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SOCIAL SERVICES SELECT COMMITTEE
11 October 2005
CHILDREN'S BILL: HEARINGS
Chairperson: Ms JM Masilo (ANC)
Documents handed out:
Department of Social Services Submission
National House of Traditional Leaders Submission
Commission on Gender Equality Submission
South African Human Rights Commission Submission
Thembisile Toyiya Submission
OR Tambo District Municipality Submission (document awaited)
Girl's Net Alfred Nzo Club Submission
Molo Songololo Submission
National Organisation of Circumcision Information Resource Centre presentation
Child Welfare South Africa submission
Centre for the Study of Violence and Reconciliation and Childline South Africa presentation
Vivienne Spiro's Surrogacy presentation
UWC Community Law Center
UCT Law Clinic presentation
Submission by Bryant Greenbaum
Several organisations and individuals presented submissions on the Children's Bill (B70B-2003) as part of a follow-up to the 30 August 2005 workshop on controversial issues. The major concern on the Bill was the sensitive element of banning virginity testing. Some presenters argued that it was a cherished cultural tradition while others claimed that it was a violation of basic human rights. Notably, groups of children spoke before the Committee and represented both sides of the debate. Young girls were encouraged to speak for themselves around the issue. The Committee questioned the organisations on points of clarity and debated the proposals. No compromise on virginity testing was reached. Other major points of contention in the Bill was the stipulation of a minimum age for children to make their own medical decisions as well as the requirement of parental consent for underage mothers seeking to give their child up for adoption.
The afternoon session contained presentations on infant circumcision, foreign children's rights, surrogate motherhood and rehabilitated sexual offenders. The Committee expressed concern about the lack of focus on street children. Members felt that discriminatory actions toward certain individuals on a temporary sexual offenders register should be carefully avoided. Members agreed that the protection of all children should be paramount, regardless of the child's nationality.
Department of Social Development submission
Ms M Mabetoa, (Chief Director: Children and Families), presented a summary of the history and key elements of the Children's Bill. The Bill would replace the Child Care Act of 1983 and would enshrine certain critical rights of children that related to their care, protection, and well-being. The Bill therefore included a definition of parental responsibilities and rights and aimed to strengthen and develop community structures pertaining to the care of children. Trafficking of children, children living with HIV/AIDS and abused or neglected children all received special attention in the Bill. The Bill attempted to prioritise services to children in all spheres of government.
National House of Traditional Leaders submission
Inkosi Mzimela presented on behalf of the National House of Traditional Leaders. He noted with displeasure that the organisation had not been included in the discussions earlier and said that the President had had to intervene. He disagreed that children needed strict protection and that individual rights were highly emphasised in the Bill, since families and societal institutions already looked after children. The care and protection of children was already entrenched in traditional, indigenous legal systems. These norms and values needed to be recognised particularly where in conflict with Western elements of the Constitution.
The social, cultural, and religious practises in the Bill were objectionable, particularly the prohibition on virginity testing. He argued that those who had inserted the clause had no knowledge of tradition and were simply operating on cultural misinterpretations and prejudice. Virginity testing was more appropriately referred to as virginity 'inspection' and the media and other opponents had distorted the truth of what should be a respected custom. Were the 'outrageous' clause to be included, Parliament ran the risk of alienating many traditional peoples. Circumcision was not clearly defined. The stipulation of a minimum age for medical decisions was problematic and the government should not set any age limit. Rather, cultural norms should dictate. Overall, the Traditional Leaders were opposed to clauses that were deemed anti-cultural or as acts of Western suppression of indigenous legal practices.
Mr B Tolo (ANC) affirmed that culture was an important phenomenon, but asked Mr Mzimela if he believed that culture could evolve over time rather than remaining static.
Ms F Mazibuko (ANC) asked what Mr Mzimela's recommendation was for the minimum age of children to make medical decisions since he had said 12 years was too low. She disagreed that it was problematic that women had been vocal critics of the Bill, since it was positive that women spoke for themselves.
Ms P McKay, special delegate from Kwa-Zulu Natal, asked if there was a compromise position on virginity testing, such as no virginity testing for those under age 16.
Mr Mzimela responded that culture was not static and agreed that people should move with the times. However, any change must not be at the expense of identity. While modernising cultures, people should guard against simply Westernising. No specific age could be suggested and codified by the government since practices were culturally entrenched notions that varied. Establishing an age such as 21 was 'too European.' Since those who underwent virginity testing were not forced to, it was irrelevant for the Bill to stipulate that virginity testing should not be compulsory under a certain age. Girls already went because of their own choice.
Commission on Gender Equality submission
Ms J Piliso-Seroke, Chairperson of the Commission on Gender Equality (CGE), said that the Bill was constitutionally sound. The organisation worked to promote respect for and to attain gender equality and so the Bill directly affected their mandate. The CGE opposed any acts, including virginity testing, that were harmful to girl children. South Africa should strive for a balance between recognising diverse cultural practices and respecting the constitutional framework that promoted human rights and freedoms. Virginity testing disproportionately affected girl children and the negatives outweighed any cultural benefits. It was problematic because it was an invasion of privacy, degrading, stigmatising, and had the potential to spread diseases such as HIV/AIDS. Testing for boys was not as intrusive as it was for girls. The practice's cultural tradition was questionable since it was in many aspects a revival in reaction to modern 'social ills' such as teenage pregnancy and HIV/AIDS. Virginity testing made girls more vulnerable to rape, abuse, and sex trafficking particularly because testing made it widely known who was a virgin. Virginity testing was not an answer to HIV/AIDS and there were other, less intrusive methods available. The CGE supported the Bill's outlawing of female genital mutilation.
Mr TS Setona (ANC) said that to align cultural and traditional practices with the Constitution would take the nation forward. Consensus needed to be reached between groups like the CGE and the Traditional Leaders.
Ms F Mazibuko (ANC) agreed that a consensus needed to be reached. She questioned if the CGE could compromise on the ages stipulated.
Mr Tolo asked about the origins of virginity testing and if certain rumours about virginity testing were true.
Mr M Thejeng (DA) said that more clarification was needed about the specific components of virginity testing. This would clear the confusion between the virginity testing versus inspection terminology. He asked CGE how female virginity testing was more intrusive than boys' circumcision since boys were subjected to a removal of foreskin during their circumcision.
Ms J Vilakazi (IFP) said that virginity testing was already voluntary and questioned the age distinctions offered such as age 12 or 16 as a boundary for children. She reaffirmed the importance of culture.
Mr L Govender, a special delegate from Kwa-Zulu Natal, [asked the Traditional Leaders and CGE if the marking of girls who had undergone virginity testing could be ended and if that could be a possible point of agreement.
Ms Piliso-Seroke responded that the CGE had engaged traditional leaders and customary law in an effort to reach consensus. The CGE appreciated these laws but affirmed that they had to be aligned with constitutional principles of equality. Children had rights irrespective of age, yet the CGE supported the age of majority at 18. Circumcision for boys had medical support but female genital mutilation had none and so there was not a double standard. Markings for virginity testing were only one problematic element of the practice that needed to be ended.
South African Human Rights Commission submission
The Deputy of Operations for the South African Human Rights Commission (SAHRC), said the SAHRC would limit its submission to virginity testing. He pointed out several provisions of the Constitution and Bill of Rights that prohibited virginity testing because it infringed on human rights and freedoms. The SAHRC was not opposed to cultural rights, but virginity testing violated human rights and undermined the dignity and well-being of girls. It violated girls' health, privacy, and self-esteem. The Bill's ban on virginity testing was in all respects in line with international and national legal instruments.
Thembisile Toyiya submission
Mr Thembisile Toyiya, a concerned father and social worker from Port Elizabeth, said that he had a traditional Zulu wife and three daughters. His wife had not been forced to be circumcised and was against any testing or inspection. Virginity testing should be abolished under age 16, especially since that age was considered statutory rape. Virginity testing was discriminatory against girls and violated their freedoms. If girls failed the tests they were stigmatised and humiliated. Although it had been said that the practice was voluntary, it was doubtful if girls made the choice to be tested of their own free will because peer pressure played a role. Since there was no better, less intrusive way to do the testing, it should be banned. The right of the individual child superseded that of one specific religious or other special interest group.
OR Tambo District Municipality submission
Ms Mngoma introduced the OR Tambo District Municipality and said that children would speak for themselves. A 17-year-old girl in traditional dress emphasised that no one forced girls to undergo the testing and said that she was not embarrassed to be sitting in front of the Committee while 'naked', but instead was proud. Many children in the rural areas did not have opportunities and would accept presents from men in exchange for their virginity. Age limits set in the Bill were arbitrary because girls as young as 10 or 12 were pregnant or infected with HIV/AIDS. Morals and cultures needed to be retained. The testing and rituals were inspirational and were not a loss of dignity.
Girl's Net Alfred Nzo Club, Eastern Cape submission
Ms D Mpikwa, a mentor in the Girl's Net Alfred Nzo Club, Eastern Cape, said that a young member of the Club would present on behalf of the organisation. The girl representative said that awareness programmes needed to be established to inform girls of their rights. She explained that forced marriages were harmful to girls because they limited girls' chances at education. Without education girls would be ill-equipped to lead the country. Also, they often became HIV/AIDS infected and became pregnant very young. Forced marriages were abusive. South Africa had many diverse and beautiful cultures, but these should not infringe upon the rights of girls. Virginity testing also contributed to the number of girls subjected to forced marriages.
Molo Songololo submission
A group of children who ranged in age from 14 to 17 represented Molo Songololo, a child rights organisation. Virginity testing violated a child's rights to privacy and was disempowering to children. Mandatory virginity testing should be made a choice. The group emphasised that medical circumcisions were acceptable. They supported the Bill's proposal that a child age 12 or over should have the right to terminate pregnancy.
Johannesburg Child Welfare Society submission
Ms P Wilson, a social worker for the Johannesburg Child Welfare Society, was concerned with an adoption clause that said a minor must be accompanied by a guardian when obtaining consent for adoption of their child. Many girls did not have parents or guardians and so would be unable to fulfil this component. Many others did not have positive relationships with their parents, had missing parents, or were abused and might rely on their community as a whole to raise them. This would cause harm to girls who wanted to give up a baby. Girls who immigrated to South Africa from neighbouring states would also have trouble with locating their parents. Creating further obstacles in the adoption law was not likely to reduce the abandonment of babies and was inconsistent with other legislation that protected mothers' rights to make their own decisions. The Society recommended sticking to a section in the Child Care Act that did not stipulate a minor age and did not make parental supervision mandatory.
Ms McKay asked how virginity testing was linked to avoiding teenage pregnancy and preventing HIV/AIDS.
Ms Vilakazi asked the SAHRC if virginity testing or circumcision was more problematic and asked why, even though very few people went to hospitals for the procedures, the traditional ways were not respected.
Mr Setona addressed the SAHRC and said no one had the ability to declare something constitutional or not. The final say of constitutionality was with the Constitutional Court.
Mr Tolo addressed Ms Wilson's submission on adoption and pointed out the problems caused, as a parent, of allowing children to make the decision to give up a baby without any say.
A girl from OR Tambo responded that virginity testing decreased pregnancy and the money the government saved could be used to develop the country. Virginity testing would build confidence and the nation.
The SAHRC responded that both forced circumcision and virginity testing were equally a violation of human rights and must both be ended. One was not more problematic than the other. While constitutionality was a matter for the courts, Parliament had a responsibility to pass Bills in the interests of the country and that respected human rights as outlined by previous legislation.
Ms Wilson responded that girls should, ideally, always consult their parents when considering adoption but that the law should not require it.
Mr MA Sulliman (ANC) asked what Ms Wilson's recommendations on the Bill were.
Ms Wilson responded that the Bill should retain a section of the Child Care Act that did not stipulate a minor age and did not make parental supervision mandatory.
Mr Thejeng asked the SAHRC for clarification on their reasons for proposing banning circumcision; he queried if the reason that circumcision should be banned was because cultural and religious rights were not as important as constitutional rights.
Ms H Weber (DA) emphasised the connection between teenage sexuality and poverty.
Ms Vilakazi told the SAHRC that virginity testing was voluntary and was democratic because it implied a freedom of choice. To outlaw virginity testing would be undemocratic.
Ms Wilson agreed that it was inconsistent that women could make decisions to buy contraceptives or to have an abortion while underage but that they could not give up a baby for adoption. This was an inconsistency in the law.
The SAHRC said that freedom did not mean absolute freedom. It should be exercised legitimately. Culture and religion were only to be applicable in the country as long as they did not violate provisions in the Bill of Rights or founding values such as equality, freedom, and human rights. Virginity testing violated rights and equality.
Community Law Centre submission
Ms Jacqui Gallinetti (Project Co-Ordinator) provided a presentation that dealt with the legal representation of children. It was an injustice not to give legal aid to children. There were no clear guidelines for magistrates to refer cases to the Legal Aid Board.
The submission requested that the Committee should consider rewording Clause 55. It would ensure that Magistrates could order legal representation for children and would have set guidelines that gave content to the Constitutional provision so that substantial injustice would not occur. Adequate guidelines could be sourced from the previous versions of the Bill from the SA Law Reform Commission.
National Organisation of Circumcision Information Resource Centre submission
Ms Dean Ferris explained that surgery had always carried the risk of potential complications. Tampering with children's genitals in any way would lead to humiliation and confusion on the part of the child.
The recommendations stated that Children's Rights should apply to all children and that support should be given to the proposed amendment to the Constitution stating that genital mutilation or circumcision be prohibited. Legislation should be enacted to enable children to exercise legal recourse if circumcised against their will at the time of assault, or three years after the age of maturity, or within one year of discovery of harm or loss. Firm national guidelines should be made for circumcisions and updated and instituted nationally. A National Circumcision Register should be created to log all circumcisions performed and include physical and psychological complications and deaths. The register should also log all circumcisers with relevant qualifications to ensure safe practice, accountability and policy adherence.
Child Welfare South Africa submission
Ms Megan Briede (National Programme Manager: Child Protection) raised several implementation concerns about Clause 150 (2) of the Children's Bill. Although the clause was formulated to protect certain categories of children, the consequences of implementation would have far-reaching effects on child protection systems. Concerns were raised about:
-The lack of human and financial resources to cope with the growing number of cases
-The capacity and purpose of the Children's Court to efficiently cope with the number of cases
-The long paper process preventing fast meaningful intervention
-The court-based process versus the care-orientated approach
-Alternate care options, and
-The focus becoming casework rather than preventative services.
It was recommended that there should be more human and financial resources, provincially supported programmes and the submission of reports to the Department of Social Development.
Centre for the Study of Violence and Reconciliation submission
Ms Carnita Ernest commented on the proposed Bill with reference to the Criminal Law (Sexual Offences) Amendment Bill. She stated that the register of persons unfit to work with children provided for in the Children’s Bill had broader application and should therefore be expanded to include some of the provisions of the Sex Offender Register. It would be necessary that persons other than sexual offenders that committed offences and various forms of abuse should be included in the register. Legislators should explore the possibility of expanding the purpose and function of the existing SA Police Service (SAPS) register in order to fulfil the purposes envisaged in the Criminal Law (Sexual Offences) Amendment Bill.
She noted that in both sets of provisions there had been the problem of names not being on the register of persons that were awaiting the outcome of an appeal or review. There should be a process for temporary registration pending the outcome of the appeal/ review. It was essential that adults that had accepted a diversion agreement/ contract as an alternative to a trial process be included on a register. It was also essential to have some provisions that dealt with children that had committed offences against other children. Protection was required for children against an offender that might have access to indirect information about children. The process of the removal of persons from the register had required that an expert assess and manage sexual offenders. It was recommended that known aliases of the offender should be added to the contents of the information in the Part B register.
She also recommended that no police service personnel whose names had been on the register should be allowed to investigate or manage reported cases of child abuse. Employees of the Department of Social Development should also be screened against the register.
Vivienne Spiro submission
Ms Spiro, a concerned citizen, delivered a presentation on the exploitation of surrogacy motherhood in South Africa. She stated that illegal syndicates and human trafficking had not been successfully combated because South African laws were not adequate and that health facilities were being used for foreign patients. Considerable research would have to be done to govern the practice. She claimed that many poor women were tempted by the money involved in surrogacy.
Reproductive prostitution and surrogate advertising was a criminal offence under the Human Tissue Act. She stated that it had been taking place in South Africa. It was recommended that a standard agreement be drawn up with guidelines and strict regulations that kept surrogate mothers from being harassed. The written agreement should be entered into a register to be kept by a Registrar that would be appointed by the Minister of Justice. To curb the exploitation of surrogate motherhood:
-A welfare officer must be present at the handing over of the child
-Sex selection should be prohibited
-Surrogacy should only be allowed for South African citizens.
-A third party should be responsible for payments made to prevent exploitation and bribes.
-Counselling for the emotional needs of the surrogate should be provided before and after the birth.
-Miscellaneous provisions of the law must provide for criminal liability by the participants for the failure to secure government approval and
-Commercial surrogacy should be open with the involved family’s support.
University of Cape Town Faculty of Law submission
Mr Bryant Greenbaum gave a presentation on the financial difficulties abused children suffered during rehabilitation. He noted that the contribution provisions in the Children's Bill (B 70B – 2003), namely Chapter 10, clauses 161 and 166, had been of paramount importance. It could provide financial assistance to children that were being abused or neglected, without the need for recourse to criminal proceedings or criminal investigations.
It was recommended that the Committee prescribe mandatory contribution order reviews in every children’s court proceeding when the rehabilitation of the child was of concern. The Committee should require continued education of magistrates and public prosecutors on the use of contribution orders. Other recommendations noted that guardians and child complainants should be notified, in writing, that they could make submissions for contribution orders to the Children's Court, and submissions for monies from the Criminal Asset Recovery Account. He noted that the absence of compensation could result in a victim forgoing essential services on their path to recovery.
UCT Law Clinic submission
Ms Nyari Machingambi (Refugee legal counsellor) provided recommendations to improve the protection and care given to foreign children in South Africa. The Immigration Act of 2002 and the Refugees Act of 1998 had not adequately protected the rights of foreign children. The Children’s Bill should thus be a leading instrument to ensure the implementation of constitutional and international obligations with regards to foreign children. She noted that despite South Africa’s legal obligation to provide equal protection and rights to foreign children, they had suffered discrimination on a daily basis within the child protection system.
She recommended that the definition of the child in the Children's Bill should be amended to read that "child" means any person under the age of 18, irrespective of nationality. The Children's Court should play a crucial role in ensuring access to justice for foreign children by determining the child's legal status, tracing the child's parents and protecting the child's right to be re-united with his or her parents or family. Tracing should be carried out on behalf of every unaccompanied foreign child with a view to at least restoring contact with close or extended family members, or with previous primary caregivers. It was also imperative that the Children’s Bill set out basic criteria in order to guide the Court when it determined whether it was in the best interests of a child to be returned to their country of origin. The Children's Bill should oversee the repatriation process to ensure that it was sensitive towards the rights and needs of the returnee child.
Mr M Thetjeng (DA) stated that in Clause 24 (1) applications for guardianship should go to the High Court. He questioned whether the organisations represented in the meeting where representative of urban and rural citizens. He asked how illegal immigrants would be traced. He queried whether child trafficking could be effectively combated.
Ms J Gallinetti noted that Children's Court commissioners would deal with guardianship. They would be entitled to make an order for a child to receive a passport or visa. Children used by adults to commit crime was an offence but had been removed from the Bill.
Dr. B Malekwani referred to Chapter 7, Clauses 129 – 134 of the Bill. He noted that Clause 129(2) gave children the right to consent to medical treatment when the child was over 12 years of age. He asked what role guardianship would play in that regard, vis-à-vis what could be done to the child during circumcision. He asked whether the child would be of sufficient maturity to accept or decline surgery. He questioned what could be done to deal with ambiguities in the Bill.
Ms S Mazibuko (ANC) asked where the Committee could insert the recommendations of Mr Greenbaum. She questioned what would happen to rehabilitated sex offenders who wanted to work with children again. She asked whether discrimination would take place against rehabilitated sex offenders. There had been no reference in the presentations to help "beggar" children. She asked what input could be given by the concerned groups.
Mr Greenbaum responded that a provision could be inserted in Clause 161(5) that recommended the court should consider a contribution order.
Mr B Tolo (ANC) stated that circumcised men where less at risk to contract HIV. He asked whether the temporary register of sexual offenders would discriminate against people who were eventually acquitted. He questioned whether surrogacy should be outlawed or whether it should be better controlled.
Dr Daniel Sidle (pediatric surgeon) commented that there was no indication for routine circumcision on a child. If at all, there should be prophylaxes. The Committee had to act in the best interest of the child. Any child over five years had to give assent for minor surgery. Preventing HIV infection through circumcision was a very contentious topic. Research had been done but it had not been peer reviewed. The Cochlan review had claimed that there was no conclusive evidence that circumcision could prevent HIV infection.
Ms P Mackay was concerned about children being lost in South Africa. She asked how children could be better monitored.
Ms Briede stated that it was essential to track children. Policies had been drawn up to assist with tracking. Statistical data had been provided to the Department but needed to be reviewed She noted that it was important to define how groups would track children. Child begging was caused by socio-economic factors and she noted the importance of child protection programs. Clause 150 gave social workers scope to intervene with children begging on the street. Community-based programs would be more effective than statutory programs.
Ms N Machingambi stated that the definition of a child was not clear. There was a lack of knowledge about the process of tracing. Tracing could be done through the Red Cross or the Department of Social Development in Pretoria. Different categories of foreign children deserved the same rights as all children.
Mr L Govender (special delegate KZN) asked whether a person that was a witness to a crime should be put on a Part B of the register. He queried whether this would deter witnesses from providing testimony.
Ms C Ernest stated that a provision was needed for how offenders would be removed from the register. In the case of rehabilitated persons, counsellors that were part of the rehabilitation process should be consulted for information. People on the temporary register for cases on appeal would be discriminated against for the benefit of the children. Cases on review or appeal could take years and were therefore not in the best interest of the children. A written response could be provided to the question about witnesses.
The Chairperson stated that the purpose of the public hearings had been achieved. There were two extremes, namely that religious practices that were not in line with the Constitution should be banned and the other being that the practices should be maintained. The best interests of society should be taken into account. Foremost, the Constitution should be upheld.
The meeting was adjourned.
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