Children's Amendment Bill & Children's Second Amendment Bill: adoption; Committee Report on Eastern Cape Oversight

Social Development

20 April 2016
Chairperson: Ms R Capa (ANC)
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Meeting Summary

Eastern Cape Oversight Report [Committee Reports available under Tabled Committee Reports once published on the ATC]

As requested by the Committee, the Department of Social Development provided advice on whether the amendment to section 186(1) in the Children's Second Amendment Bill should remain in the Bill. The recommendation of the Department was that the original wording of the Act should be maintained. This meant that the word ‘foster’ would be inserted in the Bill. The Committee agreed to the Department’s advice. There still seemed to be some confusion about what the issues at stake were about foster care which had been highlighted by the Children’s Institute. The Chairperson insisted that they be a given a briefing on the scope and timeframes of the Ministerial task team that is reviewing foster care. The Department acknowledged the current crisis in foster care and the backlogs. The urgency of the crisis was emphasised by the Committee and they suggested that the briefing had to include what was to happen in the interim.

They adopted both Bills unanimously, with amendments.

The Committee adopted its Eastern Cape Oversight Report which had investigated the gruesome murders taking place in the Eastern Cape where women were being attacked and murdered for their social grants. It was suggested that there had to be follow up and a progress report on the matter.

Meeting report

Opening Remarks by Chairperson
The Chairperson noted that the Department of Social Development would brief them on the proposed amendment to section 186(1) and advise on how to proceed with the amendment; whether the Department thinks the amendment should be included and how to manage it. 

Department of Social Development (DSD) briefing on proposed amendment to section 186(1)
Mr Wiseman Magasela, DSD Acting Director General, stated that Ms Conny Nxumalo and their Legal Services would be taking the Committee through the proposed amendment for section 186(1) of the Children’s Act. Ms Conny Nxumalo was the DDG responsible for this issue and thus will be the person responsible for the implementation of the section. Whilst the amendment was being proposed, he found it important to remind Members that the Minister of Social Development has appointed a Ministerial Committee to review the entire foster care system and how they can most effectively do their best to improve the quality of life of children.

Ms Conny Nxumalo, DSD Deputy Director General: Welfare Services, stated that Mr Shozi would be acting as their collective mouthpiece and presenting on the Department's behalf.

Mr Siyabonga Shozi, DSD Director: Legal Services, stated that the Portfolio Committee had called upon the department to provide them with guidance on how the proposed amendment should be handled. During the public hearings on the Bills a similar call was made to reconsider the amendment to section 186(1) which gave the Department an opportunity to reflect on the amendment. The Department realised the unintended consequences of the amendment which prompted the Department to support the proposal to drop the amendment from the current Bill. In their view, it was an oversight not to remove this when the A list (that is, the Committee’s proposed amendments) was prepared.

The Department supported the proposal to omit the amendment for the following reasons:

The current section 186 heading is 'Duration of foster care placement' in the Foster Care chapter which reads:
“(1) A children's court may, despite the provisions of section 159 (1)(a) regarding the duration of a court order, after a child has been in [foster] the care [with] of a person other than a family member for more than two years and after having considered the need for creating stability in the child's life, order that-”
(a) No further social worker supervision is required for that placement;
(b) Further social worker reports are required in respect of that placement; and
(c) The foster care placement subsists until the child turns 18 years, unless otherwise directed.

Removing the word 'foster care' will pose a challenge because the child will not be required to be placed in foster care first, where there are protective measures such as supervision and monitoring of the placement.

During the initial two-year foster care placement period, the suitability of the placement will be monitored and the level of stability will be assessed. After this period, the social worker may then recommend to court for the placement to be extended for more than two years.

This initial foster care placement is imperative in this case, because it is a non-related placement with a non-family member.

Furthermore, the amendment is not aligned to the heading and the provisions in 186(1)(a),(b) and (c); especially (c) which refers to 'the foster care placement' not plain 'care' as well as the chapter.

As indicated previously, the Minister has set up a Ministerial Committee, which is reviewing the foster care system as a whole. It may therefore be prudent to deal with all foster care issues after the Committee has concluded its work and having the benefit and wisdom of recommendations.

He spoke about using the current provisions of the Act to overcome the backlog challenges in the court system:

The Act defines a family member as 'family member' in relation to a child means:
(a) a parent of a child;
(b) any other person who has parental responsibilities and rights in respect of the child; or
(c) any other person with whom the child has developed a significant relationship, based on psychological or emotional attachment, which resembles a family relationship.

In their view the same result we were trying to achieve by the amendment can be achieved by applying and correctly interpreting the definition of 'family member'.

The backlog can be addressed to a certain extent in most cases where a child has been staying with the prospective parent(s) which is dealt with as family placement in terms of section 186(2) by applying the wide definition of 'family member'.

He concluded that their recommendation was that the Portfolio Committee takes note of the Department’s views on the concerns raised about the amendment to section 186(1).

The Chairperson wanted to get clarity on whether the thrust of the Department’s proposal or advice was such that it was permissible for the Committee to ignore the amendment and that even though it is not included, that the purpose that the amendment was meant for continues to be attended to in one way or another.

Mr Shozi agreed with the Chairperson that that was the advice he was putting forward on the matter.

The Chairperson pointed out to the Director General that the task team set up by the Minister had not been formally introduced to the Committee. For it to have been a formal introduction, there should have been a report presented through the Acting DG detailing the nature of the task team, the kind of people involved and the terms of reference and time frames with which it operates. She was specifically raising this concern because in the past they have had problems with being told through presentations that the Minister had put together an advisory task team to deal with social grant deductions but this task team was never properly and formally presented. The challenge came when such investigations were delayed. The Committee was not aware of the terms of reference, the timeframes and did not know where the process was. This led the Committee to be in state where they are unaware of what their role was in pursuing such delays and what should have been done. She asked if he could ensure that the Committee knows who the task team is and what the Committee’s role is in relation to it. She asked for a response.   

Mr Magasela responded that inasmuch as the Department was informing the Committee that there exists such a task team as appointed by the Minister, it would be important for the scope of that task team to known and understood by the Committee. He mentioned that the recommendation would to arrange a briefing to the Committee as to where things were at. He mentioned that Mr Shozi had just referred to empirical evidence that was needed whereas the Ministerial Task Team on Foster Care would not be undertaking empirical evidence research. They were instead conducting a review. He noted that the foster care task team was established because the Department is facing a crisis currently and the backlog on foster care was also a contributing factor.   

The Chairperson interrupted Mr Magasela to state that it was not necessary for him to give a detailed account of the task team now as he would have time to do so at the next meeting when the department would present on it. She added that other areas such as research were not linked to what she had asked as she was specifically inquiring on whether the advisory task team was being established and to present the Committee with further details on this. She noted that she has historically had a bad experience with not knowing the scope of a particular task team and so her question was prompted by the need to have informed answers about questions of scope and terms of reference. She was comfortable to proceed to the discussion as the Department would have enough time to speak on the matter when they return to present their written report on the task team.  

Ms V Mogotsi (ANC) stated that firstly on the Ministerial task team, she wanted to add that where foster care is concerned, the poverty faced by the children of South Africa, including those not in the government system, was very grave and with the continued suffering of children, the Department needed to expedite the matter. She felt there should not have been a need for the Committee to request a report on the task team as they should have already been informed of its establishment and what and where it was at. This was because the Committee was busy attending to the Children’s Bills Bill and the review carried out by the task team could have assisted them in tackling the current challenges in foster care. Secondly, on the amendment, with regards to their definition of a family member, in Section 186(1)(c), they were correct in stating this but it is common knowledge that there is a different practice in the courts. She noted that often Magistrates in courts, especially those at the children’s court, were particularly difficult and do not understand the seriousness of the issue. As a result, when defining family member, they will not consider all definitions up to and including Section 186(1)(c). Furthermore, children have been known to be kept waiting without representation and while social workers may try to assist, the people working within the courts have a different system and do not operate in the same manner as Social Development. If the amendment is not going to be removed, what exactly is being said about this because something needs to be done to direct the magistrates on what to do in these cases.  

Mr Shozi replied that where, for example, he were to take in his neighbour’s child after the neighbour had passed on, and stayed with the child for a period of about two years before applying for foster care, the Department was recommending that in such cases, there would be no need for the court to restrict itself to an order for two years. This was because there would already be some form of established relationship between the child and potential foster care parent and some form of stability in that child’s life. However, they have taken note of some of the issues raised. The Department holds that even if the Committee referred back to the original wording of the Act, the Department’s position is that, if Section 186(1)(c) of their definition of ‘family member’, were to be used, the example provided here would still be taken care of. This is considering that there is an already existing stability in the child’s life and a relationship, and so they can therefore be considered to be a ‘family member’ based on this. This would be treated as a family placement of the child and the court would interpret this as a family relation and have the leeway to grant an order that is longer than two years.

Ms E Wilson (DA) stated that she thought that there was a bit of confusion around the issue because the Committee had been given a letter by the Children’s Institute in order to go back, study and assess what their concerns were. They were given all the documents but she has failed to find an amendment to section 186(1) in any of the documents that they were given. She thought that what the Children’s Institute had put on the table was very relevant, important and critical. The Committee was there to speak for the children who could not speak for themselves. In light of this, the presentation by the DDG’s legal team, had no evidence that showed that children were more likely to be safer or in better care if they are in the custody of a ‘family member’. She wanted to understand where they stood with this particular Bill and what the Department’s proposal was because she was still not sure of this. She wanted clarity on whether the proposal was that the word ‘foster’ was to be included in the amendment or was the proposal that the Committee goes ahead with the amendment which deletes the word ‘foster’ and reassess the situation. She would be opposed to the latter because until the matter was finalised, she felt that the word ‘foster’ should be included in the amendment.

Mr Shozi mentioned that he was a bit confused when Ms Wilson stated that the amendment was nowhere to be found as it was present in the B version of the Bill [B14B-2015] where the proposal was to remove the word ‘foster’ and leave only the word ‘care’.

Ms L van der Merwe (IFP) stated that initially, the Committee had proposed that the word ‘foster’ be removed, only leaving behind ‘care’ but now it would seem that there is a proposal to return back to the use of foster care and she wanted to get clarity on whether the final proposal was a return to the original wording of the amendment.

Mr Shozi responded that what the Department was saying was there was no problem in reverting back to the original wording of the Act.  

The Chairperson stated she was aware that the taking care of children by a family member has been an issue for a long time. She recalled a discussion that highlighted how often a family member would be taking care of their relatives’ children with no form of financial assistance from the government. In instances where there has been some form of financial assistance for foster carers, this directly discriminated against those people who would take in their relatives’ children. She found that a weakness of the Committee and Department was in their monitoring of whether children being cared for by their family members was being done so under family obligation or if they had in fact been financially empowered to be in a position to take care of the child. She requested Committee Members to indicate what their straightforward proposal was on the issue now that some of their questions had been answered.

Ms van der Merwe replied that she thought that the Committee should stick to the original wording of foster care because by taking out the word ‘foster,’ they would be opening themselves up to a lot of issues. She pointed out that during the presentation, the Department had also found that it would be safest to stick to the original wording and she supports their recommendation.

Ms Wilson seconded the proposal by Ms van der Merwe. She said that in light of the explanations, the word ‘foster’ must stay. She further wanted to apologise as had found the amendment in the B version of the Bill, [B14B-2015], though not in the A-List, [B14A-2015].

Ms Mogotsi supported the proposal because she thought that it gave the Department time to investigate whether the child had been fostered from inside or outside the family and the children would be protected under the Children’s Act. Furthermore, the social worker would be able to check in on the progress and development of the child.  

The Chairperson stated that now that the matter had been finalised, she wanted to highlight again the need for the Department to return to brief them on the Ministerial task team, their terms of reference and the timeframes in particular. She added that there needs to be more time to discuss the 500 or more cases that are said not to have been captured in the Department’s net and while social workers gather information on the ground, caregivers and children without the necessary documents such as IDs are unable to receive financial assistance and while there are laws and policies to address this, it is currently not being addressed. She asked that there be a broader definition with regards to the task team’s scope and timeframe as to what could be done for now.

The Committee Secretary noted that the proposed amendment was not on the A-list and as a result, the A-list needed to be revised to include the proposed amendment before the Committee could formally adopt the Bill. This reprint would be carried out by Creda Press, an external service provider.

The Chairperson requested that the Department arrange for the reprint within an hour while the meeting continue with other Committee business. She added that the Committee would not be able to deal with the Committee Report on the Department Budget as it was still in its early draft stages and they would not do it any justice. Instead, she proposed that the Committee deal with the Eastern Cape Oversight Report and the adoption of outstanding minutes.

Eastern Cape Oversight Report
The Chairperson noted that not all Members were present for the oversight visit but all members were in possession of the Committee Report on it. She suggested that due to time constraints, they not read through it but she give a summary of what had happened on the oversight visit. She did not want Members adopting a report that they were not familiar with so. Thereafter, they can discuss any issues they may want to raise.

Ms H Malgas (ANC) said that it would be best if the Chair spoke briefly on the report as only certain Members were on the oversight visit and it would help to bring everyone up to speed with what is covered in the report.

The Chairperson stated that the Committee oversight visit to the Eastern Cape was targeted at issues of abuse particularly of women but also of children. There had been a report of children fastened to trees and being beaten to death. Upon arrival and in an attempt to confirm and substantiate the information, the Committee had met the SAPS Provincial Commissioner to receive statistics that showed that things were bad. The police supported and thought that it was important for the Portfolio Committee to get involved as there were gruesome murders and other nasty reports of what was being done to people in the area. There were about five cases that were highlighted and were included in the report that detail the murder of women execution style.

While on the oversight visit, a women was murdered in Bityi, near Mthatha. Upon investigation and consultation with some of the women there, the women stated that the grant money provided to them by the government was the reason why they were getting attacked. Even if they used the money to buy food, the gangs would in turn steal the food and often the gangs would tell them that if they have money, it would be best if they left it on their window sill because if they have to come inside to find it, they will rape them as well.

She said the police helped in compiling the report and it details some of the gruesome murders of elderly women. The people to whom these crimes were happening had absolutely no hope left. In response to this, the Committee members went to the Provincial Legislature and met the MEC and HOD on Social Development. They produced a full report, much like the one the Committee had received from Northern Cape and it emphasised that the matter required that the Committee do more to resolve the issue. This prompted a meeting with the House of Traditional Leaders as well as church leaders at a provincial level, as relevant stakeholders. The Committee proceeded to areas reported as being the worst affected such as OR Tambo District Municipality and Bityi falls within this district. The police who had been exposed to some of the gruesome crimes were counselled by the Committee. She mentioned that the issue brought forward was how service centres for the elderly would be helpful. The Department was providing the budgeting for those centres. However, the centres in the Eastern Cape are very different to those in the Northern Cape as they are in the form of huts. When visited, they were not as they had expected them to be even though there is a budget for their maintenance. There is a stark difference in the service centres to those they had observed in the Northern Cape.

Overall, this matter had been raised with the Speaker as what they saw in the Eastern Cape was very alarming. She noted that the matter they were raising in the report was complicated. The members who were present on the visit all heard the stories and what she had just mentioned was a mere summary of what was contained in the report.

Ms Wilson stated that most of the Members who went on the oversight visit, were present and for other Members, they would have had a chance to read through the report as they have had it for some several weeks, waiting to adopt it. She proposed that the Committee adopt the report as Members would have had enough time to raise any concerns if they had any.

Ms Malgas seconded the proposal by Ms Wilson.

Mr S Mabilo (ANC) stated that the approach that the Committee had developed in their last visit to the Northern Cape, the same procedure should be followed. He added that the issues raised in the report were contentious and as a result, there would be a need for a follow up especially with regards to the recommendations pertaining to all the key stakeholders. He stated that in a reasonable space of time, they should receive feedback on what the progress is and if the situation necessitated that there should be a follow up visit. It was not okay that people were at the receiving end of criminal acts. Given that this report was from last year, five months have already passed and there was a need for a progress report. He recommended that at the next Portfolio Committee meeting, there should be a written progress report in order to assess the impact of the oversight visit and state of affairs. Lastly, he mentioned that the Committee should be commended for going on the visit and getting to grips with the challenges faced by people and he would be interested in getting a progress report from all relevant stakeholders, especially law enforcement.

The Chairperson highlighted some of the crimes befalling the people by referring to page 6 of the Committee Report. She added that this report was on the desk of the Provincial Commissioner as he wanted to work with the Portfolio Committee to find solutions. The Chairperson had raised the possibility of a return oversight visit with Parliament’s Chair of Chairs who suggested that since there were not enough funds for this (as the Committee had R300 000 for their annual budget), the Committee could arrange public hearings in the Western Cape or in the Eastern Cape to check if this problem is not occurring in other provinces of which they are unaware. This suggestion was reserved for after this meeting as the report needed to be adopted before going ahead with the suggestion. She supported the move to adopt the report and agreed with Mr Mabilo that, given the gravity of the matter, they would need to elevate it to discussion with the Chair of Chairs to figure out what can be done to save the poor and the vulnerable from this. She concluded that the report was adopted.

Committee Minutes
The minutes of the meetings of the 2 March, 9 March, 16 March, 6 April and 13 April 2016 were adopted.

Children's Amendment Bill [B13A-2015] and [B13B-2015]: adoption
Mr Shozi took the Committee through the amendments as had been agreed to by the Committee in the Bill version of B13A -2015. He read out the amendments to the Bill clause by clause (see document).

Ms B Masango (DA) noted in clause 1 that Mr Shozi had read it as “any other offence of a sexual nature in any other law” and asked if the first ‘other’ was meant to be included as it did not appear this way on the A-List.

Mr Shozi replied that he had made a mistake when reading it out and the A list was the correct wording as it should read “and any offence of a sexual nature in any other law’.

Ms Malgas pointed out in clause 2, that Mr Shozi read it out as “of criminal conviction” when in fact it should have been “and of any criminal conviction”. There was also an incorrect reference to a section which Mr Shozi acknowledged.

The Chairperson asked if the Committee could adopt the A-List now that it had been checked.

Ms Wilson wanted to confirm with Mr Shozi that everything in the B version of the Bill had been carried over from the A-List that had just been discussed.

Mr Shozi confirmed that all Committee proposed amendments in the A-List have been transferred to the B version of the Bill, B13B-2015.

The Chairperson noted that the A-List contained the Committee amendments only and the Committee approved this. She wanted to now move to discuss the B version of the Bill, B13B-2015.

Mr Shozi took the Members through the B version, reading out the Committee amendments as they had been inserted into the full Bill. He concluded by saying he hoped that the B version had incorporated all the amendments put forward in the A-List.

Ms Mogotsi stated that she was satisfied and she was happy to adopt the B version of the Bill, B13B-2015.

Ms Wilson seconded the adoption.

The Chairperson read out the Committee Report noting that the Committee recommended the Bill as amended for approval by the National Assembly.

Children’s Second Amendment Bill [B14A-2015] and [B14B-2015]: adoption
Mr Nathi Mjenxane, Legal Adviser, took the Committee through the A-List of the Bill, [B14A-2015], and read out the amendments.

Ms Malgas noted that under clause 5 amendment number 1, the word learnership had been spelt incorrectly and needed to be corrected.

The Committee approved the A-List, B14A-2015.

Mr Mjenxane took the Members through the B version, reading out the Committee amendments as they had been inserted into the full Bill.

The Chairperson asked if the Bill [B14B – 2015] could be put up for adoption.

The Committee all motioned in favour of the adoption of the Bill.

The Chairperson read out the Committee Report noting that the Committee recommended the Bill as amended for approval by the National Assembly.

The meeting was adjourned. 

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