Children’s Amendment Bill [PBM 2-2015]: briefing by MP Walters

Social Development

12 August 2015
Chairperson: Mr N Capa (ANC)
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Meeting Summary

Hon Walters Bill seeks to amend the Children’s Act to provide for a person, other than a child in terms of the Sexual Offenses Act 1957 (Act number 23 of 1957) or the Criminal Law (Sexual Offenses and Related Matters Amendment Act 2007 be deemed to be found unsuitable to work with children; to provide that in respect of a child convicted of certain offenses against a child, a finding of unsuitability may be made only after representations have been heard and the best interests of the child have been considered; to deem persons convicted of any offense in terms of the Sexual Offenses Act or the criminal law or certain common law offenses against a child during the five years preceding the commencement of section 120 of the Children’s Act 2005 unsuitable to work with children unless such a person was a child at the time of commission of the offense; and to provide that where a child was convicted of certain offenses five years preceding the commencement of section 120, application can be made to a court to make a finding on unsuitability to work with children and to provide for matters connected therewith

A Member asked the difference between “must” and “be deemed”. Mr Walters replied that must means that the courts must make a finding on unsuitability to work with children. Replacing “must” with “be deemed” makes it impossible for the courts to manoeuvre but to declare any person convicted unsuitable to work with children. 

Meeting report

The Chairperson said the Committee will receive a presentation from Hon Walters. According to regulations, if the bill was rejected, the Committee must report to the National Assembly immediately .If the bill was accepted, the Committee will proceed to deliberate on the details of the bill and report accordingly.

Hon M Walters briefing on the Children’s Amendment Bill

Hon M Walters (DA) said the Children’s Amendment Bill seeks

  • to amend the Children’s Act to provide for a person, other than a child in terms of the Sexual Offenses Act 1957 (Act number 23 of 1957) or the Criminal Law (Sexual Offenses and Related Matters Amendment Act 2007 be deemed to be found unsuitable to work with children.
  • To provide that in respect of a child convicted of certain offenses against a child, a finding of unsuitability may be made only after representations have been heard and the best interests of the child have been considered.
  • To deem persons convicted of any offense in terms of the Sexual Offenses Act or the criminal law or certain common law offenses against a child during the five years preceding the commencement of section 120 of the Children’s Act 2005 unsuitable to work with children unless such a person was a child at the time of commission of the offense
  • To provide that where a child was convicted of certain offenses five years preceding the commencement of section 120, application can be made to a court to make a finding on unsuitability to work with children and to provide for matters connected therewith

The Child Protection Register inadvertently omitted attempted rape to the crime listed in the act. In addition the act does not make a provision for the offenses against children which were contained in the Sexual Offenses Act of 1957 and the Criminal Law Amendment Act 2007. These offenses ought to be added to the listed in the Act that constitute a disqualification when it comes to working with children. In addition, differentiation must also be made between adult and child offenders when criminal courts make findings of unsuitability to work with children so as to bring in line with Constitutional Court findings in J v NDPP and another, 2014 CCT 114/13. The objective of the bill was to

  • Amend sections 120 (4) and (5) of the Act so as to provide that a person, other than a child, convicted of any offense in terms of Sexual Offenses Act 1957 or any in terms of the Criminal Law Amendment Act against a child be deemed to be found unsuitable to work with children.
  • And to deem persons convicted of any offense in terms of the Sexual Offences Act 1957 and the Criminal Law Amendment Act 2007 or any common law offense of rape or indecent assault against a child during the five years preceding the commencement of section 120 of the Children’s Act unsuitable to work with children unless such a person was a child at the time of the commission of the offense.
  • Ensure that a child who was convicted of a certain offence in criminal proceedings be given an opportunity to make representation as to why a finding of unsuitability to work with children in respect of him or her and for the court to have regard to his or her best interests (see proposed word for word amendment on section 120 (4) and 5 in the presentation).

Discussion

The Chairperson said Members needed time to read and go to archives to understand the proposed amendments

Ms E Wilson (DA) said Members had this presentation for weeks and Mr Walters was called to give clarity today. There was no reason not to vote on the proposed amendments.

Ms S Tsoleli (ANC) said Members knew beforehand that they were to receive the presentation and follow due process with regards to a section 75 bill.

Ms K De Cock (DA) said while she understood the importance of including other offenses and differentiation between a child and an adult, she did not understand the difference between “deemed” and “must”.

Mr Walters replied he was part of the Committee that adopted the bill and thought that “must” would mean automatic inclusion on the child protection register. However, must means that the courts must make a finding on unsuitability to work with children. If the judges and magistrates ruling do not state that the person may not work with children, that person remains outside the child protection register. Currently, there were only 488 people on the protection register despite 20 000 rape cases against children every year and 1000 murders of children. Including the words be deemed makes it impossible for the courts to manoeuvre but to declare the person unsuitable to work with children. The system was failing children and need to be tightened.

Ms De Cock asked if this meant that the person will appear on the register without being found guilty.

Mr Walters replied that no one appeared on the register unless found guilty. The problem with must was that if the court does not make a ruling in the judgment, the person’s name will not appear on the protection register. Be deemed leaves no discretion to judges and magistrates to make a ruling declaring the person unsuitable to work with children.

Outstanding Minutes

The Committee adopted the minutes of the meeting dated 05 August 2015.

The meeting was adjourned. 

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