Foster Care Progress Report on High Court Order

Social Development

23 October 2019
Chairperson: Mr M Gungubele (ANC)
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Meeting Summary

The Committee heard from seven provinces on their Foster Care Progress Report to meet the 28 November North Gauteng High Court deadline. Overall, from a baseline of 84 225 outstanding cases at the start of September, 32 269 cases have been completed over September and the first two weeks of October 2019. The outstanding balance 51 956. The provincial breakdown of the remaining cases to be dealt with by 30 November 2019 deadline are: Mpumalanga 510; Northern Cape 904; Limpopo 2 717; Free State 4 780; Eastern Cape 5 067; Gauteng 5 405; North West 7 013; Western Cape 8 250; KZN 18 492.

Various reasons given for the delay was the court case backlog in the magistrates courts; requirement for unabridged birth certificates that cost R75; Limpopo magistrates courts insisting on 30 day waiting period to advertise for fathers and KZN lacking required verification of evidence. KZN spoke about fraudulent grant claims due to grant beneficiaries not being available when contacted or unable to provide proof of address.

The Director General said DSD envisaged the provinces needed another six months. In early October the Chief Magistrates’ Forum provided an update on the responses by the Cluster Heads on the letter that the Forum sent with recommendations on the management of foster care cases in terms of section 48 of the Children’s Act which gives the judiciary the power to extend an order. There is a "positive response and buy-in" by all Cluster Heads. DSD would be applying to the North Gauteng High Court to extend the deadline of its court order by at least 24 months.
 
Members said that these cases were not just numbers but children's lives and the Department had let this slide for years and years.

The Chairperson said that the root cause of this challenge was the lack of legislation. Legislative processes must be intensified. Most of the time, it is due to people who do not want accountable systems, that end up causing these types of challenges. They do not like transparency. Accountable systems would never allow something like this to happen. Now they are spending most of their time dealing with the symptoms instead of helping vulnerable communities to improve their lives. This can only be done if a system is set that dictates and drive us in the way we should work so that we can serve our people. Let us submit to systems and credible performance measures. He requested the Department provide a legislative process plan.

The Minister remarked that although she is new in her ministerial position, she has requested from the Director General the operational plans of the department and its entities to know who to hold accountable should things not work as per plan.

Meeting report

The Chairperson welcomed the Social Development representatives from the Provinces to provide a foster care progress report on the implementation of the North Gauteng High Court Order since the 18 September meeting. Apologies were noted from the Western Cape who could not attend as they were required at a SCOPA meeting in the provincial legislature. He emphasized that the Province reports should indicate where they are in implementing the High Court order, what challenges they face and what their prospects are for meeting the 28 November 2019 deadline.

Northern Cape
Ms Hendrina Samson (HOD Social Development Northern Cape) said the provincial baseline for outstanding child welfare court cases is 1981. They managed to complete 500. There are no blockages from the South African Social Security Agency (SASSA). The only challenge is that they are dependent on the Department of Justice to hear the court cases. This might cause them not to be able to meet the deadline of 600 cases by 30 November. To deal with this challenge, they are intensifying their engagement with the courts so that the outstanding court cases are dealt with. They are therefore requesting an extension of the NGHC Order. The other challenge is that the social workers in the Northern Cape are so focused on these court cases that they are not able to deal with other social work matters such as gender-based violence and substance abuse.

Ms Martha Bartlett, MEC Northern Cape: DSD, said that they are motivating their social workers to work around the clock and give progress reports so that the foster care cases are dealt with in their province.

The Chairperson noted that all the provinces are faced with the challenge from the Department of Justice.

Eastern Cape
Ms Ntombi Baart, Head of Department, Eastern Cape: DSD, (HOD Social Development Eastern Cape) said that the target set for September was 6035. They managed to clear 4131 with the deviation of 1904. To deal with this deviation, the Province is consolidating their resource allocation with SASSA and SCOPEN for the hiring of vehicles and additional staff to be deployed to support the Foster Care backlog of 3188 for the month of October. With all these efforts, they believe that they will be able to meet their targets.

The Chairperson asked for clarity about the Eastern Cape target for the month of October and how long they have taken to clear the 4131 court cases.

Ms Baart replied that with the efforts they have made especially in working together with the judiciary, SASSA, and SOCPEN, this allowed them to meet the 4131 target within two weeks in September. With the remaining time, they believe that they will be able to meet the remaining backlog of 3188 court cases.

KwaZulu-Natal
Ms Fezile Luthuli, KZN Chief Director: Social Services at DSD, said that the Province has the highest outstanding number of accumulated court cases of 15000. In September, the managed 2319 cases and October 8673. All the social workers in the province are working on this programme. Despite that, they had a deviation of 13 797 cases in September. She gave two reasons for this deviation.
- Verification of the portfolio of evidence for the children affected by the North Gauteng High Court Order (NGHCO) due to there being quite a number of fraudulent grant cases in the province. As such, they are considering putting a suspension on the suspected fraudulent grants. In most of the cases, the suspected grant beneficiaries are not available when contacted or cannot prove their physical address.
- The publication of adverts with regards to abandoned children in need of care and protection in terms of Regulation 56 of the Children’s Act which has a 30 day notice period.
Efforts by KZN include focusing on foster carecases by all the social workers including using officials from other programmes to assist with this. Regardless of all these efforts, they do not see themselves meeting the targets by the end of November.

Mpumalanga
Mr Mxolisi Mahlalela (HOD Social Development: Mpumalanga) said that their baseline for November was 929 cases and they managed to deal with 419 cases between September and the first two weeks of October. The remaining balance of 510 will be processed during the remaining weeks. They are working closely with SASSA in the capturing of data to ensure that their cases are up to date.

The Chairperson remarked that so far it seems that only the Eastern Cape and Mpumalanga are certain of meeting their targets by November.

Limpopo
Ms Daphne Ramokgopa (HOD Social Development: Limpopo) said that at the start of September their number of cases was 5313. They managed to meet the monthly target of 1636. They have a challenge with cases waiting to be presented to the court. 985 cases have been advertised in an attempt to locate the fathers of the children. The judiciary has asked them to go back and sort out this issue first. The immediate challenge is that they made a proposal to the judiciary to waive the required 30 day waiting period. The judiciary does not agree with this request. The judiciary said that DSD cannot simply ask them to waive this 30-day waiting period and not follow proper legislative procedure when dealing with such matters. The judiciary has asked to go back and discuss this with their supervisors before making any decision. This is causing a backlog and they may not be able to meet the target by 30 November. The other challenge is that 185 foster parents have moved from their physical address either to Gauteng or Mpumalanga and the social services department is following those cases before transferring them to where they are currently located. They have requested that magistrates use section 48 of the Children’s Act to extend the court orders,  but the magistrates have refused. All Provinces are faced with similar challenges such as the waiving of unabridged birth certificates from Home Affairs. The Department of Home Affairs has asked the foster parents to pay R75 to process the required unabridged birth certificates.

The Chairperson asked about their prospects of meeting the target.

Ms Ramokgopa replied that the targets will not be met unless this 30-day waiting period is waived by the judiciary.

The Chairperson pointed out that its success as a province should not be based on what other departments can do for them. He wanted to know if they are making some effort to meet the target.

Ms Ramokgopa replied that they are doing everything possible to meet the targets.

Free State
Ms Mokone Nthongoa (HOD Social Development: Free State) said that their baseline target had been 6465 by November. The target for September was 1243 but they were only able to meet 893. The deviation is because they are waiting for the court cases that were submitted. The other reason is they submitted some cases to SASSA that need to be processed as well. They are also waiting for court dates and faced with case backlogs in court just as all the other provinces have already mentioned. Of all the affected regions in the province, Mangaung ranks the highest. The Department will allocate resources from other districts to deal with this challenge.

The Chairperson asked about their prospects for meeting the 28 November deadline.

Ms Nthongoa replied that due to their inter-dependency with other government bodies such as the judiciary and SASSA, they may not be able to meet their target by 28 November.

North West
Mr Modishe Malaka (Chief Director: Social Welfare Services: North West) said that their total target was 8652. The target that was set for October was 7802 but they only managed to process 800 cases. They are also working on their data to ensure that they exclude the number of children that have already reached the 18-year old age limit. With that, they have made target progress of 1639 excluding the court cases. Just as all other provinces have indicated, they have approximately 800 outstanding court cases due to a shortage of judiciary personnel because some are on leave. Their prospects are that they will be able to process 80% of their given targets by 28 November.

National Department of Social Development perspective
Mr Mxolisi Toni, Acting Director General: DSD, remarked that they will not be able to meet the targets by the end of November, as has been reported by the Provinces. The Department is therefore going to apply for  an extension of the deadline from the North Gauteng High Court.
When they presented the Draft Children’s Amendment Bill to Cabinet and it was approved, the Department got so excited and as a result certain details were overlooked. Therefore, they likely having to take the bill back to Cabinet.

On the Home Affairs challenge that provinces such as Limpopo are facing about unabridged certificates, the Department has spoken with the Home Affairs Director-General and Home Affairs has agreed that they will look into this matter.

The National Department has been engaging the Chief Magistrates’ Forum to consider whether Magistrates can  extend the foster care orders  using Section 48 of the Children’s Act. On the 4 October 2019 they met with the Chairperson of the Chief Magistrates’ Forum and there is a "positive response and buy-in" by all Cluster Heads and they have adopted the recommendation to extend foster care orders to ensure that no child will lose the grant after 28 November 2019.

Then there is the litigant in the North Gauteng High Court case. DSD will request to meet with the Centre for Child Law so that they have a co-ordinated approach to the Court when the Department applies for an extension.

The Department emphasized the importance of oversight so that the Minister and MECs are in control of all these processes. He asked that the Portfolio Committee should take note of the progress made in September and October and they will continue to report to the Committee on progress made up to 28 November.

Discussion
The Chairperson said that he is happy that the Department and the Provinces know what problems they are facing when dealing with foster care cases. This means that they will not spend money on solving the symptoms of the problems but rather their root causes. He emphasized that the major problem they are facing is legislation, yet they are spending most of their time dealing with the symptoms and not sorting out the legislation.

Looking at the Auditor General’s report on Assurance Provision, it states clearly that there is no strategic leadership in the Department. Right from 2017, the High Court  said that the problem is legislation and yet the Department spends most of its time and money aimlessly instead of dealing with the root cause of the problem. All National and Provincial Social Development Departments must take responsibility for this by doing what they are supposed to do. Social Development is not just about Foster Care. There are many matters that need to be dealt with in vulnerable communities. As such, they should not take their limited skills and focus only on Foster Care services, while other services suffer. This is not how things should happen.

There is a need for someone to take leadership responsibility and give direction where necessary particularly in dealing with the legislation problem we are facing. The bigger part of this problem requires the driver at the highest level of the institution and that includes the Minister, the DG, and the MECs to work together.

The Committee is considering writing a letter to the Minister, the Speaker and the Leader of Government Business because this challenge has serious implications for the country. Legislative processes to resolve the challenge must be intensified. Most of the time, it is due to people who do not want accountable systems, that end up causing these challenges  because they have illegitimate, unacceptable intentions. They do not like transparency. Accountable systems would never allow something like this to happen. The reason we are in this situation is due to people who do not like accountability.  If an accountable system had been in place, this would not have happened in the Department. Now they are spending most of their time dealing with the symptoms instead of helping vulnerable communities with alternatives to improve their lives. There is a need for a system so that they can be the heroes of the people. This can only be done if a system is set that dictates and drive us in the way we should work so that we can serve our people. It is only when we work like this that we can be heroes for our people. Let us submit to systems and credible performance measures. Therefore, we need a legislative process plan that is certain so the Department and Committee can have a functional relationship for our work together towards this goal or if not, let us find another solution.

Ms A Motaung (ANC) said that it is clear from the Social Development reports from the Provinces that they are focusing only on one matter leaving all other social service matters to suffer. Yet they knew what they were supposed to do.

Ms J Manganye (ANC) said that the Chairperson has already spoken a lot about to the Department. Yet reading the fortnightly progress report from the Department, one could tell that there was nothing concrete in that report. Nothing indicates that the Department is on the right track towards achieving its mandate. All the time, the Department is coming up with excuses saying that they are waiting for the court cases, without meeting its own obligations to communities. This just shows that there is a lack of urgency by DSD when it comes to dealing with its own obligations.

Ms D Ngwenya (EFF) said that they know that these courts case numbers are not just numbers but children. Therefore, DSD should deal with them as such. These children have been suffering for a long time since 2010 or 2011 and nothing has been done to sort out this problem. The way forward is to look at the Amendment Bills that can help in dealing with this problem. This can be done by writing a six-month progress report to the initiator of the complaint, the Centre for Child Law, to indicate progress made as well as the challenges being faced. If this was done way back in 2017, we would not be in the situation we are in now. The way this high court case has been handled indicates that those responsible are simply dealing with it as a court case and not as the lives of children who are suffering.

The way forward is to have a long-term sustainable solution. One of them is to deal with the problem of human capacity in the Department to deal with the outstanding 300000 court cases for children and those that will be added to this number. The number of social workers is not enough to deal with this huge number much as we have focused all of them on this problem at the expense of other social issues. Therefore, the Department should give a long term plan for dealing with the problem of human capacity. The Children’s Amendment Bill will not be enough to give us a solution to this huge problem. The proposed Child Support Grant (CSG) top-up can also be a solution. Government did not make use of this proposal in the past. Had we made use of it, we would not have the problem that we now have. Ms Ngwenya appealed to all of them, the Department, MECs, Chief Directors, to come up with a solution to solve the problem and not be comfortable until this is dealt with

Ms L van der Merwe (IFP) said that they are faced with a depressing situation because when the Department fails, all fail. This perpetual mode of crisis is similar to the SASSA grants situation where all attention was focused on it at the expense of everything else. The current crisis will lead to children who will not be able to get their grant in December. She wanted to know how many social workers have been absorbed into the system. She asked about the unabridged birth certificate challenge at Home Affairs, considering that only 38 days remain before reaching the deadline. She suggested that where people cannot pay the R75, it should be waived. On the child grant suspected fraud challenge in KZN, she asked how they are dealing with the 800 frozen accounts that no one has come forward to claim money from. What if that account is for some gogo in the rural area who does not know where to complain? There needed to be more social workers absorbed into the system.

Ms N Bilankulu (ANC) said that Provinces such as the Eastern Cape should finish up what remains to be done. She asked how the Department will deal with the court deadline and ensure that no one forfeits their child grants in December. Let us be innovative in dealing with child welfare challenges. Let us manage fraudulent cases in the right way.

Ms N Mvana (ANC) asked what mechanism the officials use when not able to find the fathers of the children that require foster grants. Officials must make sure that they work hard to serve their communities rather than sleeping on the job. Some of the fraudulent cases do not only involve communities but officials are involved as well. The officials should come with detailed information on what they have done about the 800 fraudulent cases and not leave everything in the hands of the courts. She said that the court case numbers the Provinces have presented are misleading.

Ms A Abrahams (DA) said that she disagreed that the Department misled the Committee, only that they are in a state of denial. She asked DSD to cost how much it had spent over the past 10 years chasing the backlog and consider how many social workers they could have employed instead. The biggest problem in this country is state dependency and it is ever-growing in numbers due to unemployment and other socio-economic challenges that is outside Social Development's mandate.

Ms T Mpambo-Sibukwana (DA) asked what has been done about the fraud cases and what plan has been put in place to give direction on the way forward by DSD. Secondly, what plans are in place to ensure all cases are sorted out if the requested extension is granted to DSD. Does DSD have a permanent solution to the problems of vulnerability that these children are faced with?

Ms Bilankulu said that all that is required is to go back to the provinces and work. Mpumalanga, Eastern Cape should do as promised and so should all the other provinces. She suggested that the DG and the Minister intervene in the Limpopo matter about the 30-day waiting period. There is a need to review the law on the unabridged birth certificate because this is not only affecting Social Development services but all women in South Africa. Women cannot travel out of the country with their children because their children cannot apply for a passport without the father’s consent as required by law, yet many women were not lucky enough to get married or keep contact with the children’s father She asked the Minister and the DG what they are doing about the challenge of the shortages of social workers.

The Chairperson asked the DG to respond particularly about the CSG top-up.

Response
Mr Mxolisi Toni, Acting Director General: DSD, said that the Social Assistance Amendment Bill will empower the Minister of Social Development to augment the value of the Child Support Grant so that the relatives caring for children whose parents have died, can obtain a social grant without them having to go through the Foster Care process. This is because they will be raising children that are not their own. As such, they are given a grant slightly higher than a child support grant and slightly lower than a foster care grant. The CSG Top-Up grant will not lapse every two years and will not require a children’s court order.

The Chairperson said that if this can be done, it can offer a huge relief to children that are affected in this way. He had received a letter from the Children’s Institute that criticizes DSD on its failures to implement a sustainable comprehensive legal solution. He stressed that it is important to listen to one’s greatest critics because most of the times they tell the truth.

The Chairperson emphasized that when they apply for an extension from the High Court, they should be articulate in giving a detailed account of the implications communities are facing. Otherwise, the court will not approve their application for extension. He also challenged the Committee to play its role in assisting in the legislative processes so that legislation is looked into with urgency. He requested the Department come up with a legislative process plan within five days and submit it in writing to the Committee to ensure that the Social Assistance Amendment Bill is processed.

As the Minister of Social Development had joined the meeting halfway during question time, the Minister was asked to comment.

Minister of Social Development, Ms Lindiwe Zulu, noted that several questions had been asked and she asked the Department to respond before she gives her concluding remarks

The DG said that he agreed with the Chairperson's remarks that the Department need to respond by putting it in writing.

Minister Zulu said that as a Department, they remain committed to getting out of any perpetual crisis mode the Department is in. She, however, expressed her concern that when one is new in the Department, one spends most of one's time trying to understand the substance and content of what one is dealing with. While doing that, there is the operational side of things. She, therefore, had asked the DG to provide her with the operational plan of all the departments entities such as SASSA and NDA so that she can know exactly who to hold accountable should things not work as expected according to the operational plan. The reason for this is that all the operational plan deals directly with what the challenges are and gives the breakdown of how to deal with those challenges. She mentioned that during her visits to some district grant centres, she has realized that Social Development is way bigger than what people think of as simply dealing with grants. As such, there is a need for the Department to be creative in training social workers and dealing with social problems at the district level. In so doing, they will learn a lot from these first-hand field experiences such as realizing that the Departments of Human Settlements and of Transport and other stakeholders have a role to play towards the success of the Social Development service delivery plan.

The Chairperson said that this was the assurance he wanted to hear from her. As a Committee, they want to be part and parcel of helping to improve the situation in Social Development. He wants a productive relationship between the Department and the Committee. As such, he wants a Legislative Process Plan so that the Committee can position itself in working towards helping to solve the problem.

The Chairperson announced that next week’s meeting will deal with the Department's audit action plan and he had also added an item on the Legislative Process Plan as a key issues to be discussed thoroughly.

Minister Zulu agreed to this proposal.

The meeting adjourned.

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