Children's Bill: deliberations with Departments of Social Development & Justice

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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

9 November 2005

Ms J Masilo (ANC), Mr. B Tolo (ANC)

Documents handed out:
Department of Justice Amendments to Children's Bill
Amendments to Children's Bill including Department of Justice proposals
Amendments agreed to Children's Bill by Select Committee

In a continuation of the previous day's meeting, the Department of Social Development deliberated with the Committee over amendments to the Children's Bill. State law advisors were present to comment on the amendments. The Committee began the process of reviewing the Bill clause by clause. A major concern was removing clauses that referred to clerks of children's courts, to which the Committee agreed to having clerks in any magistrate's court that represented children. Other major discussion was on the definitions of and distinction between female and male circumcision and genital mutilation. The Committee agreed on many other minor technical changes for clarity purposes.

Ultimately, the Committee and Department agreed to meet again to finish the clause-by-clause deliberations.

The Chairperson (initially Ms Masilo) said the Committee would postpone deliberations over Clause 12 of the Bill since there had not been sufficient time to review it. She asked for a briefing on Clause 3 at the next meeting. There had been submissions by the South African Police Service (SAPS) and the Department of Justice and, after consulting Members, she had decided to accept the submissions and consult them further. Other departments had complained that the Committee was spending too much time with the Department of Social Development, but the Bill was extensive and such consultations were necessary.

Ms M Mabetoa (Department Chief Director: Children, Youth and Families) said the full report with the service providers would be ready, at least in draft form, by January.

Ms J Vilakazi (IFP) noted her satisfaction with the changes to how virginity testing was handled in the Bill.

Ms Masilo was not well, and so Mr Tolo took over as Chairperson for the remainder of the meeting. He invited the Department of Justice to present their amendments.

Mr L Bassett, Chief Director of Legislation: Department of Justice, said the Department aimed to simplify some of the amendments to make the provisions of the Bill easier to implement.

Mr Matebe, Department of Justice State Law Advisor, explained that "clerks of the court," meaning a clerk of the court of relevant magistrate's court, should be used throughout the Bill in place of "clerk of the children's court." This was because every court should be regarded as a children's court and need not be specifically a children's court. The jurisdiction of the Bill should be established immediately in Clause 1, and so they recommended that the contents of Clause 45 be moved to the beginning. Clause 45 established that the Bill did not refer to issues of divorce, domestic violence, or customary marriage, which were handled in separate bills.

Members were concerned that this would make Clause 1 crowded and discussed whether it was necessary to move the clause.

Ms R van Zyl, the drafter from the South African Law Reform Commission, explained that it was necessary to establish the limits of the Bill early on in the first clause. This would make sure that people immediately knew what the Bill covered when they saw it and did not waste time by pressing for cases that were not allowed by the Bill.

Mr M Thetjeng (DA), was concerned that the placement was inappropriate under the heading of 'definitions' since establishing the jurisdiction was not really a definition and so it was unclear.

Mr Bassett responded that the Department could agree that it remain in Clause 45, since the content would remain.

The Chairperson said that the Committee did understand the rationale of the Department's proposal.

Mr Mateba said the Department of Justice's view was that every court is a children's court, meaning that any court can hear children's cases. Therefore, it was not necessary to require separate children's courts that were clustered together. In requiring separate children's courts, it was a disservice to children because it would limit accessibility.

Mr Hendricks said that most courts were not children-friendly. Most small children were scared of magistrate's courts.

Mr Mateba said that the Bill recognised that courts, particularly criminal courts, were not child-friendly.

Mr Bassett explained that the complex where the court was would have jurisdiction over children's cases, but that special efforts were made within the court complex to ensure that children's cases were handled separately in more child-friendly venues such as offices.

Mr M Sulliman (ANC) said there was nothing to prevent a magistrate from using a normal court if desired and noted that this was a problem.

Mr Mateba agreed to consult with the Department and look again at the issue. He continued to present the Department's proposals for minor technical changes throughout.

The Chairperson asked the legal advisors if everything in the Bill was in order and if there were no legal problems.

Ms A Johaar, State Legal Advisor, confirmed that the Bill was satisfactory. If the Committee approved of the changes, the legal department was also in favour.

Mr P Du Preez, legal advisor for the Department of Social Development, proposed to insert a new definition for circumcision that was "the removal of the clitoris by any means." Genital mutilation was "the partial or complete removal of any part of the vagina."

Mr Hendricks asked if, given those definitions, mutilation and circumcision were the same.

Mr Tolo said that genital mutilation may also include circumcision and asked the Department if it would bring more clarity to define them separately.

Ms Johaar explained that legally, the definition of mutilation did not exclude circumcision.

Mr Thetjeng noted that circumcision to males was very different than to females. Therefore, the definitions needed to be gender-specific.

Ms Johaar said that the interpretation of the two definitions was that when a female was circumcised, it was mutilation.

Ms Mabetoa confirmed that the terms were used differently for males and females.

Ms van Zyl explained that the terms were commonly used and so that was why they both needed to be included and defined in the Bill rather than being grouped together.

The Chairperson ended the discussion on Clause 34 for further rounds of deliberations to come. The meeting was adjourned.


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