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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
16 November 2004
REPORTS ON DEPARTMENTS’ SUBMISSIONS: CONSIDERATION
Chairperson: Ms T Tshivase (ANC)
Documents Handed Out
Key Issues Emanating From Briefings on the Children’s Bill [B70 – 2003]: 12 November 2004
Key Issues Emanating From Briefings on the Children’s Bill [B70 – 2003]: 16 November 2004
Parliamentary researchers summarised the submissions that had been presented by various state departments on how the Children’s Bill [B70-2003 Reintroduced] would impact line functions. The discussion highlighted ongoing confusion surrounding the Bill’s division between Section 75 and 76 Bills, and thus related functions. The Committee emphasised the need for an inter-department approach to the safety and protection of children, that would involve the South African Police Service (SAPS), the Departments of Correctional Services, Education, Justice and Constitutional Development, Health and Labour; the National Treasury, and the Office on the Rights of the Child in the Presidency.
South African Police Services submission summary
Mr F Abrahams (Information Services: Research) presented a summary of the brief presented by the South African Police Service. See presentation attached.
Mr B Solo (ANC) asked that the issue of the removal of the abuser be noted, although this related to the Section 76 Bill. The issue of holding cells had to be raised with the SAPS yet again, as there was still no mechanism conducive for children to be held without adults. The SAPS had to conform to the correct standards legislated in the Bill.
Ms H Bogopane-Zulu (ANC) asked what this meeting intended to achieve.
Adv M Masutha (ANC) explained that this exercise was part of the process to develop the Bill. Public and department hearings had been held on implementation of the Bill and specific functions, so that they could propose legislation to fix any gaps. Then there had been the provincial visits to ascertain the situation on the ground. Then summaries had been made of the three exercises in order for the different sectors to implement aspects of the Bill. The Department would go through the same process to ‘fill the gaps’. It was also an opportunity for the Committee to see that the Department had done enough. Ultimately, what came out of whole this process, would add to the completion of the Section 75 Bill
Adv Masutha asked how child abuse was being dealt with in the Section 75 Bill. Was the issue of removals dealt with in the Section 76 or the 75 Bill? Secondly, he asked about the function of Child Protection Units. Was it a statutory function? What training or vices was applied to this unit? He was dissatisfied that Child Protective Services were not sure how many police stations had units.
Adv Masutha asked about Chapter 19 that dealt with child trafficking and Chapter 18, which dealt with child abduction. These were a result of international conventions. It was not clear what role the SAPS played. It seemed that the Departments of Justice and Social Development had the central roles.
Dr M Mabetoa (Department) said that, regarding child trafficking and abduction, a consolidated report would be compiled after these meetings. The Department wanted the Committee to confirm their priority issues. In January, they would present the Bill clause by clause.
Ms Bogopane–Zulu and another Member felt jumping between the two Bills was extremely difficult and confusing, as the Research Service report had not allocated issues to the Sections 75 and 76 Bills.
Dr Mabetoa requested the Committee to give direction about which clauses should move to different bills. The Department’s intention was to present the Section 75 clauses to the Committee in January. For example, the role of the SAPS in Sections 75 and 76 had to be clarified. She also mentioned the Child Protection Register, which involved the police.
Adv Masutha that this was not structured process, and would have been more beneficial if the Department had presented their challenges. A more detailed briefing was needed from the SAPS about child abuse, trafficking and abduction. He wanted to know more about the integrated approach.
Mr Abrahams explained that the presentation was in response to the brief, which had instructed the Research Service to respond to the issues emanating from the briefings. He acknowledged that it would be a good idea to compile a longer report involving comparisons.
Dr Mabetoa pointed out that different departments had not put the Bill together. A project team had been made up of different stakeholders. Officials from different departments had become involved in January 2003. The Department was currently preparing a letter to send to the Director-Generals of the different departments to nominate an official to sit on the Steering Committee. A workshop would be on 1-2 December which would include presentations on Department issues.
The Chairperson asked why the meeting would no longer be held on 8-9 December. Dr Mabetoa said availability of officials was a problem.
Mr Solo asked if the issue of street children would also be dealt with at the workshop. Usually a Bill was passed by Cabinet, with all the heads of Department present. It was strange that the other departments had not been involved until now. From now on, all affected departments should be involved, with senior officials present who could direct policy.
Adv Masutha said that the process and identified legislation gaps meant that the Bill could not be dealt with quickly. In 1997, the matter had been referred to the SA Law Commission and multi–sectoral stakeholders had engaged with policy at that level. When the Bill went to Cabinet, there were no between departments. Huge chunks had already been cut out and the Bill was not ready when it came to the Committee. Thus the Committee could not just ‘rubber stamp’ the Bill.
Correctional Services submission briefing
Mr F Abrahams (Information Services: Research) presented the summary of the brief presented by the Department of Correctional Services. See attached presentation.
Adv Masutha said that the law for children should protect all children, including those in detention centres and facilities. He raised the issue of children in Lindlela who had been removed. This Department intervention had been necessary because children were in need of care and protection. What were mandatory obligations regarding children’s protection?
Adv Masutha was concerned about mothers with their children in prisons. What were the long-term psychological effects of being raised in a prison environment, even under the care of a mother? This would be relevant in determining policy. How long could children reside with their mothers until an intervention was made? Had there been relevant discussions about this?
Adv Masutha said that it was not acceptable that the Department of Correctional Services (DCS) had said that they were not responsible for educating children in prison. The Department of Social Development had to facilitate the legislation around this. The departments should to debate the issue and come back with clear intersectoral connectivity.
Mr Solo agreed that there was no way that the Department of Correctional Services could say that education was not their core function. What comparative studies had been done on the actions of counterpart departments in other countries?
Dr Mabetoa spoke on the interconnections of the Children’s Bill and the Child Justice Bill. They had been developed in a parallel process, and thus the Bills were interlinked. The Children’s Bill had to do some close-referencing to the Child Justice Bill to solve children in prison issues.
The Chairperson said that during the provincial visits, Corrections staff had raised this issue. They had also raised that police officers were ‘dumping people in jail’ for long periods for stealing a banana or bread.
Dr Mabetoa said that SAPS were not dumping people in prisons. Magistrates that remanded people for long periods.
Adv Masutha said this was partially correct. During the provincial visits, the magistrates had explained that in order to refer a child to a children’s facility, the Department of Social Development had to provide written confirmation that they had a bed for the child. If the Department said that they were full, they had no choice. Magistrates had no control over the facilities. The cost of keeping a child in facilities amounted to R20 000 per year and sometimes higher. Legislation had to cover other avenues for magistrates.
Dr Mabetoa said that under the Probation Services Act, probation officers were meant to recommend proper facilities for children. There was a lack of communication between probation officers and magistrates. They had to ask the provinces to have strong inter-sectoral collaboration to deal with this. Distances were also a factor. By January 2005, the Department would have a report on the issue. They were also training probation officers.
Mr Solo said that there had to be uniformity regarding mothers with children in prisons. Was the cut-off age five or two? He was also worried about the legislation with regard to placing children. In parts of KwaZulu-Natal, children’s facilities were was over 400 kilometres away. Three departments needed to look closely at the issue.
Ms H Weber (DA) said that the age of removal of children from their mothers in prison should depend on the length of the former’s sentence. She wanted to know whose job it was to inform the magistrates about the probation officers who were the solution to the problem.
Adv Masutha asked which law currently governed when children were removed from mothers in prison. Was it dealt with at policy level within Corrections, or should the Committee deal with it?
Mr A Theron (Department) said that Section 20 provided for children under the age of five. This issue raised the concern about what was best for the child. There had to be a discussion between departments because clarity was needed. They had to know the implications for the child of being raised in prison, versus the emotional ties with the mother.
Dr Mabetoa said that international research had shown and the trend was to keep children with their mothers. The Department would investigate.
Mr Theron said that regarding probation officers placed at court, Magistrates were aware that probation officers were there to work with them and other legal structures.
Ms M Makgate (ANC) said that probation officers should be in court. During the provincial visits, they had learned of the serious problem of scarce probation officers.
Adv Masutha said the Committee wanted a comprehensive strategy, as set out in the Bill. Until the inter-sectoral issues were resolved, there was no way the Bill could be passed. With the passing of the Probation Services Amendment Bill (PSAB), the Department had presented that they had enough probation officers to service every court. The Department had said that if a child was arrested, it was possible to for a probation officer to do an assessment/evaluation within 48 hours. If this was not happening, the Department should report on that.
Mr Theron pointed out that in that in one discussion, the Department had proposed that each child be evaluated within 48 hours. In that discussion, the Department had presented that there were not enough probation officers, and so social workers were working as probation officers. They had needed probation officers to specialise and appoint additional probation officers. The link between the two processes was the Children’s Bill and the Child Justice Bill. Whatever had already been dealt with, should be taken into account.
Dr Mabetoa reminded the Committee that probation officers were social workers. There was a high staff turnover in this sector. There was a meeting scheduled with provinces to ensure that probation officers were appointed. The Department was struggling to replace them. Ideally there should be two probation officers per Magistrate’s court.
Adv Masutha said that he had been hearing about the retention strategy for some time. Early next year, the Department had to present on the retention strategy and the role of the Social Work Council in dealing with lack of capacity. He raised the issue of the Bill creating additional statutory rights. Although the matter had not been resolved, it was his view that this should be rejected. The Children’s Bill had to strive to comply with the UN Conventions. Ten years from now, they could look at adding additional rights for the Children’s Bill. They had to be realistic about what could be achieved.
Mr M Walters (DA) said that institutions like the Public Protector had been removed because of costing. The Committee had never been given a costing on the Bill. They needed to see the costing if this justified certain removals.
Dr Mabetoa said that the Department was organising a preliminary costing. They had advertised the tender and the Finance Committee was considering the appointment. The costing would take 5-12 months to complete.
Mr Walters said that this was a costing of the current version of the Section 75 Bill. They needed a costing of the original unified version and the current split one because things had been removed.
Ms Bogopane–Zulu said that they could only cost the Bill that was before Parliament.
Adv Masutha said that the Executive made policy and the once the Bill was before the Committee, it was up to them to make sure it was workable. They could only cost what was before Parliament. The old version had not been introduced to Parliament.
Education Department submission summary
Mr F Abrahams (Information Services: Research) presented the summary of the brief presented by the Department of Education. See presentation attached.
Adv Masutha supported the expansion of existing rights. The Department of Education had to ensure the right of uninterrupted education, and that children be allowed to play. The stated principles should insist that all the role players have collective responsibility for children to live with minimum interruption. The Department of Education had the ultimate responsibility of providing education, but an intersectoral approach was needed. Special education needs had to be taken into account, based on the inclusive education model. Every school had to be able to respond to the diverse needs of children. Abuse and broken homes were factors that should not prevent the participation of children in the learning process. Departments had to clarify existing synergies.
Dr Mabetoa said these points would be discussed at the workshop with other departments.
Justice Department submission summary
Mr F Abrahams (Information Services: Research) presented the summary of the brief presented by the Department of Justice and Constitutional Development. See presentation attached.
Ms I Direko (ANC) agreed with the removal of the Public Protector because this was a cumbersome structure.
Adv Masutha concurred. The current system meant teachers, nurses, doctors, etc., all had to report any violations. The creation of another structure was not necessary. Resources should be used to beef up the system instead of putting resources into new structures.
Ms Direko said that it would be a waste of resources to set up a new structure. The money should be used to improve the salaries of social workers in order to retain them.
Dr Mabetoa pointed out that the Child Protector was not in the Bill being considered. It had been raised by non-government organisations in the public hearings. Regarding the inter-sectoral relationship between the Departments of Justice and Social Development over the Bills, the Speaker had suggested that the Committee meet with the Portfolio Committee on Justice to deal with recurring matters like children awaiting trial and the Child Protection Register.
Ms Bogopane–Zulu said that the Maintenance Bill involved the Departments of Home Affairs, Justice and Social Development. These three departments were expected to work together. More Departments had to be brought on board with the Children’s Bill. At some stage, a way forward had to be discussion around the functions of the Section 75 and 76 Bills, as well as replications in the Sexual Offences Bill. There were serious implementation issues ahead. She agreed with the Child Protector removal. Other countries had reported that it did not work.
Adv Masutha said that other Acts would have implications on the Bill. The original idea was to have a comprehensive statute. From the onset, they had wanted to have children’s issues covered in one Bill. A range of laws had to be ‘synergised’. The Committee had wanted this process to give departments a chance to give input and review their own duties. Cross-referencing should not be lost. The jurisdiction of the courts regarding inter-country adoptions, also had to be looked at. Some functions had been devolved to the Magistrates level. What was being discussed there?
Dr Mabetoa said that adoptions had been devolved to magistrate level. The matter would be addressed next year with the Committee on Justice, as it was a policy issue.
Health Department submission summary
Mr F Abrahams (Information Services: Research) presented the summary of the brief presented by the Department of Health. See presentation attached.
Mr Theron said that the National Policy Framework (NPF) referred to the National Plan of Action for Children that had been driven by the Department of Health through the Office of the President.
Adv Masutha said that a policy on children was necessary and should not be confused with the legislative process. The Office of the Presidency was situated in an appropriate position to drive the process. The role was to maintain, co-ordinate and evaluate the service delivery of national policy. They should seek to pull together key departments around the central Department of Social Development. The departments were not accountable to each other, and so needed a policy framework.
Dr Mabetoa said that they needed direction. Different departments wanted to close the issue. It was a policy issue that had been considered in this legislation.
Labour Department submission summary
Mr F Abrahams (Information Services: Research) presented the summary of the brief presented by the Department of Labour. See presentation attached.
Adv Masutha asked about the prohibition of child labour, which was not dealt with in the Children’s Bill. If Departments had similar legislation, they should present this so all could agree on a common approach.
The Chairperson said that on their provincial visits, they had come across children working on farms and being paid with liquor. Who would rectify this - the Department of Justice or of Labour?
Dr Mabetoa said that all abuses should be reported. This would be taken up by the Department of Labour through the Children’s Court.
Mr Theron pointed out that this pointed to an integrated approach. However, some children could fall through the cracks. A more consolidated approach would be discussed at the workshop.
National Treasury submission summary
Mr F Abrahams (Information Services: Research) presented the summary of the brief presented by the National Treasury. See presentation attached.
Adv Masutha said a National Policy Framework (NPF) needed to be an inter-department plan that could be used, rather than be a hindrance. It was difficult to deal with issues such as costing. Certain institutional services were too high, and more information and debate was needed. They also needed to look at non-government facilities. Government facilities tended to be a ‘vacuum cleaner of resources’. Mr Walters agreed that the NPF suggestion should not be shelved.
Adv Masutha asked again if the costing would take 6 - 12 months to complete. How relevant was this to the Section 75 Bill? The cost implications needed to be clarified before passing the Bill. If it were relevant to the Section 76 Bill, then how long would the process take until completion?
Dr Mabetoa said that it would depend on the service provider. Once the appointment was made, a meeting would be held for the costing of the Section 75 Bill. Costing had already been done at a national level. Most of the costing was needed for the Section 76 Bill that would be dealt with half way into next year.
Office on the Rights of the Child in the Presidency submission summary
Mr F Abrahams (Information Services: Research) presented the summary of the brief presented by the Office on the Rights of the Child in the Presidency. See presentation attached.
Adv Masutha asked to what extent the Office was involved in the development of the Bill. Would they be at the workshop, and how were they driving the process?
Dr Mabetoa said that they had been invited to the workshop. There was a concern in the Task Team that the Office was not driven by legislation. They had limited resources, and their role was to monitor how government and civil society adhered to legislation. They monitored the high level inter-sectoral approach and collaboration.
Adv Masutha said that the Office should be given statutory recognition at the workshop. Thus the NPF should not be taken off the agenda yet.
Ms Direko agreed. They had to tread carefully before duties were given to the Office. They had to ensure that this Office could monitor and had the capacity.
Dr Mabetoa said that it would be important for the Office to report to this Committee. They currently reported to another Committee, which was a gap in the system. Ms Direko agreed.
Mr Solo said that there was a need for statutory obligations for this Office.
Mr Theron suggested that there was a need to unpack the role and responsibility of the Office. It was important to give the Office a legislated mandate through this Bill or all Bills regarding children. A broader approach should be considered to deal with this concern.
Adv Masutha said that all the key players would be at the workshop. All the issues raised would be debated, and then reported back to the Committee.
The meeting was adjourned.
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