Social Assistance Amendment Bill: adoption; Foster Care Court Order: progress report

Social Development

17 March 2020
Chairperson: Mr M Gungubele (ANC)
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Meeting Summary

The Committee had approved all clauses of the Social Assistance Amendment Bill at its 11 March meeting except for clause 7. A proposed amendment to clause 7 was submitted by the parliamentary legal adviser: ‘The Minister must, after consultation with Parliament, appoint an Independent Tribunal ......"

The Committee approved this proposed amendment. As the Committee was unable to view the final B version of the Bill with the Committee's proposed amendment for clause 7 incorporated, they adopted the Bill, inclusive of the adopted amendment to clause 7 with the provision that the staff circulate the amended B version of the Bill to Committee members after the meeting. This was so the Committee could present the Bill to the final National Assembly meeting on 18 March.

The Department of Social Development (DSD) gave a progress report on the process in place to deal with outstanding cases before the November 2020 extension. The presentation gave projections for how many cases each province needed to attend to in order to meet their deadline. This is a moving target as there are foster care orders lapsing every month. However the projected total is 100 532. The Eastern Cape and Kwa-Zulu Natal are the highest risk provinces followed by Gauteng and the Western Cape.

The discussion centred on the division of the workload over the year and Members found it troubling that a lot of the work was left to later in the year, as opposed to doubling or tripling the workload earlier in the year, to ensure targets were reached by November 2020. Members asked if the projections broke down both old cases and the new cases coming in. DSD was asked where it is with the challenges of courts not sitting as frequently as DSD would like, the insufficient number of vehicles for staff to work in communities and not enough social workers to do the work. Even if Parliament meets the deadline for the Bills, is DSD in a position to implement the Bills immediately once passed?

The Department commented that although there were challenges with courts in some magisterial districts within three provinces, the relationship with the judiciary had improved. Some provinces have even undertaken to meet on weekends to partner with DSD in mutual assistance.

Meeting report

The Chairperson commented about the seriousness of coronavirus and that everyone should treat it as such. He expressed the hope that people are at home. The response by the country has been good. He praised the country for its unity in desiring to save the country, across all political, religious and cultural differences. There are fewer than a hundred people with the virus. This meeting should not take all day, as they should take the coronavirus into account in everything they do.

Clause 7 of Social Assistance Amendment Bill [B8-2018]
The Chairperson noted the Bill stated that "the Minister must appoint an Independent Tribunal" in this clause. In the previous meeting there was a discussion about whether this should be done by the Minister or not. He asked if Members would like to comment on clause 7 as the Committee had already approved the other clauses in the previous meeting.

Ms M Mvana (ANC) agreed with the Chairperson's summary. She said they should allow the Minister to perform this role and assume it would be done correctly. As long as the Portfolio Committee gets a report on the appointments, it will be fine.

Ms B Masango (DA) proposed that if Parliament is not appointing the Tribunal, the Committee should put a system in place, such as short-listing lists put before the Portfolio Committee, so that there is a middle path between the Minister appointing the Tribunal members and Parliament appointing them.

Ms L van Der Merwe (IFP) agreed with Ms Masango and noted that at the last meeting they instructed the drafters to find a middle way. The process they were advised about is the Minister advertises and shortlists and then consults with Parliament. She requested that the Committee be appraised of the shortlist. At that point, they will say yay or nay if the candidates are independent, suitable and the best people for the job. In that way, they will not take away the prerogative of the Minister, but will provide extra scrutiny of the process.

The Chairperson said that the legal advisor has a draft and asked him read it and explain its implications.

Adv Nathi Mjenxane, Parliamentary Legal Advisor, noted that in light of last week’s discussion, a draft was prepared for the Committee’s consideration of clause 7 amending section 18 ‘Appeal against decision of Agency’. In section 18(1) it currently reads: ‘The Minister must appoint an independent tribunal...’

The proposal to strengthen the Committee’s oversight role is:
‘The Minister must, after consultation with Parliament, appoint an Independent Tribunal…’

The Chairperson reminded the Committee that there is a difference between ‘in consultation’ and ‘after consultation’. In consultation means the Minister and Committee must decide together and agree. After consultation means the Minister does not have to agree but the Committee is given an opportunity to analyse and comment. If the Minister chooses otherwise, Parliament can say "it told you so". The phrase in this case is "after consultation". The implications hinge on the difference between the phrases just mentioned.

He asked Adv Mjenxane to read the amendment as agreed.

Adv Mjenxane said that if the amendment is adopted it will read as follows:
‘The Minister must, after consultation with Parliament, appoint an Independent Tribunal comprised of appropriately qualified persons, as may be prescribed, to serve as members of the Independent Tribunal, to consider appeals against decisions of the Agency contemplated in subsection (2), in the prescribed manner.’

The Chairperson said that the B version of the Bill would incorporate this amendment of clause 7. They will adopt the Bill today, but they first need a printout including this new amendment. He asked DSD in the meantime to make its presentation. He remarked that in South Africa, there is nothing as under-budgeted for as the Portfolio Committees or Parliament. In an advanced democracy, a Committee like this is supposed to have totally independent resources to find the information upon which they interrogate the Department.

Foster Care Court Order: progress report
Mr Mzolisi Toni, DSD Acting Director-General, said he hopes that by the time the High Court order expires, they will have everything under control. He indicated that Ms Nxumalo will present the progress

The Chairperson noted that the Committee gave DSD a process plan and that at every meeting, the Committee must be told where the Children's Amendment Bill stands.

Ms Conny Nxumalo, Deputy Director General (DDG):  Welfare Services, said that the 26 November 2019 court order granted to the Department suspends by 12 months the requirement for  a comprehensive legal solution and for provinces to put systems in place to deal with foster care. It ordered that the Minister of Social Development must request Parliament to expedite the Bill, and that is what she understands the Committee to be following up with them based on the process map. The court order provides an interim regime for the management of the affected foster care orders. Importantly, reporting timelines have changed. DSD used to report every six months, but are now required to report very three months for the purposes of oversight over the Department. Without the extension of North Gauteng High Court Order on 26 Nov 2019, the moratorium would have run out and the backlog of 41 000 foster care orders across nine provinces would have lapsed.

Ms Nxumalo indicated that the statistics are cyclical in nature and that they are a moving target, with cases lapsing every month as foster care orders must be renewed by the Children’s Court every two years. However, the baseline of what still needs to be dealt with before the court order expires in November 2020 is 100 532, and this a figure includes projections. The Eastern Cape and Kwa-Zulu Natal are the highest risk provinces with the biggest number of foster care backlogs followed by Gauteng and the Western Cape.

The measures they put in place just before the court order extension will have to be continued. The presentation provides a breakdown by province of how they will deal with the outstanding number. She is not sure how the coronavirus will affect their ability to do the work. They have requested that social workers continue to do their work with protective measures and a hygienic regime. These are worrying factors. The Department has sent a narrative of the measures being put in place by the different provinces.

The Chairperson asked if the court had done nothing, the situation would be worse and if this means that the relevant Acts are unconstitutional and thus invalid.

Ms Nxumalo replied that the Acts deemed to have expired have not expired during the interim regime. However, they are encouraging social workers not to think the court has solved the problem but still pursue the cases so that come November 2020, they are not sitting with a backlog of many cases.

The Chairperson asked if the outstanding figure has a breakdown of the old cases and the new cases coming in.

Ms Nxumalo confirmed that they do.

Ms Masango said that she appreciated the projections because it gives them a clearer understanding of the workload before DSD. The DDG said there was a narrative and she asked if it is with the Committee. There are specific challenges, including that courts were not sitting as frequently as DSD would like, there were insufficient vehicles for staff to go and do work in communities and not enough social workers to do the work. She asked where DSD is with this challenges. Even if Parliament meets the deadline for the Bills, they know that DSD will not be in a position to implement the Bills immediately once passed. She asked for DSD's plans to ensure that by November, it does not need to go back to the court again.

The Chairperson agreed with Ms Masango's concern about the importance of DSD's ability to implement the Bill come November, more than just the National Assembly and NCOP being done with adopting it.

Ms Nxumalo replied that even if the Bill is passed, without regulations there would be no implementation. Therefore, they are working on the regulations concurrently. She noted that the narrative deals with the issues raised by Ms Masango.

Ms A Abrahams (DA) looked at the previous figures the Committee received. She asked why the new figures are evenly divided. Why have they not doubled up and tripled implementation in the first three or four months when they have proved to the Committee that they have capacity to do deal with high volumes. She also asked if they have seriously considered the safety of social workers beyond hand sanitisers and masks.

Ms N Bilankulu (ANC) asked why the case numbers cannot be spread more to the months before November.

Ms Nxumalo replied that DSD has pleaded with the provinces to continue their momentum. For example, they ask KZN what plans it has put in place and how many vehicles it has allocated. The reality is that there are not enough social workers. The only additional social workers were appointed to deal with gender-based violence (GBV) cases. Projections for Eastern Cape and KZN have dividing up their targets into 3.5 per month, with a target of 3.6 in November. This worries the Department because they may miss targets during the earlier months. However, the provinces have insisted that this is the best they can do. DSD undertakes to continue to urge them to achieve more throughout. The judiciary has improved a lot in terms of engagement with DSD. Although they still have concerns with the judiciary in a few provinces, some provinces have even undertaken to meet on weekends to partner with DSD in mutual assistance.

Ms Bilankulu asked the Chairperson if they may be privileged to know the three provinces where there are still problems with the judiciary.

The Chairperson proposed that they have gone a difficult way with the judiciary by asking them to keep pace with other provinces. He thinks that naming and shaming the provinces might not assist Parliament in their goal of bringing the judiciary up to date in all provinces.

Ms Bilankulu said that she does not think there is anything wrong in knowing which provinces are having trouble, and insisted that they are still privileged to know.

The Chair allowed the Department to reply.

Ms Nxumalo replied that they still have challenges in Western Cape, Limpopo and Free State, to which Ms Bilankulu said that is all she wanted to know.

Ms Nxumalo added that this is only in pockets of the provinces in certain magisterial districts where there are still issues.

The Chairperson said that it is important for the purpose of public perception and accuracy that DSD indicate which areas in the provinces are still having issues so that the spokesperson can be clear about that.

Committee minutes 
The Chairperson noted that the plan is that the Committee finish everything today. Tomorrow Parliament will be sitting. Whilst they wait for the final version of the Bill to adopt, they deal with the minutes. He said that he assumes that Members have gone through the minutes.

Ms Masango said that she thought they had agreed that once a meeting has taken place, they should adopt the minutes at the next meeting.

The Chairperson clarified that they would do so in future but these minutes were already grouped together in bulk. In future, once a meeting has taken place, they should adopt minutes. He assumes that members have read the minutes. They are free to comment on the individual minutes.

The Committee adopted the minutes of 6, 13 and 20 November 2019; 19 and 26 February; 4 March 2020.

The Committee took a break until 11:30 whilst waiting for the B version of the Bill to be printed.

Social Assistance Amendment Bill: adoption
After the break, the Chairperson informed the Committee that the Creda Press server is down and they cannot print the new Bill with the amendment. He proposed that since they had already adopted all the clauses in the previous meeting except Clause 7, the Committee adopt the Bill with the amendment as it is in front of them and all that is left is for it to be printed and circulated to the Members.

Adv Mjenxane suggested that they adopt the B-version with the Clause 7 amendment before them, provided the support staff ensure that the Clause 7 amendment is included in the B-version.

The Chairperson announced that the B-version is tabled before them for adoption as they await the final correct version to be printed. He asked the Secretary to read the Committee Report on adoption of the Bill.

The Committee Secretary read out the Committee Report which stated the Social Assistance Amendment Bill is a Section 76 Bill and the Committee was briefed on the Bill on 15 November 2019. Public hearings were held and six submissions were received. The Committee invited the Department to respond to the concerns raised by the public. The Committee approved the following changes to the Amendment Bill:

Clause 11, on page 5, line 31, to omit 2018 and substitute 2020

Clause 12, on page 5 and line 48, to omit 2018 and substitute 2020.

Clause 7, on page 4 and line 4 to insert ‘after consultation with Parliament’

The Committee unanimously agreed to adopt the Committee Report.

Ms Masango proposed the adoption of the Bill and Mr Stock seconded it.

In response to a question by Ms Masango,  the Chairperson said the adoption of the Report as narrated by the Secretary includes the adoption of the Bill with amendments.

Meeting adjourned.

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