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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
16 February 2005
CHILDREN'S BILL DELIBERATIONS
Chairperson: Mrs TJ Tshivhase (ANC)
Children's Bill [B70-2003 Reintroduced]
Clauses to be added to the Children's Bill [B70-2003 Reintroduced]
Proposed Amendments: Clauses in section 76 Bill to be added to section 75 Bill
The Committee discussed clauses 2 to 11 of the Children’s Bill. Members were not entirely comfortable with including a provision that stated that clause 3 would prevail over other national legislation that dealt with child protection. This was especially the case given that other legislation sometimes provided better remedies than the Bill. The Department would look at the Committee's concerns and address them at a later stage.
The Committee felt it was important to stress the principle of intersectoral collaboration in the implementation of the Bill. Chapters 2 and 3 would be combined under the heading "General Principles and Rights". Clause 11 was rejected because it could lead to problems of interpretation and also dealt with issues that were covered by the Constitution and other legislation.
The DSD was represented by Dr M Mabetoa: Chief Director; Ms A Muller, Mr P du Preez and Mrs M Ngcobo-Mbere (Director). Ms R van Zyl (Researcher) and Ms L Stuurman (Researcher) represented the South African Law Reform Commission. Mr O Kellner (State Law Advisor) and Ms L Petersen (Parliamentary Liaison Officer) also attended the meeting.
Ms du Preez presented the Bill clause by clause and Ms Stuurman highlighted comments that were made during the public hearings on each clause.
Clause 2: Objects of Act
Mr M Masutha (ANC) said that a glaring omission from the clause was the objective to give effect to the rights of children as provided in the Constitution. He felt that the Bill had to give effect to the Bill of Rights before seeking to give effect to South Africa's international obligations. He noted that even the long title of the Bill made no reference to giving effect to the Constitution. The clause could be limited to certain sections of the Constitution.
Ms van Zyl was concerned that the Constitution might be a bit broad for the purposed of the Bill.
Mr M Waters (DA) said that the Committee should not limit itself to the Bill of Rights.
Ms S Rajbally (MF) asked if the word "structures" in clause 2(a) referred to accommodation for children.
Ms Stuurman said that the Children's Institute had submitted that clause 2(a) should read "to make provision for structures, services and means for promoting the survival and sound physical, mental, emotional and social development of children". The Department preferred to leave the word "monitoring" in the Bill to cater for instances where the Department might want to monitor if the objects were being implemented. It also did not agree with the replacement of the word "intellectual" with "mental". The word "psychological" could be added in order to be consistent with paragraph (e) in the definition of "abuse".
The National Alliance for Street Children had suggested the addition, after paragraph (a), a paragraph (b) which would read " to assist families to care for and protect their children". The Department decided to add after the existing paragraph (b), a clause (c) that read " to promote the preservation and strengthening of families".
Clause 3: Conflicts with other legislation
Mr Masutha asked if the Department had looked at all laws that were potentially in conflict with clause 3(1)(a) and made a value judgement that the Bill should trump other legislation. He asked if the clause referred to existing laws or even laws that might be passed in the future. The clause could be construed to limit Parliament's powers to make laws and this could be unconstitutional. The Portfolio Committee on Justice had to look at all legislation that regulated access to information before passing a similar provision in the Promotion of Access to Information Bill. The Promotion of Access to Information Act trumped all other legislation that regulated access to information except if that other legislation provided a better remedy. Both the Children's Bill and the Basic Conditions of Employment Act (BCEA) prohibited child labour. It the clause was passed as it was it was going to prevail over the BCEA despite the fact that that Act offered better protection. It was important to know the extent to which the Bill repealed both the common law and customary law relating to children.
Ms J Chalmers (ANC) agreed that the clause might create a minefield. A situation could arise whereby another law might be better than the Bill. It could be difficult for the courts to take cognisance of other laws because they would be bound by the provision of this Bill.
Mr Waters said that all relevant Departments appeared before the Committee and did not identify any problem with the clause.
Mr Masutha said that the Committee had a responsibility to exercise due diligence and not assume that Departments could have picked up all problems that existed. It was preferable to have a statement from all relevant Departments indicating that they had looked at their legislation and found no problems.
Ms H Bogopane-Zulu (ANC) said that there were too many laws that dealt with children and some had better provisions than the Bill. The Committee should be careful not to unintentionally amend other legislation. The Committee should find a way of dealing with the issue without looking at all other pieces of legislation.
Mr Masutha asked what would be lost if the paragraph was deleted. He asked if the clause was intended to create an interpretation rule despite the existence of an interpretation rule that provided that, in case of a conflict between an existing law and a new law, the new law prevailed depending on the context. There was an assumption that Parliament knew all laws that it had already passed.
Advocate Kellner agreed that there were rules of interpretation. The clause did not introduce any changes to the rules of interpretation. The only reason why the clause was in the Bill was to ensure that all people understood how the Bill would be applied. He suggested that the clause should be deleted.
Mr Masutha said that the rest of clause 3(1) was also covered in the interpretation framework contained in the Constitution. Advocate Kellner agreed.
Ms Mabetoa said that the intention was to have a comprehensive Bill on Children.
Mr Waters was surprised that Mr Masutha wanted the rights of children under the Bill of Rights to be included in the Bill but was opposed to clause 3(1). It was important to make law simple, especially for a layman who might have a Constitution at hand.
Mr Masutha said that the Constitution was one of the most distributed pieces of legislation.
The Committee flagged the issue for further discussion. The Department would look at the concerns and address them at a later stage.
Clause 4: Implementation of Act
Mr Masutha said that Chapter 2 of the South African Law Reform Commission Bill was rejected by Cabinet because it tried to address issues that were addressed under legislation that was being developed by the Department of Provincial and Local government. The concerns of Cabinet had to do with the details of the Chapter and not the principle of intersectoral relations per se. The principle of intersectoral collaboration was important for the implementation of the Bill. He wondered if this principle was addressed in the Bill.
Chapter 2: General Principles
Clause 5: General Principles
The Law Society of South Africa had submitted that the words "or sexual orientation" should be added at the end of clause 5(3) in order to bring it in line with the Constitution.
The South African AIDS Vaccine Initiative had recommended that clause 5(6) should be redrafted to provide for instances where a child alone, having regard to age, maturity and stage of development, should be informed of any action or decision taken in a matter concerning the child which significantly affects him or her.
Ms Stuurman said that the submission effectively meant that it would be possible for a child to go for HIV testing without parental consent. The Department suggested that the child and the person who had parental responsibilities and rights in respect of that child should only be informed where appropriate. For instance, the child would not be informed if he or she did not have the required maturity.
Ms Bogopane-Zulu asked who would determine the maturity of children. She wondered if it was necessary to list gender and sexual orientation as prohibited grounds of discrimination. There might be problems when disabled people, for instance, claimed that disability should be included as another prohibited ground of discrimination. All grounds of discrimination should be listed if one of them was listed.
Ms van Zyl replied that discrimination on the basis of gender was included due to the courts' tendency to award custody of children on the basis of gender.
Ms Bogopane-Zulu said that disabled people could also claim that custody was usually awarded to the parent who was not disabled. She proposed that the clause should not be amended.
Mr Masutha said that the clause was a classical example of trying to recreate the Constitution and this was done badly. The clause could be developed into something useful. The Bill seemed to tell legislators how to legislate and placed limitations on the power to legislate. This was inappropriate because Parliament derived its power to legislate from the Constitution. The clause seemed to suggest that all parliamentary Committees would have to look at this clause before passing any law. It was surprising that it did not refer to common and customary laws. It was important to know if the clause was setting norms and standards that provincial legislation would have to follow. He supported the provision contained in paragraph (b).
Advocate Kellner said that the clause did not prescribe how legislators should make laws. It also did not apply to national Parliament. It only provided that the clause should act as a guide. It did not set definite norms and standards that had to be followed. It was also aimed at laws that were still to be passed and not existing laws.
The Department proposed a sub-clause (7).
Clause 10: Child Participation
The Disabled Children's Action Group had proposed a sub-clause (2) which provided that children with disabilities must be supported, where appropriate, to enable participation.
Ms Bogopane-Zulu said that the words " where appropriate" should be removed from the proposed sub-clause.
Ms Stuurman said that the words were important giving the fact that the State might not have sufficient resources.
Ms Bogopane-Zulu said that the sub-clause was discriminatory. The government could not say that it did not have sufficient resources. If the words were not deleted, a school could refuse to admit a disabled pupil on the basis that it had no resources to assist the pupil.
The Committee agreed to leave the words "where appropriate" out.
Advocate Kellner said that clauses 9 and 10 should be elevated to general principles.
Ms Stuurman added that the Department had decided to combine chapters 2 and 3. They would fall under a heading called "General principles and rights".
Cause 11: Rights of children
Ms Stuurman said that the Department had rejected clause 11 of the Bill. It proposed a new clause that dealt with children with chronic illness or disability. There were many policies but very little legislation that dealt with chronic illness or disability.
Ms Bogopane-Zulu said that chronic illness should be separated from disability.
Ms van Zyl added that it was important to regurgitate things that were already covered in other legislation. Children's rights were covered in the Bill of Rights. Other Departments had legislation that dealt with issues covered in this clause. It would be important to invite the Master's Office to come and explain how they intended to protect children's rights to property.
The Chairperson asked how the issue of children awaiting trial was dealt with in the Bill.
Ms van Zyl replied that the Child Justice Bill would address the issue. Ms Mabetoa added that the Department's roles in terms of children awaiting trial were covered in the Child Justice Bill.
Mr Masutha agreed that it was not necessary to have the clause in the Bill. One could cover children's rights by simply stating that one of the objectives of the Bill was to give effect to the Bill of Rights. This could be done in the long title of the Bill.
Ms C Dudley (ACDP) asked if early childhood development was not the responsibility of the DSD.
Ms van Zyl replied that the Bill had a Chapter dedicated to early childhood development.
Ms Mabetoa added that early childhood development was a Section 76 matter. The Departments of Health and Education were also responsible for early childhood development.
Ms Dudley said that it was preferable to give children the right to access to early childhood development services.
Ms Bogopane-Zulu said that child prostitution was a form of child labour. She wondered if this was addressed in the Bill. She also asked how the Committee could enhance legislation that the Department of Home Affairs had on child pornography and trafficking.
Ms van Zyl replied that the Sexual Offences Bill dealt with the issue. In terms of the Children’s Bill, a child could be declared to be in need of care if he or she was exploited. The definition of exploitation included sexual exploitation.
Mr Masutha added that Section 28(1)(d) of the Constitution provided that every child had the right to be protected from maltreatment, neglect, abuse or degradation. Abuse would include sexual exploitation. Sexual exploitation would not necessarily be classified as prostitution. Any sexual services rendered by a child were referred to as sexual exploitation. It was important to understand that children under 15 could not work, not even as prostitutes.
Mr Waters said that the right to education should have been included in the long title of the Bill. He was surprised that torture was not included in clause 11(d) and that the long title of the Bill was not discussed.
Mr Masutha said that the long title of the Bill would change in light of the discussion that the Committee had. Advocate Kellner added that the long title was usually discussed after all clauses had been discussed.
Mr Masutha said that the Committee should be clear on what it intended to achieve. The Bill of Rights prohibited discrimination. He wondered if the Department intended to create special services for children with disabilities or chronic illnesses. There should be equal treatment of children as required by the Constitution.
The meeting was adjourned.