Western Cape Commissioner for Children Bill: briefing

Premier & Constitutional Matters (WCPP)

29 August 2018
Chairperson: Mr D Mitchell (DA)
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Meeting Summary

Western Cape Commissioner for Children Bill

The Office of the Premier briefed the Western Cape Provincial Parliament’s Standing Committee on the Premier and Constitutional Matters on the Western Cape Commissioner for Children Bill [B4-2018]. The Department said they have tried to incorporate comments from the previous round of public hearings into the Bill. They have used the Constitution of the Western Cape as a guiding force in developing the Bill and they cannot go outside of their mandate as a Provincial Department. The Bill provides for the appointment of the Commissioner for a five-year term, which is renewable once. The appointment, suspension and removal of the Commissioner is made on the recommendation by the Provincial Parliament. Clause 5 of the Bill provides for the filling of a vacancy in the Office of the Commissioner.  The Premier may appoint an Acting Commissioner after consultation with the Provincial Parliament. They also instituted into the Bill a 30-day call for nominations.

The Office received a lot of comments on the functional independence of the Commissioner. The Commissioner must act independently and the people working with the Commissioner have an obligation not to interfere with the Commissioner coming into office. The Commissioner has an obligation to report to the Provincial Parliament and not to any Member of the Executive. The Office is trying to foster better intergovernmental relationships between different spheres of government and different organs of state.  As such the Commissioner may monitor the functions that fall within the mandate of the Commissioner and the Commissioner cannot monitor National Departments. The Commissioner may seek to resolve any issue about services provided by Provincial organs of state that affect children. The Department is trying not to duplicate investigations by not expecting the Commissioner to investigate the same matter under investigation by another Department. It is required for the Commissioner to report to Provincial Parliament at least once a year.

A Member of the Committee was concerned that the Judiciary is not included in the Bill. Another Member asked for clarification over the 30-window period for nominations of a new Commissioner. Clarification was also sought on the independence of the Commissioner and trying not to duplicate investigations.

The Committee resolved to have public hearings on the Bill on 2 October in Beaufort West, 3 October in George, 7 November in Vredendal and 8 November in Cape Town.

A number of draft reports and minutes were adopted.

Meeting report

Presentation by the Office of the Premier

Ms Ammaarah Martinus, Director: Policy, Research and Analysis, Western Cape Office of the Premier, took the Committee through the presentation on the Bill as they have incorporated comments from the previous round of commentary that was submitted at the end of November.


Guided by the Constitution of the WC, 1997

Ms Martinus said they have used as a guiding force in how they have developed the Bill the Constitution of the Western Cape, 1997, and the sections related specifically to the Children’s Commissioner. They cannot go outside of their boundaries and their mandate as a Province.

Looking at Section 78 if the Constitution, it calls for the establishment of principles governing the Commissioner for Children. The Commissioner must assist the Western Cape Government in                                              protecting and promoting the interests of children in the Western         Cape, in particular, going back to their provincial competency it is looking at health services, education, welfare services, recreation and amenities and sport.

Section 79 of the Constitution deals with the powers and duties of the Children’s Commissioner. Here the Commissioner is able to monitor, investigate, research, educate, lobby, advise and report on matters pertaining to children. The Commissioner may report annually to the Provincial Parliament to promote the rights and interest of the Children in the Western Cape, and he/she may report to the Provincial Parliament at any other time.

Section 80 deals with the appointment of removal of the Children’s Commissioner. The Commissioner is appointed and removed by the Premier but on the recommendation by Provincial Parliament.


Overview of Commissioner for Children Bill, 2018

The Bill in its entirety is made up of 5 chapters currently. Chapter 1 deals with definitions. Chapter 2 deals with the appointment and office of the Commissioner and it also looks at the removal of the Children’s Commissioner. Chapter 3 moves on the functions of the Commissioner. Chapter 4 deals with the administration of the office of the Commissioner. Chapter 5 looks at the general provisions.


Chapter 2: Appointment and Office of Commissioner

Clause 2 is providing for the appointment of the Commissioner for a five-year term which is renewable once. The appointment is made on recommendation by the Provincial Parliament. What they found in their previous sets of comments there was a lot of emphasis on getting children involved in this appointment process. Nothing prohibits children from participating in this process but this is at the discretion of the Provincial Parliament.

Clause 3 provides for the qualifications for the appointment of the Commissioner.

Clause 4 provides for the removal and suspension of the Commissioner upon recommendation by the Provincial Parliament.

Clause 5 provides for the filling of a vacancy in the office of the Commissioner. The Premier may appoint an Acting Commissioner after consultation with the Provincial Parliament. They also instituted into the Bill a 30-day call for nominations. This was to really give a tight timeframe for people to get appointed.


Chapter 3: Functions of Commissioner (1)

Ms Martinus said the principles governing the Commissioner’s actions are dealt with in Clause 6. They received a lot of comments on this and how they accommodated this was to look at how to give the Commissioner functional independence in terms of the context of the Provincial Constitution. The Commissioner must act independently. Provincial Parliament drives the nomination process and the Commissioner and people working with the Commissioner have an obligation not to interfere with the work of the Commissioner coming into office. The Commissioner has an obligation to report to Provincial Parliament and not to any member of the Executive.

In terms of Clause 7, which deals with monitoring, the Commissioner may monitor the functions of what the Commissioner is supposed to do. The functions that fall within the functions of the Commissioner will be adhered to and maintained. But the Children’s Commissioner cannot monitor national departments. They are trying to institute thinking about integrating cooperation between different spheres of government.

Clause 8 deals with the investigations aspect. This provides for investigations, enquiries and recommendations. The Commissioner may receive or resolve any issue about services provided by Provincial organs of state that affect children. They have tried not to duplicate investigations. For example, if another Department is currently investigating something they would not expect the Commissioner to investigate the same matter. If the Commissioner feels that there is a different angle on an investigation in question the Commissioner is free to do so.

Clause 9 deals with research. The Commissioner may research, conduct and initiate any forms of research the Commissioner feels falls with the Commissioner’s scope and also with regard to cooperation between different spheres of government and between different organs of state.

 

Chapter 3: Functions of Commissioner (2)

Ms Martinus said education is provided for in Clause 10. The Commissioner is able to educate and go to the public to create awareness around the functions and roles of the Commissioner, and also to create awareness around children’s issues in the Province.

In terms of lobbying, Clause 11, the Commissioner is free to lobby any organ of state in terms of legislation, policy and practices that may affect the rights, needs or interest of children.

Clause 9 deals with advising and making recommendations. Here it is about the Commissioner being able to provide recommendations to any organ of state the Commissioner feels may be necessary.

Requests for matters to be monitored, investigated or researched are dealt with in Clause 13. There were quite a few comments related to how children can be involved in that process. They have instituted a mechanism where children can come into the Commissioner’s office and provide commentary.

Clause 14 deals with child participation. This came through quite strongly in most of the Comments they received last year. It is about how children can participate in the work of the Commissioner.


Chapter 3: Functions of Commissioner (3)

Clause 15 looks at additional powers and functions. The Commissioner may accompany the SAPS when carrying out powers of search and seizure. This is important in giving the Commissioner some teeth as well. They were then able to give any person notice to appear before the Commissioner and they are able to administer an oath or affirmation to any person appearing as a witness.

Reporting is dealt with in clause 16. This looks at when the Commissioner reports to Parliament they are able to do so once per annum or any other time.

Clause 17 goes into the functioning of the Commissioner. No one may interfere with the Commissioner in fulfilling their functions.

Access to information and institution is dealt with in Clause 18. No organs of state may withhold any information of benefit to a particular investigation. They added that when the Commissioner goes into a school setting for example, there needs to be extra care that the Commissioner does not disrupt the school day.


Chapter 4: Administration of Office of Commissioner

Clause 19 deals with staffing elements. It provides that the administrative functions of the office of the Commissioner are performed by staff members appointed by the Director-General of the Province in terms of the Public Service Act.

Funding is dealt with in Clause 20. It provides that funding needs to be appropriated by the Provincial Parliament in order for the Commissioner to perform their functions.

Clause 21 deals with remuneration and conditions of appointment for the Commissioner.

Clause 22, which deals with donations, provides that the office of the Commissioner may receive donations subject to applicable financial prescripts.

 

Chapter 5: General Provisions

Clause 23 provides that the Commissioner is not liable in respect of any reasonable action performed in good faith under the provisions of the Act or the Provincial Constitution.

The delegation of powers and assignment of duties is dealt with in Clause 24.

Regulations are dealt with in Clause 25. It provides for the Premier to make any regulations in order to achieve the objectives of the Act.

Clause 26 deals with offences and penalties. This is aimed at giving the Commissioner more teeth by allowing the issuing of fines or penalties for non-compliance with the law, obstruction and refusal or failure to furnish information.

Discussion

Mr R Mackenzie (DA) referred to Clause 7 dealing with monitoring. It says that functions must fall within constitutional mandate. e.g. cannot directly monitor national departments. They went on an oversight visit to Vredendal where children were arrested. That is a national government function. How would you suggest that the Commissioner monitor the safekeeping of children as in that case?

Ms Martinus said one of the things they are trying to do is to foster better intergovernmental relationships. This would be one of the core aspects of what the Children’s Commissioner should and would be doing.

Ms L Botha (DA) referred to the appointment and Office of the Commissioner. In terms of vetting, how would the vetting process be in the amendment?

Ms Martinus said that the appointment of the Children’s Commissioner needs to go through the Provincial Parliamentary process.  This means that the process set up in the Provincial Parliament needs to be adhered to.

Ms P Makeleni (ANC) referred to slide 2 and asked why it does not say anything about the Judiciary. Could the Judiciary be included?

Ms A Vosloo, Principal State Law Advisor in the Department of the Premier, said it cannot be included because it is the Provincial competence not the National competence

Ms Makeleni referred to Clause 8. The explanation given speaks about avoiding duplication of investigations, what is the significance of that when you are trying to ensure the independence of the Commissioner?

Ms Martinus said it comes back to relationship building. If a Provincial Department is investigating nothing excludes the Commissioner from communicating with that Department to find out what they are doing. They do not want to be in a position where the Commissioner is doing what has been done already.

Ms Makeleni referred to Clause 19. What is the significance of the appointments done by the Director-General and not the Commissioner?

Ms Martinus said it is because of the way the Commission itself has been set up and in terms of making sure that there is an appropriation bill and money being set aside for the Office of the Commissioner. Also, because staff will be governed by the Public Service Act the DG would be responsible for signing off.

Ms Makeleni was still concerned over the judiciary. The Commission could still have a relationship with the courts. This is important to ensure that children are protected under the judiciary. If the Judiciary is involved in the Commission some issues can be resolved more quickly. Her concern was that the Department’s main concern is the financing

Ms Vosloo said the challenge they had when drafting this Bill, was that international best practice the Children’s Commissioner is normally placed at a National Level because the National Commissioner would have oversight over all the national departments. At Provincial level they do not have the same competencies as the National Constitution. When the Provincial Constitution was drafted they were mindful of that. She said the wording in Section 78 subsection 2, “The Commissioner must assist the Western Cape Government in protecting and promoting the interests of children in the Western Cape…”, the list of matters in a - e are Provincial concurrent competencies. That is why they were specific in that way. One must be mindful that the wording says the Commissioner must assist the Western Cape. This Bill was crafted in the way it was due to the constraints of the Provincial Constitution.

Ms D Gopie (ANC) asked for clarification around the 30-day window period to call for nominations of a Commissioner.  

Mr Mackenzie said that the 30-day window period limit is a constraint since it takes a long time to appoint someone through the Provincial Parliament’s process. 

Ms Martinus said this question was raised in the previous round. They tried to incorporate some of the comments received from the public. One of the things the public was very strong on is making sure that there is no prolonged period of vacancy and if there is a vacancy it must be filled as soon as possible.

Ms Vosloo said that the 30-day period is only for the Acting Commissioner. The Acting Commissioner is not going to be appointed through the full Parliamentary process. The person will be appointed as the interim Commissioner for the time it takes for the Provincial Parliament to appoint the new Commissioner.

Ms Makeleni asked if the Commission would be required to declare donations.

Ms Martinus said that they would need to declare donations.

Mr Mackenzie said the wording needs to change in Clause 16 to say that the Commissioner needs to report to Provincial Parliament at least annually.

Ms Makeleni asked if there is a timeframe that the Acting Commissioner is allowed to be in Office.

Ms Vosloo said it is not specified because the Provincial Parliament may appoint a new Commissioner however long it takes, whether it is 3 months or 4 months for example. This will be up to Provincial Parliament.

The Chairperson said that they further discuss and debate this when the Committee send their submissions. 

The Chairperson thanked the Department of the Premier for the Presentation.

The Chairperson asked to add the minutes of Tuesday the 21 August 2018 to the agenda.

Adoption of minutes
Committee minutes of 26 July and 21 August 2018 were adopted unamended.

Drafting of the Committee report for 2017/2018 Financial Year

Mr C Dugmore (ANC) said there was an issue in the Standing Committee on Education yesterday, that the Committee took a decision around not allowing members of the public to ask questions. He requested that the Committee also include the view of the Committee that when a normal meeting of a Standing Committee and Members of the Committee ask their questions, if there is an opportunity in terms of time, that as a guiding principle the Committee should accept that.

The Chairperson said they could deal with that at the end of the meeting because it does not deal with the Annual Committee report 2017/2018.

Ms Makeleni said that the budget allocation excludes the expenditure. Usually it is attached to the Committee report.

The Committee coordinator said they have a new system so they do not get the reports like they used to. When they do get it, they will send it to members of the Committee.

Ms Botha asked that it be reflected as part of the report.

The Chairperson suggested that they adopt the report with that inclusion.

 The report was adopted with that inclusion.

Resolutions on the Children’s Commissioner Bill

Ms Makeleni requested that the Committee investigates the possibility of including a clause that includes a timeframe for the Acting Children’s Commissioner.

Discussion on public hearings

Ms Botha asked if the previous rounds of public hearings were considered.

The Chairperson said according to his advice it is a new process. People who previously submitted comments will have to resubmit.

Mr Mackenzie said that the Committee should limit the number of public hearing to as few as possible because no one was in much disagreement. He was open to persuasion.

Mr Dugmore said this is matter of great public interest. Given that the Premier made this promise in 2009 already the Committee needs to do justice to this process and have an extensive programme of public participation. He did not support the view of Mr Mackenzie that they should limit the number of public hearings.

The Chairperson said in the interest of not bulldozing this meeting he would open that up to input from members of the Committees.

Ms Botha said the Committee needs to be mindful that in setting the dates for these public hearings there are public hearings in other standing Committees as well which Members of this Committee are a part of.  

The Chairperson said that the Committee needs also to bear in mind that in October they are going into the annual report period. 

Mr Mackenzie proposed three public hearings, George, Cape Town, and on the West Coast.

Ms Makeleni said in the spirit of transparency and doing what they are employed to do, and in terms of public participation, and given the importance of this bill, if the Committee does not go to all the areas in the Western Cape, there should be another process of public participation. She understood the time commitments of the Committee Members, but this is one policy that the Committee does not need to be inward when discussing it. The public would want to have a say in this Bill.

The Chairperson agreed with Ms Makeleni. He said an oral submission is as important as a written submission. The fact that they might only have three or four public hearings does not mean the written submission process would not be considered for the finalisation. Perhaps there should be a longer window period for written submissions.

Mr Dugmore said that should have at least two hearings in the Metro and at least one in each other district.

Ms Gopie said that they should inform those people who submitted submissions in the last round to resubmit.

Ms Botha asked the Committee coordinator to guide the Committee on the dates. In November the Committee will have budget appropriations.

Mr Mackenzie proposed four public hearings.

There was no objection to the proposal of four public hearings. 

Mr Mackenzie proposed one public hearing in the Metro, one in George, one in Beaufort West and one on the West Coast.

The Chairperson said the public hearing in the Metro will be in the Chamber. They can assist those organisations who want to be at the public hearing to get to the Chamber.

The Committee coordinator went through some available dates for the public hearings. The Committee deliberated on the dates and logistics for the public hearings.

The Committee coordinator confirmed that the public hearings will be on the 2 October Beaufort West, 3 October George, 7 November in Vredendal and 8 November in Cape Town.

The Chairperson said he needs agreement from the Committee on where they will advertise the public hearings.

Ms Botha proposed they use community newspapers and also notices in every municipal building wherever possible.

The Committee coordinator said that to place ads in all community newspapers will be expensive, around R80 000. They do send the notices to each municipal manager, mayor’s office and speakers office. They also ask hospitals and clinics to put the notices up.

The Chairperson said they will request quotations from local newspapers in the districts the public hearings will be held in.

Ms Makeleni said there is a difference between advertising in newspapers and sending notices. They are not charged for sending notices.

 

Adoption of Quarterly report

The quarterly report was adopted with amendments.

The Chairperson said he was advised that they need to take a resolution that the Committee will pay from its budget for transport to these public hearings. He believed they should do it but asked to stay inside the budget parameters. He proposed that all written submissions close a week after the last public hearing.

The meeting was adjourned.

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