Children’s Second Amendment Bill [B14B-2015]: negotiating mandates & Department response

Meeting report

Opening remarks
The Chairperson welcomed the Members and said that there was no representative for Free State to read out its negotiating mandate. She called for a volunteer on behalf of the Free State, and while members were still deciding, she asked the Gauteng representative to submit its negotiating mandate.

Gauteng Legislature
The Gauteng representative referred to some of the common issues that had been raised by stakeholders. The definition of a social worker in section one did not set the criteria for specialisation and registration. The argument was that adoption was a complex problem so it required specialised skills. The use of the word ‘ostensibly’ in section one (15) of the bill rendered the word vague and open to different interpretations.

The Chairperson interrupted, saying that the representative was going through the incorrect document (the report). What the Committee wanted was for each province to submit its negotiating position that had been adopted by the Committee.

The Gauteng representative responded that she had explained that this was her first time doing this, and it was not fair that the Chairperson had let her go first when she had never done it before.

The Chairperson said that she was not accusing her of anything, and just providing some guidance. She directed the representative to the correct document to read, which was the negotiating mandate.

The Gauteng Member said that the Gauteng province supported the principle and the detail of the bill, with the proposed amendments.

Ms L Zwane (ANC, KwaZulu-Natal) said that when the proposed amendments were submitted by the Gauteng representative, she had made reference to the Western Cape, and she wondered whether she had read out the correct negotiating mandate.

The Chairperson said this had just been brought to her attention now, but she would afford the member some time to sort out her documents.

Western Cape Legislature
Ms T Mpambo-Sibhukwana (DA, Western Cape) told the Committee that the party had deliberated on the Bill, and the standing committee on community development reported that it conferred on the Western Cape permanent delegation to the NCOP the attached amendments and concern:

On page five, clause five (b), the section may be understood that the children who were over 18 years old  and not in grade 12 would not be able to apply for alternative care; on page two, in line 18, delete subsection (b) and substitute with subsection (c); and on page three, in line 22, to delete subsection (c) and substitute it with subsection (d).

Gauteng Legislature continued
The Gauteng provincial legislature supported the Bill in principle and in detail, with the following amendments:

In section one, the definition of adoption social worker was extended, and other definitions inserted to address the application for a child to remain in alternative care beyond the age of 18 years; include further education and training, grade 12 and higher education. These definitions were accepted in law and other Acts of Parliament. Clause two inserts subsection two (a), gives effect to the judgment...

The Chairperson interjected and advised that there were no proposed amendments from what was being read now, and pointed to page five, number eight, and said that was where the negotiation position of the Gauteng province actually was. That was where the member needed to address to the Committee.

The Member said that the negotiation position of the Gauteng legislature was that the proposed Bill conformed with the principle and the law, and the Portfolio Committee on Social Development supported the Bill.

Eastern Cape Legislature
The Eastern Cape provincial legislature representative stated that the province supported the Bill, and it did not wish to add or delete any provisions of the Bill.

KZN Legislature
Ms Zwane said the Portfolio Committee on Social Development had met on 25 November 2016 to consider the Bill and had mandated the Kwazulu-Natal delegation to the NCOP to support the Bill.

Limpopo Legislature
Ms T Mampuru (ANC, Limpopo) said the Limpopo legislature had deliberated on the Bill and the proposed amendments, and it supported the Bill, taking into consideration the inputs received from the public hearing.

Mpumalanga Legislature
Ms Zwane said that the Portfolio Committee on health and social development supported the Bill, and confers on the permanent delegates representing the province of Mpumalanga the mandate to support it without any amendments.

Northern Cape Legislature
Mr D Stock (ANC, NC) said that the Portfolio Committee had considered and recommended supporting the Bill, taking note of the comments and considerations of the Committee and the public.

North West Legislature
Mr C Hattingh (DA, NW) said the province voted in favour of the Bill, taking into consideration the amendments to the Bill.

Free State Legislature
Mr Hattingh, on behalf of Free State, also voted in the favour of the Bill.

The Chairperson then asked the Department to respond to the proposed amendments submitted by the provinces.

Department’s response
Ms Conny Nxumalo, Deputy Director General (DDG): Welfare Services, DSD, said the Department appreciated the process that had taken place in the provinces in strengthening the Bill.

With the Western Cape proposal, the initial thought had been that because the governmental social workers had not been part of the initial principal Act definition, the government could not accredit itself, so it had not included them in the Children’s Act, but in the Social Service Professions Act, so that the council could be the one that accredited social workers who would be working in the adoption field. The Department acknowledged that adoption was a specialised skill, but there was no specialisation in the country as yet, because there was no university that provided this type of training. This would mean that the Department would have to accredit its own social workers, and the Department thought this would be a biased process.

She said there may be a misunderstanding that children who were not 18 years old, and not in grade 12, would not be able to apply for alternative care. The Department found it was not clear what the Western Cape was proposing, as there was really no need to apply if the child was 18 years old. The provision was for those who had reached 18 to say that they could stay in alternative care until 21, because some of the children may still be in high school, TVET colleges or university. The clause was trying to provide for those children, not the ones under the age of 18, because by default they still qualified for alternative care.

Mr Osborne Masilela, Chief Director: DSD, said the issues around the accreditation were that the obligation to provide the service was placed upon the State, so there was no need to accredit social workers who were already employees of the state. Registration was the responsibility of the Council, and it already had regulations in place to regulate that area. 

In response to the Free State’s proposed amendments, he said that there was no clear motivation why a different phrase was preferred over ‘well being’, and therefore the Department was not in a position to engage with the proposed amendment, because it may alter the intention. Secondly, the time frame was prescribed by the Constitutional Court, and there was not much leeway to change the time frame. The Department was of the belief that the original provision was clearer.

Lastly, on page four, in clause four, paragraph 45, he said it was not clearly motivated as to why there was a need to insert ‘investigate’, because the nature of the clause did not require any form of investigation to be undertaken, as that was where it sought to empower heads of departments (HODs) to have the discretion to transfer children from alternative care to another, to provide them with that flexibility.

He told the Committee that there was another set of amendments which awaited the policy documents to be finalised, and if there were substantive issues that the Committee felt that should be made, then they would be welcomed as well, as there were still more amendments that the Department was yet to consider.

Ms T Mampo-Sibhukwane (DA) said she would appreciate having the Department’s responses furnished in writing, so that she could take them back to the Chairperson of the Standing Committee on Community Development. She said it did not seem like her proposals and the Department’s answers were aligned.

The Chairperson handed over to the State Law Advisor to comment. 

Ms ‎Suraya Williams, Principal State Law Adviser: Department of Justice and Constitutional Development, advised that the ‘well being’ versus ‘interest’ input from Free State had been considered, and it was in line and consistent with the Act, so ‘well being’ had been kept.  It was best suited to the intention of the Act.

The Chairperson said that it did not seem like the Department was well prepared, judging by the fact that the responses were yet to be drafted in writing. She expressed her discontent with the performance.

Ms Mampo-Sibhukwane suggested that she was willing to stay after the meeting and bring the Department’s attention to what the Western Cape province’s angle was in details in terms of its proposal.

The Chairperson said she could not agree with the suggestion, because everything needed to be officially recorded and be part of the meeting.

Ms Zwane agreed with the Chairperson, and asked when the Department had received the proposals.

Mr Masilela said that it seems like there had been a misunderstanding, because the Department had been instructed to prepare a response document from the public hearings that had been held in various provinces, and that was what the Department had come to the Committee prepared to do. The Department was now trying to understand the motivation of the proposals, so that it could provide detailed responses that were in line with the proposals.

The Chairperson asked the Members if there were any more comments or concerns that they would like to submit to the Department.

The Gauteng province then submitted the following concerns, stating that if the required documents had not been provided by the social worker in time, the matter should still be heard by the presiding officer: that social workers should have access to the Department of Home Affairs in order to assist the children who were not documented; the Department could consider moving the age of the child from 21 to 24, and have multiple disciplinary programmes for the children; and lastly, to speed up foster care cases so that children could not become victims of those parents who just wanted to receive the foster care money, and neglected the well being of the children.

Ms Mampo-Sibhukwane said that she had attended all the public hearings that had been held across the Western Cape, and the Department had provincial representatives. She was willing to furnish the names of those representatives so that the Department could make follow ups in terms of all the proposed inputs and amendments that had been submitted in the province.

Ms Mampuru asked at whose expense and time the Committee would have to deal with all these matters. She said it was disappointing that the Department’s state of readiness was not up to expectation.

Ms Williams said that she had looked at the proposed amendments (page two in line 18 -- delete subsection (b) and substitute with subsection (c)), and with regard to the Western Cape, it was not quite clear what was required or expected, and maybe that was where the cause of confusion stemmed from.

The Chairperson said that looking at the Bill itself, it made sense why the Department was struggling to respond to it. She said she was not justifying the Department’s lack of preparedness, because it could have submitted in time that the proposed amendment from the Western Cape was not clear so that clarity could have been provided before the Department came to the Committee. She concluded the discussion, and urged the Department to submit the responses the following day.

Committee Business
The Chairperson said that the Committee had a new member, Ms DB Ngwenya (EFF, Gauteng) replacing Ms L Mathys.

The Committee welcomed the Member warmly.

The meeting was then adjourned.