Children’s Amendment Bill [B13-2015] and Children’s Second Amendment Bill [B14-2015]: deliberations

Social Development

16 March 2016
Chairperson: Ms R Capa (ANC)
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Meeting Summary

The Legal Advisers from Parliament and the Department of Social Development delivered feedback on the key amendments as proposed by the Committee in both Bills. The issue of TVETs which was previously debate, was settled. as Members found the term “college” to more suitable and all encompassing. Amendments were read clause by clause in both Bills in both the A-list and B-version of B13-2015 and in the A-list of B14-2015, but Members were to agree with the amendments before they were then finalised and formalised in writing on paper. The DSD and Parliament Legal Advisers were granted permission to leave the meeting to formalise and finalise the amendments, but as they were unable to return to the meeting it was agreed that the adoption of the Bill would stand over to the next day.

Meeting report

Childrens Amendment Bill [B13-2015] and Childrens Second Amendment Bill [B14-2015]: Deliberations
The Chairperson mentioned that the Amendment Bills were being dealt with in the honour of human rights and the South African Constitution.   The Committee was aimed at improving the quality of life for South Africans as well as the security of youngsters and senior citizens of the country. The Chairperson congratulated the Committee for having been committed to these two Bills and hoped to formalise the amendments in this meeting. She welcomed the public present, which was important for accountability.

Ms Lindiwe Ntsabo, Committee Secretary,   noted apologies from the Minister of Social Development,  Ms Bathabile Dlamini, the Deputy Minister of Social Development, Ms Hendrietta Bogopane-Zulu and from Mr Thokozani Magwaza, Acting Director General of the Department of Social Development (DSD or the Department). She also noted apologies of Members.

Ms Ntsabo informed the Committee that the decision on behalf of the House could be taken as there were more than 50% of Members in the Committee, which met the meeting quorum requirements.

Ms Conny Nxumalo, Deputy Director General: Welfare Services, DSD, informed the Committee that she was to take charge of leading the delegation. She introduced Advocate Nkosinathi Dladla, Chief Director of Legal Services and Mr Siyabonga Shozi, Director of Legal Services, DSD, who had been working on the Bills since the amendments had begun. 

The Chairperson spoke to the absence of the Minister and Deputy Minister of Social Development; she noted that they could have other commitments but the Committee could request their presence, if necessary. She asked that the legal advisers give feedback on issues that were raised in the last Portfolio Committee meeting.  She apologised for what had taken place at the last meeting, said that the Whip had been called and an apology issued, which would be followed up with a written apology.

Ms E Wilson (DA) indicated that she accepted that apology.

Ms Ntsabo informed the Committee and Department of the meeting’s agenda. The first item on the agenda list was the issue of the legalities concerning Further Education and Training colleges (FETs), and then the Committee was to consider, and possibly adopt, Bill B13-2015. It would then move to B14-2015. The Committee must also consider the oversight report for the Eastern Cape visit. The DSD was asked to present on the first quarter programmes 1 and 5

Children's Second Amendment Bill [B14-2015] report back on legal issues
Mr Nathi Mxenjane,  Parliamentary Legal Adviser,  said he would present first on discussions at the last Portfolio Committee meeting around the references, in clause 5 of the Children's Second Amendment Bill [B14-2015] to  "further education and training".  He thought that this phrase should be deleted, and instead replaced by a reference to "college” or “technical vocational education and training". This was put forward for the Committee to advise as to which of the two references, college or technical vocational education and training would be the most relevant.  He pointed out that the reference to “further education and training” had been deleted from the originally named Further Education and Training Education Colleges Act No. 16 of 2006. This deletion would then also necessitate the definition of “further education and training”, so that should also be included then in the DSD's A-list of amendments.

Ms B Abrahams (ANC) stated that "college" was more suitable and appropriate as it was much wider and all-encompassing. If Technical Vocational Education and Training (TVET) was to be considered, this description may change again, and that would mean the Committee would have to  amend the Bill again.

Ms H Malgas (ANC) asked for clarity on the  two options posed by the Legal Adviser.  
Ms Wilson agreed with Ms Abrahams, but also wanted to hear from the legal advisers. She pointed out that the term TVET referred to public institutions,  and asked if the private institutions would be covered.

Mr S Mabilo (ANC) stated that he felt that this was going over ground previously discussed. He thought "technical vocational education and training" was encompassing. The Committee must keep the essence of what it wanted to achieve in mind, and not bring in other variables: it could not presume that amendments to that term would be made. However, he asked the legal advisers to speak to any unintended consequences.

Ms Malgas said that the option most appropriate was to be chosen by the DSD, who would have the child in their care and look at placement in a study institution, public or private. She suggested the insertion of a definition of “college” and agreed that this would be more appropriate, covering a broader aspect.

Mr Mxenjane responded that there had been much discussion between the legal advisers for Parliament and the DSD, and the options proposed for “TVETS” or “further education and training” may have limitations and challenges, so that was why the word “college” was suggested as more emcompassing as it spoke to both private and public institutions.

"College" was defined as:

"(a) a public college that was established or declared as (i) a technical and vocational education training college; or (ii) a community education and training college; or (b) a private college that is established, declared or registered under this Act". However, the definition could also be included in the Bill, for further clarity.

Ms Abrahams maintained that the Bill was being drafted for future generations and agreed with the more encompassing term.

The Chairperson mentioned that on her visit in Pretoria, it had been pointed out that some people were studying up to Masters level  at college, mostly at private institutions, also referred to as “informal higher learning”, and she asked what these would be called – universities or colleges. She had asked what they were called, and received assurance that they were termed colleges, so she agreed that this term would be appropriate.

Ms Malgas stated that the Committee should settle with one word, and include the definition for clarity and simplicity. 

Ms Wilson, after clarifying the point, also agreed.

Mr Mxenjane stated that instead of repeating the definition in the Bill, there would, to avoid tautology, be a cross reference to " ... college as defined in the Continuing Education Act No 16 of 2006".

Mr Mabilo asked the Legal Advisers to read out the definition of the TVETS, particularly the vocational aspect. If it was not problematic, he would see no problem in referring to TVET education.

The Chairperson said that the term "college" included TVETs, and that she was unsure if using the term TVETs would include colleges.

Mr Mxenjane again read out the definition of the term "college" as defined in the Continuing Education Act No 16 of 2006 as "(a) a public college that was established or declared as (i) a technical and vocational education training college; or (ii) a community education and training college; or (b) a private college that is established, declared or registered under this Act". This definition covered the three types of colleges and private colleges.

He added that section 3 of the same Act referred to the establishment of a public college:   "(1) The Minister, after consultation with the Institute, may, by notice in the Gazette and from money appropriated for this purpose, establish a public (a) technical and vocational education and training college; or (b) community education and training college." Here, TVETs were specifically referred to as public colleges and therefore using the term TVETS would exclude private colleges.

He recommended that the term “college” is more encompassing and simple to use in the context of the amendment(s). 

The Chairperson urged Members to accept this. The objective of the Committee was to make sure that children were not deprived of the opportunity to study, unlike the past where as soon as they reached 18 whilst in placement, they would stop learning, as they qualified as adults, and be taken out of their place of safety. This amendment was specifically intended to consider those who did need to continue with their studies and continue in placements. The use of “college” would improve their lives, and she said that the availability of opportunity to access education was a key issue.

Ms Nxumalo stated that the aim of the DSD was to create an all-inclusive environment for children who were within the system. Therefore, the DSD appreciated any word that is inclusive. The term "college" accommodated private institutions, which was important as some of the children were in such institutions.

Members agreed to use the term “colleges”.

The Chairperson asked Mr Mxenjane to read the Bill clause by clause. 

Mr Mxenjane agreed that the amendment that the Members had agreed on needed to go into the A-list of amendments. He asked if Members wanted to do that now and read it as inserted, or adopt the A-list in the next meeting.

Ms Wilson was content with the adoption of the amendment and trusted that the Legal Advisers would add the amendment as discussed to the A-list; she did not think the process needed to be delayed.

Ms Ntsabo mentioned that it was important that the process agreed on should be formalised on paper and certified by the Legal State Advisers, and she therefore recommended that a formal list must be brought to the next meeting. She added that the B-version of the Bill did not include this, and it would need to be in a C-version.

Mr Mxenjane suggested that the DSD and Parliamentary legal advisers could formalise that amendment now; it would take an hour or so, and it was the only other amendment to B14-2015.

The Chairperson said it has been difficult trying to get a space in the House, and she would appreciate if that could be done.

Ms Ntsabo reminded Members that they had unanimously agreed to the changes in the Second Amendment Bill B14-2015, and, for record purposes, even though it had been adopted, there still needed to be a formal reporting of that.

Portfolio Committee Amendments to Children's Amendment Bill [B13-2015]
The Committee then turned attention to B13-2015.

Mr Mxenjane said that the formal A-list of amendments would be discussed, and if they were adopted, the Committee would proceed to a line-by-line reading of the B-version of the Bill.

He took the Committee through the clauses as follows:

Clause 1
In the A-list of amendments, the Committee had proposed, in clause 1, on page 2 in line 14, to insert "and any offence of a sexual nature in any other law."

Clause 2
In clause 2 on page 3 after the word "amended", the Committee had requested that the following new section be added "1(A) 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" 

On page 3 in line 7, after the second word "murder",  the Committee had requested that the reference to attempted murder be deleted. . On the same page in the same line, the Committee had asked for rape and indecent assault to remain and not be removed. He summarised therefore that rape and indecent assault would remain, but attempted murder would be removed.

Ms Wilson asked why there was a removal of "attempted murder".

Mr Siyabonga Shozi, DSD Legal Services, reminded her that in the last meeting there were a number of offences listed and there was one overriding provision to provide for attempted offences. 

Mr Mxenjane continued that on page 3 in line 8, the Committee had asked for the word "assault" to be unbolded. On page 3 in line 8, the Committee had asked for the square bracket after the word "or" to be deleted. On page 3 in line 14 after the word "1996", the Committee had asked to add "or offences in terms of sections 8, 9, 10 or 24A (5) of the Prevention and Combatting of Trafficking in Persons Act No. 7 of 2013". 

Ms Malgas asked why brackets were being added.

Mr Mxenjane replied that what Ms Malgas had highlighted was a mere formality of drafting.  

Mr Mxenjane added that on page 3, from line 24, it was proposed that a new paragraph be substituted, reading:

"(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 A 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 the substantial and compelling circumstances exist based upon such report and any other evidence, which justify the making of such an order. 
(d) 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." 

Then, on page 3 in line 8, after the word “children”, the Committee had asked that the following be added "unless such person was a child at the time of the commission of the offence." 

On page 3 in line 44, after the number “5”, the Committee had proposed that the following be inserted; "(aA) and that of any criminal conviction contemplated in section 120 (4A)" 

Clause 5
Mr Mxenjane noted that on page 3, clause 5, line 6, the Committee had asked that the word "ostensibly" be omitted, and replaced by "and such inability is readily apparent". 

The Chairperson concluded the stage of the reading of the amendments and proposed that if there were no other queries, the adoption of both Bills could be formalised and adopted.

Ms Wilson and Ms Abrahams seconded the adoption. 

Reading of the B-Version, clause by clause
The Chairperson suggested that the meeting moved towards the B-version of Bill 13-2015, reading out clause by clause.   Once a clause had been finalised it was to be put to a vote. 

Ms Ntsabo highlighted that the amendments were to be read clause by clause, then the long and short title, then an indication from the Committee whether they wished to adopt the entire Bill.

Mr Mxenjane proceeded to read through each of the clauses in turn. Members agreed with the wording of all clauses preceding the amendment of section 152.

Amendment of section 152A
Mr Mxenjane read the amendment.

The Chairperson noted that reference was made to seeking support, since it could be found that a child would be subjected to grievous bodily harm, yet could not be removed without a court order until now. Now, however, social workers were to be empowered to remove first, and then the court would decide if that procedure was correct.

Members agreed.

Continuation of Amendments
Mr Mxenjane continued to outline the amendments, which Members agreed to.

Long Title
Mr Mxenjane noted the wording of the Long Title

Mr Shozi mentioned that there was an omission that had been brought to the Legal Advisers' attention. On page 3 in line 41, the Committee proposed the alignment to the Sexual Offences Act, but in the process of doing so the reference to “sexual offence” was left out. The Bill specifically intended to be broader in scope than merely referring to the Sexual Offences Act, and so there would be a cross reference to the preceding section of (4A).

The paragraph would then read as follows: 

"the court has considered the report by the probation officer referred to section 71 of the Child Justice Act 2008 which deals with the probability of another offence contemplated in section (4A)". 

The Chairperson highlighted that this would align and further completely interpret the offence correctly.

Ms Nxumalo commented that there was a reference to sexual offences made in the long title, therefore the proposed amendment should also be changed in the long title. 

Ms Wilson asked whether there was a need now to refer back again to Bill 14-2015 in this regard also.

Mr Mxenjane replied that because there was a definition of “sexual offence” in the Bill, which made reference to the Sexual Offences Act and any other law that spoke to sexual offences, that had already been defined. Any reference to “sexual offence” anywhere in the Bill would be interpreted in line with the definition that had been provided.

The Legal Advisers would make it clearer  in the Bill that since the cross reference to sexual offence(s) had already been defined in the Bill, that definition not be amended.

Children's Second Amendment Bill: Formal A List
Mr Mxenjane highlighted that the formal A-list for Bill 14-2015 would now be dealt with, in line with the Committee's previous discussions.

He noted that the amendment just proposed and adopted by the Committee, to include the word “college” was included and so was a cross reference to the definition of college as defined in the Continuing Education Act No. 16 of 2006.  

On page 2 in line 14, a change in the definition of college wase captured. 

He then proceeded to read the A list changes, clause by clause.

Members agreed to proceed. 

The Chairperson gave permission to the   DSD and Parliamentary Legal Advisers to leave the meeting in order to go finalise and formalise the amendments proposed in the Bill. 

Ms Wilson seconded the amendments proposed in B14-2015 A-list and asked whether the B-version of the Bill was to be dealt with as well. If there are to be any additional amendments to B14-2015 B then they were to be dealt with before the Legal Advisers left.

The Chairperson responded that it was only the issue of further education which had been dealt with now. Other amendments had been made before and the Committee would have to engage and vote on those, clause by clause, when the legal advisers returned.

By the end of the meeting, the Chairperson announced that regrettably, the amendments had needed to be taken to external services, and it was thus impossible to vote on the Bills today.

Ms Wilson commented that the amendments needed to be finalised and thus proposed a meeting for the 17 March 2016 to finalise the amendments. 

Members agreed and another meeting was arranged.

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