Children’s Bill: deliberations

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
10 November 2004
CHILDREN’S BILL: DELIBERATIONS

Chairperson: Ms T Tshivhase (ANC)

Documents handed out:
Department PowerPoint presentation: National Housing Programme and the rights of children

SUMMARY
The Department reported to the Committee that had acknowledged the need to address the issue of child-headed households. It would investigate how it could adjust current policies to address the issue. Child-headed households, depending on how one defined them, constituted 3% of the total number of households. The Department had no services to deliver in terms of the Child Care Act activities were regulated by the Housing Act. The current housing programme did not address the specific needs of children of child-headed household situations. It was agreed between 1995 and 1996 that special housing needs would fall within the ambit of the Department of Social Development and not the Department of Health. The Department of Health was busy assessing the Bill so that it could accommodate any obligations it placed on the Department. Such requirements would be factored into the Department’s policies.

Some members were concerned that the National and provincial Departments of Housing had too many lawyers and policy? experts who were not action oriented. It was felt that the housing policy was too rigid and did not take into account different circumstances that prevailed in different places. For instance, in rural areas there was no need to buy land before a house could be built. Most of the houses did not have services like electricity and sanitation. At the same the houses were very small. There was a need to adapt the policies to prevailing conditions.

MINUTES
Mr Louis van der Walt (Director: National Policy and Strategy) represented the Department of Housing (Department of Health). Dr M Mabetoa (Chief Director: Child, Youth and Family) represented the Department of Social Development.

The Committee had invited the Department to make a comprehensive briefing on services it was currently rendering in terms of the Child Care Act, if any, as well as on how the Children's Bill [B70 - 2003] Reintroduced would impact on its work. The briefing had to include aspects of shelter in situations of emergency especially for children, indicating whether or not there was a policy on provision of housing and shelter to children in vulnerable and destitute situations in the light of the Grootboom Case judgement. It also had to reflect on the Department's policy stance regarding access to housing by children in circumstances of child-headed households if it did have such a policy.

Mr van der Walt said that the Department had acknowledged the need to address the issue of child-headed households. It would investigate how it could adjust current policies to address the issue. Child-headed houses, depending on how one defined them, constituted 3% of the total number of households. These were largely found in non-urban areas. In very few cases parents made arrangements for someone to take care of the children in the event of their (parents) death. The Department of Housing had no strategy to deal with the problem. The concept of an extended family was fading. People did not take responsibility for their extended families. Children’s rights to property were violated in the event of their parents’ deaths.

The Constitution was very clear on the rights of children to housing and shelter. Children were currently excluded from accessing the national housing programme. The legal problem was that parents died intestate. The deceased’s estate would then fall under the Master of the Supreme Court who would have the authority to deal with the property. The Master was also involved where the deceased had left a will and the children were still minors.

The Department had no services to deliver in terms of the Child Care Act. Its activities were regulated by the Housing Act. The current housing programme did not address the specific needs of children in child-headed households situations. It was agreed between 1995 and 1996 that special housing needs would fall within the ambit of the Department of Social Development and not the Department of Health. There was no programme to address special housing needs except for certain additions to cater for disabled people who could live independently.

The housing programmes focused on a families and not individuals. Housing subsidies were given to adults who had financial dependants. New housing programmes were designed to at least accommodate children who were destitute. These were Emergency Housing Programme and the Informal Settlement Upgrading Programme that moved away from the qualifying beneficiary concept towards a community or areas based approach. The Emergency Housing Programme was necessitated by the Constitutional Court judgement in the Grootboom case. The programmes would focus on specific areas or a community’s needs as a whole. Although they did not specifically address the needs of children, at the same time they did not exclude them. There was a need to refine the programme so that they would specifically address the needs of children. The Departments of Social Development and Justice and Constitutional Development should be involved in the exercise.

The Department of Health was busy assessing the Bill so that it could accommodate any obligations it placed on the Department. Such requirements would be factored into the Department’s policies. The Department was aware that children’s right to shelter was enshrined in the Bill. However, the Department remained convinced that special housing needs remained the responsibilities of the Department of Social Development.

The Department had received the approval to outsource detailed investigation into the needs of child-headed households and to formulate a policy accordingly. A number of houses had been built since 1994. The investigation would focus on the protection of the rights of such children in relation to such houses. There was also a need to protect the investment the State had made in building houses.

There were various options that the government could investigate so as to address the housing needs of children. There was the institutional care option that the Department of Social Development was trying to avoid. There was also the home care facilities option wherein a group housing development would take place and there would be a care unit to take care of children. One could also use a combination of options or a rental scheme. The problem was that the Department of Housing could not enter into a contract with a minor. Having a guardian, foster care or other arrangements could solve the problem.

Discussion
Ms I Mars (IFP) noted that child-headed households comprised 3% of the total number of households. She asked how many children this represented. She felt that the main housing programmes contemplated by the Department had a peri-urban nexus and asked why this was the case.

Mr van der Walt replied that the programmes also catered for the needs of people living in rural areas. He could not say how many children were in child-headed households situations.

Mr M Diko (UDM) observed that the responsibility to cater for special needs houses remained with the Department of Social Development. He asked if there was co-ordination between the two Departments. Co-ordination was necessary to avoid long bureaucratic processes.

This question was not answered.

Ms F Batyi (ID) asked which provinces had the most numbers of child-headed households.

Mr van der Walt replied that the province in first position was Limpopo, followed by Kwazulu-Natal and then the Eastern Cape.

Ms C Dudley (ACDP) asked when the Department was likely to make its input on the Bill.

Mr van der Walt said that the Department’s legal section was busy perusing the Bill and would probably make a comment in early January 2005.

The Chairperson said that while the Committee was in the Limpopo province, it had come across an RDP house belonging to a certain individual. That person decided to leave and sell the house to some orphans. She asked how the Department dealt with such issues.

Mr van der Walt replied that the child who bought the house probably did not have the capacity to enter into a contract. Legally the owner could not sell the house to a minor. In 2002 the Department introduced the notion of a pre-emptive rights clause? which prevented the sale of a house.  It had to be offered to the provincial housing department before offering it to anybody else (is this really what they meant?  I am not aware of this requirement…). 99% of such sales did not reach the Deeds Office because they were informal in nature. Consequently it was difficult to control the sale of RDP houses.

Ms J Chalmers (ANC) asked how programmes that provided assistance to children in emergencies manifested themselves.

Mr van der Walt replied that current programmes were not specifically tailored to deal with children’s needs. Municipalities should liase with the Department of Social Department before assistance could be given to child-headed households. There were specific requirements that a person had to meet before he or she could get a house. The Department of Housing could not contract with a minor and hence some other arrangements like foster care were necessary.

Ms H Bogopane-Zulu (ANC) wondered if the Department’s programmes were doing what they were supposed to be doing. There was a need to conduct research to look at how to make the programmes function better and address issues raised in the Bill. The Department of Housing should remember that Africans were not used to making wills. This called for a clear strategy on how to deal with the issue of child-headed households.

Mr van der Walt said that the government had, despite some problems in the process, delivered a number of houses to the people. A survey across all provinces showed that people did not know? how to express their gratitude to the government for changing their lives. It was important to beef up the quality of services delivered and improve the size and face? (pace? appearance?) of the houses. Research would be conducted on how to assist child-headed households.

Ms Chalmers asked what kinds of emergencies the programme on emergency housing covered.

Mr van der Walt replied that the programme covered, amongst others, natural disasters and evictions of communities, and that the definition of an emergency was open ended. The Department would help in most cases where an MEC felt that there was an emergency that necessitated national intervention. Relief to individuals was not excluded from the programme.

Ms Bogopane-Zulu asked when the Department would establish a national special housing unit to help provincial housing units.

Mr van der Walt replied that it was difficult to give a clear answer. However, if the policy was introduced by April 2006, it would coincide with the establishment of arrangements to facilitate the implementation of the programme. He reminded members that the Department was more concerned with policy formulation and implementation was left to provinces and local governments. The Unit would reside in provinces and perhaps in certain instances at local government level.

Ms Bogopane-Zulu said that this was problematic because provincial and local government units might not have the necessary capacity to implement policies. There was a need for a unit in the national Department to support provinces and municipalities. This would ensure that provinces and municipalities function properly.

Mr B Solo (ANC) agreed that there was a need for a central housing unit. There would be problems if policies were formulated on one level and transferred to another for implementation. One of the causes would be that the implementing agencies would not have the details of the thought process involved in the formulation of the policy.

Mr van der Walt replied that the Department would establish a special needs unit to provide dedicated attention and support to provincial units. It would look at all government priorities with regard to housing. There was the notion that the Department should also be involved at project level. Unfortunately, the Department was not structured in a way that would allow it to be involved in policy implementation. It was mainly composed of policy experts and it would have to be restructured to allow it to participate in projects.

Ms Bogopane agreed that the National and provincial Departments of Housing had too many lawyers and different experts who were not action oriented. She felt that the housing policy was too rigid and did not take into account different circumstances that prevailed in different places. For instance, in rural areas there was no need to buy land before a house could be built. Most of the houses did not have services like electricity and sanitation. At the same the houses were very small. If the Department were action oriented it would see that certain provisions of the policy were not supposed to be applied to certain areas. Given the fact that houses in rural areas had no electricity and other services, such houses should be bigger in size.

Mr van der Walt replied that the policy was flexible. The problem was that as soon as one introduced a minimum norm, people began to make it the required standard. The Department had in the past consistently reviewed and improved its policies. Provinces were contravening the rules by building houses without services and this constituted unauthorised expenditure.

Mr Chalmers said that in some areas houses were built very close to each other even though land was still available.

Advocate M Masutha asked if there were any rules or legislation in terms of which services to children in destitute situations were regulated. It was useful to know what kind of amendment should be made to the Bill so as to link it with housing issues. He gave an example of a mother who died leaving kids and a house that did not have a roof. He wondered if the housing scheme was flexible enough to assist by making a roof for the house.

Mr van der Walt replied that the Department was investigating such issues and would accordingly formulate policy proposal. However, the bottom line was that the Department could not enter into a contract with minors. It was also not possible to allocate a housing subsidy to the deceased’s estate.

Advocate Masutha said that there was a significant number of households for which there were no adults to play the role of guardians. One should not promote dependence on government intervention purely on this basis. The Bill extended certain legal capacities which were in terms of the Common law limited to adults. Ideally each and every child should have a guardian.

Mr van der Walt said that the Department would align its processes with the Bill. The bottom line remained that the Department could not enter into a contract with a minor. Some sort of arrangements like foster would care or guardianship would have to be made. A contract would then be entered into reserving the ownership of the house to the household.

Dr Mabetoa said that it was obvious that there were gaps between the Departments of Housing and Social Development. It was not desirable to remove children from their communities and accommodate them in children’s homes. This was, however, unavoidable in some situations.

Ms Direko proposed that the Department of Housing should take the Bill into account when drafting policies.

Advocate Masutha said that the government was presented with an opportunity to look at the rights of children as enshrined in the Constitution and international instruments. The Department of Housing should report on policy review and how gaps in current legislation could be closed. Other government Departments should not view the Bill in a narrow sense thereby concentrating only on those clauses that affected them.

The meeting was adjourned.