Commission on Gender Equality Bill [B36 – 2012]: deliberations; Impact of the State of the Nation Address (SONA) and Budget on the work of the Committee

Meeting report

Ms Neliswa Nobatana, Committee Secretary, tendered apologies for Ms C Diemu (COPE) who had been in an accident earlier in the week, and for Ms L van der Merwe (IFP), who would join the meeting later.

Commission on Gender Equality Bill [B36 – 12]: Summary Submissions
Ms Crystal Levendale, Researcher of the Committee, went through all the proposed changes. The University of Witswatersrand students had proposed a name change, to which the Committee agreed.  The name was now “Commission for Gender Equality Bill”.

There were two proposed changes to the preamble of the Bill.   It was agreed that the Bill should remove “the status of women” and be replaced by “gender”. In the second amendment to the preamble, the students proposed that it be elaborated on how the Commission for Gender Equality (CGE) would carry out its functions, under which circumstances it would apply, and how it would be applied.  It should also specify ways it would benefit and protect the victims of gender inequality.

Mr Sisa Makabeni, State Law Adviser, said the function of the preamble was to give a general statement of the purpose of the legislation and provide background information on what had brought about the legislation.  The most relevant provision regarding the powers and functions of the Commission would be Section 11 of the CGE Act, which detailed how the commission would perform its functions.

There was a proposed amendment to Section 1 (iv) of Act 39 of 1996, which suggested reverting to the Minister of Justice or creating a new a Minister of Gender Equality that would be in line with the Act, and what it aimed to do. The comment alluded to the suspicion that there may be undue influence brought upon the Gender Commission. The Constitution was, however, very clear that it was the law of the Republic. In Section 181(2), it stated that the Gender Commission was a state institution that strengthened Constitutional democracy in the Republic, it was independent and was subject only to the Constitution and the law, and that it must be impartial and should exercise its power and perform its function without fear, favour or prejudice. The Minister could intervene only to assist in certain administrative matters, such as bringing to Parliament a proposed amendment to the old Gender Equality Act on behalf of the Commission.  It remained clear that the Commission was accountable only to Parliament.

The students proposed an amendment to Section 3 (5a) to state that the grounds for the removal of a Commission member should include misconduct, incapacity or incompetence. Removal of a member could no longer be based on the joint decision of the Commission. The change would be aligned with Chapter two, section 33 (1) of the Constitution.

Ms M Tlake (ANC) asked what happened when a Commission member passed away.  It was not specified in the Act that when a member died, their name would have to be removed from the register or roll of the Commission.

Ms G Tseke (ANC) said it was reflected by the vacancy, because when a member died, a vacancy was created in the Commission. Therefore it was covered under Section 4 of the original Act.  

Mr Makabeni said by the virtue of the member’s death, they were removed from the Commission and there was a vacancy in the Commission.

Under the same section, Section 3 (5b), the students proposed that it be aligned to Chapter 9, Section 181 (1 – 5), which then meant the removal of a Commission member fell under the oversight of the National Assembly.  Members supported the amendment.

The following amendments were from the Sonke Gender Justice Network Women’s Legal Centre. The first proposed change was for the preamble to explicitly provide that the CGE, in exercising its duties, upheld and promoted the founding values of the Constitution and that it practised a democratic system of institutional governance that was open, transparent, responsive and accountable to the citizens of South Africa.

Mr Makabeni was of the opinion that the amendment would not help in any way.  The Constitution was clear that the CGE had been formed in terms of the Constitution, and the Constitution applied to it.

The second proposed change was similar to that made by the students regarding the role of the Minister. They pointed out that the CGE’s independence would be compromised if it was required to monitor government departments while also having to account to the same department, even if it was only in relation to its budget and expenditure.

The Chairperson said that the Commission had been accounting to Parliament and would continue to do so. The Act would not change anything.  The Constitution covered the matter of the independence of the CGE that both submissions were concerned about.

Ms Tlake asked for clarity as to why the CGE budget could not have come through straight from National Treasury. If the CGE budget had to come through the Department of Women, Children and People with Disabilities, would that arrangement not impact on the independence of the CGE?

The Parliamentary Legal Adviser said the money that Treasury gave to the Commission was channelled through the Department, but was ring-fenced for the use of the Commission. The Commission did not need to report to the Department in terms of their budget and expenditure, as they accounted on that to Parliament.

Mr Lorenzo Wakefield, Researcher for the Committee, said it was merely an administrative function when the Department dispensed those funds to the CGE.

Another proposed change concerned Section 3, which dealt with the nomination of members of the Commission. The current nomination process in the Bill undermined public participation, which was essential to a functioning constitutional democracy. In this instance, the public had a direct interest in contributing to the nomination process and in having the democratic opportunity to influence the appointments made by the Minister by motivating for the appointment of strong and appropriate candidates to perform the crucial role of a CGE member.

Ms H Lamoela (DA) proposed that the Bill stayed as it was. Sonke wanted public participation, but Members of Parliament were public representatives..

Mr Makabeni said the amendment to the Bill was necessitated by the move from the provisions of the interim Constitution to what the final Constitution said. The Constitution did allow for public participation, as per Section 193 (6), when Parliament had made its recommendation.

Besides the proposals to this section of the Act, Sonke also highlighted some issues they felt needed to be amended. The first one was with discretionary powers and obligations, in Section 11. They recommended that the Bill amend Section 11 of the CGEA to enhance the powers of the CGE and to place greater obligation on the institution to take up matters that were relevant to the fulfilment of its mandate by replacing the word “shall” with “must”, and by replacing “of its own accord” with “at its discretion and that is necessary to fulfil its objectives”.

Mr Makabeni said the Act was a 1996 piece of legislation and the way it was drafted, it had “shall” legislation and had no “must” -- all its provisions said “shall”.  If it were to be amended now, it would disturb the style of the legislation. The second terminology change would also create contradictions in the Bill.

The next issue was with the CGE’s functionality and fulfilment of its mandate. Sonke suggested that its functioning and performance against its mandate be reviewed on an annual basis in order to address concerns highlighted.

The Chairperson said the Committee was not there to take on new constitutional amendments.  The Committee was taking on only technical amendments.

The last submission was on financing and independence. In an effort to strengthen its independence and to mitigate the perceived lack of authority of the CGE, it was recommended that the Portfolio Committee consider an amendment to the CGEA that provided an alternative financial mechanism so that this Chapter 9 institution received its finances directly from Treasury.

Mr Makabezi said Parliament appropriated money for the CGE.  It was merely for administrative purposes that the funds were dispersed through the Department.

The Chairperson said Members needed to come back and adopt a report on the Bill, which they would go through prior to adoption.

Analysis of the 2012/2013 State of the Nation Address (SONA) as Pertaining to Women, Children and Persons with Disabilities
In his speech, the President had mentioned that improving the status of women remained a priority for government. The statement acknowledged that women were critical to the sustainable growth and development of South Africa.

The SONA spoke directly on legislation and violence against women. Legislation mentioned was the Women’s Empowerment and Gender Equality Bill, which aimed to legislate equal representation on women in decision-making positions and criminalised practices that discriminated against women and girls. It was, however, concerning that there was no call to fast-track the Bill and the commitment of resources.

Other legislation mentioned were the existing Domestic Violence Act, Protection from Harassment Bill, and the Prevention and Combating of Trafficking in Persons Bill, which were all legislative mechanisms to protect women. The challenge with this legislation was the lack of implementation and lack of resources, both financial and human.

The President had highlighted that violence against women was unacceptable and announced the establishment of the National Council on Gender-based Violence.  Law enforcement agencies were directed to prioritise cases of violence against women and children, and increase personnel at family violence, child protection and sexual offences units. The concerns and challenges were that more commitment was needed in the form of dedicated human and financial resources, for instance. Also, there was no indication of an overarching government plan or framework to address the increasing violence against women.

Ms Lamoela pointed out that many councils had been established and had achieved no results.

There were areas of intervention that were not mentioned in the speech. Though proposed plans and programmes to increase development growth in the country would also benefit women, it was imperative that specific commitments were made. Specific gender-based observations and considerations were needed in the following areas: job creation and economic empowerment; infrastructure development; education; health; land reform, and women on farms.
In terms of areas of oversight specifically for the Committee, it would be important to:  monitor progress and the implementation of legislation; monitor departmental budgets to ensure gendered consideration and targeted expenditure to empower women; scrutinise government programmes, projects and policies; request disaggregated data in relation to department strategies and targets; and monitor delivery on indicated targets -- for example the National Gender-based Violence Council, the prioritisation of crimes against women and children, and an increase in capacity at Family Violence, Child Protection and Sexual Offences (FCS) units.

Regarding the direct inclusion of children in the SONA, the President had consulted grade 12 students on what should be a priority in the SONA. For 2013, the government planned to establish a national task team to strengthen maths, science and technology results. A presidential remuneration commission would be established to review the remuneration of teachers. The implementation of the FCS units within SAPS had secured a 70% conviction rate for crimes against children. Also, progress made with the Combating of Trafficking in Persons Bill had been highlighted by the President.

It had been stated that there were three government priorities that were important for persons with disabilities – health, creating decent work and education. Also, implementation of the programme of work in ensuring a national socially inclusive society would be done in collaboration with the social cohesion advocates, which consisted of various eminent persons in various sectors of society.

Regarding the indirect implication of plans that the SONA covered, R3 billion had been approved for the Jobs Fund to create more jobs. Activities of the Department should be aligned with the National Development Plan. There were various aspects that shortened the life expectancy of disabled people -- they were more vulnerable to life threatening diseases, therefore attention to healthcare was a priority in the prevention and treatment of life-threatening illnesses.

It was noteworthy that advances had ensured that the mortality of infants and children under five had decreased. The reasons for those decreases needed to be researched and replicated. 

Implications for monitoring and oversight, in relation to areas that the Committee dealt with, included the establishment of a national task team to strengthen the implementation of maths, science and technology subjects; the establishment of the presidential remuneration commission; the increase of FCS units within police stations; a mandate of the Social Cohesion Advocates; the impact of the National Development Plan; life expectancy in South Africa, specifically with children and people with disabilities’ the implementation of the National Insurance Scheme.

Budgeting for Children Across Selected Departments
Children’s matters should be mainstreamed across many departments. The report dealt only with five budget votes with the departments that had a key mandate in the realization of the rights of children and delivery of services. These were; Women, Children and People with Disabilities (Vote 8); Basic Education (Vote 15); Health (Vote 16); Social Development (Vote 19); and Justice and Constitutional Development (Vote 24).

The presentation focused on Vote 8 and Vote 19. The Department of Women, Children and People with Disabilities was mandated to promote children’s rights. For the year 2012/13 the Programme on Children’s Rights had received 7% of entire budget 8 Vote, which amounted to R13.5 million. For the current year there had been a remarkable decrease, with only a 5% allocation which amounted to R9.9 million. Factoring in inflation to the new allocation and the decrease steepened further.

The Department of Social Development’s Vote 19 programmes catered for children in two programmes -- the Social Assistance and the Welfare Services Policy Development and Implementation Support programmes.  The Social Assistance programme had seen a remarkable increase in the number of children that benefited from it. In the year 2011/12, 10.6 million caregivers had received the grant, and by 2015/16 it was expected that 12.1 million caregivers would receive the grant. 121 627 children with serious disabilities were beneficiaries of the Care Dependency Grant in 2011/12, and it was expected 145 788 children would receive the grant by 2015/16.  In 2011/12, 518 224 received the foster care grant, and in 2015/16 it would increase to 633 060. The current number of children receiving a foster care grant was 566 245, 122 809 children were receiving care dependency grants and 11.1 million children received child support grants.

According to the foster care graph, there was a decrease for the current financial year.   This raised a number of questions, such as whether there were fewer children in the foster care system in the current financial year, while there was an expected increase for the following year. Since the Department planned to rework the foster care grant system, was this the impact of that?

With the care dependency grant there was a steady increase, which was in correlation with the increase in the number of children that were in the system.

What the state spent the most money on was the child support grant, which also showed a steady increase.  This was good, as this grant had proved to alleviate the worst cases of poverty in the country.

Regarding the financial allocations for welfare services for children, social workers were necessary for the smooth implementation of the Children’s Act. The Department of Social Development aimed to increase the amount of social worker graduates with the introduction of a bursary scheme.  During 2012/2013, R256 million was spent on the scheme, but for the year 2013/2014, only R250 million was allocated.

During the current year, the Children’s Act had largely come into operation. R75 million had been spent on the implementation of the Act.

Analysis of Vote 8: Department for Women, Children and Persons with Disabilities April 2013
The presentation focused on the key issues of this vote, their priorities and the budget allocated, and the key issues that emanated from the previous year.

The Department’s strategic goals over the medium term were to coordinate and facilitate the process of establishing the National Council Against Gender Based Violence; mainstream, monitor and evaluate women’s empowerment and gender equality, children rights, and disability consideration into government policies and processes; and coordinate institutional support and capacity development programmes. 

The budget for the Department grew from R172.2 million in 2012/13 to R198.3 million for the 2013/14 financial year. Though this was a nominal increase of 2.85%, when one factored in inflation, the budget had actually decreased by 2.6%. The Department’s budget in relation to all other budgets constituted a mere 0.013% of the overall national budget.

Administration of Programme One:
The purpose of the programme was to provide effective leadership, management and administrative support to the Ministry and other branches of the Department. According to National Treasury, expenditure had increased significantly, and this was primarily due to capacity building in the Minister’s office and the accommodation needs of the Deputy Minister’s office. In addition, the allocation for the National Council Against Gender Based Violence was allocated within the office of the Director General. What the Committee could follow up on was to find out what the thinking was behind including the Council in the administrative component, rather than in the  Women, Empowerment and Gender Equality (WEGE) programme.

The WEGE programme, the crux of the Department, was established to facilitate national and international instruments into empowerment and socio economic development programmes, as well as oversight on the national realisation of women’s rights and the progressive realisation of equality.

The total budget of the Department to meet its advocacy and mainstreaming objective had decreased from R9.3 million to R8.7 million. Of the R8.7, the focus was on the WEGE programme, and what the Committee needed from the Department was a briefing on when they would introduce this, how far they were and timelines between now and the end of the year.

In terms of institutional support and capacity building, the budget had once again decreased from R6 million to R4.8 million. The programme aimed to create synergy among government departments, civil society and the private sector. Practically, if a budget was decreased  to R4.8 million and had two or three staff members, what could possibly be done across the private sector, government sector and local government -- how was institutional support and capacity building to be done?

Under monitoring and evaluation, the budget had increased from R5.9 million to R6.3 million. Monitoring and evaluation were important in the Department. However, in order to monitor and evaluate one needs a framework and indicators; for other departments to report to this Department, they also need a framework and indicators.  How to report – quarterly or annually – and the structure of the report, had to be established.  The Department then had to have the resources to pull this information together and report to the Committee which performed the oversight function.
The child-friendly model in cities had been in the making for years, yet nothing could be shown for it, whether it had been implemented in any municipalities or cities, or piloted anywhere.

The Committee had to find out from the Department how the Department planned to deliver to meet their mandate and the strategic plans of their sub-programmes with the decrease in budget. The issue of the shortage of staff in the programmes was of great concern as well.
The Content Advisor proposed that the Committee needed to prioritise what it needed to do this year. There was the possibility of new legislation and other matters that the Committee had not initially planned on which could completely change the programme of the Committee.

Discussion
Ms Lamoela said the Members would have to come back to scrutinise and prioritise what the Committee needed to do and focus on for this year. She further asked for clarity on the analysis of Vote 8, which stated that the allocation of the National Council Against Gender Based Violence was in the office of the Director General, which mean the budget for the Council came from the Department. Also there were no actual figures in the budget of the National Council Against Gender Based Violence. According to the Department’s strategic plan, there were vacancies in the WEGE programme, and in the opinion of the researchers and advisors, this would affect the workings and implementation in the National Council, considering there were vacancies in the secretariat of the WEGE programme.

Ms Abrahams proposed that when the Department was in Parliament, the Committee should ask the Department how they were establishing the Council, who would be on it and how that linked to the budget.  Once that information was available then they would be able to see how the Council fitted in with the WEGE programme.

The Chairperson said that they had not received a briefing from the Department on the matter; therefore the Committee should invite the Department to brief them on the Council. She also advised Members to go through the revised strategic plan.

Ms Van der Merwe said she was concerned that at the round table meeting on Monday, the Minister was putting all the hopes on the Council, only for it to be realised now that it was located within the administration budget. Financing staff was becoming an issue – while still in the starting blocks, the Council was already facing challenges. Also, NGOs were not included in the Council and they were the very people that did the work on the ground.  However, this was now understandable because if they were included, they would have to travel and the Department had no funds for that. The Committee and the Minister were pinning their hopes on something that might not even get off the ground.

Ms Lamoela said that was the reason she was sceptical about another Council, as there had been many before which had never produced the desired outcome. The budget was a concern with the existing programmes, and now there was yet another thing they had to budget for.
The Chairperson said these were good questions to be posed to the Minister again, as they were a source of concern.

The meeting was adjourned.