretion comes in.
Mr de Kok: we have to prosecute if someone brings a case of assault. If someone smacks an adult we have to prosecute.
Adv Masutha: but must take into account if it is a trivial matter.
Mr de Kok: generally we do not see assault as a trivial matter.
Adv Masutha: it is about the invasion of a person’s dignity not the level of physical injury.
Mr de Kok: evaluate the nature of the case fix an admission of guilt – still a prosecution – may be a fine of R300.
Adv Masutha: that is a month’s savings for a poor family.
Mr de Kok: if the person says not me then case goes to trial. Once defence of reasonable chastisement is removed we must prosecute every case. All those cases must go to court.
Adv Masutha: principal act does not remove the defence in the common law.
Mr de Kok: factors that should be considered:
- View of the victim
- Not about trivial or not trivial
Adv Masutha: there may be other measures that can be taken – diversion might not be appropriate, but there could be other alternatives. Fines, parenting programmes. Clause 139(6) coupled with (7) shows that prosecution is not the only way. Penalty is in Clause 139(6) the parenting programme. If we say that the punishment is only the programme then are we opening this up to fewer prosecutions.
Mr de Kok: if you want to create some caveat around what is reasonable, they must say that. As soon as you remove that defence, all cases must be taken to court.
Adv Masutha: what if we say for all minimum smacks, penalty is parenting programme. Then if the parents refuse to participate, we go to prosecution. We will return to the issue, when we get something in writing from the NPA and the drafters.
Adv Masutha: Ms van Zyl is not available on Friday, therefore the Bill must be finished by Thursday. Caucus must be briefed on Thursday. Sit all day Wednesday.
Ms Semple: no caucus on Thursday, therefore can sit all day, but that leaves no party position from caucus.
Ms Dudley: must forgo caucus on Thursday, as we will not have completed our deliberations by Thursday.
Adv Masutha: the day after final decisions - 17 October - is caucus. Crisis will be dealt with then.
Deliberations on the Children's Amendment Bill
Clause 136: Child headed households
Ms van Zyl: the issues on which the Committee agreed was to insert “guardian” in Clause 136(1); and after “the supervising adult must” in Clause 136(3), insert “be a fit and proper person”.
Ms Dudley: can we have the input from the hearings before we go on to (4).
Ms Nogenga (Researcher) read out all submissions in the revised Summary of Submissions (including all the CINDI recommendations and the HIV sub-group recommendations)
Ms van Zyl: another issue that was raised by the Committee was how many children can be supervised by one adult. The proposal was to remove the number “12” and put into the regulations.
Adv Masutha: discretion will create uncertainty.
Dr Mabetoa: supervising adult is not a parent substitute no parental responsibilities and rights, just supervision provision of basic needs.
Adv Masutha: 12 children in total or 12 households?
Dr Mabetoa: the location makes a difference, if you have 12 children in one house that is different to 12 houses with one child.
Ms Weber: make it discretionary.
Adv Masutha: make it discretionary up to a maximum.
Ms Dudley: how restrictive would 12 be? What about if there are two child-headed households with five children and only one adult that is ok to supervise child-headed households in the area; then you get a third family nearby with three children? No help can be given to them.
Dr Mabetoa: experience of 12 is based on the Isibindi model. Through experience advised limit. They did not specify 12 that came from discussions with the NGOs.
Adv Masutha: in favour a limit, but how much?
Ms Semple: maximum of 12 at the discretion of the Department of Social Development.
Ms Musa Mbere (DSD): criteria could be age of the children, and their needs.
Adv Masutha: all those criteria could be applied to all numbers of children.
Ms van Zyl: should not be left to Department of Social Development, could be in the regulations. There could be consultations with civil society to determine appropriate number. This could also be easily amended.
Adv Masutha: problem tendency to ignore the regulations, lax officials bend the rules. There are financial incentives involved here. They could start cutting corners if it is not in the law, start packing children under the care of one adult. Officials understand the law.
Ms Dudley: we would look at the regulations.
Adv Masutha: regulations tend to be far less accessible than acts of parliament. Taking away our own role in making law – we should guard jealously our role unless it is absolutely necessary. May be we could put it into norms and standards. Not crucial point to put in the law. Some kind of tool needs to be in place.
Ms Dudley: would we then be putting that the number of children would be specified in the norms and standards.
Dr Mabetoa: could phone NACCW at lunch time. Support the norms and standards issue.
Ms van Zyl: See page 19 clause 106 (2) norms and standards could relate to child-headed households.
Adv Masutha: ok. Don’t put in the number but require there to be a number in the norms and standards.
Ms van Zyl: clarify the decision - remove number from Clause 136(3)(b) change norms and standards to require the number be determined by the Department of Social Development.
Ms van Zyl: Childline/SACBC re: training for child-headed households. Don’t stipulate the content of programmes in the law.
Ms Semple: Clause 136 (1)(a) add “abandoned”
Ms Dudley: need for training of the children?
Adv Masutha: don’t want fragmentation. The main clause in prevention and early intervention provides for training of the adults, no?
Dr Mabetoa: supervising adult should be trained, and be a fit and proper person. Isibindi uses child and youth care workers. The model uses skilled adults.
Adv Masutha: the standard that has been set is to use trained child and youth care worker.
Ms Semple: support proposal to have trained adult supervising the children.
Dr Mabetoa: don’t want just anyone to be doing the job.
Adv Masutha: suggestion meet into the late nights and the weekends to meet the deadline.
Adv Masutha: does this clause serve to make the adult a foster parent in terms of the Social Assistance Act. At best they could get the Child Support Grant. We may want to clear this.
Ms van Zyl: This supervisor could be appointed by the court.
Adv Masutha: even so
Hilda Weber (DA) foster parent must live on the same premises as the child.
Adv Masutha: this system is not covered in the Social Assistance Act. If the intention is to access to Foster Care Grant we must be clear about that.
Dr Mabetoa: there are practical instances where an adult is appointed to stay with the adult. The second option is for the organisation to receive the Foster Care Grant (FCG). In terms of child-headed households
Ms van Zyl: if children are placed in foster care they are no longer in a child-headed household. In terms of the cluster foster care scheme must be a person living with the children.
In terms of child-headed household there is no adult in the household.
Adv Masutha: the concept of cluster foster care what is it?
Ms van Zyl: dealt with under Chapter 12, wait until then. If child-headed households are placed in foster care scheme, there must be an adult living with them.
Dr Mabetoa: there are various ways in which the children can be taken care of. Some children could be left money from the parents’ estate, an adult must help them with spending.
Adv Masutha: isn’t that the function of the Masters Office?
Ms van Zyl: Guardians’ Fund – if the child has estate must be paid into the Guardians’ Fund only a guardian can access the fund. If there is no guardian in the will, there must be a High Court application. That is why we were rooting for change in jurisdiction to have guardian applications decided in the Children's Court.
Adv Masutha: not sure that Master’s Office have understood the problem. Should they develop the capacity to deal with the issue? Children may want to remain on own, then they do not get the money in the fund.
Ms van Zyl: Koko July suggestion more frequent visits - can be taken care of in the norms and standards.
Help with spending and access to healthcare is not through food-parcels Children's Amendment Bill gives these households help through the supervising adult.
Ms Dineo Dikwankwetla: to access the R620, cannot review the Social Assistance Act here.
Adv Masutha: this could be a spring board. Takes forever to make the placement. Problem in Tshwane, social workers bring the same report just change the names. Child-headed households could be a stop-gap matter.
Ms van Zyl: “Children in child-headed households should have recourse through prescribed procedures, to hold the adults supervising them to account” dealt with in (4) and (5).
Ms Mbere (DSD): these children would be offered a basket of services.
Ms van Zyl: discuss when we get to (8)
Provision for children who are unhappy - no provision that gives them recourse to review.
Dr Mabetoa: if there is a breakdown between the child and the adult in foster care placements, the social worker will intervene. Assist the family or remove the child. It goes without saying that there will be some review by the NGO or the social worker.
Adv Masutha: is there a general provision to ensure that there is room for the child to cry out, if there is a problem. All matters affecting the child the opinion of the child must be taken in to consideration but is this enough? All these things that we are doing in the best interest of the child may not be best in the opinion of the child.
Ms Semple: biggest fear is that the supervising adult who is in the position to exploit the Child Support Grant will not be found out. They are supervising up to 12 children there could be delays in finding out if no mechanism.
Ms Direko (ANC): I know of cases where there was a gentleman’s agreement between the social worker and the foster parents. The grant was not used in the best interest of the child, the child can only run away. I have gone to several cases where the grant has been abused. We must insert some safety valve to ensure that the money that is meant for them is used for the children.
Adv Masutha: improve the levels of accountability in the child care system. Things don’t always go well.
Ms van Zyl: abandoned the children – Department of Social Development has no objections to the inclusion of abandoned. There are many instances where the father is alive but they don’t know how to get hold of him.
Ms Semple: Samuel in Acornhoek, his mother was still alive.
Dr Mabetoa: even if there is provision in Clause 150 to deal with abandoned children. It gives a double provision.
Adv Masutha: it is critical to include abandoned. Do we have a clause that forces department to deal with the children as a collective? To establish if the child has any siblings?
Ms van Zyl: Clause 154 children in the same place or premises must be investigated if one child is being removed because they are deemed to be children in need of care and protection.
Adv Masutha: is that sufficient connectivity?
Ms van Zyl: Clause 154 only covers one situation.
Dr Mabetoa: social workers are trained on investigating the social history of the family. It is common practice when you go to court you must give those details, not necessary to spell out in the law.
Adv Masutha: want the law to be clear.
Ms Mbere (DSD): is there a way of linking this section to Clause 150?
Agnes Muller (DSD): the social worker report is prescribed - it is very detailed and includes family history.
Adv Masutha: yes we hear you but there is nothing that stops us putting it in. It does no harm – if you think it will be harmful then leave it out. Everything is prescribed in social work practice, but make intention clear in the law.
Ms van Zyl: (d) says that children must be investigated by a social worker does that not cover it. Even if the children want to remain in a child-headed household but it is not in their best interest then their opinion will be overridden.
Ms Dudley: recognise and assist immediately.
Adv Masutha: what are the options after the investigation. One of the options after investigations.
Ms Dudley: no disturbance then until the investigation.
Dr Mabetoa: dealt with as all other children in need of care and protection. CBOs and NGOs. Will have to apply to other measures until the investigation is complete. Don’t want to confine the social workers.
Ms van Zyl: as the law now stands is children in need of care and protection according to Clause 150 (1) they are children in need of care and protection. They are abandoned or orphaned. An additional model has been designed this is an alternative to child and youth care centre or alternative care.
Adv Masutha: social worker has discretion.
Ms van Zyl: no the court decides.
Adv Masutha: if it goes to the court first then they decide. Not always court. There are other routes. It is the discretion of the court.
Mr Solo: through your investigation have resolved the issue should not overload the clause. Must be flexible, bring in the community and the indigenous practices.
Ms Dudley: is there a need for immediate supervision and access to money. If we recognise immediately can access funds.
Dr Mabetoa: once the social worker intervenes pending investigation. If there is a need, that will happen. There are always options.
Adv Masutha: the head of a child-headed household is in the Social Assistance Act. The age there is 16.
Ms Dudley: if the department is saying there is no hold up then it is fine.
Adv Masutha: must look at very carefully.
Ms van Zyl: Clause 150(2) imposes duty to investigation remove (d) can immediately appoint supervisor. Therefore no time delay.
Adv Masutha: Is the intention to make the supervising adult or the child the care-giver.
Ms van Zyl: (4) and (5) Cabinet committee afraid that the supervising adult would abscond with the money.
The age of 16 not in the Social Assistance Act – identity document (must be at least 16). (5) is a mistake.
Money cannot be collected by both NGO or child/adult. NGO red tape could lead to long delays.
Adv Masutha: Social Assistance Act is clear, you must be the primary care giver. Is that the child or the adult? If we are saying that the child is the primary care giver then what is the point of the adult. Cannot create two parallel systems, cannot amend other laws here. Officials will have to make sense of this. Child heading the household is the primary care giver. (4) and (5) to be redrafted in line with the Social Assistance Act.
Ms van Zyl: from (8) remove “for poor households and vulnerable children”
Adv Masutha: regarding 136(8) we are throwing a net without knowing where we are throwing it.
Ms van Zyl: section was included in B19 of 2006 which is the Bill that was passed by Cabinet. This is not a positive obligation. Only states that children cannot be excluded from
Dr Mabetoa: children having recourse if they are having problems with the no provision here. Strong lobby.
Adv Masutha: didn’t we say have general mechanism?
Dr Mabetoa: only for formal placements, these children are not covered.
Adv Masutha: where problems arise out of the general parent child relationship they are dealt with in the Act. Additional caution should be taken where state has responsibility. There should be easy mechanism for child to seek redress. Impose a duty on the social worker to write a regular report where they speak to the child.
Ms van Zyl: at one stage there was a Child Protector - now removed, the Department of Social Development was to take over that function.
Adv Masutha: compulsory reporting covers neglect that would cover this?
Ms van Zyl: that is a child in need of care and protection there is no restriction on reporting. Just compulsion to report certain things.
Other issues – do not impose adult duties on the child. Change (7). Then delete “as if the child was an adult care-giver.”
Adv Masutha: are they guardians?
Ms van Zyl: no, they are care-givers not guardians. Legal Aid Board is inundated with applications for guardianship, they are all expensive High Court applications. If the child needs a passport to go abroad there is no-one to make that decision unless the High Court.
Adv Masutha: raised the issue at the recent Magistrates forum. They said they don’t see why they can’t deal with the issue.
Mr Solo: Magistrates don’t understand the rationale for not making the change. Historically magistrates were people of good standing with no legal training. Now they must have legal training.
Adv Masutha: The Department of Justice’s plan was to have the new family court to assume most of these functions. We are not finished with this issue and will have to bring the Deputy Minister of Justice back in front of the Committee.
Ms Semple: support in (7) the deletion of the reference to children as adult care-givers.
Ms van Zyl: Other recommendations consult with the adult where the adult is terminally ill. Other issues are covered by the norms and standards.
Adv Masutha: the circumstances would dictate whether consultation is appropriate.
Decisions amend section 136 as follows:
Words underlined indicate insertions, words bracketed in [bold] indicate sections to be deleted
136. (1) A provincial head of social development may recognise a household as a child-headed household if―
(a) the parent, guardian or care-giver of the household is terminally ill or has died, or has abandoned the children;
(b) no adult family member is available to provide care for the children in the household;
(c) a child over the age of 15 years has assumed the role of care-giver in respect of the children [a child] in the household; and
(d) [the children in the household have been investigated by a social worker as contemplated in section 150(2); and
(e)] it is in the best interest of the children in the household.
(2) A child-headed household must function under the general supervision of an adult designated by―
(a) a children's court; or
(b) an organ of state or a non-governmental organisation determined by the provincial head of social development.
(3) The supervising adult must—
(a) perform the duties as prescribed in relation to the household;
(b) may not supervise more than  the prescribed number of children in child-headed households;
(c) must be a fit and proper person and must be suitably qualified.
Subsections (4) and (5) are to be redrafted in line with the Social Assistance Act
(4) (a) The child [at the head of] heading the household or the adult contemplated in subsection (2) may collect and administer for the child-headed household any social security grant or other assistance to which the household is entitled, subject to the
(b) An adult that collects and administers money for a child-headed household as contemplated in paragraph (a) is accountable in the prescribed manner to the organ of state or the non-governmental organisation that designated him or her to supervise the household.
(5) (a) The organ of state or non-governmental organisation contemplated in subsection (2) may collect and administer for the child-headed household any social security grant or other grant or assistance to which the household is entitled.
(b) An organ of state or non-governmental organisation is accountable to the provincial department of social development or the children’s court for the administration of any money received on behalf of the household.
(6) The adult referred to in subsection (2) and the organ of state or non-governmental organisation referred to in subsection (3) may not take any decisions concerning such household and the children in the household without consulting –
(a) the child [at the head of] heading the household; and
(b) given the age, maturity and stage of development of the other children, also those other children.
(7) The child heading the household may take all day-to-day decisions relating to the household and the children in the household [as if that child was an adult care-giver].
(8) A child-headed household may not be excluded from any grant, subsidy, aid, relief or other assistance or programmes for [poor households and vulnerable children] provided by an organ of state in the national, provincial or local sphere of government solely by reason of the fact that the household is headed by a child.