Customary Initiation Bill [B7-2018]: proposed amendments

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Cooperative Governance and Traditional Affairs

07 November 2018
Chairperson: Mr N Masondo (ANC)
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Meeting Summary

The Portfolio Committee met to consider proposed amendments to the Customary Initiation Bill [B 7 — 2018]. The amendments had arisen mainly as a result of earlier public comments, Members’ requests and technical or consequential amendments.

The Department of Cooperative Governance and Traditional Affairs explained that the bill was intended to protect the initiates and to ensure that the whole process of circumcision took place in a controlled environment. The Bill was aimed at the role players who managed the initiation process, from principals to government departments, with the intention of ensuring a safe environment for the initiates. The Bill aimed to accommodate all cultural practices but had to be in accordance with existing law, such as the Children’s Act (2005).

The CEO of the National House of Traditional Affairs attended the meeting to explain to Members, where necessary, what the specific cultural practices were, how cultural practices differed from one area of the country to another and how the Bill attempted to accommodate all practices.

A main discussion point was the fact that initiates under the age of 16 could not be circumcised for cultural purposes as that was forbidden in terms of the Children’s Act. Members were not happy with that state of affairs as children in Mpumalanga and North West underwent initiation at the age of twelve to thirteen. There was a suggestion that if a medical doctor performed the circumcision, it would qualify as a medical circumcision under the Children’s Act. The Committee rejected that approach and decided to engage with the Portfolio Committee on Social Development in the hopes of persuading those Members to agree to a change to the age for cultural circumcision in the Children’s Act.

One of the amendments was to include the prohibition of illegal drugs in initiation schools as previously agreed by the Committee. The Bill prohibited initiates from possessing, supply or manufacturing liquor or drugs, or dealing in liquor or drugs. The use of drugs was prohibited in terms of the Drugs and Drug Trafficking Act.

Members expressed concern about the fact that the Bill made parents, ultimately, responsible for ensuring that their children or young adults attended a registered initiation school. Members questioned how parents would know if a school was registered. The registration process was examined, and concerns raised as to whether the processes would be consistently applied across the provinces. The unregistered schools had to be rooted out and closed down. Once the Bill came into play, there would be a lot of public education so that everyone was aware of the provisions involved in registering an initiation school.

Meeting report

Opening Remarks
The Chairperson welcomed everyone and suggested that the Committee commence immediately with the amendments to the Customary Initiation Bill [B 7 — 2018]. He requested Dr Rinaldi Bester, Chief Director: Policy and Legislation, Department of Cooperative Governance and Traditional Affairs (COGTA) to present the changes.

Amendments to the Customary Initiation Bill
Dr Rinaldi Bester briefed the Committee on the proposed Amendments to the Committee.

Clause 1 - Definitions
 On page 5, after line 8, to insert:
Drugs and Drug Trafficking Act” means the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992);”
The reason for the inclusion was that there would be reference to the Act later in the Bill. The Committee had agreed at an earlier meeting that no illegal drugs could be used at an initiation school.

On page 5, from line 42, to omit the definition of “medical practitioner” and to substitute:
“’medical practitioner’ means a general practitioner or family physician in medicine who, in accordance with the provisions of the Regulations Relating to the Registration of Persons as General Practitioners and Family Physicians in Medicine, as published under Government Notice No. R1200 of 28 November 2000, is registered with the Medical and Dental Professional Board established by Government Notice No. R.75 of 16 January 1998;”.
The intention was to make it clear that the Bill referred to a medical doctor by making reference to the Government Notice according to which the doctors would be registered.

Clause 2
Section 2(3) on page 6, in line 57, to omit “, medical practitioner”.
The reason for omitting medical practitioners was that the Committee did not want the age restriction of a minimum of 40 years to apply to medical doctors.

Section 2(4) on page 6, in line 60, after “herself” to insert “: Provided that a principal must have prior and proven experience as a care-giver for a minimum of five initiation seasons”.
That amendment was in line with the precautions to be taken to ensure experienced supervision.

Clause 8
Paragraph 8(2)(a) on page 8, in line 38, to omit “in Pretoria” and to substitute “at a place,”.
It was felt that it was too restrictive to expect all meetings to be held in Pretoria and that a place could be decided upon in the normal manner of deciding a sate, time and place.

Clause 9
Subparagraph 9(2)(b)(i) on page 9, in line 44, to omit “February and August” and to substitute “March and September”.
A Member of the Committee had proposed the Amendment.

Clause 15
Paragraph 15(2)(k) on page 13, in line 26, to omit “death of an initiate” and to substitute “hospitalisation and any loss of life of an initiate”.
The initial draft had included the phrase “unfortunate death” but the Committee had requested that ‘unfortunate’ be removed.

Paragraph 15(7)(a) on page 14, in line 13, after “possible” to insert “and taking into account the customs of the particular community or communities”.
The intention was to deal with those situations where a local initiation school had been closed down. The Bill had stated that the young men had to be accommodated elsewhere but the amendment ensured that they would be placed in a school where there were similar customs. In the Committee discussions, Members had been particularly anxious that customs be respected.

Clause 17
Section 17(1) on page 15, in line 31, to omit “department” and to substitute “departments”.
This was a technical change. Many departments were involved in the provincial initiation organisation committees, but an error had occurred, and the singular ‘department’ was used. The subclause was being amended to correctly refer to the several departments involved.

Section 17(1) on page 15, in line 32, to omit “MEC” and to substitute “MECs”.
In line with the above change, the change from MEC to MECs was a technical change owing to the fact that many departments and therefore MECs were involved in the process.
Clause 28

Paragraph 28(3)(a) on page 21, in line 51, to omit “person” and to substitute “child”.
A public submission had pointed out that the Children’s Act considers someone between the age of 16 and 18 to be a child. It was necessary to use the correct term of ‘child’ in the Bill.

Paragraph 28(3)(a) on page 21, in line 52, to omit “person” and to substitute “child”.
The same reasoning as above applied.

General discussion
Mr D Matsepe (DA) raised a concern about the reference to specific regulations, i.e. regulations 5 and 6 of the General Regulations Regarding Children. His concern was that the regulations should not be specifically listed because the regulations could change.

Ms Harriet Mekwa, State Law Advisor, Department of Justice and Constitutional Development, stated that it would be problematic to remove the specific regulations as they referred directly to the point under discussion in the clause.

Dr Bester understood Mr Matsepe’s concern about making reference in a Bill to specific regulations in another Act because changes could be made to that Act or regulation. However, the reference was only to two clauses of the General Regulations Regarding Children, both of which referred very specifically to circumcision. The focus on the regulations would be lost if it referred vaguely to the General Regulations Regarding Children. Those who implemented the Act needed to be able to refer to the specific clauses.

Ms Mekwa explained that by referring to the specific clauses, the Bill avoided any confusion about which clauses were applicable to the Bill.

Dr Bester explained that in a court judgement, it had been explained that if a specific regulatory clause was identified in the law, that clause had to be implemented according to its meaning at the time that it was written.

The Member then asked about Clause 17 which dealt with administrative and financial support to the Provincial Initiation Coordinating Committees (PICCs) The section was mute in terms of the Public Finance Management Act. The wording in that clause was insufficient as no mention was made as to where those funds would come from.

Dr Bester responded that it would be government funds so the National Department would be responsible for the National Coordinating Committee and the provinces would be responsible for the provincial coordinating committees and would have to budget accordingly. Any funding coming from government automatically fell under the PFMA so there was no need to state that in a Bill or an Act.

Paragraph 28(6)(a) on page 22, from line 19, to omit paragraph (a) and to substitute:
(a) In terms of section 12(8) of the Children’s Act the circumcision of male children under the age of 16 is prohibited except if such circumcision is performed for religious or medical purposes and therefore the consent contemplated in this section may not, in the case of male children under the age of 16, include consent to any circumcision other than circumcision that is allowed in terms of the said section 12(8).”.

Ms B Maluleke (ANC) thought that the Committee had completed the task of making amendments when it had gone through the Bill clause by clause.

Mr Matsepe was concerned that the Committee might have missed something.

The Chairperson indicated that Mr Matsepe had to represent the people and so the Committee was listening attentively to his input.

Mr Matsepe referred to Chapter 3 which addressed the role players in the process. He could not see where the role players, i.e. the initiates, were protected.

Dr Bester explained that the entire Bill was intended to protect the initiates and to ensure that the whole process of circumcision took place in a controlled environment. Dr Bester disagreed that the initiates were the role players. He believed that the role players in the Bill were those who managed the process, such as the government, SAPS, NPA.

Mr Matsepe was concerned about the overlap of clause 23(1) and clause 41.

Dr Bester said that that was an easy question to answer. Clause 23 dealt with traditional health practitioners who were supposed to be registered according to the relevant provisions of the Traditional Health Practitioners Act but the provisions of the 2007 Act was not yet operational. Clause 41 contained interim arrangements for traditional health practitioners until the Traditional Health Practitioners Act was fully implemented. There was no overlap. On page 28, clause 41, subclauses (1) and (3), read as follows:
A traditional surgeon must apply to the relevant PICC for registration.
(2) The provisions of subsections (1) and (2) only apply until the provisions of the Traditional Health Practitioners Act which regulate the registration of traditional surgeons come into operation.

Dr Bester assured the Committee that the provision in clause 23 would fall away as soon as the Act was fully implemented. He assured the Committee that his Department met with the Traditional Health Practitioners’ Council and also the Department of Health and neither could explain why the Act had not been implemented. He notes that the Council was actually called the Interim Traditional Health Practitioners Council.

Mr Matsepe asked if he could return to clause 21.

The Chairperson assured him that he could take his time.

Mr Matsepe stated that the clause had no logical order or clear distinctions. Duties, qualifications, powers, and even criteria relied on cross-references with other chapters.

Ms Maluleke asked him to clarify what the concerns were specifically.

Mr Matsepe responded that the clause was very vague in terms of the functions and duties of the principal and caregivers upon whom the initiates relied upon to take care of them. He suggested that the Department should attend to the redrafting of that section to clarify the issue as a matter of the utmost importance.

Ms Maluleke asked Mr Matsepe why he referred to the provisions of the Bill as dysfunctional. The principal had certain functions that he had to perform. However, there were certain instances where the caregiver and the principal would have to work together. Both were responsible for giving feedback. The clause had been adjusted to make it clear what the principal had to do and what the caregiver had to do and what they had to do together. She thought that the clause was very clear and so she could not understand his concerns.

Dr Bester pointed out that there were a number of cross-references against the addendum.

Ms Maluleke asked Mr Matsepe to be very specific about what was concerning him.

Mr Matsepe said that Section 21 was very wide and open to corruption and nepotism.

Mr Abram Sithole, CEO, National House of Traditional Leaders (NHTL), said that when he considered the actual practice of initiation, the question of nepotism could not arise because the family had to get involved. One could not have strangers involved. He ruled out all concerns about nepotism.

Mr Matsepe referred the Committee to Clause 22 (1)(g): (Parents or legal or customary guardian had to) “satisfy themselves that—
the initiation school to be attended by the prospective initiate is registered with the relevant PICC in accordance with the provisions of this Act;”
The paragraph was too vague. How were parents supposed to satisfy themselves that the school was registered? The schools had to have documentation to show the parents.

Ms Mekwa explained that the Bill already required that every initiation school had to be registered. All role players had a part to play in ensuring that all initiation schools were registered. Ultimately, the responsibility for ensuring that the child or young person would be well taken care of, the parents or guardians had to take responsibility for checking that the school was registered. There were many ways that that could be done. One way was to ask the principal to show them the registration certificate.

Mr Matsepe asked how parents could find out whether the school was good or not.

Mr Sithole asked if he could explain the process. Limpopo was a good example. One could not just open an initiation school. To open an initiation school, one had to apply to a structure of the provincial House of Traditional Leaders that screened the application and all the applicants. If an application was approved, the parents knew that they could take their children there as the applicant had met all the requirements, including the medical requirements. He went on to use another example, that of Mpumalanga. In Mpumalanga, one had to apply to the traditional leader who made sure that the applicant was screened and qualified. That list of schools was then sent to the provincial House of Traditional Leaders which would monitor the schools.

Mr Sithole stated that problems with unregistered schools existed in Gauteng and parts of the Eastern Cape. That was where the Bill would be particularly helpful in ensuring that those schools were registered. In Gauteng, initiates were taught the wrong thing. In the Eastern Cape, the problem was that frequently an initiate from the previous session opened his own initiation school the following season, but in a remote place so that the provincial House of Traditional Leaders did not even now about it.

Once the Bill came into play, there would be a lot of public education so that everyone was aware of the provisions involved in registering an initiation school. To the best of his knowledge, interim measures were put in place to ensure that schools were registered, and punitive measures existed for those who did not close the schools. Unregistered schools had been closed down, even before the Bill came into operation.

Mr Matsepe agreed that Traditional Leaders should give approval for an initiation school, but the Act demanded that the person be 40 and above, and have experience. That requirement was going to be problematic, especially in Limpopo as the traditional leaders blocked people from opening a school. The way things stood, traditional leaders were being set up against the Bill. The Bill said one had to be 40 or older and experienced. What if the traditional leaders refused to approve someone who qualified? He was particularly concerned about Limpopo where leaders were particularly fussy about how they approved and who they did not. Where did a person go if he was rejected? Many people had been stopped recently, and, with the Bill, people would go to court if they were stopped by traditional leaders. He believed that the Committee should see if there was a way to wriggle out of that one.

Mr Sithole explained that it was not for the traditional leader to approve or not approve. There was a system to approve a school. The problem in Limpopo occurred when the applicant wanted to open a school in an area where there was already a school. Some people thought that they could give permission for the opening of a school without it being sanctioned by the provincial House of Traditional Leaders. It happened particularly in the Sekhukhune area. Those schools would be closed. A traditional leader could only recommend a school to the provincial structure. A number of people had applied but had been turned down, irrespective of what the traditional leader said.

Ms Mekwa referred to in the Bill which dealt with provincial structures. Chapter 2 dealt with appropriate structures in detail. She said that the Bill did speak to the process whereby the system of accepting and registering an initiation school worked. It was set out in detail in the Bill. The traditional leaders had worked in hand-in-hand to establish those details for the Bill.

Dr Bester added that Clause 26 dealt very specifically with registration processes.
“Paragraph 26 (3)(a) A PICC must, prior to the commencement of an initiation season and by notice in the relevant Provincial Gazette and any local newspaper circulating in any area where initiation is practiced, publish a list, in the format as may be determined by the PICC, containing details of all registered initiation schools.”

Dr Bester explained that it was the responsibility of the provincial structure to educate people about the initiation schools and even publish notices where schools were closed down.

Mr Matsepe stated that he was very happy if things were clearly specified. He had one last issue to raise and that was clause 28. He tried to persuade the Committee to hear him out.

The Chairperson stated that the briefing that Dr Bester had been engaged in had stopped at clause 28. Dr Bester could present clause 28 and then Mr Matsepe could indicate if he still had concerns.

Continuation of Amendments to the Customary Initiation Bill
Dr Bester continued with the briefing on the amendments.

Clause 28
On page 22 line 19, paragraph 28 (6)(a) had been re-structured on the request of the Department of Social Development via its written input to the Committee.

In terms of section 12(8) of the Children’s Act the circumcision of male children under the age of 16 is prohibited except if such circumcision is performed for religious or medical purposes and therefore the consent contemplated in this section may not [in the case of male children under the age of 16] include consent to [any] circumcision [other than the circumcision as contemplated in section 12(8)].

Dr Bester explained that the Department had wanted to ensure that the Bill adhered exactly to the Children’s Act, although he thought that the original paragraph had been fine. There had been no harm in making the change and the Department of Social Development had confirmed in writing that it was satisfied with the change. He explained to the Committee that the Department of Social Development was responsible for the administration of the Children’s Act.

Section 28(10) on page 22, from line 61, the proposal was to omit sub clause (10).
The amendment was suggested based on the recommendation of one of the commentators to the Committee who had indicated that it was a duplication of a paragraph under clause 33.

Dr Bester added that there would be a consequential change to section 28(11) on page 23, in line 3, to omit “(11)” and to substitute “(10)”.
Ms Maluleke asked Dr Bester to repeat clause 28(6)(a) and explain how it had been re-structured.

Dr Bester slowed his speech and indicated the changes, explaining how the Bill was linked to the Children’s Act and how one had to meet the requirements of both Acts. He assured her that the meaning had not changed.

Ms Maluleke asked whether the re-structured clause would allow parents in North West and Mpumalanga to take their children for initiation at the age of 12.

Dr Bester explained that the Department of Co-operative Governance and Traditional Affairs was not against lowering the age of initiation, but the Department was bound by the Children’s Act and until that Act was changed; no cultural initiation could be allowed for children below the age of 16. The Committee had engaged in a lengthy discussion about the matter and Members had received input from two lawyers.

Mr Sithole stated that the Department of Social Development had indicated that it was considering amending the Children’s Act and there was a possibility of lowering the age.

Ms Maluleke was concerned that there would be problems with certain provinces where it had been made very clear during the public hearings that the local communities would not accept an age restriction. She understood the Children’s Act, but she thought that cultural circumcision should be exempt from the Children’s Act because the Act would then allow for Western culture while undermining African culture.

The Chairperson agreed that the point was valid, but the law was the law. Legislators could not disobey the law.

Ms Mekwa raised the issue of initiation versus circumcision. It could be done medically and then still be within the law. No one could prevent a younger child from going to initiation. It was the circumcision that was the issue.

Mr Sithole explained that doctors were involved in Limpopo.

The Chairperson noted that the communities would be accommodated if it was explained to them that the age restriction applied only to circumcision and it could be done medically, which was what many of those communities were currently doing.

Ms Maluleke stated that if those parents were taken to court, they would lose the case because, although the doctor was doing the circumcision, it was for initiation purposes and not for medical reasons. The Western culture was being imported into the African culture. The Committee should plead with the Portfolio Committee for Social Development to change the Children’s Act. Circumcision should be available for cultural as well as religious and medical reasons.

Ms Mekwa suggested contacting Legal Services to discuss the changes to the Children’s Act.

One of the Members said that it was a real problem because Members were trying to separate initiation and circumcision and that could not be done to the African, Black culture.

Dr Bester reminded the Committee Members that by passing the Bill, they were not making cultural circumcision below the age of 16 illegal. It was already illegal in terms of the Children’s Act (2005). Members did not have to worry that communities would point fingers at them and blame them for making it illegal. That was why the cross-references to the Children’s Act had been included.

The Chairperson accepted that the Bill would have to adhere to the Children’s Act and that that requirement would have to be explained to the people. He added that the Committee should arrange to meet with the Portfolio Committee on Social Development very soon. The challenge was that legislation took a long time.

Ms Mekwa said that already work was being done on Amendments to the Children’s Act.

The Chairperson agreed. He noted that it was a difficult amendment. He felt it necessary to accommodate amaKhosi.

The sub-heading on page 23, in line 23, to omit “and liquor” and to substitute “, liquor and drugs”.
The Committee had determined the previous week that the Bill would not permit the use of liquor or illegal drugs during initiation ceremonies.
Clause 30
Section 30(3) on page 23, from line 38, to omit paragraph (a) and to substitute:
(a) Subject to paragraph (b), no initiate or any person involved in initiation may, at an initiation school, use, possess, deal in, supply or manufacture any liquor as defined in section 1 of the Liquor Act.”.

On page 23, in line 44, to omit “liquor is” and to substitute “a moderate quantity of liquor is to be”.

Section 30(5) on page 23, after line 47, to add:
“No initiate or any person involved in initiation may, at an initiation school, use, possess, deal in, supply or manufacture any drug as contemplated in the Drugs and Drug Trafficking Act.”.

Clause 33
On page 24, in line 33, to omit subclause 28(10) and to substitute “28 or obtains such consent by means of duress”.
Dr Bester explained that it related to the earlier change to clause 28.

Paragraph 33(6)(e) on page 25, in line 4, to omit paragraph (e) and to substitute (Any offences relating to)
(e) the use, possession, supply or manufacturing of liquor or drugs or dealing in liquor or drugs by an initiate or any other person involved in initiation; or”.
That dealt with the introduction to the topic of drugs and alcohol.

Paragraph 33(6)(f) on page 25, in line 7, after “Health Professions Act” to insert “, the Drugs and Drug Trafficking Act”.
Dr Bester explained that, as with the Children’s Act, the Bill would adhere to current law in terms of alcohol and drugs.

Memorandum on the Objects
Dr Bester referred to the three paragraphs that would be changed in the Memorandum to speak to the changes in the Bill.

On page 31, to amend paragraph 2.2 as follows:
2.2 Clause 2 of the Bill determines that the Bill applies to the customary initiation practices in respect of both male and female initiates, all initiation schools and all role-players involved in initiation. The clause also briefly states the objectives of the Bill. Of particular importance is that the clause prohibits any person found unsuitable to work with children in terms of section 120 of the Children’s Act or any person whose name has been entered in Part B of the National Child Protection Register or in the National Register for Sex Offenders, to participate in any aspect of initiation. The clause furthermore requires of any principal of an initiation school, any care-giver and traditional surgeon [or medical practitioner] who is involved in initiation to be at least 40 years old, and to have undergone initiation himself or herself.           

On page 35, to amend paragraph (e) as follows:
(e) In terms of clause 30 of the Bill, the principals of initiation schools and care-givers must ensure that initiates have access to clean water, appropriate sanitation services and health care when needed. Food must be provided by the families of the initiates. [No alcohol may be provided to initiates under the age of 18. This is in line with section 10(1) of the Liquor Act.] Initiates or other persons involved in initiation may not use, possess, supply or manufacture drugs or liquor at an initiation school and may also not deal in drugs or liquor at such school.

On page 35, to amend the introductory part of paragraph 2.8.2 as follows:
2.8.2 The clause, however, also states that it does not replace any provisions relating to offences contained in the Criminal Procedure Act, the Children’s Act, the Liquor Act, the Drugs and Drug Trafficking Act or the Child Justice Act. In other words, any contravention of the provisions of those laws or of the Bill which falls within the scope of those laws will be dealt with in terms of the offence clauses of those laws.

General discussion
Mr Matsepe referred the Committee to page 19 line 4, section 22(4):
“(4) The parents or, where applicable, the legal or customary guardian of an initiate,
have the right—
(a) to attend to such initiate who falls sick during initiation; and
(b) to remove such initiate from an initiation school in any instance where—
(i) the initiate requires medical attention;”
Mr Matsepe suggested that the words “or injured” should be added.

Ms Mekwa explained that “requires medical attention” would cover injuries that were serious enough to require medical attention, which was the way it should be.

The Chairperson enquired whether everyone had addressed all their issues.

Mr Matsepe noted that the Committee had agreed that he could go back to clause 28, but he discovered that his concerns had been covered.

Closing remarks
The Chairperson stated that the work of the Committee had been completed and thanked the Members. He asked when the clean copy would be available for adoption.

Ms Mekwa and Dr Bester agreed to have the clean copy by the end of the week.

The Chairperson jokingly cautioned the legal person responsible for the wording in the Bill to get it right or that person would represent the Committee in court.

Ms Maluleke asked whether the Committee should meet with the Portfolio Committee on Social Development before the Committee approved the Bill.

The Chairperson explained that whatever was decided about changing the Children’s Act would not impact on the Bill as an Amendment took time to process. The Committee would later amend its Bill or re-introduce the Bill, if necessary, as a result of amendments to the Children’s Act.

The meeting was adjourned.

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