Children's Amendment Bills B13/2015 and B14-2013: Departmental briefing, in presence of Minister

Meeting report

Children's Amendment Bills: Deliberations on B13-2015 and Second Amendment Bill B14-2015 (originally submitted in draft in 2013)
The Chairperson gave a brief introduction, noting that the Parliamentary Legal Advisers would be asked to take Members through the Children's Amendment Bill B13-2015 (the Bill) and the Second Amendment Bill B14-2015 (Second Bill). She noted that the Department of Social Development (DSD or the Department) was present and asked that any members of the delegation speaking should be introduced; she particularly wanted to know who was commenting on the legal issues. She highlighted that the Committee would now be considering the executive bills.

Mr Thokozani Magwaza, Acting Director General, Department of Social Development, introduced Deputy Director General: Welfare and Children's Services, Ms Conny Nxumalo and  representatives from Legal Services.

Children's Amendment Bill B13- 2015: Department of Social Development presentation.
Mr Magwaza said that since this Bill had been introduced the Committee had embarked on an extensive public consultation process to fulfil its constitutional obligations of conducting effective public participation, and there had been substantial engagement by many interested parties giving valuable input to the process to assist the Committee in effecting the amendments. Many issues were raised during the process, some of which extended beyond the original scope of the Bill, and he explained the procedures that would have to be followed on these. The Department had
developed a matrix setting out all proposed amendments and the Department's responses, including highlighting those issues that the Department would find it difficult to follow. The DSD had also extrapolated the Committee's feedback. He noted that the Committee had already made the point that whilst a number of amendments proposed were important, they might not necessarily be made during the current amendments process but would be flagged, and the DSD would then  develop another proposal from there, considering policy and financial implications.

He noted that what he would now take the Committee through were the amendments already approved by the Committee, and/or those that the Committee wanted to see in the Bill .  

Definitions  clause
"Sexual offence": The Committee had wanted a change in the definition of sexual offence from the introduced version. Two options had been drafted; the first was the one that the Committee had suggested, and the difficulties around workability were set out.

The clause as introduced read as follows:   “sexual offence” means sexual offence as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007.  

The Committee wanted to extend the definition to also include similar definitions in various other legislation, including the Films and Publications legislation; as well as the Sexual Offences Act No 23 of 1957. Legal Services of the DSD had pointed out that a number of other pieces of legislation might also apply and had suggested that no closed list should be produced. The DSD therefore proposed that the definition of sexual offence should not be changed from the version of the Bill as introduced, but the phrase "and any offence of a sexual nature in any other legislation" could be added.

Ms V Mogotsi (ANC) said that other stakeholders including the Justice Department should be included.  

Ms L van der Merwe (IFP) replied that she was assured by what had been presented, and agreed that it would be preferable to refer to legislation in general, rather than attempting to select one or two pieces of legislation.

Ms L Wilson (DA) agreed and Members in general indicated that they would agree with the DSD comment.

Clause 2
The DSD was proposing, on page 3, before line 5, the insertion of a new section 1A, reading :
"the provisions of subsection (1)(c) are not applicable to a person who was a child at the time of the commission of the alleged offence"

This would be consistent with the Constitutional Court case in the case of J v NDPP,  and there did not appear to be any problematic legal issues.

Members agreed.

The DSD added that another proposal had been, for page 3 after line 5, to remove references to “rape” and "indecent assault". However, the Committee felt strongly that although “attempted murder” could be removed, rape and indecent assault should be reflected. He noted that the new wording would thus be:

"on conviction of murder, rape, indecent assault or any other sexual offence contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007, assault with the intent to do grievous bodily harm ... "  

Ms Wilson expressed confusion over the decision on attempted murder, pointing out that in this case the victim would survive.

Mr Siyabonga Shozi, Director: Legal Services, DSD, noted that the Bill contained an overriding provision which covered all the attempted offences, not limited to murder. It then declared that any person guilty of an offence or attempt at any offences listed in section 4 would be deemed unsuitable to work with children, so this was covered there.

Ms van der Merwe asked for clarity with regard to the addition of rape and indecent assault. The Sexual Offences Act (SOA) referred to “sexual assault”, not “indecent assault”.

Mr Shozi said that the DSD had been advised by the Department of Justice and Constitutional Development (DoJ) to include wording that applied historically to common law offences prior to the promulgation of the SOA in 2007, to cover all bases.

Other offences which were also to be added in specifically would appear after line 10 on page 3, after the word “harm”, reading: "...offences in terms of sections 8, 9 and 10 of the Prevention and Combating of Trafficking in Persons Act No. 7 of 2007; and offences in terms of 24A (5) concerning the distribution or exhibition of classified materials to children."

On page 3, in line 25, the Committee had asked for the inclusion of a new subclause (4A) as follows:

"(4A), if a court has, in terms of this Act or any other law, convicted a person of a sexual offence referred to in section 4(a), and such a person was a child at the time of the commission of such offence; or if a court has made a finding and given a direction referred to in section 4(b) in respect of such person who was a child at the time of the alleged commission of the offence, the court may not make an order as contemplated in section 4 :

(a) unless,  
(i) a prosecutor has made an application to the court for such an order;
(ii) the court has considered a report by the probation officer referred to in section 71 of the Child Justice Act 2008, which deals with the probability of (the person) committing another sexual offence against a child or a person who is mentally disabled, as the case may be, in future  
(iii) the person concerned has been given the opportunity to address the court as to why his or her particulars should be included in the Register; and  
(iv) the court is satisfied that substantial and compelling circumstances exist based upon such report and any other evidence, which justify the making of such an order. 
 
(b) In the event that a court finds that substantial and compelling circumstances exist which justify the making of an order as contemplated in section 4, the court must enter such circumstances on the record of the proceedings."  

He explained that the principle in the aforementioned section is in line with the recent Constitutional Court decisions in relation to the Sexual Offences Act  (and the provisions here are in line with the references to the Register in the Children's Act)

Members indicated their agreement on this point.

He went on to add that on page 3, after line 25, the Committee had wanted an exception added to (5), which read:
"(5) Any person who has been convicted of an offence contemplated in subsection (4)(a), whether committed in or outside the Republic of South Africa, during the five years preceding the commencement of the Chapter, is deemed to be unsuitable to work with children ...."  

The Committee had asked that additional words to be inserted here should be “ unless such a person was a child at the commission of the offence”.

Members agreed.

Clause 5
Mr Magwaza noted that on page 3, after line 40, the Committee had requested the addition of a new sub-paragraph, which would read:

“(aA) of any criminal conviction contemplated in section 120(4A)”  

He added that the Committee, in respect of page 4, line 5, wanted the word "ostensibly" removed. It wanted to add extra words at the end of the paragraph. The revised section would thus read:

"had been abandoned or orphaned and does not have the ability to support himself or herself and such inability is readily apparent".  

Ms van der Merwe reminded Members that at the last meeting there had been a discussion based on the fact that the Children's Third Amendment Bill would shortly come to Parliament, and in the recent State of the Nation Address, the President had spoken of a substantial review of the foster care system. During the last discussion, the point was made that changing the wording at this stage would make matters worse: the court interpreted the section but did not note that it should change. A “child in need of care” might be interpreted differently by different magistrates. She thus suggested that the original wording should be retained.

Ms Conny Nxumalo, Deputy Director General: Welfare and Children's Services, DSD, responded that the change in wording was intended to clarify the clause. During the public hearings, the point was made that “ostensibly” presented difficulties in interpretation. The Legal Advisers said that if the word was not clear, the Committee would then have to decide whether to revert to the original wording.

Mr Shozi added that the High Court had provided guidance in interpreting section 150, so it was decided to try to incorporate the guidance expressed by the Courts. During the public hearing, organisations had raised concerns on policy issues to do with the general foster care system. It had been indicated that the Department was already dealing with those, and was likely to bring further amendments to the Committee.

Ms Mogotsi agreed with Ms Nxumalo, recalling the discussions when the legal advisers were asked to assist, and had recommended that the wording be simplified as far as possible to give guidance to magistrates rather than leaving it up to them to decide.

Ms van der Merwe maintained that she was still not convinced that this would cut out differing interpretations, but was happy to proceed.

The Chairperson confirmed that Members were satisfied with this presentation, and Ms Mogotsi expressed her appreciation for the assistance given by the DSD.

Second Children's Amendment Bill B14-2015: Amendments proposed
The Chairperson confirmed that the views of other interested stakeholders had been represented by the Committee when it made proposals for changes.

Mr Magwaza noted that in the Second Children's Amendment Bill, on page 2, after line 10, the Committee had suggested the addition of the following:

"has a speciality in adoption services and is registered in terms of the Social Services Professions Act No. 10 of 1978." He then read out how the new wording would read.

The Chairperson informed the Committee that the profession's registration body had been invited to provide further input and clarification.

Ms Nxumalo reported that when the registrar had spoken to the regulations, there was mention of existing regulations that spoke to specialisation and registration of such speciality areas. It was emphasised that a social worker within the employ of a Department (national or provincial) of Social Development can deal with adoption issues, even without being registered as a specialist in this field, because the current regulations are discretionary. There is no current speciality training in adoption at any institution of higher learning.  

Ms Wilson said there was a concern that social workers dealing within the adoption services should in fact be accredited, and the Registrar had noted this. However, she pointed out that the wording currently referred to "a social worker in the Department or provincial Department of Social Development" – and this would presumably not include NGOs dealing with adoption services.

Ms Nxumalo clarified that the reason for extending the wording to the current reading was that the courts had pointed out that it was in fact only the NGOs and private sector who were included in the regulations, and not government social workers, so the definition had now been extended also to stipulate a social worker employed by a state department. Ms Wilson's query about NGOs was already dealt with in the legislation as it existed.

The Chairperson added that this was an extension because formerly this function had been performed by NGOs, and thus appeared to be reserved to them. This Committee had pointed out that the adoption process was slow because of lack of capacity, and expensive, being done privately, so that it was decided to include state employees for quicker turnaround. 

The Chairperson welcomed the Minister of Social Development, Ms Bathabile Dlamini, to the meeting at this point.

Mr Magwazi proceeded. On page 3, line 50, the Committee had asked for the words "placement of the child in temporary safe care" to be removed and replaced with "the removal of the child".  

The section now read: "the matter is placed before the children's court for review before the expiry of the next Court day after the removal of the child".  
  
On page 5 after line 10, the Committee had asked for "internship" and "learnership" to be added, so that the wording now read "...necessary to enable that person to complete his or her grade 12, higher education, further education and training, internship, learning or vocational training."

Ms S Tsoleli (ANC) asked whether “further education” existed any more: she thought that it had been replaced with Technical and Vocational Education and Training  (TVET), with the former FET colleges now replaced with TVET colleges.

The Chairperson highlighted that there was a concern if children had been disrupted and would need to be taken back.

Mr Magwazi noted that these were all the amendments proposed on this Bill.

The Chairperson agreed that these were amendments proposed by the Department and the Committee together, after public input. She thanked all those Members and officials who had worked hard to bring these about and also thanked the DoJ for its input.

Ms Lindiwe Ntsabo, Committee Secretary, outlined the procedure. Members could now study these proposed amendments and a formal A-list would be produced next week. If there was agreement on the A list of amendments, the B-version of the Bill would be discussed, and this would be a formal presentation, when the Chairperson would ask for Members' input on each of the clauses. Once the Bill had been approved, the Committee would adopt its report to this effect.

Ms Tsoleli asked for a time frame, saying that she had assumed that more would have been done in this meeting on the Bill.

The Chairperson assured her there was still enough time and the Committee also needed to consider its oversight reports. The Committee was in line with the framework times for adoption of the legislation.

Ms Ntsabo also assured Ms Tsoleli that the Committee had been following the legislative process properly; the reason that the B version would not be considered today is that it still had to be prepared. When the Committee embarked upon the next formal stage, Members must have both the Bill as tabled, and the A list to ensure that the exact amendments had been included.

Ms Wilson asked for clarity, pointing out that the Bill was on the Order Paper for the following day. 

The Chairperson then asked the DSD to clarify the point raised about the reference to further education.

Mr Magwaza said that TVETS would be included in the reference to “further education” and the reason that this wording was used was that there were private colleges also that were recognised by the Department of Higher Education. Whilst the DSD was not disputing what Ms Tsoleli had said, this was a broader reference to “further education” altogether rather than a specific reference to the FET Colleges, so the TVET colleges were also included.

Mr S Mabilo (ANC) thought that TVET was in fact the currently-used terminology – and that there were three tiers in the structure, being Basic Education, Higher Education and TVETs, and that these were the definitions that should be used. 

Ms Mogotsi also agreed, saying that internships and learnerships were also included in a reference to “technical and vocational education and training”.

Ms Wilson noted that the DSD had actually included internships and learnerships in addition to the reference to TVET, and so the amendments actually extended beyond the TVET colleges themselves.

Ms Mogotsi repeated that the FET colleges were no longer in existence formally. She did not object to specifying internships or learnerships, but wanted to point out that “further education” was no longer part of the vocabulary in usage, so she recommended that the DSD be consistent and refer only to TVET.

The Chairperson repeated that this should not be read as only meaning the TVET institutions, for there were private colleges or non-colleges and she was worried that these might be read as excluded. The amendment should ideally refer to “TVET colleges and others”.

Ms Tsoleli repeated again that FET colleges had been replaced with TVET colleges that incorporated vocational training, which was wider.

The Chairperson noted that DSD did not appear to be against the suggestion.

Mr Magwaza noted that TVET colleges and others would be included in a reference to “further education”.

The Minister asked to give some input at this point. Firstly, she apologised for the Committee not having been informed, in the previous week, that a Cabinet Committee meeting had been called and she assured the Committee that there was no intention to undermine the Committee.

The Minister wanted to speak to the point on TVET and said that a reference to “further education” would encompass not only the TVET colleges, but also other areas of training such as childcare work, Early Childhood Development, and people being trained by the Department of Basic Education. For this reason, she suggested that there was no harm in using the term “further education” as it was all-encompassing. The main point was the children would be given more time to complete their education; most did not complete this by the age of 18. If this was not included, children under foster care or temporary safe care would otherwise need to be removed from care when they reached 18, irrespective of whether they had completed their Grade 12 or vocational training.

Mr Mabilo said that he did not object to additional wording and all that was being said was that the concept of an FET College had been replaced by a TVET College. All other education programmes and training at grade 9 to 12 level were being taken care of in the TVET stage. He just wanted an assurance that this wording would not result in duplication or ambiguity.

The Chairperson wanted to clarify whether Mr Mabilo meant that everything was already included under the reference to “TVET” so that there was no need to mention “further education”. 

Mr Magwaza said that there was no mention of “FET Colleges” (FETs), but that the term “further education” as a concept would be included.

Ms van der Merwe agreed with Mr Magwaza. The TVET Colleges were one sector. References to “further education and training” were not referring to a sector, but further education in general and this term would cover everything and ensure that there were no loopholes. She would not see any harm in addition “and further education” after the reference to TVET colleges.

Ms Tsoleli maintained that she and Mr Mabilo were making the point that TVETs were not a sector, but covered everything, private or public, and the inclusion of “further education and training” was repetitious. Furthermore, the term “further education and training” was not used any more, so why include it here?

The Chairperson noted that if there was no harm, then she suggested that “TVETs and further education and training” should both be used.

Mr Mabilo maintained that this was unnecessary duplication since Adult Basic Education and Training from levels 1 to 4 were included under TVET.

Ms van der Merwe pleaded with Mr Mabilo to meet the Committee half way as there would be no harm in using these terms.

The Minister stated that the explanation by the Department of Higher Education and Training was that although the Further Education and Training Colleges had been asked to start referring to themselves as “TVETs”, most people were still using and understanding the term “further education and training”. She suggested that the legal advisers from Parliament and the Department should work on the wording to take account of the suggestions.

The Chairperson noted that the Members had failed to agree and she suggested therefore that the legal interpretations should be presented.

Ms Tsoleli made the point that the legislation was to be decided upon by the Committee, and even if the Department proposed amendments, the Committee was not bound by them. She thought that discussion on this point must continue.

The Chairperson said the views of those Members not able to attend this meeting should be sought.

Ms Tsoleli argued that it was not fair, as time was a factor.

The Chairperson said that the time allocated to the Committee had expired, and she would agree with the Minister's suggestion to investigate more broadly. Further discussions on the point should be postponed.

Mr Mabilo also agreed with the Minister.

Ms van der Merwe supported the Chairperson and the proposal to postpone the discussions at this point and move on.

Mr Magwazi addressed the point again. Section 176 of the Children's Act spoke to a person remaining in care beyond the age of 18. A person could be permitted to do this if they were still studying for Grade 8, or at a TVET level, or doing an internship or learnership. He said that if there was to be a reference only to TVET, then that would not create a “legal crisis”, but whilst referring to “further education and training” would not necessarily lead to ambiguity, it could be considered repetitious. He said that if the Committee would like a written opinion on the point, it could be provided.

The Chairperson agreed that the legal advisers should be asked to speak to this at the next meeting.

The meeting was adjourned.