Children’s Bill: Department briefing

Meeting report

Social Development Portfolio Committee
4 August 2004
Children’s Bill: Department briefing

Chair: Mrs J Tshivase (ANC)

Documents handed out:
The Children’s Bill [B70 - 2003] Reintroduced

Summary
The Committee was informed that the Children’s Bill had been split into Section 75 and Section 76 Bills. After both of these were passed, it would be reconsolidated into one Bill. This Committee was dealing with the Section 75 Bill, but the meeting did not examine the Bill itself. Much of the time was spent on Members’ concerns that such a split was improper or illegal, and would lead to important items being left out. The Bill was being costed at the same time as their deliberations, and Members expressed unease about having to pass a Bill that might prove to difficult to implement. Public hearings would be held on 11-13 August on the Section 75 Bill only. Previous responses to the draft combined Bill would be resubmitted.

Other items discussed included funding policy for organisations, including faith-based organisations, the research capacity of the Department, the retention strategy for social workers and children in prison.

Minutes
The Chair noted that the Bill had been reintroduced on 15 June 2004. He reminded the Committee that the Department had proposed comprehensive legislation and thus the repeal of all previous legislation affecting children. However, the State Legal Advisor had said that as Parliamentary Rules did not allow mixed Bills, it should be split into separate Sections 75 (national competences) and 76 (provincial competences) bills. The Section 76 Bill, when it was passed, could become an Amendment Act or there could be two acts with separate functions.

Many Members expressed their dissatisfaction with this process. Mr T Masutha (ANC) said that the objective was to consolidate the existing laws but the Child Justice Bill would still be passed. The Bill should not be fragmented further. Ms A Johaar, State Legal Advisor, said that the Bill could result in one piece of legislation because her office had deliberately left gaps in the Section 75 Bill so that Section 76 could be reinserted. The Amendment Bill would not amend Section 75 but would result in a new Act. Mr Masutha asked her to explain how a Section 76 Bill could amend a Section 75 Bill – would an Act need to be amended. Ms Johaar explained that a Bill could not be amended by another Bill. There would be two Bills and thus two Acts. With the President’s assent, the Director-General of the Department could instruct that the Section 76 Act be inserted into the Section 75 Act and the final product would be one Act. In the meantime, both Acts would be operational. In answer to a question from Mrs J Chalmers (ANC), Ms Johaar said that there had been precedents for this process, such as the Public Finance Management Act, the Boxing Act, and the Environmental Affairs and Tourism Act. Ms Chalmers said that each clause would impact on the previous one, and she wondered whether there were more creative ways of dealing with this problem. Ms Johaar explained that entire chapters and not clauses had been taken out.

After some repetitive discussion, the Chair asked the Committee to consider their programme. Mr M Waters (DA) proposed that the Committee meetings begin at 9 am instead of 10 am. They also discussed the public hearings, scheduled for 10 a.m. - 5.30 p.m. from 11-13 August. Ms X Makasi (ANC) proposed that the public hearings be postponed for two weeks to enable Members to familiarise themselves with the Bill. The Chair informed her that this would not be possible as public hearings had to be advertised seven weeks beforehand. Ms L Peterson of the Department pointed out that as plenary meetings would begin on 15 August, the public would only be able to attend in the mornings. It was agreed that public hearings would begin at 9 am.

Department briefing
Dr Mabetoa, Department Chief Director: Children, provided an overview of the process of drawing up the new legislation, starting with the South African Law Reform Commission in 1997. A Bill was approved by Parliament in 2003 - with conditions - and had been resubmitted and amended continuously since then. The new legislation was intended to consolidate all laws affecting children into one Bill. Other Departments and sectors had collaborated and been consulted. The Bill was still being costed in detail.

Discussion
Mrs Chalmers asked for input on the inter-sectoral programmes, and why the Law Commission’s Chapter 2 on inter-sectoral management, had been cut out.

Dr A Theron, the past Director-General assisting the Department with the Bill, said that the Department had referred the Bill to Cabinet. Cabinet had instructed that there should be a Steering Committee with members from other affected departments. Some issues had been taken into other legislation and the Justice Department was dealing with new proposals around the Children’s Courts. The Bill had also been distributed, commented on and amended. Ms Chalmers asked whether Members could see the submissions and this was agreed. Ms Peters said that comments had been ’in-house’ and in line with Rule 159. They could supplement, but not replace, public comment. Dr Mabetoa explained that the comments had been collated after a workshop with NGOs and the provinces.

Mr Waters said that he would like details on the retention strategy for social workers and the number of child-headed households. Dr Mabetoa said that the retention strategy was in draft form and the Department was negotiating with Treasury about it. It also dealt with professional development. She did not know the total number of child-headed households, but 84 000 were known to community-based organisations. There were approximately1 million orphans.

Ms Chalmers recalled that the original South African Law Commission document had included costings and there had been extensive excisions because of costs. Mr Theron responded that the original scoping exercise had run into billions of rands because current and future social security grants were included. The Department was now engaged in a more detailed costing. Mr Masutha suggested that the Statistics South Africa database be visited. He questioned the research capacity of the Department to ascertain the numbers of children orphaned, in care, being adopted etc. What percentage of children in need were being looked after by the government and what percentage were being looked after by community-based organisations? Regarding inter-sectoral collaboration, would other Departments brief the Committee? Dr Mabetoa responded that the Department would research the percentages and release them within two weeks. There would be presentations covering inter-sectoral collaboration.

Mr B Solo (ANC) said it was useless to pass legislation that couldn’t be implemented because of costs. He asked what the Department was doing about street children.

Dr Mabetoa said that the Bill made provision for street children and for monitoring and evaluating shelters. Ideally, a child should be identified and reintegrated into society immediately. If this was not possible, a court application should be made and the child placed in care. The reality was that many children lived on the street – should the police be arresting them in this situation? On the costing issue, the Department was working very closely with Treasury so that they would have the resources to implement the Bill.

Mr Solo said that the Minister had often spoken about faith-based organisations, but he questioned whether many of these were democratic. The Rhema Church in Gauteng had not spent the money that had been allocated to it by the Department. Structured partnerships were needed.

Dr Mabetoa said that the Department was implementing a programme with churches to facilitate community mobilisation. The Department should not give money to organisations that lacked capacity. Of the NGOs funded by the Department at provincial level, half were faith-based. The Department did not discriminate racially.

Mr J Coetzee of the Department of Correctional Services asked Dr Mabetoa to elaborate on progress of the programme of formal education for offenders. Control of child and youth care centres would shortly be transferred from Correctional Services to this Department. Dr Theron said that the legislation was ‘enabling” in that this Department and Correctional Services could transfer control when they were ready. The respective Ministers had agreed that once this happened, resources and functions would follow.

Mr Masutha said that a comprehensive financial policy should cover government and NGOs active in social security. He asked why only 150 000 children were in foster care. Provincial visits by the Justice Portfolio Committee had revealed children crammed in prisons while secure care facilities were under-utilised.

Dr Mabetoa said that financial policy was aligned with all legislation for vulnerable persons. The Department had a model of service delivery that financing policy would allow. The model informed procedures for addressing priorities at community level. It also dealt with the migration of services.

Dr Theron said that after provincial visits, a team from the Departments of Justice and Social Development had identified practical problems hampering offender transfers from prison to other facilities.

Ms P Moodley (Department of Correctional Services) said that information needed to be relayed to magistrates daily and a social worker should be assigned to each child. The Chair added that it was illegal for a child to be held in prison for more than 48 hours. Ms Moodley clarified that a child could not be imprisoned for more than two days before his/her first court appearance. Mr E Saloojee (ANC) said there had to be a distinction between a place of safety and a secure care facility. A visit to ‘Sun City’ prison had revealed that children were hardly ever moved, while secure care facilities in rural areas were empty. Ms Moodley agreed that this was the situation, partly because magistrates wanted to keep the child in his/her area of jurisdiction, although the Minister could assign the child to that magistrate’s area while the child was actually held in another district. Dr Mabetoa said that provincial Departments had budgeted for the establishment of secure care facilities closer to the courts. Another alternative was to remand the child to the custody of his/her parents.

Mr Masutha suggested that the law should be “indigenised” –Western norms and values tended to inform legislation but many South Africans held to customary and traditional values. These communities weren’t given government services, such as for instance, the Zionist Christian Church.

Dr Theron asked if the public hearings would regard the Section 75 Bill only, as the previous submissions had been on the combined bill. Dr Masutha said that the hearings could only be on the Section 75 Bill. However, there had been a technical error and the Bill had been introduced as a combined bill. This would have to be rectified by a House resolution. Dr Mabetoa asked if other Portfolio Committees could be invited as the Bill covered cross-cutting issues. The Chair said this had already been done.

Ms R Van Zyl of the Law Reform Commission said that, apart from a general invitation, there should be collaboration between this Committee and others. The Justice Portfolio Committee was looking at the Sexual Offences Bill and had also proposed a paedophile register. Specific issues had to be discussed to prevent duplication. Dr Mabetoa anticipated that people would also make submissions about the Section 76 Bill and asked how that would be controlled. Mr Masutha said that presenters should make use of limited time to focus on the Section 75 Bill.

The meeting was adjourned.